State v. Rushton

NO. 93-498

IN THE SUPREME COURT OF THE STATE OF MONTANA
1994

STATE OF MONTANA, a -. ....
i:
Plaintiff and Respondent, 1

APPEAL FROM: District Court of the Twenty-first Judicial District,
In and for the County of Ravalli,
The Honorable Jeffrey H Langton, Judge presiding.
.

COUNSEL OF RECORD:
For Appellant:
Michael J. Shemood, Attorney at Law,
Missoula, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Kathy Seeley, Assistant Attorney General,
Helena, Montana
George Corn, Ravalli County Attorney,
Hamilton, Montana

Submitted on Briefs: January 13, 1994
Decided: March 22, 1994
Filed: . ~.
Justice Terry N. Trieweiler delivered the opinion of the Court.
Defendant Richard T. Rushton was charged by information in the
District Court for the Twenty-first Judicial District in Ravalli
County with criminal possession of dangerous drugs, a felony, in
violation of § 45-9-102, MCA. On March 30, 1993, the District
Court denied defendant's motion to suppress statements made and
evidence obtained in a search of his residence. After this Court
denied supervisory control, defendant entered a plea of guilty on
the condition that he be allowed to appeal the District Court's
denial of his motion to suppress. This appeal followed.
We reverse the order of the District Court.
The following issues are presented by defendant on appeal:
1. Did the District Court err when it denied defendant's
motion to suppress evidence of statements made prior to the time
defendant was given Miranda warnings?

2. Did the District Court err when it denied defendant's
motion to suppress evidence seized during an unwarranted search of
his residence?
Defendant Richard Rushton and his wife, Susan, live in a
semi-rural area outside of Florence, Montana. At the time of the
incident giving rise to this appeal, both were employed as teachers
in the Corvallis school system. They have no children.
The Rushtons were friends with Timothy and Pamela Hammond,
also of Florence. On December 9, 1992, the Hammond's 12-year-old
son informed the Ravalli County Sheriff's Office that his parents
had a marijuana grow operation at their residence. He also
2
informed the officers that he had seen a marijuana grow operation
in defendant's garage "over one year ago."
Based on the information received from the Hammond's son,
Detective Bailey of the Ravalli County Sheriff's Office obtained a
search warrant for the Hammond residence and executed it on the
evening of December 10, 1992. That search resulted in the
confiscation of marijuana, growing equipment, and drug
paraphernalia. The investigating officers asked the Hammonds if
they knew whether defendant was also growing marijuana. Timothy
Hammond responded that he had seen marijuana in defendant's garage
"about two months ago."
Detective Bailey testified that, based on the information
received from the Hammond's son and the statement made by Timothy
Hammond, he thought he had probable cause to obtain a search
warrant for defendant's residence. He further testified that he
had no reason to believe that the County Attorney or a Justice of
the Peace was unavailable that evening to prepare and review a
warrant application. However, after discussing the situation with
Sheriff Printz, the Ravalli County Sheriff, it was decided that
Detective Bailey and the other officers who had conducted the
search of the Hammond residence would proceed to defendant's home
without a warrant and attempt to obtain permission to search his
residence. Sheriff Printz testified that one of the reasons for
this decision was concern about the cost of overtime compensation
if time had been taken to obtain a search warrant.
 ~t approximately 9 p.m. on December 10, 1992, five armed and
uniformed Ravalli County deputies arrived at defendant's home for
the purpose of investigating alleged criminal activity. Detective
Bailey and another officer approached the front door, and three
other officers went to the back of the residence to detain anyone
who attempted to leave. Detective Bailey turned on a tape recorder
in order to document the ensuing conversation with defendant and
his wife. However, the Rushtons were unaware that their
conversation with the officers was being recorded.
At the time the officers arrived and knocked on the front
door, defendant was already in bed for the evening, and Susan,
wearing pajamas and a robe, was preparing for bed.
When the Rushtons opened the door, Detective Bailey asked them
their names, identified himself and the other officer, and
inquired, "Do you have a moment where we could come in and speak to
you?" The Rushtons were not told that the officers were there for
the express purpose of attempting to obtain permission to search
their home or to inquire about alleged criminal activity.
Defendant invited the officers to come in out of the rain and
offered them seats in the living room. Defendant and his wife sat
on the living room couch and Detective Bailey sat in a chair across
from them. The other officer remained standing in the doorway
which led out of the living room. Defendant testified that he felt
he was not free to leave the room at this point.
During this time, the following exchange occurred:
BAILEY: Folks, I've gotta advise you of what's going on
here, and you're probably not gonna be too happy about
it. Go ahead and sit down.
DEFENDANT: Ok.
BAILEY: We, uh, understand you're friends. . outreMr.
.y
Rushton, right? Susan?
DEFENDANT: Yeah.
BAILEY: Ok. You're friends with Mr. Hammond.
DEFENDANT: Yeah. Everything's Ok, isn't it?
BAILEY: Well, other than the marijuana grow operation in
his basement.
SUSAN: In Mr. Hammond's basement?
BAILEY: Yes, ma'am.
DEFENDANT: Our friends, the Hammond's...?
BAILEY: Yes. And your friends the Hammonds indicate
that you also have a marijuana grow in your garage. And,
our purpose here is to see if we can clean this situation
up, and if in fact there is marijuana there, then we'll
..
have to do what we have to do, and. if not, then there's
no problem. He said it hasn't been too long ago he seen
them there. Is that true, sir?
DEFENDANT: That's true sir.
BAILEY: Ok. I want to do this the easy way, ok?
DEFENDANT: Ah, me too. Me too.
BAILEY: Ok. The easy way is that, uh, we have a Consent
to Search form here, which you have to agree to sign, and
1'11.. .I'll be very frank, if vou don't. we'll be sittinq
here for a number of hours, and we'll have to go get a
search warrant. But, with the Consent to Search, we'll
just go ahead and do it, and the only thing I'm gonna
promise you is when we leave here, you folks'll be
staying here. Ok? We won't arrest vou here.
Eventually, though, we'll have to go to the County
Attorney. Understand that?
DEFENDANT: I think...
 BAILEY: Go ahead and show him the form.
DEFENDANT: Oh, Ok. Let me just get...
BAILEY: Go ahead and ask some questions. Go ahead.
DEFENDANT: Come on in. [~hird officer enters the home]
Uh, ...
I'm just being honest with you.. .you been nice and
honest with me.
BAILEY: That's fine. We just want to do this the easy
way.
DEFENDANT: Quite honestly, do I need a lawyer here or
anything? I mean.. .I'm not, I'm not saying let me get my
damn lawyer, I'm not.. .I don't have a lawyer, I don't
KNOW a lawyer; that's not what I'm saying. Ok? I'm
.
saying,. .from.. .I know, you can read me that, that's not
what I'm saying, I'm saying...y ou know, right. [Emphasis
added].
It is undisputed that defendant was not given a Miranda warning

prior to the foregoing exchange. When defendant expressed concern
about whether he needed a lawyer, Detective Bailey informed
defendant that he was not required to consent to a search, but
reiterated the promise that if marijuana was found, neither
defendant nor his wife would be arrested at that time. Defendant
discussed the matter with Susan and stated, ' 1 mean.. .what about..
' .
would you feel better if there was a lawyer here while they search
this. You know they're gonna search; they have the right to
search. You know what they're gonna find."
Detective Bailey then asked the Rushtons to read and sign the
form. After describing more about the search process, Detective
Bailey stated the following:
BAILEY: You'll be given a complete receipt for every
item that's taken. You know, one thing I want to do...
Like I said, irregardless (sic) of anything tonight, we
will not arrest you, but, you know, we are going to
 advise you of your Miranda Warning. That's something
that's kinda customary.
At this time, the Rushtons were given Miranda warnings and Detective

