State v. Elison

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

No. 99-323

IN THE SUPREME COURT OF THE STATE OF MONTANA

2000 MT 288

302 Mont. 228

14 P.3d 456

STATE OF MONTANA,

Plaintiff and Respondent.

v.

GREGORY ELISON,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Maurice R. Colberg, Jr., Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Kevin R. Peterson, Deputy Public Defender, Billings, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; John Paulson,

Assistant Attorney General, Helena, Montana

Dennis Paxinos, Yellowstone County Attorney; Sheila R. Kolar,

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (1 of 23)3/30/2007 11:13:43 AM

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

Deputy County Attorney, Billings, Montana

Submitted on Briefs: January 20, 2000

Decided: November 16, 2000

Filed:

__________________________________________

Clerk

Justice Jim Regnier delivered the opinion of the Court.

¶1 Gregory Elison appeals from the Court's Findings of Fact, Conclusions of Law,

Memorandum and Order issued by the Thirteenth Judicial District Court, Yellowstone

County, denying his motion to suppress. We affirm in part, reverse in part, and remand for

proceedings consistent with this opinion.

¶2 Elison's appeal raises the following issues:

¶3 1. Whether the District Court erred in finding that Officer Conrad had a particularized

suspicion sufficient to justify stopping Elison's vehicle?

¶4 2. Whether the District Court erred in concluding that Elison was not entitled to

Miranda warnings prior to preliminary questioning?

¶5 3. Whether the District Court erred in concluding that Elison's vehicle was lawfully

searched under an exception to the warrant requirement?

BACKGROUND

¶6 On August 1, 1998, shortly after midnight, Billings Police Officer Scott Conrad was on

routine patrol eastbound on Fourth Avenue North in Billings, Montana. Jerry Gibson was

riding with Officer Conrad as an authorized citizen observer. While Officer Conrad's

patrol vehicle was passing through the intersection of Fourth Avenue North and North

26th Street, Gibson saw the driver of a white truck in the lane immediately to the right of

Officer Conrad's vehicle hunched over the steering wheel smoking from a brass-colored

pipe. Gibson made eye contact with the driver of the truck, who was later identified as

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (2 of 23)3/30/2007 11:13:43 AM

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

Elison. Gibson testified that Elison noticed the patrol car, appeared startled, and lowered

the pipe and lighter below the steering wheel.

¶7 As the patrol car proceeded through the intersection, Gibson informed Officer Conrad

that he saw the driver of a white truck smoking from what he believed to be a marijuana

pipe and that the driver noticed the patrol car, appeared startled and attempted to hide the

pipe. Officer Conrad had not witnessed any of this activity. Officer Conrad located the

white truck behind his patrol car and reduced his speed to allow the truck to pass his car so

that he could get behind Elison's vehicle and make a traffic stop. Elison slowed his

vehicle. Finally, Officer Conrad brought his vehicle to a complete stop so that Elison

would pass him. He then activated his overhead lights and siren and stopped Elison's

vehicle.

¶8 Upon stopping, Elison exited his truck. Officer Conrad instructed Elison to return to his

vehicle and Elison complied. Officer Conrad testified that when he approached Elison's

truck, he could immediately smell the odor of marijuana. He also testified that Elison

appeared nervous, his eyes were red and glassy, and he would not sit still. Officer Conrad

informed Elison of the reason for the stop-advising him of Gibson's observations and the

odor of marijuana which Conrad had detected. Elison appeared to be reaching in between

the seat cushions of the truck. Officer Conrad asked Elison to show him his right hand and

subsequently requested that Elison exit his vehicle.

¶9 After Elison exited the truck, Officer Conrad directed him to the rear of the pickup,

frisked him, and asked him where the pipe that Gibson had reported seeing him smoking

from was located. Elison told Officer Conrad that he had thrown it out the window.

Officer Conrad then asked Elison whether there was any marijuana in the truck. Elison

replied that he had tucked marijuana behind the seat. Officer Conrad testified that Elison

was not free to leave during this questioning. Officer Conrad returned to the vehicle,

leaving Elison with another police officer who had arrived on the scene a few minutes

after Officer Conrad had stopped Elison. Officer Conrad opened the door, tilted the

driver's seat forward and discovered a film canister which he removed and opened. While

searching the vehicle, he also observed a paper bindle near the film canister as well as a

two-inch tube on the seat and a razor blade on the floor board.

¶10 Officer Conrad showed the film canister to Elison and Elison informed him that it

contained marijuana. Officer Conrad then informed Elison that he was under arrest,

handcuffed him, and put him in the rear seat of his patrol car. At that time, Officer Conrad

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (3 of 23)3/30/2007 11:13:43 AM

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

advised Elison of his Miranda rights and asked Elison for consent to search the truck.

Elison gave verbal and written consent. Sergeant Schieno of the Yellowstone County

Sheriff's Department arrived with a trained drug-sniffing canine. Sergeant Schieno

deployed his dog and subsequently advised Officer Conrad that the dog had indicated the

presence of drugs in the cab of the truck. Upon receiving this information, Officer Conrad

searched the vehicle. He seized the paper bindle, straw, and razor blade that he had

previously observed and located another bindle in an open compartment in the dash of the

truck. Gibson and another officer located a brass pipe a few blocks down the street. The

items seized later tested positive for marijuana and methamphetamine.

¶11 On August 5, 1998, Elison was charged with felony possession of dangerous drugs,

misdemeanor possession of dangerous drugs, and misdemeanor possession of drug

paraphernalia. Elison filed a Motion to Suppress and Request for Evidentiary Proceeding.

The District Court held an evidentiary hearing regarding Elison's motion to suppress and,

on January 22, 1999, the court denied Elison's motion. On February 17, 1999, Elison pled

guilty to felony possession of dangerous drugs. The court granted the State's motion to

dismiss the other counts. On April 5, 1999, the court entered an Order Deferring

Imposition of Sentence deferring Elison's sentence for two years with probationary

conditions, including a $500 fine. Elison appeals the court's denial of his motion to

suppress.

STANDARD OF REVIEW

¶12 We review a district court's denial of a motion to suppress to determine whether the

court's findings of fact are clearly erroneous, and whether those findings were correctly

applied as a matter of law. State v. Dawson, 1999 MT 171, ¶ 13, 295 Mont. 212, ¶ 13, 983

P.2d 916, ¶ 13.

ISSUE ONE

¶13 Whether the District Court erred in finding that Officer Conrad had a particularized

suspicion sufficient to justify stopping Elison's vehicle?

