State v. Loh

,·

No. 94-325
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

STATE OF MONTANA,
Plaintiff and Respondent,
v.

PENG Y. LOH, FI~)::D
Defendant and Appellant. APR 0 5 1996
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APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael H. Keedy, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Patrick D. Sherlock, Sherlock & Nardi, Kalispell,
Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Patricia J.
Jordan, Assistant Attorney General; Thomas J. Esch,
Flathead County Attorney, Ed Corrigan, Deputy
Flathead County Attorney, Kalispell, Montana

Submitted on Briefs: November 2, 1995
Decided: April 5, 1996
Filed:
Justice James C. Nelson delivered the Opinion of the Court.

Peng Y. Loh (Loh) appeals from her conviction of criminal

possession of dangerous drugs, a felony, and the Flathead County,

Eleventh Judicial District Court's denial of her motions to

suppress evidence seized from her home and to suppress her

incriminating statements. We affirm.

ISSUES

1. Did the District Court err in denying Loh's motions to

suppress in violation of Rule 2, Uniform District Court Rules?

2. Did the District Court err in denying Loh's motion to

suppress evidence found in plain view by fire fighters and police

officers during an emergency entry of Loh's home?

3. Did the District Court err in denying Loh's motion to

suppress her incriminating statements?

4. Did the District Court err in taking judicial notice of

testimony given during the suppression hearing?

BACKGROUND

On May 31, 1993, the Whitefish Police Department responded to

a report of a house fire at 530 1/2 Spokane Avenue, Whitefish,
Montana. Officers Denham, Cook, and Bergstrom arrived at the scene

at about 7:30 p.m. One of the individuals gathered near the house

told the officers that there were possibly two people inside the

house. Officer Denham kicked in the back door, but could not enter

because of thick black smoke. Officers Cook and Bergstrom kicked

in the front door. The smoke was too heavy to see above three to

four feet from the floor, so they crawled through the house on
their hands and knees. Officer Denham went around to the front

door and followed Officers Bergstrom and Cook.

Officer Denham crawled into the bedroom, did not see anyone,

but did see a "classical spaghetti jar with green leafy substance ll

that he suspected to be marijuana. He gave the jar to Officer

Bergstrom to take out to the patrol car. Officer Denham continued

into the bedroom where he saw a flat cardboard box with clear glass

jars containing the same leafy substance. He gave the box of jars

to Officer Bergstrom. As soon as Officer Denham exited out the

front door, the firemen arrived.

After the firemen took care of the smoke and flames from the

burning pan on the stove, Fire Chief Sipe told the officers that he

thought there was still "some more stuff in the bedroom." Officer

Denham and Fire Chief Sipe went back into the bedroom where they

found two more boxes with a green leafy substance spilling out onto

the floor. The boxes had been knocked over when the firemen had

gone through the house. Officer Denham put the boxes on the futon.

The officers then called the drug team.

While the officers waited for the drug team's arrival, Loh

came home from work. Officer Cook informed her that there had been

a fire in her house, but nothing had been destroyed. He then

advised Loh of her Miranda rights and told her that he had found

marijuana in her house. She replied "I know." Officer Cook

arrested Loh and took her to the Whitefish Police Department. When

Officers Voelker and Cook interviewed Loh, she admitted that she

knew of the marijuana and admitted that it was hers. Loh grew up

3
in Malaysia and moved to the United States eleven years prior to

her arrest. She had not yet perfected her citizen status.

After the drug team arrived, the officers thoroughly searched

the house, including the basement, cars, drawers, and Loh's bicycle

bag. Loh was charged with criminal possession of dangerous drugs,

a felony. She was arraigned on the charge, appeared before the

District Court, was advised of her rights, and entered a plea of

not guilty. The District Court set the case for further

proceedings. Loh moved to suppress evidence and to suppress her

confession. At the suppression hearing, Loh admitted that she knew

there was marijuana in the house. The State sought admittance of

only the evidence seized before the drug team arrived and thus

before the extensive search. The District Court denied Loh' s

motion.

