               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 41241

STATE OF IDAHO,                                 )     2014 Opinion No. 82
                                                )
       Plaintiff-Respondent,                    )     Filed: October 8, 2014
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
RICHARD L. BECK,                                )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho,
       Boise County. Hon. Kathryn A. Sticklen, District Judge. Hon. Roger Cockerille,
       Magistrate.

       Order of the district court affirming the magistrate’s order denying motion to
       suppress, affirmed.

       David J. Smethers, Boise County Public Defender, Boise, for appellant. David J.
       Smethers argued.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent. Jessica M. Lorello argued.
                 ________________________________________________
GRATTON, Judge
       Richard L. Beck appeals from the district court’s intermediate appellate decision
affirming the judgment entered upon Beck’s conditional guilty plea to possession of
paraphernalia. Specifically, Beck challenges the denial of his motion to suppress. We affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       A sheriff’s deputy and Army Corps of Engineers’ ranger responded to a report of a
camper smoking marijuana at Macks Creek Campground near Lucky Peak Reservoir. Both the
deputy and ranger were armed and in uniform. Passing through several other camping areas,
they walked down a marked trail to Beck’s campsite. The campsite was within a camping area
designated by the Army Corps of Engineers.




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       The door on Beck’s tent was wide open, and the tent was nearly falling over. The deputy
observed Beck and his girlfriend sleeping in the tent. The deputy discovered a beer can while
walking near the tent. The beer can was located to the side or rear of Beck’s tent and near a tree,
which was approximately six to seven feet from the trail. The beer can was smashed, contained
several puncture holes, and had a burnt residue on it and what appeared to be a marijuana stem.
Upon picking up the beer can, the deputy could smell the odor of burnt marijuana.
       The deputy called to Beck and his girlfriend to wake up. Beck’s girlfriend awoke, and
after she was prompted by the deputy, she roused Beck. The deputy was familiar with Beck
because he had talked to Beck about marijuana use the previous night. The deputy directed Beck
to exit the tent and, after Beck became belligerent, instructed Beck to sit in a camping chair at the
front of the tent for officer safety. The ranger described Beck as being very upset at being
awoken and at the deputy for returning after speaking with him the night before. Beck’s
emotions were described as going back and forth from laughter to shouting, then back to
friendliness. The ranger testified that from his training and experience, he believed Beck was
intoxicated. Without providing Miranda 1 warnings, the deputy began to question Beck about the
beer can. The deputy recounted their previous discussion, and asked if Beck knew about the beer
can. Beck denied possession or knowledge of the beer can several times. He gave differing
accounts regarding the presence of the beer can, including that some friends left it after smoking
marijuana from it the night before. Beck ultimately admitted to smoking marijuana from the
beer can, explaining he used it to “wake and bake.” The ranger explained the term means that an
individual smokes marijuana upon waking up.
       The State charged Beck with possession of drug paraphernalia. Beck filed a motion to
suppress evidence of the paraphernalia and the statements made before he was given Miranda
warnings. The magistrate denied the motion. Beck entered a conditional guilty plea, reserving
the right to appeal the court’s denial of his motion to suppress. Beck appealed to the district
court. The district court, sitting in its intermediate appellate capacity, affirmed the magistrate’s
decision. Beck timely appeals.




1
       See Miranda v. Arizona, 384 U.S. 436 (1966).

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                                                II.
                                           ANALYSIS
       When reviewing the decision of a district court sitting in its appellate capacity, our
standard of review is the same as expressed by the Idaho Supreme Court:
       The Supreme Court reviews the trial court (magistrate) record to determine
       whether there is substantial and competent evidence to support the magistrate’s
       findings of fact and whether the magistrate’s conclusions of law follow from
       those findings. If those findings are so supported and the conclusions follow
       therefrom and if the district court affirmed the magistrate’s decision, we affirm
       the district court’s decision as a matter of procedure.