¶14 The District Court found that Officer Conrad had a particularized and objective basis

for suspecting that Elison was committing an offense and was, therefore, entitled to stop

Elison's truck. Elison contends that the District Court's finding is clearly erroneous

because Officer Conrad did not inquire as to the basis of Gibson's assumptions regarding

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (4 of 23)3/30/2007 11:13:43 AM

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

his observations, in particular Gibson's assumption that Elison was using the pipe to

smoke marijuana. Elison also contends that Officer Conrad did not make any observations

himself which corroborated Gibson's report.

¶15 The Fourth Amendment to the United States Constitution and Article II, Section 11 of

the Montana Constitution protect persons against unreasonable searches and seizures,

including brief investigatory stops such as traffic stops. State v. Jarman, 1998 MT 277, ¶

9, 291 Mont. 391, ¶ 9, 967 P.2d 1099, ¶ 9. We have held that in order to show sufficient

cause to stop a vehicle, the burden is on the State to show that law enforcement had

"particularized suspicion:" (1) objective data from which an experienced police officer can

make certain inferences; and (2) a resulting suspicion that the occupant of the vehicle is or

has been engaged in wrongdoing. State v. Gopher (1981), 193 Mont. 189, 194, 631 P.2d

293, 296 (adopting test announced in United States v. Cortez (1981), 449 U.S. 411, 101 S.

Ct. 690, 66 L. Ed. 2d 621); State v. Gilder, 1999 MT 207, ¶ 8, 295 Mont. 483, ¶ 8, 985

P.2d 147, ¶ 8.

¶16 Whether particularized suspicion exists at the time of an investigative stop is a

question of fact which is determined by considering the totality of the circumstances. State

v. Lafferty, 1998 MT 247, ¶ 10, 291 Mont. 157, ¶ 10, 967 P.2d 363, ¶ 10. "In evaluating

the totality of the circumstances, a court should consider the quantity, or content, and

quality, or degree of reliability, of the information available to the officer." State v. Pratt

(1997), 286 Mont. 156, 161, 951 P.2d 37, 40 (citing Alabama v. White (1990), 496 U.S.

325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 309). Where an investigative stop

stems from the tip of a citizen informant, this Court has adopted a three-part test to

determine the reliability of the citizen informant's information: "(1) whether the citizen

informant identified herself to the authorities and thus exposed herself to civil and

criminal liability if the report is false; (2) whether the report is based upon the citizen

informant's personal observations; and (3) whether the officer's own observations

corroborated the informant's information." State v. Roberts, 1999 MT 59, ¶ 17, 293 Mont.

476, ¶ 17, 977 P.2d 979, ¶ 17 (citing Pratt, 286 Mont. at 165, 951 P.2d at 42-43).

¶17 Elison agrees that the first element of the Pratt test was met. Officer Conrad knew

Gibson's identity: Gibson was sitting next to Officer Conrad when he made his report.

Elison argues that the second element of Pratt was not met in that Gibson did not have a

sufficient basis of knowledge. Elison contends that Gibson's report did not establish an

adequate foundation for Officer Conrad's suspicion because Officer Conrad did not know

whether Gibson was trained in narcotics identification. Therefore, Elison maintains, there

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (5 of 23)3/30/2007 11:13:43 AM

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

was no evidence to suggest that Gibson's report that Elison was smoking marijuana was

reliable. The State contends that the facts of the instant case are indistinguishable from

Pratt. We agree.

¶18 In Pratt, we cited with approval a portion of our decision in State v. Lee (1997), 282

Mont. 391, 938 P.2d 637, in which we underscored the importance of the informant

providing law enforcement with the basis for his or her belief that a particular person was

engaged in criminal activity. Pratt, 286 Mont. at 162-63, 951 P.2d at 41. We emphasized

that in Lee the informant's report was not sufficiently reliable because the informant did

not provide the dispatcher with any basis for her belief that Lee was driving under the

influence of alcohol or speeding. Pratt, 286 Mont. at 163-64, 951 P.2d at 41-42.

¶19 Gibson relayed to Officer Conrad both his conclusion that Elison was smoking from a

pipe that looked like a marijuana pipe, as well as his personal observations that formed the

basis for that belief. Gibson told Officer Conrad that he saw Elison smoking something

from a brass-colored pipe and that Elison appeared startled and lowered his pipe and

lighter when he noticed Gibson was observing him. Regardless of Gibson's ability to

correctly identify marijuana, he supplied Officer Conrad with sufficient objective and

particularized facts for Officer Conrad to determine for himself whether Gibson's

conclusion that Elison was smoking marijuana was warranted. See People v. Rueda (Colo.

1982), 649 P.2d 1106, 1109 (holding that report from two maintenance men that locker

held bag containing a white powdery substance which they concluded was "dope," plus

other suspicious circumstances, was sufficient for probable cause).

¶20 We are also convinced that Officer Conrad's corroboration of Gibson's report was

sufficient. Elison argues that Officer Conrad did not sufficiently corroborate Gibson's

report because Officer Conrad did not personally witness any illegal activity. However, we

have not required that an officer personally observe illegal activity in order to have a

particularized suspicion justifying a traffic stop. In Pratt, we stated that where an

informant's tip is anonymous and lacks any indication of the basis for the informant's

opinion, the officer must corroborate the tip by observing suspicious behavior that alerts

the officer to the existence of a possible violation. 286 Mont. at 168, 951 P.2d at 44;

accord Lafferty, ¶ 12 (holding that an anonymous informant's report of criminal conduct

which did not state the basis for the informant's belief must be corroborated by an officer's

personal observations of illegal or suspicious activity). However, a particularized

suspicion does not require certainty on the part of the law enforcement officer. Dawson, ¶

18. Where a tip is more reliable, such as those circumstances where the informant's

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (6 of 23)3/30/2007 11:13:43 AM

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

identity is known and the informant reports his or her personal observations which led the

informant to believe that criminal conduct had occurred, corroboration of innocent

behavior by law enforcement may be sufficient to raise a particularized suspicion. Pratt,

286 Mont. at 168, 951 P.2d at 44.

¶21 As in Pratt, Officer Conrad observed "the described vehicle within a short period of

time, traveling in the direction and on the same street indicated by [the informant]." 286

Mont. at 166, 951 P.2d at 43. Furthermore, Officer Conrad testified that after

substantiating Gibson's description of Elison's vehicle and locating its position behind his

patrol car, the following occurred:

[W]hen I tried to make a traffic stop, I slowed down and I wanted to make a right

lane change to get behind Mr. Elison's vehicle. Looking in my rearview mirror, he

also slowed down. [Elison's] truck slowed down, got behind me, made another left

turn, got into my left-side lane. I slowed down to 20 miles per hour, and the vehicle-

the truck also slowed down. I had to make a complete stop in order to get behind the

vehicle.

