### No. 14224 IN THE SUPREME COURT OF THE STATE OF MONTAN 1978

THE STATE OF 

### MONTANA, Plaintiff and Appellant,

-vsELWOOD WILLIAM RYAN, Defendant and Respondent.

Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert H. Wilson, Judge presiding. Counsel of Record: For Appellant: Hon. Mike Greely, Attorney General, Helena,Montana Harold F. Hanser, County Attorney, Billings, Montana James D. Walen, argued, Deputy County Attorney,

Billings, Montana For Respondent: Berger, Anderson, Sinclair and Murphy, Billings,

Montana Chris 

### J. Nelson argued, Billings, Montana

Submitted: December 11, 1978 Decided: 

## JAN 1

## 6

## ;$73Mr. Justice Gene B. Daly delivered the Opinion of the Court.

his appeal 

### isbrought by the Stateof Montana from an order of the District Court, Thirteenth Judicial District, suppressing certain statements made by defendant Elwood Ryan during the execution of a searchwarrant athis home. The appeal is authorized by section 95-2403(2) (f),R.C.M. 1947, which permits the State to appeal from any court order ina criminal case which results inthe suppression of a confession or admission. Atapproximately 10:OO a.m. on September 22, 1977, two detectives from the Yellowstone County sheriff's office and two sheriff'sofficers from Garfield County arrived at defendant's home inJordan, Montana. The detectiveswere in plain clothes and drove an unmarked car while the Garfield County officerswere inuniform and drove a sheriff's vehicle. When the officers arrived, defendant and his stepson were outside the house working on a vehicle parked in the yard. Detective Ellispresented defendant with a searchwarrant authorizing the officers to search his home forvarious firearms which defendant had earlier reported stolen and for which he had received insurance compensation. Upon reading

a copy of thewarrant defendant reportedly told the officers, "Well, you guys have gotme anyway. I 

### willjust show you where the guns are at." ~tthe time the statement was made defendant had not been given a Miranda warning. Inside the house defendant requested the officers towait while his wife got out of bed and dressed. When she had done so, he escorted them into hisbedroom where he pointed to the closet saying "the guns

are inthere." Atthispoint the officershad been atdefendant's home approximately ten minutes and stillhad not informed defendant of his right toremain silentor to consult with an attorney. When the officersbegan checking the serialnumbers on the various weapons they found inthe closet, defendant told them that therewas no sense in writing them down because he had altered them after turning in the burglary report. Itwas only after this statement by defendant that the officers placed defendant under 

### arrest and informed him of his rights. Atthe suppression hearing held February 17, 1978, the District Court held that allthe statements made by defendant prior tohis arrestwere inadmissible for failure to give the Miranda warning. The sole issue on this appeal iswhether the statements made by defendant prior tohis arrestwere the product of custodial interrogation and therefore inadmissible for lack of a Miranda warning, The State argues that defendant's statements before arrestwere completely voluntary and thatuntil the 

### timeof his arrest, defendant had not been deprived of his freedom inany significantway. The Statefurther argues that the officers had not initiated any sortof interrogation or focused their investigation on defendant. Under these circumstances, it contends, the Miranda requirement is not applicable. Defendant argues the DistrictCourt's suppression order should be affirmed because the presence of four armed officerswith a searchwarrant deprived him of his freedom in a significantway and thathe should have been informed of his rights toremain silentprior tomaking any statements.InEscobedo v. Illinois (1964), 378 U.S. 478, 490-91, 12L Ed 2d 977, 986, 84 S.Ct. 1758, 1765, the United States Supreme Court held thatwhere the investigation of a crime has begun to focus on a particular suspect, the suspect 

### is incustody, the police interrogate the suspect thereby eliciting incriminating statements

## , the suspect has 

### requested and been denied an opportunity to consult with counsel, and the police have not effectivelywarned the suspect of his right toremain silent, the suspect has then been denied his SixthAmendment right to "the assistance of counsel" and therefore "no statement elicitedby the police during the interrogationmay be used against him 