Pelayo v. Pelayo, 154 Idaho 855, 858-59, 303 P.3d 214, 217-18 (2013) (quoting Bailey v. Bailey,
153 Idaho 526, 529, 284 P.3d 970, 973 (2012)). Thus, the appellate courts do not review the
decision of the magistrate court. Bailey, 153 Idaho at 529, 284 P.3d at 973. Rather, we are
procedurally bound to affirm or reverse the decisions of the district court. State v. Korn, 148
Idaho 413, 415 n.1, 224 P.3d 480, 482 n.1 (2009).
       The standard of review of a suppression motion is bifurcated. When a decision on a
motion to suppress is challenged, we accept the trial court’s findings of fact that are supported by
substantial evidence, but we freely review the application of constitutional principles to the facts
as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a
suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts,
weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina,
127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d
659, 662 (Ct. App. 1999). In this case, the magistrate did not make explicit findings of fact when
ruling on the motion to suppress. “When no such findings are made on the record, we examine
the record to determine the implicit findings that underlie the trial court’s determination and
uphold those implicit findings if they are supported by substantial evidence.” State v. Bowman,
124 Idaho 936, 940, 866 P.2d 193, 197 (Ct. App. 1993).
A.     Fourth Amendment
       Beck argues that the deputy’s entrance into the area near his tent was unlawful under the
Fourth Amendment. The Fourth Amendment protects the “right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.
CONST. amend. IV. In order to rely on the amendment’s protection, a defendant must establish



                                                 3
that a Fourth Amendment search occurred. Kyllo v. United States, 533 U.S. 27, 31 (2001) (“the
antecedent question [is] whether or not a Fourth Amendment ‘search’ has occurred”). While
Beck argues that he had a reasonable expectation of privacy in the area surrounding his tent,
including where the can was found, his principal argument centers upon whether that area was
part of the curtilage of his tent and, therefore, protected from intrusion.
       In Oliver v. United States, 466 U.S. 170, 180 (1984), the Court described “curtilage” as
“the land immediately surrounding and associated with the home.” The Court further explained
that, “At common law, the curtilage is the area to which extends the intimate activity associated
with the ‘sanctity of a man’s home and the privacies of life,’ and therefore has been considered
part of home itself for Fourth Amendment purposes.” Id. (citation omitted). In United States v.
Dunn, 480 U.S. 294 (1987), the United States Supreme Court established four factors to
determine whether an area surrounding a home comes within the definition of curtilage for
Fourth Amendment purposes. These factors are: (1) the proximity to the home of the area
claimed to be curtilage; (2) whether the area is included within an enclosure surrounding the
home; (3) the nature of the uses to which the area is put; and (4) the steps taken by the resident to
protect the area from the observation of people passing by. Id. at 301; see also State v. Webb,
130 Idaho 462, 465-66, 943 P.2d 52, 55-56 (1997). The Court clarified that it was not creating a
“finely tuned formula,” but instead explained the factors are “useful analytical tools only to the
degree that, in any given case, they bear upon the centrally relevant consideration--whether the
area in question is so intimately tied to the home itself that it should be placed under the home’s
‘umbrella’ of Fourth Amendment protection.” Dunn, 480 U.S. at 301.
       The magistrate, district court, and the State principally focus the analysis upon whether
Beck had “a reasonable expectation of privacy” in the area surrounding his tent, as opposed to
specifically whether the area was curtilage. In Katz v. United States, 389 U.S. 347, 351 (1967),
the Supreme Court held that an individual within a phone booth had a reasonable expectation of
privacy from outside listening devices, the Court explained that “the Fourth Amendment protects
people, not places.” The protection of people does not turn on the entry or intrusion of an area,
but instead depends on the reasonable expectation of privacy that the individual possesses.
Determining whether this interest exists “involves a two-part inquiry: (1) Did the person have a
subjective expectation of privacy in the object of the challenged search? and (2) Is society
willing to recognize that expectation as reasonable?” State v. Pruss, 145 Idaho 623, 626, 181


                                                  4
P.3d 1231, 1234 (2008). The first inquiry is a factual issue, and the second is an issue of law.
Id.
       The magistrate did not expressly analyze the Dunn curtilage factors.               Instead, the
magistrate concluded Beck did not have a reasonable expectation of privacy, and that the area
around Beck’s tent was within the open fields doctrine and, thus, inferentially found the area was
not part of the curtilage. In Hester v. United States, 265 U.S. 57, 59 (1924), the United States
Supreme Court explained “the special protection accorded by the Fourth Amendment to the
people in their ‘persons, houses, papers and effects,’ is not extended to the open fields.” In
Oliver, the Court contrasted “open fields” to the curtilage and held that, “no expectation of
privacy legitimately attaches to open fields.” Oliver, 466 U.S. at 180. Here, the magistrate
determined that anyone could have walked up to Beck’s tent, it was on public land, and there
was nothing indicating the area was private. The magistrate also relied on language in Pruss that
indicated the area around the campsite in that case fell under the open fields doctrine. The
district court, sitting in its appellate capacity, affirmed the magistrate agreeing with this analysis.
The State likewise argues that Pruss is dispositive.
       In Pruss, the Idaho Supreme Court considered whether Pruss had a reasonable
expectation of privacy within a temporary “hooch” 2 that he had constructed on public lands.
After Pruss was arrested, the officers searched the hooch without first obtaining a warrant. The
Court held “that a person using a temporary shelter on public lands as his or her living quarters
has a reasonable expectation of privacy in that shelter and that the government may not intrude
into the shelter without a search warrant, absent an exception to the warrant requirement.”
Pruss, 145 Idaho at 627, 181 P.3d at 1235 (footnote omitted).             The Court concluded that
applying Katz, “[o]ne can certainly infer that a person has a subjective expectation of privacy in
his dwelling, even if it is a temporary structure like a tent, travel trailer, or the hooch in this
case.” Id. at 626, 181 P.3d at 1234. The Court then concluded that the expectation of privacy