Officer Conrad testified that Elison's driving was unusual and appeared suspicious. We

agree. In light of Gibson's report that Elison was aware he had been witnessed smoking

from a pipe, Elison's subsequent behavior does appear suspicious; it could reasonably be

interpreted as an attempt by Elison to avoid being stopped.

¶22 Accordingly, even if we were to disregard Gibson's inference that Elison was smoking

marijuana, Officer Conrad had the following information available to him prior to

stopping Elison's vehicle: Gibson's report based on his personal observation of Elison

smoking from a brass pipe, appearing startled upon noticing the patrol car and attempting

to hide the pipe from view; Officer Conrad's corroboration of Gibson's description of the

vehicle; and Officer Conrad's independent observation of Elison's subsequent driving

behavior which appeared suspicious in light of Gibson's report. These facts are reliable

objective data from which Officer Conrad could make certain inferences, based on his four

years of experience and training, which would lead to a resulting suspicion that Elison was

engaged in wrongdoing.

¶23 The District Court's finding that from the totality of the circumstances Officer Conrad

had a particularized suspicion which justified stopping Elison is not clearly erroneous.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (7 of 23)3/30/2007 11:13:43 AM

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

ISSUE TWO

¶24 Whether the District Court erred in concluding that Elison was not entitled to a

Miranda warning prior to preliminary questioning?

¶25 The District Court concluded that Elison was not entitled to Miranda warnings prior

to preliminary questioning because Officer Conrad was merely conducting an

investigatory stop to determine whether a crime was being committed, and it was within

his discretion to ask Elison investigatory questions designed to identify him as a suspect in

a reported crime before giving Elison Miranda warnings. Elison contends that he was

entitled to Miranda warnings because Officer Conrad testified that Elison was not free to

leave during this preliminary questioning and Officer Conrad's questions were not

investigatory in that they were not designed to determine whether Elison was a suspect in

a reported crime.

¶26 The Fifth Amendment to the United States Constitution provides that no person "shall

be compelled in any criminal case to be a witness against himself." In Miranda v. Arizona

(1966), 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, the Supreme Court addressed the

problem of protecting a suspect's right against compelled self-incrimination in the context

of custodial interrogation. The Court held that the prosecution may not use statements

stemming from a custodial interrogation unless the defendant is advised prior to

questioning of the right to remain silent, that any statement may be used as evidence

against the defendant, and that the defendant has a right to the presence of an attorney.

Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. By custodial interrogation, the court meant

"questioning initiated by law enforcement officers after a person has been taken into

custody or otherwise deprived of [her or] his freedom of action in any significant way."

Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. Miranda continues to constrain the admission

of statements in state court proceedings made by a suspect during custodial interrogation

and not preceded by sufficient warnings. See, e.g., Berkemer v. McCarty (1984), 468 U.S.

420, 428, 104 S. Ct. 3138, 3144, 82 L. Ed. 2d 317.]

¶27 Elison is entitled to the protections of Miranda only if he was subject to "custodial

interrogation." Dawson, ¶ 30. People are "in custody" for the purposes of Miranda if they

have been deprived of their freedom of action in any significant way or their freedom of

action has been curtailed to a degree associated with a formal arrest. Dawson, ¶ 30. In

Dawson, we stated:

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (8 of 23)3/30/2007 11:13:43 AM

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

This Court has previously held that law enforcement officers need not administer

Miranda warnings to suspects during brief investigative encounters even if those

encounters are somewhat coercive. Moreover, we have stated that an interrogation is

not custodial unless there is a significant restriction of personal liberty similar to an

arrest . . . and even temporary confinement as a safety precaution does not render

the detention "custodial" for Miranda purposes . . . .

Dawson, ¶ 35 (citations omitted).

¶28 We noted in Dawson that the trial court had also relied upon this Court's decision in

State v. Rushton (1994), 264 Mont. 248, 870 P.2d 1355, in denying Dawson's motion to

suppress his statement. Dawson, ¶ 33. In Rushton, we stated that the determination of

whether a "custodial interrogation" has occurred is made on a case-by-case basis and looks

to whether a "reasonable person" would feel free to leave after considering such factors as

the time and place of the questioning, the length and mood of the questioning, and the

presence of other persons during the questioning. Rushton, 264 Mont. at 256, 870 P.2d at

1360. However, we note that while consideration of these factors might be useful, the

ultimate inquiry is not whether a reasonable person would feel free to leave, but rather

whether there was a "'formal arrest or restraint on freedom of movement' of the degree

associated with a formal arrest." Stansbury v. California (1994), 511 U.S. 318, 322, 114 S.

Ct. 1526, 1529, 128 L. Ed. 2d 293. See also Combs v. Coyle (6th Cir. 2000), 205 F.3d 269,

284 (quoting Stansbury); State v. Mirquet (Utah 1996), 914 P.2d 1144, 1147 (observing

that "[i]n the context of a routine traffic stop, the driver and the passengers, even though

they have been stopped and, at least momentarily, are not free to leave, are not 'in custody'

for Miranda purposes"); Allen, ¶ 13 (holding that the defendant who was the subject of a

traffic stop and not free to leave was, nonetheless, not entitled to Miranda warnings).

¶29 In Berkemer, the Supreme Court considered whether roadside questioning of a

motorist detained pursuant to a traffic stop should be considered custodial interrogation for

purposes of Miranda. The Court acknowledged that a traffic stop "significantly curtails the

'freedom of action' of the driver and passengers, if any, of the detained vehicle." 468 U.S.

at 436, 104 S. Ct. at 3148. The Court also noted that under the law of most States it is a

crime to leave a traffic stop without permission and "few motorists would feel free to . . .

leave the scene of a traffic stop without being told they might do so." 468 U.S. at 436, 104

S. Ct. at 3148. However, these factual observations did not end the Court's inquiry into

whether the defendant was subjected to custodial interrogation. Instead, the Court focused

on whether the defendant had demonstrated that the officer's conduct before eliciting the

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (9 of 23)3/30/2007 11:13:43 AM

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

incriminating statement was "comparable to those [restraints] associated with formal

arrest." Berkemer, 468 U.S. at 441, 104 S. Ct. at 3151. In this regard, the Supreme Court

observed that "the usual traffic stop is more analogous to a so-called 'Terry stop,' . . . than

to a formal arrest." Berkemer, 468 U.S. at 439, 104 S. Ct. at 2150 (discussing Terry v.

Ohio (1968)), 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889). The Court decided that

statements made by a defendant in response to an officer's roadside questioning did not

require warnings of constitutional rights because of the brevity of questioning and its

public setting, even though few motorists would feel free to leave. Berkemer, 468 U.S. at

436-39, 104 S. Ct. at 3148-49. We have repeatedly cited Berkemer with approval. See

Allen, ¶ 13; City of Billings v. Skurdal (1986), 224 Mont. 84, 89, 730 P.2d 371, 374.