At the beginning of the bench trial, the State requested that

the District Court take judicial notice of Loh's testimony from the

suppression hearing. Over Loh' s obj ection, the District Court

concluded that it would take judicial notice of facts it obtained

from presiding over the earlier proceeding. The District Court
found Loh guilty of criminal possession of dangerous drugs, a

felony, deferred imposition of sentence, and placed her on

probation.
DISCUSSION

1. Did the District Court err in denying Loh's motions to
suppress in violation of Rule 2, Uniform District Court Rules?

Loh argues that Rule 2 of the Uniform District Court Rules

requires the adverse party to file an answer brief to a motion

4
within ten days or the motion will be well taken, and that the

District Court erred by not ruling in Loh's favor when the State

filed its answer brief well after the ten day period had expired.

Loh also contends that by denying her motion, the District Court

set a prej udicial trend against her. The State counters that
failure to file a brief within ten days does not require a district

court to grant the motion and that the record does not support

Loh's allegation that the District Court was biased against her.

Our standard of review of discretionary trial court rulings in

criminal cases is whether the trial court abused its discretion.

State v. Sullivan (1994), 266 Mont. 313, 324, 880 P.2d 829, 836.

Rule 2 of the Uniform District Court Rules provides:

(a) Upon filing a motion or within five days
thereafter, the moving party shall file a brief. The
brief may be accompanied by appropriate supporting
documents. Within ten days thereafter the adverse party
shall file an answer brief which also may be accompanied
by appropriate supporting documents. Within ten days
thereafter, movant may file a reply brief or other
appropriate responsive documents.
(b) Failure to file briefs. Failure to file briefs
may subject the motion to summary rUling. Failure to
file a brief within five days by the moving party shall
be deemed an admission that the motion is without merit.
Failure to file an answer brief by the adverse party
within ten days shall be deemed an admission that the
motion is well taken. Reply briefs by movant are
optional, and failure to file will not subject a motion
to summary ruling.
We have interpreted this Rule as allowing the trial court
discretion to either grant or deny an unanswered motion. Maberry

v. Gueths (1989), 238 Mont. 304, 309, 777 P.2d 1285, 1289. In

Maberry, the adverse party did not file a response to a motion

within the ten days allowed under Rule 59 (c), M.R.Civ.P. The

5
moving party argued that Rule 2(b) of the Uniform District Court

Rules required that the motion be well taken. The district court

denied the motion even though the nonmoving party did not file its

answer brief within the allotted ten days. Maberry, 777 P.2d at

1288. In Maberry, we reasoned that under Rule 2 (b), failure to

file a brief "may" subject such a motion to summary ruling.

Therefore, while the adverse party1s failure to file a brief within

the time allowed may be viewed as an admission that the motion is

well-taken, the rule does not require a district court to grant the

unanswered motion. Accordingly, we held in Maberry that Rule 2(b)

does not remove the district court1s discretion to grant or deny an

unanswered motion as it sees fit. Maberry, 777 P.2d at 1289.

Similarly, in State v. Fertterer (1993), 260 Mont. 397, 399,

860 P.2d 151, 153, the defendants filed a motion to amend their

sentences. The state did not file an answer brief. The defendants

then filed a motion for summary ruling to which the state also

failed to respond. On the date of the hearing on the motions, the

state filed its objections. On appeal, the defendants claimed that

Rule 2(b) of the Uniform District Court Rules required that the

district court grant their motion for summary ruling because the

state did not file its response briefs within the allotted ten

days. We disagreed. Citing Maberry, we held that the district

court did not abuse its discretion in denying the defendant s I

summary ruling on their motion to amend sentences. Fertterer, 860

P.2d at 153.

6
 In the instant case, although the State failed to file its

brief within the allotted ten days, it was within the sound

discretion of the District Court to deny Loh's motion.
Furthermore, the record does not support Loh's contentions that the

District Court set a prejudicial trend against her by denying her

motion. Accordingly, we conclude that the District Court did not

abuse its discretion, and, thus, we affirm the trial court on this

issue.

2. Did the District Court err in denying Loh' s motion to
suppress evidence found in plain view by fire fighters and police
officers during an emergency entry of Loh's home?