2
        [A] frame structure camouflaged with tree branches that was about six feet square
        and three to five feet high. The frame was made of sections of limbs or small
        trees that were lashed together. The frame was covered by a plastic blue tarp,
        which was then covered by the tree boughs. A backpacking tent was erected
        inside the wooden frame, which extended a few feet beyond the front of the tent
        to form a small vestibule.
State v. Pruss, 145 Idaho 623, 625, 181 P.3d 1231, 1233 (2008).


                                                  5
within the enclosure was one that society was willing to recognize as reasonable. Id. Thus, the
Supreme Court concluded that a reasonable privacy expectation existed within the enclosure.
However, the Court further stated:
       Although the State is correct that Pruss did not have a reasonable expectation of
       privacy in the forest land surrounding his campsite, the interior of Pruss’s hooch
       was not an open field. Police officers acting without a warrant are entitled to the
       same intrusion as a reasonably respectful citizen. State v. Christensen, 131 Idaho
       143, 147, 953 P.2d 583, 587 (1998). A reasonably respectful citizen would not
       make an uninvited entry into another’s tent pitched on public lands. Although the
       police could certainly have walked up to Pruss’s hooch and while doing so could
       have lawfully observed anything in plain view, the open fields doctrine would not
       justify their entry into the hooch.

Pruss, 145 Idaho at 628, 181 P.3d at 1236. The courts below and the State rely largely on the
language above, distinguishing between the interior of Pruss’s hooch and the public land
surrounding it. Beck does not distinguish Pruss. Instead, as noted, Beck attempts to focus the
analysis on whether some area surrounding the tent should be considered curtilage, even though
further out from the tent may be open fields.
       In United States v. Basher, 629 F.3d 1161 (9th Cir. 2011), the Ninth Circuit Court
analyzed questions regarding the existence of curtilage incident to a campsite and reasonable
expectation of privacy. The officers arrived at the tent and verbally asked the defendant and his
son to exit the tent. The officers did not enter the tent. In rejecting Basher’s argument that the
seizure occurred inside the curtilage of the campsite, the Ninth Circuit explained “[c]lassifying
the area outside of a tent in a National Park or National Forest lands campsite as curtilage would
be very problematic.” Id. at 1169. Unlike traditional homes, a tent located within a dispersed
campsite is open to the public and exposed. Id. Further, “[w]hile [the Dunn] factors can be
employed with reasonable certainty in the urban residential environment, the analysis does not
necessarily carry over to most camping contexts. Parkland campsites often have layouts that are
vague or dispersed, and individuals often camp in areas that are not predetermined campsites.”
Id. The Court ultimately concluded:
              In the case at bar, Basher was staying in a dispersed, or undeveloped
       camping area. It appears that Basher’s camp was visible from the developed
       camping area where the officers had stayed the previous night. Therefore, we
       hold that there was no expectation of privacy in the campsite, and that the area
       outside of the tent in these circumstances is not curtilage.

Id.

                                                6
         We agree with the Basher Court’s analysis.           Beck, however, argues Basher is
distinguishable because individual campsites in this case were discernable from other campsites.
The deputy testified that one could differentiate between individual campsites. However, the
ranger testified that the campsites were not defined campsites. The ranger specifically testified
that “on the downstream side of Macks Creek, we have three reserve-able campsites that are
defined. Beyond that it’s all open camping, and people camp very close to each other, people
basically just move in and camp wherever they feel.” We do not read in Basher that the
dispersed or undeveloped nature of the campsites referenced was the underpinning of its
analysis. Nonetheless, here, the magistrate noted that “anybody could pass through that camp;
anybody could be headed to the boat dock. It’s not private, it’s just not private.” Contrary to
identifying a defined area, the magistrate viewed the campsite as open field. Therefore, we hold
that there was no expectation of privacy in the campsite, and that the area outside of the tent in
these circumstances is not curtilage. 3
B.     Miranda Warnings
       Beck argues his statements should be suppressed because the deputy did not inform him
of his Miranda rights before questioning him about the paraphernalia. The requirement for
Miranda warnings is triggered by custodial interrogation. State v. Medrano, 123 Idaho 114, 117,
844 P.2d 1364, 1367 (Ct. App. 1992). The State does not dispute that the questioning constituted
interrogation; thus, the only relevant inquiry is whether Beck was in custody when he made the
pre-Miranda statements. The United States Supreme Court equated custody with a person being
deprived of his or her freedom by the authorities in any significant way. Miranda v. Arizona,
384 U.S. 436, 478 (1966). This test has evolved to define custody as a situation where a person’s
freedom of action is curtailed to a degree associated with formal arrest. Berkemer v. McCarty,

