No 

No. 97-606

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 293

STATE OF MONTANA,

Plaintiff and Respondent,

v.

KEVIN ALLEN,

Defendant and Appellant

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable Edward P. McLean, Judge presiding.

COUNSEL OF RECORD:

For Appellant

Terry Wallace, Attorney at Law, Missoula, Montana

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For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Mark W. Mattioli,

Assistant Attorney General; Helena, Montana

Robert L. "Dusty" Deschamps III, Missoula County Attorney;

Missoula, Montana

Submitted on Briefs: May 28, 1998

Decided: December 3, 1998

Filed:

__________________________________________

Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1. The defendant, Kevin Allen, appealed to the District Court of the Fourth Judicial 

District in Missoula County from a conviction in Missoula County Justice Court for 

driving under the influence of alcohol and improper use of dealer plates. Allen made 

a motion to suppress evidence and the District Court denied it. Allen then pled guilty 

and reserved his right to appeal the denial of his motion to suppress. Following 

consideration of that appeal, we affirm the order of the District Court.

¶2. The sole issue on appeal is whether the District Court erred when it denied 

Allen's motion to suppress evidence.

FACTUAL BACKGROUND

¶3. The parties have stipulated to the following facts:

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¶4. On December 16, 1997, Highway Patrol Officer Michael J. Burman initiated a 

traffic stop of Kevin Allen at approximately 2:45 p.m. Burman based the stop on his 

observation that Allen's vehicle did not have a front license plate. 

¶5. He approached Allen's vehicle and explained the reason for the stop. When 

Burman asked Allen if he knew that there was no front license plate, Allen showed 

Burman a demonstrator plate from a used car dealership in Billings which had been 

inside his car. Burman explained to Allen that the plate had to be displayed and then 

ran a check on Allen's driver's license. He became suspicious that Allen was 

improperly using the demonstration plate and testified that at that time he intended 

to cite defendant for improper use of a dealer plate pursuant to § 61-4-103(4), MCA. 

¶6. Burman returned to Allen's car and asked him to exit the vehicle to speak with 

Burman. As he explained the charges which were being made against Allen, Burman 

detected the odor of alcohol and asked Allen whether he had been drinking. Allen 

admitted to having two beers. Burman then asked Allen to perform roadside sobriety 

tests, to which Allen responded that he would like to consult with his lawyer. Burman 

told him that at that time he did not have the right to call his lawyer. Allen 

performed the tests, but Burman concluded that he had failed those tests, and placed 

Allen under arrest for DUI. After he was transported to the police department office, 

Allen provided a breath sample that measured his blood alcohol content at 0.13. The 

time was 3:50 p.m. He was then advised of his Miranda rights for the first time. 

¶7. In Justice Court, Allen moved to suppress any statements he made prior to his 

arrest. He contended that he was in custody during Burman's roadside investigation, 

and that he was therefore entitled to a Miranda(1) warning. The motion was denied 

and Allen was convicted by a jury of DUI and improper use of dealer plates. On 

appeal to the District Court, he made the same motion to suppress, which was also 

denied. Allen eventually pled guilty to the DUI charge and reserved his right to 

appeal the denial of his motion to suppress; the improper use of dealer plates charge 

was dismissed. 

DISCUSSION

¶8. Did the District Court err when it denied Allen's motion to suppress evidence?

¶9. We review a district court's denial of a motion to suppress to determine whether 

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the court's interpretation and application of the law is correct. See State v. Scheetz

(Mont. 1997), 950 P.2d 722, 724, 54 St. Rep. 1286, 1287; State v. Graham (1995), 271 

Mont. 510, 512, 898 P.2d 1206, 1207-08. 

¶10. Pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 

694, a defendant is entitled to be informed of his right to remain silent and of his 

right to have an attorney present before an officer initiates a custodial interrogation. 

Allen contends that much of the State's evidence should be suppressed because he 

was not given a Miranda warning prior to Burman's investigation of whether he was 

driving under the influence of alcohol. The State, on the other hand, contends that 

Allen was not entitled to a Miranda warning prior to his arrest for DUI, and that any 

statements he made prior to that arrest, including those made during Burman's 

roadside investigation, were voluntary and not subject to constitutional protection. 

