State v. Deines

May 19 2009

DA 08-0371

IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 179

STATE OF MONTANA,

Plaintiff and Appellee,

v.

TODD DEINES,

Defendant and Appellant.

APPEAL FROM: District Court of the Seventh Judicial District,
In and For the County of Dawson, Cause No. DC-08-006
Honorable Richard A. Simonton, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender; Kelli S. Sather, Assistant
Appellate Defender, Helena, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; Tammy Plubell,
Assistant Attorney General, Helena, Montana

Scott Herring, Dawson County Attorney, Glendive, Montana

Submitted on Briefs: March 25, 2009

Decided: May 19, 2009

Filed:

__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Todd Deines (Deines) appeals an order of the Seventh Judicial District Court,

Dawson County, denying his motion to suppress evidence of driving under the influence

of alcohol (DUI). We affirm.

¶2 The procedural issue on appeal is whether the District Court correctly denied

Deines’ motion to suppress evidence of driving under the influence of alcohol obtained

after Montana Highway Patrol Trooper Michael Briggs (Briggs) stopped Deines for

running two red lights. Deines argues that the District Court “misapprehended the effect

of the evidence before it” and that this Court should extend a line of cases that “view with

distrust” the failure of law enforcement officers to preserve a record of particular

evidentiary matters. Thus, the relevant legal issue presented in this appeal is whether the

failure of a police officer to record events creating particularized suspicion for a traffic

stop should be viewed with distrust in the judicial assessment of particularized suspicion,

when the means to record events are readily available to the officer.

BACKGROUND

¶3 At about 10:38 p.m. on November 24, 2007, Trooper Briggs was waiting in his

patrol car at the intersection of Towne Street and Meade Avenue in Glendive for the

traffic light to turn green so he could turn left and travel northwest on Towne Street. The

light turned green, Briggs turned left, and after traveling a short distance, he noticed

Deines’ truck traveling in the opposite direction on Towne Street. Briggs testified that he

watched Deines’ truck drive through a red light at Towne and Meade in his driver’s side

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rearview mirror. Briggs made a U-turn to follow Deines’ truck and observed Deines run

another red light on Towne and Kendrick. Briggs turned on his overhead lights to initiate

a traffic stop after Deines stopped for a red light at Towne and Merrill. Briggs’ patrol car

was equipped with a video camera that was activated automatically when the overhead

lights were engaged.

¶4 When Briggs commented that Deines had run two red lights, Deines insisted that

the lights were in fact green. Briggs asked Deines’ girlfriend, who was also in the truck,

whether she noticed that the lights were red. She responded that she did not because she

was looking down at her purse. As a result of the traffic stop, Briggs arrested Deines for

DUI. Prior to conducting field sobriety tests, Deines told Briggs, “I’m sorry what I did at

those stoplights.” Deines’ preliminary breath test revealed a .132 blood alcohol content

(BAC).

¶5 Deines was charged with first offense DUI in violation of § 61-8-401, MCA.

Deines filed a motion to suppress evidence gathered after the traffic stop, which was

denied in justice court. Deines entered a plea bargain agreement with the State, pled nolo

contendere to an amended charge of operating a motor vehicle with BAC of .08 or

greater, in violation of § 61-8-406, MCA, reserving the right to appeal the denial of his

motion to suppress, and was sentenced on March 7, 2008, in justice court. Deines

appealed to the District Court on March 14, 2008. On April 30, 2008, Deines filed a

motion to suppress all evidence gathered during the traffic stop on the grounds that

Briggs lacked particularized suspicion for the stop. The District Court held a hearing on

the motion on June 10, 2008, and denied the motion on June 12. Deines pled nolo
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contendere and reserved his right to appeal the denial of his motion to suppress all

evidence for lack of particularized suspicion. Deines now appeals the denial of his

motion to suppress.

STANDARD OF REVIEW

¶6 We review a district court’s decision to grant or deny a motion to suppress to

determine whether the court’s underlying findings of fact are clearly erroneous and

whether the court correctly interpreted and applied the law to those findings. State v.

Gittens, 2008 MT 55, ¶ 9, 341 Mont. 450, 178 P.3d 91. “A trial court’s findings 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 and firm conviction that a mistake has been made.” State v. Lewis, 2007

MT 295, ¶ 17, 340 Mont. 10, 171 P.3d 731.

DISCUSSION

¶7 Whether the failure of a police officer to record events creating particularized

suspicion for a traffic stop should be viewed with distrust in the judicial assessment of

particularized suspicion, when the means to record events are readily available to the

officer.

