State v. Vivian

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 47811

STATE OF IDAHO, )
) Filed: August 31, 2021
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
ARTHUR ELLIS VIVIAN, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Cheri C. Copsey and Michael J. Reardon, District Judges. 1
Judgment of conviction for possession of a controlled substance, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster,
Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Justin R. Porter, Deputy Attorney
General, Boise, for respondent.
________________________________________________
LORELLO, Judge
Arthur Ellis Vivian appeals from his judgment of conviction for possession of a
controlled substance. For the reasons set forth below, we affirm the judgment of conviction.
I.
FACTUAL AND PROCEDURAL BACKGROUND
During a traffic stop for nonfunctioning brake lights, an officer learned that Vivian’s
driver’s license was suspended. Other officers arrived at the scene, one of whom informed the
first officer that Vivian had a drug history, prompting the first officer to call for a canine unit.
After completing the citation, the first officer exited his patrol vehicle and had a brief

1
Judge Cheri C. Copsey decided the motion to suppress at issue on appeal. Judge
Michael J. Reardon sentenced Vivian and entered the judgment of conviction.

1
conversation with the other officers. A canine unit arrived as this conversation ended. The first
officer had a second, brief conversation with the canine officer and then had Vivian exit his car.
As the first officer explained the citation to Vivian, the canine officer used his drug dog to conduct
a free-air sniff around Vivian’s car. The drug dog alerted, leading to a search of the car and the
discovery of methamphetamine and a glass pipe. In response to the officers’ questions, Vivian
made incriminating statements, both before and after receiving Miranda 2 warnings. The State
charged Vivian with possession of a controlled substance and possession of drug paraphernalia.
Vivian filed a motion to suppress. The district court held that Vivian’s detention was
unlawfully extended for the approximately two and a half minutes while the officers conversed
with each other. However, the district court also held that the evidence found in the car would
have inevitably been discovered because Vivian’s license was suspended, there was no other
person to drive the car away, and the canine unit had been called prior to the unlawful extension.
With respect to Vivian’s incriminating statements, the district court suppressed the statements
Vivian made from the time of the drug-dog alert to the administration of Miranda warnings, but
not the statements Vivian made after receiving Miranda warnings. Vivian entered a conditional
guilty plea to possession of a controlled substance, I.C. § 37-2732(c), reserving his right to
challenge the partial denial of his motion to suppress. In exchange for Vivian’s guilty plea, the
State dismissed the remaining count. Vivian appeals.
II.
ANALYSIS
Vivian asserts the district court erred by failing to suppress his post-Miranda statements
because the Miranda warnings did not cure the taint of the unlawfully extended detention, and
such statements were not inevitable for purposes of the inevitable discovery exception. The State
responds that Vivian voluntarily made his post-Miranda statements, attenuating the taint of any

2
See Miranda v. Arizona, 384 U.S. 436 (1996).

2
unlawfully extended detention, and that Vivian would have inevitably made the same statements
absent any unlawful detention. 3 We affirm.
In his brief in support of his motion to suppress, Vivian asserted that his statements “were
a result of the exploitation of an illegal search.” In support of this assertion, Vivian presented an
argument applying the attenuation test from State v. Page, 140 Idaho 841, 103 P.3d 454 (2004).
That test sets forth three factors for a court to consider in determining whether unlawful conduct
has been adequately attenuated from the evidence the State seeks to admit, which evidence may
include voluntary confessions obtained following an unlawful arrest. Id. at 846, 103 P.3d at 459.
Those factors are: (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. Id. Vivian presented the following argument based on
these factors:
In this case the elapsed time was relatively minimal. After the canine
alerted to the vehicle, which was an illegal search due to the illegal seizure, officers
searched the vehicle and found the suspected bag of methamphetamine and the
pipe. After these items were found, [one] [o]fficer began questioning Mr. Vivian.
There were no intervening circumstances in this case as the timeline of canine alert,
search of vehicle, and questioning of Mr. Vivian were instantaneous. Finally, the
flagrancy and purpose of the improper law enforcement action is high. [The officer
who] completed his citation, stood around waiting for the canine officer to arrive,
despite being done with his duties related to the traffic stop. He then made
additional time for the canine officer to complete his search of the outside of the
vehicle, by completing an unnecessary pat down of Mr. Vivian. Therefore, the
Court should suppress Mr. Vivian’s statements and the evidence found in the
vehicle Mr. Vivian was driving as it is “fruit of the poisonous tree.”
In response, the State argued, in relevant part, that the discovery of the methamphetamine
in Vivian’s car was inevitable because the drug-dog alert on the vehicle provided probable cause
to search the vehicle. The State further argued that the alert would have occurred regardless of
any unlawfully prolonged detention because the vehicle would have remained in the parking lot
even if Vivian was released prior to the alert because he did not have a valid driver’s license.
Regarding Vivian’s statements related to the discovery of the methamphetamine, the State argued

3
The State also argues that the district court erroneously concluded that the conversation
among the officers regarding “what to do with Vivian’s car contributed to the unlawful extension
of the stop.” In light of our disposition of this case, we need not address this argument.