Loh argues that the District Court erred in denying her motion

to suppress and that the search of her home violated her Fourth

Amendment rights. Loh concedes that the officers lawfully entered

her home under exigent circumstances, but she contends that the

evidence upon which she was convicted was discovered after it was

determined that no persons were in danger. She maintains that when

the officers discovered the evidence on which her conviction was

based, they were unlawfully in her home, without a search warrant.

The State claims that the record does not support Loh' s

argument. The State contends that in the course of searching for
persons in the house, the officers saw the evidence in plain view.
Moreover, the State notes that none of the evidence seized after
the drug team arrived and conducted a concededly unlawful

warrantless search was relied upon to convict Loh. The only

evidence used to convict Loh was that observed during the initial

lawful entry and search for persons. The District Court adopted

7
this view of the evidence. We will not overturn a district court's

findings of fact regarding suppression hearing evidence unless

those findings are clearly erroneous. State v. Kaluza (1993), 262

Mont. 360, 361, 865 P.2d 263, 264.

The Fourth Amendment provides:

The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be
seized.

Warrantless searches "are per se unreasonable under the Fourth

Amendment -- subject only to a few specifically established and

well-delineated exceptions." Katz v. United States (1967), 389

U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585. One of

these exceptions--the plain view doctrine--allows peace officers,

under certain circumstances, to seize evidence in plain view

without a warrant. State v. Sorenson (1979), 180 Mont. 269, 272,

590 P.2d 136, 139 (citing Coolidge v. New Hampshire (1971), 403

U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564).

As the United States Supreme Court recently described the

doctrine in Horton v. California (1990), 496 U.S. 128, 110 S.Ct.

2301, 110 L.Ed.2d 112,

[t] he "plain view" doctrine is often considered an
exception to the general rule that warrantless searches
are presumptively unreasonable, but this characterization
overlooks the important difference between searches and
seizures. If an article is already in plain view,
neither its observation nor its seizure would involve any
invasion of privacy. A seizure of the article, however,
would obviously invade the owner's possessory interest.
If "plain view" justifies an exception from an otherwise
applicable warrant requirement, therefore, it must be an

8
 exception that is addressed to the concerns that are
implicated by seizures rather than by searches.
[Citations omitted.]

Horton, 469 U.S. at 133-34.

"A search compromises the individual interest in privacy; a

seizure deprives the individual of dominion over his or her person

or property." Horton, 496 U.S. 133. The seizure of property in

plain view involves no invasion of privacy. Texas v. Brown (1983),

460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502. "[This] principle is

grounded on the recognition that when a police officer has observed

an object in 'plain view,' the owner's remaining interests in the

object are merely those of possession and ownership." Texas, 460

U.S. at 739.

In Coolidge, the United States Supreme Court set forth the

criteria that generally guides plain view seizures. The Court held

that the police violated the Fourth Amendment when they seized two

automobiles parked in plain view in the defendant's driveway and

that, therefore, evidence of gunpowder obtained from vacuuming the

inside of the cars was inadmissible. A search sought to be upheld

under the plain view doctrine begins with the premise that the

police officer had a prior justification for an intrusion, in the

course of which he came inadvertently across a piece of evidence

incriminating the accused. Coolidge, 403 U.S. at 465-66. The

Court placed two limitations on the plain view doctrine, however:

first, "plain view alone is never enough to justify the warrantless

seizure of evidence," and second, "the discovery of evidence in

plain view must be inadvertent." Coolidge, 403 U.S. at 468-69.

9
For example, II [w]here the initial intrusion that brings the police

within plain view of such an article is supported, not by a

warrant, but by one of the recognized exceptions to the warrant

requirement, the seizure is also legitimate. II Coolidge, 403 U.S.

at 465.

The Court clarified plain view in Texas, noting that the

doctrine merely reflects the application of the Fourth Amendment's

requirement of reasonableness to the law governing seizures of

property. Therefore, the question of whether the property in plain

view may be seized turns on the legality of the intrusion that

enables the officer to see and physically seize the property in

question. Texas, 460 U.S. at 737.

