                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                             Docket Nos. 43844 & 43845



 STATE OF IDAHO,                                     )
                                                     )
        Plaintiff-Respondent,                        ) Boise, April 2017 Term
                                                     )
 v.                                                  ) 2017 Opinion No. 73
                                                     )
 SHAWN WILLIAM WASS,                                 ) Filed: June 22, 2017
                                                     )
       Defendant-Appellant.                          ) Karel A. Lehrman, Clerk
 _____________________________________               )



       Appeal from the District Court of the Third Judicial District of the State
       of Idaho, Canyon County. Hon. Christopher S. Nye, District Judge.

       The judgment of conviction is affirmed.

       Eric D. Fredericksen, State Appellate Public Defender, Boise, attorney for
       appellant. Andrea Reynolds argued.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for
       respondent. John C. McKinney argued.
                                _____________________

JONES, Justice
                                     I. NATURE OF THE CASE
       Shawn William Wass (“Wass”) appeals from the judgment entered upon his conditional
guilty plea to possession of a controlled substance (methamphetamine). He asserts on appeal that
the district court erred when it denied his motion to suppress his admission to the arresting
officer that he was in possession of syringes.
                         II. FACTUAL AND PROCEDURAL BACKGROUND
       At approximately 12:37 A.M. on August 9, 2015, Officer Dan Drake (“Officer Drake”)
of the Canyon County Sheriff’s Office was patrolling the Sportsman’s access on 21319 Midland
Boulevard. He observed a purple Hyundai Elantra in the parking area, which is closed during the

                                                 1
night. Officer Drake approached the vehicle. Grace Stanbery (“Stanbery”) was sitting in the
passenger seat. Wass was standing behind the vehicle. Officer Drake spoke briefly to Wass, who
admitted that he and Stanbery had been drinking two hours prior. Officer Drake asked both
parties for identification. Stanbery provided an Idaho driver’s license. Wass gave Officer Drake
his name, but claimed that he did not have any identification on him. Officer Drake asked Wass
if there was anything illegal in the vehicle. Wass answered that there was not. Officer Drake
asked Wass and Stanbery for permission to search the vehicle. Both refused. Officer Drake then
returned to his vehicle to enter the identifying information he had been given into his mobile
computer. The mobile computer alerted Officer Drake that Wass had two active outstanding
warrants. Officer Drake reapproached the vehicle and administered a field sobriety test on Wass.
During the field sobriety test, Wass placed his wallet on the hood of the vehicle. Wass then
admitted that he had identification in his wallet and that he had lied to Officer Drake because he
was concerned that there might be an outstanding warrant. Officer Drake informed Wass that
there were actually two outstanding warrants and placed him in wrist restraints. Officer Drake
again asked Wass if there was anything illegal in Wass’ vehicle. This time Wass admitted that
there were syringes in the vehicle. At the time of this admission, Wass had not been informed of
his Miranda rights. Officer Drake later testified that he immediately realized at that time that he
had made “a mistake.”
       After Wass told him that there were syringes in the vehicle, Officer Drake placed Wass in
his police vehicle. Officer Drake approached Wass’ vehicle but did not enter it. He visually
inspected the vehicle but was unable to see anything illegal. After approximately two minutes,
Officer Drake returned to his police vehicle. Officer Drake informed Wass of his Miranda rights.
Wass affirmed that he understood his rights. Officer Drake then asked Wass if, with those rights
in mind, Wass still wanted to tell him about anything illegal in Wass’ vehicle. Wass again stated
that there were syringes in the vehicle. Officer Drake searched Wass’ vehicle where he recovered
a black spoon with white residue, three syringes, a cotton arm sleeve, two small pieces of cotton,
and an aluminum foil bindle containing marijuana. One of the syringes was loaded with a white
clear liquid. The syringe containing the clear liquid tested positive for methamphetamine.
       On August 20, 2015, the State filed an Information alleging felony Possession of
Methamphetamine. On October 5, 2015, Wass filed a motion to suppress the statements he made
to Officer Drake with respect to the presence of syringes in his vehicle and any physical evidence
                                                2
recovered as a result of those statements. Wass argued that he was not informed of his Miranda
rights prior to being questioned.
       At a hearing on October 22, 2015, the district court denied the motion to suppress. It held
as follows:
       [T]he question is whether the drug evidence must be suppressed because the first -
       - because of the first unwarned statements about the syringes or does the second
       statements after the - - does the Miranda warnings given a few minutes later cure
       that problem.
               . . . I find that the officer did not tactically induce a confession prior to
       Miranda warnings - - or coerce a confession or use improper tactics to obtain the
       confession prior to Miranda warnings. And the second Miranda warnings does
       cure the failure to administer it the first time.
              It’s not a coercion where the actual circumstances are calculated to
       undermine the suspect’s ability to exercise free will. So I find that the second
       Miranda warnings does [sic] cure it. Once that happens, then the officer has
       reasonable articulable suspicion to search the automobile under the automobile
       search warrantless exception and he does search it and finds the items found in the
       case. So I’m denying the motion to suppress.
       On December 22, 2015, Wass and the State entered into a plea agreement by which Wass
agreed to plead guilty to felony Possession of Methamphetamine while reserving his right to
appeal the district court’s denial of his motion to suppress. The district court sentenced Wass to a
suspended sentence of seven years with three years fixed. Wass appeals.
                                      III. ISSUE ON APPEAL
1.     Did the district court err when it denied Wass’ motion to suppress his oral admission that
       there were syringes in his vehicle?
                                    IV. STANDARD OF REVIEW
       In reviewing a district court order granting or denying a motion to suppress
       evidence, the standard of review is bifurcated. State v. Watts, 142 Idaho 230, 232,
       127 P.3d 133, 135 (2005). This Court will accept the trial court’s findings of fact
       unless they are clearly erroneous. State v. Diaz, 144 Idaho 300, 302, 160 P.3d
       739, 741 (2007). However, this Court may freely review the trial court’s
       application of constitutional principles in light of the facts found. Id.
State v. Purdum, 147 Idaho 206, 207, 207 P.3d 182, 183 (2009).
                                           V. ANALYSIS
       The United States Supreme Court first addressed the issue of whether admissions made in
response to police questioning before Miranda warnings have the effect of rendering the same
admissions made again after Miranda warnings inadmissible in the case of Oregon v. Elstad, 470

