97-079
No. 97-079
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 114
STATE OF MONTANA,
Plaintiff and Respondent,
v.
BRYAN
STEINMETZ,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert W. Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Brad Arndorfer, Arndorfer Law Firm, Billings, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Tammy K. Plubell,
Assistant Attorney General, Helena, Montana; Rick Helm, Deputy
Yellowstone County Attorney,Billings, Montana
Submitted on Briefs: December 4, 1997
Decided: May 5, 1998
Filed:
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__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Defendant Bryan Steinmetz (Steinmetz), after pleading guilty to the
charge of driving under the influence of alcohol in violation of § 61-8-401,
MCA, appeals from the Findings of Fact, Conclusions of Law and Order of the
Thirteenth Judicial District Court, Yellowstone County, denying his motion
to suppress evidence of his field sobriety test results. We affirm in part and
remand for further proceedings consistent with this Opinion.
¶2 The sole issue raised on appeal is whether the District Court properly
denied Steinmetz's motion to suppress evidence of his field sobriety tests the
State administered at the investigative stop and on videotape at the detention
facility subsequent to Steinmetz's arrest.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On February 13, 1996, at approximately 1:50 a.m., Deputy Bill
Michaelis of the Yellowstone County Sheriff's Department was on duty and
observed Steinmetz's vehicle traveling with an inoperable left, rear taillight.
Deputy Michaelis initiated a traffic stop, approached Steinmetz, informed him
of the reason for the stop, and asked him to produce his driver's license,
registration and proof of insurance. Deputy Michaelis testified that he initially
intended to issue Steinmetz a warning, but upon further observation, he asked
Steinmetz to step out of his vehicle to perform a series of field sobriety tests
including the Horizontal Gaze Nystagmus (HGN), walk-and-turn, and
recitation of the alphabet. After Steinmetz performed the field sobriety tests,
Deputy Michaelis arrested him for driving under the influence of alcohol
(DUI) in violation of § 61-8-401, MCA, and transported him to the
Yellowstone County Detention Facility in Billings, Montana.
¶4 Once at the detention facility, Deputy Michaelis videotaped the
following investigative process. Deputy Michaelis began by reading
Montana's Implied Consent Law to Steinmetz who thereafter refused to submit
to a breath test. Subsequently, Deputy Michaelis initiated field sobriety testing
with the administration of the HGN, walk-and-turn, one-legged stand, and
alphabet recitation. Upon completion of the field sobriety tests, Deputy
Michaelis read Steinmetz his Miranda rights to which Steinmetz responded
affirmatively that he understood his rights and he indicated that he would talk
to Deputy Michaelis without his attorney present. After Steinmetz
cooperatively answered all of Deputy Michaelis's questions, Deputy Michaelis
suspended Steinmetz's driver's license and issued him a 72-hour driving
permit. In doing so, Deputy Michaelis explained the purpose of the temporary
driving permit and made sure that Steinmetz had a ride home.
¶5 On February 23, 1996, Steinmetz pleaded not guilty to the charges of
DUI brought against him in Justice Court. On April 17, 1996, Steinmetz filed
a motion to suppress evidence of his field sobriety test results arguing that
Deputy Michaelis coerced him into performing the field sobriety tests and that
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his recitation of the alphabet and counting during the field sobriety tests was
testimonial and violated his right against self-incrimination. After receiving
the State's brief in opposition and conducting a hearing, the Justice Court
denied Steinmetz's motion to suppress on June 18, 1996. On July 11, 1996,
a jury convicted Steinmetz of DUI.
¶6 On July 16, 1996, Steinmetz filed a notice of appeal and requested a
trial de novo in the Thirteenth Judicial District Court, Yellowstone County.