3
that, because the methamphetamine evidence was admissible, Vivian’s “request to suppress his
statements as a consequence of suppressing the [methamphetamine] should also be denied.”
At the conclusion of the suppression hearing, Vivian responded to the State’s inevitable
discovery argument, asserting:
And I would note that even if the Court found that inevitable discovery got
the State to allowing the admission of the methamphetamine, inevitable discovery
doesn’t make that seizure and that search legal. It just allows for the admission.
And so anything related to it would still potentially be subject to exclusion. Each
thing would have to be addressed as to whether it’s inevitable and I don’t think it’s
inevitable that if the vehicle was left there and they were to search it, that he
necessarily would have been there, would have [been] arrested and would have
answered those questions. And I do think the State’s lack of addressing that also
waives their argument as to those issues.
The prosecutor reiterated the position from its brief that the inevitable discovery exception applied
and again asserted that Vivian’s post-Miranda statements were admissible.
The district court entered a written decision which granted in part, and denied in part,
Vivian’s motion to suppress. In that decision, the district court made the following factual
findings: Vivian’s vehicle had no working brake lights; Vivian could not drive the vehicle
because his license was suspended; and Vivian’s “vehicle could not have been driven away by
anyone present at the scene, even after the completion of issuing a traffic citation.” Based on
these facts, the district court concluded that “a lawful sniff of Vivian’s vehicle would have
occurred regardless of any unlawful extension of the stop. Thus, the [methamphetamine] would
have inevitably been discovered through a permissible alternative investigation already in
progress.”
Regarding Vivian’s statements, the district court found that, after Vivian was arrested,
officers asked him “several questions and Vivian made incriminating statements” prior to
receiving Miranda warnings. The district court suppressed “Vivian’s pre-Miranda statements
after the dog alert.” As to Vivian’s post-Miranda statements, the district court noted it was
“unclear” whether Vivian moved to suppress those statements and ultimately declined to “reach
that issue” because Vivian did not present any argument or evidence that his post-Miranda
statements “were coerced.”
On appeal, Vivian does not challenge the district court’s application of the inevitable
discovery exception to the methamphetamine discovered in his vehicle. Instead, Vivian

4
challenges only the district court’s failure to suppress his post-Miranda statements. Vivian
contends that “the giving of Miranda warnings did not eliminate the taint of the Fourth
Amendment violation, nor did those warning[s] prevent application of the exclusionary rule” and
that the State failed to demonstrate he “would have inevitably made the statements.” The district
court did not, however, apply the inevitable discovery exception to Vivian’s post-Miranda
statements, nor did it address whether the Miranda warnings eliminated any taint related to the
unlawfully prolonged detention. To the contrary, after noting it was unclear whether Vivian was
moving to suppress his post-Miranda statements, the district court expressly declined to address
the admissibility of those statements. It is well settled that, in order for an issue to be raised on
appeal, the record must reveal an adverse ruling that forms the basis for assignment of error. State
v. Huntsman, 146 Idaho 580, 585, 199 P.3d 155, 160 (Ct. App. 2008); State v. Amerson, 129 Idaho
395, 401, 925 P.2d 399, 405 (Ct. App. 1996). To the extent Vivian wished to challenge the district
court’s understanding of the scope of his suppression motion, he was required to do so in the
district court. 4
Moreover, this Court will not consider new theories for the first time on appeal. See State
v. Garcia-Rodriguez, 162 Idaho 271, 275, 396 P.3d 700, 704 (2017) (explaining that appellate
court review is limited to the evidence, theories, and arguments that were presented below).
Vivian did not argue to the district court, as he does on appeal, that Miranda warnings “did not
eliminate the taint of the Fourth Amendment violation.” Rather, Vivian’s brief in support of his
motion to suppress was based on his argument that his statements should be suppressed as fruit of
the search that he argued was illegal because his detention was unlawfully prolonged. Although
Vivian argued no attenuation based on elapsed time, a lack of intervening circumstances and the
flagrancy and purpose of the officers’ actions, he did not present any argument or authority that
the Miranda warnings did not prevent exclusion of his post-Miranda statements. Moreover, it is
apparent from the district court’s order that it did not perceive any such argument from Vivian’s
written brief or his oral argument at the conclusion of the suppression hearing. Rather, the district

4
In his brief in support of the motion to suppress, Vivian did not distinguish between his
pre- and post-Miranda statements. Thus, it is unclear why the district court was uncertain as to
whether Vivian’s motion included his post-Miranda statements. In any event, as noted, Vivian
should have clarified the issue in the district court.

5
court indicated that post-Miranda statements would be admissible despite a prior Miranda
violation so long as the post-Miranda statements were uncoerced. But, because Vivian did not
present any argument or evidence on that point, the district court expressly declined to address that
issue. For the foregoing reasons, we decline to address the merits of Vivian’s arguments regarding
the admissibility of his post-Miranda statements.
III.
CONCLUSION
Vivian does not challenge any adverse ruling by the district court related to the partial
denial of his motion to suppress. Consequently, Vivian’s judgment of conviction for possession of
a controlled substance is affirmed.
Chief Judge HUSKEY and Judge GRATTON, CONCUR.

6