                                                 3
U.S. 298 (1985). Elstad arose out of the theft of roughly $150,000 of art and furniture from a
home while the owners were on vacation. Id. A witness to the burglary contacted police and
implicated Elstad, a friend of the owners’ son. Id. Police arrived at Elstad’s residence where he
lived with his parents. Id. A police officer spoke with Elstad, at his residence, informing him that
the police believed Elstad was involved in the burglary. Id. at 301. Elstad responded that he was
present when the burglary took place. Id. Elstad was arrested and taken to the police station
where he was advised of his Miranda rights. Id. Elstad indicated that he understood his rights
and gave a full statement confessing to being involved in the burglary. Id. At trial, Elstad moved
to have his post-Miranda admissions suppressed. Id. at 302. His motion to suppress was denied,
and he was convicted on the evidence of his confession. Id. Elstad appealed to the Oregon Court
of Appeals, which reversed his conviction, reasoning that Elstad’s original statement was made
in response to a Miranda violation and that not enough time had passed between Elstad’s pre-
Miranda statement at his house and his post-Miranda statement at the police station to cure the
taint of the original violation. Id. at 303.
        The United States Supreme Court reversed. Id. at 318. It held that the Oregon Court of
Appeals had erred in treating a Miranda violation as equivalent to a constitutional violation. Id.
at 304. It explained that a breach of Miranda does not necessarily mean a Fifth Amendment
violation has occurred. Id. at 307. Accordingly, “errors [] made by law enforcement officers in
administering the prophylactic Miranda procedures . . . should not breed the same irremediable
consequences as police infringement of the Fifth Amendment itself.” Id. at 309. The United
States Supreme Court reasoned that:
        It is an unwarranted extension of Miranda to hold that a simple failure to
        administer the warnings, unaccompanied by any actual coercion or other
        circumstances calculated to undermine the suspect’s ability to exercise his free
        will, so taints the investigatory process that a subsequent voluntary and informed
        waiver is ineffective for some indeterminate period. Though Miranda requires
        that the unwarned admission must be suppressed, the admissibility of any
        subsequent statement should turn in these circumstances solely on whether it is
        knowingly and voluntarily made.
                ....
                 . . . [A]bsent deliberately coercive or improper tactics in obtaining the
        initial statement, the mere fact that a suspect has made an unwarned admission
        does not warrant a presumption of compulsion. A subsequent administration
        of Miranda warnings to a suspect who has given a voluntary but unwarned
        statement ordinarily should suffice to remove the conditions that precluded