In a subsequent case, Horton, the United States Supreme Court

further clarified and refined the doctrine, noting that the second

limitation the Court had placed on plain view in Coolidge--

inadvertency--was not supported by the majority of the Court and is

not binding precedent. Horton, 496 U.S. at 137. The Horton Court

stated that it was IIsatisfied that the absence of inadvertence was

not essential to the Court's rejection of the State's 'plain-view'

argument in Coolidge. II Horton, 496 U.S. at 137. In Horton, the

Court set forth the predicate for application of the plain view

doctrine and delineated the two conditions for its employment, as

follows:
It is an essential predicate to any valid
warrantless seizure of incriminating evidence that the
officer did not violate the Fourth Amendment in arriving
at the place from which the evidence could be plainly
viewed. There are, moreover, two additional conditions
that must be satisfied to justify the warrantless

10
 seizure. First, not only must the item be in plain view;
its incriminating character must also be "immediately
apparent." . Second, not only must the officer be
lawfully located in a place from which the object can be
plainly seen, but he or she must also have a lawful right
of access to the object itself. [Citations omitted.]

Horton, 496 U.S. at 136-37.

The Court chose not to continue the Coolidge inadvertency

requirement because it was a standard that depended on the

subjective state of mind of the officer rather than an objective

standard of conduct. Horton, 496 U.S. at 138. Moreover, in

refuting the need for inadvertency, the Court observed that the

seizure of an object in plain view does not involve an intrusion on

privacy. "If the interest in privacy has been invaded, the

violation must have occurred before the object came into plain view

and there is no need for an inadvertence limitation on seizures to

condemn it." Horton, 496 U.S. at 141.

Following this same rationale, the Ninth Circuit Court of

Appeals recently adopted the Horton requirements in a case

involving a warrantless, plain view seizure. See G & G Jewelry,

Inc. v. City of Oakland (9th Cir. 1993), 989 F.2d 1093. In G & G

Jewelry, the court noted that in Horton, the United States Supreme
Court had disposed of the inadvertence requirement of the plain

vlew exception. G & G Jewelry, 989 F.2d at 1099.

Moreover, the Circuit Court also analyzed the Supreme Court's

reference at footnote 7 of the Horton decision to the Coolidge

"exigent circumstances" requirement. Noting the Coolidge mandate

that "the officer [must not only] be lawfully located in a place

from which the object can be plainly seen, but . . . must also have

11
a lawful right of access to the object itself," the Horton Court

observed that "[t] his is simply a corollary of the familiar

principle that no amount of probable cause can justify a

warrantless search or seizure absent 'exigent circumstances.'"

Horton, 496 U.S. at 137. The Ninth Circuit explained the

reference, noting that in Texas, the Court had made it clear that

there is no additional requirement of "exigent circumstances" for

seizure of property that is in plain view, provided that the

officer's presence on the property is lawful and the incriminating

character of the evidence is immediately apparent.

Footnote 7 in Horton is best understood as emphasizing
that even though contraband plainly can be seen and
identified from outside the premises, a warrantless entry
into those premises to seize the contraband would not be
justified absent exigent circumstances.

G & G Jewelry, 989 F.2d at 1101. Thus, while exigent circumstances

may serve as the predicate for the officer's initial lawful entry

upon the premises, they are not required for seizure of contraband

in plain view if the officer is already legally on the premises.

Montana case law has varied in its application of the plain

view doctrine i however, the maj ori ty of our cases rely on the

Coolidge requirements. Montana first adopted the plain view

doctrine in State v. Gallagher (1973), 162 Mont. 155, 509 P.2d 852.

In Gallagher, an officer engaged in a search for a prowler, saw a

blood-stained shirt, and what appeared to be blood-stained pants

and socks belonging to the defendant. We held that the evidence

should have been admitted as evidence seized under the plain view

doctrine. Gallagher, 509 P.2d at 858. In so holding, we adopted

12
the conditions set forth in Coolidge: "[w] here there is prior

justification for the police to search an area, and in searching

the area, they inadvertently find incriminating evidence which they

had no reason to anticipate, they may lawfully seize that

incriminating evidence."

In State v. Lane (1977), 175 Mont. 225, 573 P.2d 198, we

reiterated the predicate to and the conditions of the plain view

doctrine as set forth in Coolidge. Noting that the doctrine is not

without limits, we stated that an officer is not justified in

making a warrantless seizure of evidence absent a showing of

exigent circumstances rendering immediate seizure imperative.

