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

STATE OF MONTANA, Plaintiff and Respondent,
-vsJOHNAml,JDPURDIE, Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County 

### of Flathead, The HonorableJamesM. Salansky, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: 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

Clerk5.

### 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 thetestimony and following the settling of the jury instructions, the State requested permission tomention in closing arguments a comment that no breath test existed. The Stateexplained its actionasfollows: "I intend in my closing argument to briefly mention the fact that 

### we do not have a breath test, and I intend todo it in such a way that I am not either expressly or impliedly indicating that a breath test was offered and refused. My statement would be something to the effect that itwould make thejurors' job easier if 

### we had a breath 

### test and further that 

### we don't need a breath test." The appellant strenuously objected tothiscomment, by claiming thisviolated the rule of Statev. Jackson (1981), 195 Mont. 185, 637 P.2d 1, and that it reflected a commentary on matters not brought into the evidence. The courtruled in favor of the State. The jury found appellant guilty of driving under the influence from which he appeals. He raises two issues in thisappeal: (1)Did the court err inadmitting the results of the field sobriety

### test; and (2) did the court err in permitting the State to mention thatno breath test existed? Appellant firstcontends that the field sobriety 

### test constitutes a search and is thereby controlledby theFourth Amendment totheUnited StatesConstitution and Article 11, section 11 of the Montana Constitution. He contends the police conducted a warrantless search. The search failedto fall into the exceptions, emergency search or consent search. Therefore, the field sobriety test results should have been excluded from evidence because it 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),389U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. But 

### a mere observation does not constitute a search,Haerr v. U.S. (5thCir. 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), 410U.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 nomore expectation of privacy in the physical characteristics of aperson's script than there is in the tone ofhis voice." Mara, 410 U.S. at 21, 93 S.Ct. at 77675 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 fieldsobrietytestbecause thedefendant consented tothe search. Itwent on tosay: "Miranda warnings arenot required before the administration of a roadside sobriety test

# ..

# . Custody alone does not render consent involuntary 

# . . . Intoxication, although a factor to be considered, is not determinativeof thevoluntarinessof a consent to search." (Citations omitted.) 633 P.2d at1077. Appellant next argues the court erred in permitting the State to mention in its closing argument that no breathalizer 

### test existed. He relies on State v. Jackson (1981), 195 Mont. 185, 637 P.2d 1. We overruled the first Jackson case inStatev. Jackson (Mont. 1983),672 P.2d 255, 40 St.Rep. 1698. This Courtpermits evidenceof thelackof
a breathalizer test. Appellant strenuously argues that the court erred by permitting the State to discuss evidence in their closing argument not brought into evidence. Appellant cites
numerous cases for supportof hisposition. Here the comment was approved by the trialjudge, and
we fail to find reversible error. In the closing statement theStatesaid: "Now, I would like tomake a prediction. I predict that you will retire to your jury room after Mr. Wallace and I are done talking here and you will sit down and somebody is going tosay, 'Well, what about a breath test?' Well, ladies and gentlemen, it would be nice to have a breath test, and itwould helpyou outas jurors if we had a breath test. But the fact is, wedon't have a breath 

### test, and the further fact 

### is we don't need a breath test.


### " 

# .

# ..What I am getting at, don't spin your wheels, waste a lotof time worrying about what isn't before you as evidence. You have gotplenty of evidence todecidethiscase." The State mentioned the lack of a breath test in a limited fashion. However, we fail to find that this prejudiced this case so astoresult inreversible error. We hereby affirm the District Court.

We concur:


### %A &$,%L 

# ,,&Q Chief Justice 

## '

Mr. Justice Daniel J. Shea will file awritten dissent at a later time.

### DISSENT OF 

### MR. JUSTICE DANIEL J. 

### SHEA

NO. 83-283 

### STATE OF 

### MONTANA, Pla-inti£ f 

### and Respondent,
VS

# . JOHNAREND PURDIE, Defendant andAppellant. 

### JAM

## 3

# -ffafjs

CLERK OFJ'JPRER?ECOU&O UP'IO~VTP$@A 

### . i



### DATED: January 6, 1985Mr. JusticeDaniel J. Shea, dissenting:

I dissent. It was reversible error for the prosecutor tobe allowed to comment on the 1-ackof a breathal-yzertest to be introduced as evidence against Purdie. If as he stated, the Statedoes not have a breathalyzer 

### test and does not need a breathalyzer test, there was no need tomention thisnon-evidence tothe iury. State v. Jackson (Mont. 1983), 672 P.2d 255, 40 ~t.Rep, 1698 can be distinguished. Jn that case (Jackson 11)

## , - evidence of defendant's refusal to submit to a breathalyzer testwas held ad~issible under § 61-8-404, MCA. But here, theprosecutor expressly stated: "Iintend to

# ..

# . (mentionthe factwe donothave a breath test) 

# . .. in such a way that I am not either expressly or impliedly indicating that a breath testwas officialand.refused." Tn Jackson 

### - 11, evidence of hisrefusal totake the test
was admitted. But here, the prosecutor conceded he was 

### - not offering the evidence to show that Purdie had expressly or impliedly refused a breath test. Clearly, under this circumstance, evidence of the lack of a breath test is not evidence of a refusal. Yet, the prosecutor planted the seed in the jurors' minds. Absent evidence to the contrary, we should presume this prejudicial comment had the desired effect of engendering the jurors' belief that defendant had. indeed refused a breathalyzertest. I would vacate thejud.gmen