05-725
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 222
STATE OF MONTANA,
Plaintiff and Respondent,
v.
JULIA MUNSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DC 2005-51
Honorable James A. Haynes, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Keithi M. Worthington, Worthington Law Office, PLLC, Hamilton, Montana
For Respondent:
Hon. Mike McGrath, Montana Attorney General, Jim Wheelis,
Assistant Attorney General, Helena, Montana
George Corn, Ravalli County Attorney, William Fulbright,
Deputy County Attorney, Hamilton, Montana
Submitted on Briefs: August 30, 2006
Decided: September 5, 2007
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Julia Munson (“Munson”) appeals from the order of the District Court for the Twenty-
First Judicial District, Ravalli County, denying her motion to suppress statements and
evidence related to her prosecution for criminal possession of dangerous drugs, criminal
endangerment, and criminal possession of drug paraphernalia. We reverse.
¶2 The issues on appeal are as follows:
1. Did the District Court err in denying Munson’s motion to suppress statements she
made to law enforcement officers?
2. Did the District Court err in denying Munson’s motion to suppress evidence seized
from her apartment and vehicle?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On the evening of March 14, 2005, law enforcement officers responded to a report of
underage drinking at Munson’s apartment in Corvallis, Montana. Outside Munson’s
apartment, the officers encountered George Snell, who appeared to be under the influence of
methamphetamine. They discovered that Snell was on probation, interviewed him, and
placed him under arrest. During an interview following his arrest, Snell alleged that he had
seen evidence of methamphetamine use in Munson’s apartment.
¶4 At approximately 3:00 p.m. the following day (March 15, 2005), Detectives Jason
Basnaw and Perry Johnson of the Ravalli County Sheriff’s Office (collectively, “the
Officers”) went to Munson’s apartment building to follow up on Snell’s allegation. The
ensuing events were tape-recorded by the Officers, and a transcript of that recording is part of
the record on appeal.
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¶5 The Officers knocked on Munson’s door. Munson’s five-year-old son, Chase, opened
the door and left it open while he went to get Munson. Standing at the doorway, Basnaw saw
what he thought might be paraphernalia for the packaging of methamphetamine or small
amounts of dangerous drugs in the living room. When Munson came to the door, Basnaw
told her that he would “[l]ike to visit with ya’ for a minute if we could” “about uh, that
situation last night with Geroge Snell over here.” Johnson asked Munson if he and Basnaw
could come in, but Munson responded that “actually my daughter’s, I’m just puttin’ her down
for a nap can you come back ---------?” Basnaw declined, stating: “Well actually I don’t
have time. Um, I need to visit with ya’ right now.” Munson then let the Officers into the
apartment.
¶6 Basnaw asked Munson if she had had any methamphetamine in the apartment the
previous night and if she had any drugs in the apartment at present. Munson replied “No” to
both questions. Basnaw then asked if Munson would consent to a search of the apartment.
Munson twice replied, “No.” Next, Johnson asked Munson if she would consent to a search
of her body. Munson again said, “No.” Johnson asked Munson why she wouldn’t give the
Officers a urine sample and why she wouldn’t allow them to search her home, and Munson
explained, “Because George [Snell] doesn’t hang out here or nothin’, you know, I don’t even
hardly know him,” and because “I just don’t fell [sic] that it’s right.”
¶7 At this point, Johnson, who knew Munson when she was a young girl and also knew
Munson’s father in his (Johnson’s) “professional capacity,” began questioning Munson about
her lifestyle. He stated that he was “really proud” of her father because “once he got his arms
around whatever problems he had he got on with the rest of his life.” Johnson told Munson
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that “I want you to get on with the rest o’ your life and I don’t want ya’ to do what you’re
doin’.” He opined that she was at “a fork in the road” and stated that he wanted her to
“choose wisely.” Johnson also stated, “I know that, that you’re worried about what we’re
gonna’ find if we shake your house down”; thus, he told Munson that he and Basnaw were
not there “to threaten ya’ or to beat ya’ up or any o’ that.”
¶8 Johnson asked Munson, “How do you suggest that we resolve this? Are you lookin’
for some help? You wanta’ get on with it or do you wanta’ keep goin’ the way you been
goin’?” Munson replied, “No I don’t.” Johnson inquired, “If you wanted to uh, if you
wanted to quit right now the, the way you’ve been livin’ and change your life how would you
do that?” Munson replied, “I don’t know.” Johnson asked whether Munson thought she
needed rehab and whether her parents might help her, at which point the transcript reflects
that Munson was crying. The following dialogue then ensued:
Detective Johnson: Here’s what I, I want you to know this. Here’s what we
didn’t come here and do. We didn’t come here and take that Miranda card out
and tell you this. You have the right to remain silent and all o’ that stuff.
Right? And we didn’t come here to threaten ya’ or talk mean to ya’. We came
here because we’re both dads and neither one of us guys is perfect I’ll tell ya’
that. And, and you know, we don’t live right next door to ya’ but this
community’s so small Julia we’re still neighbors.
Julia Munson: I know hhh.
Detective Johnson: And what affects you affects us and that’s why the
Sherriff’s were [sic] last night ‘cause that affected us. So is there some way
that, that we can help you?
Julia Munson: I’m sure there is but I don’t know ------------ hhh.
Detective Johnson: ‘Kay. Well let’s talk about your kids then for a minute.
You wanta’ raise ‘em?
Julia Munson: Yes.
Detective Johnson: Do you think this is the way to do it?
Julia Munson: Um, hmm. (Affirmative)
4
Detective Johnson: Well then how ya’ gonna’, how ya’ gonna’ manage
that?
Julia Munson: ------------
Detective Johnson: ‘Kay. Well I agree with ya’. I don’t think this is the
way to raise ‘em either. You know, worried about who’s knockin’ at the door,
havin’ ‘em spend their time over at the neighbor’s place. I’d sure rather see
‘em bein’ held by their mom and her getting ‘em to kindergarten and stuff like
that. Chase go to kindergarten yet?
Julia Munson: Yeah.
Detective Johnson: Yeah? Goes in the morning or what?
Julia Munson: Yeah in the morning.
Detective Johnson: Yeah? You take him or does he just walk down there
himself?
Julia Munson: I take him.
Detective Johnson: Do ya’? ‘Kay. So have you got crank in this house?
Julia Munson: No.
Detective Johnson: How come we can’t search it then?
Julia Munson: ‘Cause.
Detective Johnson: ‘Cause why?
Julia Munson: I have paraphernalia . . . .
