No. 89-592 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Respondenti 

-vsGILBERT BELGARDE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twelfth Judicial ~istrict, 

In and for the County of Hill, 

The Honorable John Warner, Judge presiding. 

COUNSEL OF RECORD: 

0 * For Appellant: cr 3- -2 

-. \ * c.3 

cr, ;: o Gilbert Belgarde, Box Elder, Montana, Pro Se L : tu 

E-=- ; J :<- 

CC -3 i ,_I 

For Respondent: . r4 . . I:> Hon. Marc Racicot, Attorney General, Helena, Montana 

: UJ 

L'> - '( George Schunk, Asst. Atty. General, Helena, Montana 

3 2 Patricia Jensen, Esq., Hill County Attorney's 

a LIZ Office, Havre, Montana 

c3 

m 3 

0 

S 

Submitted on Briefs: August 23, 1990 

Filed: 

Decided: September 18, 1990 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from the District Court of the Twelfth 

Judicial District of the State of Montana, in and for the County 

of Hill. Defendant, Gilbert Belgarde, was found guilty by a jury 

of driving a motor vehicle while under the influence of alcohol 

(DUI) . We affirm. 

We restate the issues on review before this Court as follows: 

1. Whether the District Court erred in denying the 

defendant's motion to exclude an audio-tape of defendant. 

2. Whether the law enforcement officer had a ltparticularizedll 

suspicion to justify an investigative stop of the defendant's 

vehicle. 

3. Whether there was probable cause to arrest defendant for 

driving under the influence of alcohol. 

4. Whether the defendant was denied his right to a speedy 

trial. 

On October 12, 1988, at approximately 1:50 a.m., Hill County 

Deputy Sheriff Larry Overcast was driving north on Highway 87, 

south of Havre near the Rocky Boy Indian Reservation. By radar, 

Officer Overcast clocked an oncoming car at about 46 m.p.h. The 

officer began to follow the car. Officer Overcast testified that 

the car: (1) swerved over the fog line twice in three miles; (2) 

veered toward an oncoming car; and (3) accelerated to speeds of 

over seventy miles an hour. Considering these facts and the fact 

that the bars in Havre had recently closed, Officer Overcast 
determined that there was reasonable suspicion that a DUI offense 

was in progress and proceeded to stop the vehicle. 

The driver of the vehicle was defendant Gilbert Belgarde. 

Defendant failed several field sobriety tests administered by 

Officer Overcast. Overcast also testified that he detected the 

odor of alcohol upon the defendant. For these reasons Officer 

Overcast arrested defendant and transported him to the Havre Police 

Department. 

While in the squad car en route to Havre, Officer Overcast 

tape recorded defendant. The recording demonstrates that the 

defendant cussed and verbally abused the officer. In addition, a 

video taped interview at the station shows that the defendant 

refused to follow the officer's directions to perform various field 

sobriety tests, and was obnoxious and irate toward the officers 

present. A second law enforcement officer at the station testified 

that he observed the defendant's staggering movements and also 

detected the odor of alcohol on the defendant. 

Following a jury trial on April 12, 1989, in the Justice Court 

of Hill County, City of Havre, the defendant was found guilty of 

DUI. A notice of appeal dated April 13, 1989, was filed in the 

Justice Court. The defendant filed motions to dismiss and to 

exclude evidence in the District Court. The District Court ruled 

on these motions on July 24, 1989. 

In its order dated July 25, 1989, the court denied defendant Is 

motion to dismiss for lack of probable cause to make the initial 

stop and granted defendant's motion to exclude a transcript of the 
subject tape recording but that the tape recording itself would be 

admissible. 

Following a jury trial held in the District Court on August 

22, 1989, defendant was found guilty of DUI. Defendant appeals 

this conviction. We affirm. 

Additional facts will be discussed as necessary. 

I. 

Whether the District Court erred in denying the defendant's 

motion to exclude a tape recording made by the arresting officer. 

Defendant's underlying contention is that his right against 

self-incrimination was violated because the tape recording was made 

without his knowledge or consent. Defendant also argues that the 

Montana statute authorizing law enforcement officers to record 

conversations, 5 45-8-213(1), MCA, is unconstitutional. 

We first consider defendant's exception to 5 45-8-213 (1) , MCA. 

Apparently, defendant is contending that the right to privacy 

section of the Montana Constitution prohibits the use of audiotape recordings as evidence under the facts of this case. 

Defendant cites no legal authority in support of his argument. 

