United States v. Sheri Kapahu ( 2018 )

NOT FOR PUBLICATION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.
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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
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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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