DA 20-0188

IN THE SUPREME COURT OF THE STATE OF MONTANA

2021 MT 157

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

BRANDON MICHAEL BAILEY,

 Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and For the County of Lewis and Clark, Cause No. BDC-2019-557-JA

Honorable Michael F. McMahon, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jeremy S. Yellin, Attorney at Law, Havre, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Michael P. Dougherty, 

Assistant Attorney General, Helena, Montana

Leo Gallagher, Lewis and Clark County Attorney, Josh Nemeth,

Deputy County Attorney, Helena, Montana

Submitted on Briefs: June 16, 2021

 Decided: June 29, 2021

Filed:

__________________________________________

Clerk

cir-641.—if

06/29/2021

Case Number: DA 20-0188
2

Justice Beth Baker delivered the Opinion of the Court.

¶1 Brandon Michael Bailey appeals a First Judicial District Court order affirming his 

jury conviction for driving with a blood alcohol concentration exceeding the legal limit. 

Bailey argues that the Justice Court should have suppressed evidence stemming from the 

stop of his vehicle because the Montana Highway Patrol trooper unlawfully seized him, 

subjected him to a custodial interrogation without first issuing a Miranda warning, and 

lacked particularized suspicion to investigate whether Bailey was driving under the 

influence of alcohol (“DUI”). He also argues that the Justice Court improperly allowed a 

State witness to appear by two-way video at trial. We affirm the denial of Bailey’s motion 

to suppress but reverse his conviction because Bailey was denied his confrontation rights. 

As we remand for a new trial, we do not reach Bailey’s additional argument regarding jury 

selection.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 At approximately 6:16 p.m. on December 1, 2018, Montana Highway Patrol 

Trooper Griffin Sutherland responded to a reported single-vehicle rollover crash on 

Mountain Meadows Road near Helena. The person reporting the crash stated the vehicle 

had rolled over on its side and there were several cans of beer on the ground near the 

vehicle. 

¶3 Trooper Sutherland drove to the scene, traveling eastbound on Mountain Meadows 

Road. He testified that the weather was cold with a slight breeze and that it was dark. The 

road was remote, did not appear to be heavily trafficked, and was not well-maintained. He 

noted that the road was covered with ice and snow and had several ruts, which he believed 
3

were caused by ice thawing and freezing over, but that the overall terrain was fairly level 

and he did not notice any steep ditches in the area.

¶4 When he neared the reported crash site, Trooper Sutherland observed a Toyota 

4Runner driving toward him from the opposite direction. The vehicle matched the 

informant’s description, and he observed fresh damage to the driver’s side, including the 

mirror hanging down from the car, damage to the front fender near the driver’s side door,

and damage to the driver’s side door itself. Trooper Sutherland suspected that the vehicle 

had been involved in the crash. He activated his lights, the vehicle stopped, and the driver, 

Bailey, got out. Bailey told Trooper Sutherland that he had been driving near the shoulder 

of the road at around two miles per hour to avoid the ruts and potholes in the road when

his vehicle got “sucked into” the shoulder and tipped over on its side.

¶5 Trooper Sutherland believed, based on the dynamics of the crash, that Bailey had 

been traveling westbound in the eastbound lane in order to avoid the ruts and potholes in 

the road. Trooper Sutherland was suspicious of Bailey’s explanation of the accident 

because, based on his experience investigating crashes and his observations of the 

conditions, he did not believe a vehicle could have tipped over while moving two miles per

hour. He stated, “it would have taken a good attempt to try to roll a vehicle onto its side 

like that, without having any really extensive drop off next to the roadway.” Trooper 

Sutherland was concerned that Bailey may have been impaired based on the reported beer 

cans near the crashed vehicle and Bailey’s having left the scene of the crash before being 

released by law enforcement. He testified that he was still investigating at this point 

whether a traffic violation had occurred, such as reckless or careless driving. 
4

¶6 Trooper Sutherland asked Bailey to sit in the back of his patrol vehicle. He did not

handcuff Bailey or tell Bailey he was under arrest. Trooper Sutherland testified that he 

asked Bailey to sit in the patrol vehicle because: (1) he was still investigating the crash and 

needed to ask Bailey questions for the crash investigation report, which he could more 

conveniently do within the patrol vehicle where there was a computer system in which he 

could directly type out Bailey’s answers; (2) it was cold and he did not want either Bailey 

or himself sitting outside while he asked questions about the crash; and (3) he was 

concerned that Bailey may be impaired, and having him sit in the backseat of the patrol 

vehicle would make it easier to detect any odor of alcohol. Regarding the third reason, 

however, Trooper Sutherland testified that, “[g]iven the timing of that, given the location, 

the weather conditions, I still would have asked [Bailey] to sit in the backseat of the car. 

I’m from Florida, so when the temperature gets low I get cold.” Trooper Sutherland 

explained that he knew his questioning of Bailey regarding the crash investigation would 

take longer than normal because the car had been removed from the crash site, requiring 

him to rely on Bailey’s answers rather than on his own observations; and, consistent with 

his training, he was not wearing his jacket at this point of the encounter in order to have 

easy access to his belt. His concern about the cold thus was for his own health and safety 

in addition to Bailey’s.

¶7 While in the patrol vehicle, Bailey told Trooper Sutherland that, after the accident, 

he called his wife right away, he received a ride to his brother-in-law’s house from a 

passer-by, and his brother-in-law drove him back to his car and helped him flip his vehicle 

back over. Trooper Sutherland inquired why Bailey did not attempt to contact 
5

law enforcement before leaving the accident; Bailey responded that he did not have cell 

service. Trooper Sutherland reminded Bailey that he said he had called his wife right away;

Bailey responded that he actually had called his wife after he arrived at his brother-in-law’s 

house. Trooper Sutherland testified that he repeatedly told Bailey that he was trying to get 

Bailey on his way as soon as possible. 