¶30 The circumstances surrounding Officer Conrad's questioning of Elison are as follows:

Upon stopping Elison, Officer Conrad called the dispatcher and informed the dispatcher of

the stop. In the meantime, Elison had exited his vehicle and approached the patrol car.

Officer Conrad instructed Elison to return to his vehicle. Officer Conrad then approached

Elison's vehicle, and asked Elison for a driver's licence. Officer Conrad informed Elison of

Gibson's observations and told Elison that he smelled marijuana. Officer Conrad testified

that Elison appeared nervous and kept reaching between the cushions of the pickup seat

with his right hand. As a result of Elison's behavior, Officer Conrad asked Elison to show

his right hand and exit his vehicle. Officer Conrad then directed Elison to the rear of his

pickup, frisked him, and asked him where the pipe that Gibson had reported observing was

located. Elison informed Officer Conrad that he had thrown it out the window. Officer

Conrad then asked Elison whether there was any marijuana in the truck. Elison replied that

he had tucked marijuana behind the seat. Officer Conrad returned to the vehicle, leaving

Elison with another police officer who had arrived on the scene in a separate vehicle about

a minute after the stop. Officer Conrad moved the seat of the pickup and retrieved a film

canister. Officer Conrad opened the canister and asked Elison if it contained marijuana.

Elison informed him that it did. Officer Conrad placed Elison under arrest, handcuffed

him, and placed him in the patrol car. Officer Conrad testified that Elison was not free to

leave during this questioning. Gibson estimated that five to ten minutes elapsed between

the time Officer Conrad stopped Elison and the time Officer Conrad placed Elison in the

patrol car.

¶31 The issue as defined by Berkemer is whether the circumstances surrounding Officer

Conrad's questioning could be fairly characterized as the functional equivalent of a formal

arrest when viewed from the perspective of a reasonable person in Elison's position. See

Berkemer, 468 U.S. at 442, 104 S. Ct. at 3151. Elison has failed to demonstrate that, at any

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (10 of 23)3/30/2007 11:13:43 AM

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

time between the initial stop and his actual arrest, he was subjected to restraints

comparable to those associated with a formal arrest. Elison points to the fact that Officer

Conrad testified that Elison was not free to leave during the questioning which occurred at

the rear of Elison's vehicle. However, Officer Conrad did not communicate this fact to

Elison. "[A] policeman's unarticulated plan has no bearing on the question of whether a

suspect was 'in custody' at a particular time; the only relevant inquiry is how a reasonable

[person] in the suspect's position would have understood [his or her] situation." Berkemer,

486 U.S. at 442, 104 S. Ct. at 3151; accord Stansbury, 511 U.S. at 324-25, 114 S. Ct. at

1529; Allen, ¶ 13. See also Evans v. Montana Eleventh Judicial Dist. Court, Flathead

County (Mont. Feb. 11, 2000), 2000 WL 201971, at *3 (discussing definition of "youth

taken into custody for questioning" pursuant to § 41-5-331, MCA).

¶32 Elison also claims that Officer Conrad's prearrest questioning exceeded the scope of

the stop because it was not designed to determine whether he was a suspect in a crime. "[T]

he stop and inquiry must be 'reasonably related in scope to the justification for their

initiation.'" Berkemer, 468 U.S. at 439, 104 S. Ct. at 3150 (quoting United States v.

Brignoni-Ponce (1975), 422 U.S. 873, 881, 95 S. Ct. 2547, 2580, 45 L. Ed. 2d 607). In

this regard, an officer may ask the detainee a moderate number of questions to determine

the detainee's identity and to try to obtain information confirming or dispelling the

officer's suspicions before the requirements of Miranda attach. Berkemer, 468 U.S. at 439,

104 S. Ct. at 3150. We think Officer Conrad's questions were reasonably related to the

reason for the stop and designed to dispel his particularized suspicion that Elison had been

smoking marijuana: he asked Elison where the pipe was which Gibson had reported

observing and he asked Elison whether Elison had any marijuana in his vehicle.

¶33 None of the other aspects of the interaction between Elison and Officer Conrad

support the contention that Elison was subject to custodial interrogation prior to his arrest.

While Elison was clearly not free to leave during Officer Conrad's prearrest questioning,

nor would a reasonable person have felt free to leave, Elison was not subject to restraint

on his freedom of movement of the degree associated with a formal arrest until he was

handcuffed and placed in the back of Officer Conrad's patrol car. Prior to Elison's actual

arrest, he was subject to the same restraints that any motorist might expect to be subjected

to during a routine Terry stop. Officer Conrad removed him from his vehicle and frisked

(1)

him, both justifiable law enforcement actions during a Terry stop. See Dawson, ¶ 25;

see also Terry, 392 U.S. at 30, 88 S. Ct. at 1884-85 (holding that an officer is entitled to

conduct "a carefully limited search of the outer clothing of such persons in an attempt to

discover weapons which might be used to assault him"). Officer Conrad asked Elison

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (11 of 23)3/30/2007 11:13:43 AM

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

questions designed to dispel Officer Conrad's particularized suspicion, also a justifiable

action during a Terry stop. The prearrest questioning was in a public setting and in the

presence of only one other law enforcement officer. See Berkemer, 468 U.S. at 438-39,

104 S. Ct. at 3149-50. Lastly, the prearrest questioning was brief and at no point during

the interval between his stop and his arrest did Officer Conrad inform Elison that his

detention would not be temporary. See Berkemer, 468 U.S. at 441-42, 104 S. Ct. at 3151.

A reasonable person in Elison's position would have assumed that, barring the discovery

of any evidence supporting Officer Conrad's suspicions, he would be free to leave after the

questioning was completed. See Combs, 205 F.3d at 284-85 (holding that the defendant

was "in custody" because a reasonable person in the defendant's position would have

believed he was under arrest).

¶34 We hold that the District Court correctly denied Elison's motion to suppress his

prearrest statements.

ISSUE THREE

¶35 Whether the District Court erred in concluding that Elison's vehicle was lawfully

searched under an exception to the warrant requirement?

¶36 The District Court concluded that Elison's vehicle was lawfully searched without a

warrant because Officer Conrad had probable cause to believe that there was marijuana in

the truck and there were exigent circumstances which excused the obtaining of a warrant.

The court based its finding of probable cause on the fact that Officer Conrad smelled what

he believed to be burned marijuana, Elison indicated that there was marijuana in the truck,

(2)

and a trained drug dog indicated the presence of drugs in the truck. In reaching a finding

of exigent circumstances, the court noted the mobility of the vehicle and the possibility

that a confederate could move the vehicle. The court also noted that the stop was made at

12:05 a.m., and that it would have been difficult to obtain a search warrant at that hour.

