               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38362

STATE OF IDAHO,                                  )      2012 Unpublished Opinion No. 732
                                                 )
       Plaintiff-Respondent,                     )      Filed: November 27, 2012
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
MISTY MARIE BUHLER,                              )      THIS IS AN UNPUBLISHED
                                                 )      OPINION AND SHALL NOT
       Defendant-Appellant.                      )      BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. Randy J. Stoker, District Judge.

       Order denying motion to suppress evidence, affirmed.

       Stephen D. Thompson, Ketchum, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent. Nicole L. Schafer argued.
                 ________________________________________________
PERRY, Judge Pro Tem
       Misty Marie Buhler appeals from the judgment entered upon her conditional guilty plea
to possession of a controlled substance following the denial of her motion to suppress evidence.
While investigating a possible store burglary, officers detained Buhler, asked for consent to
search her car, and located methamphetamine during the search. Buhler filed a motion to
suppress the evidence of methamphetamine, which the district court denied. Buhler appeals and
asserts that the district court erroneously equated the absence of an express objection to the
officer’s request to search her car with consent to a search, and that any consent was invalid
because it was the result of illegal police conduct. We affirm.
                                                I.
                                        BACKGROUND
       On May 29, 2010, at approximately 10:17 p.m., Officer Hayes was dispatched to check
an alarm that had been triggered at a department store. After checking the store’s front doors and



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loading dock and finding no forced entry, Officer Hayes began filling out a false-alarm report in
his patrol vehicle. While doing so, Officer Hayes received a report that employees of a nearby
store had seen people sitting in three cars parked near the side of the building for approximately
forty-five minutes. Officer Hayes was aware of several recent burglaries in which department
stores had been breached through the roof so he decided to investigate whether a similar burglary
may have just occurred. Officer Hayes quickly located the three vehicles parked side-by-side in
a poorly lit and otherwise vacant portion of the parking lot alongside the building.
       When Officer Hayes approached the cars, Misty Buhler and Mike Wilson were sitting in
Wilson’s car, and Buhler’s young child was asleep in Buhler’s car parked to the side. Officer
Hayes parked his patrol vehicle at an angle behind Wilson’s and Buhler’s cars, effectively
blocking them in. 1 Officer Hayes then approached Wilson’s car and spoke with Buhler, who
was seated in the backseat. Another officer, Officer Sylvester, arrived shortly thereafter and
began speaking with Wilson, who was seated in the driver’s seat. Buhler explained to Officer
Hayes that she and Wilson had been shopping at a nearby store earlier that evening, and showed
the officer her shopping bags and receipts.
       Officer Sylvester and Officer Hayes both testified that they began to suspect that Buhler
and Wilson were involved in drug activity based on Wilson’s nervousness, and because they
found it unusual for the only passenger of the car to be seated in the backseat. Furthermore, both
officers felt threatened when Wilson refused orders to keep his hands on the steering wheel and
began to reach under his seat. Officer Sylvester ordered Wilson out of the vehicle and placed
him in handcuffs, and then ordered Buhler out of the vehicle and placed her in handcuffs as well.
Both Wilson and Buhler were frisked for weapons and asked to sit on the hood of Officer
Hayes’s vehicle.    At that point, Wilson consented to a search of his vehicle, yielding the
discovery of marijuana on the driver’s seat floor and somewhere on the floor in the backseat
where Buhler had been recently sitting. Officer Sylvester then asked Buhler whether he could
search her car. Both officers testified that Buhler responded affirmatively to the request for
consent, although neither could remember her precise response. Buhler testified that she told the
officers that she was not “comfortable” with a search. Officer Sylvester searched Buhler’s car,
and discovered methamphetamine in a purse located in the center console. Officer Sylvester

1
       The driver of the third vehicle, who was an acquaintance of Wilson, was eventually
questioned and, following a consensual search of her vehicle, was permitted to leave.