¶8 Trooper Sutherland detected the odor of alcohol coming from Bailey’s breath during 

this conversation. He also observed that Bailey’s eyes were “bloodshot” and “watery.” He 

asked Bailey if he had consumed alcohol that night. Bailey replied that he had consumed 

two beers earlier in the evening. Trooper Sutherland then told Bailey, “[t]he reason why 

I’m asking is because I’m catching a whiff of alcohol coming through your gum whenever 

I talk to you. The reason why I put you in the backseat is so I can have the opportunity to 

smell it as you were talking to me.” Trooper Sutherland asked Bailey about a sweatshirt 

he saw in the vehicle that was covering something. Bailey replied that there were 

“alcoholic beverage containers” under it. Bailey was in the backseat of the patrol vehicle

for about fourteen minutes.

¶9 After another officer arrived and Trooper Sutherland had completed most of his 

crash report, he switched the focus of his inquiry to a DUI investigation. Trooper 

Sutherland had Bailey perform two field sobriety tests: the one-leg stand test and the 

horizontal gaze nystagmus (“HGN”) test.1 Trooper Sutherland observed one out of four 

indicators of impairment on the one-leg stand test and four out of six indicators of 

 

1 Trooper Sutherland did not have Bailey perform the “walk-and-turn” test because of the 

conditions outside.
6

impairment during the HGN test. Trooper Sutherland then requested that Bailey provide a 

preliminary breath sample. The breath sample tested positive for the presence of alcohol. 

Trooper Sutherland then placed Bailey under arrest for DUI and requested that he submit 

to a blood test.2 About two hours after the initial encounter with Trooper Sutherland, 

Bailey provided a blood sample showing a blood alcohol concentration (“BAC”) of

approximately 0.112 GM/100 ML.

¶10 Later that day, the State charged Bailey in the Justice Court with DUI in violation 

of § 61-8-401(1)(a), MCA, or, in the alternative, operating a noncommercial vehicle with 

an alcohol concentration of 0.08 percent or greater in violation of § 61-8-406(1)(a), MCA. 

On January 4, 2019, Bailey filed a motion to suppress and dismiss. He argued that 

Trooper Sutherland unlawfully seized him, subjected him to a custodial interrogation 

without first advising him of his Miranda3rights, and did not have sufficient particularized 

suspicion to expand the crash investigation into a DUI investigation. After a hearing, the 

Justice Court denied the motion.

¶11 The State moved the Justice Court to allow Eric Miller—the State Crime Lab 

toxicologist who conducted the BAC toxicology tests on Bailey’s blood and prepared the 

toxicology report—to testify at trial via Skype audio/video conferencing. The State 

acknowledged that Miller’s testimony was material but argued that requiring him to travel 

from Missoula to Helena for brief testimony would be impracticable due to distance, 

 

2 Bailey testified that he asked for the blood test because he was confident it would show that his 

blood alcohol content was below the legal limit.

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
7

expense, and timing. It also argued that Miller’s trip would be impracticable given the 

backlog of work facing the Crime Lab. Bailey objected, arguing that it would violate his 

constitutional right to confront testimonial witnesses under Article II, Section 24, of the 

Montana Constitution and the Sixth Amendment to the United States Constitution. The 

court granted the State’s motion, explaining that it regularly allows State toxicologists to

testify by video to aid the Crime Lab and hasten adjudication of the cases before it.

¶12 The court held a jury trial on May 23, 2019. Montana Highway Patrol Trooper 

Brian Inman testified as a Drug Recognition Expert. He testified to the effects of alcohol 

on a person’s body and a person’s ability to operate a motor vehicle safely, and he described 

in detail the three standardized field sobriety tests. Trooper Inman said that he had 

reviewed the video of Trooper Sutherland administering the HGN test and that to the best 

of his knowledge Trooper Sutherland appeared to administer the test according to the 

standards of his training. 

¶13 Trooper Sutherland testified to the events of the crash and his investigation and 

explained his training and experience in detecting impaired drivers, administering field 

sobriety tests, and investigating DUIs, which he has done over one hundred times during 

his career.

¶14 Miller testified via Skype audio/video conferencing. He was sworn in, the jury 

could see and hear him, Bailey could see and hear him, and both parties examined him in 

real time. He testified to his qualifications, the Crime Lab’s procedures and methods for 

testing blood samples, and the content of Bailey’s toxicology report. A copy of the report 
8

was admitted into evidence without objection. Miller testified that Bailey’s BAC measured 

approximately 0.112 GM/100 ML. 

¶15 Bailey also testified at trial. He admitted to drinking alcohol on the day of the crash 

and stated that he had consumed approximately two to three beers. He stated that he 

probably had breakfast that day but did not know if he had lunch. Bailey denied that he 

was under the influence of alcohol at the time of the crash.

¶16 The jury convicted Bailey of operating a noncommercial vehicle with an alcohol 

concentration of 0.08 percent or greater. It acquitted him of the alternative DUI charge. 

The Justice Court sentenced Bailey to 180 days in jail, all suspended. Bailey appealed his 

conviction to the District Court, arguing the same theories as he does here. The 

District Court affirmed the Justice Court on both issues.

STANDARDS OF REVIEW

¶17 This Court reviews de novo an appeal that originated in a justice court of record, as 

if the justice court ruling were appealed directly without district court review. 

City of Missoula v. Kroschel, 2018 MT 142, ¶ 8, 391 Mont. 457, 419 P.3d 1208 

(citations omitted); State v. Maile, 2017 MT 154, ¶ 7, 388 Mont. 33, 396 P.3d 1270 

(citations omitted). We also review de novo a trial court’s conclusions of law and 

constitutional interpretations. City of Missoula v. Girard, 2013 MT 168, ¶ 10, 

370 Mont. 443, 303 P.3d 1283 (citations omitted); State v. Stock, 2011 MT 131, ¶ 16, 

361 Mont. 1, 256 P.3d 899 (citation omitted). 

¶18 We independently review a trial court’s denial of a motion to suppress evidence to 

determine whether the trial court’s findings of fact are clearly erroneous and whether its 
9

conclusions of law are correct. Kroschel, ¶ 8 (citations omitted); State v. Foster, 

2017 MT 118, ¶ 6, 387 Mont. 402, 394 P.3d 916. “A finding of fact is clearly erroneous if 

it is not supported by substantial evidence, if the trial court misapprehended the effect of 

the evidence, or if this Court has a definite or firm conviction that the trial court committed 

a mistake.” Maile, ¶ 8 (citation omitted).

