No. 85-620 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Appellant 

-vsJOSEPH FLOYD RORVIK, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Teton, 

The Honorable R. D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Paulson, Asst. Atty. General, Helena 

Russell R. Andrews, Teton County Attorney, Choteau, 

Montana 

For Respondent: 

Charles M. Joslyn, Choteau, Montana 

Submitted on Briefs: Sept. 25, 1986 

Decided: November 18, 1986 

Filed: 

NUV 1 d 1986 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

The State of Montana appeals from an order of the Ninth 

Judicial District Court granting defendant's motion to 

suppress. We reverse and remand. 

During the early morning hours of January 13, 1985, a 

burglary occurred at the residence of Lloyd and Joanne 

Cunniff in Choteau, Montana. Numerous undergarments and 

swimsuits belonging to Joanne were stolen. The stolen items 

were valued at more than $300. The burglary was reported to 

the Teton County Sheriff's office and Ms. Cunniff informed 

the investigating officer that she suspected defendant. 

On January 14, 1985, Deputy Sheriff William Hicks and 

Choteau Police Chief Anderson went to defendant's home and 

asked him to accompany them to the sheriff's office for an 

interview. Deputy Hicks desired to discuss the Cunniff 

burglary and Chief Anderson suspected defendant of taking a 

book from the Choteau library. Defendant agreed to the 

interview and accompanied the officers to the sheriff's 

office. He was not placed under arrest. 

At the sheriff's office, Chief Anderson read defendant 

his Miranda rights and defendant signed a waiver of rights. 

First, Chief Anderson questioned defendant concerning the 

stolen library book. Deputy Hicks then questioned defendant 

about the Cunniff burglary. Hicks requested that defendant 

take a polygraph test and defendant refused. Defendant was 

told that there were fingerprints and footprints found at the 

residence which would possibly link him to the crime. These 

statements were untrue. Hicks pressed defendant further and 

suggested that he make a written statement. Defendant 

declined and stated he wanted to talk to an attorney. 
Questioning continued for another few minutes then the 

interview was terminated. 

During the next week, Chief Anderson encountered 

defendant on the street and on two occasions asked defendant 

if he had talked to his attorney. Defendant responded that 

he had been busy but would attempt to do so. On January 21, 

1985, Chief Anderson again met defendant on the street. 

Defendant still had not spoken with an attorney but agreed to 

go to the sheriff's office for another interview. Anderson 

and Hicks did not question defendant, however defendant 

agreed at this time to submit to a polygraph test upon being 

assured the results could not be used as evidence. 

The polygraph examination occurred in Shelby on January 

23, 1985. Defendant was transported to Shelby by Deputy 

Hicks. Defendant signed a polygraph permission form and was 

advised that the test results could not be used as evidence. 

Following the test, the examiner informed Deputy Hicks that 

defendant had been deceptive on four questions. Deputy Hicks 

told defendant he had been untruthful and asked if he wanted 

to confess to the burglary. Defendant desired to give a 

statement so Hicks again had defendant sign a waiver of 

rights form. 

Hicks told defendant that if he had any kind of a 

problem Hicks would do everything possible to see that 

defendant received some help. Defendant then said, "I never 

do this unless I'm drunk." Defendant confessed to the 

Cunniff burglary and also produced a gem stone he had stolen 

from another home in Choteau. At that point, defendant 

requested they return to Choteau where he would sign a 

written statement. 
Pursuant to Hick ' s request, Hicks and defendant stopped 

at defendant's home to gather the evidence from the 

burglaries. They proceeded to the Sheriff's office where a 

taped interview was conducted and defendant confessed in 

detail to the burglaries. Following the interview, Hicks had 

defendant take home a written confession form to fill out, 

which defendant completed the following week. 

Counsel was appointed for defendant. A motion to 

suppress was filed covering all statements made by defendant 

and any evidence obtained as a result of such statements. 

The District Court granted the motion, finding that defendant 

had asserted his right to counsel and that further police 

initiated contact violated defendant's request for counsel. 

The State appeals and raises the following issue: Did 

the District Court err in granting defendant's motion to 

suppress? 

The District Court concluded that defendant's request 

for counsel at the first interview barred further police 

initiated interrogation. The court cited Smith Illinois 

(1984) U.S. , 105 S.Ct. 490, 83 L.Ed.2d 488, as being 

decisive of the suppression issue. A reading of Smith 

reveals that the rule against further questioning once a 

defendant has asserted his right to counsel applies to 

custodial interrogation. In the present case, the District 

Court did not address whether defendant had been subjected to 

custodial interrogation. Based upon the facts in the record, 

we find that he was not. 

In State v. Dupre (1982) 200 Mont. 165, 650 P.2d 1381, 

we held that a custodial interrogation situation requiring 

Miranda warnings does not arise merely because an individual 

is the focus of police investigation or because questioning 
takes place at the station house when there is no indication 

that freedom to depart is in any way restricted. In this 

instance, there is not a Miranda issue because defendant was 

given Miranda warnings prior to each interview with the 

police. Whether defendant was "in custody1' depends upon 

whether there was a formal arrest or restraint on freedom of 

movement of the degree associated with a formal arrest. 

California v. Beheler (1983) 463 U.S. 1121, 103 S.Ct. 3517, 

77 L.Ed.2d 1275. 

There is nothing in the record indicating defendant 

believed he was under arrest or was not free to leave the 

station house during any of the interviews. Defendant agreed 

to accompany the officers to the station house for the 

interviews and he agreed to take a polygraph test. The facts 

do not support defendant's assertion that he was not free to 

leave during the polygraph test and interview in Shelby. 

Defendant went to Shelby voluntarily to take the polygraph in 

order to clear up suspicion that he committed the Cunniff 

burglary. Further, during the interview following the 

polygraph test, defendant's request to return to Choteau was 

granted. 

The suppression issue in this case requires analyzing 

two questions. First, whether defendant's confession was 

voluntary. Second, whether defendant made a knowing and 

intelligent waiver of his right to counsel. State v. Blakney 

(1982) 197 Mont. 131, 641 P.2d 1045. The District Court did 

not address the voluntariness issue. The court did address 

waiver, but concluded that Smith v. Illinois, supra, 

prohibited the police from further questioning of defendant 

once he had asserted his right to counsel. As noted above, 
the Smith rule does not apply in this instance for there was 

no custodial interroga.tion. 

We reverse the suppression order of the District Court 

and remand for hearing on the issues of voluntariness and 

waiver. 

We Concur: 

,/ f d7LT6 

Chief Justice 

I concur in the result. 

\\ @hL d Justice , ,&hT