State v. Purdie

NO. 83-283
IN THE SUPREME COURT OF THE STATE OF PlONTAlJA
1984

STATE OF MONTANA,

Plaintiff and Respondent,
-vs-
JOHN Aml,JD PURDIE,

Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable James M. Salansky, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Terry A. Wallace argued, Missoula, Montana

For Respondent :
Mike Greely, Attorney General, Helena, Montana
Robert F. W. Smith argued, Asst. Atty. General,
Helena, Montana
Ted 0 . Lympus, County Attorney, Kalispell, Montana

Submitted: January 9, 1984
Decided: April 30, 1984

Filed: Aj3K -j r984

Clerk
5 . Justice John Conway Harrison delivered the Opinion of
the Court.

Appellant, John Purdie, appeals from a judgment
entered by a jury verdict, Eleventh Judicial District,
Flathead County, conviction of driving under the influence,
third offense. We affirm.
On August 11, 1982, appellant flew from Denver,
Colorado, to Kalispell, Montana. He admitted consuming some
alcohol that evening on the plane and also in a local
tavern. On his way home, he drove past a vehicular accident
that occurred west of Whitefish, Montana. At the accident
site, officer Bergstrom motioned for him to stop as part of
the traffic control. Bergstrom talked briefly with
appellant and smelled alcohol as they spoke. Bergstrom
observed him drive erratically from the accident scene.
Bergstrom pursued and stopped him a short distance from his
home, whereupon appellant exclaimed "Thanks alot guys. I
was almost home." Bergstrom then requested that he get out
of the car and perform some field sobriety tests. He showed
a lack of coordination during the tests. Bergstrom arrested
appellant for driving under the influence. He failed to
give any "Miranda warnings." Subsequently, appellant
refused to give any blood alcohol or breath tests.
Prior to trial, appellant made motions to suppress
certain evidence. The court suppressed the statements made
following his arrest, but ruled admissible the results of
the field sobriety test, a handwriting specimen and the
opinions and observations made by law enforcement officers
regarding appellant's sobriety.
At trial, in chambers, at the conclusion of all of the
testimony and following the settling of the jury

instructions, t h e S t a t e requested permission t o mention i n
closing arguments a comment t h a t no b r e a t h test existed.

The S t a t e e x p l a i n e d i t s a c t i o n a s f o l l o w s :
" I i n t e n d i n my c l o s i n g a r g u m e n t t o
b r i e f l y mention t h e f a c t t h a t w e do n o t
have a b r e a t h t e s t , and I i n t e n d t o d o i t
i n s u c h a way t h a t I am n o t e i t h e r
expressly o r impliedly indicating t h a t a
b r e a t h t e s t was o f f e r e d and r e f u s e d . My
s t a t e m e n t would be s o m e t h i n g t o t h e
e f f e c t t h a t i t would make t h e j u r o r s ' j o b
e a s i e r i f w e had a b r e a t h t e s t and
f u r t h e r t h a t w e d o n ' t need a b r e a t h
test."
The a p p e l l a n t s t r e n u o u s l y o b j e c t e d t o t h i s comment, by

c l a i m i n g t h i s v i o l a t e d t h e r u l e of S t a t e v . J a c k s o n ( 1 9 8 1 ) ,
1 9 5 Mont. 185, 637 P.2d 1, and that it reflected a

commentary on m a t t e r s n o t b r o u g h t i n t o t h e evidence. The
c o u r t r u l e d i n f a v o r of t h e S t a t e .

The j u r y f o u n d a p p e l l a n t g u i l t y o f d r i v i n g u n d e r the
i n f l u e n c e f r o m which h e a p p e a l s . He r a i s e s two i s s u e s i n

t h i s appeal:
(1) Did t h e c o u r t e r r i n a d m i t t i n g t h e r e s u l t s o f t h e

f i e l d s o b r i e t y t e s t ; and
(2) did the court err in permitting the State to

m e n t i o n t h a t no b r e a t h t e s t e x i s t e d ?
Appellant f i r s t contends t h a t t h e f i e l d s o b r i e t y test

c o n s t i t u t e s a s e a r c h and i s t h e r e b y c o n t r o l l e d b y t h e F o u r t h
Amendment t o t h e U n i t e d S t a t e s C o n s t i t u t i o n and A r t i c l e 11,