                                                 4
        admission of the earlier statement. In such circumstances, the finder of fact may
        reasonably conclude that the suspect made a rational and intelligent choice
        whether to waive or invoke his rights.
               ....
               . . . [T]here is no warrant for presuming coercive effect [with respect to the
        post-Miranda statement] where the suspect’s initial inculpatory statement, though
        technically in violation of Miranda, was voluntary.
Id. at 309, 314, 318. Elstad’s initial pre-Miranda statement, the United States Supreme Court
concluded, “was voluntary, within the meaning of the Fifth Amendment.” Id. at 315.
Accordingly, it focused on the facts surrounding Elstad’s post-Miranda warning statements and
found that Elstad “knowingly and voluntarily waived his right to remain silent before he
described his participation in the burglary.” Id. The United States Supreme Court concluded that
“[w]e hold today that a suspect who has once responded to unwarned yet uncoercive questioning
is not thereby disabled from waiving his rights and confessing after he has been given the
requisite Miranda warnings.” Id. at 318.
        Twenty years later, the United States Supreme Court revisited Elstad in Missouri v.
Seibert, 542 U.S. 600 (2004). Seibert arose out of the death of Jonathan Seibert, a twelve year
old boy with cerebral palsy. Id. at 604. Following Jonathan’s death, his mother, Patrice Seibert
(“Patrice”), feared charges of neglect because her son’s body was covered in bedsores. Id. In
order to conceal the facts surrounding Jonathan’s death, Patrice’s two other sons and two of their
friends devised a plan, with her knowledge, to set the family’s mobile home on fire. Id. In order
to avoid the appearance that Jonathan had been left alone, they set the mobile home on fire while
Donald Rector, a mentally ill teenager living with the family was still inside. Id. Donald died in
the fire. Id.
        Five days later, at approximately 3:00 A.M., the police arrested Patrice and brought her to
the police station. Id. Prior to the arrest, the arresting officer was specifically instructed by the
officer scheduled to conduct the interrogation not to give Patrice Miranda warnings. Id. At the
police station, the interrogating officer questioned Patrice for 30 to 40 minutes, squeezing her
arm and repeating that “Donald was supposed to die in his sleep.” Id. at 605. Patrice broke down
and admitted that Donald was supposed to die in the fire. Id. Following Patrice’s admission, the
interrogating officer brought a tape recorder into the interrogation room, and it was only then that
he informed Patrice of her Miranda rights. Id. During the taped interrogation that followed, the


                                                 5
interrogating officer confronted Patrice with her pre-Miranda statements in order to obtain a
confession. Id.
       At trial, the interrogating officer testified that he had made a “conscious decision” to
initially withhold Miranda warnings from Patrice as an interrogation tactic. Id. at 606–07. The
trial court suppressed the pre-Miranda statements but allowed evidence of the post-Miranda
confession. Id. at 607. The Supreme Court of Missouri reversed, holding that the confession was
clearly a product of the pre-Miranda statements and that the interrogating officer intended to
deprive Patrice of the opportunity to exercise her Miranda rights. Id. The United States Supreme
Court affirmed the Supreme Court of Missouri. Id. at 617. In a plurality opinion, Justice Souter
reasoned that Miranda stands for the proposition that “a suspect must be adequately and
effectively advised of the choice the Constitution guarantees.” Id. at 611 (internal quotations and
citations omitted). “By any objective measure, applied to circumstances exemplified here, it is
likely that if the interrogators employ the technique of withholding warnings until after
interrogation succeeds in eliciting a confession, the warnings will be ineffective in preparing the
suspect for successive interrogation, close in time and similar in content.” Id. at 613. “Upon
hearing warnings only in the aftermath of interrogation and just after making a confession, a
suspect would hardly think he had a genuine right to remain silent, let alone persist in so
believing once the police began to lead him over the same ground again.” Id.
       Writing for the plurality, Justice Souter distinguished Seibert from the holding in Elstad,
by noting that

       in Elstad, it was not unreasonable to see the occasion for questioning at the station
       house as presenting a markedly different experience from the short conversation
       at home; since a reasonable person in the suspect’s shoes could have seen the
       station house questioning as a new and distinct experience, the Miranda warnings
       could have made sense as presenting a genuine choice whether to follow up on the
       earlier admission.
Id. at 615–16,
       In conclusion, Justice Souter identified several factors that a court should consider in
determining whether post-Miranda statements are admissible:

              The contrast between Elstad and [Seibert] reveals a series of relevant facts
       that bear on whether Miranda warnings delivered midstream could be effective
       enough to accomplish their object: the completeness and detail of the questions
       and answers in the first round of interrogation, the overlapping content of the two

                                                6
        statements, the timing and setting of the first and the second, the continuity of
        police personnel, and the degree to which the interrogator’s questions treated the
        second round as continuous with the first.
Id. at 615.
        Justice Kennedy concurred in the judgment, but provided a different holding. Id. at 618.
He agreed with the plurality opinion that “[t]he interrogation technique used in this case is
designed to circumvent Miranda v. Arizona . . . . It undermines the Miranda warning and
obscures its meaning.” Id. Justice Kennedy differed with the plurality, however, writing that

        [t]he plurality concludes that whenever a two-stage interview occurs,
        admissibility of the postwarning statement should depend on “whether the
        Miranda warnings delivered midstream could have been effective enough to
        accomplish their object” given the specific facts of the case. . . . I would apply a
        narrower test applicable only in the infrequent case, such as we have here, in
        which the two-step interrogation technique was used in a calculated way to
        undermine the Miranda warning.
Id. at 621–22.
        Interpretation of the Seibert opinion is currently subject to a circuit split. The majority of
circuits, including the Ninth Circuit Court of Appeals, have determined that Justice Kennedy’s
concurrence, and not Justice Souter’s plurality opinion, contains the precedential holding of the
case.