Munson also admitted that she had used methamphetamine during the previous twenty-four
hours. Thereafter, Johnson stated that “we want that stuff and that’s why we came”;
however, Munson insisted, again, that she didn’t have any. Significantly, the Officers did not
advise Munson of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966),
before or at any point during this exchange.
¶9 Despite the fact that Munson had neither consented to a search of her home nor been
informed of her right to refuse to consent to a search of her home, Basnaw then presented
Munson with a Consent to Search form. Basnaw explained that the form “just says that your,
you’re uh, having been informed of your right to refuse a search of your um, of your house,”
you “authorize the above member of Ravalli County Sheriff’s Office to remove any letters,
documents, papers, materials or other property which are considered pertinent to the
5
investigation.” In this regard, Basnaw stated that he was “concerned about meth and meth
paraphernalia. Um, anything having to do with meth.” Lastly, Basnaw indicated that by
signing the form, Munson would be “knowingly and voluntarily giv[ing] [her] consent to
search.”
¶10 Munson asked whether signing the Consent to Search form gave the Officers
permission to search her whole apartment. Johnson answered affirmatively. Munson then
indicated that she would retrieve the paraphernalia for them, and she reiterated that there was
no methamphetamine in the apartment for them to find. Therefore, Munson asked, “I have to
sign this?” to which Johnson replied, “Yeah. But here’s why.” Johnson then stated:
Detective Johnson: Is because you have the right to refuse and what Jase
[Basnaw] just told ya’ I believe but I need to make sure that you believe it.
We’re not gonna’ go and open your refrigerator. We’re not gonna’ look at
your underwear. We’re not gonna’ do that stuff. But here’s what we will do.
When you leave this room…
Julia Munson: Um, hmm. (Affirmative)
Detective Johnson: …we’ll follow you.
Julia Munson: Um, hmm. (Affirmative)
Detective Johnson: ‘Kay? And, and that’s because we do have a family.
Julia Munson: Right.
Detective Johnson: And because some people wanta’ hurt us. ‘Kay? So
that’s what the deal is. We’re not gonna’ toss your house.
Julia Munson: Okay. Hhhh.
Detective Johnson: But we still need to, to know that you understand that
you don’t have to sign that. And if you sign it you’re doing it voluntarily.
Julia Munson: And so if I don’t sign it I can’t even take you to the
paraphernalia?
Detective Johnson: Right, right. If you don’t sign it here’s what happens.
We’re gonna’ get up and we’re gonna’ go out that door. We’re gonna’ leave.
Julia Munson: (Cough)
Detective Johnson: And this is the deal Julia. This is the fork in the road.
And today you’re gonna’ decide where you’re gonna’ be tomorrow and, and to
be real honest with ya’ today is March 15th. The decision you make today is
gonna’ determine where your children are raised.
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Julia Munson: (Sniff)
Munson then signed the form.
¶11 Munson and the Officers walked through the apartment, and she pointed out various
pieces of paraphernalia, including a glass pipe with white residue, a Ziploc bag with white
residue, two bongs, a glass vial, and five pill capsules. After the Officers had completed the
search of Munson’s apartment, they advised her of her Miranda rights. Basnaw also
conducted a search of Munson’s vehicle at some point during this period.
¶12 Munson started crying again and became upset when, having been under the
impression that she would only be issued a citation for having the paraphernalia, Basnaw told
her that he was going to arrest her, that someone would have to come and be with her
children, and that the Department of Family Services would probably become involved.
Munson called her father to take the children, and the Officers placed her under arrest.
According to the transcript, Basnaw terminated the interview at “16:45,” which indicates that
the Officers were at Munson’s apartment building for approximately one hour and forty-five
minutes.
¶13 On March 28, 2005, the State charged Munson with criminal possession of dangerous
drugs (methamphetamine), a felony, in violation of § 45-9-102(1), (5), MCA, criminal
endangerment, a felony, in violation of § 45-5-207(1), MCA, and criminal possession of drug
paraphernalia, a misdemeanor, in violation of § 45-10-103, MCA.
¶14 Munson filed a motion to suppress “any and all statements” she had made to the
Officers on the ground that she had been “interrogated while in custody without first being
advised of her constitutional rights as required by [Miranda].” She argued that her “freedom
7
was significantly restricted by the detectives” and that “the detectives . . . persisted in their
questioning until they forced Munson to make incriminating statements.” Munson also
moved to suppress “any and all evidence” collected from her person, residence, and
automobile “because the consent to search was not given freely and voluntarily as required
by [Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041 (1973)].” She contended that
“[t]he totality of the circumstances of the case at hand reveal that [her] consent to search was
. . . the product of coercive and lengthy interrogation tactics.”
¶15 The State filed a response, Munson filed a reply, and the District Court held a
suppression hearing. On September 13, 2005, the District Court issued an order denying
Munson’s motion. With respect to Munson’s statements, the District Court concluded that
the six considerations listed in State v. Olson, 2003 MT 61, ¶ 15, 314 Mont. 402, ¶ 15, 66
P.3d 297, ¶ 15, each weighed in favor of the State and that Munson, therefore, had not been
subjected to a custodial interrogation. With respect to the evidence seized from Munson’s
apartment and automobile, the court reasoned that Munson had been advised that she did not
have to sign the consent form, that the Officers had not made Munson any promises before
she signed the form, and that she had knowingly and voluntarily consented to the search.
¶16 Thereafter, the State filed an amended information, deleting the charge of criminal
endangerment but retaining the charges of criminal possession of dangerous drugs and
criminal possession of drug paraphernalia. Munson entered into a plea agreement and
pleaded no contest to both charges; however, she specifically reserved her right to appeal the
denial of her motion to suppress. The District Court entered judgment on November 3, 2005,
8
sentencing Munson to five years with the Department of Corrections, all suspended, and a
concurrent six-month term in the Ravalli County Detention Center, also suspended.
¶17 Munson now appeals from the District Court’s order denying her motion to suppress.
STANDARD OF REVIEW
¶18 In reviewing a district court’s ruling on a motion to suppress evidence or statements,
we determine whether the court’s underlying factual findings are clearly erroneous and
whether the court’s interpretation and application of the law are correct. State v. Copelton,
2006 MT 182, ¶ 8, 333 Mont. 91, ¶ 8, 140 P.3d 1074, ¶ 8; State v. Bassett, 1999 MT 109,
¶ 17, 294 Mont. 327, ¶ 17, 982 P.2d 410, ¶ 17; State v. Loh, 275 Mont. 460, 475, 914 P.2d
592, 601 (1996). The court’s findings of fact are clearly erroneous if they are not supported
by substantial credible evidence, if the court has misapprehended the effect of the evidence,
or if our review of the record leaves us with a definite or firm conviction that a mistake has
been made. State v. DeWitt, 2004 MT 317, ¶ 21, 324 Mont. 39, ¶ 21, 101 P.3d 277, ¶ 21;
Loh, 275 Mont. at 475, 914 P.2d at 601.