DISCUSSION

¶19 1. Whether the Justice Court correctly denied Bailey’s motion to suppress.

¶20 The Fourth Amendment to the United States Constitution and Article II, Section 11, 

of the Montana Constitution prohibit unreasonable searches and seizures. The purpose of 

these provisions is “not to eliminate all contact between the police and citizenry,” but rather 

“to prevent arbitrary and oppressive” government interference with individual privacy and 

security. United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S. Ct. 1870, 1877 (1980) 

(internal quotation marks omitted); see also State v. Clayton, 2002 MT 67, ¶ 11, 

309 Mont. 215, 45 P.3d 30; State v. Wilkins, 2009 MT 99, ¶ 8, 350 Mont. 96, 205 P.3d 795 

(quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968)). Because 

of these protections, “government searches and seizures must generally occur pursuant to 

a judicial warrant issued on probable cause.” Kroschel, ¶ 10 (citations omitted).

¶21 A temporary investigative stop is a recognized exception to the warrant requirement. 

Kroschel, ¶ 11 (citing §§ 46-5-401, -403, MCA).

Under this exception, a law enforcement officer may briefly stop and detain 

a person for investigative purposes without a warrant or probable cause for 

an arrest if, based on specific and articulable facts known to the officer, 

including rational inferences therefrom based on the officer’s training and 
10

experience, the officer has an objectively reasonable, particularized 

suspicion that the person is engaged, or about to engage, in criminal activity.

Kroschel, ¶ 11 (emphasis and citations omitted). Such a stop may last only as long as is 

reasonably necessary to confirm or dispel the predicate suspicion for the stop, and law 

enforcement’s means of detainment and investigative questions may not exceed the scope 

of the predicate suspicion for the stop. Kroschel, ¶¶ 13-14 (citations omitted). If a 

law enforcement officer’s investigation exceeds the scope of the stop, the seizure may be 

deemed unreasonable. When an unreasonable search or seizure has occurred, the 

exclusionary rule bars the admission of the resulting evidence. Kroschel, ¶ 36;

State v. Ottwell, 239 Mont. 150, 154, 779 P.2d 500, 502 (1989) (explaining that the 

exclusionary rule bars all resulting evidence as “fruit of the poisonous tree”). During the 

stop, however, additional objective data of wrongdoing “may give rise to further suspicions 

and enlarge the scope of the investigation.” State v. Hurlbert, 2009 MT 221, ¶ 21, 

351 Mont. 316, 211 P.3d 869 (citation omitted); see State v. Allen, 1998 MT 293, ¶ 12, 

292 Mont. 1, 970 P.2d 81. 

¶22 Particularized suspicion to conduct a DUI investigation exists when there is 

“(1) objective data from which an experienced officer ha[s] sufficient cause to conduct the 

field sobriety tests, and (2) a resulting suspicion that the person to be so tested has been 

driving under the influence of alcohol or drugs.” Bramble v. State, 1999 MT 132, ¶ 23, 

294 Mont. 501, 982 P.2d 464 (citing Hulse v. State, 1998 MT 108, ¶ 12, 289 Mont. 1, 

961 P.2d 75). “Particularized suspicion does not require certainty; it depends on the totality 

of the circumstances in which the officer is making the determination,” considering 
11

“the quantity or content of the information available to the officer and the quality or degree 

of reliability of that information.” City of Helena v. Brown, 2017 MT 248, ¶ 10, 

389 Mont. 63, 403 P.3d 341 (citations omitted); City of Missoula v. Moore, 2011 MT 61, 

¶ 16, 360 Mont. 22, 251 P.3d 679 (citing State v. Rutherford, 2009 MT 154, ¶ 12, 

350 Mont. 403, 208 P.3d 389). This analysis may consider factors such as “the time of 

day, the location of the stop, and the [individual’s] driving behavior.” Weer v. State, 

2010 MT 232, ¶ 10, 358 Mont. 130, 244 P.3d 311 (citations omitted).

¶23 A. Whether Trooper Sutherland had sufficient particularized suspicion to expand 

the crash investigation into a DUI investigation.

¶24 Bailey argues the Justice Court should have suppressed all inculpatory evidence, 

including but not limited to any statements against interest, the results of the field sobriety 

tests, any physical evidence observed or obtained from his vehicle, and the results of the 

BAC test. Bailey contends that Trooper Sutherland violated his right to be free from 

unreasonable searches and seizures because the trooper lacked the requisite particularized 

suspicion to expand his crash investigation into a DUI investigation. Bailey contends that, 

during the initial traffic stop and subsequent questioning, he demonstrated no signs of 

impairment that would give rise to independent particularized suspicion to expand the 

scope of the accident investigation into a DUI investigation and that his driving behavior 

had been appropriate for the poor road conditions. Bailey argues further that under 

§ 46-5-401, MCA, Trooper Sutherland was required to inform him of his particularized 
12

suspicion that Bailey was under the influence of alcohol prior to placing him in the patrol 

vehicle.

4

¶25 The Justice Court concluded that “the totality of the circumstances and information 

available to the trooper lends ample suspicion that alcohol may have been a contributing 

factor in the crash and that the defendant was possibly impaired.” Leading up to and during 

the course of the crash investigation, Trooper Sutherland became aware of additional, 

objective facts that gave rise to his suspicion that Bailey was impaired, including: the report 

that there was a rollover crash with beer cans near the scene; the object visible in the back

seat of Bailey’s vehicle concealed by a sweatshirt, which Bailey later said was alcohol; 

Trooper Sutherland’s belief that Bailey’s explanation of the rollover did not make sense 

based on the trooper’s experience with car crashes; and the fact that Bailey was leaving the 

scene of the accident without contacting or being released by law enforcement. Even 

before Bailey sat in the patrol vehicle, Trooper Sutherland believed that Bailey may have 

been under the influence of alcohol. Trooper Sutherland’s suspicions were then further 

aroused when, while Bailey was in the back seat, Trooper Sutherland detected the odor of 

alcohol coming from Bailey’s breath and observed that Bailey’s eyes were bloodshot and 

 

4 Section 46-5-401(1), MCA, states:

In order to obtain or verify an account of the person’s presence or conduct or to 

determine whether to arrest the person, 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. If the stop is for a violation under Title 61, unless emergency 

circumstances exist or the officer has reasonable cause to fear for the officer’s own 

safety or for the public’s safety, the officer shall as promptly as possible inform the 

person of the reason for the stop.
13

watery. When he inquired whether Bailey had consumed alcohol that evening, Bailey 

admitted that he had. 

