                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                       Docket No. 43943

STATE OF IDAHO,                                      )
                                                     )         Idaho Falls, May 2017 Term
      Plaintiff-Appellant,                           )
                                                     )         2017 Opinion No. 82
v.                                                   )
                                                     )         Filed: July 10, 2017
TYRELL GARRETT MC NEELY,                             )
                                                     )         Karel A. Lehrman, Clerk
      Defendant-Respondent.                          )

       Appeal from the District Court of the Sixth Judicial District of the State of Idaho,
       Franklin County. Hon. Mitchell W. Brown, District Judge.

       The district court’s order granting the motion to suppress is affirmed.

       Hon. Lawrence G. Wasden, Attorney General, Boise, for appellant. Russell J.
       Spencer argued.

       Michael J. Wood, Twin Falls, for respondent.
           _______________________________________________

HORTON, Justice.
       This is an appeal from an order granting a motion to suppress. The district court in
Franklin County granted a motion to suppress statements made by Tyrell McNeely to Detective
Zane Jensen after finding that the Miranda warnings given to McNeely did not adequately advise
him of his rights. On appeal, the State argues that the district court erred when it followed case
law from the Ninth Circuit Court of Appeals requiring police to advise suspects of their right to
have an attorney present during interrogation. We affirm.
                    I. FACTUAL AND PROCEDURAL BACKGROUND
       McNeely was arrested on May 15, 2015, for a misdemeanor probation violation. While
McNeely was at the Franklin County Sheriff’s Office, Detective Jensen was asked to transport
him to jail. Detective Jensen was investigating a report that McNeely had engaged in lewd and
lascivious conduct with a minor child and decided to interview McNeely. At the beginning of the
interview the following exchange took place:
       Detective Jensen: You kind of got yourself in a spot.

                                                 1
       McNeely: Uh huh.
       Detective Jensen: And I need to visit with you about it. But I need – I need to
       have you understand – I need to talk to you about first about your rights.
       McNeely: Kay.
       Detective Jensen: Do you understand your rights?
       McNeely: Uh, read them all to me again.
       Detective Jensen: Okay. You have the right to remain silent. You understand that?
       McNeely: Yes.
       Detective Jensen: You have the right – uhm – because anything you say can and will be
       used against you in court.
       McNeely: (Nodding his head up and down).
       Detective Jensen: You have the right to have an attorney, do you understand that?
       McNeely: (Simultaneously nodding his head up and down).
       Detective Jensen: To help you with – stuff.
       Detective Jensen: And if you can’t afford an attorney we’ll provide one for you.
       Detective Jensen: Do you understand all that?
       McNeely: (Nodding his head up and down) Uh-huh.
During the conversation that followed, McNeely made incriminating statements that the State
wished to use against him at trial. McNeely filed a motion to suppress the statements made
during the interview. Following a hearing, the district court granted the motion to suppress
finding that Detective Jensen failed to adequately advise McNeely of his right to have an
attorney present during the interview. The State timely appealed.
                                  II. STANDARD OF REVIEW
       “The standard of review of a suppression motion is bifurcated.” State v. Page, 140 Idaho
841, 843, 103 P.3d 454, 456 (2004). When a decision on a motion to suppress is challenged, the
Court accepts the trial court’s findings of fact that are supported by substantial evidence, but
freely reviews the application of constitutional principles to the facts as found.” Id.
                                          III. ANALYSIS
       The Fifth Amendment to the United States Constitution provides that no person, “shall be
compelled in any criminal case to be a witness against himself….” U.S. CONST. amend. V. This
right has been applied to the states through the Fourteenth Amendment. U.S. CONST. amend.
XIV. In a landmark case, the United States Supreme Court held that in order to use statements

                                                  2
made by a suspect during a custodial interrogation, the suspect must be advised of his Fifth
Amendment rights. Miranda v. Arizona, 384 U.S. 436, 479 (1966). In Miranda, the Court stated:
                  To summarize, we hold that when an individual is taken into custody or
          otherwise deprived of his freedom by the authorities in any significant way and is
          subjected to questioning, the privilege against self-incrimination is jeopardized.
          Procedural safeguards must be employed to protect the privilege and unless other
          fully effective means are adopted to notify the person of his right of silence and to
          assure that the exercise of the right will be scrupulously honored, the following
          measures are required. He must be warned prior to any questioning that he has the
          right to remain silent, that anything he says can be used against him in a court of
          law, that he has the right to the presence of an attorney, and that if he cannot
          afford an attorney one will be appointed for him prior to any questioning if he so
          desires. Opportunity to exercise these rights must be afforded to him throughout
          the interrogation. After such warnings have been given, and such opportunity
          afforded him, the individual may knowingly and intelligently waive these rights
          and agree to answer questions or make a statement. But unless and until such
          warnings and waiver are demonstrated by the prosecution at trial, no evidence
          obtained as a result of interrogation can be used against him.
Id. at 478–79. This case presents a single issue: whether Detective Jensen adequately informed
McNeely of his right to have counsel present during questioning. The parties agree that this was
a custodial interrogation and that Detective Jensen adequately informed McNeely of his other
rights.
          The district court held that the warning regarding the right to counsel was inadequate as
Detective Jensen did not inform McNeely that he had the right to have counsel present before
and during interrogation. The State argues that the district court based its opinion on the
improper belief that it was bound by Ninth Circuit case law requiring police to inform suspects
that they have the right to have counsel present before and during interrogation. The State further
argues that Miranda does not require such an elaborate warning and that the warnings given by
Detective Jensen adequately informed McNeely of his rights. The issue of whether a suspect
must be informed of their right to have counsel present before and during interrogation is a
matter of first impression before this Court.
A. The district court was not bound by Ninth Circuit case law.
          The State argues that the district court erred because it felt bound to follow Ninth Circuit
case law. McNeely argues that the district court did not feel bound by the Ninth Circuit but
merely adopted its reasoning. While the State is correct, this issue is not dispositive in this case
on appeal.