### ata criminal trial." This rule was developed further inMiranda v. Arizona (1966), 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1630, 16 L Ed 2d 694, 726, torequire thatwhen an individual is "taken into custody or otherwise deprived of his freedom by the authorities in any significantway and 

### is subjected to questioning," the authoritiesmust employ procedural safeguards to "notify the person of his right of silence and to

assure that the exercise of the right willbe scrupulously honored 

# . . .11 11

# . . 

# . [Ulnless and until such warnings and waiver aredemonstrated by the prosecution attrial, no evidence obtained 

### as a resultof interrogation can be used against him." 384 U.S. at479, 86 S.Ct. at 1630, 16 L Ed 2d at726. The Escobedo and Miranda holdings both applied to interrogations which 

### were conducted after the suspect had been taken tothe police station. However, in 1969, the Supreme Court applied the Miranda rule to an interrogation conducted ata boarding house inthe room of a suspect. Orozco v. Texas (1969), 394 U.S. 324, 89 S.Ct. 1095, 22 L Ed2d 311. In Orozco four officers entered the suspect's room at4:00 a.m. and questioned him concerning a shooting, without arresting him or informing him of his rights. During the questioning, the suspect admitted that he had been atthe restaurant where the shooting occurred and revealed the location of his pistol which was later shown to be the one used inthe shooting. The Supreme Court dismissed the prosecution's argument thatMiranda did not apply tothose statements because they 

### weremade while the defendantwas on his own bed and infamiliar surroundings. Instead, the Court emphasized the words from Miranda which declare that thewarnings are required when the person being questioned is "incustody atthe station 

### - or otherwise deprived 

### -- of his freedom of -action - in

# w significantw~." 394 U.S. at327, 89 S.Ct. at1097, 22 L Ed 2d at315. (Emphasis inoriginal.) In the present case defendant argues that the rationale of Orozco applies because four officers descended upon his premises atonce and while not technically placing him under arrest, deprived him of his freedom of action in a significantway. The Statefocuses on the time, place, and circumstances of both the execution of the search and themaking of the incriminating statements. In particular it points out that the officers arrived atdefendant's home at10:OO a.m., thatdefendant 

### was not incommunicado and was in thepresence and company of hiswife and stepson, and that the officers did not actually interrogate defendant about an alleged crime butmade their purpose known by serving a searchwarrant on him. Of particular significance tothis 

### set of facts 

### is the lack of questioning by theofficers. In Brewer v. Williams(1977), 430 U.S. 387, 97 S.Ct. 1232, 51 L Ed 2d 424, the Supreme Court held inadmissible the statements of a suspect who gave incriminating evidence even after he had been informed of his right toremain silentbecause, after his lawyer had refused topermit interrogation, he was questioned inthe lawyer's absence. In Brewer, the defendant, while riding across Iowa with two detectives, was questioned once atthe beginning of the trip. Sometime later in the journey he made the incriminating statements. 430 U.S. at 392-93, 97 S.Ct. at 1236-37, 51 L Ed 2d at432-33. Having once asserted his right to silence in the absence of his lawyer, the defendant could not again be questioned absent a strong showing of waiver. 430 U.S. at404-06, 97 S.Ct. at1242-43, 51 L Ed 2d at439-41. Thus, where questioning takes place ina custodial setting the dictates of Miranda must be carefully followed. In the same termas the Brewer decision, however, the Supreme Court considered the case of Oregon v. Mathiason (1977), 429 U.S. 492, 97 S.Ct. 711, 50 L Ed 2d 714. In Mathiason it held that a parolee who voluntarily came to a police stationwas not subjected to custodial interrogation when he was questioned about a crime because he had been told that he was not under arrestwhen the questioning began and was free to leave a half hour later when the interview ended. 429 U.S. at495, 97 S.Ct. at714, 50 L Ed 2d at 719. The Court reasoned that a noncustodial situation is not "converted into one inwhich Miranda applies" simply because the questioning takes place ina "coercive environment": "Any interview of one suspected of a crime by a police officer

### willhave coercive aspects toit, simply by virtue of the fact that thepolice officer is part of a law enforcement systemwhich may ultimately causethe suspect tobe charged with a crime. But police officers arenot required to administer Miranda warnings to everyone whom they question. Nor 

### is the requirement of warnings to be imposed simply because the questioning takes place inthe station house, or because the questioned person 

### isone whom the police suspect. Miranda warnings arerequired only where there has been such a restriction on a person's freedom as torender him 'in custody.' It was that sortof coercive environment to which Miranda by its terms was made applicable, and towhich it is limited." 429 U.S. at495, 97 S.Ct. at714, 50 L Ed 2d at719. Thus, Miranda applies to a questioning which takes place in a coercive environment inwhich the suspect's freedom of action has been significantly restricted. From the facts of the present case, defendant argues that his freedom had been so restricted by the presence of the officers. However, the other crucial element of the Escobedo, Miranda, Orozco, and Brewer cases ismissing here--that is, the questioning by the officers. Aswas pointed out in Miranda, a confession which 

### is truly voluntary is not foreclosed from evidence because made before the person confessing has been warned of his rights: "Any statement given freely and voluntarily without any compelling influences is, of course, admissible inevidence. The fundamental import of the privilege while an individual 

### is incustody is not whether he 

### is allowed totalk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement thatpolice stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police tooffer a confession or any other statement he desires tomake. Volunteered statements of any kind arenot barred by the FifthAmendment and their admissibility is not affected by our holding today." 384 U.S. at 478, 86 S.Ct. at1630, 16 L Ed 2d at726. As applied to the facts of this case, the holdings of Escobedo, Miranda, Orozco, and Brewer do not require that the statements of defendant be excluded from the prosecution's evidence. Defendant was not questioned. He simplydecided toadmit thathe stillhad the firearms. Where the entire situation

### was free from any coercion or deprivation of freedom of action by the 

### law enforcement officers and the statements were not the result of interrogation, the requirements of Miranda 

### werenot applicable. Oregon v. Mathiason, 429 U.S. at495, 97 S.Ct. at714, 50 L Ed 2d at719; Beckwith v. United States (1976), 425 U.S. 341, 347-48, 96 S.Ct. 1612, 1616-17, 48 L Ed 2d 1, 8; United Statesv. Shelby (7th Cir. 1978), 573 F.2d 971, 975-76; United Statesv. Long Soldier (8th Cir, 1977), 562 F.2d 601, 603, n.1(2) ; Annot. 31A.L. R. 3d 565, 676-80 (1970). The holdings in Statev. District Court of Eighth Jud. Dist. (1978), Mont

# . , 577 P.2d 849, 35 St.Rep. 481, and State ex rel. Kotwicki v. District Court (1975), 166Mont. 335, 532 P.2d 694, 

### are not directly inpoint with this case but lend considerable strength to the State's position. In those cases the statements or confessions made by the accused occurred while in custody. Due to the special circumstances ineach, however, the confession was held admissible. In the firstcase the accused made a spontaneous confession after he had been informed of his rights, Though the accused was in a police vehicle atthe 

### timehe made the confession, the police had not elicited a statement as inBrewer. 577 P.2d at854, 35 St-Rep. at487. In Kotwicki the defendant had not been informed of his rights to silence and an attorney, but this Court found the confession or admission appeared uncoerced and spontaneous. 166 Mont. at344, 532 P.2d at698-99. In neither Kotwicki

nor DistrictCourt of Eighth Jud. Dist. did this Court attempt to expand the scope or application of Miranda beyondthe federal constitutional requirements established by the United StatesSupreme Court. The judgment 

### of the District Court is reversed and the

cause remanded for further proceedings.

WeConcur: 

# '%&4AC&& Chief'Justice