No. 85-620 INTHE 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 theNinth Judicial District, In and forthe 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: CharlesM. Joslyn, Choteau, Montana

Submitted on Briefs: Sept. 25, 1986 Decided: November 18, 1986

Filed: 

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## 1986Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of the Court.
The State ofMontana appeals from an order of the Ninth Judicial District Court granting defendant's motion to suppress. We reverseand 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 swimsuitsbelonging to Joanne were stolen. The stolen items
were valued atmore than $300. The burglary was reported to the Teton County Sheriff's office and Ms. Cunniff informed the investigating officer that she suspecteddefendant. 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. Hewas notplaced 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. Defendantwas told that therewere fingerprints and footprintsfound at the residence which would possibly link him to the crime. These statementswere untrue. Hickspressed defendant furtherand 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 interviewwas terminated. During the next week, Chief Anderson encountered defendant on the street and on two occasions asked defendant if he had talked tohis attorney. Defendant responded that he had been busy but would attempt todo so. On January 21, 1985, Chief Anderson again met defendant on the street. Defendant stillhad not spokenwith an attorneybut agreed to go tothe sheriff's office for another interview. Anderson and Hicks did not question defendant, however defendant agreed atthistime tosubmit toa polygraph test upon being assuredtheresultscouldnotbe used asevidence. 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 testresults could not be used asevidence. Following the test, the examiner informed Deputy Hicks that defendanthad been deceptiveon four questions. Deputy Hicks told defendant he had been untruthful and asked ifhe 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, "Inever do this unless I'm drunk." Defendant confessed to the Cunniff burglary and alsoproduced a gem stonehe 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 theburglaries. Following the interview, Hickshad defendant take home a written confession form to fill out, which defendant completed the followingweek. Counsel was appointed for defendant. A motion to suppresswas filed covering all statements made by defendant and any evidence obtained as a result of such statements. The District Courtgranted themotion, finding thatdefendant 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 Courtdid not addresswhether defendanthad been subjectedto custodial interrogation. Based upon the facts in the record,
we find thathewasnot. In State v. Dupre (1982) 200 Mont. 165, 650 P.2d 1381,
we held that a custodial interrogation situation requiring Miranda warnings does not arisemerely because an individual is the focus of police investigation or because questioningtakes place at the stationhousewhen there is no indication that freedom to depart is in any way restricted. In this instance, there is not a Miranda issue because defendantwas 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 interviewsand he agreed to take a polygraph test. The facts do not support defendant's assertion that hewas not free to leave during the polygraph test and interview in Shelby. Defendantwent to Shelby voluntarily to take thepolygraph 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 ofhis right to counsel. Statev. Blakney (1982) 197Mont. 131, 641P.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 therewas
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: ,/ 

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Chief Justice

Iconcurinthe result. 

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