¶26 We agree with the Justice Court that, on this record, Trooper Sutherland was 

allowed to expand his initial investigation of the crash into a DUI investigation and perform 

field sobriety tests to confirm or dispel his escalating suspicions. Hurlbert, ¶ 34 (citing 

State v. Elison, 2000 MT 288, ¶ 32, 302 Mont. 228, 14 P.3d 456) (law enforcement may 

ask a person a moderate number of questions to confirm or dispel his suspicions); 

see Hulse, ¶ 37 (recognizing that, if a law enforcement officer believes a person may be 

impaired, the best course of action to ensure public safety is to continue the investigation 

to determine whether the person is impaired). The Justice Court correctly concluded that 

there were articulable, objective facts supporting Trooper Sutherland’s particularized 

suspicion that Bailey was operating his vehicle under the influence of alcohol and that 

Trooper Sutherland properly expanded the crash investigation into a DUI investigation. 

¶27 B. Whether Trooper Sutherland subjected Bailey to a custodial interrogation 

requiring a Miranda warning when he asked Bailey to sit in the patrol vehicle and inquired 

about possible alcohol consumption.

¶28 Bailey argues that, even if Trooper Sutherland had sufficient particularized 

suspicion to expand the crash investigation into a DUI investigation, his detention of Bailey 

“evolved into a formal arrest when Trooper Sutherland placed Mr. Bailey in the back of 

his patrol vehicle for the purposes of conducting a custodial interrogation.” He argues that 

Trooper Sutherland lacked probable cause for an arrest and failed to administer Miranda

warnings before questioning him. Bailey maintains that Trooper Sutherland placed Bailey 

in custody when: he at no time informed Bailey he was free to leave, nor did he inform 
14

Bailey he was under investigation for DUI before directing him to sit in the back of the 

patrol vehicle; he directed Bailey to sit in the patrol vehicle as an assertion of authority and 

a show of force because it restrained Bailey such that he would not have been able to exit 

the vehicle on his own accord; he positioned his vehicle in front of Bailey’s vehicle in a 

way that would prevent Bailey from leaving; and he did not inform Bailey of his right to 

refuse to sit in the patrol vehicle. Bailey argues further that there was a show of force when 

multiple law enforcement officers eventually responded and were present during the 

roadside encounter. 

¶29 Bailey additionally contends that Trooper Sutherland conducted a DUI-specific 

interrogation while they were seated in the patrol vehicle, as the officer intended to elicit 

an incriminating response from Bailey. Bailey points to one of Trooper Sutherland’s stated 

purposes for placing Bailey in the patrol vehicle: to detect the odor of alcohol on Bailey’s 

breath. Bailey argues that Trooper Sutherland’s questioning thus exceeded the bounds 

associated with a “brief investigative encounter,” and he was required to advise Bailey of 

his Miranda rights.

¶30 “Because a person is typically not free to leave until released by the investigating 

officer, a temporary investigative stop generally effects a Fourth Amendment seizure.” 

Kroschel, ¶ 25 (citing Berkemer v. McCarty, 468 U.S. 420, 436-38, 104 S. Ct. 3138, 

3148-49 (1984)). 

While both inherently coercive to a degree and a significant restriction on a 

person’s freedom of action for the duration of the stop, a temporary 

investigative stop typically does not curtail a person’s freedom of action to 

an extent or degree similar to a formal arrest due to the brief duration, limited 
15

scope of permissible questioning, public or non-secluded setting, and 

expectation of imminent release typically associated with such a stop.

Kroschel, ¶ 25 (citing Berkemer, 468 U.S. at 436-38, 104 S. Ct. at 3148-49); 

see also Elison, ¶¶ 28, 33. As such, Miranda warnings are not required before routine 

questioning pursuant to an investigative stop. State v. Larson, 2010 MT 236, ¶ 30,

358 Mont. 156, 243 P.3d 1130 (quoting Hurlbert, ¶ 34; Elison, ¶ 29) (“law enforcement 

officers need not administer Miranda warnings to suspects during brief investigative 

encounters even if those encounters are somewhat coercive” given “the brevity of

questioning and its public setting, even though few motorists would feel free to leave” 

(internal quotation marks omitted)); Berkemer, 468 U.S. at 437, 104 S. Ct. at 3148-49 

(“Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but 

only in those types of situations in which the concerns that powered the decision are 

implicated. Thus, we must decide whether a traffic stop exerts upon a detained person 

pressures that sufficiently impair his free exercise of his privilege against self-incrimination 

to require that he be warned of his constitutional rights.”). 

¶31 During routine traffic stops, “an officer may ask the detainee a moderate number of 

questions to determine the detainee’s identity and to try to obtain information confirming 

or dispelling the officer’s suspicions before the requirements of Miranda attach.” 

Larson, ¶ 32 (quoting Elison, ¶ 32). An officer also may administer a field sobriety test 

without implicating Miranda so long as he does not additionally conduct an interrogation; 

“[t]he privilege against self-incrimination does not extend to real or objective evidence.” 

State v. Van Kirk, 2001 MT 184, ¶ 22, 306 Mont. 215, 32 P.3d 735 (citation omitted); 
16

Larson, ¶ 30 (citing State v. Stanczak, 2010 MT 106, ¶ 9, 356 Mont. 263, 232 P.3d 896)); 

see also Berkemer, 468 U.S. at 442, 104 S. Ct. at 3151-52 (holding that a person subjected 

to only a traffic stop and field sobriety tests is not in custody for the purposes of Miranda).

¶32 “[T]he permissible non-custodial questioning incident to a temporary investigative 

stop may nonetheless ripen into a custodial interrogation if the circumstances of the 

detention and related questioning evolve to approximate the more coercive nature of an 

incommunicado police interrogation incident to a formal arrest.” Kroschel, ¶ 26 (citing 

Berkemer, 468 U.S. at 440, 104 S. Ct. at 3150). When determining whether a person has 

been taken into custody, “the ultimate inquiry is not whether a reasonable person would 

feel free to leave, but rather whether there was a ‘formal arrest or restraint on freedom of 

movement’ of the degree associated with a formal arrest.” Maile, ¶ 12 (quoting

Elison, ¶ 28). “Interrogation includes 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.” State v. Braulick, 

2015 MT 147, ¶ 16, 379 Mont. 302, 349 P.3d 508 (quoting State v. Olson, 2003 MT 61, 

¶ 18, 314 Mont. 402, 66 P.3d 297) (internal quotation marks omitted). 

¶33 We considered in Larson, Elison, and Kroschel whether investigative stops ripened 

into custodial interrogations. In Larson, at the outset of a traffic stop the officer observed 

the defendant slurring his words, speaking slowly, and experiencing delayed reaction times 

when asked for his license and registration. Larson, ¶ 10. The officer inquired whether 

the defendant had consumed any alcohol that evening; after receiving an affirmative 

response, he requested the defendant exit the vehicle to perform field sobriety tests. 
17

Larson, ¶ 10. We held that the investigation “remained public, routine, and temporary in 

nature,” and that the officer’s questions to Larson “were confined to the context of an 

ongoing DUI investigation,” thus not implicating Miranda. Larson, ¶ 32 (citing 

Elison, ¶ 32). Similarly in Elison, ¶¶ 6-8, after an officer was informed of possible drug 

use, the officer initiated a traffic stop, immediately smelled the odor of marijuana, observed 

that the defendant “appeared nervous, his eyes were red and glassy, and he would not sit 

still.” The officer frisked the defendant, asked about the pipe that had been reported, and 

asked whether there was marijuana in the truck. Elison, ¶ 9. We held that, even though 

the defendant was not free to leave, the circumstances did not implicate Miranda because 

his freedom of movement was not restrained to “the degree associated with formal arrest” 

and the officer’s “questions were reasonably related to the reason for the stop and designed 

to dispel his particularized suspicion that Elison had been smoking marijuana[.]” Elison, ¶¶ 

32-33. See also Allen, ¶¶ 5-6, 13 (where during a traffic stop the officer asked the defendant 

to exit his vehicle to discuss his license plate and then detected the odor of alcohol and 

asked the defendant if he had been drinking; we held that “[t]he stop was . . . public, routine, 

and temporary in nature,” thereby “distinguish[ing] it from ‘custodial’ interrogations,” 

even though the defendant was not free to leave). 

¶34 In Kroschel, however, we held that the detainment escalated to a custodial 

interrogation implicating Miranda. There, after observing the underage defendant at a 

football game “unsteady on [her] feet” and being physically assisted to the restroom by a 

friend, the officer approached, detected the odor of alcohol, and asked the defendant for 

identification, which she did not have. Kroschel, ¶ 2. The officer asked for the defendant’s 
18

name and date of birth, to which the defendant twice provided incorrect information. 

Kroschel, ¶ 3. The officer suspected the defendant of the crime of Minor in Possession, 

and further pursued the requested information; the defendant was physically removed to 

multiple secluded locations and questioned and threatened with arrest by multiple law 

enforcement officers, who made it clear she would not be free to go until she complied 

with their requests. Kroschel, ¶¶ 4-6. We thus concluded the questioning implicated the 

circumstances contemplated in Miranda. Kroschel, ¶¶ 27, 31. 

¶35 Citing § 61-7-109(3), MCA—allowing law enforcement to complete an accident 

investigation—the Justice Court concluded that Trooper Sutherland’s temporary detention

of Bailey did not escalate to a formal arrest: 

Trooper Sutherland was dispatched to the scene of a possible rollover 

accident, on a public way and as a matter of his status as a law enforcement 

officer was well within his right and obligation to stop the defendant, 

question him as to his possible involvement, inspect the recent damage of the 

defendant’s vehicle and begin an accident investigation. Such an 

investigation, as part of the trooper’s governmental function, required the 

trooper to investigate the cause, and record the information of the driver, 

occupants, vehicle identification and liability insurance. Trooper Sutherland 

was in close proximity to the defendant out of this responsibility during the 

investigation and did not seize him illegally. The [c]ourt is unaware of any 

requirement, rule or statute that prohibits the trooper from asking the 

defendant to sit in a patrol vehicle during this phase of crash investigation.

¶36 Section 61-7-109(3), MCA, states: 

A law enforcement officer who in the regular course of duty investigates a 

motor vehicle accident in which a person is killed or injured or in which 

damage to the property of a person exceeds $1,000, either at the time of and 

at the scene of the accident or after the accident by interviewing participants 

or witnesses, shall within 10 days after completing the investigation forward 

a written report of the accident to the department.
19

This statute authorized Trooper Sutherland to initiate an investigative stop and to 

temporarily detain Bailey for the purposes of investigating the reported accident. The 

record supports—and Bailey does not dispute—that Trooper Sutherland lawfully detained

Bailey to investigate the crash based on his particularized suspicion that Bailey had 

committed a traffic code violation or was a witness to such activity. See §§ 61-7-109(3),

61-8-301(1)(a), -302(1), MCA; State v. Marcial, 2013 MT 242, ¶ 18, 371 Mont. 348, 

308 P.3d 69. 

¶37 We agree with the Justice Court that Trooper Sutherland’s request of Bailey to sit 

in the patrol vehicle to answer his questions did not escalate the detention to the level of a 

formal arrest. Trooper Sutherland testified that the primary, determinative reason he asked 

Bailey to sit in his vehicle was to ensure Bailey’s and his own safety given the time of day 

and the road and weather conditions. This is a valid reason to make such a request. 

