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No. 99-323
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 288
302 Mont. 228
14 P.3d 456
STATE OF MONTANA,
Plaintiff and Respondent.
v.
GREGORY ELISON,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Maurice R. Colberg, Jr., Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kevin R. Peterson, Deputy Public Defender, Billings, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; John Paulson,
Assistant Attorney General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney; Sheila R. Kolar,
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Deputy County Attorney, Billings, Montana
Submitted on Briefs: January 20, 2000
Decided: November 16, 2000
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the opinion of the Court.
¶1 Gregory Elison appeals from the Court's Findings of Fact, Conclusions of Law,
Memorandum and Order issued by the Thirteenth Judicial District Court, Yellowstone
County, denying his motion to suppress. We affirm in part, reverse in part, and remand for
proceedings consistent with this opinion.
¶2 Elison's appeal raises the following issues:
¶3 1. Whether the District Court erred in finding that Officer Conrad had a particularized
suspicion sufficient to justify stopping Elison's vehicle?
¶4 2. Whether the District Court erred in concluding that Elison was not entitled to
Miranda warnings prior to preliminary questioning?
¶5 3. Whether the District Court erred in concluding that Elison's vehicle was lawfully
searched under an exception to the warrant requirement?
BACKGROUND
¶6 On August 1, 1998, shortly after midnight, Billings Police Officer Scott Conrad was on
routine patrol eastbound on Fourth Avenue North in Billings, Montana. Jerry Gibson was
riding with Officer Conrad as an authorized citizen observer. While Officer Conrad's
patrol vehicle was passing through the intersection of Fourth Avenue North and North
26th Street, Gibson saw the driver of a white truck in the lane immediately to the right of
Officer Conrad's vehicle hunched over the steering wheel smoking from a brass-colored
pipe. Gibson made eye contact with the driver of the truck, who was later identified as
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Elison. Gibson testified that Elison noticed the patrol car, appeared startled, and lowered
the pipe and lighter below the steering wheel.
¶7 As the patrol car proceeded through the intersection, Gibson informed Officer Conrad
that he saw the driver of a white truck smoking from what he believed to be a marijuana
pipe and that the driver noticed the patrol car, appeared startled and attempted to hide the
pipe. Officer Conrad had not witnessed any of this activity. Officer Conrad located the
white truck behind his patrol car and reduced his speed to allow the truck to pass his car so
that he could get behind Elison's vehicle and make a traffic stop. Elison slowed his
vehicle. Finally, Officer Conrad brought his vehicle to a complete stop so that Elison
would pass him. He then activated his overhead lights and siren and stopped Elison's
vehicle.
¶8 Upon stopping, Elison exited his truck. Officer Conrad instructed Elison to return to his
vehicle and Elison complied. Officer Conrad testified that when he approached Elison's
truck, he could immediately smell the odor of marijuana. He also testified that Elison
appeared nervous, his eyes were red and glassy, and he would not sit still. Officer Conrad
informed Elison of the reason for the stop-advising him of Gibson's observations and the
odor of marijuana which Conrad had detected. Elison appeared to be reaching in between
the seat cushions of the truck. Officer Conrad asked Elison to show him his right hand and
subsequently requested that Elison exit his vehicle.
¶9 After Elison exited the truck, Officer Conrad directed him to the rear of the pickup,
frisked him, and asked him where the pipe that Gibson had reported seeing him smoking
from was located. Elison told Officer Conrad that he had thrown it out the window.
Officer Conrad then asked Elison whether there was any marijuana in the truck. Elison
replied that he had tucked marijuana behind the seat. Officer Conrad testified that Elison
was not free to leave during this questioning. Officer Conrad returned to the vehicle,
leaving Elison with another police officer who had arrived on the scene a few minutes
after Officer Conrad had stopped Elison. Officer Conrad opened the door, tilted the
driver's seat forward and discovered a film canister which he removed and opened. While
searching the vehicle, he also observed a paper bindle near the film canister as well as a
two-inch tube on the seat and a razor blade on the floor board.
¶10 Officer Conrad showed the film canister to Elison and Elison informed him that it
contained marijuana. Officer Conrad then informed Elison that he was under arrest,
handcuffed him, and put him in the rear seat of his patrol car. At that time, Officer Conrad
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advised Elison of his Miranda rights and asked Elison for consent to search the truck.
Elison gave verbal and written consent. Sergeant Schieno of the Yellowstone County
Sheriff's Department arrived with a trained drug-sniffing canine. Sergeant Schieno
deployed his dog and subsequently advised Officer Conrad that the dog had indicated the
presence of drugs in the cab of the truck. Upon receiving this information, Officer Conrad
searched the vehicle. He seized the paper bindle, straw, and razor blade that he had
previously observed and located another bindle in an open compartment in the dash of the
truck. Gibson and another officer located a brass pipe a few blocks down the street. The
items seized later tested positive for marijuana and methamphetamine.
¶11 On August 5, 1998, Elison was charged with felony possession of dangerous drugs,
misdemeanor possession of dangerous drugs, and misdemeanor possession of drug
paraphernalia. Elison filed a Motion to Suppress and Request for Evidentiary Proceeding.
The District Court held an evidentiary hearing regarding Elison's motion to suppress and,
on January 22, 1999, the court denied Elison's motion. On February 17, 1999, Elison pled
guilty to felony possession of dangerous drugs. The court granted the State's motion to
dismiss the other counts. On April 5, 1999, the court entered an Order Deferring
Imposition of Sentence deferring Elison's sentence for two years with probationary
conditions, including a $500 fine. Elison appeals the court's denial of his motion to
suppress.
STANDARD OF REVIEW
¶12 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. Dawson, 1999 MT 171, ¶ 13, 295 Mont. 212, ¶ 13, 983
P.2d 916, ¶ 13.
ISSUE ONE
¶13 Whether the District Court erred in finding that Officer Conrad had a particularized
suspicion sufficient to justify stopping Elison's vehicle?
¶14 The District Court found that Officer Conrad had a particularized and objective basis
for suspecting that Elison was committing an offense and was, therefore, entitled to stop
Elison's truck. Elison contends that the District Court's finding is clearly erroneous
because Officer Conrad did not inquire as to the basis of Gibson's assumptions regarding
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his observations, in particular Gibson's assumption that Elison was using the pipe to
smoke marijuana. Elison also contends that Officer Conrad did not make any observations
himself which corroborated Gibson's report.