DISCUSSION
¶19 Issue 1. Did the District Court err in denying Munson’s motion to suppress
statements she made to the Officers?
¶20 The Fifth Amendment to the United States Constitution and Article II, Section 25 of
the Montana Constitution provide that no person shall be compelled in a criminal proceeding
to testify or be a witness against himself or herself. We discussed this privilege against self-
incrimination in State v. Olson, 2003 MT 61, 314 Mont. 402, 66 P.3d 297, explaining that
9
the prosecution may not use statements that stem from a custodial interrogation
of a defendant unless the defendant is warned, prior to questioning, that he has
a right to remain silent, that any statement he does make may be used as
evidence against him, and that he has a right to the presence of an attorney.
[Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966).] These
“warnings” are often referred to as Miranda warnings.
Olson, ¶ 13; accord State v. Reavley, 2003 MT 298, ¶ 17, 318 Mont. 150, ¶ 17, 79 P.3d 270,
¶ 17; State v. Wrzesinski, 2006 MT 263, ¶ 29, 334 Mont. 157, ¶ 29, 145 P.3d 985, ¶ 29; see
also Missouri v. Seibert, 542 U.S. 600, 608, 124 S. Ct. 2601, 2608 (2004) (Opinion of Souter,
J.) (“[F]ailure to give the prescribed warnings and obtain a waiver of rights before custodial
questioning generally requires exclusion of any statements obtained.”); State v. Grey, 274
Mont. 206, 211-14, 907 P.2d 951, 954-56 (1995) (holding that Grey’s confession was
inadmissible due in part to the fact that the police had not given him adequate Miranda
warnings). Accordingly, if Munson was subject to a “custodial interrogation,” then she was
entitled to the Miranda warnings before the Officers questioned her, and because Munson
indisputably did not receive those warnings, her statements could not be used by the State in
prosecuting her.
¶21 There are two separate components to the “custodial interrogation” determination: (1)
whether the individual was “in custody” and (2) whether the individual was subjected to an
“interrogation.” See Rhode Island v. Innis, 446 U.S. 291, 299-301, 100 S. Ct. 1682, 1689
(1980); Illinois v. Perkins, 496 U.S. 292, 297, 110 S. Ct. 2394, 2397 (1990). With respect to
the former, a person is “in custody” for 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.” State v. Elison, 2000 MT 288, ¶ 27, 302 Mont.
10
228, ¶ 27, 14 P.3d 456, ¶ 27 (citing State v. Dawson, 1999 MT 171, ¶ 30, 295 Mont. 212,
¶ 30, 983 P.2d 916, ¶ 30, in turn quoting United States v. Ritchie, 35 F.3d 1477, 1485 (10th
Cir. 1994)). The determination of custody depends on the objective circumstances of the
questioning, not on the subjective views harbored by the officer(s) and the individual being
questioned. See Evans v. Montana Eleventh Judicial Dist. Court, 2000 MT 38, ¶ 21, 298
Mont. 279, ¶ 21, 995 P.2d 455, ¶ 21; Stansbury v. California, 511 U.S. 318, 323, 114 S. Ct.
1526, 1529 (1994) (per curiam). Thus, an officer’s undisclosed view that the individual may
(or may not) terminate the interview and leave has no bearing on the question whether the
individual was in custody at the time; rather, the only relevant inquiry is how a reasonable
person in the individual’s position would have understood his or her situation. See Elison,
¶ 31; Evans, ¶ 21; see also Stansbury, 511 U.S. at 323-25, 114 S. Ct. at 1529-30; Berkemer v.
McCarty, 468 U.S. 420, 441-42, 104 S. Ct. 3138, 3151 (1984).
¶22 The Supreme Court has articulated “[t]wo discrete inquiries” that are essential to the
“in custody” determination:
first, what were the circumstances surrounding the interrogation; and second,
given those circumstances, would a reasonable person have felt he or she was
not at liberty to terminate the interrogation and leave. Once the scene is set
and the players’ lines and actions are reconstructed, the court must apply an
objective test to resolve the ultimate inquiry: [was] there a formal arrest or
restraint on freedom of movement of the degree associated with a formal
arrest.
Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 465 (1995) (alteration in original,
footnote and internal quotation marks omitted).
¶23 The federal courts have identified a variety of circumstances that are pertinent to the
first inquiry, including the language used by the officers; the location or physical
11
surroundings where the questioning occurs; whether the individual consented to speak with
the officers; the degree of pressure applied to detain the individual; whether the individual
was moved to another area; whether the officers informed the individual that he or she was
not under arrest and was free to leave or could ask the officers to leave; whether there was a
threatening presence of several officers; whether the officers used coercive tactics such as
hostile tones of voice, the display of weapons, or physical force; the duration of the
detention; and the extent to which the individual was confronted with evidence of guilt. See
United States v. Hernandez, 476 F.3d 791, 796 (9th Cir. 2007); United States v. Barker, 467
F.3d 625, 629 (7th Cir. 2006); United States v. Willaman, 437 F.3d 354, 359-60 (3rd Cir.
2006); United States v. Czichray, 378 F.3d 822, 827 (8th Cir. 2004); United States v. Salvo,
133 F.3d 943, 950 (6th Cir. 1998); see also Yarborough v. Alvarado, 541 U.S. 652, 663-65,
124 S. Ct. 2140, 2149-50 (2004). We have recognized some of these same considerations.
See e.g. Elison, ¶ 28 (identifying “the time and place of the questioning, the length and mood
of the questioning, and the presence of other persons during the questioning” as relevant
considerations); State v. Rushton, 264 Mont. 248, 256, 870 P.2d 1355, 1360 (1994) (same),
overruled in part on other grounds, State v. Hermes, 273 Mont. 446, 449, 904 P.2d 587, 589
(1995). 1
1
Some of our cases also refer to “whether Miranda warnings were gratuitously
given.” See e.g. State v. Lapp, 202 Mont. 327, 331, 658 P.2d 400, 403 (1983); State v.