Bailey asked defendant if he wished to make a statement. Defendant
declined, saying, "I don't really think I better make a statement
yet." After some further discussion, defendant signed the form and
a search was immediately conducted.
The officers seized fourteen immature marijuana plants, four
mature plants, dried marijuana seeds, and growing implements and
literature.
As a result of the questioning and search of defendant's
residence, defendant was charged by information on December 22,
1992, with felony criminal possession of dangerous drugs, in
violation of § 45-9-102, MCA. Defendant entered a plea of not
guilty and, on February 9, 1993, filed a motion to suppress the
statements made and the evidence seized from his home on the night
of December 10. Following an evidentiary hearing, the District
Court entered an order in which this motion was denied.
On August 11, 1993, after this Court denied supervisory
control, defendant entered a plea of guilty to the offense charged,
conditioned on his right to appeal the District Court's order. The
court accepted this plea, and on August 20, 1993, defendant was
found guilty of the offense charged and sentenced. From the
District Court's order denying the motion to suppress, defendant
appeals.
 STANDARD OF REVIEW
When reviewing a district court's denial of a motion to
suppress, this Court determines whether there is substantial
credible evidence to support the court's findings of fact, and
whether those findings were correctly applied as a matter of law.
State v. Beach (l985), 217 Mont. 132, 147, 705 P.2d 94, 103. Here,

defendant does not disagree with the court's factual findings but
contends the court erred when it concluded Miranda warnings were not

required prior to the officer's questioning of defendant and that
defendant voluntarily consented to a search of his residence. Our
review, therefore, is plenary and we must determine whether the
court's conclusions were correct as a matter of law. State v Sage
.
(1992), 255 Mont. 227, 229, 841 P.2d 1142, 1143.

ISSUE 1
Did the District Court err when it denied defendant's motion
to suppress evidence of statements made prior to the time defendant
was given Miranda warnings?

When asked by Detective Bailey whether there was a marijuana
grow operation which Timothy Hammond would have recently seen,
defendant admitted that this statement was true. Defendant
contends that the court should have granted his motion to suppress
this admission, and other statements made to the officers when
asked if he would consent to a search, because he was not advised
of his Miranda rights prior to making these statements. He asserts

that Detective Bailey's questioning constituted a custodial
interrogation triggering the need for Miranda warnings because he

reasonably believed his freedom was significantly restricted at the
time Detective Bailey was in his home questioning him.
The District Court, in its order, relied heavily on the
contents of the recorded conversation between Detective Bailey and
the Rushtons, and circumstances such as defendant's age and
education, the brevity of the interrogation, and the lack of
physical restraints. The court concluded that defendant was not in
custody or deprived of his freedom in any significant way when
Detective Bailey asked the critical question and defendant answered
it affirmatively.
The United States Supreme Court has ruled that states may not
use confessions or admissions resulting from a slcustodial
unless the proper Miranda warnings have been given.
interrogationt1

Miranda v. Arizona (1966), 384 U.S. 436, 444, 86 S. ct. 1602, 1612, 16

L. Ed. 2d 694, 706. The Court defined 'lcustodialinterrogation1'as
"questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of
action in any significant way.l1 Miranda, 384 U.S. at 444. Accorci,

Statev.Staat (1991), 251 Mont. 1, 6, 822 P.2d 643, 646. Thus, before

determining whether Detective Bailey should have given defendant
Miranda warnings in this instance, we must first determine whether

there was a "custodial interrogation.Ir
This Court has established guidelines for determining when a
Ircustodialinterrogationv'occurs. If a person has no free right to

9
leave, either from the express or implied conduct of police
officers, then the interrogation is custodial in nature. State v.

Ellinger (1986), 223 Mont. 349, 355, 725 P.2d 1201, 1204; Statev. Osteen

(1985), 216 Mont. 258, 265, 700 P.2d 188, 193. The United States
Supreme Court and this Court have made clear that interrogation
which occurs in a suspect's home is subject to Miranda where it

occurs in an environment in which the suspect's freedom of action
has been significantly restricted. Orozco v. Texas (1969), 394 U . S .

324, 89 S. Ct. 1095, 22 L. Ed. 2d 311; Statev. Ryan (1979), 182 Mont.

130, 133-35, 595 P.2d 1146, 1147-48. However, even when the
defendant is the focus of a criminal investigation at the time of
questioning by officers, Miranda warnings are only required where a

person's freedom is so restricted as to render him in custody. State

v.Dan?~ek (1987), 226 Mont. 80, 87, 734 P.2d 188, 193.

To determine if a custodial interrogation has occurred, this
Court considers each case on a case-by-case basis and looks to
whether a "reasonable personu 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. Statev. Lapp (l983), 202 Mont. 327, 331, 658 P.2d

400, 403; Staat, 822 P.2d at 646.

Here, two armed officers were in defendant's home late at
night after arousing him from bed. When Detective Bailey and the
other officers went to defendant's home, it is clear that they
suspected defendant of criminal activity. Moreover, the officers
specifically intended to obtain defendant's consent to conduct a
search of his home because, for administrative reasons only, they
did not attempt to get a warrant. Defendant was not told why the
officers wanted to talk with him, nor that he had the right to
refuse them entry. Although defendant quickly put on some clothes,
his wife was dressed only in a robe and pajamas during the time
they were questioned by Detective Bailey. Furthermore, after the
Rushtons were told to sit on the couch, a second armed officer
remained standing and blocked the exit from the room. Defendant
testified that he did not feel he was free to leave and the
officers present admitted their intention to stop and detain anyone
who attempted to leave. At that time, without providing Miranda

warnings, Detective Bailey asked a direct question of defendant for
the purpose of obtaining evidence against him.
After considering these circumstances, we conclude that a
person in defendant's position could reasonably believe that his
freedom was restricted and he was not free to leave. Therefore, we
hold that the questioning of defendant constituted a custodial
interrogation.
In Osteen, 700 P.2d at 188, this Court addressed a similar

situation. In that case, Narvin Osteen was at home when two
officers knocked on his front door sometime after 10 p.m. The
officers requested admission and were invited in by Osteen, but did
not tell Osteen why they wanted to talk with him, nor that he had
the right to refuse them entry. The officers clearly suspected
Osteen of criminal activity and proceeded to question him without
giving him Miranda warnings. After eliciting certain admissions

from Osteen, he was arrested for aggravated assault. We concluded
that Osteen was questioned in a custodial atmosphere and that the
statements he made during that interrogation were inadmissible.
Although the State attempts to distinguish defendant's
situation from Osteen by emphasizing certain factors which it

asserts were less ncoercive,ll do not find the distinctions in
we
Osteen as significant as the similarities.

Because we have determined that defendant was interrogated in
a custodial atmosphere requiring Miranda warnings under the Fifth

Amendment to the United States Constitution, and Article 11,
Section 25, of the Montana Constitution, the failure of Detective
Bailey to preface his questions with Miranda warnings renders

inadmissible the statements defendant made. The District Court
erred when it concluded that Miranda warnings were not required and

denied defendant's motion to suppress evidence of defendant's
statements.
ISSUE 2
Did the District Court err when it denied defendant's motion
to suppress evidence seized during an unwarranted search of his
residence?
Under the Fourth and Fourteenth Amendments to the United
States Constitution, and Article 11, Section 11, of the Montana
Constitution, warrantless searches and seizures conducted inside a
home are perse unreasonable subject only to a few carefully drawn

exceptions. Schneckloth v. Bustarnonte (1973), 412 U. s . 218, 93 S. ct.
2041, 36 L. Ed. 2d 854; State v. Kim (l989), 239 Mont. 189, 779 P.2d

512. One of the recognized exceptions to the warrant requirement
arises when a citizen has knowledgeably and voluntarily consented
to a search. Schneckloth, 412 U.S. at 219; 5 46-5-101, MCA.

"'[Wlhen a prosecutor seeks to rely upon consent to justify
the lawfulness of a search, he has the burden of proving that the
consent was, in fact, freely and voluntarily given.' Bumperv.North

Carolina [1968], 391 U.S. 543, 548." Schneckloth, 412 U.S. at 222.

Accord, Kim, 779 P.2d at 517.

The Schneckloth Court made clear that the Constitution requires

that consent be voluntarily given, uncontaminated by any duress or
coercion, express or implied. In order to determine whether
consent to a search was given voluntarily, this Court has adopted
the same test used by the Supreme Court, which is the "totality of
the circumstances" test. Kim, 779 P.2d at 517.