¶15 The Fourth Amendment to the United States Constitution and Article II, Section 11 of
the Montana Constitution protect persons against unreasonable searches and seizures,
including brief investigatory stops such as traffic stops. State v. Jarman, 1998 MT 277, ¶
9, 291 Mont. 391, ¶ 9, 967 P.2d 1099, ¶ 9. We have held that in order to show sufficient
cause to stop a vehicle, the burden is on the State to show that law enforcement had
"particularized suspicion:" (1) objective data from which an experienced police officer can
make certain inferences; and (2) a resulting suspicion that the occupant of the vehicle is or
has been engaged in wrongdoing. State v. Gopher (1981), 193 Mont. 189, 194, 631 P.2d
293, 296 (adopting test announced in United States v. Cortez (1981), 449 U.S. 411, 101 S.
Ct. 690, 66 L. Ed. 2d 621); State v. Gilder, 1999 MT 207, ¶ 8, 295 Mont. 483, ¶ 8, 985
P.2d 147, ¶ 8.
¶16 Whether particularized suspicion exists at the time of an investigative stop is a
question of fact which is determined by considering the totality of the circumstances. State
v. Lafferty, 1998 MT 247, ¶ 10, 291 Mont. 157, ¶ 10, 967 P.2d 363, ¶ 10. "In evaluating
the totality of the circumstances, a court should consider the quantity, or content, and
quality, or degree of reliability, of the information available to the officer." State v. Pratt
(1997), 286 Mont. 156, 161, 951 P.2d 37, 40 (citing Alabama v. White (1990), 496 U.S.
325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 309). Where an investigative stop
stems from the tip of a citizen informant, this Court has adopted a three-part test to
determine the reliability of the citizen informant's information: "(1) whether the citizen
informant identified herself to the authorities and thus exposed herself to civil and
criminal liability if the report is false; (2) whether the report is based upon the citizen
informant's personal observations; and (3) whether the officer's own observations
corroborated the informant's information." State v. Roberts, 1999 MT 59, ¶ 17, 293 Mont.
476, ¶ 17, 977 P.2d 979, ¶ 17 (citing Pratt, 286 Mont. at 165, 951 P.2d at 42-43).
¶17 Elison agrees that the first element of the Pratt test was met. Officer Conrad knew
Gibson's identity: Gibson was sitting next to Officer Conrad when he made his report.
Elison argues that the second element of Pratt was not met in that Gibson did not have a
sufficient basis of knowledge. Elison contends that Gibson's report did not establish an
adequate foundation for Officer Conrad's suspicion because Officer Conrad did not know
whether Gibson was trained in narcotics identification. Therefore, Elison maintains, there
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was no evidence to suggest that Gibson's report that Elison was smoking marijuana was
reliable. The State contends that the facts of the instant case are indistinguishable from
Pratt. We agree.
¶18 In Pratt, we cited with approval a portion of our decision in State v. Lee (1997), 282
Mont. 391, 938 P.2d 637, in which we underscored the importance of the informant
providing law enforcement with the basis for his or her belief that a particular person was
engaged in criminal activity. Pratt, 286 Mont. at 162-63, 951 P.2d at 41. We emphasized
that in Lee the informant's report was not sufficiently reliable because the informant did
not provide the dispatcher with any basis for her belief that Lee was driving under the
influence of alcohol or speeding. Pratt, 286 Mont. at 163-64, 951 P.2d at 41-42.
¶19 Gibson relayed to Officer Conrad both his conclusion that Elison was smoking from a
pipe that looked like a marijuana pipe, as well as his personal observations that formed the
basis for that belief. Gibson told Officer Conrad that he saw Elison smoking something
from a brass-colored pipe and that Elison appeared startled and lowered his pipe and
lighter when he noticed Gibson was observing him. Regardless of Gibson's ability to
correctly identify marijuana, he supplied Officer Conrad with sufficient objective and
particularized facts for Officer Conrad to determine for himself whether Gibson's
conclusion that Elison was smoking marijuana was warranted. See People v. Rueda (Colo.
1982), 649 P.2d 1106, 1109 (holding that report from two maintenance men that locker
held bag containing a white powdery substance which they concluded was "dope," plus
other suspicious circumstances, was sufficient for probable cause).
¶20 We are also convinced that Officer Conrad's corroboration of Gibson's report was
sufficient. Elison argues that Officer Conrad did not sufficiently corroborate Gibson's
report because Officer Conrad did not personally witness any illegal activity. However, we
have not required that an officer personally observe illegal activity in order to have a
particularized suspicion justifying a traffic stop. In Pratt, we stated that where an
informant's tip is anonymous and lacks any indication of the basis for the informant's
opinion, the officer must corroborate the tip by observing suspicious behavior that alerts
the officer to the existence of a possible violation. 286 Mont. at 168, 951 P.2d at 44;
accord Lafferty, ¶ 12 (holding that an anonymous informant's report of criminal conduct
which did not state the basis for the informant's belief must be corroborated by an officer's
personal observations of illegal or suspicious activity). However, a particularized
suspicion does not require certainty on the part of the law enforcement officer. Dawson, ¶
18. Where a tip is more reliable, such as those circumstances where the informant's
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identity is known and the informant reports his or her personal observations which led the
informant to believe that criminal conduct had occurred, corroboration of innocent
behavior by law enforcement may be sufficient to raise a particularized suspicion. Pratt,
286 Mont. at 168, 951 P.2d at 44.
¶21 As in Pratt, Officer Conrad observed "the described vehicle within a short period of
time, traveling in the direction and on the same street indicated by [the informant]." 286
Mont. at 166, 951 P.2d at 43. Furthermore, Officer Conrad testified that after
substantiating Gibson's description of Elison's vehicle and locating its position behind his
patrol car, the following occurred:
[W]hen I tried to make a traffic stop, I slowed down and I wanted to make a right
lane change to get behind Mr. Elison's vehicle. Looking in my rearview mirror, he
also slowed down. [Elison's] truck slowed down, got behind me, made another left
turn, got into my left-side lane. I slowed down to 20 miles per hour, and the vehicle-
the truck also slowed down. I had to make a complete stop in order to get behind the
vehicle.
Officer Conrad testified that Elison's driving was unusual and appeared suspicious. We
agree. In light of Gibson's report that Elison was aware he had been witnessed smoking
from a pipe, Elison's subsequent behavior does appear suspicious; it could reasonably be
interpreted as an attempt by Elison to avoid being stopped.