Osteen, 216 Mont. 258, 265, 700 P.2d 188, 193 (1985); State v. Staat, 251 Mont. 1, 6, 822
P.2d 643, 646 (1991); Evans, ¶ 19; Olson, ¶ 15; Reavley, ¶ 19; State v. McKee, 2006 MT 5,
¶ 28, 330 Mont. 249, ¶ 28, 127 P.3d 445, ¶ 28; In re Z.M., 2007 MT 122, ¶ 42, 337 Mont.
278, ¶ 42, 160 P.3d 490, ¶ 42. This and the other considerations set forth in Elison and
Rushton derive from Cummings v. State, 341 A.2d 294 (Md.App. 1975). See Lapp, 202
Mont. at 331, 658 P.2d at 403 (citing Cummings, 341 A.2d at 300-05). We note, however,
12
¶24 None of the foregoing circumstances is dispositive. See Czichray, 378 F.3d at 827
(“When the factors are invoked, it is important to recall that they are not by any means
exclusive, and that ‘custody’ cannot be resolved merely by counting up the number of factors
on each side of the balance and rendering a decision accordingly.”). Rather, they must be
considered together in determining whether “a reasonable person [would] have felt he or she
was not at liberty to terminate the interrogation and leave.” Thompson, 516 U.S. at 112, 116
S. Ct. at 465; see also Elison, ¶ 28 (“[W]hile consideration of these factors might be useful,
the ultimate inquiry is . . . whether there was a formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest.” (internal quotation marks omitted)).
¶25 With respect to “interrogation” under Miranda, this term “refers not only to express
questioning, but also to ‘any words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.’ ” Olson, ¶ 18 (quoting State v. Flack, 260
Mont. 181, 186, 860 P.2d 89, 92 (1993), in turn quoting Innis, 446 U.S. at 301, 100 S. Ct. at
1689-90); accord In re Z.M., 2007 MT 122, ¶ 42, 337 Mont. 278, ¶ 42, 160 P.3d 490, ¶ 42;
State v. McKee, 2006 MT 5, ¶ 31, 330 Mont. 249, ¶ 31, 127 P.3d 445, ¶ 31. The primary
that the point the Maryland court was making with respect to the gratuitous giving of
Miranda warnings was not that the gratuitousness of the warnings informs whether the
suspect was “in custody.” Rather, the court’s point was that “the gratuitous and unnecessary
giving of Miranda warnings will [not] operate to convert an otherwise noncustodial situation
into a custodial one.” Cummings, 341 A.2d at 304. Thus, to clarify the relevance of this
consideration in this and future cases, the fact that the officer gave Miranda warnings during
the course of the encounter may be considered in determining whether the individual was in
custody; however, if all other considerations dictate that the individual was not in custody,
the fact that Miranda warnings were given will not by itself convert the otherwise
noncustodial situation into a custodial one.
13
focus in determining whether an incriminating response was reasonably likely to be elicited
from the suspect is on the perceptions of the suspect, rather than on the intent of the police.
Olson, ¶ 18; Z.M., ¶ 42; McKee, ¶ 31.
¶26 With these principles in mind, we now consider the circumstances surrounding the
Officers’ visit to Munson’s apartment and whether those circumstances amount to a custodial
interrogation.
Custody
¶27 We begin with the question of whether Munson was “in custody.” There are
circumstances here that weigh on each side of this question. On one hand, the State points
out that Munson was interviewed in her home during the middle of the afternoon, as opposed
to being dragged out of bed and down to the police station in the middle of the night.
Furthermore, the State suggests that “Johnson’s use of his history with her family and his
attempt to persuade her to cooperate were not threatening and appeared to be sincere.” We
also note here that the Officers wore plain clothes, did not display any weapons, and did not
use physical force to coerce incriminating statements from Munson.
¶28 On the other hand, there are a substantial number of circumstances which indicate that
Munson was in custody. Although the Officers met with Munson in her home,
it is not difficult to envision that a suspect’s sense of captivity can actually be
intensified by the intrusive and intimidating environment created when agents
of the law take control of a person’s private residence. After all, a person can
not reasonably expect to be free anywhere if not within the refuge of his home.
United States v. Griffin, 922 F.2d 1343, 1355 n. 15 (8th Cir. 1990). Indeed, in State v.
Osteen, 216 Mont. 258, 700 P.2d 188 (1985), we explained that “[i]t is not necessary that
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interrogation occur at the police station in order to invoke the Miranda requirements.
Interrogation which occurs in the suspect’s home is subject to Miranda where it occurs in a
coercive environment in which the suspect’s freedom of action has been significantly
restricted.” Osteen, 216 Mont. at 265, 700 P.2d at 193, overruled in part on other grounds,
State v. Loh, 275 Mont. 460, 472, 473, 914 P.2d 592, 599, 600 (1996).
¶29 Here, when the Officers arrived at Munson’s apartment and initially addressed her,
they did not convey that speaking with them was optional; to the contrary, Basnaw told
Munson that he did not have time to come back and that he needed to visit with her “right
now.” Basnaw then told Munson that he and Johnson were there to “follow up” on
information that methamphetamine was presently, or had been the night before, in Munson’s
apartment. The two officers then questioned Munson in tandem. During the course of the
questioning, Munson sat on a couch, Johnson sat on a piece of furniture (another couch or a
coffee table) three or four feet in front of her, and Basnaw alternated between standing,
sitting, and kneeling near Munson while maintaining a distance of three to six feet.
Meanwhile, Munson’s infant daughter was napping and Munson’s five-year-old son was
alternately in and out of the apartment. Under these circumstances, Munson was not free to
leave her apartment; rather, she was compelled to remain there. Indeed, Johnson
acknowledged at the suppression hearing, “She couldn’t get up and leave. We would have
had to.”
¶30 In this regard, Basnaw testified that “[Munson] could’ve asked us to leave, and we
would’ve left, and she would’ve been there by herself.” Yet, this fact was not conveyed to
Munson during the interview, and an officer’s undisclosed view that the individual may
15
terminate the interview and ask the officers to leave has no bearing on the question whether
the individual was in custody. See Elison, ¶ 31; Evans, ¶ 21; cf. Berkemer, 468 U.S. at 441-
42, 104 S. Ct. at 3151. Moreover, by their words and their actions, the Officers actually
conveyed that they were determined to investigate the allegations of criminal activity in
Munson’s apartment and would not leave until they had done so. In particular, Johnson
asked upon arriving, “Can we come in Julia?” and Munson replied, “Um, actually my
daughter’s, I’m just puttin’ her down for a nap can you come back ---------?” Basnaw
declined, stating: “Well actually I don’t have time. Um, I need to visit with ya’ right now.”