The court took judicial notice of the fact that judges or magistrates are not reasonably

available to obtain a search warrant at that time of night.

¶37 Elison contends that the District Court's finding of exigent circumstances is clearly

erroneous and, as a result, the search of his automobile did not fall within an exception to

the warrant requirement. Elison claims that the possibility that a confederate could have

moved his vehicle prior to law enforcement obtaining a warrant is without support in the

record and, in fact, was contrary to Officer Conrad's testimony. In this regard, Elison notes

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (12 of 23)3/30/2007 11:13:43 AM

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

that he did not have a passenger with him when the stop occurred, he was in the squad car

in handcuffs with no means of communication, Officer Conrad testified that he was not

aware of anyone who might move the vehicle, and Officer Conrad testified that he made

no attempt to secure a warrant. Elison also claims that the District Court abused its

discretion by taking judicial notice of the unavailability of judges or magistrates at the

time of night the stop was made.

¶38 The State claims that the finding of exigency was justified due to the mobility of

Elison's vehicle and the difficulty in securing a search warrant at the time of Elison's

arrest. The State asserts that the court did not abuse its discretion by taking judicial notice

of the fact that judges and magistrates are not reasonably available at 12:05 a.m. in

Billings, Montana, because the fact was within the actual and immediate knowledge of the

court. In the alternative, the State urges that we conclude that a warrantless search of a

vehicle is permitted where the vehicle is readily mobile and an officer has probable cause

to believe that the vehicle contains contraband or other evidence of a crime.

¶39 The Fourth Amendment to the United States Constitution and Article II, Section 11 of

the Montana Constitution prohibit unreasonable searches and seizures, including

unreasonable searches of automobiles by law enforcement personnel. See State v. Allen

(1992), 256 Mont. 47, 884 P.2d 105. Warrantless searches and seizures are per se

unreasonable subject to only a few carefully drawn exceptions. State v. Loh (1996), 275

Mont. 460, 468, 914 P.2d 592, 597. One exception to the warrant requirement is the so-

called "automobile exception." Allen, 256 Mont. at 51, 884 P.2d at 108. See also

California v. Carney (1985), 471 U.S. 386, 390, 105 S. Ct. 2066, 2068, 85 L. Ed. 2d 406.

¶40 In Carney, the United States Supreme Court stated that the "automobile exception" is

based on two grounds. One basis for the exception is exigency. According to the Court,

the warrant requirement is excused based on the capacity of a vehicle to be quickly moved

which "creates circumstances of such exigency that, as a practical necessity, rigorous

enforcement of the warrant requirement is impossible." Carney, 471 U.S. at 391, 105 S.

Ct. at 2069. The other basis of the exception is a reduced expectation of privacy.

According to the Court, individuals have a reduced expectation of privacy on account of

the pervasive regulation of vehicles capable of traveling on public highways and are,

therefore, on notice that they may be stopped and searched without the protection afforded

by a warrant. Carney, 471 U.S. at 392, 105 S. Ct. at 2069-70. "In short, the pervasive

schemes of regulation, which necessarily lead to reduced expectations of privacy, and the

exigencies attendant to ready mobility, justify searches without prior recourse to authority

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (13 of 23)3/30/2007 11:13:43 AM

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

of a magistrate so long as the overriding standard of probable cause is met." Carney, 471

U.S. at 392, 105 S. Ct. at 2070.

¶41 As clarified by subsequent Supreme Court decisions, a warrantless search of an

automobile does not violate the Fourth Amendment if the automobile is "readily mobile

and probable cause exists to believe it contains contraband;" a further showing of exigent

circumstances is unnecessary. Pennsylvania v. Labron (1996), 518 U.S. 938, 940, 116 S.

Ct. 2485, 2487, 135 L. Ed. 2d 1031 (per curiam); Maryland v. Dyson (1999), 527 U.S.

465, 119 S. Ct. 2013, 144 L. Ed. 2d 422 (per curiam) (summarily reversing Maryland

Court of Special Appeals which had concluded that a warrantless automobile search

violated the Fourth Amendment because there was no exigency that prevented or even

made it significantly difficult for the police to obtain a search warrant).

¶42 Officer Conrad certainly had probable cause to believe Elison's vehicle contained

evidence of a crime after Elison informed Officer Conrad that he had tucked marijuana

behind his seat. Elison's vehicle was also readily mobile-he had just been driving it. Under

the Fourth Amendment to the United States Constitution, the warrantless search of

Elison's vehicle was not unreasonable.

¶43 We have also recognized an "automobile exception" to the warrant requirement under

Article II, Section 11 of the Montana Constitution. However, unlike the United States

Supreme Court, we have continued to require a showing of exigent circumstances. See, e.

g., Allen, 256 Mont. at 51, 884 P.2d at 108. In Allen, we stated that the "automobile

exception . . . requires two things (1) the existence of probable cause to search; and (2) the

presence of exigent circumstances, that is, that it was not practicable under the

circumstances to obtain a warrant." 256 Mont. at 51, 884 P.2d at 108.

¶44 We first recognized the automobile exception to the warrant requirement in State v.

Spielman (1973), 163 Mont. 199, 516 P.2d 617. In Spielman, the vehicle in which the

defendants had been traveling was searched without a warrant after being stopped on a

public highway. We stated that the issue was whether the patrolmen had probable cause to

execute the search. Spielman, 163 Mont. at 206, 516 P.2d at 621. However, we did not

discuss at length the necessity of a separate showing of exigency. Our first opportunity to

discuss the exigency requirement came in State v. Amor (1974), 164 Mont. 182, 520 P.2d

773. In Amor, we affirmed the suppression of evidence seized pursuant to a warrantless

search of a parked and unoccupied vehicle because it was practicable for the officers

involved to obtain a warrant prior to their search. In affirming the District Court's granting

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (14 of 23)3/30/2007 11:13:43 AM

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

of Amor's motion to suppress, we stated that "[i]n no case may the existence of exigent

circumstances be predicated upon the mere fact that the object of the search was an

automobile." Amor, 164 Mont. at 184-85, 520 P.2d at 775. We have consistently

reaffirmed the requirement that, in order to justify a warrantless search of an automobile,

the State must show exigent circumstances under which it was not practicable to obtain a

warrant. State v. Cripps (1978), 177 Mont. 410, 422, 582 P.2d 312, 319; Allen, 256 Mont.

at 51, 884 P.2d at 108; State v. McCarthy (1993), 258 Mont. 51, 852 P.2d 111; State v.

Lott (1995), 272 Mont. 195, 900 P.2d 306.