¶22 Accordingly, even if we were to disregard Gibson's inference that Elison was smoking
marijuana, Officer Conrad had the following information available to him prior to
stopping Elison's vehicle: Gibson's report based on his personal observation of Elison
smoking from a brass pipe, appearing startled upon noticing the patrol car and attempting
to hide the pipe from view; Officer Conrad's corroboration of Gibson's description of the
vehicle; and Officer Conrad's independent observation of Elison's subsequent driving
behavior which appeared suspicious in light of Gibson's report. These facts are reliable
objective data from which Officer Conrad could make certain inferences, based on his four
years of experience and training, which would lead to a resulting suspicion that Elison was
engaged in wrongdoing.
¶23 The District Court's finding that from the totality of the circumstances Officer Conrad
had a particularized suspicion which justified stopping Elison is not clearly erroneous.
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ISSUE TWO
¶24 Whether the District Court erred in concluding that Elison was not entitled to a
Miranda warning prior to preliminary questioning?
¶25 The District Court concluded that Elison was not entitled to Miranda warnings prior
to preliminary questioning because Officer Conrad was merely conducting an
investigatory stop to determine whether a crime was being committed, and it was within
his discretion to ask Elison investigatory questions designed to identify him as a suspect in
a reported crime before giving Elison Miranda warnings. Elison contends that he was
entitled to Miranda warnings because Officer Conrad testified that Elison was not free to
leave during this preliminary questioning and Officer Conrad's questions were not
investigatory in that they were not designed to determine whether Elison was a suspect in
a reported crime.
¶26 The Fifth Amendment to the United States Constitution provides that no person "shall
be compelled in any criminal case to be a witness against himself." In Miranda v. Arizona
(1966), 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, the Supreme Court addressed the
problem of protecting a suspect's right against compelled self-incrimination in the context
of custodial interrogation. The Court held that the prosecution may not use statements
stemming from a custodial interrogation unless the defendant is advised prior to
questioning of the right to remain silent, that any statement may be used as evidence
against the defendant, and that the defendant has a right to the presence of an attorney.
Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. By custodial interrogation, the court meant
"questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of [her or] his freedom of action in any significant way."
Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. Miranda continues to constrain the admission
of statements in state court proceedings made by a suspect during custodial interrogation
and not preceded by sufficient warnings. See, e.g., Berkemer v. McCarty (1984), 468 U.S.
420, 428, 104 S. Ct. 3138, 3144, 82 L. Ed. 2d 317.]
¶27 Elison is entitled to the protections of Miranda only if he was subject to "custodial
interrogation." Dawson, ¶ 30. People are "in custody" for the purposes of Miranda if they
have been deprived of their freedom of action in any significant way or their freedom of
action has been curtailed to a degree associated with a formal arrest. Dawson, ¶ 30. In
Dawson, we stated:
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This Court has previously held that law enforcement officers need not administer
Miranda warnings to suspects during brief investigative encounters even if those
encounters are somewhat coercive. Moreover, we have stated that an interrogation is
not custodial unless there is a significant restriction of personal liberty similar to an
arrest . . . and even temporary confinement as a safety precaution does not render
the detention "custodial" for Miranda purposes . . . .
Dawson, ¶ 35 (citations omitted).
¶28 We noted in Dawson that the trial court had also relied upon this Court's decision in
State v. Rushton (1994), 264 Mont. 248, 870 P.2d 1355, in denying Dawson's motion to
suppress his statement. Dawson, ¶ 33. In Rushton, we stated that the determination of
whether a "custodial interrogation" has occurred is made on a case-by-case basis and looks
to whether a "reasonable person" would feel free to leave after considering such factors as
the time and place of the questioning, the length and mood of the questioning, and the
presence of other persons during the questioning. Rushton, 264 Mont. at 256, 870 P.2d at
1360. However, we note that while consideration of these factors might be useful, the
ultimate inquiry is not whether a reasonable person would feel free to leave, but rather
whether there was a "'formal arrest or restraint on freedom of movement' of the degree
associated with a formal arrest." Stansbury v. California (1994), 511 U.S. 318, 322, 114 S.
Ct. 1526, 1529, 128 L. Ed. 2d 293. See also Combs v. Coyle (6th Cir. 2000), 205 F.3d 269,
284 (quoting Stansbury); State v. Mirquet (Utah 1996), 914 P.2d 1144, 1147 (observing
that "[i]n the context of a routine traffic stop, the driver and the passengers, even though
they have been stopped and, at least momentarily, are not free to leave, are not 'in custody'
for Miranda purposes"); Allen, ¶ 13 (holding that the defendant who was the subject of a
traffic stop and not free to leave was, nonetheless, not entitled to Miranda warnings).
¶29 In Berkemer, the Supreme Court considered whether roadside questioning of a
motorist detained pursuant to a traffic stop should be considered custodial interrogation for
purposes of Miranda. The Court acknowledged that a traffic stop "significantly curtails the
'freedom of action' of the driver and passengers, if any, of the detained vehicle." 468 U.S.
at 436, 104 S. Ct. at 3148. The Court also noted that under the law of most States it is a
crime to leave a traffic stop without permission and "few motorists would feel free to . . .
leave the scene of a traffic stop without being told they might do so." 468 U.S. at 436, 104
S. Ct. at 3148. However, these factual observations did not end the Court's inquiry into
whether the defendant was subjected to custodial interrogation. Instead, the Court focused
on whether the defendant had demonstrated that the officer's conduct before eliciting the
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incriminating statement was "comparable to those [restraints] associated with formal
arrest." Berkemer, 468 U.S. at 441, 104 S. Ct. at 3151. In this regard, the Supreme Court
observed that "the usual traffic stop is more analogous to a so-called 'Terry stop,' . . . than
to a formal arrest." Berkemer, 468 U.S. at 439, 104 S. Ct. at 2150 (discussing Terry v.
Ohio (1968)), 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889). The Court decided that
statements made by a defendant in response to an officer's roadside questioning did not
require warnings of constitutional rights because of the brevity of questioning and its
public setting, even though few motorists would feel free to leave. Berkemer, 468 U.S. at
436-39, 104 S. Ct. at 3148-49. We have repeatedly cited Berkemer with approval. See
Allen, ¶ 13; City of Billings v. Skurdal (1986), 224 Mont. 84, 89, 730 P.2d 371, 374.
¶30 The circumstances surrounding Officer Conrad's questioning of Elison are as follows:
Upon stopping Elison, Officer Conrad called the dispatcher and informed the dispatcher of
the stop. In the meantime, Elison had exited his vehicle and approached the patrol car.