¶8 Montana law provides that “a peace officer may stop any person or vehicle that is

observed in circumstances that create a particularized suspicion that the person or

occupant of the vehicle has committed, is committing, or is about to commit an offense.”

Section 46-5-401(1), MCA. The State must prove that an officer had particularized

suspicion to stop a vehicle by showing: (1) objective data and articulable facts from
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which an officer can make certain reasonable inferences; and (2) a resulting suspicion

that the person to be stopped has committed, is committing, or is about to commit an

offense. Brown v. State, 2009 MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842; State v.

Gopher, 193 Mont. 189, 194, 631 P.2d 293, 296 (1981). Whether particularized

suspicion exists is a question of fact that depends on the totality of the circumstances.

State v. Waite, 2006 MT 216, ¶ 11, 333 Mont. 365, 143 P.3d 116.

¶9 The District Court found that “patrolman Briggs’ observation of the Defendant’s

vehicle from his outside mirror going through a red light and his observation of the

Defendant immediately in front of him driving through a second red light is

particularized suspicion that justified the officer’s stop of the Defendant’s vehicle.”

¶10 Deines argues that the District Court’s finding that Briggs had particularized

suspicion is clearly erroneous because the court misapprehended the effect of Briggs’

testimony by failing to consider that Briggs did not record Deines running the second red

light when the means to do so was readily available. Deines argues that this Court should

extend a line of cases that advise Montana courts to “view with distrust” the failure of

law enforcement to preserve a record of particular evidentiary matters.

¶11 This Court first articulated this “viewed with distrust” approach in State v. Grey,

in the context of a police officer’s failure to record Miranda warnings advising a suspect

of his rights. 274 Mont. 206, 214, 907 P.2d 951, 956 (1995). In Grey, the police used

impermissible procedures and tactics, including making false statements, in order to

obtain Grey’s confession to thefts at the store where he worked. 274 Mont. at 212, 907

P.2d at 955. While not holding that police must create a record of giving Miranda
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warnings and a detainee’s waiver of rights, the Court advised, “that may be the better

practice.” Grey, 274 Mont. at 213, 907 P.2d at 955.

We do hold, that, in the context of a custodial interrogation conducted at
the station house or under other similarly controlled circumstances, the
failure of the police officer to preserve some tangible record of his or her
giving of the Miranda warning and the knowing, intelligent waiver by the
detainee will be viewed with distrust in the judicial assessment of
voluntariness under the totality of circumstances surrounding the
confession or admission.

Grey, 274 Mont. at 214, 907 P.2d at 956.

¶12 The Court has reaffirmed this holding in the context of Miranda warnings, while

also distinguishing facts, to conclude that a defendant voluntarily waived his rights

despite police failures to record Miranda warnings and waivers. In State v. Cassell, the

Court held that evidence supported a determination that the defendant voluntarily waived

his rights and confessed, notwithstanding the failure of police to record the warnings and

waiver. 280 Mont. 397, 403, 932 P.2d 478, 481 (1996). The Court noted that the

defendant was 43 years old and had a lengthy police record, which made him familiar

with the criminal justice system and police interrogation methods. Cassell, 280 Mont. at

403, 932 P.2d at 481. The Court further reasoned that none of the interrogations was

overly long, and no threats were made. Cassell, 280 Mont. at 403, 932 P.2d at 481. In

State v. Lawrence, the Court held that police officers’ failure to tape record Miranda

warnings and waiver did not vitiate other evidence supporting the conclusion that the

defendant voluntarily waived his rights. 285 Mont. 140, 155-56, 948 P.2d 186, 195

(1997). The Court concluded that the evidence indicated that the defendant was

repeatedly advised of his Miranda rights, was familiar with Miranda, the criminal justice
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system, and police interrogations from prior arrests and from television. Lawrence, 285

Mont. at 153, 948 P.2d at 194. Furthermore, the defendant testified that he understood

his rights, verbally agreed to speak with officers without an attorney, and signed a

voluntary waiver of rights form. Lawrence, 285 Mont. at 153, 948 P.2d at 194. Finally,

in State v. Gittens, the Court determined that the State met its burden to prove that the

defendant was advised of his Miranda rights and that the defendant voluntarily,

knowingly, and intelligently waived them. Gittens, ¶ 29. The Court made this ruling

even though there was no tangible record of the deputy reading Miranda warnings or of

the defendant’s subsequent waiver. Gittens, ¶ 29. A deputy testified that he read

Miranda rights to the defendant from a printed card, asked the defendant whether he

understood those rights, and that the defendant replied that he did. Gittens, ¶¶ 23-24. A

second deputy confirmed the first deputy’s version of events and both deputies testified

that defendant made an express, verbal waiver of his rights. Gittens, ¶¶ 25-26.