Thereafter, on November 22, 1996, he renewed his motion to suppress and
submitted a brief in support of his motion. The State again filed a brief in
opposition on December 5, 1996, and on December 12, 1996, the District
Court conducted a hearing on the motion. On December 16, 1996, the District
Court entered Findings of Fact, Conclusions of Law and an Order denying
Steinmetz's motion to suppress evidence of his field sobriety test results. In
denying Steinmetz's motion, the court concluded that Steinmetz was not
entitled to be informed that he could refuse to perform field sobriety tests; that
field sobriety tests are not searches protected by the federal or Montana
constitutions; and that neither counting during the walk-and-turn test nor
reciting the alphabet is testimonial in nature, and, thus, is not protected by the
Fifth Amendment to the United States Constitution or by the Montana
Constitution.
¶7 Subsequently, on December 20, 1996, Steinmetz changed his plea to
guilty and the District Court sentenced him to ten days in the Yellowstone
County Detention Facility, with nine days suspended based on certain
conditions. However, the District Court stayed execution of this sentence
pending appeal. Steinmetz appeals from the District Court's denial of his
motion to suppress and from his judgment and sentence.
DISCUSSION
¶8 On appeal, Steinmetz argues that the District Court erred when it denied
his motion to suppress. However, he explains that he is not appealing the
District Court's conclusion that counting during the walk-and-turn test and
recitation of the alphabet are not testimonial in nature, and, thus, are not
protected by the Fifth Amendment to the United States Constitution or by the
Montana Constitution. Rather, relying on State v. Nagel (Or. 1994), 880 P.2d
451 and State v. Maddux (Or.App. 1996), 925 P.2d 124, Steinmetz asserts that
field sobriety tests do constitute a search protected by the Montana and federal
constitutions. In this regard, he suggests that we should clarify our decision
in State v. Purdie (1984), 209 Mont. 352, 680 P.2d 576, to explain that the
issue in Purdie did not concern whether field sobriety tests constitute a search,
but, rather, whether there must be an exception to the warrant requirement,
such as consent. In this regard, Steinmetz maintains that he was coerced into
performing field sobriety tests during his initial stop and at the detention
facility due to both Deputy Michaelis's failure to inform him of his right to
refuse and his "demands" that Steinmetz perform the tests.
¶9 The State responds that under Purdie the District Court correctly
concluded that field sobriety tests do not constitute a search protected by the
Montana and United States Constitutions. In the alternative, the State argues
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that if this Court overrules Purdie, as Steinmetz suggests, we should adopt
particularized suspicion, not probable cause, as the appropriate standard for
permissible administration of field sobriety tests, as other jurisdictions have
done including the Arizona Supreme Court in State v. Superior Court (Ariz.
1986), 718 P.2d 171. Further, the State asserts that Deputy Michaelis did not
coerce Steinmetz into performing field sobriety tests either during the
investigative stop or at the detention facility. Consequently, the State contends
that we should affirm the District Court's denial of Steinmetz's motion to
suppress evidence of his field sobriety test results.
¶10 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. Widenhofer (Mont.
1997), 950 P.2d 1383, 1386, 54 St.Rep. 1438, 1440 (citations omitted).
Further, we will uphold the decision of a district court, if correct, regardless
of the court's reasoning for its decision. Hagan v. State (1994), 265 Mont. 31,
35, 873 P.2d 1385, 1387 (citations omitted). In the case at bar, Steinmetz does
not argue that the District Court's findings of fact are clearly erroneous.
Rather, Steinmetz argues that the District Court incorrectly applied its findings
of fact as a matter of law. After this appeal was submitted on briefs, we
decided the case of Hulse v. State, 1998 MT 108. Because we give retroactive
effect to judicial decisions, Hulse is applicable in the case sub judice although
it was not available to the District Court at the time it ruled on Steinmetz's
motion to suppress. Kleinhesselink v. Chevron, U.S.A. (1996), 277 Mont.
158, 162, 920 P.2d 108, 111 (citing Porter v. Galarneau (1996), 275 Mont.