See Rodriguez v. United States, 575 U.S. 348, 354, 135 S. Ct. 1609, 1614 (2015) 

(noting that an officer’s mission during a traffic stop is to (1) “address the traffic violation 

that warranted the stop” and (2) “attend to related safety concerns”); 

Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333 (1977) (holding that any 

inconvenience to a driver in being asked to step out of his vehicle is outweighed by the 

public interest supported by allowing the practice—namely, officer and traffic safety); 

accord Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S. Ct. 882, 886 (1997); 

compare State v. Roy, 2013 MT 51, ¶ 13, 369 Mont. 173, 296 P.3d 1169 (where this Court 

declined to apply the rule from Mimms and Wilson because the officer’s rationale in asking 

the defendant to exit his vehicle was not due to an accepted public policy reason underlying 
20

the Mimms rule, such as public or officer safety). Though Trooper Sutherland 

acknowledged that he requested Bailey to sit in the patrol vehicle in part to better determine

whether Bailey had been drinking, Trooper Sutherland still was acting within the confines 

of an investigative stop and attempting to confirm or dispel his suspicions. 

See Berkemer, 468 U.S. at 441-42, 104 S. Ct. at 3151 (“A policeman’s unarticulated plan 

has no bearing on the question whether a suspect was ‘in custody’ at a particular time; the 

only relevant inquiry is how a reasonable man in the suspect’s position would have 

understood his situation.”). There were objectively reasonable factors that led to Trooper 

Sutherland’s request to have Bailey answer his questions from the back seat of the vehicle, 

and that temporary detention did not alone manifest an arrest. 

¶38 The Justice Court also correctly concluded that Trooper Sutherland’s questioning of 

Bailey did not implicate Miranda. It noted that, “although ask[ed] to remain [on site] while 

the trooper completed his governmental function of crash investigation, [Bailey] was not 

under arrest or in custody for any crime, was not handcuffed or questioned about any 

particular offense, but only the information required by the trooper to satisfy the crash 

investigation.” Like in Elison and Larson, Trooper Sutherland’s questions were 

“public, routine, and temporary in nature,” and they remained confined to the context of 

his escalating suspicions of Bailey’s alcohol consumption. Trooper Sutherland never told 

Bailey he was not free to leave or that he was under arrest, nor did he handcuff Bailey or 

use any show of force to coerce Bailey into his vehicle. Unlike in Kroschel, where the only 

possible purpose of moving the defendant to secluded locations and having multiple 

officers question her was to gain the information the officers wanted, Bailey testified that 
21

Trooper Sutherland was “very professional,” that he “knew [Trooper Sutherland] was 

doing his job,” and that Bailey was “completely comfortable with everything.” 

Trooper Sutherland did not inquire about any particular offense, asking only about 

information directly related to the crash investigation or his escalating suspicions that 

Bailey may have been under the influence of alcohol. These facts are consistent with those 

of an investigative stop and did not implicate Miranda. See Larson, ¶ 32.

¶39 The Justice Court correctly concluded that Trooper Sutherland lawfully detained 

Bailey for the purpose of completing his crash investigation and that the detention did not 

amount to a formal arrest. Based on the foregoing conclusions, we affirm the 

Justice Court’s denial of Bailey’s motion to suppress.

¶40 2. Whether the Justice Court violated Bailey’s right to confrontation when it 

allowed Miller to testify via two-way video.

¶41 “In all criminal prosecutions the accused shall have the right . . . to meet the 

witnesses against him face to face[.]” Mont. Const. art. II, § 24; see U.S. Const. amend. VI. 

A criminal defendant’s right to confrontation guarantees the right to fully cross-examine 

testimonial witnesses. Stock, ¶ 29. Cross-examination is an essential function in our justice 

system because it assists in the production of truth; confrontation “ensur[es] that evidence 

admitted against an accused is reliable and subject to the rigorous adversarial testing that 

is the norm of Anglo-American criminal proceedings.” State v. Mercier, 2021 MT 12, 

¶ 16, 403 Mont. 34, 479 P.3d 967 (quoting Maryland v. Craig, 497 U.S. 836, 846, 110 S. Ct. 

3157, 3163 (1990)).
22

¶42 Under Montana’s confrontation clause, a witness may testify via two-way video

only when the “moving party makes an adequate showing on the record that the personal 

presence of the witness is impossible or impracticable to secure due to considerations of 

distance or expense.” City of Missoula v. Duane, 2015 MT 232, ¶ 25, 380 Mont. 290, 

355 P.3d 729. After Bailey’s trial, this Court clarified in Mercier, ¶ 20 (quoting Craig, 

497 U.S. at 850, 110 S. Ct. at 3166), that the showing of “impossibility” or 

“impracticability” does not obviate the State’s burden to also sufficiently demonstrate that 

dispensing with literal face-to-face confrontation would be “necessary to further an 

important public policy.” Judicial economy, standing alone, does not satisfy the 

constitutional requirement that a defendant’s right to in-person confrontation at trial may 

be replaced by testimony via two-way video. Mercier, ¶ 26.5

¶43 In granting the State’s motion to allow Miller to appear via Skype, the Justice Court 

stated that Miller lives and works in Missoula and thus 

would be required to spend the entire [workday] travelling to Helena and 

waiting to testify in this matter, before returning home after a brief testimony. 

This [c]ourt is well aware of the continuing backlog of work facing the 

State Crime Lab at this time. With the State’s forensic scientists being 

subpoenaed nearly daily in courts around the State, permission for 

 

5

In Mercier, a majority of the Court agreed that Craig’s two-prong test of “necessity” and 

“reliability” applies to cases involving two-way video. Two members reasoned that Duane’s 

“impossibility or impracticability” standard did not supplant a showing that the use of such 

technology is “necessary to further an important public policy.” Mercier, ¶¶ 20, 22. Three others 

would have overruled or clarified Duane “to eliminate its conclusion or suggestion that prohibitive 

expense forms the basis of necessity and to eliminate its conclusion or suggestion that Craig’s 

necessity requirement is replaced with or includes an impracticality standard.” Mercier, ¶ 41

(Gustafson, J., specially concurring and dissenting). Irrespective of these differences, the majority

agreed that “generalized judicial economy,” of the sort the Justice Court invoked in this case, was 

an insufficient basis to allow two-way video testimony and “must yield to the constitutional rights 

of the accused.” Mercier, ¶ 26; Mercier, ¶ 41 (Gustafson, J., specially concurring and dissenting,

noting that “expense is not a justification for a constitutional shortcut”). 
23

Mr. Miller’s video testimony is the only practicable solution to allow the 

Crime Lab to continue its work, in turn facilitating the efficiency of this court 

and statewide criminal prosecutions in general.