¶11. The United States Supreme Court held in Berkemer v. McCarty (1983), 468 U.S. 

420, 104 S. Ct. 3138, 82 L. Ed. 2d 317, that roadside questioning of a motorist 

detained pursuant to a routine traffic stop does not constitute a custodial 

interrogation subject to the procedural safeguards of Miranda. It distinguished a 

roadside detention from the kind of custodial situation with which Miranda was 

concerned, and stated that there is less of a danger that a motorist "will be induced 

to speak where he would not otherwise do so freely." Berkemer, 468 U.S. at 437, 104 

S. Ct. at 3149, 82 L. Ed. 2d at 333 (quoting Miranda, 384 U.S. at 467, 86 S. Ct. at 

1624, 16 L. Ed. 2d at 719). The Court ultimately concluded that most roadside 

detentions are analogous to "Terry(2) stops," in which an officer may briefly question 

a detainee to confirm or dispel his suspicions, but where the detainee is not obligated 

to respond, and that temporarily detained motorists are not in custody for purposes 

of Miranda. See Berkemer, 468 U.S. at 439-40, 104 S. Ct. at 3150, 82 L. Ed. 2d at 334-

35. 

¶12. In the recent decision of Hulse v. Department of Justice, 1998 MT 108, 961 P.2d 

75, 55 St. Rep. 415, we also recognized the similarity of roadside administration of 

field sobriety tests to a Terry investigative stop. We held that an officer need only 

have a particularized suspicion, as opposed to probable cause, to conduct field 

sobriety tests, and gave the following example of facts which would give rise to a 

particularized suspicion:

[I]f an officer stops a driver for a broken taillight and upon approaching this driver the 

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officer does observe signs of intoxication, e.g., the driver's breath smells of alcohol . . . the 

officer would have a separate particularized suspicion that the individual was driving 

under the influence of alcohol, and, therefore, may administer field sobriety tests. If the 

driver should fail the field sobriety tests, the officer would then have probable cause to 

arrest this individual for driving under the influence of alcohol. 

Hulse, ¶ 40. The facts of this case present a direct application of our example in Hulse. 

Based on the absence of an observable plate, the officer was justified in making his stop. 

Based on the odor of alcohol detected after the stop, he was justified in further 

investigation, including brief questioning and field sobriety tests. 

¶13. Allen argues that based on our decision in State v. Ellinger (1986), 223 Mont. 

349, 355, 725 P.2d 1201, 1204, an interrogation is custodial if the person is not free to 

leave. See also State v. Staat (1991), 251 Mont. 1, 6-7, 822 P.2d 643, 646. He contends 

that because Burman had decided to charge Allen for improper use of a dealer plate, 

and because Allen was in fact not free to leave the scene, the officer's questions 

occurred while Allen was in custody and should have been preceded by a Miranda

warning. The Court in Berkemer rejected this same argument, and so do we. See 

Berkemer, 468 U.S. at 436-37, 104 S. Ct. at 3148-49, 82 L. Ed. 2d at 332-33. Allen's 

detention cannot be distinguished from prior decisions involving traffic stops simply 

because in this case the officer had made a decision to charge Allen with a license 

plate violation. See City of Billings v. Skurdal (1986), 224 Mont. 84, 89, 730 P.2d 371, 

373-74. The stop was still public, routine, and temporary in nature. Those critical 

facts distinguish it from "custodial" interrogations.

¶14. Based on the analyses and holdings in Berkemer and Skurdal, our own 

discussion of field sobriety tests in Hulse, and the facts of this case, we conclude that 

Allen was not entitled to a Miranda warning following his traffic stop and prior to his 

arrest for driving under the influence of alcohol. We affirm the District Court's 

denial of his motion to suppress.

/S/ TERRY N. TRIEWEILER

We Concur:

/S/ J. A. TURNAGE

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/S/ KARLA M. GRAY

/S/ JIM REGNIER 

/S/ JAMES C. NELSON

1. 1Miranda v. Arizona (1966), 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 

2. 2Terry v. Ohio (1968), 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 

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