section 11 of t h e Montana C o n s t i t u t i o n . He contends the
p o l i c e conducted a w a r r a n t l e s s search. The s e a r c h f a i l e d t o
fall into the exceptions, emergency s e a r c h o r consent
search. Therefore, t h e f i e l d s o b r i e t y test r e s u l t s should
have been excluded from evidence because i t was evidence
from an illegal search. We disagree.
In State v. Williams (1969), 153 Mont. 262, 269, 455
P.2d 634, 638, this Court stated: "[a] 'search' in its 4th
Amendment sense simply denotes (1) a quest by an officer of
the law ... (2) with an intention of find ... (3) which
invades a constitutionally protected area.'' (Citations
omitted. )
Section 46-5-101, MCA, implies that a search is an
intrusion upon a person, an object or a place for obtaining
evidence. The constitution's protection against
unreasonable searches safeguards a person's reasonable
expectations of privacy. Katz v. U.S. (1967), 389 U.S. 347,
88 S.Ct. 507, 19 L.Ed.2d 576. But a mere observation does
not constitute a search, Haerr v. U.S. (5th Cir. 1957), 240
F.2d 533. We hold that this field sobriety test failed to
constitute a search protected by either the federal or
Montana Constitutions. The officer merely observed
appellant's behavior which hardly amounts to an intrusion
into his reasonable expectation of privacy. If observed
behavior occurs in a place where the defendant knowingly
exposes it, then no Fourth Amendment violation occurs.
The United States Supreme Court in United States v.
Dionisio (1973), 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67,
found no Fourth Amendment violation with compelled voice
samples for grand jury investigative purposes. In United
States v. Mara (1973), 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d
99, the Court also found handwriting samples subpoenaed for
a grand jury not within the Fourth Amendment constraints.
The Court reasoned by stating the following in these
companion cases:
 "Handwriting, like speech, is repeatedly
shown to the public, and there is no more
expectation of privacy in the physical
characteristics of a person's script than
there is in the tone of his voice." Mara,
410 U.S. at 21, 93 S.Ct. at 7 7 6 7 5
L.Ed.2d at 103.
The appellant in the instant case, upon request,
demonstrated his coordination abilities in the field
sobriety test. He demonstrated to the police officer his
lack of sobriety. He certainly lacked any reasonable
expectation of privacy of his physical behavior.
Appellant argues that the field sobriety test is no
different then a blood alcohol test. He further claims the
arresting officer must inform him of his right to refuse to
take the field sobriety test. In Schmerber v. California
(1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, the
United States Supreme Court permitted a blood alcohol test,
reasoning that no violation of the Fourth Amendment
occurred. " [TIhe Fourth Amendment s proper function is to
constrain, not against all intrusions as such, but against
intrusions which are not justified in the circumstances, or
which are made in an improper manner." 384 U.S. at 768, 86
S.Ct. at 1834, 16 L.Ed. 2d at 918. The Court went on to
find a search incident to arrest and any delay of the
extraction of blood for testing would result in the
destruction of evidence.
We reject appellant's claim that he was entitled to
be informed that he could refuse to take the field sobriety
test. The Colorado Supreme Court in People v. Helm (Colo.
1981), 633 P.2d 1071, said it was not necessary to warn
persons of their right to refuse field sobriety tests. That
court found no Fourth Amendment violation in a field
s o b r i e t y test because t h e defendant consented t o t h e search.
I t w e n t on t o s a y :

"Miranda w a r n i n g s a r e n o t r e q u i r e d b e f o r e
t h e a d m i n i s t r a t i o n of a r o a d s i d e s o b r i e t y
test ... Custody a l o n e does n o t render
. . .
consent involuntary Intoxication,
a l t h o u g h a f a c t o r t o be c o n s i d e r e d , is
n o t d e t e r m i n a t i v e of t h e v o l u n t a r i n e s s of
a consent to search." (Citations
omitted.) 633 P.2d a t 1 0 7 7 .
Appellant next argues the court erred in permitting

the State to mention in its closing argument that no
breathalizer test existed. He r e l i e s on S t a t e v. Jackson

( 1 9 8 1 ) , 1 9 5 Mont. 1 8 5 , 637 P.2d 1. We overruled the f i r s t

J a c k s o n c a s e i n S t a t e v . J a c k s o n (Mont. 1 9 8 3 ) , 672 P.2d 2 5 5 ,

40 S t . R e p . 1698. This Court p e r m i t s evidence of t h e l a c k of
a breathalizer test.

A p p e l l a n t s t r e n u o u s l y a r g u e s t h a t t h e c o u r t e r r e d by
permitting the S t a t e t o discuss evidence i n t h e i r closing
argument not brought into evidence. Appellant cites

numerous c a s e s f o r s u p p o r t o f h i s p o s i t i o n .

H e r e t h e comment was a p p r o v e d by t h e t r i a l j u d g e , and

we f a i l t o f i n d r e v e r s i b l e e r r o r . In the closing statement
the State said:

"Now, I would l i k e t o make a p r e d i c t i o n .
I p r e d i c t t h a t you w i l l r e t i r e t o y o u r
j u r y room a f t e r Mr. W a l l a c e and I a r e
d o n e t a l k i n g h e r e a n d you w i l l s i t down
and somebody i s g o i n g t o s a y , ' W e l l , w h a t
about a breath t e s t ? ' Well, l a d i e s and
g e n t l e m e n , i t would b e n i c e t o h a v e a
b r e a t h t e s t , and i t would h e l p you o u t a s
j u r o r s i f w e had a b r e a t h t e s t . But t h e
f a c t is, w e d o n ' t have a b r e a t h t e s t , and
t h e f u r t h e r f a c t i s w e d o n ' t need a
breath test.

" .. . What I am g e t t i n g a t , d o n ' t s p i n
your wheels, w a s t e a l o t of time worrying
a b o u t w h a t i s n ' t b e f o r e you a s e v i d e n c e .
You h a v e g o t p l e n t y o f e v i d e n c e t o d e c i d e
 t h i s case."

The S t a t e mentioned the l a c k of a breath test in a

limited fashion. However, we fail to find that this

p r e j u d i c e d t h i s c a s e so a s t o r e s u l t i n r e v e r s i b l e e r r o r .
W hereby a f f i r m t h e D i s t r i c t Court.
e

W concur:
e

%A &,L
$% ,,&Q
Chief J u s t i c e '

Mr. Justice Daniel J. Shea will file a written dissent at
a later time.
 DISSENT OF MR. JUSTICE DANIEL J. SHEA

NO. 83-283

STATE OF MONTANA,
f
Pla-inti£ and Respondent,
VS .
JOHN AREND PURDIE,
Defendant and Appellant.

JAM 3 - ffafjs
CLERK OF J'JPRER?E COU&O
UP' IO~VTP$@A .
i

DATED : January 6, 1 9 8 5
Mr. J u s t i c e Daniel J. Shea, d i s s e n t i n g :

I dissent. I t was r e v e r s i b l e e r r o r f o r t h e p r o s e c u t o r

t o b e a l l o w e d t o comment on t h e 1-ack o f a b r e a t h a l - y z e r t e s t

to be introduced as evidence against Purdie. If as he

s t a t e d , t h e S t a t e d o e s n o t have a b r e a t h a l y z e r t e s t and d o e s

n o t need a b r e a t h a l y z e r t e s t , t h e r e was no need t o m e n t i o n

t h i s non-evidence t o the iury.

S t a t e v. Jackson (Mont. 1 9 8 3 ) , 672 P.2d 255, 4 0 ~ t . R e p ,

1698 can be distinguished. Jn that case (Jackson - ,
11)

evidence of d e f e n d a n t ' s r e f u s a l t o submit t o a b r e a t h a l y z e r

t e s t was h e l d a d ~ i s s i b l e n d e r
u § 61-8-404, MCA.

But h e r e , t h e p r o s e c u t o r e x p r e s s l y s t a t e d :

"I i n t e n d t o ... ( m e n t i o n t h e f a c t w e d o n o t have
a breath test) . . . i n such a way t h a t I am n o t
e i t h e r expressly o r impliedly i n d i c a t i n g t h a t a
b r e a t h t e s t was o f f i c i a l and. r e f u s e d . "

Tn J a c k s o n - e v i d e n c e o f h i s r e f u s a l t o t a k e t h e t e s t
11,

was a d m i t t e d . But h e r e , t h e p r o s e c u t o r conceded h e was -
not

o f f e r i n g t h e e v i d e n c e t o show t h a t P u r d i e had e x p r e s s l y o r

impliedly refused a breath test. Clearly, under this

circumstance, evidence of t h e lack of a breath test is not

evidence o f a r e f u s a l . Yet, t h e prosecutor planted t h e seed

i n the jurors' minds. Absent evidence t o t h e c o n t r a r y , w e

should presume this prejudicial comment had the desired

e f f e c t of engendering t h e j u r o r s ' belief t h a t d e f e n d a n t had.

indeed refused a b r e a t h a l y z e r test.

I would v a c a t e t h e jud.gmen