¶44 Bailey argues the State failed to sufficiently demonstrate that Miller’s travel from 

Missoula to Helena to testify at the trial in person would impose prohibitive expense on 

the State or a significant burden on Miller. He contends that the Justice Court’s reasoning 

for granting the State’s motion was insufficient because it was based merely on its regular 

practice of allowing witnesses from the Crime Lab to appear by video and for judicial 

economy.

¶45 The State concedes that Mercier renders erroneous the Justice Court’s decision to 

allow Miller to testify via two-way video. Although the court did not have the benefit of 

our decision at the time, we agree that Mercier is on point. Because Miller was a 

testimonial witness, the State could not have him appear by video without a proper showing 

that Miller’s testimony was necessary to further an important public policy aside from 

judicial economy. Mercier, ¶¶ 20, 26.6 The State provided only vague and unverified 

claims of the burden Miller’s testimony may cause to his or the Crime Lab’s work. 

Allowing the Skype testimony violated Bailey’s constitutional right to confrontation.

¶46 The State argues, however, that the error was harmless. “A constitutional 

deprivation of the defendant’s confrontation right is a trial error and is subject to harmless 

error review.” Mercier, ¶ 31 (citation omitted). The State bears the burden of proving 

beyond a reasonable doubt that the error was harmless. Mercier, ¶ 31 (citation omitted). 

 

6 The Dissent raises a hypothetical set of unusual circumstances that go well beyond “generalized 

judicial economy.” Dissent, ¶ 54. We limit our decision to the facts of this case.
24

We consider under this analysis “the importance of the witness’[s] testimony in the 

prosecution’s case, whether the testimony was cumulative, and the presence or absence of 

evidence corroborating or contradicting the testimony of the witness on material points.” 

Mercier, ¶ 31 (citation and internal punctuation marks omitted). We “look[] not to the 

quantitative effect of other admissible evidence, but rather to whether the fact-finder was 

presented with admissible evidence that proved the same facts as the tainted evidence 

proved.” Mercier, ¶ 31 (citing Van Kirk, ¶ 43; emphasis omitted). We recognized in 

Van Kirk, ¶ 45, that:

there will be cases in which there was no other admissible evidence proving 

the same facts that the tainted evidence proved, making the burden of 

producing cumulative evidence of the fact impossible. Clearly, if the only 

evidence tending to prove an element of the crime is tainted, then reversal 

will be compelled.

¶47 The State argues that the jury was presented with cumulative evidence that proved 

the same facts as the tainted evidence—that Bailey’s BAC exceeded the legal limit. It 

points to Trooper Inman’s testimony that a person’s BAC would be beyond the legal limit 

if he displayed four out of six indicators of impairment on a HGN test; 

Trooper Sutherland’s testimony that Bailey displayed four out of six indicators of 

impairment during the HGN test; and Bailey’s admission that he had consumed alcohol 

before driving.

¶48 This evidence does not satisfy the State’s harmless error burden. Recall that the 

jury acquitted Bailey of DUI and convicted him of the per se offense. Testimony regarding 

Bailey’s HGN test results, and even Bailey’s admission to consuming alcohol, were not 

cumulative of Miller’s testimony or the forensic test results. No other testimony proved 
25

Bailey’s BAC—an element of § 61-8-406(1)(a), MCA, the statute Bailey was convicted of 

violating. That statute explicitly identifies the accepted methods of BAC 

analysis: “analysis of the person’s blood, breath, or urine.” Section 61-8-406(1)(a), MCA; 

see also Admin. R. M. 23.4.201–23.4.225 (defining and providing the scientific protocols 

for BAC analyses). Miller’s testimony was the only evidence presented that could prove 

that Bailey’s BAC exceeded the legal limit of 0.08 percent, without which the jury could 

not conclude that Bailey violated § 61-8-406(1)(a), MCA. See Mercier, ¶ 33; 

compare State v. Weldele, 2003 MT 117, ¶ 63, 315 Mont. 452, 69 P.3d 1162 (where we 

found harmless error because there was an additional test, separate from the tainted 

evidence, sufficient to establish the “under the influence” element of the charged crime).

¶49 The Justice Court thus improperly allowed the State’s expert witness to testify via 

two-way video without an adequate showing that the video appearance was necessary to 

further an important public policy. We reverse the Justice Court’s ruling on this issue and 

remand for a new trial consistent with this Opinion.

7

CONCLUSION

¶50 The Justice Court correctly determined that Trooper Sutherland’s initial temporary 

detention and subsequent DUI investigation both were based on sufficient particularized 

 

7 Bailey contends that this Court should remand the issue to the Justice Court with instructions to 

dismiss the case “to send a message to prosecutors and the judiciary that these types of 

constitutional violations must end” and because “[i]t is unjust and fundamentally unfair to subject

Mr. Bailey and the taxpayers of this State to the time, expense, stress, and burden of another trial.” 

Bailey provides no authority in support of his argument, and, as he notes, the remedy in such 

situations where a defendant’s right to confrontation has been violated is to remand for a new trial. 

See, e.g., State v. Laird, 2019 MT 198, ¶ 113, 397 Mont. 29, 447 P.3d 416.
26

suspicion and that Bailey was not subjected to a custodial interrogation when he was 

detained in the back seat of the patrol vehicle. We accordingly affirm the Justice Court’s 

denial of Bailey’s motion to suppress. Because the Justice Court could not on this record 

constitutionally allow the State’s expert witness to testify via two-way video, we reverse 

Bailey’s conviction and remand the case for a new trial. 

