No. 89-592
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondenti
-vs-
GILBERT BELGARDE,
Defendant and Appellant.
APPEAL FROM: District Court of the Twelfth Judicial ~istrict,
In and for the County of Hill,
The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
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Gilbert Belgarde, Box Elder, Montana, Pro Se
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I:> Hon. Marc Racicot, Attorney General, Helena, Montana
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George Schunk, Asst. Atty. General, Helena, Montana
Patricia Jensen, Esq., Hill County Attorney's
a LIZ Office, Havre, Montana
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Submitted on Briefs: August 23, 1990
Decided: September 18, 1990
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from the District Court of the Twelfth
Judicial District of the State of Montana, in and for the County
of Hill. Defendant, Gilbert Belgarde, was found guilty by a jury
of driving a motor vehicle while under the influence of alcohol
(DUI). We affirm.
We restate the issues on review before this Court as follows:
1. Whether the District Court erred in denying the
defendant's motion to exclude an audio-tape of defendant.
2. Whether the law enforcement officer had a ltparticularizedll
suspicion to justify an investigative stop of the defendant's
vehicle.
3. Whether there was probable cause to arrest defendant for
driving under the influence of alcohol.
4. Whether the defendant was denied his right to a speedy
trial.
On October 12, 1988, at approximately 1:50 a.m., Hill County
Deputy Sheriff Larry Overcast was driving north on Highway 87,
south of Havre near the Rocky Boy Indian Reservation. By radar,
Officer Overcast clocked an oncoming car at about 46 m.p.h. The
officer began to follow the car. Officer Overcast testified that
the car: (1) swerved over the fog line twice in three miles; (2)
veered toward an oncoming car; and (3) accelerated to speeds of
over seventy miles an hour. Considering these facts and the fact
that the bars in Havre had recently closed, Officer Overcast
determined that there was reasonable suspicion that a DUI offense
was in progress and proceeded to stop the vehicle.
The driver of the vehicle was defendant Gilbert Belgarde.
Defendant failed several field sobriety tests administered by
Officer Overcast. Overcast also testified that he detected the
odor of alcohol upon the defendant. For these reasons Officer
Overcast arrested defendant and transported him to the Havre Police
Department.
While in the squad car en route to Havre, Officer Overcast
tape recorded defendant. The recording demonstrates that the
defendant cussed and verbally abused the officer. In addition, a
video taped interview at the station shows that the defendant
refused to follow the officer's directions to perform various field
sobriety tests, and was obnoxious and irate toward the officers
present. A second law enforcement officer at the station testified
that he observed the defendant's staggering movements and also
detected the odor of alcohol on the defendant.
Following a jury trial on April 12, 1989, in the Justice Court
of Hill County, City of Havre, the defendant was found guilty of
DUI. A notice of appeal dated April 13, 1989, was filed in the
Justice Court. The defendant filed motions to dismiss and to
exclude evidence in the District Court. The District Court ruled
on these motions on July 24, 1989.
In its order dated July 25, 1989, the court denied defendant I s
motion to dismiss for lack of probable cause to make the initial
stop and granted defendant's motion to exclude a transcript of the
subject tape recording but that the tape recording itself would be
admissible.
Following a jury trial held in the District Court on August
22, 1989, defendant was found guilty of DUI. Defendant appeals
this conviction. We affirm.
Additional facts will be discussed as necessary.
I.
Whether the District Court erred in denying the defendant's
motion to exclude a tape recording made by the arresting officer.
Defendant's underlying contention is that his right against
self-incrimination was violated because the tape recording was made
without his knowledge or consent. Defendant also argues that the
Montana statute authorizing law enforcement officers to record
conversations, 5 45-8-213(1), MCA, is unconstitutional.
We first consider defendant's exception to 5 45-8-213 (1), MCA.
Apparently, defendant is contending that the right to privacy
section of the Montana Constitution prohibits the use of audio-
tape recordings as evidence under the facts of this case.
Defendant cites no legal authority in support of his argument.
We have disposed of a similar argument in State v. Brown
(1988), 232 Mont. 1, 755 P.2d 1364. In Brown, defendant was
convicted of criminal sale of dangerous drugs. During the sting
operation which led to defendant's conviction, an audio-tape was
made of conversations between defendant and an undercover officer
who posed as a purchaser. The audio-tape was admitted at trial.
On appeal defendant argued that the audio-tape violated her right
to privacy. We held that I1warrantless consensual electronic
monitoring of face-to-face conversations by the law enforcement
officers while pursuing their official duties, does not violate the
right to be free of unreasonable searches and seizures nor the
privacy section of the Montana Constitution. It Brown at 8, 755 P.2d
at 1369. So long as one of the parties to the conversation
clearly, knowingly and voluntarily consents, the evidence obtained
by such monitoring is admissible at a criminal trial. Id. We
refuse to reverse this rule.
Furthermore, 45-8-213(l) (c), MCA, provides quite clearly
that a public official or employee is exempt from the privacy in
communications statute so long as the recording is made in the
performance of official duty. Officer Overcast made the recording
while on official duty as a police officer during the transport of
defendant to Havre. We hold that there was no violation of any
statute or constitutional guarantee by the tape recording.
We now turn to defendant's contention of self-incrimination.
In the case of State v. Finley (1977), 173 Mont. 162, 566 P.2d
1119, this Court upheld the use of an audio-video tape of a
defendant performing sobriety tests against a claim of self-
incrimination. We held that the audio-video tape was objective
evidence which was outside the scope of protection provided by
Article 11, Section 25 of the Montana Constitution and the Fifth
Amendment to the United States Constitution. Finley at 166, 566
P.2d at 1121.
We reaffirmed our holding of Finley in State v. Thompson
(1989), 237 Mont. 384, 773 P.2d 722. We held that the audio-video
tape which demonstrated defendant's performance of sobriety tests
and his manner of speaking was objective evidence and not entitled
to Fifth Amendment protection.
Here, as in Finlev and Thompson, the crucial inquiry is
whether the taped comments of the defendant constituted
constitutionally prohibited testimonial compulsion or merely real,
physical, or objective evidence. The record is devoid of evidence
indicating that the recording contained any speech of defendant
which was testimonial in nature. Rather, all defendant's
statements captured by the tape were voluntary and none served to
incriminate the defendant. ~dditionally,the tape did not contain
defendant's responses to interrogation by police. The tape
recording was introduced into evidence for the sole purpose to aid
the jury in understanding the testimony of Officer Overcast who
observed defendant's demeanor in the police car. The content of
defendant's tape-recorded words are not meaningful, in and of
themselves, but rather the manner in which they were delivered and
the nature of defendant s "tirade1' is probative of defendant s
intoxication. We find that the tape provides positive indicia that
defendant was under the influence of alcohol. We hold that the
tape is objective evidence and, therefore, outside the protection
of the Fifth Amendment to the United States Constitution and
Article 11, Section 25 of the Montana Constitution. We further
hold that defendant was not denied his privilege against self-
incrimination when the District Court properly admitted the tape
into evidence.
Whether the law enforcement officer had a llparticularizedll
suspicion to justify an investigative stop of defendant's vehicle.
The defendant alleges that Officer Overcast was without
authority to stop his vehicle because he lacked probable cause to
do so. This contention is erroneous and we cite the following:
All that is required of an officer in
making an investigatory stop is that he have
a llparticularizedn or wreasonablew suspicion
that criminal activity may be afoot. This is
the applicable standard for an investigative
stop of a vehicle; or in other words "some
basis from which the court can determine that
the detention was not arbitrary or harassing.''
State v. Gopher (Mont. 1981), 631 P.2d 293,
295, 38 St.Rep. 1078, 1081, relying on United
States v. Cortez (1981), 449 U.S. 411, 101
S.Ct. 690, 66 L.Ed.2d 621.
State v. Sharp (1985), 217 Mont. 40, 45, 702 P.2d 959, 962.
The District Court found that Officer Overcast had sufficient
cause to stop defendant and had a right at the time, based on
reasonable suspicion and logical inference, to stop the defendant's
vehicle to investigate a possible DUI in progress. The ~istrict
Court based its finding upon officer Overcast's testimony which
established the following: (1) defendant's vehicle was travelling
at approximately ten miles per hour below the posted speed limit;
(2) the time was 1:50 a.m. which was shortly after the bars close;
(3) defendant's vehicle drifted over the fog line twice while
travelling approximately three miles; (4) defendant's vehicle
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rapidly accelerated to speeds exceeding 70 miles per hour as
Overcast's car approached; and (5) defendant's vehicle veered
toward an oncoming car.
Based on the District Court's findings which we will not set
aside unless clearly erroneous, we hold that Officer Overcast had
a sufficient basis for his particularized suspicion of illegal
activity.
The defendant argues that Officer Overcast falsely testified
regarding the above factors which justified Overcast's
l'particularizedll
suspicion. The defendant claims that Officer
Overcast decided to stop the vehicle only after discovering,
through a registration check, that a Native American was driving.
The defendant concludes that the decision to make the investigatory
stop was discriminatory.
The defendant's argument was presented to the District Court
and jury. Officer Overcast testified that upon stopping the
vehicle, he had no idea who was driving the vehicle. The defendant
has failed to point to any evidence in the record which supports
his argument. Defendant's argument is supported solely by his own
speculation. Pursuant to Rule 52(a), M.R.Civ.P., we give due
regard to the opportunity of the trial court to judge the
credibility of the witnesses. The trier of fact is responsible for
weighing the credibility of Officer Overcast's testimony and his
stated reasons for stopping defendant's vehicle. Defendant's claim
of racial discrimination is not supported by any objective evidence
in the record. We hold that the stopping of defendant's vehicle
was justified.
111.
Whether there was probable cause to arrest defendant for
driving under the influence of alcohol.
The threshold issue for the validity of an arrest is probable
cause. State v. Lee (1988), 232 Mont. 105, 109, 754 P.2d 512, 515.
Defendant contends that Officer Overcast did not have probable
cause to arrest defendant for driving under the influence of
alcohol. We disagree.
The officer's reasonable suspicion which justified the stop
ripened into probable cause to arrest for DUI. We refer to the
substantial evidence comprised of defendant's intoxicated condition
as testified to by two officers, defendant's staggered movements,
failed field sobrietytests, use of obscene language toward Officer
Overcast as heard on the audio-tape and other obnoxious and
aggressive behavior as shown on the videotaped interview. We hold
that the substantial evidence presented indicates that there was
ample justification for placingthe defendant under arrest for DUI.
Defendant attempts to establish a discriminating basis for his
arrest, as well as his stop. Defendant contends that a "jail or
bail" policy for Native Americans exists among the law enforcement
personnel of Hill County. Defendant attempted to document this
policy through a I1statementof verificationt1
appended to his brief.
Defendant Is "statement of verification" is not properly part of the
record on appeal pursuant to Rule 9, M.R.App.Civ.P. As such, we
cannot consider this document in disposing of this appeal.
Furthermore, defendant fails to support his discrimination claim
with any objective evidence from the record. The record, indeed,
is devoid of any evidence that the defendant was arrested because
of his race. We hold that,probable cause existed for defendant's
arrest and that defendant's arrest was not discriminatory.
IV.
Whether the defendant was denied his right to a speedy trial.
Speedy trial analysis for misdemeanor prosecutions is governed
by statute. State v. Ronningen (1984), 213 Mont. 358, 691 P.2d
1348. Section 46-13-201(2), MCA, provides:
The court, unless good cause to the contrary
is shown, must order the prosecution to be
dismissed if a defendant whose trial has not
been postponed upon his application is not
brought to trial within 6 months after entry
of plea upon a complaint, information, or
indictment, charging a misdemeanor.
The defendant was cited on October 12, 1988. Pursuant to Rule
21(a), M.R.App.Civ.P., the statutory six-month period within which
a prosecution must be brought began the following day, October 1 3 ,
1988. The six-month deadline thus expired on April 12, 1989.
Similarly, in Ronninsen we held that the time period in which to
bring a misdemeanor prosecution that commenced with the filing of
an information on October 12, 1983, expired on April 12, 1984.
Here, the defendant was tried in Justice Court on April 12, 1989.
As such, the prosecution was timely for purposes of 46-13-
201 (2), MCA.
The defendant's conviction is affirmed.
We concur: