NO. 83-283 

IN THE SUPREME COURT OF THE STATE OF PlONTAlJA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJOHN Aml,JD PURDIE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable James M. Salansky, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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 

Clerk 
5. 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 the 
testimony and following the settling of the jury 

instructions, the State requested permission to mention in 

closing arguments a comment that no breath test existed. 

The State explained its action as follows: 

"I intend in my closing argument to 

briefly mention the fact that we do not 

have a breath test, and I intend to do 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 it would make the jurors' job 

easier if we had a breath test and 

further that we don't need a breath 

test." 

The appellant strenuously objected to this comment, by 

claiming this violated the rule of State v. Jackson (1981), 

195 Mont. 185, 637 P.2d 1, and that it reflected a 

commentary on matters not brought into the evidence. The 

court ruled in favor of the State. 

The jury found appellant guilty of driving under the 

influence from which he appeals. He raises two issues in 

this appeal: 

(1) Did the court err in admitting the results of the 

field sobriety test; and 

(2) did the court err in permitting the State to 

mention that no breath test existed? 

Appellant first contends that the field sobriety test 

constitutes a search and is thereby controlled by the Fourth 

Amendment to the United States Constitution and Article 11, 

section 11 of the Montana Constitution. He contends the 

police conducted a warrantless search. The search failed to 

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), 389 U.S. 347, 

88 S.Ct. 507, 19 L.Ed.2d 576. But a mere observation does 

not constitute a search, Haerr v. U.S. (5th Cir. 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), 410 U.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 no more 

expectation of privacy in the physical 

characteristics of a person's script than 

there is in the tone of his 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. " [TI he 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 field 
sobriety test because the defendant consented to the search. 

It went on to say: 

"Miranda warnings are not 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 determinative of the voluntariness of 

a consent to search." (Citations 

omitted.) 633 P.2d at 1077. 

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 in State v. Jackson (Mont. 1983), 672 P.2d 255, 

40 St.Rep. 1698. This Court permits evidence of the lack of 

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 support of his position. 

Here the comment was approved by the trial judge, and 

we fail to find reversible error. In the closing statement 

the State said: 

"Now, I would like to make 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 to say, 'Well, what 

about a breath test?' Well, ladies and 

gentlemen, it would be nice to have a 

breath test, and it would help you out as 

jurors if we had a breath test. But the 

fact is, we don'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 lot of time worrying 

about what isn't before you as evidence. 

You have got plenty of evidence to decide 
this case." 

The State mentioned the lack of a breath test in a 

limited fashion. However, we fail to find that this 

prejudiced this case so as to result in reversible error. 

We hereby affirm the District Court. 

We concur: 

%A &$,%L ,,&Q 

Chief Justice ' 

Mr. Justice Daniel J. Shea will file a written dissent at 

a later time. 
DISSENT OF MR. JUSTICE DANIEL J. SHEA 

NO. 83-283 

STATE OF MONTANA, 

Pla-inti£ f and Respondent, 

VS . 

JOHN AREND PURDIE, 

Defendant and Appellant. 

JAM 3 - ffafjs 

CLERK OF J'JPRER?E COU&O 

UP' IO~VTP$@A . 

i 

DATED : January 6, 1985 
Mr. Justice Daniel J. Shea, dissenting: 

I dissent. It was reversible error for the prosecutor 

to be allowed to comment on the 1-ack of a breathal-yzer test 

to be introduced as evidence against Purdie. If as he 

stated, the State does not have a breathalyzer test and does 

not need a breathalyzer test, there was no need to mention 

this non-evidence to the 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 

test was held ad~issible under § 61-8-404, MCA. 

But here, the prosecutor expressly stated: 

"I intend to . . . (mention the fact we do not have 

a breath test) . . . in such a way that I am not 

either expressly or impliedly indicating that a 

breath test was official and. refused." 

Tn Jackson - 11, evidence of his refusal to take 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 breathalyzer test. 

I would vacate the jud.gmen