/S/ BETH BAKER

We Concur: 

/S/ LAURIE McKINNON

/S/ JAMES JEREMIAH SHEA

/S/ INGRID GUSTAFSON

/S/ DIRK M. SANDEFUR

/S/ JIM RICE

Chief Justice Mike McGrath, dissenting.

¶51 I continue to contend that a showing of “necess[ity]” is not required by the 

Confrontation Clause for the use of modern two-way video communication technology. 

See State v. Mercier, 2021 MT 12, ¶¶ 42-51, 403 Mont. 34, 479 P.3d 967 (McGrath, C.J., 

specially concurring); City of Missoula v. Duane, 2015 MT 232, ¶¶ 27-31, 380 Mont. 290, 

355 P.3d 729 (McGrath, C.J., concurring). Moreover, I believe that this Court should be 

guided by a careful analysis of the challenged technology and its effect on the 

Confrontation Clause’s guiding principle—“reliability of the evidence against a criminal 

defendant”—rather than mechanically applying a standard ill-suited for this particular 

technological context. Maryland v. Craig, 497 U.S. 836, 845, 110 S. Ct. 3157, 3163 

(1990). 
2

¶52 Today’s majority Opinion adopts our recent Mercier plurality decision. In Mercier, 

the Court fractured into three separate opinions attempting to address this Court’s 

precedent on the issue of two-way video testimony. The principal opinion in Mercier—

signed by two justices—contended that this Court’s Duane holding, which allowed the use 

of two-way video testimony upon the finding that in-person testimony would have been 

“impossible or impracticable,” did not actually represent a departure from the “necess[ity]” 

standard Craig had articulated for the use of one-way video. See Mercier, ¶ 20 (citing 

Duane, ¶ 25). Five justices disagreed, believing that Duane appeared to fashion a new 

standard for two-way video testimony. See Mercier, ¶¶ 45-48 (McGrath, C.J., specially 

concurring); Mercier, ¶ 41 (Gustafson, J., specially concurring and dissenting). Three of 

these justices believed that Duane should be “clarif[ied] or overrul[ed]” to unambiguously 

adopt the Craig standard for two-way video, see Mercier, ¶ 41 (Gustafson, J., specially 

concurring and dissenting), while the remaining two justices argued that Duane rightly 

established a different standard for the technology. See Mercier, ¶¶ 45-48 (McGrath, C.J., 

specially concurring). Though a majority of justices in Mercier declined to apply the 

“impossible or impracticable” standard articulated in Duane, the Court’s view on these 

matters appears far from settled. For this reason, I reiterate my prior contention that the

Craig standard is inappropriate for the testimony by two-way video technology at issue in 

Duane, Mercier, and the present case.

¶53 The heightened “necess[ity]” standard adopted by the majority Opinion here 

originates from Craig, which deemed “necess[ity]” a proper requirement for the use of a 

particular technology—one-way video—that carried inherent reliability concerns. Craig, 
3

497 U.S. at 850, 110 S. Ct. at 3166. Importantly, the one-way video for testimony by child 

victims was explicitly intended to obscure a fundamental interest of the Confrontation 

Clause: the accuser’s full awareness and perception of the accused. See Coy v. Iowa, 487 

U.S. 1012, 1019, 108 S. Ct. 2798, 2802 (1988) (“It is always more difficult to tell a lie 

about a person ‘to his face’ than ‘behind his back.’” (quoted by Craig, 497 U.S. at 846, 

110 S. Ct. at 3164)); see also Craig, 497 U.S. at 845-46, 110 S. Ct. at 3163 (describing the 

role that formality, in the form of a courtroom oath, plays in “impressing [the witness] with 

the seriousness of the matter and guarding against the lie”). 

¶54 The two-way technology at issue here does not share this troubling purpose or 

effect. It is designed to facilitate, rather than obscure, the transmission of essentially all of 

the same visual and auditory information that individuals can glean from one another 

through in-person interaction.1 In fact, it is not hard to foresee that such technology, which 

continues to improve, could transmit such information more effectively than unaided 

human sensory organs within a courtroom. See Duane, ¶ 28 (McGrath, C.J., concurring) 

(noting that the “advances in communications technology that have far outstripped the 

average person’s ability to foresee or even imagine have occurred at an astonishing pace”); 

Mercier, ¶ 44 (McGrath, C.J., specially concurring) (noting the uncontroversial use of 

eyeglasses and hearing aids to extend the range of failing human sensory organs in court 

proceedings). Imagine a prosecuting witness who has become completely blind and deaf 

 

1 Moreover, this technology has proven itself quite capable at doing so over the course of the 

strain-test brought on by the past year’s Covid-19 pandemic.
4

but whose senses can be temporarily restored to perfect working order when using a 

miraculous new medical device.2 The only hitch: the device is not portable enough to use 

outside of the hospital setting. Would the interests protected by the Confrontation Clause 

be better served by physically bringing this blind and deaf witness to testify in a 

courtroom—unburdened by the perception of her surroundings—or by allowing her to 

testify from a physical distance, where the appropriate technology will force her to perceive 

the courtroom, bailiff, judge, jury, observers, and, importantly, the accused, all in exquisite 

detail? 

¶55 The point is that the technological distinctions matter. A blind focus on physical 

proximity can come at the expense of a serious consideration of the constitutional reliability 

interests implicated by various forms of communication technology. Lest constitutional 

jurisprudence become little more than a gallery of historical artifacts and amusing oddities, 

courts must continue with the difficult task of holding new technologies up to the light of 

enduring constitutional principles. 

¶56 I dissent.

/S/ MIKE McGRATH

 

2

See, e.g., Wayne Lewis, Computer Model Fosters Potential Improvements to ‘Bionic Eye’ 

Technology, Keck School of Medicine of USC (Apr. 9, 2021), https://perma.cc/RBJ9-722Q (last 

visited June 23, 2021) (describing advancements in technology that sends visual information to 

the brain, in the absence of a functioning natural eye, by stimulating retinal neurons with 

electrodes).