Lane, 573 P.2d at 201. In Lane, the officer sold his mobile home

to the defendant and returned to the home looking for a pair of

hip-waders that he had left behind. As he stood at the door to the

home, the officer looked in the window and saw marijuana plants.

The officer entered the home, arrested the defendant, and seized

the marijuana plants. The officer did not have prior justification

to enter the defendant's home; there were no exigent circumstances

justifying a warrantless entry. We held that the plain view
doctrine does not extend to pre-intrusion observation of evidence

within a constitutionally protected area. Lane, 573 P.2d at 202.
In State v. Godsey (1982), 202 Mont. 100, 106, 656 P.2d 811,

814, we held that an officer investigating a traffic complaint did

not violate the Fourth Amendment when he seized a bag of marijuana

he saw in the front seat of the car. This Court reasoned that for

13
the evidence to fall within the plain view doctrine, it must be

demonstrated that:

(1) the police officer had a prior justification for the
intrusion; (2) that he then inadvertently came across the
evidence incriminating the accused; and (3) that exigent
circumstances existed that rendered immediate seizure
imperative.

Godsey, 656 P.2d at 813. Curiously, in the context of this three-

part test, Godsey placed the exigent circumstances requirement, not

as justification for the warrantless entry, but, rather, as the

predicate for a warrantless seizure.

In State v. Osteen (1985), 216 Mont. 258, 700 P.2d 188, we

returned to the two-part test for application of the plain view

doctrine: the officers must have prior justification for the

intrusion and the incriminating evidence must be discovered

inadvertently in the course of the justified intrusion. Osteen,

700 P.2d at 191 (citing Sorenson, 590 P.2d at 139 (requiring prior

justification and inadvertence)). In Osteen, we held that because

the officers failed to obtain a warrant and the state failed to

demonstrate any other valid basis for entry into the defendant's

home, the district court did not err in suppressing evidence seized

after the officer's entered the defendant's home without a warrant.

Osteen, 700 P.2d at 192.
In State v. Hembd (1989), 235 Mont. 361, 767 P.2d 864, the

state appealed the district court's order granting defendant's

motion to suppress evidence seized from the trunk of his vehicle

pursuant to a search warrant. Hembd, 767 P. 2d at 865. The

defendant contended that the search warrant did not permit the

14
 ·
I

officers to search any bag or container in the trunk other than the

bag mentioned in the affidavit. In Hembd, we stated that under the

plain view doctrine, four requirements must be met to seize items

which are not described in a warrant; 1) there must be a prior

justification for the intrusion into the protected area; 2) the

articles must be in plain view; 3) the incriminating nature of the

items must be apparent; and 4) the discovery of the articles must

be inadvertent. Hembd, 767 P.2d at 869; see also State v. O'Neill

(1984), 208 Mont. 386, 679 P.2d 760.

In State v. Williams (1994), 268 Mont. 428, 887 P.2d 1171,

this Court acknowledged that the Fourth Amendment prohibition

against warrantless searches and seizures is not violated when

circumstances fall within the plain view doctrine. In Williams,

this Court noted that the elements of the plain view doctrine were

first enunciated in Coolidge and we proceeded to set forth the two-

part Coolidge test of prior justification and inadvertence.

However, as we did in Godsey, we stated that II [e]xigent

circumstances are necessary to justify immediate seizure of

evidence in plain view," but that the requirement did not apply in

Williams because the deputies obtained a warrant before seizing the
evidence. Williams, 887 P.2d at 1174.
Most recently, in State v. Stubbs (1995), 270 Mont. 364, 372,

892 P. 2d 547, 552, we stated that a valid plain view seizure

requires 1) that the officer have a prior justification for the

intrusion; 2) that the officer inadvertently discover a piece of

15
 '.

evidence i and 3) that the incriminating character of the item

seized must be apparent.

