No
No. 97-606
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 293
STATE OF MONTANA,
Plaintiff and Respondent,
v.
KEVIN ALLEN,
Defendant and Appellant
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Edward P. McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant
Terry Wallace, Attorney at Law, Missoula, Montana
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For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Mark W. Mattioli,
Assistant Attorney General; Helena, Montana
Robert L. "Dusty" Deschamps III, Missoula County Attorney;
Missoula, Montana
Submitted on Briefs: May 28, 1998
Decided: December 3, 1998
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
¶1. The defendant, Kevin Allen, appealed to the District Court of the Fourth Judicial
District in Missoula County from a conviction in Missoula County Justice Court for
driving under the influence of alcohol and improper use of dealer plates. Allen made
a motion to suppress evidence and the District Court denied it. Allen then pled guilty
and reserved his right to appeal the denial of his motion to suppress. Following
consideration of that appeal, we affirm the order of the District Court.
¶2. The sole issue on appeal is whether the District Court erred when it denied
Allen's motion to suppress evidence.
FACTUAL BACKGROUND
¶3. The parties have stipulated to the following facts:
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¶4. On December 16, 1997, Highway Patrol Officer Michael J. Burman initiated a
traffic stop of Kevin Allen at approximately 2:45 p.m. Burman based the stop on his
observation that Allen's vehicle did not have a front license plate.
¶5. He approached Allen's vehicle and explained the reason for the stop. When
Burman asked Allen if he knew that there was no front license plate, Allen showed
Burman a demonstrator plate from a used car dealership in Billings which had been
inside his car. Burman explained to Allen that the plate had to be displayed and then
ran a check on Allen's driver's license. He became suspicious that Allen was
improperly using the demonstration plate and testified that at that time he intended
to cite defendant for improper use of a dealer plate pursuant to § 61-4-103(4), MCA.
¶6. Burman returned to Allen's car and asked him to exit the vehicle to speak with
Burman. As he explained the charges which were being made against Allen, Burman
detected the odor of alcohol and asked Allen whether he had been drinking. Allen
admitted to having two beers. Burman then asked Allen to perform roadside sobriety
tests, to which Allen responded that he would like to consult with his lawyer. Burman
told him that at that time he did not have the right to call his lawyer. Allen
performed the tests, but Burman concluded that he had failed those tests, and placed
Allen under arrest for DUI. After he was transported to the police department office,
Allen provided a breath sample that measured his blood alcohol content at 0.13. The
time was 3:50 p.m. He was then advised of his Miranda rights for the first time.
¶7. In Justice Court, Allen moved to suppress any statements he made prior to his
arrest. He contended that he was in custody during Burman's roadside investigation,
(1)
and that he was therefore entitled to a Miranda warning. The motion was denied
and Allen was convicted by a jury of DUI and improper use of dealer plates. On
appeal to the District Court, he made the same motion to suppress, which was also
denied. Allen eventually pled guilty to the DUI charge and reserved his right to
appeal the denial of his motion to suppress; the improper use of dealer plates charge
was dismissed.
DISCUSSION
¶8. Did the District Court err when it denied Allen's motion to suppress evidence?
¶9. We review a district court's denial of a motion to suppress to determine whether
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the court's interpretation and application of the law is correct. See State v. Scheetz
(Mont. 1997), 950 P.2d 722, 724, 54 St. Rep. 1286, 1287; State v. Graham (1995), 271
Mont. 510, 512, 898 P.2d 1206, 1207-08.
¶10. Pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694, a defendant is entitled to be informed of his right to remain silent and of his
right to have an attorney present before an officer initiates a custodial interrogation.
Allen contends that much of the State's evidence should be suppressed because he
was not given a Miranda warning prior to Burman's investigation of whether he was
driving under the influence of alcohol. The State, on the other hand, contends that
Allen was not entitled to a Miranda warning prior to his arrest for DUI, and that any
statements he made prior to that arrest, including those made during Burman's
roadside investigation, were voluntary and not subject to constitutional protection.
¶11. The United States Supreme Court held in Berkemer v. McCarty (1983), 468 U.S.
420, 104 S. Ct. 3138, 82 L. Ed. 2d 317, that roadside questioning of a motorist
detained pursuant to a routine traffic stop does not constitute a custodial
interrogation subject to the procedural safeguards of Miranda. It distinguished a
roadside detention from the kind of custodial situation with which Miranda was
concerned, and stated that there is less of a danger that a motorist "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 (quoting Miranda, 384 U.S. at 467, 86 S. Ct. at
1624, 16 L. Ed. 2d at 719). The Court ultimately concluded that most roadside
(2)
detentions are analogous to "Terry stops," in which an officer may briefly question
a detainee to confirm or dispel his suspicions, but where the detainee is not obligated
to respond, and that temporarily detained motorists are not in custody for purposes
of Miranda. See Berkemer, 468 U.S. at 439-40, 104 S. Ct. at 3150, 82 L. Ed. 2d at 334-
35.
¶12. In the recent decision of Hulse v. Department of Justice, 1998 MT 108, 961 P.2d
75, 55 St. Rep. 415, we also recognized the similarity of roadside administration of
field sobriety tests to a Terry investigative stop. We held that an officer need only
have a particularized suspicion, as opposed to probable cause, to conduct field
sobriety tests, and gave the following example of facts which would give rise to a
particularized suspicion:
[I]f an officer stops a driver for a broken taillight and upon approaching this driver the
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officer does observe signs of intoxication, e.g., the driver's breath smells of alcohol . . . the
officer would have a separate particularized suspicion that the individual was driving
under the influence of alcohol, and, therefore, may administer field sobriety tests. If the
driver should fail the field sobriety tests, the officer would then have probable cause to
arrest this individual for driving under the influence of alcohol.
Hulse, ¶ 40. The facts of this case present a direct application of our example in Hulse.
Based on the absence of an observable plate, the officer was justified in making his stop.
Based on the odor of alcohol detected after the stop, he was justified in further
investigation, including brief questioning and field sobriety tests.
¶13. Allen argues that based on our decision in State v. Ellinger (1986), 223 Mont.
349, 355, 725 P.2d 1201, 1204, an interrogation is custodial if the person is not free to
leave. See also State v. Staat (1991), 251 Mont. 1, 6-7, 822 P.2d 643, 646. He contends
that because Burman had decided to charge Allen for improper use of a dealer plate,
and because Allen was in fact not free to leave the scene, the officer's questions
occurred while Allen was in custody and should have been preceded by a Miranda
warning. The Court in Berkemer rejected this same argument, and so do we. See
Berkemer, 468 U.S. at 436-37, 104 S. Ct. at 3148-49, 82 L. Ed. 2d at 332-33. Allen's
detention cannot be distinguished from prior decisions involving traffic stops simply
because in this case the officer had made a decision to charge Allen with a license
plate violation. See City of Billings v. Skurdal (1986), 224 Mont. 84, 89, 730 P.2d 371,
373-74. The stop was still public, routine, and temporary in nature. Those critical
facts distinguish it from "custodial" interrogations.
¶14. Based on the analyses and holdings in Berkemer and Skurdal, our own
discussion of field sobriety tests in Hulse, and the facts of this case, we conclude that
Allen was not entitled to a Miranda warning following his traffic stop and prior to his
arrest for driving under the influence of alcohol. We affirm the District Court's
denial of his motion to suppress.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ J. A. TURNAGE
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/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ JAMES C. NELSON
1. 1Miranda v. Arizona (1966), 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
2. 2Terry v. Ohio (1968), 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
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