NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. SHERI LEE PUALANI KAPAHU,

Defendant-Appellant. No. 17-10087 D.C. No. 1:16-cr-00453-SOM-1
MEMORANDUM *

Appeal fromthe United States District Court for the District of Hawaii Susan O. Mollway, District Judge, Presiding Argued and Subm itted 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 m etham

phetam ine with intent to distribute and challenges on appeal the denial of her m otions to suppress evidence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm
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# FILED
JUL 03 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.First, Kapahu m oved to suppress her statem ents to Agent Richard Jones of

the Drug Enforcem ent 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 determ ine whether an individual was in custody, we m ust decide whether a reasonable person in the circum stances would have believed he could freely walk away fromthe interrogators.” Id. Relevant factors include “(1) the language used to sum m on 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 adm itted that there were drugs in her purse. At the tim e, she had been questioned for only a few m inutes 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 claim ed 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.

2Of 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 m ore inform ative to Kapahu, had they said, “You are free to leave, or free to tell us to go away.” Nevertheless, Kapahu’s adm ission was not the result of “the sam e 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 m eaning 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 statem ents about the importance of cooperating); U nited States v. Ritter , 752 F.2d 435, 438 (9th Cir. 1985) (addressing requests for consent to search). Second, Kapahu m oved to suppress the fruits of the search of her purse. The Fourth Am endm ent 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 m ust be “spatially and temporally incident to the arrest,” U

nited States v. Camou , 773 F.3d 932, 937 (9th Cir. 2014), and conducted for the purpose of “finding weapons the arrestee m ight use, or
3evidence the arrestee m ight conceal or destroy,” United States v. Maddox , 614 F.3d

1046, 1048 (9th Cir. 2010). The search of Kapahu’s purse was a perm issible search incident to arrest. By the tim e of the search, Kapahu had already given Agent Jones and Officer Kaniho probable cause to arrest her by adm itting to having drugs in her purse. At the tim e, the purse was within Kapahu’s im m e diate control. See United States v. Nohara , 3 F.3d 1239, 1243 (9th Cir. 1993). Kapahu was arrested m om ents 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 argum ent 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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