¶45 As the State correctly observes, however, we have never clearly stated a separate

justification for the exigency requirement under Montana law. We hereby take this

opportunity to clarify the source of the exigency requirement. As we have previously

stated:

The Montana Constitution also provides that the people shall be free from

unreasonable searches and seizures. Mont. Const. Art. II, § 11. Although the

language of this provision is nearly identical to that contained in the Fourth

Amendment to the United States Constitution, we recognize that such a provision in

the Montana Constitution may be interpreted so as to provide a greater amount of

rights than that contained in the Federal Constitution. See, State v. Johnson (1986),

[221] Mont. [503, 513], 719 P.2d 1248, 1254-55; and Butte Community Union v.

Lewis (1986), [219] Mont. [426, 433], 712 P.2d 1309, 1313. Additionally, the

Montana Constitution provides that the right of individual privacy shall not be

infringed without the showing of a compelling state interest. Mont. Const. Art. II, §

10. There is no similar textual language in the United States Constitution and we

have therefore recognized that this section grants rights beyond that inferred from

the United States Constitution. See generally, Montana Human Rights Division v.

City of Billings (1982), 199 Mont. 434, 649 P.2d 1283. Because Montana's

Constitutional protections have an existence which is separate from the Federal

Constitutional protections it is necessary to offer an independent analysis of the

privacy and search and seizure provisions of the Montana Constitution.

State v. Bullock (1995), 272 Mont. 361, 383, 901 P.2d 61, 75.

¶46 We have repeatedly held that Montana's unique constitutional language affords

citizens a greater right to privacy, and, therefore, provides broader protection than the

Fourth Amendment in cases involving searches of private property. See Bullock, 272

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (15 of 23)3/30/2007 11:13:43 AM

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

Mont. at 384, 901 P.2d at 75; Hulse v. Department of Justice, 1998 MT 108, ¶ 25, 289

Mont. 1, ¶ 25, 961 P.2d 75, ¶ 25. As a result, we have concluded that the category of

warrantless searches which may be lawfully conducted under the Montana Constitution is

narrower than the category of warrantless searches which may be conducted pursuant to

the Fourth Amendment. For example, in Bullock, we held that a warrantless search of the

defendant's open field, although lawful under the Fourth Amendment, was unlawful under

the Montana Constitution. 272 Mont. at 385, 901 P.2d at 76.

¶47 Montana's Constitution not only confers greater protection from warrantless searches

of open fields, but also confers greater protection from warrantless searches of

automobiles. For instance, in State v. Sawyer (1977), 174 Mont. 512, 518, 571 P.2d 1131,

1134, we declined to follow the Supreme Court's decision in South Dakota v. Opperman

(1976), 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000, which recognized the lawfulness

of warrantless inventory searches of automobiles pursuant to standard police procedures.

On the basis of Montana's constitutional right to privacy, we restricted warrantless

inventory searches of automobiles to those searches whose purpose was to safeguard

articles within plain view of the officer's vision. Sawyer, 174 Mont. at 518, 571 P.2d at

1134. While so holding, we reaffirmed our observation that "the word 'automobile' is not a

talisman in whose presence the . . . [warrant requirement] fades away and disappears."

Sawyer, 174 Mont. at 517, 571 P.2d at 1133. Accordingly, we will analyze the warrantless

search of Elison's vehicle under our unique constitutional provisions.

¶48 We have defined "search" as the use of some means of gathering evidence which

infringes upon a person's reasonable expectation of privacy. Hulse, ¶ 22. When

determining whether there has been an unlawful governmental intrusion into one's privacy

in search and seizure situations, we look at the following factors: (1) whether the person

has an actual expectation of privacy; (2) whether society is willing to recognize that

expectation as objectively reasonable; and (3) the nature of the State's intrusion. Desserly

v. Department of Corrections, (Mont. Feb. 15, 2000), 2000 WL 193539, *4.

¶49 We believe Elison had an actual expectation of privacy in the items stowed behind his

seat, and we believe his actual expectation of privacy was reasonable. Placing an object

beyond the purview of the public in a place from which the person has the right to exclude

others evidences an actual or subjective expectation of privacy. "What a person knowingly

exposes to the public is not protected, but what an individual seeks to preserve as private,

even in an area accessible to the public, may be constitutionally protected." Bullock, 272

Mont. at 375, 901 P.2d at 70.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (16 of 23)3/30/2007 11:13:43 AM

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

¶50 Moreover, the State has provided us with no reason to believe Elison's actual

expectation of privacy was unreasonable. Significantly, the Supreme Court decisions

which have essentially done away with the exigent circumstances requirement of the

"automobile exception" have done so, at least partially, on a theory of the reduced

expectations of privacy of people operating automobiles. See, e.g., Carney, 471 U.S. at

391, 105 S. Ct. at 2069-70. In Carney, the Court observed that this reduced expectation of

privacy derives from the "pervasive regulation of vehicles capable of traveling on the

public highways." 471 U.S. at 392, 105 S. Ct. at 2069. In explanation, the Court stated:

Automobiles, unlike homes, are subjected to pervasive and continuing governmental

regulation and controls, including periodic inspection and licensing requirements.

As an everyday occurrence, police stop and examine vehicles when license plates or

inspection stickers have expired, or if other violations, such as exhaust fumes or

excessive noise, are noted, or if headlights or other safety equipment are not in

proper working order.

Carney, 471 U.S. at 392, 105 S. Ct. at 2069-70.

¶51 We do not find the Supreme Court's "reduced expectation of privacy" analysis

compelling. We do believe that when a person rides in an automobile, that person accepts

that their actions and any items left uncovered on the dashboard or on the seat are no

longer private because of their public visibility. Even in Montana, when persons leave the

privacy of their home and expose themselves and their effects to the public and its

independent powers of perception, it is clear that they cannot expect to preserve the same

degree of privacy for themselves or their affairs as they could expect at home. State v.

Scheetz (1997), 286 Mont. 41, 49, 950 P.2d 722, 726. However, when a person takes

precautions to place items behind or underneath seats, in trunks or glove boxes, or uses

other methods of ensuring that those items may not be accessed and viewed without

permission, there is no obvious reason to believe that any privacy interest with regard to

those items has been surrendered simply because those items happen to be in an

automobile. Furthermore, there is no reason to believe that the "pervasive and continuing

governmental controls and regulations" of automobiles could serve to reduce someone's

expectation of privacy in items so stowed. Although the State may have a legitimate

interest in securing compliance with safety and traffic regulations, there is absolutely no

logical connection between prohibitions such as driving with expired registration stickers

or a noisy muffler, and the State's need to conduct a warrantless search behind the seat of

an automobile. Visual inspections of license plates for expired tags do not entail searches

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (17 of 23)3/30/2007 11:13:43 AM

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

of glove boxes, trunks, and underneath seats. See generally, 3 Wayne R. LaFave, Search

and Seizure: A Treatise on the Fourth Amendment § 7.2(b) at 470 (3d ed. 1996).

¶52 Lastly, we must also consider whether "the state's method of investigation is so

personally invasive that we recognize the intrusion as a search that requires further

justification, such as a warrant or other special circumstances." Scheetz, 286 Mont. at 50,

950 P.2d at 727. One concern motivating this consideration has been whether the State's

method is overbroad in that it presents a "substantial threat of revealing unnecessary

aspects of an individual's private affairs." Scheetz, 286 Mont. at 50, 950 P.2d at 727. A

method of investigation which tends to reveal information regarding both legal and illegal

behavior will require further justification in that it frustrates a person's legitimate

expectation of privacy. See Scheetz, 286 Mont. at 50-51, 950 P.2d at 727. Unlike the drug-

detecting canine sniff of luggage at issue in Scheetz, rummaging through a person's

personal effects behind the seat of their automobile divulges everything stowed behind the

seat and does not permit a person to "maintain as private everything except the

contraband." Scheetz, 286 Mont. at 51, 950 P.2d at 727. This type of search is the classic

example of a method of investigation which typically requires a warrant or other special

circumstances. See Bullock, 272 Mont. at 384, 901 P.2d at 75-76.

¶53 Because an individual may have a reasonable privacy interest in items stowed in an

automobile beyond the purview of the public and the State's method of investigation

invades this legitimate interest, the State must have a compelling interest for doing so. Art.

II, § 10, Mont. Const. A compelling state interest exists where the State enforces its

criminal laws for the benefit and protection of other fundamental rights of its citizens.

Hulse, ¶ 34. Montana has a compelling interest to remove drivers under the influence of

alcohol or drugs from our roadways. Hulse, ¶ 34. See also § 61-8-401, MCA (prohibiting

driving while under the influence of alcohol or drugs). Montana also has a compelling

interest in eradicating the possession of unlawful intoxicants. See generally, Title 50,

Chapter 32, MCA ("Controlled Substances"). Yet even with these compelling state

interests, the State may not invade an individual's privacy unless the procedural safeguards

attached to the right to be free from unreasonable searches and seizures are met. Hulse, ¶

34.

¶54 Because of the legitimate privacy interests implicated and the invasive and generally

overbroad nature of the state's intrusion on these interests, the search of an automobile

requires more than merely the existence of probable cause to believe it contains evidence

of a crime. On the foregoing basis, we conclude that, despite any language to the contrary

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (18 of 23)3/30/2007 11:13:43 AM

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

in our previous decisions, there is no "automobile exception" to the search warrant

requirement under the Montana Constitution. Rather, as we have consistently held, a

warrantless search of an automobile requires the existence of probable cause as well as a

generally applicable exception to the warrant requirement such as a plain view search, a

(3)

search incident to arrest, or exigent circumstances.

¶55 The remaining issue is whether Officer Conrad's warrantless search was justified by

both probable cause and an exception to the warrant requirement. As noted, the District

Court concluded that Officer Conrad's search was justified because of exigency. The Court

found the following exigent circumstances: the mobility of the vehicle, the possibility that

a confederate could move the vehicle, and the fact that the stop was made at 12:05 a.m.

and that it would have been difficult to obtain a search warrant at that hour. In regard to

the last circumstance, the court took judicial notice of the fact that judges or magistrates

are not reasonably available to obtain a search warrant at that time of night.

¶56 We have previously explained that exigent circumstances are those circumstances that

would cause a reasonable person to believe that prompt action was necessary to prevent

physical harm to police officers or other persons, the destruction of relevant evidence, the

escape of the suspect, or some other consequence improperly frustrating legitimate law

enforcement efforts. State v. Wakeford, 1998 MT 16, ¶ 24, 287 Mont. 220, ¶ 24, 953 P.2d

1065, ¶ 24. The State bears the heavy burden of showing the existence of exigent

circumstances and can meet that burden only by demonstrating specific and articulable

facts. Wakeford, ¶ 24.

¶57 The District Court's finding of exigent circumstances is clearly erroneous. First, as

discussed above, the mobility of an automobile, without more, is not sufficient to justify a

warrantless search. Second, the possibility that a confederate might move the vehicle

could establish exigency by indicating the possibility that relevant evidence would be

destroyed unless the police took prompt action. However, there is no evidence in the

record to establish this possibility; Elison was alone and without means to contact a

confederate. Third, the fact that the stop was made at 12:05 a.m. and that it would have

been difficult to obtain a search warrant because of the availability of judges or

magistrates at that time of night does not establish exigent circumstances justifying a

warrantless search. Significantly, Officer Conrad made no effort to obtain a search

warrant. Furthermore, while we understand that Montana's judges and magistrates would

prefer not to be disturbed late into the night, Montana's constitutional protections do not

simply fade away with the setting of the sun. The prohibition against unreasonable

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (19 of 23)3/30/2007 11:13:43 AM

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

searches safeguards people in Montana at all times. We cannot conclude that the validity

of a warrantless search could turn solely on the time of day that search was conducted.

¶58 We conclude that the State did not bear its heavy burden of demonstrating the

existence of specific and articulable facts indicating the necessity of searching Elison's

vehicle without first obtaining a warrant. We further conclude, on independent state

grounds pursuant to Article II, Sections 10 and 11 of the Montana Constitution, that the

warrantless search of Elison's vehicle was unlawful and the District Court erred in denying

Elison's motion to suppress the fruits of that search.

¶59 We reverse and remand for proceedings consistent with this decision.

/S/ JIM REGNIER

We Concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ KARLA M. GRAY

Justice W. William Leaphart, concurring in part and dissenting in part.

¶60 I concur with the Court's resolution of issues one and three. For the following reasons,

I dissent as to issue number two.

¶61 The District Court concluded that Elison was not in custody when Officer Conrad

asked him certain questions about marijuana and that Miranda therefore does not apply.

The District Court concluded further that "[i]t was within Officer Conrad's discretion after

he had a particularized suspicion to effectuate the traffic stop, to ask Defendant

investigatory questions designed to identify him as a witness or a suspect in a reported

crime."

¶62 Citing State v. Rushton (1994), 264 Mont. 248, 870 P.2d 1355, Elison argues that

when a person is not free to leave because of the express or implied conduct of the police,

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (20 of 23)3/30/2007 11:13:43 AM

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

any interrogation is custodial in nature. In Rushton, the Court concluded that "[t]o

determine if a custodial interrogation has occurred, this Court considers each case on a

case-by-case basis and looks to whether a 'reasonable person' would not feel free to leave,

after considering such factors as the time and place of interrogation, the length and mood

of interrogation, and persons present during the questioning." Rushton, 264 Mont. at 256,

870 P.2d at 1360. Elison argues that he was "secured" at the back of his truck, that no

reasonable person would have felt free to leave, and that the District Court found that

Elison was not free to leave. Elison argues further that Officer Conrad's questions were not

merely "investigatory" but went to "the heart of the offenses charged."