Officer Conrad instructed Elison to return to his vehicle. Officer Conrad then approached
Elison's vehicle, and asked Elison for a driver's licence. Officer Conrad informed Elison of
Gibson's observations and told Elison that he smelled marijuana. Officer Conrad testified
that Elison appeared nervous and kept reaching between the cushions of the pickup seat
with his right hand. As a result of Elison's behavior, Officer Conrad asked Elison to show
his right hand and exit his vehicle. Officer Conrad then directed Elison to the rear of his
pickup, frisked him, and asked him where the pipe that Gibson had reported observing was
located. Elison informed Officer Conrad that he had thrown it out the window. Officer
Conrad then asked Elison whether there was any marijuana in the truck. Elison replied that
he had tucked marijuana behind the seat. Officer Conrad returned to the vehicle, leaving
Elison with another police officer who had arrived on the scene in a separate vehicle about
a minute after the stop. Officer Conrad moved the seat of the pickup and retrieved a film
canister. Officer Conrad opened the canister and asked Elison if it contained marijuana.
Elison informed him that it did. Officer Conrad placed Elison under arrest, handcuffed
him, and placed him in the patrol car. Officer Conrad testified that Elison was not free to
leave during this questioning. Gibson estimated that five to ten minutes elapsed between
the time Officer Conrad stopped Elison and the time Officer Conrad placed Elison in the
patrol car.
¶31 The issue as defined by Berkemer is whether the circumstances surrounding Officer
Conrad's questioning could be fairly characterized as the functional equivalent of a formal
arrest when viewed from the perspective of a reasonable person in Elison's position. See
Berkemer, 468 U.S. at 442, 104 S. Ct. at 3151. Elison has failed to demonstrate that, at any
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time between the initial stop and his actual arrest, he was subjected to restraints
comparable to those associated with a formal arrest. Elison points to the fact that Officer
Conrad testified that Elison was not free to leave during the questioning which occurred at
the rear of Elison's vehicle. However, Officer Conrad did not communicate this fact to
Elison. "[A] policeman's unarticulated plan has no bearing on the question of whether a
suspect was 'in custody' at a particular time; the only relevant inquiry is how a reasonable
[person] in the suspect's position would have understood [his or her] situation." Berkemer,
486 U.S. at 442, 104 S. Ct. at 3151; accord Stansbury, 511 U.S. at 324-25, 114 S. Ct. at
1529; Allen, ¶ 13. See also Evans v. Montana Eleventh Judicial Dist. Court, Flathead
County (Mont. Feb. 11, 2000), 2000 WL 201971, at *3 (discussing definition of "youth
taken into custody for questioning" pursuant to § 41-5-331, MCA).
¶32 Elison also claims that Officer Conrad's prearrest questioning exceeded the scope of
the stop because it was not designed to determine whether he was a suspect in a crime. "[T]
he stop and inquiry must be 'reasonably related in scope to the justification for their
initiation.'" Berkemer, 468 U.S. at 439, 104 S. Ct. at 3150 (quoting United States v.
Brignoni-Ponce (1975), 422 U.S. 873, 881, 95 S. Ct. 2547, 2580, 45 L. Ed. 2d 607). In
this regard, an officer may ask the detainee a moderate number of questions to determine
the detainee's identity and to try to obtain information confirming or dispelling the
officer's suspicions before the requirements of Miranda attach. Berkemer, 468 U.S. at 439,
104 S. Ct. at 3150. We think Officer Conrad's questions were reasonably related to the
reason for the stop and designed to dispel his particularized suspicion that Elison had been
smoking marijuana: he asked Elison where the pipe was which Gibson had reported
observing and he asked Elison whether Elison had any marijuana in his vehicle.
¶33 None of the other aspects of the interaction between Elison and Officer Conrad
support the contention that Elison was subject to custodial interrogation prior to his arrest.
While Elison was clearly not free to leave during Officer Conrad's prearrest questioning,
nor would a reasonable person have felt free to leave, Elison was not subject to restraint
on his freedom of movement of the degree associated with a formal arrest until he was
handcuffed and placed in the back of Officer Conrad's patrol car. Prior to Elison's actual
arrest, he was subject to the same restraints that any motorist might expect to be subjected
to during a routine Terry stop. Officer Conrad removed him from his vehicle and frisked
(1)
him, both justifiable law enforcement actions during a Terry stop. See Dawson, ¶ 25;
see also Terry, 392 U.S. at 30, 88 S. Ct. at 1884-85 (holding that an officer is entitled to
conduct "a carefully limited search of the outer clothing of such persons in an attempt to
discover weapons which might be used to assault him"). Officer Conrad asked Elison
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questions designed to dispel Officer Conrad's particularized suspicion, also a justifiable
action during a Terry stop. The prearrest questioning was in a public setting and in the
presence of only one other law enforcement officer. See Berkemer, 468 U.S. at 438-39,
104 S. Ct. at 3149-50. Lastly, the prearrest questioning was brief and at no point during
the interval between his stop and his arrest did Officer Conrad inform Elison that his
detention would not be temporary. See Berkemer, 468 U.S. at 441-42, 104 S. Ct. at 3151.
A reasonable person in Elison's position would have assumed that, barring the discovery
of any evidence supporting Officer Conrad's suspicions, he would be free to leave after the
questioning was completed. See Combs, 205 F.3d at 284-85 (holding that the defendant
was "in custody" because a reasonable person in the defendant's position would have
believed he was under arrest).
¶34 We hold that the District Court correctly denied Elison's motion to suppress his
prearrest statements.
ISSUE THREE
¶35 Whether the District Court erred in concluding that Elison's vehicle was lawfully
searched under an exception to the warrant requirement?
¶36 The District Court concluded that Elison's vehicle was lawfully searched without a
warrant because Officer Conrad had probable cause to believe that there was marijuana in
the truck and there were exigent circumstances which excused the obtaining of a warrant.
The court based its finding of probable cause on the fact that Officer Conrad smelled what
he believed to be burned marijuana, Elison indicated that there was marijuana in the truck,
(2)
and a trained drug dog indicated the presence of drugs in the truck. In reaching a finding
of exigent circumstances, the court noted the mobility of the vehicle and the possibility
that a confederate could move the vehicle. The court also noted that the stop was made at
12:05 a.m., and that it would have been difficult to obtain a search warrant at that hour.
The court took judicial notice of the fact that judges or magistrates are not reasonably
available to obtain a search warrant at that time of night.
¶37 Elison contends that the District Court's finding of exigent circumstances is clearly
erroneous and, as a result, the search of his automobile did not fall within an exception to
the warrant requirement. Elison claims that the possibility that a confederate could have
moved his vehicle prior to law enforcement obtaining a warrant is without support in the
record and, in fact, was contrary to Officer Conrad's testimony. In this regard, Elison notes
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that he did not have a passenger with him when the stop occurred, he was in the squad car
in handcuffs with no means of communication, Officer Conrad testified that he was not
aware of anyone who might move the vehicle, and Officer Conrad testified that he made
no attempt to secure a warrant. Elison also claims that the District Court abused its
discretion by taking judicial notice of the unavailability of judges or magistrates at the
time of night the stop was made.
¶38 The State claims that the finding of exigency was justified due to the mobility of
Elison's vehicle and the difficulty in securing a search warrant at the time of Elison's
arrest. The State asserts that the court did not abuse its discretion by taking judicial notice
of the fact that judges and magistrates are not reasonably available at 12:05 a.m. in
Billings, Montana, because the fact was within the actual and immediate knowledge of the
court. In the alternative, the State urges that we conclude that a warrantless search of a
vehicle is permitted where the vehicle is readily mobile and an officer has probable cause
to believe that the vehicle contains contraband or other evidence of a crime.
¶39 The Fourth Amendment to the United States Constitution and Article II, Section 11 of
the Montana Constitution prohibit unreasonable searches and seizures, including
unreasonable searches of automobiles by law enforcement personnel. See State v. Allen
(1992), 256 Mont. 47, 884 P.2d 105. Warrantless searches and seizures are per se
unreasonable subject to only a few carefully drawn exceptions. State v. Loh (1996), 275
Mont. 460, 468, 914 P.2d 592, 597. One exception to the warrant requirement is the so-
called "automobile exception." Allen, 256 Mont. at 51, 884 P.2d at 108. See also
California v. Carney (1985), 471 U.S. 386, 390, 105 S. Ct. 2066, 2068, 85 L. Ed. 2d 406.
¶40 In Carney, the United States Supreme Court stated that the "automobile exception" is
based on two grounds. One basis for the exception is exigency. According to the Court,
the warrant requirement is excused based on the capacity of a vehicle to be quickly moved
which "creates circumstances of such exigency that, as a practical necessity, rigorous
enforcement of the warrant requirement is impossible." Carney, 471 U.S. at 391, 105 S.
Ct. at 2069. The other basis of the exception is a reduced expectation of privacy.
According to the Court, individuals have a reduced expectation of privacy on account of
the pervasive regulation of vehicles capable of traveling on public highways and are,
therefore, on notice that they may be stopped and searched without the protection afforded
by a warrant. Carney, 471 U.S. at 392, 105 S. Ct. at 2069-70. "In short, the pervasive
schemes of regulation, which necessarily lead to reduced expectations of privacy, and the
exigencies attendant to ready mobility, justify searches without prior recourse to authority
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of a magistrate so long as the overriding standard of probable cause is met." Carney, 471
U.S. at 392, 105 S. Ct. at 2070.
¶41 As clarified by subsequent Supreme Court decisions, a warrantless search of an
automobile does not violate the Fourth Amendment if the automobile is "readily mobile
and probable cause exists to believe it contains contraband;" a further showing of exigent
circumstances is unnecessary. Pennsylvania v. Labron (1996), 518 U.S. 938, 940, 116 S.
Ct. 2485, 2487, 135 L. Ed. 2d 1031 (per curiam); Maryland v. Dyson (1999), 527 U.S.
465, 119 S. Ct. 2013, 144 L. Ed. 2d 422 (per curiam) (summarily reversing Maryland
Court of Special Appeals which had concluded that a warrantless automobile search
violated the Fourth Amendment because there was no exigency that prevented or even
made it significantly difficult for the police to obtain a search warrant).
¶42 Officer Conrad certainly had probable cause to believe Elison's vehicle contained
evidence of a crime after Elison informed Officer Conrad that he had tucked marijuana
behind his seat. Elison's vehicle was also readily mobile-he had just been driving it. Under
the Fourth Amendment to the United States Constitution, the warrantless search of
Elison's vehicle was not unreasonable.
¶43 We have also recognized an "automobile exception" to the warrant requirement under
Article II, Section 11 of the Montana Constitution. However, unlike the United States
Supreme Court, we have continued to require a showing of exigent circumstances. See, e.
g., Allen, 256 Mont. at 51, 884 P.2d at 108. In Allen, we stated that the "automobile
exception . . . requires two things (1) the existence of probable cause to search; and (2) the
presence of exigent circumstances, that is, that it was not practicable under the
circumstances to obtain a warrant." 256 Mont. at 51, 884 P.2d at 108.
¶44 We first recognized the automobile exception to the warrant requirement in State v.
Spielman (1973), 163 Mont. 199, 516 P.2d 617. In Spielman, the vehicle in which the
defendants had been traveling was searched without a warrant after being stopped on a
public highway. We stated that the issue was whether the patrolmen had probable cause to
execute the search. Spielman, 163 Mont. at 206, 516 P.2d at 621. However, we did not
discuss at length the necessity of a separate showing of exigency. Our first opportunity to
discuss the exigency requirement came in State v. Amor (1974), 164 Mont. 182, 520 P.2d
773. In Amor, we affirmed the suppression of evidence seized pursuant to a warrantless
search of a parked and unoccupied vehicle because it was practicable for the officers
involved to obtain a warrant prior to their search. In affirming the District Court's granting
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of Amor's motion to suppress, we stated that "[i]n no case may the existence of exigent
circumstances be predicated upon the mere fact that the object of the search was an
automobile." Amor, 164 Mont. at 184-85, 520 P.2d at 775. We have consistently
reaffirmed the requirement that, in order to justify a warrantless search of an automobile,
the State must show exigent circumstances under which it was not practicable to obtain a
warrant. State v. Cripps (1978), 177 Mont. 410, 422, 582 P.2d 312, 319; Allen, 256 Mont.
at 51, 884 P.2d at 108; State v. McCarthy (1993), 258 Mont. 51, 852 P.2d 111; State v.
Lott (1995), 272 Mont. 195, 900 P.2d 306.