Next, Basnaw asked Munson if she had had any methamphetamine in the apartment the
previous night. Munson replied, “No.” Basnaw asked her if she had any drugs in the
apartment at present. Munson replied, “No.” Basnaw asked Munson if she would consent to
a search of the apartment. Munson replied, “No.” Johnson cut in at this point and asked
Munson if she would consent to a search of her body and if she would give them a urine
sample. Munson replied, “No.” Nevertheless, Johnson persisted:
Detective Johnson: Why not?
Julia Munson: Because.
Detective Johnson: ‘Kay. And why wouldn’t you allow us to search your
home?
Julia Munson: Because George [Snell] doesn’t hang out here or
nothin’, you know, I don’t even hardly know him. I know Josh.
Detective Johnson: Uh, huh. (Affirmative)
Julia Munson: And I just don’t fell [sic] that it’s right.
This dialogue occurred within the first few minutes of the Officers’ arrival at the apartment.
Yet, notwithstanding Munson’s unequivocal assertions that there were no drugs in the
apartment, that she would not consent to searches of the apartment or her body, and that she
16
did not want to speak with the Officers at that time, the Officers remained in her apartment
and pressed on with the interview. 2
¶31 Given the Officers’ persistence, it is hardly surprising that Munson felt, as she later
testified at the suppression hearing, that “until they either got what they wanted to hear or
what they wanted to find they would not leave my home.” It is also unsurprising, given
Basnaw’s statement that he needed to speak with Munson “right now” and the fact that she
had an infant napping in the apartment, that she felt she was not free to terminate the
interview and leave. In light of what the Officers stated to Munson and the other
circumstances surrounding the interview, we conclude that a significant degree of pressure
was applied by the Officers to detain Munson. For this reason, we cannot agree with the
District Court that “[t]here was no restriction on Munson’s liberty.”
¶32 Likewise, we cannot agree with the District Court that Munson “invited the officers
into her home to talk.” To the contrary, the record reflects that Munson asked the Officers if
they could come back, since she was just putting her daughter down for a nap. It was only
when the Officers refused that Munson acquiesced to their entry. Notably, the Officers did
not inform Munson that she could refuse to let them in.
¶33 Lastly, we note that the Officers stated unequivocally to Munson at the outset of their
visit that they were there to “follow up” on allegations of criminal activity involving Munson
2
That the Officers were determined to investigate the allegations of criminal activity
in Munson’s apartment and would not leave until they had done so is confirmed by Basnaw’s
and Johnson’s respective testimony to this effect at the suppression hearing. Also, Basnaw
explained at the hearing that it is “fairly common” after an individual has refused consent for
him to sit and talk with the individual about the individual’s family and lifestyle in an effort
to obtain the consent previously refused.
17
and her apartment—in particular, Snell’s allegations of methamphetamine use there. Yet, at
no point did the Officers inform Munson that she was not under arrest, that she was free to
leave, or that they would terminate the interview and leave upon her request.
¶34 In light of the foregoing circumstances, we conclude that the Officers created a
custodial atmosphere and that “[Munson’s] freedom of action [was] significantly restricted,”
Osteen, 216 Mont. at 265, 700 P.2d at 193.
¶35 We reached this same conclusion with respect to the interviews at issue in Osteen and
Rushton. In Osteen, we noted the following circumstances surrounding the officers’ visit to
the defendant’s home:
Here, two armed and uniformed police officers appeared at defendant’s
door at night and sought entry. Meanwhile, another officer and the alleged
victim waited in a vehicle outside defendant’s home. The two officers entered
defendant’s home without a warrant or other authorization, and began to
interrogate the defendant regarding the weapon, his vehicle and his activities
that night. The defendant was alone in his home at the time. The questioning
apparently exceeded ten minutes in length. The officers repeated their
questioning until receiving satisfactory answers. Both officers testified that, at
first, the defendant denied having the gun in his car that night. After additional
questioning, the defendant admitted the gun was with him in the car and he
was formally arrested.
Osteen, 216 Mont. at 265, 700 P.2d at 193. We held that “[t]hese facts establish that the
defendant was significantly deprived of his freedom of action.” Osteen, 216 Mont. at 265,
700 P.2d at 193.
¶36 Similarly, we noted the following circumstances in Rushton:
Here, two armed officers were in defendant’s home late at night after
arousing him from bed. When Detective Bailey and the other officers went to
defendant’s home, it is clear that they suspected defendant of criminal activity.
Moreover, the officers specifically intended to obtain defendant’s consent to
conduct a search of his home because, for administrative reasons only, they did
18
not attempt to get a warrant. Defendant was not told why the officers wanted
to talk with him, nor that he had the right to refuse them entry. Although
defendant quickly put on some clothes, his wife was dressed only in a robe and
pajamas during the time they were questioned by Detective Bailey.
Furthermore, after the Rushtons were told to sit on the couch, a second armed
officer remained standing and blocked the exit from the room. Defendant
testified that he did not feel he was free to leave and the officers present
admitted their intention to stop and detain anyone who attempted to leave.
Rushton, 264 Mont. at 256, 870 P.2d at 1360. On these facts, we concluded that “a person in
defendant’s position could reasonably believe that his freedom was restricted and he was not
free to leave.” Rushton, 264 Mont. at 256, 870 P.2d at 1360.
¶37 The State asserts that Osteen and Rushton are distinguishable from Munson’s
situation. Yet, with respect to Osteen, the State identifies a number of similarities, rather
than differences. For instance, the State observes that “[t]he officers [in Osteen] had
sufficient information for a warrant, but chose not to obtain one.” The same appears to be
true here, given the information the Officers had received from Snell in conjunction with
Basnaw’s personal observations, while standing in Munson’s doorway, of what he thought
might be “paraphernalia for the packaging of methamphetamine or small amounts of
dangerous drugs” and Basnaw’s reaction, upon entering Munson’s apartment, to the presence
of methamphetamine, including “[t]he odor” and his “scratchy throat.” The State further
observes that in Osteen, “[the officers] did not tell Osteen that he had a right to refuse entry
. . . , and they entered Osteen’s home without a warrant or other authorization”—both of
which are also true here. Other similarities abound. In both Osteen and the case at hand, two
officers began questioning the defendant upon entering the home. Osteen was alone at the
time, as was Munson for all intents and purposes (Munson’s infant daughter was napping and
19
Munson’s five-year-old son was alternately in and out of the apartment). The questioning in
both cases exceeded ten minutes; and, most notably, the officers in both cases repeated their
questions until they received the answers they wanted. Although in Osteen, the officers were
armed and uniformed and appeared at Osteen’s door at night, whereas here the Officers wore
plain clothes, did not display any weapons, and appeared at Munson’s door in the middle of
the afternoon, we do not find these distinctions to be as significant as the similarities.
¶38 With respect to Rushton, the State argues that “Rushton was faced with a more
intimidating set of facts.” In particular, whereas Rushton was rousted from bed at night,
Munson was visited during the afternoon, and whereas an armed officer blocked the exit
from the room where Rushton was interviewed, Munson allegedly “was free to make
conscious decisions.” We do not agree, however, that Munson’s situation was necessarily
less “intimidating” or that her decision-making ability was significantly less influenced.
Whereas Rushton was interviewed in the company of his wife, Munson was questioned while
she was, for all intents and purposes, alone in the apartment with two male officers, one of
whom she “kind of” recognized (Johnson) and one of whom she did not know (Basnaw).
Furthermore, according to Munson, the Officers’ presence and physical appearance were,
from her perspective, “intimidating.” (Munson was 5 feet, 2 inches tall and weighed 110
pounds at the time.) And although an armed officer did not block the exit, the Officers
effectively cornered Munson on a couch in her apartment, with Johnson sitting three or four
feet in front of her, with Basnaw alternating between standing, sitting, and kneeling within
three to six feet of her, and with both officers questioning her in tandem and without respite.
20
¶39 But even if we could agree with the State that the facts faced by Rushton were “more
intimidating” than the facts faced by Munson, we have never said that an individual must be
subjected to factual circumstances at least as “intimidating” as those in Rushton in order to be
“in custody.” To the contrary, we have stated that this Court considers each case “on a case-
by-case basis,” focusing on whether a reasonable person in the defendant’s position would
have felt at liberty to terminate the questioning and leave. See State v. Reavley, 2003 MT
298, ¶ 19, 318 Mont. 150, ¶ 19, 79 P.3d 270, ¶ 19; State v. Dawson, 1999 MT 171, ¶ 33, 295
Mont. 212, ¶ 33, 983 P.2d 916, ¶ 33; Rushton, 264 Mont. at 256, 870 P.2d at 1360. Thus,
demonstrating that the facts of Rushton were “more intimidating” would not establish that
Munson was not in custody.
¶40 Finally, the State also argues that Osteen and Rushton are distinguishable because in
the case at hand, Johnson stated to Munson: “If you don’t sign [the Consent to Search form]
here’s what happens. We’re gonna’ get up and we’re gonna’ go out that door. We’re gonna’
leave.” Yet, Johnson made this statement after Munson had admitted that she had
paraphernalia in the apartment and that she had used methamphetamine there during the
previous twenty-four hours. In point of fact, the Officers did not tell Munson at any point
that they would leave if she simply asked them to do so.
¶41 We remained convinced that under the totality of the circumstances surrounding the
Officers’ interview of Munson in her apartment, a reasonable person in Munson’s position
would not have felt free to terminate the interview and leave or ask the Officers to leave.
Accordingly, we hold that Munson was, for purposes of Miranda, “in custody.”
Interrogation
21
¶42 Neither the State nor Munson sets forth a separate analysis on the question of whether
she was subject to an “interrogation.” Rather, they both treat “custodial interrogation” as a
single inquiry and focus primarily on the question of whether Munson was “in custody.”
Here, we have concluded that Munson was, in fact, in custody. Yet, simply because an
individual was in custody does not mean that Miranda warnings were required. See Innis,
446 U.S. at 300, 100 S. Ct. at 1689 (“[T]he special procedural safeguards outlined in
Miranda are required not where a suspect is simply taken into custody, but rather where a
suspect in custody is subjected to interrogation.”). Thus, the State and the defendant should,
in all cases, address both the “in custody” and the “interrogation” questions with separate
analyses. (Likewise, for purposes of creating a complete record on appeal, trial courts
analyzing motions to suppress statements should include separate and clearly designated
analyses of the “in custody” and “interrogation” questions.)
¶43 Irrespective of the parties’ failure to set forth a separate analysis of “interrogation” in
their respective briefs, we consider this issue to be relatively straightforward on the record
before us. As explained above, “interrogation” under Miranda refers not only to express
questioning, but also to any words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect. The primary focus in determining whether
an incriminating response was reasonably likely to be elicited from the suspect is on the
perceptions of the suspect, rather than on the intent of the police.
¶44 Here, at the outset of the Officers’ “visit,” Basnaw asked Munson if she had had any
methamphetamine in the apartment the previous night and if she had any drugs in the
22
apartment at present. He then explained to Munson that he and Johnson were there to
“follow up” on information that methamphetamine was presently, or had been the night
before, in Munson’s apartment. Next, Johnson opined that “[t]here’s some pretty bad stuff
goin’ on here,” and he questioned Munson at length about her lifestyle, whether she needed
rehab, and whether she was raising her children properly. Johnson then asked, “So have you
got crank in this house?” Shortly thereafter Munson admitted that she had paraphernalia and
that she had used methamphetamine during the previous twenty-four hours.
¶45 The dialogue between the Officers and Munson reflects express questioning by the
Officers as well as words and actions on their part that they should have known were
reasonably likely to elicit incriminating responses from Munson. Indeed, Basnaw testified at
the suppression hearing that he “wanted to speak to her about the activities that night, give
her an opportunity to tell me if George Snell had been there and they had been using
methamphetamine and if there were any drugs in the house.” In addition, he testified that he
“wanted to give her an opportunity either to prove or disprove the statements that were made
basically against her by Mr. Snell.” Likewise, Johnson testified that “the intent of that
meeting [at Munson’s apartment] was to conduct an interview with Julie [sic] Munson”
regarding “information from George Snell, who had been arrested the night before or during
the morning hours . . . that indicated there might be some drug activity there.”
¶46 We hold, therefore, that Munson was, for purposes of Miranda, subject to an
“interrogation.”
Custodial Interrogation
23
¶47 Because Munson was interrogated in a custodial atmosphere, she was entitled to the
Miranda warnings under the Fifth Amendment to the United States Constitution and Article
II, Section 25 of the Montana Constitution. The Officers’ failure to preface their questions
with these warnings renders inadmissible the statements Munson made, and the District
Court thus erred when it denied Munson’s motion to suppress those statements. We
accordingly reverse the District Court’s order denying Munson’s motion to suppress her
statements.
¶48 Issue 2. Did the District Court err in denying Munson’s motion to suppress
evidence seized from her apartment and vehicle?