We have disposed of a similar argument in State v. Brown 

(1988), 232 Mont. 1, 755 P.2d 1364. In Brown, defendant was 

convicted of criminal sale of dangerous drugs. During the sting 

operation which led to defendant's conviction, an audio-tape was 

made of conversations between defendant and an undercover officer 

who posed as a purchaser. The audio-tape was admitted at trial. 
On appeal defendant argued that the audio-tape violated her right 

to privacy. We held that I1warrantless consensual electronic 

monitoring of face-to-face conversations by the law enforcement 

officers while pursuing their official duties, does not violate the 

right to be free of unreasonable searches and seizures nor the 

privacy section of the Montana Constitution. It Brown at 8, 755 P. 2d 

at 1369. So long as one of the parties to the conversation 

clearly, knowingly and voluntarily consents, the evidence obtained 

by such monitoring is admissible at a criminal trial. Id. We 

refuse to reverse this rule. 

Furthermore, 45-8-213(l) (c), MCA, provides quite clearly 

that a public official or employee is exempt from the privacy in 

communications statute so long as the recording is made in the 

performance of official duty. Officer Overcast made the recording 

while on official duty as a police officer during the transport of 

defendant to Havre. We hold that there was no violation of any 

statute or constitutional guarantee by the tape recording. 

We now turn to defendant's contention of self-incrimination. 

In the case of State v. Finley (1977), 173 Mont. 162, 566 P. 2d 

1119, this Court upheld the use of an audio-video tape of a 

defendant performing sobriety tests against a claim of selfincrimination. We held that the audio-video tape was objective 

evidence which was outside the scope of protection provided by 

Article 11, Section 25 of the Montana Constitution and the Fifth 

Amendment to the United States Constitution. Finley at 166, 566 

P.2d at 1121. 
We reaffirmed our holding of Finley in State v. Thompson 

(1989), 237 Mont. 384, 773 P.2d 722. We held that the audio-video 

tape which demonstrated defendant's performance of sobriety tests 

and his manner of speaking was objective evidence and not entitled 

to Fifth Amendment protection. 

Here, as in Finlev and Thompson, the crucial inquiry is 

whether the taped comments of the defendant constituted 

constitutionally prohibited testimonial compulsion or merely real, 

physical, or objective evidence. The record is devoid of evidence 

indicating that the recording contained any speech of defendant 

which was testimonial in nature. Rather, all defendant's 

statements captured by the tape were voluntary and none served to 

incriminate the defendant. ~dditionally, the tape did not contain 

defendant's responses to interrogation by police. The tape 

recording was introduced into evidence for the sole purpose to aid 

the jury in understanding the testimony of Officer Overcast who 

observed defendant's demeanor in the police car. The content of 

defendant's tape-recorded words are not meaningful, in and of 

themselves, but rather the manner in which they were delivered and 

the nature of defendant s "tirade1' is probative of defendant s 

intoxication. We find that the tape provides positive indicia that 

defendant was under the influence of alcohol. We hold that the 

tape is objective evidence and, therefore, outside the protection 

of the Fifth Amendment to the United States Constitution and 

Article 11, Section 25 of the Montana Constitution. We further 

hold that defendant was not denied his privilege against self- 
incrimination when the District Court properly admitted the tape 

into evidence. 

Whether the law enforcement officer had a llparticularizedll 

suspicion to justify an investigative stop of defendant's vehicle. 

The defendant alleges that Officer Overcast was without 

authority to stop his vehicle because he lacked probable cause to 

do so. This contention is erroneous and we cite the following: 

All that is required of an officer in 

making an investigatory stop is that he have 

a llparticularizedn or wreasonablew suspicion 

that criminal activity may be afoot. This is 

the applicable standard for an investigative 

stop of a vehicle; or in other words "some 

basis from which the court can determine that 

the detention was not arbitrary or harassing.'' 

State v. Gopher (Mont. 1981), 631 P.2d 293, 

295, 38 St.Rep. 1078, 1081, relying on United 

States v. Cortez (1981), 449 U.S. 411, 101 

S.Ct. 690, 66 L.Ed.2d 621. 

State v. Sharp (1985), 217 Mont. 40, 45, 702 P.2d 959, 962. 