Given the development of plain view in the federal courts and

our own somewhat inconsistent articulation of the elements of the

doctrine t we conclude that it is appropriate that we adopt, for

this and future cases, the Supreme Court's enunciation of the

doctrine as set forth in Horton. We believe this to be the better

approach to plain view inasmuch as the Court's analysis in Horton

follows the underlying theory of the plain view doctrine that a

seizure does not infringe on the defendant' s privacy when the

officer is already lawfully on the premises and observes evidence

in plain view. Moreover t once the Fourth Amendment has been

satisfied as regards the officer's initial entry and right of

access (because the search is either based upon a warrant or

because a warrantless search is circumscribed by the exigencies

which justify its initiation) t no additional interest is served by

further requiring that the discovery of evidence be inadvertent.

Horton 496 U.S. at 139-40. Furthermore t while exigent

circumstances might justify the initial entry, once the officer is
lawfully on the premises t there is no additional requirement that
exigent circumstances exist before the property of an incriminating
character in plain view may be seized. G & G JewelrYt 989 F.2d at
1100-01. AccordinglYt to the extent that our prior case law holds

that the doctrine of plain view includes a requirement that

evidence be inadvertently discovered and/or that the immediate

16
seizure of evidence in plain view requires exigent circumstances I

such cases are overruled.

The essential predicate to any valid warrantless seizure of

incriminating evidence is that the officer must be lawfully at the

place from which he could plainly view the evidence. In other

words I his initial entry onto or intrusion into the place where he

views the evidence must not have been in violation of the Fourth

Amendment or in violation of Article III section 11 of Montana's

Constitution. In addition l there are two conditions that must be

satisfied to justify the warrantless seizure under the plain view

doctrine. First l the item must be in plain view and its

incriminating character be II immediately apparent. II Second l not

only must the officer be lawfully located in a place from which the

object can be plainly seen but he or she must also have a lawful

right of access to the object itself. See Horton l 496 U.S. at 136-

37.

Applying this articulation of the plain view doctrine to the

case before uS I we first inquire whether the officers were lawfully

in Loh's home when they seized the incriminating evidence which was

ultimately entered against her at trial. Under similar facts l the

Washington Supreme Court has held that fire fighters lawfully in a

defendant's home when they observed incriminating evidence l

properly seized that evidence. State v. Bell (Wash. 1987) I 737

P.2d 254. In Belli fire fighters checked the attic directly over

the burned area in a house to make sure there were no smoldering

embers. Belli 737 P.2d at 256. While in the attic i the fire

17
fighters noticed what they thought were marijuana plants. One of

the fire fighters then summoned the fire marshall. The fire

marshall left the house to attend to other duties but returned

after 15 to 20 minutes and seized the plants. The Washington

Supreme Court noted that a burning building creates an exigency

that justifies a warrantless entry by fire officials. Bell, 737

P.2d at 257 (citing Michigan v. Clifford (1984), 464 U.S. 287, 293,

104 S. Ct. 641, 646 - 4 7, 78 L. Ed . 2 d 477, 483 - 84) .

A burning building clearly presents an exigency of
sufficient proportions to render a warrantless entry
IIreasonable. 1I Indeed, it would defy reason to suppose
that firemen must secure a warrant or consent before
entering a burning structure to put out the blaze. And
once in a building for this purpose, firefighters may
seize evidence of arson that is in plain view.

Michigan v. Tyler (1978), 436 U.S. 499, 509, 98 S.Ct. 1942, 1950,

56 L.Ed.2d 486, 498. Moreover, officials do not need a warrant to

remain in a building for a reasonable time to investigate the cause

of the blaze after it has been extinguished. Clifford, 464 U.S. at

293.

We conclude that here, the officers were lawfully in Loh1s

home when they seized the incriminating evidence. In this case,

the exigent circumstances of an apparent fire and the possibility

that individuals were still in the house justified the officers l

entry into Loh1s home without a warrant. Accordingly, the

lIessential predicate II that the officers l
intrusion into the place

where they viewed the evidence not violate the Fourth Amendment or

Article II, section 11 of Montana1s Constitution was fulfilled.

Next, the record reflects that the jars of marijuana and the

18
·
,

open boxes of marijuana were in Officer Denham's plain view as he

searched the bedroom for the occupants of the house. Moreover, the

incriminating character of green leafy substance was "immediately

apparent" as Officer Denham testified that he recognized the leaves

as marijuana leaves. Finally, not only were the officers lawfully

located in the bedroom of Loh' s horne where they observed the

marijuana in plain view, but they also had a lawful right of access

to what was obviously contraband, the possession of which was

prohibited under Montana law.