¶13 The Court revisited this “viewed with distrust” language in dicta in State v. Siegal

regarding a law enforcement officer’s failure to videotape the results of a thermal

imaging scan used to support a search warrant application for a suspected marijuana grow

operation. 281 Mont. 250, 278, 934 P.2d 176, 192-93 (1997), overruled on other

grounds, State v. Kuneff, 1998 MT 287, 291 Mont. 474, 970 P.2d 556 (1998). After

deciding to reverse the defendant’s conviction on other grounds, the Court’s opinion

stated:

In light of our decision to reverse the District Court on the motion to
suppress, we need not decide this issue. However, since this is a case of
first impression in Montana, we offer the following for future guidance to
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 the courts. As with our decision in State v. Grey (1995), 274 Mont. 206,
907 P.2d 951, regarding audio and/or video recordings of Miranda
warnings and a detainee’s waiver of the same, we do not require that law
enforcement officers must, as a matter of law, create a video recording of
the results of a thermal imaging scan. We do, however, note that, absent
the demonstration of a legitimate and compelling reason to the contrary, the
failure of law enforcement officers to preserve some tangible record of the
results of a thermal imaging scan should be viewed with distrust in the
judicial assessment of the interpretation of those results. See Grey, 907
P.2d at 956.

Siegal, 281 Mont. at 278, 934 P.2d at 192-93.

¶14 In State v. Weaver, this Court extended its “views with distrust” discussion to a

detective’s failure to preserve a record of interviews with child sexual abuse victims.

1998 MT 167, ¶ 53, 290 Mont. 58, 964 P.2d 713. Drawing on Grey, the Court reasoned

that:

the failure of the investigating officer in child sexual abuse cases to
preserve some tangible record of the interview, in a controlled situation and
absent exigent circumstances, will be viewed with distrust in the judicial
assessment of the veracity of the child victims’ statements. This is all the
more so where the evidence demonstrates that, as in the case before us, the
investigating officer made a conscious decision not to videotape or
audiotape the interviews or to preserve any other kind of record of the
interviews.

Weaver, ¶ 53.

¶15 Finally, in State v. Worrall, the Court extended its “views with distrust” precedent

to the failure of law enforcement officers to record a citizen informant’s statements in the

controlled environment of a station house. 1999 MT 55, ¶ 54, 293 Mont. 439, 976 P.2d

968. In Worrall, two young boys reported to a sheriff’s deputy that they had observed

marijuana plants growing on Worrall’s property. ¶¶ 7-9. The Court held that the

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deputy’s failure to record the interview should be “viewed with distrust” in assessing the

truthfulness of the State’s declarations in its search warrant application:

we hold that, absent the demonstration of exigent circumstances or some
other compelling reason, the failure of the investigating officer to preserve
some tangible record of the citizen informant’s statements made in the
controlled environment of the station house, will be viewed with distrust in
the judicial assessment of the truthfulness of the state’s declarations made
in the search warrant application to the extent those declarations are based
on the citizen informant’s statements.

Worrall, ¶ 55.

¶16 We decline to extend this “viewed with distrust” precedent to the facts in this case.

Grey, Cassell, Lawrence, and Gittens all concern the unique circumstances requiring

Miranda warnings. The U.S. Supreme Court required Miranda warnings in order to

protect a detainee’s constitutional privilege against self-incrimination from the “inherent

coercion” of custodial interrogation:

The current practice of incommunicado interrogation is at odds with one of
our Nation’s most cherished principles—that the individual may not be
compelled to incriminate himself. Unless adequate protective devices are
employed to dispel the compulsion inherent in custodial surroundings, no
statement obtained from the defendant can truly be the product of his free
choice.

Miranda v. Arizona, 384 U.S. 436, 457-58, 86 S. Ct. 1602, 1619 (1966). Deines was not

subjected to custodial interrogation without the benefit of Miranda warnings as a result of

the traffic stop. Weaver and Worrall, while not involving suspect interrogations, both

concern witness interviews conducted in a “controlled environment.”