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gave Buhler Miranda warnings and continued to question her, at which time Buhler claimed
ownership of everything in her car. 2      Buhler was charged with possession of a controlled
substance.
       Buhler filed a suppression motion based on allegations that she did not consent to a
search, and that even if she did consent, her consent was the fruit of illegal police conduct
including an illegal detention, an illegal frisk, and Miranda violations. Following a hearing, the
district court ruled that the officers had reasonable suspicion to justify the initial detention, that
the detention was not unreasonably expanded when Buhler was removed from the vehicle, and
that Buhler had consented to a search of her vehicle. The district court determined that Buhler’s
frisk was unjustified, but concluded that the evidence of methamphetamine need not be
suppressed because it was not discovered as a result of the frisk. The district court also
determined that the officers improperly interrogated Buhler before informing her of her Miranda
rights. The district court granted Buhler’s motion to suppress various unwarned statements, but
denied Buhler’s motion to suppress evidence of methamphetamine.
       Buhler entered a conditional plea of guilty, and now appeals the district court’s denial of
her motion to suppress.
                                                 II.
                                            ANALYSIS
       The Fourth Amendment to the United States Constitution prohibits unreasonable searches
and seizures. A warrantless search is presumptively unreasonable unless it falls within certain
special and well-delineated exceptions to the warrant requirement. Coolidge v. New Hampshire,
403 U.S. 443, 454-55 (1971); State v. Ferreira, 133 Idaho 474, 479, 988 P.2d 700, 705 (Ct. App.
1999). A warrantless search may be permissible when conducted pursuant to an individual’s
consent. State v. Johnson, 110 Idaho 516, 522, 716 P.2d 1288, 1294 (1986); State v. Abeyta, 131
Idaho 704, 707, 963 P.2d 387, 390 (Ct. App. 1998). In such instances, the State has the burden
of demonstrating consent by a preponderance of the evidence. State v. Kilby, 130 Idaho 747,
749, 947 P.2d 420, 422 (Ct. App. 1997). Consent to search may be in the form of words,
gestures, or conduct. State v. Knapp, 120 Idaho 343, 348, 815 P.2d 1083, 1088 (Ct. App. 1991).




2
       See Miranda v. Arizona, 384 U.S. 436 (1966).

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A.     Consent
       Buhler asserts that the district court found only that she did not expressly object to the
search of her car, and in doing so, erroneously equated the absence of an objection to the search
with consent to the search. We disagree with Buhler’s characterization of the district court’s
findings. In Buhler’s suppression motion and supporting affidavit, she asserted that her vehicle
was searched “over her objection”; at the evidentiary hearing on her motion, she testified that she
told the officers that she was not “comfortable” with a search. In contrast, both officers testified
that Officer Sylvester asked Buhler for permission to search her car and that Buhler responded in
the affirmative, although neither officer could remember her exact words.              The record
demonstrates that the district court first rejected Buhler’s argument that she objected, finding
“that she did not expressly refuse to allow a search of her car.” The district court continued to
find that “Buhler did consent to a search of her vehicle.” Thus, Buhler’s attempt to characterize
the district court’s rejection of her claim--that she affirmatively objected to the search--as the
application of an incorrect legal standard is belied by the record; after rejecting Buhler’s claim
that she expressly objected to the search, the district court made a factual finding that Buhler
consented. That finding was supported by substantial evidence including the testimony from
both police officers that Buhler responded affirmatively to the officers’ request to search.
Whether a defendant consented to a search is an issue of fact, therefore, we defer to the trial
court’s finding that Buhler consented to the search. See, e.g., State v. Jaborra, 143 Idaho 94, 97,
137 P.3d 481, 484 (Ct. App. 2006)
B.     Validity of Consent
       Buhler alternatively asserts that even if she did consent, her consent was invalid because
it was tainted by an illegal detention, an illegal frisk, and Miranda violations.
       1.      Detention
       A consent to search that is given during an illegal detention generally is tainted by the
illegality and is ineffective. State v. Stewart, 145 Idaho 641, 644, 181 P.3d 1249, 1252 (Ct. App.
2008); State v. Gutierrez, 137 Idaho 647, 652, 51 P.3d 461, 466 (Ct. App. 2002); State v. Zavala,
134 Idaho 532, 535, 5 P.3d 993, 996 (Ct. App. 2000). The reasonableness of a given search or
seizure is a question of law over which we exercise independent review. State v. Linenberger,
151 Idaho 680, 683, 263 P.3d 145, 148 (Ct. App. 2011); State v. Morris, 131 Idaho 562, 565, 961
P.2d 653, 656 (Ct. App. 1998).