Under our application of the Horton test as adopted in this

case, we conclude that the seizure of the jars and boxes of

marijuana met the initial predicate for the plain view doctrine as

well as the two conditions for application of the doctrine.

Accordingly, on the basis of the factual record established at the

suppression hearing, we affirm the District Court's denial of Loh's

motion to suppress.

3. Did the District Court err in denying Loh's motion to
suppress her incriminating statements?

Loh argues that her Fifth Amendment privilege against self-

incrimination and her Fourteenth Amendment right to due process of

law were violated when the District Court admitted her allegedly

involuntary and coerced statements. The State contends that

following a hearing pursuant to § 46-13-301, MCA, the District

Court correctly denied Loh's motion to suppress after finding that

Loh was highly intelligent, understood her rights, and voluntarily

made the statements admitting that the marijuana was hers.

19
 '.

We review a district court's findings of fact on a motion to

suppress an admission or a confession to determine whether the

findings are clearly erroneous. State v. Hermes (Mont. 1995), 904

P.2d 587, 588-89, 52 St.Rep. 1055, 1056 (citing Kaluza, 865 P.2d at

264) . A finding of fact is clearly erroneous if it is not

supported by substantial evidence, if the district court

misapprehended the effect of the evidence, or if this Court has a

definite or firm conviction that the district court committed a

mistake. Hermes, 904 P.2d at 589 (citing State v. Bower (1992),

254 Mont. 1, 7, 833 P.2d 1106, 1110).

Pursuant to § 46-13-301, MCA, a defendant may move to suppress

a confession or admission on the ground that it was given

involuntarily. The prosecution has the burden to prove by a

preponderance of ':he evidence that the confession or admission was

voluntary. Section 46-13-301, MCA.

The voluntariness of a confession or admission is a factual

question which must take into account the totality of the

circumstances. State v. Mayes (1992), 251 Mont. 358, 376, 825 P.2d

1196, 1208 (citing State v. Allies (1979), 186 Mont. 99, 606 P.2d

1043) . The totality of the circumstances includes the following

factors, among others: the defendant's age and level of education;

the interrogation technique used by the police; whether the

defendant was advised of his or her Miranda rights; the defendant's

prior experience with the criminal justice system and police

interrogation; the defendant's background and experience; and the

defendant's demeanor, coherence, articulateness, and capacity to

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.
.

In State v. Beach (1985), 217 Mont. 132, 151, 705 P.2d 94,

107, we held that the totality of the circumstances supported the

district court's finding that the state proved the statements made

by the defendant were voluntary. In Beach, we noted that the

presence of timely and complete Miranda warnings supported

voluntariness. Beach, 705 P.2d at 106. Moreover, there was no

evidence that the defendant possessed less than average

intelligence or that he was incapable of understanding the Miranda

warnings. The officers that interrogated the defendant testified

that he appeared calm and coherenti the questioning sessions were

not long, arduous, or designed to take advantage of the defendant's

situation or fatiguei and the officers made no threats of harm or

promises. Beach, 705 P.2d at 106.

In the instant case, the totality of the circumstances

supports the District Court's finding that the State met its burden

of showing by a preponderance of the evidence that Loh's

incriminating statements were voluntary. Loh was timely advised of

her Miranda rights when she arrived at her home. Officer Voelker

testified that Loh was again advised of her Miranda rights at the

police station. The officers testified that Loh was relaxed, did
not appear to have trouble understanding English, and appeared to

understand her rights. The District Court found that Loh was "one

of the most intelligent, insightful and articulate witnesses to

testify in [his] court." Loh testified that the officers were

friendly and did not outwardly use words to coerce her, (although

she also stated that they did mislead her by saying that they had

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.• ..

a search warrant and would tear the house apart if she did not tell

them what was going on) Officer Voelker denied threatening Loh

with getting a search warrant or telling her he had a search

warrant. In addition, the questioning sessions were not long,

arduous I or designed to take advantage of Loh' s situation or

fatigue.