¶49 The Fourth Amendment to the United States Constitution and Article II, Section 11 of
the Montana Constitution safeguard the right of the people to be secure in their persons,
papers, homes, and effects from unreasonable searches and seizures. Unlike its federal
counterpart, however, the Montana Constitution also explicitly ensures the right of individual
privacy. Specifically, Article II, Section 10, states: “The right of individual privacy is
essential to the well-being of a free society and shall not be infringed without the showing of
a compelling state interest.” Search analysis in Montana, therefore, is typically conducted
under both Article II, Section 10, and Article II, Section 11. See State v. Siegal, 281 Mont.
250, 264-65, 934 P.2d 176, 184 (1997), overruled in part on other grounds, State v. Kuneff,
1998 MT 287, ¶ 19, 291 Mont. 474, ¶ 19, 970 P.2d 556, ¶ 19; State v. Scheetz, 286 Mont. 41,
45, 950 P.2d 722, 724 (1997); State v. Tackitt, 2003 MT 81, ¶ 17, 315 Mont. 59, ¶ 17, 67
P.3d 295, ¶ 17. Furthermore, we have long held that the unique language of the Montana
Constitution affords Montanans broader protection than does the Fourth Amendment in cases
24
involving searches of, or seizures from, private property. See State v. Sawyer, 174 Mont.
512, 515, 571 P.2d 1131, 1133 (1977), overruled in part on other grounds, State v. Long, 216
Mont. 65, 67, 71, 700 P.2d 153, 155, 157 (1985); State v. Bullock, 272 Mont. 361, 384, 901
P.2d 61, 75 (1995); State v. Bassett, 1999 MT 109, ¶ 42, 294 Mont. 327, ¶ 42, 982 P.2d 410,
¶ 42.
¶50 Warrantless searches and seizures are per se unreasonable, subject to only a few
carefully drawn exceptions. State v. Elison, 2000 MT 288, ¶ 39, 302 Mont. 228, ¶ 39, 14
P.3d 456, ¶ 39; see also State v. Rushton, 264 Mont. 248, 257, 870 P.2d 1355, 1361 (1994),
overruled in part on other grounds, State v. Hermes, 273 Mont. 446, 449, 904 P.2d 587, 589
(1995); State v. Gomez, 2007 MT 111, ¶ 23, 337 Mont. 219, ¶ 23, 158 P.3d 442, ¶ 23; Payton
v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380 (1980). One such exception is
consent, when it is given knowingly and voluntarily by an individual who has the authority to
consent to the search and seizure. See State v. Copelton, 2006 MT 182, ¶ 18, 333 Mont. 91,
¶ 18, 140 P.3d 1074, ¶ 18; State v. Schwarz, 2006 MT 120, ¶¶ 9-10, 332 Mont. 243, ¶¶ 9-10,
136 P.3d 989, ¶¶ 9-10; State v. Parker, 1998 MT 6, ¶ 20, 287 Mont. 151, ¶ 20, 953 P.2d 692,
¶ 20; Rushton, 264 Mont. at 257, 870 P.2d at 1361. The prosecution carries the burden of
establishing that consent to a warrantless search was freely and voluntarily given and was
uncontaminated by any express or implied duress or coercion. State v. Olson, 2002 MT 211,
¶ 20, 311 Mont. 270, ¶ 20, 55 P.3d 935, ¶ 20; Rushton, 264 Mont. at 257-58, 870 P.2d at
1361.
¶51 We have adopted the Supreme Court’s totality of the circumstances test for
determining whether consent was given freely and voluntarily and without duress or
25
coercion. See State v. Wetzel, 2005 MT 154, ¶ 16, 327 Mont. 413, ¶ 16, 114 P.3d 269, ¶ 16;
Rushton, 264 Mont. at 258, 870 P.2d at 1361; see also Schneckloth v. Bustamonte, 412 U.S.
218, 226, 227, 248-49, 93 S. Ct. 2041, 2047, 2048, 2059 (1973). This test focuses on “the
nature of [the individual’s] subjective understanding,” Schneckloth, 412 U.S. at 230, 93 S. Ct.
at 2049, which in turn depends on “the characteristics of [the individual] and the details of
the interrogation,” Schneckloth, 412 U.S. at 226, 93 S. Ct. at 2047. A number of
considerations are pertinent to this inquiry, such as whether the individual was in custody or
under arrest at the time consent was requested; whether consent was sought after the search
had already been conducted; whether the individual was expressly informed that he or she
had the right not to consent to the search; whether the individual was told that a search
warrant could be obtained; whether the individual was advised of his or her constitutional
rights; the repeated and prolonged nature of the questioning; the individual’s age, education,
and intelligence; and whether the individual was threatened or coerced in any manner. See
Wetzel, ¶ 17; Schneckloth, 412 U.S. at 226, 93 S. Ct. at 2047; United States v. Patayan
Soriano, 361 F.3d 494, 502 (9th Cir. 2004). In the end, however, the determination of
whether consent was given freely and voluntarily and without duress or coercion depends on
the totality of all of the surrounding facts, and no single fact is dispositive. Copelton, ¶ 19.
¶52 In its order denying Munson’s motion to suppress the evidence collected from her
residence and automobile, the District Court stated that Munson “was aware the officers
would leave her home if she decided not to talk with them,” that she “was advised several
times she did not have to sign the consent form,” and that the Officers “made no promises to
Munson before she consented to the search, nor did they threaten to circumvent the scope of
26
her consent absent a warrant.” The court thus reasoned that “Munson analyzed the situation
she was in, and came to the conclusion in her own mind that it was in her best interest to
volunteer the drug paraphernalia, risk the possibility of what she thought was only a
misdemeanor charge, and obtain help.” Therefore, the court concluded, “Munson knowingly
and voluntarily consented to the search.”
¶53 Munson challenges the District Court’s conclusion in light of the following
circumstances. First, Munson points out that she was not informed by the Officers that she
could refuse their entry into her apartment and, furthermore, that when she in fact asked them
if they would come back, Basnaw insisted that he needed to visit with her “right now.”