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       Buhler appears to assert that her detention was illegal from the outset because the police
lacked reasonable suspicion to detain her. An investigative detention is a seizure of limited
duration to investigate suspected criminal activity and does not offend the Fourth Amendment if
it is based upon specific articulable facts which justify suspicion that the detained person is, has
been, or is about to be engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 30 (1968);
Stewart, 145 Idaho at 644, 181 P.3d at 1252; Knapp, 120 Idaho at 347, 815 P.2d at 1087. Here,
Officer Hayes was responding to a security alarm that had been triggered after hours at a
department store when employees of a nearby store reported that they had observed people
sitting in three parked vehicles near the department store for approximately forty-five minutes.
Officer Hayes found Buhler and several other individuals sitting in three vehicles in a poorly lit
and otherwise vacant portion of the parking lot alongside the same building where the alarm had
recently been triggered. Under these circumstances, we agree with the district court’s finding
that the initial detention, which occurred when Officer Hayes parked behind Buhler’s and
Wilson’s cars so as to prevent them from leaving, was reasonable.
       Buhler also appears to assert that the detention was illegally expanded when the officers
removed her from Wilson’s vehicle, placed her in handcuffs, ordered her to sit on the hood of the
police car, and began investigating for drug activity. “Where a person is detained, the scope of
detention ‘must be carefully tailored to its underlying justification.’” State v. Parkinson, 135
Idaho 357, 361, 17 P.3d 301, 305 (Ct. App. 2000) (quoting Florida v. Royer, 460 U.S. 491, 500
(1983)). In determining if the detention becomes unreasonable, the court is to consider the
duration and intensity of the detention and the law enforcement purposes served. State v.
DuValt, 131 Idaho 550, 554, 961 P.2d 641, 645 (1998); Parkinson, 135 Idaho at 361, 17 P.3d at
305.
       Police are generally permitted, as a matter of course, to ask the occupants of a vehicle to
exit a vehicle during a lawful traffic stop or other detention. Maryland v. Wilson, 519 U.S. 408,
410 (1997); Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977); State v. Irwin, 143 Idaho
102, 104, 137 P.3d 1024, 1026 (Ct. App. 2006). See also Parkinson, 135 Idaho at 363, 17 P.3d
at 307 (“Typically, a reasonable investigation of a traffic stop may include asking for the driver’s
license and registration, requesting the driver to sit in the patrol car, and asking the driver about
his destination and purpose.”). Any intrusion caused by ordering the occupants of a vehicle to
wait in a particular location outside the vehicle during an investigatory detention “can only be