                Ordinarily, “[w]hen a fragmented Court decides a case and no single
        rationale explaining the result enjoys the assent of five Justices, the holding of the
        Court may be viewed as that position taken by those Members who concurred in
        the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188,
        193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) . . . .
                . . . [B]oth the plurality and Justice Kennedy agree that where law
        enforcement officers deliberately employ a two-step interrogation to obtain a
        confession and where separations of time and circumstance and additional
        curative warnings are absent or fail to apprise a reasonable person in the
        suspect’s shoes of his rights, the trial court should suppress the confession. This
        narrower test—that excludes confessions made after a deliberate, objectively
        ineffective mid-stream warning—represents Seibert’s holding. In situations where
        the two-step strategy was not deliberately employed, Elstad continues to govern
        the admissibility of postwarning statements.
U.S. v. Williams, 435 F.3d 1148, 1157–58 (9th Cir. 2006). Other circuit courts have come to the
same conclusion. See U.S. v. Courtney, 463 F.3d 333, 338 (5th Cir. 2006) (“we find Seibert’s
holding in Justice Kennedy’s opinion concurring in the judgment.”); U.S. v. Kiam, 432 F.3d 524,
532 (3d Cir. 2005) (“This court applies the Seibert plurality opinion as narrowed by Justice
                                             7
Kennedy. . . . Once we determine that the Miranda violation was not deliberate, we must fall
back on Elstad as instructed by Justice Kennedy.”); U.S. v. Mashburn, 406 F.3d 303, 309 (4th
Cir. 2005) (“Justice Kennedy’s opinion therefore represents the holding of the Seibert Court: The
admissibility of postwarning statements is governed by Elstad unless the deliberate ‘question-
first’ strategy is employed.”); U.S. v. Briones, 390 F.3d 610, 613 (8th Cir. 2004) (“Because
Justice Kennedy relied on grounds narrower than those of the plurality, his opinion is of special
significance.”); U.S. v. Stewart, 388 F.3d 1079, 1090 (7th Cir. 2004) (“Justice Kennedy thus
provided a fifth vote to depart from Elstad, but only where the police set out deliberately to
withhold Miranda warnings until after a confession has been secured. Where the initial violation
of Miranda was not part of a deliberate strategy to undermine the warnings, Elstad appears to
have survived Seibert.”).
        We hereby adopt the analysis of Seibert promulgated by the majority of circuit courts.
“When a fragmented Court decides a case and no single rationale explaining the result enjoys the
assent of five Justices, the holding of the Court may be viewed as that position taken by those
Members who concurred in the judgments on the narrowest grounds.” Marks, 430 U.S. at 193
(internal quotations and citation omitted). In Seibert, the Plurality set forth a multi-factor analysis
to be applied in every instance of two-stage interrogation. Justice Kennedy agreed to the
Plurality’s framework, but only in cases in which the two stage-interrogation was the result of an
intentional tactic to induce a confession and not in the case of mistake or accident. Accordingly,
the more narrow holding of Seibert is Justice Kennedy’s; the Plurality’s multi-factor analysis is
applicable only in cases of intentional two-stage interrogations.
       It follows that Seibert does not apply to this case. There is no evidence that the district
court erred when it determined that Officer Drake did not intentionally use a two-stage
interrogation technique as a tactic to induce a confession. Rather, all of the evidence presented to
the district court indicates that Officer Drake made a mistake questioning Wass before giving
him his Miranda rights, realized his mistake, and immediately attempted to correct his mistake
by giving Wass his Miranda warnings and questioning him again.
       Because Seibert does not apply here, Elstad governs our analysis. Under Elstad, a
suspect’s prior, voluntary statements made in violation of Miranda do not preclude the trier of
fact from concluding that the suspect’s later voluntary statements made after being administered
Miranda rights were the result of a rational and intelligent choice to waive those rights. Wass did
                                                  8
not contend in the district court that either his pre- or post-Miranda statements were coerced.
Therefore, we uphold the court’s decision that his post-Miranda statements were admissible.

                                       VI. CONCLUSION
       This Court affirms the district court’s judgment of conviction.

       Chief Justice BURDICK, Justices EISMANN, HORTON and BRODY CONCUR.




                                                9