While we have repeatedly held that lying to a defendant or

misleading the defendant is not acceptable, (see Grey, 907 P.2d at

955), the totality of the circumstances in this case, supports the

finding that Loh voluntarily stated that she knew that she had

marijuana in her house. Accordingly, we hold that the District

Court's findings were not clearly erroneous and that its denial of

Loh's motion to suppress her incriminating statements must be

affirmed.

4. Did the District Court err in taking judicial notice of
testimony given during the suppression hearing?

Loh contends that the District Court erred in taking judicial

notice of testimony from the suppression hearing. The State argues

however, that it presented its case-in-chief at the suppression

hearing where the defendant was represented by counsel and where
the witnesses were under oath and were subject to cross-
examination. The same judge presided over the suppression hearing

and the bench trial. Thus, the State claims that the District

Court clearly had the discretion to take judicial notice of facts

established at a hearing over which it presided, heard testimony,

and heard objections.

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.
,
. . ..

The record in this case reflects that the Chief of the

Whitefish Fire Department, Dave Sipe, Officers Cook, Denham,

Meehan, and Voelker, all testified at the suppression hearing and

the following evidence was offered and received in that proceeding:

the "classical" pasta jar, a box of jars, two empty boxes, the

marijuana found in the jars and boxes, the lab report, and two bags

of marijuana. Before the beginning of the trial, the State

requested the court to take judicial notice of the testimony

presented at the suppression hearing. Specifically, the prosecutor

stated:

I don't see any reason to bring in the firemen to testify
about the nature of their search of the house and were
subject to cross-examination about finding these boxes in
plain view. These items have been introduced into
evidence and it seems to me to be redundant and a waste
of the Court's time to have to go through those
procedural steps again.

Loh objected, stating

Yes, Your Honor, we would object to that at this time.
The witnesses are here and my client does have a right to
a trial. We did have a suppression hearing. Some
evidence was brought out, some evidence wasn't brought
out, and we will not stipulate to the fact that that
evidence may be used and would object that it be used and
would request that the Court only consider evidence
presented from the witness stand under oath at this time;
thank you.
The trial court, on the basis of Rule 201, ruled that

in light of the Defendant's choice to waive a jury trial
and have the case submitted to the Court sitting without
a jury, I think the point is well taken. It would be not
only redundant but entirely wasteful. I think the facts
that you have asked me to take -- of which you have asked
me to take judicial notice are of a type contemplated by
Rule 201 and I'll grant your motion.

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 ·.
. "
'

Thereafter, the State called Officers Denham, Voelker, and

Meehan as witnesses. In summary, those witnesses testified that:

during their search, they came across the jar of marijuana, a

cardboard box full of jars of marijuana, and two boxes that had

marijuana spilling out of them and that Loh said she was aware of

the marijuana in her house and that she said she had grown it for

their own use. Those witnesses were subject to cross examination.

The defendant called Todd Dennison, a probation parole officer. At

trial, the court received all of the evidence which had been

previously received at the suppression hearing.

On the basis of the record before us, and irrespective of the

trial court's taking judicial notice of the testimony in the

suppression hearing, we conclude that the State presented

sufficient evidence at trial on which the fact finder could

conclude beyond a reasonable doubt that Loh was guilty of the

offenses charged. What is apparent from the record is that if the

court was without authority to take judicial notice of the evidence

at the suppression hearing for purposes of proof at trial, the

error was harmless at most.
We are unable to conclude that any substantial right of Loh
was violated, and her trial objection, which was only very general
in nature, does not specify what authority would preclude the trial

court from taking judicial notice of the suppression evidence or

what rule, statute, or constitutional provision might be violated

by the court's decision in that regard. See State v. Weeks (1995),

270 Mont. 63, 85, 891 P.2d 477, 490-91, (specific objections must

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be made to evidence deemed inappropriate; broad general objections

are not sufficient). Moreover, at the conclusion of the trial, Loh

did not raise any further objection as to the sufficiency of the

evidence offered at trial.

Accordingly, we hold that there was sufficient evidence

offered at trial to sustain Loh's conviction, and we decline to

address the propriety of the trial court's taking judicial notice

at trial of the evidence and testimony from the suppression

hearing. This opinion should not be read as either approving or

disapproving of that procedure.

Affirmed.

We

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