In this instance, defendant contends his consent to the search
was not given freely and that the court erred when it denied his
motion to suppress the evidence seized during the search.
Defendant alleges his consent was the product of illegal
questioning, the threat that he and his wife would be held in
custody "for a number of hourst1until a warrant could be obtained,
and an implied threat that they would be arrested if consent was
not given for a search.
The State counters with the assertion that the court correctly
denied the motion to suppress because defendant was clearly told
that he did not have to consent to the search, the officers were
polite and nonaggressive during this incident, and his verbal and
written consent were not coerced in any manner.
Although we agree that defendant was specifically told he was
not required to consent to a search, this factor is not
controlling. In Schneckloth, 412 U.S. at 248-49, the court

specifically held that a subject's knowledge of a right to refuse
is only one of the factors to be taken into account and is not
determinative of the question of voluntariness. Here, after
considering the totality of the circumstances, we conclude that
several factors, when considered cumulatively, negate the
voluntariness of defendant's verbal and written consent.
First, as concluded under the first issue, defendant's
admission that there was marijuana on the premises was extracted
improperly without Miranda warnings, after entry to defendant s home

was gained without a warrant. Although we are not adopting a rule
which would invalidate consent in any situation following an
unlawful interrogation, we conclude the State has not met the
burden in this instance of demonstrating that defendant's consent
was not affected by the fact that he had made a highly
incriminating statement.
 Furthermore, Detective Bailey explicitly promised that if
defendant consented to the search, he would not arrest and
incarcerate the Rushtons. The court concluded that this did not
constitute an implied threat to incarcerate if consent was
withheld. However, after considering this statement in light of
the entire circumstances, we conclude the implication existed that
if defendant did not cooperate, incarceration would result, and
that this contributed to the coercive atmosphere in which
defendant's consent was received.
The statement made by Officer Bailey that the officers would
remain in the Rushton's home for several hours, if necessary, until
a warrant could be obtained raises particular concerns. When
Officer Bailey said, llIrll very frank, if you don't [consent],
be
we'll be sitting here for a number of hours, and we'll have to go
get a search warrant," the message was conveyed that the officers
would remain in the house, with defendant and his wife in custody,
until a search warrant was obtained. The District Court relied on
this Court's decision in State v Yoss (1965), 146 Mont. 508, 409 P.2d
.

452, to conclude that this statement was permissible. However, we
conclude that this statement was a misrepresentation of the law and
was coercive in nature.
In Yoss, the defendant had been arrested pursuant to a valid

warrant and was legally in custody. We held that neither the fact
that defendant was informed a search warrant could be obtained if
he refused to consent, nor the fact that he was under arrest at the
time consent was given, rendered the consent coerced. YOSS,
409

P.2d at 455.
Here, however, the officers had no right to imply that they
could sit in defendant's home for a number of hours while a warrant
was obtained. In this instance, there was no valid warrant
permitting the officers to be in defendantlshome. Defendant had
af fowed the officers to come into his home after they asked if they
could talk with him. However, they had no right to remain in his
home, absent a valid warrant, if defendant revoked that consent.
See, e.g., Uni~edStates v. Kly (6th c i r .
el 1990), 913 F.2d 261 (consent

terminated when defendant revokes previously given consent) . While
the officers may have been able to remain on defendant's property
during the time it took to obtain a warrant, it was a
misrepresentation to imply that they could remain in defendant's
home, keeping him and his wife in custody, while a warrant was
obtained.
Based on these circumstances, considered in theirtotality, we
hold that defendantlsconsent was obtained in a coercive manner and
was not given freely and voluntarily. Therefore, evidence obtained
during that search was seized in violation of the Fourth Amendment
to the United States Constitution and Article 11, Section 11, of
the Montana Constitution, and is inadmissible. The District Court
erred when it denied the motion to suppress the evidence seized
during the search of defendant's residence.
 The order of the District Court is reversed. Pursuant to the
plea agreement, the conviction is reversed and the case remanded
for further proceedings.

We concur:
 March 22, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:

Michael J. Shenvood
Attorney at Law
P. 0. Box 8142
Missoula, MT 59807

George H. Corn, County Attorney
Gerald D. Williams, Deputy Attorney
Ravalli County Courthouse, Box 5008
Hamilton, MT 59840

Hon. Joseph Mazurek, Attorney General
Kathey Seeley, Assistant
Justice Bldg.
Helena, MT 59620

ED SMITH
CLERK OF THE SUPREME COURT

BY: