dissenting.
I respectfully dissent from part III(D) of the Court’s opinion. I conclude that Jones has raised factual issues requiring an evidentiary hearing on his claim that he received ineffective assistance of counsel by reason of his trial attorney’s failure to move to suppress Jones’ confession.
A convicted defendant is deprived of effective assistance of counsel and is therefore entitled to a new trial if he shows that his attorney unreasonably failed to pursue a meritorious motion to suppress incriminating evidence and that the defendant was prejudiced by this omission. Carter v. State, 108 Idaho 788, 702 P.2d 826 (1985); Huck v. State, 124 Idaho 155, 857 P.2d 634 (Ct.App. 1993). Jones alleges that his attorney should have moved to suppress statements given by Jones during police interrogation before Jones was advised of his constitutional right to remain silent and his right to counsel. The majority concludes that Jones was not “in custody” when he made the statements and that his attorney therefore was not deficient for failing to seek suppression based on noncompliance with the mandates of Mi*300randa v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
As the majority notes, Miranda requires that individuals be advised of their constitutional rights, including the right to remain silent and the right to counsel, before being subjected to custodial interrogation. Id. at 444, 86 S.Ct. at 1612. Statements must be suppressed if they were obtained through custodial interrogation conducted without Miranda warnings. Miranda, 384 U.S. at 479, 86 S.Ct. at 16; Berkemer v. McCarty, 468 U.S. 420, 429, 104 S.Ct. 3138, 3144, 82 L.Ed.2d 317 (1984); State v. Connor, 124 Idaho 547, 549, 861 P.2d 1212, 1214 (1993). It is uneontroverted that Jones received no Miranda warnings before he made inculpatory statements to police which were later used by the state at trial. The central question, therefore, is whether the allegations of Jones’ affidavit, if true, show that the statements were made during the course of a “custodial interrogation.”
For Miranda purposes, custody is not limited to situations where a suspect has been placed under formal arrest. Rather, a person is “in custody” if he is “deprived of his freedom by the authorities in any significant way.” Miranda, 384 U.S. at 478, 86 S.Ct. at 1630. The United States Supreme Court has rejected the proposition that the Miranda safeguards apply only after a suspect is formally placed under arrest, noting that such a bright line rule would “enable the police to circumvent the constraints on custodial interrogations established by Miranda.” Berkemer, 468 U.S. at 441, 104 S.Ct. at 3151. The Court indicated in Berkemer that the determinative inquiry is whether “a suspect’s freedom of action is curtailed to ‘a degree associated with formal arrest.’ ” Berkemer, 468 U.S. at 440, 104 S.Ct. at 3150, quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3519, 77 L.Ed.2d 1275 (1983).
This is an objective test, requiring a determination of whether “a reasonable man in [the defendant’s] position would believe that he was deprived of his freedom of movement in a significant way.” State v. Myers, 118 Idaho 608, 611, 798 P.2d 453, 456 (Ct.App. 1990). In making this determination we look to the totality of the circumstances. State v. Medrano, 123 Idaho 114, 117-118, 844 P.2d 1364, 1367-68 (Ct.App.1992). In determining whether a suspect was in custody during interrogation, relevant factors to be considered include, inter alia: (1) the extent to which the suspect is made aware that he or she is free to refrain from answering questions or to end the interview at will; (2) the nature of questioning, e.g., whether there is prolonged accusatory interrogation; and, (3) circumstances showing a police-dominated atmosphere. See, e.g., Berkemer, United States v. Griffin, 7 F.3d 1512, 1518 (10th Cir.1993) and cases cited therein; United States v. Griffin, 922 F.2d 1343 (8th Cir. 1990); WILLIAM E. RINGEL et al., SEARCHES & SEIZURES, ARRESTS and CONFESSIONS § 27.3 (2d ed. 1993).
A typical case examining whether a custodial interrogation occurred is United States v. DiGiacomo, 579 F.2d 1211 (10th Cir.1978). In DiGiacomo, a suspected counterfeiter was confronted in a parking lot by four federal agents. He was separated from his companion and told that he was a suspect, that he could be arrested that evening, and that he could choose between immediate arrest or voluntary appearance the following day. After being questioned in the parking lot, he was allowed to leave. The court held that the agent’s actions in the parking lot were the functional equivalent of arrest for purposes of Miranda. The court distinguished Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), where the defendant had appeared at the police station at the request of a detective under no threat of arrest, was frequently informed that he could conclude the interview at any time and would be free to leave, and in fact left at the conclusion of the interview.
In Jones’ affidavit, he described the circumstances of his interrogation as follows:
That on November 25,1988, approximately 3:00 p.m., Detective Robert D. Flaten of the Boise Police Department, did call me at my ex-wife’s house and asked me to come to the police station to give him my side of the allegations, or he would come to the house, one way or another he wanted a statement. That he wanted some kind of *301statement from me. I told him that I did not want to and hung up the phone.
That my ex-wife told me that if I did not at least go and talk to him that I could not stay with her over the Thanksgiving weekend, and that I should not give him a statement but to just talk to him, and offered to drive me there and to wait for me.
That we arrived at the police station approximately 3:30 p.m. and that we had to wait until detective Flaten returned to the station, which was about 15 or 20 minutes.
Detective Flaten came into the lobby and asked me to come into the offices and he said hello to my ex-wife and my son.
That upon arrival into the office area detective Flaten said that he was glad that I came into the station because after I had hung up the telephone he went to my ex-wife’s house, [address deleted], with the intent to arrest me. He also stated that upon his arrival to the house that no one wás there, but did see my pick-up in the drive-way, so he knew that I was around.
That detective Flaten started asking me questions about the allegations. He asked me to give him a written or recorded statement, at this time I said I did not want to.
That detective Flaten then said that he wanted to help me, but only if I would help him, that if I did not I would be placed under arrest and I would go to jail at that time. I did not want to go to jail so I did give him a written statement.
That at the time of reading this first statement, detective Flaten said that I was lying about this or just not telling him the whole truth, then said that he thought that I was a sicko and made other allegations, that he was sick of talking to me, and if I didn’t start telling the truth, I was going to jail then and there.
That detective Flaten said that if I cooperated with him and just give him what he wanted, a statement and Washington State address he would let me go and promised leniency. He promised I would not go to jail.
That detective Flaten said he was going to leave it up to the district attorney’s office on what to do about this case.
That I had not yet been given a miranda warning or advised [of] my rights against self incrimination or the right to have an attorney present during questioning.
Jones’ affidavit was presented in opposition to the state’s motion for summary dismissal pursuant to I.C. § 19-4906. Such motions are analogous to motions for summary judgment under I.R.C.P. 56. Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct.App.1987). In this procedural context, the district court, and we on review, must assume these statements to be true, even if they appear to lack credibility, and we must draw all reasonable inferences in favor of Jones. Matthews v. State, 122 Idaho 801, 807, 839 P.2d 1215, 1221 (1992); Parrott v. State, 117 Idaho 272, 274, 787 P.2d 258, 260 (1990); Tramel v. State, 92 Idaho 643, 646, 448 P.2d 649, 652 (1968). If the evidence before the court on a motion for summary dismissal raises a genuine issue of material fact, the motion must be denied and an evidentiary hearing conducted where the factual issues may be explored. Smith v. State, 94 Idaho 469, 472, 491 P.2d 733, 736 (1971); Ramirez, 113 Idaho at 88, 741 P.2d at 375. A court may not weigh evidence or make determinations of credibility on a motion for summary dismissal. American Land Title Company v. Isaak, 105 Idaho 600, 601, 671 P.2d 1063, 1064 (1983) (reviewing summary judgment granted under I.R.C.P. 56). Thus, the question on appeal from the summary dismissal of an application for post-conviction relief is whether the evidence supporting the application alleges facts which, if true, would entitle the applicant to relief. Whitehawk v. State, 116 Idaho 831, 833, 780 P.2d 153, 155 (Ct.App.1989).
With these standards in mind, I can only conclude that Jones’ affidavit has raised genuine factual issues regarding whether he was subjected to “custodial interrogation,” and summary dismissal of his application was therefore improper. According to Jones’ affidavit he went to the station only after being informed that Detective Flaten wanted a *302statement. At the station, Flaten informed Jones that Flaten had already made an attempt to arrest Jones at his residence. Jones initially refused to make a statement. Although Jones had thus invoked his right to remain silent, Flaten continued to question him. Jones relented and gave a statement only after Flaten said Jones would be arrested if he did not “help” Flaten. After Jones made an initial statement, Flaten accused him of lying and again threatened him with arrest if he did not give a statement that Flaten considered to be truthful. In short, viewing the allegations in the light most favorable to Jones, he was essentially presented with a choice between making a confession that would satisfy Detective Flaten or being immediately arrested. There is no evidence that Jones was ever advised that he was free to leave, or that he could decline to answer questions. Assuming the truth of - Jones’ description of his interrogation, in my view, a reasonable person in Jones’ position could conclude that his freedom of movement was significantly restrained and that he was not free to leave.
The majority relies upon the fact that Jones went to the police station voluntarily and that after making his statement he was allowed to leave. While those facts are relevant, they are not determinative. See, e.g. United States v. DiGiacomo, supra; State v. Zancauske, 804 S.W.2d 851 (Mo.Ct.App. 1991); People v. Horn, 790 P.2d 816 (Colo. 1990). The Miranda doctrine addresses circumstances where pressures exerted by the police impair a detainee’s ability to exercise his privilege against self-incrimination. Berkemer, 468 U.S. at 437, 104 S.Ct. at 3148. Therefore, the primary focus must be upon the reasonable state of mind of the individual when the incriminating statement was given — not on what happened before the questioning began or after it was concluded.
If a police interrogation were conducted as Jones describes and without Miranda warnings, a defense attorney’s failure to seek suppression of the confession could well constitute a level of performance falling below an objective standard of reasonableness. Further, the evidence is sufficient to raise a factual issue as to whether Jones’ defense was prejudiced by his attorney’s failure to seek suppression of a confession to the charged crime. Therefore, Jones’ evidence on both elements of the two-part test for ineffective assistance of counsel enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is sufficient to preclude summary dismissal of his claim.
In summary, Jones’ affidavit raised material issues of fact regarding the custodial nature of the police interview. While the allegations in Jones’ affidavit remain to be proven by substantial and competent evidence, he is entitled to an evidentiary hearing where he may attempt to present such proof. Accordingly, I would vacate the district court’s order summarily dismissing Jones’ application for post-conviction relief and remand this case for an evidentiary hearing to determine whether Jones’ incriminating statement was obtained in violation of his Miranda rights and whether Jones’ trial attorney was deficient in failing to pursue a suppression motion.