¶17 This line of “viewed with distrust” cases mostly relate to police officers gathering

evidence in the controlled environment of a police station. This Court has explicitly

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recognized that circumstances, such as Mirandizing a suspect in the field at the time of

arrest, may preclude the creation of a tangible record. Gittens, ¶ 20. Although Briggs’

patrol car was equipped with a video camera, Briggs was not interviewing a suspect at the

police station, and there is no allegation that Deines’ privilege against self-incrimination

was infringed due to a failure to receive Miranda warnings in the face of the inherent

coercion of custodial interrogation.

¶18 Siegal presents the closest factual circumstances to the case at bar. Siegal is the

rare “viewed with distrust” case involving an investigation outside of the police station.

However, this “viewed with distrust” discussion is not binding. The Siegal opinion

specifically prefaced the analysis quoted above as “future guidance to the courts,” which

went well beyond the holding of the case. Consequently, the Court’s discussion in dicta,

that the officer’s failure to videotape the gathering of thermal imaging evidence would be

viewed with distrust in the judicial assessment of the interpretation of those results,

proves of questionable validity. The holding in Grey should not be applied to facts that

do not arise within the “controlled environment” of a law enforcement facility. Such

interrogations involve special constitutional guarantees that have been articulated for

many years by appellate courts throughout the United States (Miranda et al.).

¶19 Moreover, the legislature’s recent adoption of HB 534, “An Act Requiring the

Electronic Recording of Custodial Interrogations in Felony Cases and in Youth Court

Cases Involving an Offense That Would Be a Felony if Committed by an Adult,”

essentially renders Grey and its progeny moot. 2009 Mont. Chap. 214 (signed April 15,

2009; effective Oct. 1, 2009) (available at Montana Legislature 2009 Bills,
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http://leg.mt.gov/css/default.asp). Consequently, future application of this “viewed with

distrust” precedent is doubtful.

¶20 To view a sworn police officer’s statements that he observed actions contributing

to particularized suspicion with distrust merely because he failed to videotape his

observations in the field would stretch our long-established jurisprudence well beyond

constitutional necessity and reason. Deines presents no justification for questioning the

District Court’s factual determination. This Court has long adhered to the well-

established rule that factual determinations are within the purview of the trial courts.

It is not this Court’s function, on appeal, to reweigh conflicting evidence or
substitute our evaluation of the evidence for that of the district court. We
defer to the district court in cases involving conflicting testimony because
we recognize that the court had the benefit of observing the demeanor of
witnesses and rendering a determination of the credibility of those
witnesses.

Gittens, ¶ 27 (citation omitted). To single out a particular class of witness and suggest

that their testimony should be viewed with distrust is a considerable departure from well-

established precedent and a significant erosion of the role of the trier of fact. The District

Court weighed the conflicting testimony of Officer Briggs and Deines and determined

that Officer Briggs’ account was more credible. Deines has not convinced us that the

District Court’s findings of fact were clearly erroneous.

¶21 In addition, Deines provides no reason to believe that videotaping the events

preceding the traffic stop would have done anything but further corroborate Officer

Briggs’ testimony. Briggs was not required to take initiative to procure video evidence

that Deines alleges would assist his defense. Deines’ suggestion that Briggs’ failure to

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videotape him running a second red light amounts to destruction of exculpatory evidence

is not supported by our caselaw or the facts. Weaver, ¶ 54. Briggs could have

particularized suspicion for the stop based solely on his personal observations.

¶22 Grey and its progeny created a cohort of witnesses singled out to “view with

distrust” in particular circumstances. The implications of this suggestion of distrust have

become increasingly difficult to reconcile with our jurisprudence, as recently indicated in

Gittens:

This presumption of distrust flies in the face of the district court’s
credibility and discretionary functions and the law’s requirement that the
totality of the circumstances be considered. It further results in the
backpedaling distinguishing of that holding which is required in this
opinion, and, not least of all, a negative pre-judging of the testimony of a
sworn police officer.

Gittens, ¶ 46 (Rice, J., concurring).

¶23 We conclude that there is no reason to view with distrust the failure of a police

officer to record events creating particularized suspicion for a traffic stop. The District

Court’s finding that Officer Briggs had particularized suspicion to stop Deines was not

clearly erroneous and the denial of Deines’ motion to suppress was correct.

¶24 Affirmed.

/S/ MIKE McGRATH

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We concur:

/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ JIM RICE

Justice James C. Nelson concurs.

¶25 I concur, for the most part, in the Court’s Opinion. I agree that there is no need to

extend the “view with distrust” caselaw to the circumstances here. Indeed, as the Court

itself recognizes, this line of cases was intended from the beginning to encourage law

enforcement to memorialize (other than in their own minds) Miranda warnings/waivers

and interrogations of suspects/witnesses where those occur in the controlled environment

of the station house. Opinion, ¶¶ 11, 14, 15. The fact that the Legislature has effectively

codified the requirement which we suggested years ago, if anything, confirms the wisdom

of our decisions. See Opinion, ¶ 19.

¶26 It is also important to point out, that our “view with distrust” cases were never

intended to apply (nor did they, in fact, apply) to the vast majority of police Miranda

warnings/waivers and suspect/witness interrogations and interviews. Most of these are

conducted by peace officers whose focus is on obtaining accurate, complete factual

information—be it inculpatory or exculpatory—to the end that the actually guilty person

is held to account for his or her criminal conduct and can be fairly tried with all of the

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facts available to the prosecution, defense and fact-finder. As our cases demonstrate,

however, there is the occasional peace officer who is not guided by these principles. And

in those instances, court involvement is necessary to protect the accused’s constitutional

rights and the integrity of the fact-gathering process. Quite simply, if a peace officer is

not willing to memorialize his or her giving of Miranda warnings, a custodial

interrogation, or the taking of a witness statement when he or she is in a controlled

environment and has a recording device or paper and pencil available, then it is entirely

appropriate to infer a purpose to subvert either the suspect’s constitutional rights or the

fact-gathering process itself. As we stated in State v. Worrall, 1999 MT 55, 293 Mont.

439, 976 P.2d 968:

We doubt that there is a police station or sheriff’s office in Montana that
does not have paper and pens for note-taking and, more than likely, a
typewriter for preparing statements, a tape recorder for recording those,
and, in many cases, audio-visual recording equipment. Memorializing the
reading of an accused’s rights, or an accused’s confession or, as in the case
at bar, a citizen informant’s statement in the controlled environment of the
station house, absent exigent circumstances, is neither an onerous nor a
high-tech enterprise. Importantly, doing so avoids the sort of “who said
what to whom” challenges that require trial courts to be arbiters of the
credibility disputes that are nearly always resolved against the defendant.
Indeed, we cannot envision any legitimate reason why the investigating
officer would not—in the ordinary case—memorialize in some fashion the
taking of a witness’s or informant’s statement and, instead, choose to rely
on his or her own memory of what was said, when the accuracy of those
recollections might become critical weeks or months after the interview in
proceedings implicating the fundamental rights of the defendant as well as
the very ability of the state to successfully prosecute the case. No part of
the criminal justice system, be it law enforcement, the prosecution, the
defense, or the court, is well-served by this sort of slipshod approach.

Worrall, ¶ 53; see also United States v. Foster, 227 F.3d 1096, 1103 (9th Cir. 2000) (“We

are mindful that officers are in positions of strength and superior information when
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interacting with an accused and, therefore, that conversations occurring after a person

invokes his or her Miranda rights must be viewed with suspicion and introduced at trial

only with the utmost caution.”). These observations remain true.1

¶27 The “view with distrust” sanction was adopted as an evidentiary test for assessing

credibility, not as a law enforcement protocol. Nor, importantly, was it adopted as a

comment upon peace officers’ credibility generally. I believe that most peace officers

will admit that there are a few bad apples in the law enforcement barrel—just as there are

in every other profession. As in any profession, sanctions are adopted because of the

misconduct of the few, not the many. And it follows that the majority of peace officers

will never have to worry about our guideline. For the minority—few though they may

be—it is appropriate that they do.

¶28 I concur.

/S/ JAMES C. NELSON

1
Indeed, as to confessions and admissions, the black-letter law itself supports our
caselaw. The State has the burden of proving that a confession or admission is voluntary,
§ 46-13-301(2), MCA, and if voluntariness is established as a matter of law, the
circumstances surrounding the making of the confession or admission may be submitted
to the jury as bearing on credibility or weight, § 46-13-301(3), MCA. It is questionable
that any peace officer or prosecutor would choose to rely on mental recollections of an
interrogation or interview months after the fact to establish the voluntariness of a
confession or admission, when it was possible to simply memorialize the Miranda waiver
and the incriminatory statements in the first place. It simply makes no sense to fight
suppression battles that do not have to be fought.
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