174, 185, 911 P.2d 1143, 1150).
¶11 In Hulse, we addressed the issue of whether the district court erred
when it denied Hulse's petition to reinstate her driver's license after she had
been arrested for DUI and refused to submit to a breath test. Hulse, ¶ 16. In
part, Hulse argued that the field sobriety tests she performed constituted a
search within the meaning of both Article II, Section 11 of the Montana
Constitution and the Fourth Amendment to the United States Constitution,
and, thereby, implicated her individual right to privacy under Article II,
Section 10 of the Montana Constitution. As such, Hulse asserted that this
warrantless search must be supported by probable cause and exigent
circumstances to be constitutionally valid. Hulse, ¶ 19. Hulse maintained
that her right to be free from unreasonable searches and seizures was violated
because her arresting officer lacked probable cause to administer the field
sobriety tests, and, consequently, lacked probable cause to arrest her. Hulse,
¶ 19.
¶12 Relying on Nagel, 880 P.2d 451, People v. Carlson (Colo. 1984), 677
P.2d 310, and State v. Nelson (1997), 283 Mont. 231, 941 P.2d 441, we
overruled our holding in Purdie that field sobriety tests are "merely
observations" of a person's physical behavior, and held that field sobriety tests
constitute a search under the Fourth Amendment to the United States
Constitution, and independently of the federal constitution, under Article II,
Section 11 of the Montana Constitution. Hulse, ¶¶ 32-33. However, we
adopted the rationale of the Arizona Supreme Court's decision in Superior
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Court, 718 P.2d 171 (relying on Terry v. Ohio (1968), 392 U.S. 1, 30, 88 S.Ct.
1868, 1884, 20 L.Ed.2d 889, 911), to hold that while field sobriety tests do
constitute a search, to be constitutionally valid, these tests, like an
investigative "Terry" stop, must be based upon particularized suspicion, not
probable cause. Hulse, ¶¶ 36-38.
¶13 Additionally, we explained that, in certain instances, particularized
suspicion for the initial stop may also serve as the necessary particularized
suspicion for the administration of field sobriety tests, if the basis for the
initial stop was such to lead an officer to believe that the driver was
intoxicated. Hulse, ¶ 39. On the other hand, we also recognized that an
investigative stop can take on the quality of an escalating situation:
As the Appellate Court of Connecticut explained:
Once a lawful stop is made, a police
officer's suspicions may become further aroused
and the stop may become further prolonged and
the scope enlarged as required by the
circumstances, provided the scope of the
investigation remains within the limits created by
the facts upon which the stop is predicated and
the suspicion which they arouse.
Lamme, 563 A.2d at 1374 (citing Terry, 392 U.S. at 21-22, 29,
88 S.Ct. at 1879-81, 1883-84, 20 L.Ed.2d 889). For example,
if an officer only observed an individual driving with a broken
taillight and after making his initial stop he did not observe any
signs of intoxication, he would not have particularized suspicion
that the driver was driving under the influence, and, therefore,
would be prohibited from administering field sobriety tests. By
contrast, if an officer stops a driver for a broken taillight and
upon approaching this driver the officer does observe signs of
intoxication, e.g., the driver's breath smells of alcohol, his eyes
are bloodshot and glassy, or his speech is slurred, 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.
¶14 Here, like the previously referenced example in Hulse, Deputy
Michaelis stopped Steinmetz for driving with an inoperable, rear taillight.
However, based upon further observation of Steinmetz, Deputy Michaelis
asked Steinmetz to step out of his vehicle and initiated a series of field sobriety
tests. Pursuant to our decision in Hulse, for these field sobriety tests to be a
constitutionally permissible search, Deputy Michaelis must have had a
separate particularized suspicion that Steinmetz was driving under the
influence of alcohol. Hulse, ¶ 40.