¶45 As the State correctly observes, however, we have never clearly stated a separate
justification for the exigency requirement under Montana law. We hereby take this
opportunity to clarify the source of the exigency requirement. As we have previously
stated:
The Montana Constitution also provides that the people shall be free from
unreasonable searches and seizures. Mont. Const. Art. II, § 11. Although the
language of this provision is nearly identical to that contained in the Fourth
Amendment to the United States Constitution, we recognize that such a provision in
the Montana Constitution may be interpreted so as to provide a greater amount of
rights than that contained in the Federal Constitution. See, State v. Johnson (1986),
[221] Mont. [503, 513], 719 P.2d 1248, 1254-55; and Butte Community Union v.
Lewis (1986), [219] Mont. [426, 433], 712 P.2d 1309, 1313. Additionally, the
Montana Constitution provides that the right of individual privacy shall not be
infringed without the showing of a compelling state interest. Mont. Const. Art. II, §
10. There is no similar textual language in the United States Constitution and we
have therefore recognized that this section grants rights beyond that inferred from
the United States Constitution. See generally, Montana Human Rights Division v.
City of Billings (1982), 199 Mont. 434, 649 P.2d 1283. Because Montana's
Constitutional protections have an existence which is separate from the Federal
Constitutional protections it is necessary to offer an independent analysis of the
privacy and search and seizure provisions of the Montana Constitution.
State v. Bullock (1995), 272 Mont. 361, 383, 901 P.2d 61, 75.
¶46 We have repeatedly held that Montana's unique constitutional language affords
citizens a greater right to privacy, and, therefore, provides broader protection than the
Fourth Amendment in cases involving searches of private property. See Bullock, 272
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Mont. at 384, 901 P.2d at 75; Hulse v. Department of Justice, 1998 MT 108, ¶ 25, 289
Mont. 1, ¶ 25, 961 P.2d 75, ¶ 25. As a result, we have concluded that the category of
warrantless searches which may be lawfully conducted under the Montana Constitution is
narrower than the category of warrantless searches which may be conducted pursuant to
the Fourth Amendment. For example, in Bullock, we held that a warrantless search of the
defendant's open field, although lawful under the Fourth Amendment, was unlawful under
the Montana Constitution. 272 Mont. at 385, 901 P.2d at 76.
¶47 Montana's Constitution not only confers greater protection from warrantless searches
of open fields, but also confers greater protection from warrantless searches of
automobiles. For instance, in State v. Sawyer (1977), 174 Mont. 512, 518, 571 P.2d 1131,
1134, we declined to follow the Supreme Court's decision in South Dakota v. Opperman
(1976), 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000, which recognized the lawfulness
of warrantless inventory searches of automobiles pursuant to standard police procedures.
On the basis of Montana's constitutional right to privacy, we restricted warrantless
inventory searches of automobiles to those searches whose purpose was to safeguard
articles within plain view of the officer's vision. Sawyer, 174 Mont. at 518, 571 P.2d at
1134. While so holding, we reaffirmed our observation that "the word 'automobile' is not a
talisman in whose presence the . . . [warrant requirement] fades away and disappears."
Sawyer, 174 Mont. at 517, 571 P.2d at 1133. Accordingly, we will analyze the warrantless
search of Elison's vehicle under our unique constitutional provisions.
¶48 We have defined "search" as the use of some means of gathering evidence which
infringes upon a person's reasonable expectation of privacy. Hulse, ¶ 22. When
determining whether there has been an unlawful governmental intrusion into one's privacy
in search and seizure situations, we look at the following factors: (1) whether the person
has an actual expectation of privacy; (2) whether society is willing to recognize that
expectation as objectively reasonable; and (3) the nature of the State's intrusion. Desserly
v. Department of Corrections, (Mont. Feb. 15, 2000), 2000 WL 193539, *4.
¶49 We believe Elison had an actual expectation of privacy in the items stowed behind his
seat, and we believe his actual expectation of privacy was reasonable. Placing an object
beyond the purview of the public in a place from which the person has the right to exclude
others evidences an actual or subjective expectation of privacy. "What a person knowingly
exposes to the public is not protected, but what an individual seeks to preserve as private,
even in an area accessible to the public, may be constitutionally protected." Bullock, 272
Mont. at 375, 901 P.2d at 70.
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¶50 Moreover, the State has provided us with no reason to believe Elison's actual
expectation of privacy was unreasonable. Significantly, the Supreme Court decisions
which have essentially done away with the exigent circumstances requirement of the
"automobile exception" have done so, at least partially, on a theory of the reduced
expectations of privacy of people operating automobiles. See, e.g., Carney, 471 U.S. at
391, 105 S. Ct. at 2069-70. In Carney, the Court observed that this reduced expectation of
privacy derives from the "pervasive regulation of vehicles capable of traveling on the
public highways." 471 U.S. at 392, 105 S. Ct. at 2069. In explanation, the Court stated:
Automobiles, unlike homes, are subjected to pervasive and continuing governmental
regulation and controls, including periodic inspection and licensing requirements.
As an everyday occurrence, police stop and examine vehicles when license plates or
inspection stickers have expired, or if other violations, such as exhaust fumes or
excessive noise, are noted, or if headlights or other safety equipment are not in
proper working order.
Carney, 471 U.S. at 392, 105 S. Ct. at 2069-70.
¶51 We do not find the Supreme Court's "reduced expectation of privacy" analysis
compelling. We do believe that when a person rides in an automobile, that person accepts
that their actions and any items left uncovered on the dashboard or on the seat are no
longer private because of their public visibility. Even in Montana, when persons leave the
privacy of their home and expose themselves and their effects to the public and its
independent powers of perception, it is clear that they cannot expect to preserve the same
degree of privacy for themselves or their affairs as they could expect at home. State v.
Scheetz (1997), 286 Mont. 41, 49, 950 P.2d 722, 726. However, when a person takes
precautions to place items behind or underneath seats, in trunks or glove boxes, or uses
other methods of ensuring that those items may not be accessed and viewed without
permission, there is no obvious reason to believe that any privacy interest with regard to
those items has been surrendered simply because those items happen to be in an
automobile. Furthermore, there is no reason to believe that the "pervasive and continuing
governmental controls and regulations" of automobiles could serve to reduce someone's
expectation of privacy in items so stowed. Although the State may have a legitimate
interest in securing compliance with safety and traffic regulations, there is absolutely no
logical connection between prohibitions such as driving with expired registration stickers
or a noisy muffler, and the State's need to conduct a warrantless search behind the seat of
an automobile. Visual inspections of license plates for expired tags do not entail searches
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of glove boxes, trunks, and underneath seats. See generally, 3 Wayne R. LaFave, Search
and Seizure: A Treatise on the Fourth Amendment § 7.2(b) at 470 (3d ed. 1996).