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described as de minimis.” Mimms, 434 U.S. at 111. “What is at most a mere inconvenience
cannot prevail when balanced against legitimate concerns for the officer’s safety.” Id. Thus, the
detention was not made unreasonable when Buhler was asked to step out of the vehicle and to sit
on the hood of the officer patrol vehicle.
       If the use of the handcuffs is a reasonable precaution to ensure the officers’ safety, the
use of the handcuffs is also warranted during a limited stop. DuValt, 131 Idaho at 554, 961 P.2d
at 645. See also Muehler v. Mena, 544 U.S. 93, 100-01 (2005); Stewart, 145 Idaho at 646, 181
P.3d at 1254; State v. Butcher, 137 Idaho 125, 131, 44 P.3d 1180, 1186 (Ct. App. 2002). In
DuValt, the Idaho Supreme Court found that it was reasonable for officers to handcuff the
occupants of a vehicle following a stop when there were five officers and three occupants present
because the occupants were uncooperative, the officers had observed erratic driving, the officers
were unaware how many people were in the vehicle, and the officers suspected that the
occupants of the vehicle were involved in drug activity. DuValt, 131 Idaho at 554, 961 P.2d at
645. In Butcher, this Court held that the officer was justified in placing two occupants of a
vehicle in handcuffs during an investigatory stop because the vehicle matched the description of
a vehicle used in an armed robbery and because the officer was alone, at night, and outnumbered
by two possible robbery suspects. Butcher, 137 Idaho at 131, 44 P.3d at 1186. In Muehler, the
United States Supreme Court held that it was reasonable for officers to place an individual in
handcuffs for two to three hours while the officers executed a search warrant for weapons and a
wanted gang member. Muehler, 544 U.S. at 100. Here, two officers were outnumbered by three
adult suspects--including Buhler, Wilson, and Wilson’s acquaintance--at night in a poorly lit and
otherwise vacant parking lot, alongside a building where a store’s security alarm had just been
triggered. During the initial encounter, Wilson refused the officers’ orders to keep his hands on
the steering wheel, and attempted to reach under his seat, and Buhler protested when the officers
removed Wilson from the vehicle. Under these circumstances it was reasonable for the officers
to place Buhler and Wilson in handcuffs during their investigation for purposes of officer safety.
       It is well established in Idaho that although an investigative detention must ordinarily last
no longer than is necessary to effectuate the purpose of the stop, a detention initiated for one
investigative purpose may disclose suspicious circumstances that justify expanding the
investigation to other possible crimes. State v. Chapman, 146 Idaho 346, 350, 194 P.3d 550, 554
(Ct. App. 2008); State v. Brumfield, 136 Idaho 913, 916, 42 P.3d 706, 709 (Ct. App. 2001). See


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also State v. Grantham, 146 Idaho 490, 496, 198 P.3d 128, 134 (Ct. App. 2008). In this case,
approximately ten to twelve minutes passed between the time that Officer Hayes initially
approached Wilson’s vehicle, and the time that Officer Sylvester asked Buhler for consent.
During that time, the officers searched Wilson’s car and discovered marijuana on the floor near
Wilson’s seat and on the floor near Buhler’s seat. Under these circumstances, we conclude that
the detention was not made unreasonable because of the passage of time, or because the officers’
investigation shifted from a burglary investigation to an investigation of drug activity. In sum,
Buhler’s detention was not illegal, and thus could not have tainted her consent.
       2.      Illegal frisk and Miranda violations
       The district court determined that Buhler’s pat down was illegal, and that a Miranda
violation occurred when the police handcuffed Buhler and questioned her prior to giving her
Miranda warnings. The State has not challenged these rulings on appeal. Buhler asserts that
these illegalities, which occurred before she consented to a search, tainted her consent.
However, not all evidence discovered following illegal police conduct is tainted by the illegality,
requiring the suppression of the evidence.
       The attenuation doctrine permits the use of evidence that would normally be suppressed
as fruit of police misconduct if the causal chain between the misconduct and the discovery of the
evidence has been sufficiently attenuated. State v. Hoak, 107 Idaho 742, 749, 692 P.2d 1174,
1181 (1984); State v. Hudson, 147 Idaho 335, 338, 209 P.3d 196, 199 (Ct. App. 2009). In
applying the attenuation doctrine, the ultimate question is whether the police acquired the
evidence by exploiting the illegality or by means sufficiently distinguishable to be purged of the
primary taint. Wong Sun v. United States, 371 U.S. 471, 488 (1963); State v. Bigham, 141 Idaho
732, 734, 117 P.3d 146, 148 (Ct. App. 2005). Idaho appellate courts have balanced three factors
to determine attenuation: (1) the elapsed time between the misconduct and the acquisition of the
evidence; (2) the occurrence of intervening circumstances; and (3) the flagrancy and purpose of
the improper law enforcement action. State v. Page, 140 Idaho 841, 846, 103 P.3d 454, 459
(2004); State v. Schrecengost, 134 Idaho 547, 549, 6 P.3d 403, 405 (Ct. App. 2000). Where a
defendant has moved to suppress evidence allegedly gained through unconstitutional police
conduct before he consents to a search, the State must prove that the consent was not procured by
exploitation of the previous illegality. Wong Sun, 371 U.S. at 488; State v. Tietsort, 145 Idaho
112, 117, 175 P.3d 801, 806 (Ct. App. 2007). However, the defendant bears an initial burden of