3
        Even if we were to attempt to apply the Dunn factors in this case, they weigh against
Beck’s contention, with only one factor, proximity to the tent, weighing in his favor. There was
no enclosure surrounding the tent, and Beck did not take any steps to protect the area from
observation from those passing. Even assuming the record supports Beck’s contention that the
beer can had been hidden from view from the main trail, nothing prevented other campers from
viewing that area from the surrounding forest. As the magistrate explained, the nature of this
area was not private. This is evident given that the deputy and ranger could see Beck and his
girlfriend sleeping in the tent from the main trail. Beck contends that his use of the area for gear
storage and camping activities is sufficient to establish the area as curtilage. His contention
ignores that the area is a public campground and the magistrate’s finding that any other camper
could use this area as a thoroughfare.

                                                 7
468 U.S. 420, 440 (1984); State v. Myers, 118 Idaho 608, 610, 798 P.2d 453, 455 (Ct. App.
1990). The initial determination of custody depends on the objective circumstances of the
interrogation, not on the subjective views harbored by either the interrogating officers or the
person being questioned. Stansbury v. California, 511 U.S. 318, 323 (1994). To determine if a
suspect is in custody, the only relevant inquiry is how a reasonable person in the suspect’s
position would have understood his or her situation. Berkemer, 468 U.S. at 442; Myers, 118
Idaho at 611, 798 P.2d at 456.
       A court must consider all of the circumstances surrounding the interrogation. Stansbury,
511 U.S. at 322; State v. James, 148 Idaho 574, 577, 225 P.3d 1169, 1172 (2010). Factors to be
considered may include the degree of restraint on the person’s freedom of movement (including
whether the person is placed in handcuffs), whether the subject is informed that the detention is
more than temporary, the location and visibility of the interrogation, whether other individuals
were present, the number of questions asked, the duration of the interrogation or detention, the
time of the interrogation, the number of officers present, the number of officers involved in the
interrogation, the conduct of the officers, and the nature and manner of the questioning. See
Berkemer, 468 U.S. at 441-42; James, 148 Idaho at 577-78, 225 P.3d at 1172-73. The burden of
showing custody rests on the defendant seeking to exclude evidence based on a failure to
administer Miranda warnings. James, 148 Idaho at 577, 225 P.3d at 1172.
       Beck argues that he was in custody based on the deputy and ranger ordering him out of
the tent, into a camping chair, and repeatedly asking him if the beer can was his. 4 The State
argues that the evidence established that Beck was not in custody. We agree. Beck was
questioned in front of his tent in a public campsite, as opposed to a police station.           The
interrogation was made in the presence of his girlfriend, and there is no indication that the deputy
or ranger used overly-coercive interrogation tactics. The deputy’s inquiry into the beer can, at a
public campsite while Beck sat in his own camping chair, does not equate to curtailment of



4
        Beck also argues that the magistrate and district court ignored his signed affidavit that
established he was in custody. However, even assuming the affidavit was properly-admitted
evidence, Beck’s affidavit does not contradict the testimony of the deputy and ranger, and it does
not mention whether Beck was ordered out of the tent, ordered into the chair, or to what degree
he was questioned. More importantly, the magistrate expressly indicated that the affidavit was
reviewed: “I was just perusing the affidavit, if you’ll give me a chance. I’m looking at the
affidavit filed on August 28th, 2011.”

                                                 8
freedom associated with formal arrest. The district court correctly affirmed the magistrate’s
finding that Beck was not in custody during the questioning and Miranda warnings were not
required.
                                               III.
                                        CONCLUSION
       The deputy lawfully seized the beer can, and statements made during the limited
detention did not require Miranda warnings. Therefore, the district court’s decision affirming
the magistrate’s order denying the motion to suppress is affirmed.
       Chief Judge GUTIERREZ and Judge MELANSON CONCUR.




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