Second, although Basnaw told Munson that he and Johnson were there to visit with her
regarding “that situation last night with George Snell over here,” few of their questions
actually pertained to Snell or his activities. Instead, Munson asserts, “[the Officers] lectured
her about her lifestyle, implied that they were there to help, and criticized her life to the point
that [she] was crying for a good portion of the interview.” Third, Munson refused twice at
the outset of the questioning to consent to a search of her apartment, but the Officers did not
accept her refusals and leave. Instead they asked, “Why not?” and continued to question her
until she ultimately gave consent. Fourth, when Basnaw produced the Consent to Search
form, he explained that the form “just says that your, you’re uh, having been informed of
your right to refuse a search of your um, of your house . . .”; however, at this point the
Officers had not actually told Munson that she had the right to refuse the search. Munson
points out that, “[t]o the contrary, when she had refused to give consent fifteen minutes prior,
the detectives had simply ignored her refusal, remained in her home, and continued their
27
interrogation.” Fifth, Munson contends that there was an “implied threat” that she would be
incarcerated if she did not consent to the search. According to Munson, Johnson’s earlier
comment that “[w]e didn’t come here and take that Miranda card out” implied, at least in her
mind, that “if she doesn’t cooperate, they will Mirandize her and arrest her.” Lastly, Munson
argues that in its order, the District Court “blatantly ignore[d] the lengthy time of the
interrogation, or the coercive nature of the interrogation” and “state[d] the facts as if Ms.
Munson willingly made admissions without any prompting or effort by the detectives.” This
view of the events, Munson maintains, “is wholly unsupported by the facts.” In sum,
Munson asserts that the State did not meet its burden of proving that her consent was given
freely and voluntarily and was uncontaminated by any express or implied duress or coercion,
and that the District Court erred in concluding otherwise.
¶54 In response, the State argues that Munson’s consent was given voluntarily for the
following reasons. First, the State notes that Munson initially refused the Officers’ request to
search the apartment and Munson’s person and that when she finally allowed a search for
paraphernalia, “she retained some control over where the officers looked.” Thus, in the
State’s view, “Munson was not intimidated so as to deprive her of the power of consent.”
Second, the State maintains that “[e]ven though the officers were there to investigate criminal
activity, that does not contradict their stated desire to help Munson get out of the pattern of
drug use that was evident to them all.” The State acknowledges that the Officers “could have
left to seek a warrant before they obtained Munson’s consent to search, but how would that
have benefited her?” Third, the State suggests that the length of an interview “is simply one
of many factors, and it did not appear significant here.” Lastly, the State asserts that “[t]his is
28
not a case in which the police wore down a suspect,” since Munson “was in her own home”
and “made choices throughout the incident.” Likewise, the State asserts that “[t]his was not a
coerced decision. It was made under emotional circumstances, and Munson certainly knew
that her drug use was a problem for her, but she still made choices that reflected calculation--
albeit with mistaken assumptions that were not the result of being misled by the police.”
Thus, in sum, the State maintains that the District Court “correctly concluded, assessing all
the circumstances, that Munson’s consent to search was voluntary.”
¶55 Having considered the foregoing arguments and the record before us, we conclude that
the totality of the circumstances weighs in Munson’s favor. Although there unquestionably
are circumstances supporting both sides of the consent issue, we consider the following facts
to be most significant.
¶56 First, Munson indicated to the Officers upon their arrival that she did not want to visit
with them at that time, but they insisted on visiting with her “right now,” thereby creating a
coercive dynamic at the outset of the interview. Second, Munson unequivocally refused
twice at the outset of the questioning to consent to a search of her apartment, but the Officers
nevertheless pressured her to change her mind, thereby conveying that they would not take
“No” for an answer. In this regard, we are not persuaded by the emphasis the State places on
the Officers’ altruistic motive in going to Munson’s apartment “to help [her] get out of the
pattern of drug use”—a characterization that is dubious in light of Basnaw’s statement, upon
the Officers’ arrival, that he and Johnson were there to “follow up” on allegations of criminal
activity involving Munson and her apartment. Indeed, the State’s portrayal of the events is
29
belied by Basnaw’s own characterization (while requesting transportation of Munson) of
what had just transpired:
Hi Hillary it’s Jase. Good. Hey that female I talked to ya’ about I’m at her
house now. We did a consent to search and I’m gonna’ end up takin’ her to
jail. Yeah. We got a little bit o’ meth and meth paraphernalia. She’s got a 1-
year-old and a 5-year-old. So how do ya’ like that? Hahaha. Made to order.
¶57 Third, the Officers employed what could fairly be characterized as psychological
tactics to obtain Munson’s consent. Cf. Schneckloth, 412 U.S. at 229, 93 S. Ct. at 2049 (“In
examining all the surrounding circumstances to determine if in fact the consent to search was
coerced, account must be taken of subtly coercive police questions, as well as the possibly
vulnerable subjective state of the person who consents.”). For instance, Johnson told
Munson that “[t]here’s some pretty bad stuff goin’ on here,” opined that she was at “a fork in
the road,” offered ideas on how she might change her life, and then suggested that signing the
consent form would be the wise choice for her to make, noting that “[t]he decision you make
today is gonna’ determine where your children are raised.” As a result, Munson’s consent
ultimately was given while she was in an extremely emotional state brought on by the
Officers’ lecturing her at length about her lifestyle, her children, and her future. For this
reason, we cannot agree with the State that “[t]his is not a case in which the police wore
down a suspect.” To the contrary, our review of the thirty-one-page transcript covering the
approximately one hour and forty-five minutes that the Officers were at Munson’s apartment
leads inescapably to the conclusion that Basnaw and Johnson’s approach achieved exactly
what they had intended: to wear Munson down to the point where she made inculpatory
statements and yielded to their warrantless search of her home.
30
¶58 Lastly, although the Officers did indeed tell Munson that she did not have to sign the
Consent to Search form, they also told her that she did have to sign the form. As a matter of
fact, the transcript reflects virtually simultaneous contradictory statements by the Officers in
this regard; at the very least, their statements to Munson that she did not have to sign the
form were equivocal.
¶59 Based on the totality of the circumstances, we conclude that Munson’s consent was
not given freely and voluntarily and without duress or coercion. Thus, all evidence seized by
the Officers under the guise of Munson’s consent is inadmissible. We accordingly reverse
the District Court’s order denying Munson’s motion to suppress that evidence.
CONCLUSION
¶60 Because Munson was interrogated in a custodial atmosphere, she was entitled to the
Miranda warnings. The Officers’ failure to preface their questions with those warnings
renders Munson’s statements inadmissible, and the District Court therefore erred when it
denied Munson’s motion to suppress those statements.
¶61 Furthermore, because Munson’s consent to search was not given freely and
voluntarily and without duress or coercion, all evidence seized by the Officers under the
guise of that consent is inadmissible, and the District Court therefore erred when it denied
Munson’s motion to suppress that evidence.
¶62 Reversed and remanded with instructions to grant Munson’s motion to suppress and
for further proceedings consistent with this Opinion.
31
/S/ JAMES C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
32