                                                   3
        This Court has said, “the decisions of lower federal courts are not binding on state courts,
even on issues of federal law.” Dan Wiebold Ford, Inc. v. Universal Computer Services, Inc.,
142 Idaho 235, 240, 127 P.3d 138, 143 (2005). “Such decisions are authoritative only if the
reasoning is persuasive.” Id.
        In this case, the district court stated that it felt “compelled” to follow the pronouncements
of the Ninth Circuit.
                While the Court recognizes that there is room for debate concerning this
        issue and one might speculate that the United States Supreme Court will
        ultimately reach a different result, if and when they consider this precise issue,
        especially if one reads closely the United States Supreme Court’s decisions in
        California v. Prysock, 543 U.S. 355, 359 … (1981) (per curiam) and Duckworth
        [v. Eagan, 492 U.S. 195 (1989)]. However, the Court believes that it is compelled
        to follow the directive and pronouncement of the Ninth Circuit Court of Appeals
        on this issue and their pronouncement is quite clear in this respect. See [United
        States v.] Noti, [731 F.2d 610 (9th Cir. 1984)].
Thus, it appears that the district court felt bound by Ninth Circuit case law. As noted above, state
courts are not bound by circuit court precedent even on matters of federal law. While Noti may
be considered as persuasive authority, the district court erred to the extent that it believed itself to
be compelled to follow the Ninth Circuit’s directive and pronouncement. However, this error is
not dispositive of this appeal.
B. The Miranda warnings given to McNeely were inadequate as they did not reasonably
   convey his rights.
        The district court found that the Miranda warnings given to McNeely by Detective
Jensen were inadequate because they failed to inform McNeely that he had the right to have
counsel present before and during interrogation. The State argues that the warnings were
adequate as they reasonably conveyed the Miranda warnings to McNeely. The district court was
correct.
        In Miranda, the United States Supreme Court announced a set of warnings which must be
given to a suspect to protect his Fifth Amendment right against self-incrimination a right which
“has consistently been accorded a liberal construction.” Miranda, 384 U.S. at 460. “Unless
adequate protective devices are employed to dispel the compulsion inherent in custodial
surroundings, no statement obtained from the defendant can truly be the product of free choice.”
Id. at 458. When discussing the right at issue in this case, the Miranda Court said, “the right to


                                                   4
have counsel present at the interrogation is indispensable to the protection of the Fifth
Amendment privilege under the system we delineate today.” Id. at 469.
       In a recent case discussing Miranda and its progeny, the United States Supreme Court
articulated the standard used to determine the adequacy of Miranda warnings. See Florida v.
Powell, 559 U.S. 50 (2010).
       In determining whether police officers adequately conveyed the four warnings,
       we have said, reviewing courts are not required to examine the words employed
       “as if construing a will or defining the terms of an easement. The inquiry is
       simply whether the warnings reasonably ‘conve[y] to [a suspect] his rights as
       required by Miranda.’ ” Duckworth, 492 U.S., at 203 (quoting Prysock, 453 U.S.,
       at 361).
Id. at 60 (alterations in original).
       Detective Jensen told McNeely that, “[y]ou have the right to an attorney, do you
understand that? To help you with – stuff.” This warning did not reasonably convey to McNeely
that he had the right to have the presence of counsel before and during questioning. Although the
Supreme Court has not required that law enforcement officer use specific phraseology, it has
consistently held that the right to the presence of counsel is an essential part of the Miranda
warnings. See e.g. Miranda, 384 U.S. at 469 (“He must be warned prior to questioning… that he
has the right to the presence of an attorney…”); Duckworth v. Eagan, 492 US 195, 204 (1989)
(upholding warnings which stated suspect had the, “right to the advice and presence of a
lawyer…”); Powell, 559 U.S. at 59 (“Miranda prescribed the following four now-familiar
warnings: … ‘[3] that he has the right to the presence of an attorney…’ ”). The warning that
Detective Jensen gave McNeely failed to advise him that he had the right to have an attorney
present. Instead, Detective Jensen simply told McNeely that an attorney would be provided to
help with “stuff.” Because the warning did not adequately convey to McNeely his right to the
presence of counsel before and during questioning, the district court properly granted McNeely’s
motion to suppress.
       The State argues that the warnings were adequate based on a decision from this Court
soon after Miranda was announced. In State v. Ross, 92 Idaho 709, 449 P.2d 369 (1968), this
Court found warnings similar to those provided to McNeely were adequate. In Ross, the
defendant was informed, “I will have to tell you that you’re entitled to an attorney.” 92 Idaho at
715, 449 P.2d at 376. While the warnings in Ross and this case are similar, subsequent decisions
from the United States Supreme Court leads us to the conclusion that such a warning is
                                          5
insufficient. Therefore, we overrule the decision in Ross and affirm the district court’s order
granting McNeely’s motion to suppress.
                                     IV. CONCLUSION
       We affirm the decision of the district court suppressing statements made by McNeely to
Detective Jensen.

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




                                              6