                                                7
going forward with evidence to show a factual nexus between the illegality and the State’s
acquisition of the evidence. State v. Keene, 144 Idaho 915, 918, 174 P.3d 885, 888 (Ct. App.
2007); State v. McBaine, 144 Idaho 130, 133, 157 P.3d 1101, 1104 (Ct. App. 2007).
       Buhler has failed to identify a factual nexus between the illegality of the frisk or the
Miranda violations and the discovery of methamphetamine in her car. 3 The police did not
exploit the frisk in some manner that led them to discover the methamphetamine in Buhler’s car
and Buhler did not inform the police that she had methamphetamine in her car during the
unlawful interrogation. The officers sought to search Buhler’s car not as a result of unwarned
statements or the fruits of illegal frisk, but because their investigation had shifted from a burglary
investigation to a drug investigation, and because they discovered marijuana on the floor of the
backseat of Wilson’s car, where Buhler had recently been sitting. Absent a factual nexus
between the illegality of the frisk or the Miranda violations and the discovery of the
methamphetamine in Buhler’s car, it is not necessary to address the attenuation factors.
However, even if there was a factual nexus, a consideration of the attenuation factors leads to the
same result. The time that elapsed between the frisk and interrogation on the one hand and
Buhler’s consent on the other weighs against attenuation because it was brief, but the other
factors weigh in favor of attenuation. The police conduct was not egregious, but was described
by the district court as “cooperative and cordial”; and the frisk, even if it was ultimately
unjustified, was conducted for the purpose of police safety. After balancing all of the factors, we
conclude that any taint from the illegal frisk and Miranda violations was attenuated, and thus did
not invalidate Buhler’s consent. 4



3
         We note, and Buhler concedes, that a Miranda violation, as distinguished from the
coercion of an involuntary statement, does not itself result in the suppression of physical
evidence discovered as a result of the unwarned statement. Woodward v. State, 142 Idaho 98,
107, 123 P.3d 1254, 1263 (Ct. App. 2005). In other words, “there is no such thing as ‘fruit of the
poisonous Miranda violation.’” Id. See also United States v. Patane, 542 U.S. 630, 636-37
(2004); State v. Garcia, 143 Idaho 774, 781, 152 P.3d 645, 652 (Ct. App. 2006). Here, even if
the Miranda violations are considered as a factor in an attenuation analysis, Buhler is not entitled
to relief.
4
       Buhler also asserts her consent was involuntary. However, Buhler has not cited the
standard or test for voluntariness, see, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 225-26
(1973), and while she concludes that her consent was involuntary, that conclusion is based on an
analysis of the attenuation factors. To the extent that Buhler has asserted a voluntariness claim

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                                               III.
                                        CONCLUSION
       The district court’s factual finding that Buhler consented to a search of her vehicle was
based on substantial and competent evidence. Buhler’s consent was not tainted by her legal
detention, by an illegal frisk, or by a Miranda violation. Therefore, the district court’s order
denying Buhler’s motion to suppress is affirmed.
       Judge GUTIERREZ and Judge MELANSON CONCUR.




based on assertions that she was illegally “detained, denied access to her vehicle and sleeping
child, handcuffed and ordered to sit on the bumper of the police cruiser and unlawfully
interrogated about possession of drugs,” we conclude that her argument has no merit. We first
note that the district court did not make any explicit findings of voluntariness--presumably
because Buhler’s arguments below, like her arguments on appeal, only addressed the
voluntariness of her consent in passing--and Buhler has not asserted that the district court failed
to address an issue below. Second, even if the issue is preserved, Buhler’s argument that her
consent was not voluntary, to the extent that it was made at all, is based on precisely the same
factors that she asserts caused her consent to be tainted. By rejecting these arguments, the
district court implicitly rejected her voluntariness argument below, and we likewise reject the
argument on appeal.

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