¶63 The State responds that Officer Conrad's questions were investigatory in nature and

did not require a Miranda warning. Further, citing State v. Allen, 1998 MT 293, 295

Mont. 139, 970 P.2d 81, the State argues that investigative questions made during a

temporary roadside detention need not be preceded by a Miranda warning even when a

suspect is not free to leave. The State urges that the questions occurred during a "public,

routine, and temporary" stop.

¶64 In Allen, defendant Allen was stopped by police because his vehicle lacked a front

license plate. The police officer approached Allen and explained why he had stopped him.

The officer came to suspect that Allen was improperly using a demonstrator plate and

asked Allen to exit the car so that they could talk. As the officer explained the charges

against Allen, the officer smelled alcohol on Allen's person and asked Allen whether he

had been drinking. Allen admitted having two beers. The officer told Allen that he did not

have the right to call his lawyer and had him perform sobriety tests, which he failed. The

officer arrested Allen, brought him to the police station, and had him provide a breath

sample that showed a BAC of 0.13. At that time Allen was advised of his rights under

Miranda. Relying on Berkemer v. McCarty (1983), 468 U.S. 420, 104 S.Ct. 3138, 82 L.

Ed.2d 317, the Allen Court concluded that "[t]he stop was still public, routine and

temporary in nature [and that] [t]hose critical facts distinguish it from 'custodial'

interrogations." Allen, ¶ 13.

¶65 In Berkemer, an Ohio highway patrol officer observed a car weaving in and out of

traffic and stopped the car. The officer had Berkemer get out of the car, noticed that he

had trouble standing, and asked him whether he had used intoxicants. Berkemer responded

that he had recently drunk alcohol and smoked marijuana. Berkemer was arrested and

taken to jail. However, at no time before Berkemer went to jail was he advised of his

rights under Miranda. The Berkemer Court held that "a person subjected to custodial

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (21 of 23)3/30/2007 11:13:43 AM

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda,

regardless of the nature or severity of the offense of which he is suspected or for which he

was arrested." Berkemer, 468 U.S. at 434, 104 S.Ct. at 3147, 82 L.Ed.2d at 331.

¶66 However, the Berkemer Court further held that the roadside questioning of a motorist

detained pursuant to "a routine traffic stop" should not be considered custodial

interrogation. Berkemer, 468 U.S. at 438, 441, 104 S.Ct. at 3149, 82 L.Ed.2d at 333-35

(emphasis added). The Court in Berkemer found that an ordinary traffic stop has two

features that "mitigate the danger that a person questioned will be induced 'to speak where

he would not otherwise do so freely.' " Berkemer, 468 U.S. at 437, 104 S.Ct. at 3149, 82 L.

Ed.2d at 333. First, "detention of a motorist pursuant to a traffic stop is presumptively

temporary and brief." Berkemer, 468 U.S. at 437, 104 S.Ct. at 3149, 82 L.Ed.2d at 333.

The Berkemer Court contrasted questions during such a detention with stationhouse

interrogations where "the detainee often is aware that questioning will continue until he

provides his interrogators the answers they seek." Berkemer, 468 U.S. at 438, 104 S.Ct. at

3149, 82 L.Ed.2d at 333. Second, the Berkemer Court concluded that the "atmosphere

surrounding an ordinary traffic stop is substantially less 'police dominated' than that

surrounding the kinds of interrogation at issue in Miranda itself." Berkemer, 468 U.S. at

438-39, 104 S.Ct. at 3149, 82 L.Ed.2d at 334. The Court concluded that most roadside

stops are analogous to Terry stops. The Berkemer Court conceded, however, that "our

adherence to the doctrine just recounted will mean that the police and lower courts will

continue occasionally to have difficulty deciding exactly when a suspect has been taken

into custody." Berkemer, 468 U.S. at 441, 104 S.Ct. at 3151, 82 L.Ed.2d at 335.

¶67 In the present case, the State's reliance on Allen and Berkemer is not persuasive. The

State has not shown that Officer Conrad's stop of Elison was "routine." As the majority

notes, Officer Conrad informed Elison of Gibson's observations and told him that he

smelled marijuana. Further, Gibson's observations indicate that Elison realized that an

occupant of a police car had seen him smoking marijuana. Thus, when Officer Conrad

stopped Elison, Elison had no reasonable grounds to believe that his was a routine

ordinary traffic stop of a presumptively temporary duration. Both Elison and Conrad knew

full well that Elison was being stopped on suspicion of illegal drugs-not for a traffic

violation.

¶68 Berkemer makes clear that in determining whether a person questioned will be

induced "to speak where he would not otherwise do so freely," the nature of the stop is

important. Berkemer, 468 U.S. at 437, 104 S.Ct. at 3149, 82 L.Ed.2d at 333. In other

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (22 of 23)3/30/2007 11:13:43 AM

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm

words, is the stop "presumptively temporary and brief?" Berkemer, 468 U.S. at 437, 104 S.

Ct. at 3149, 82 L.Ed.2d at 333. Both the officer and Elison knew that the stop was for

suspected drug use. The stop was not a "traffic" stop, it was not "routine" and it was not

going to be "presumptively temporary and brief." In my view, Miranda should apply

under these facts. I would reverse on issue two.

/S/ W. WILLIAM LEAPHART

Justices William E. Hunt, Sr. and Terry N. Trieweiler, join in the foregoing concurring

and dissenting opinion.

/S/ TERRY N. TRIEWEILER

/S/ WILLIAM E. HUNT, SR.

1. Elison does not contest the legality of Officer Conrad's frisk.

2. We note that the trained dog did not indicate the presence of drugs until after Officer Conrad had

already entered the vehicle.

3. The District Court stated that under some of our previous decisions it is unclear whether Officer

Conrad could have lawfully seized Elison's vehicle for a reasonable time until a search warrant could be

obtained. In State v. Broell (1991), 249 Mont. 117, 814 P.2d 44, we stated that a "warrantless seizure" of

a car falls under the "automobile exception" to the warrant requirement. 249 Mont. at 122, 814 P.2d at

47. However, we held that the seizure at issue in Broell was lawful regardless of exigent circumstances

because "there was sufficient probable cause under the facts of this case to believe that illegal drugs

were located in Broell's car." 249 Mont. at 123, 814 P.2d at 47. The legality of a warrantless seizure has

not been raised and therefore is not currently before us.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-323%20Opinion.htm (23 of 23)3/30/2007 11:13:43 AM