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¶15 However, we cannot address the constitutional validity of these field
sobriety tests because Deputy Michaelis's testimony during the suppression
hearing was limited primarily to questions concerning whether he "coerced"
Steinmetz into performing the field sobriety tests; he never testified as to what
objective data established his resulting suspicion that Steinmetz was driving
under the influence of alcohol. See Hulse, ¶¶ 41-42. Therefore, in light of our
decision in Hulse, we remand to the District Court with instructions that it
hold a hearing and determine whether Deputy Michaelis had a separate
particularized suspicion that Steinmetz was driving while under the influence
of alcohol before or as a result of his investigative stop for the inoperable
taillight.
¶16 If the District Court finds that Deputy Michaelis had a separate
particularized suspicion that Steinmetz was driving while under the influence
of alcohol, the issue of whether Deputy Michaelis "coerced" Steinmetz to
perform the tests by "commanding" rather than "asking" him to perform the
tests is immaterial. That is, if Deputy Michaelis had this separate
particularized suspicion, then his administration of the field sobriety tests
during the initial stop was constitutionally valid. As such, his lawful request
for and administration of these tests cannot, without more, be characterized as
"coercion."
¶17 Further, if the District Court finds that Deputy Michaelis had
particularized suspicion to administer field sobriety tests during his
investigative stop of Steinmetz, and, thereby, established probable cause to
validly arrest Steinmetz for DUI, we conclude that Deputy Michaelis's
administration of field sobriety tests on Steinmetz at the detention facility was
also a constitutionally permissible search. Having already arrested Steinmetz,
Deputy Michaelis's administration of the tests at the detention facility was
supported by probable cause, a more stringent standard than particularized
suspicion. Again, as such, his lawful request for and administration of these
tests cannot, without more, be characterized as "coercion."
¶18 As to the "without more" caveats of the preceding two paragraphs,
nothing in the record demonstrates that Deputy Michaelis otherwise coerced
Steinmetz into performing the field sobriety tests. To determine whether
Steinmetz was coerced, we look to the totality of the circumstances. State v.
Rushton (1994), 264 Mont. 248, 258, 870 P.2d 1355, 1361 (citing Schneckloth
v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854). An
accused's knowledge of the right to refuse a search is only one factor to
consider and is not determinative of voluntariness. Rushton, 264 Mont. at 258,
870 P.2d at 1361 (citing Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2059, 36
L.Ed.2d at 875). However, "[t]he police do not have to warn a person of the
right to withhold consent." State v. Ellinger (1986), 223 Mont. 349, 354, 725
P.2d 1201, 1204 (citing Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2048, 36
L.Ed.2d at 863). After reviewing the suppression hearing testimony of both
Deputy Michaelis and Steinmetz concerning the initial stop as well as the
videotape of the investigative process conducted at the detention facility, we
see no evidence that Deputy Michaelis coerced Steinmetz into performing the
field sobriety tests. Whether Deputy Michaelis asked or told Steinmetz to
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perform the tests, there is no evidence that Steinmetz's "will ha[d] been
overborne and his capacity for self-determination critically impaired. . . ."
Schneckloth, 412 U.S. at 225, 93 S.Ct. at 2047, 36 L.Ed.2d at 862.
¶19 Accordingly, we affirm the District Court's denial of Steinmetz's
motion to suppress on the basis of the court's rejection of Steinmetz's argument
that Deputy Michaelis coerced him into performing any of the field sobriety
tests. However, in light of our decision in Hulse that field sobriety tests do
constitute a search, we remand to the District Court the issue of whether the
field sobriety tests that Deputy Michaelis administered during his investigative
stop of Steinmetz for an inoperable taillight were based on a separate
particularized suspicion that Steinmetz was driving while under the influence
of alcohol.
¶20 Affirmed in part and remanded for further proceedings consistent with
this Opinion.
/S/ JAMES C. NELSON
We Concur:
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ WILLIAM E. HUNT, SR.
/S/ TERRY N. TRIEWEILER
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