¶52 Lastly, we must also consider whether "the state's method of investigation is so
personally invasive that we recognize the intrusion as a search that requires further
justification, such as a warrant or other special circumstances." Scheetz, 286 Mont. at 50,
950 P.2d at 727. One concern motivating this consideration has been whether the State's
method is overbroad in that it presents a "substantial threat of revealing unnecessary
aspects of an individual's private affairs." Scheetz, 286 Mont. at 50, 950 P.2d at 727. A
method of investigation which tends to reveal information regarding both legal and illegal
behavior will require further justification in that it frustrates a person's legitimate
expectation of privacy. See Scheetz, 286 Mont. at 50-51, 950 P.2d at 727. Unlike the drug-
detecting canine sniff of luggage at issue in Scheetz, rummaging through a person's
personal effects behind the seat of their automobile divulges everything stowed behind the
seat and does not permit a person to "maintain as private everything except the
contraband." Scheetz, 286 Mont. at 51, 950 P.2d at 727. This type of search is the classic
example of a method of investigation which typically requires a warrant or other special
circumstances. See Bullock, 272 Mont. at 384, 901 P.2d at 75-76.
¶53 Because an individual may have a reasonable privacy interest in items stowed in an
automobile beyond the purview of the public and the State's method of investigation
invades this legitimate interest, the State must have a compelling interest for doing so. Art.
II, § 10, Mont. Const. A compelling state interest exists where the State enforces its
criminal laws for the benefit and protection of other fundamental rights of its citizens.
Hulse, ¶ 34. Montana has a compelling interest to remove drivers under the influence of
alcohol or drugs from our roadways. Hulse, ¶ 34. See also § 61-8-401, MCA (prohibiting
driving while under the influence of alcohol or drugs). Montana also has a compelling
interest in eradicating the possession of unlawful intoxicants. See generally, Title 50,
Chapter 32, MCA ("Controlled Substances"). Yet even with these compelling state
interests, the State may not invade an individual's privacy unless the procedural safeguards
attached to the right to be free from unreasonable searches and seizures are met. Hulse, ¶
34.
¶54 Because of the legitimate privacy interests implicated and the invasive and generally
overbroad nature of the state's intrusion on these interests, the search of an automobile
requires more than merely the existence of probable cause to believe it contains evidence
of a crime. On the foregoing basis, we conclude that, despite any language to the contrary
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in our previous decisions, there is no "automobile exception" to the search warrant
requirement under the Montana Constitution. Rather, as we have consistently held, a
warrantless search of an automobile requires the existence of probable cause as well as a
generally applicable exception to the warrant requirement such as a plain view search, a
(3)
search incident to arrest, or exigent circumstances.
¶55 The remaining issue is whether Officer Conrad's warrantless search was justified by
both probable cause and an exception to the warrant requirement. As noted, the District
Court concluded that Officer Conrad's search was justified because of exigency. The Court
found the following exigent circumstances: the mobility of the vehicle, the possibility that
a confederate could move the vehicle, and the fact that the stop was made at 12:05 a.m.
and that it would have been difficult to obtain a search warrant at that hour. In regard to
the last circumstance, the court took judicial notice of the fact that judges or magistrates
are not reasonably available to obtain a search warrant at that time of night.
¶56 We have previously explained that exigent circumstances are those circumstances that
would cause a reasonable person to believe that prompt action was necessary to prevent
physical harm to police officers or other persons, the destruction of relevant evidence, the
escape of the suspect, or some other consequence improperly frustrating legitimate law
enforcement efforts. State v. Wakeford, 1998 MT 16, ¶ 24, 287 Mont. 220, ¶ 24, 953 P.2d
1065, ¶ 24. The State bears the heavy burden of showing the existence of exigent
circumstances and can meet that burden only by demonstrating specific and articulable
facts. Wakeford, ¶ 24.
¶57 The District Court's finding of exigent circumstances is clearly erroneous. First, as
discussed above, the mobility of an automobile, without more, is not sufficient to justify a
warrantless search. Second, the possibility that a confederate might move the vehicle
could establish exigency by indicating the possibility that relevant evidence would be
destroyed unless the police took prompt action. However, there is no evidence in the
record to establish this possibility; Elison was alone and without means to contact a
confederate. Third, the fact that the stop was made at 12:05 a.m. and that it would have
been difficult to obtain a search warrant because of the availability of judges or
magistrates at that time of night does not establish exigent circumstances justifying a
warrantless search. Significantly, Officer Conrad made no effort to obtain a search
warrant. Furthermore, while we understand that Montana's judges and magistrates would
prefer not to be disturbed late into the night, Montana's constitutional protections do not
simply fade away with the setting of the sun. The prohibition against unreasonable
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searches safeguards people in Montana at all times. We cannot conclude that the validity
of a warrantless search could turn solely on the time of day that search was conducted.
¶58 We conclude that the State did not bear its heavy burden of demonstrating the
existence of specific and articulable facts indicating the necessity of searching Elison's
vehicle without first obtaining a warrant. We further conclude, on independent state
grounds pursuant to Article II, Sections 10 and 11 of the Montana Constitution, that the
warrantless search of Elison's vehicle was unlawful and the District Court erred in denying
Elison's motion to suppress the fruits of that search.
¶59 We reverse and remand for proceedings consistent with this decision.
/S/ JIM REGNIER
We Concur:
/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ KARLA M. GRAY
Justice W. William Leaphart, concurring in part and dissenting in part.
¶60 I concur with the Court's resolution of issues one and three. For the following reasons,
I dissent as to issue number two.
¶61 The District Court concluded that Elison was not in custody when Officer Conrad
asked him certain questions about marijuana and that Miranda therefore does not apply.
The District Court concluded further that "[i]t was within Officer Conrad's discretion after
he had a particularized suspicion to effectuate the traffic stop, to ask Defendant
investigatory questions designed to identify him as a witness or a suspect in a reported
crime."