The District Court found that Officer Overcast had sufficient 

cause to stop defendant and had a right at the time, based on 

reasonable suspicion and logical inference, to stop the defendant's 

vehicle to investigate a possible DUI in progress. The ~istrict 

Court based its finding upon officer Overcast's testimony which 

established the following: (1) defendant's vehicle was travelling 

at approximately ten miles per hour below the posted speed limit; 

(2) the time was 1:50 a.m. which was shortly after the bars close; 

(3) defendant's vehicle drifted over the fog line twice while 

travelling approximately three miles; (4) defendant's vehicle 

7 
rapidly accelerated to speeds exceeding 70 miles per hour as 

Overcast's car approached; and (5) defendant's vehicle veered 

toward an oncoming car. 

Based on the District Court's findings which we will not set 

aside unless clearly erroneous, we hold that Officer Overcast had 

a sufficient basis for his particularized suspicion of illegal 

activity. 

The defendant argues that Officer Overcast falsely testified 

regarding the above factors which justified Overcast's 

l'particularizedll suspicion. The defendant claims that Officer 

Overcast decided to stop the vehicle only after discovering, 

through a registration check, that a Native American was driving. 

The defendant concludes that the decision to make the investigatory 

stop was discriminatory. 

The defendant's argument was presented to the District Court 

and jury. Officer Overcast testified that upon stopping the 

vehicle, he had no idea who was driving the vehicle. The defendant 

has failed to point to any evidence in the record which supports 

his argument. Defendant's argument is supported solely by his own 

speculation. Pursuant to Rule 52(a), M.R.Civ.P., we give due 

regard to the opportunity of the trial court to judge the 

credibility of the witnesses. The trier of fact is responsible for 

weighing the credibility of Officer Overcast's testimony and his 

stated reasons for stopping defendant's vehicle. Defendant's claim 

of racial discrimination is not supported by any objective evidence 

in the record. We hold that the stopping of defendant's vehicle 
was justified. 

111. 

Whether there was probable cause to arrest defendant for 

driving under the influence of alcohol. 

The threshold issue for the validity of an arrest is probable 

cause. State v. Lee (1988), 232 Mont. 105, 109, 754 P.2d 512, 515. 

Defendant contends that Officer Overcast did not have probable 

cause to arrest defendant for driving under the influence of 

alcohol. We disagree. 

The officer's reasonable suspicion which justified the stop 

ripened into probable cause to arrest for DUI. We refer to the 

substantial evidence comprised of defendant's intoxicated condition 

as testified to by two officers, defendant's staggered movements, 

failed field sobrietytests, use of obscene language toward Officer 

Overcast as heard on the audio-tape and other obnoxious and 

aggressive behavior as shown on the videotaped interview. We hold 

that the substantial evidence presented indicates that there was 

ample justification for placingthe defendant under arrest for DUI. 

Defendant attempts to establish a discriminating basis for his 

arrest, as well as his stop. Defendant contends that a "jail or 

bail" policy for Native Americans exists among the law enforcement 

personnel of Hill County. Defendant attempted to document this 

policy through a I1statement of verificationt1 appended to his brief. 

Defendant Is "statement of verification" is not properly part of the 

record on appeal pursuant to Rule 9, M.R.App.Civ.P. As such, we 
cannot consider this document in disposing of this appeal. 

Furthermore, defendant fails to support his discrimination claim 

with any objective evidence from the record. The record, indeed, 

is devoid of any evidence that the defendant was arrested because 

of his race. We hold that,probable cause existed for defendant's 

arrest and that defendant's arrest was not discriminatory. 

IV. 

Whether the defendant was denied his right to a speedy trial. 

Speedy trial analysis for misdemeanor prosecutions is governed 

by statute. State v. Ronningen (1984), 213 Mont. 358, 691 P.2d 

1348. Section 46-13-201(2), MCA, provides: 

The court, unless good cause to the contrary 

is shown, must order the prosecution to be 

dismissed if a defendant whose trial has not 

been postponed upon his application is not 

brought to trial within 6 months after entry 

of plea upon a complaint, information, or 

indictment, charging a misdemeanor. 

The defendant was cited on October 12, 1988. Pursuant to Rule 

21(a), M.R.App.Civ.P., the statutory six-month period within which 

a prosecution must be brought began the following day, October 13, 

1988. The six-month deadline thus expired on April 12, 1989. 

Similarly, in Ronninsen we held that the time period in which to 

bring a misdemeanor prosecution that commenced with the filing of 

an information on October 12, 1983, expired on April 12, 1984. 

Here, the defendant was tried in Justice Court on April 12, 1989. 

As such, the prosecution was timely for purposes of 46-13- 

201 (2), MCA. 
The defendant's conviction is affirmed. 

We concur: