                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                              FILED
                           FOR THE NINTH CIRCUIT
                                                                               JUL 03 2018
                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 17-10087

              Plaintiff-Appellee,                D.C. No. 1:16-cr-00453-SOM-1

 v.
                                                 MEMORANDUM*
SHERI LEE PUALANI KAPAHU,

              Defendant-Appellant.


                   Appeal from the United States District Court
                            for the District of Hawaii
                   Susan O. Mollway, District Judge, Presiding

                       Argued and Submitted June 14, 2018
                               Honolulu, Hawaii

Before: TASHIMA, W. FLETCHER, and HURWITZ, Circuit Judges.

      Defendant-Appellant Sheri Lee Pualani Kapahu (“Kapahu”) was convicted

of possession of methamphetamine with intent to distribute and challenges on

appeal the denial of her motions to suppress evidence. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      First, Kapahu moved to suppress her statements to Agent Richard Jones of

the Drug Enforcement Agency under Miranda v. Arizona, 384 U.S. 436 (1966).

Miranda applies only when an individual is “in custody when interrogated.”

United States v. Barnes, 713 F.3d 1200, 1204 (9th Cir. 2013) (per curiam). “To

determine whether an individual was in custody, we must decide whether a

reasonable person in the circumstances would have believed he could freely walk

away from the interrogators.” Id. Relevant factors include “(1) the language used

to summon the individual; (2) the extent to which the defendant is confronted with

evidence of guilt; (3) the physical surroundings of the interrogation; (4) the

duration of the detention; and (5) the degree of pressure applied to detain the

individual.” Id. (quoting United States v. Kim, 292 F.3d 969, 974 (9th Cir. 2002)).

      Kapahu was not “in custody” when she admitted that there were drugs in her

purse. At the time, she had been questioned for only a few minutes in a public part

of the airport. She had not been physically touched or restrained, and had been

told that she was free to leave. Although Agent Jones claimed to know that she

was carrying drugs, he never confronted Kapahu with actual evidence. Under our

case law, a “reasonable person” in Kapahu’s position would have felt “free to

leave.” See Barnes, 713 F.3d at 1204.




                                          2
      Of course, in reality, Kapahu was unlikely to leave given that she was

waiting in a line to board an airplane. That fact was obvious to Agent Jones and

his partner, Officer Lovinna Kaniho. It would have been far better, and more

informative to Kapahu, had they said, “You are free to leave, or free to tell us to go

away.” Nevertheless, Kapahu’s admission was not the result of “the same

inherently coercive pressures as the type of station house questioning at issue in

Miranda.” See Howes v. Fields, 565 U.S. 499, 509 (2012).

      Once Kapahu was taken out of the boarding line, she was not “interrogated”

within the meaning of Miranda until after she had been given the required

warnings. See United States v. Moreno-Flores, 33 F.3d 1164, 1171 (9th Cir. 1994)

(addressing statements about the importance of cooperating); United States v.

Ritter, 752 F.2d 435, 438 (9th Cir. 1985) (addressing requests for consent to

search).

      Second, Kapahu moved to suppress the fruits of the search of her purse. The

Fourth Amendment allows the police to conduct a warrantless search incident to a

lawful arrest of “the area within the control of the arrestee.” See United States v.

Robinson, 414 U.S. 218, 224 (1973). The search must be “spatially and temporally

incident to the arrest,” United States v. Camou, 773 F.3d 932, 937 (9th Cir. 2014),

and conducted for the purpose of “finding weapons the arrestee might use, or


                                          3
evidence the arrestee might conceal or destroy,” United States v. Maddox, 614 F.3d

1046, 1048 (9th Cir. 2010).

      The search of Kapahu’s purse was a permissible search incident to arrest.

By the time of the search, Kapahu had already given Agent Jones and Officer

Kaniho probable cause to arrest her by admitting to having drugs in her purse. At

the time, the purse was within Kapahu’s immediate control. See United States v.

Nohara, 3 F.3d 1239, 1243 (9th Cir. 1993). Kapahu was arrested moments later

and taken to an office used by the airport’s police task force.

      Finally, Kapahu argues on appeal that she was subject to an unlawful

investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968). Kapahu did not raise

this argument before the district court. We need not reach it, given our conclusion

that Kapahu was free to disregard Agent Jones’s questioning until she was taken

out of the boarding line to be arrested.

      AFFIRMED.




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