¶62 Citing State v. Rushton (1994), 264 Mont. 248, 870 P.2d 1355, Elison argues that
when a person is not free to leave because of the express or implied conduct of the police,
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any interrogation is custodial in nature. In Rushton, the Court concluded that "[t]o
determine if a custodial interrogation has occurred, this Court considers each case on a
case-by-case basis and looks to whether a 'reasonable person' 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." Rushton, 264 Mont. at 256,
870 P.2d at 1360. Elison argues that he was "secured" at the back of his truck, that no
reasonable person would have felt free to leave, and that the District Court found that
Elison was not free to leave. Elison argues further that Officer Conrad's questions were not
merely "investigatory" but went to "the heart of the offenses charged."
¶63 The State responds that Officer Conrad's questions were investigatory in nature and
did not require a Miranda warning. Further, citing State v. Allen, 1998 MT 293, 295
Mont. 139, 970 P.2d 81, the State argues that investigative questions made during a
temporary roadside detention need not be preceded by a Miranda warning even when a
suspect is not free to leave. The State urges that the questions occurred during a "public,
routine, and temporary" stop.
¶64 In Allen, defendant Allen was stopped by police because his vehicle lacked a front
license plate. The police officer approached Allen and explained why he had stopped him.
The officer came to suspect that Allen was improperly using a demonstrator plate and
asked Allen to exit the car so that they could talk. As the officer explained the charges
against Allen, the officer smelled alcohol on Allen's person and asked Allen whether he
had been drinking. Allen admitted having two beers. The officer told Allen that he did not
have the right to call his lawyer and had him perform sobriety tests, which he failed. The
officer arrested Allen, brought him to the police station, and had him provide a breath
sample that showed a BAC of 0.13. At that time Allen was advised of his rights under
Miranda. Relying on Berkemer v. McCarty (1983), 468 U.S. 420, 104 S.Ct. 3138, 82 L.
Ed.2d 317, the Allen Court concluded that "[t]he stop was still public, routine and
temporary in nature [and that] [t]hose critical facts distinguish it from 'custodial'
interrogations." Allen, ¶ 13.
¶65 In Berkemer, an Ohio highway patrol officer observed a car weaving in and out of
traffic and stopped the car. The officer had Berkemer get out of the car, noticed that he
had trouble standing, and asked him whether he had used intoxicants. Berkemer responded
that he had recently drunk alcohol and smoked marijuana. Berkemer was arrested and
taken to jail. However, at no time before Berkemer went to jail was he advised of his
rights under Miranda. The Berkemer Court held that "a person subjected to custodial
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interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda,
regardless of the nature or severity of the offense of which he is suspected or for which he
was arrested." Berkemer, 468 U.S. at 434, 104 S.Ct. at 3147, 82 L.Ed.2d at 331.
¶66 However, the Berkemer Court further held that the roadside questioning of a motorist
detained pursuant to "a routine traffic stop" should not be considered custodial
interrogation. Berkemer, 468 U.S. at 438, 441, 104 S.Ct. at 3149, 82 L.Ed.2d at 333-35
(emphasis added). The Court in Berkemer found that an ordinary traffic stop has two
features that "mitigate the danger that a person questioned 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. First, "detention of a motorist pursuant to a traffic stop is presumptively
temporary and brief." Berkemer, 468 U.S. at 437, 104 S.Ct. at 3149, 82 L.Ed.2d at 333.
The Berkemer Court contrasted questions during such a detention with stationhouse
interrogations where "the detainee often is aware that questioning will continue until he
provides his interrogators the answers they seek." Berkemer, 468 U.S. at 438, 104 S.Ct. at
3149, 82 L.Ed.2d at 333. Second, the Berkemer Court concluded that the "atmosphere
surrounding an ordinary traffic stop is substantially less 'police dominated' than that
surrounding the kinds of interrogation at issue in Miranda itself." Berkemer, 468 U.S. at
438-39, 104 S.Ct. at 3149, 82 L.Ed.2d at 334. The Court concluded that most roadside
stops are analogous to Terry stops. The Berkemer Court conceded, however, that "our
adherence to the doctrine just recounted will mean that the police and lower courts will
continue occasionally to have difficulty deciding exactly when a suspect has been taken
into custody." Berkemer, 468 U.S. at 441, 104 S.Ct. at 3151, 82 L.Ed.2d at 335.
¶67 In the present case, the State's reliance on Allen and Berkemer is not persuasive. The
State has not shown that Officer Conrad's stop of Elison was "routine." As the majority
notes, Officer Conrad informed Elison of Gibson's observations and told him that he
smelled marijuana. Further, Gibson's observations indicate that Elison realized that an
occupant of a police car had seen him smoking marijuana. Thus, when Officer Conrad
stopped Elison, Elison had no reasonable grounds to believe that his was a routine
ordinary traffic stop of a presumptively temporary duration. Both Elison and Conrad knew
full well that Elison was being stopped on suspicion of illegal drugs-not for a traffic
violation.
¶68 Berkemer makes clear that in determining whether a person questioned will be
induced "to speak where he would not otherwise do so freely," the nature of the stop is
important. Berkemer, 468 U.S. at 437, 104 S.Ct. at 3149, 82 L.Ed.2d at 333. In other
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words, is the stop "presumptively temporary and brief?" Berkemer, 468 U.S. at 437, 104 S.
Ct. at 3149, 82 L.Ed.2d at 333. Both the officer and Elison knew that the stop was for
suspected drug use. The stop was not a "traffic" stop, it was not "routine" and it was not
going to be "presumptively temporary and brief." In my view, Miranda should apply
under these facts. I would reverse on issue two.
/S/ W. WILLIAM LEAPHART
Justices William E. Hunt, Sr. and Terry N. Trieweiler, join in the foregoing concurring
and dissenting opinion.
/S/ TERRY N. TRIEWEILER
/S/ WILLIAM E. HUNT, SR.
1. Elison does not contest the legality of Officer Conrad's frisk.
2. We note that the trained dog did not indicate the presence of drugs until after Officer Conrad had
already entered the vehicle.
3. The District Court stated that under some of our previous decisions it is unclear whether Officer
Conrad could have lawfully seized Elison's vehicle for a reasonable time until a search warrant could be
obtained. In State v. Broell (1991), 249 Mont. 117, 814 P.2d 44, we stated that a "warrantless seizure" of
a car falls under the "automobile exception" to the warrant requirement. 249 Mont. at 122, 814 P.2d at
47. However, we held that the seizure at issue in Broell was lawful regardless of exigent circumstances
because "there was sufficient probable cause under the facts of this case to believe that illegal drugs
were located in Broell's car." 249 Mont. at 123, 814 P.2d at 47. The legality of a warrantless seizure has
not been raised and therefore is not currently before us.
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