NO. 93-498 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

STATE OF MONTANA, a -. .... i: 

Plaintiff and Respondent, 1 

APPEAL FROM: District Court of the Twenty-first Judicial District, 

In and for the County of Ravalli, 

The Honorable Jeffrey H. Langton, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael J. Shemood, Attorney at Law, 

Missoula, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

Kathy Seeley, Assistant Attorney General, 

Helena, Montana 

George Corn, Ravalli County Attorney, 

Hamilton, Montana 

Filed: 

Submitted on Briefs: January 13, 1994 

Decided: March 22, 1994 . ~. 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Defendant Richard T. Rushton was charged by information in the 

District Court for the Twenty-first Judicial District in Ravalli 

County with criminal possession of dangerous drugs, a felony, in 

violation of § 45-9-102, MCA. On March 30, 1993, the District 

Court denied defendant's motion to suppress statements made and 

evidence obtained in a search of his residence. After this Court 

denied supervisory control, defendant entered a plea of guilty on 

the condition that he be allowed to appeal the District Court's 

denial of his motion to suppress. This appeal followed. 

We reverse the order of the District Court. 

The following issues are presented by defendant on appeal: 

1. Did the District Court err when it denied defendant's 

motion to suppress evidence of statements made prior to the time 

defendant was given Miranda warnings? 

2. Did the District Court err when it denied defendant's 

motion to suppress evidence seized during an unwarranted search of 

his residence? 

Defendant Richard Rushton and his wife, Susan, live in a 

semi-rural area outside of Florence, Montana. At the time of the 

incident giving rise to this appeal, both were employed as teachers 

in the Corvallis school system. They have no children. 

The Rushtons were friends with Timothy and Pamela Hammond, 

also of Florence. On December 9, 1992, the Hammond's 12-year-old 

son informed the Ravalli County Sheriff's Office that his parents 

had a marijuana grow operation at their residence. He also 

2 
informed the officers that he had seen a marijuana grow operation 

in defendant's garage "over one year ago." 

Based on the information received from the Hammond's son, 

Detective Bailey of the Ravalli County Sheriff's Office obtained a 

search warrant for the Hammond residence and executed it on the 

evening of December 10, 1992. That search resulted in the 

confiscation of marijuana, growing equipment, and drug 

paraphernalia. The investigating officers asked the Hammonds if 

they knew whether defendant was also growing marijuana. Timothy 

Hammond responded that he had seen marijuana in defendant's garage 

"about two months ago." 

Detective Bailey testified that, based on the information 

received from the Hammond's son and the statement made by Timothy 

Hammond, he thought he had probable cause to obtain a search 

warrant for defendant's residence. He further testified that he 

had no reason to believe that the County Attorney or a Justice of 

the Peace was unavailable that evening to prepare and review a 

warrant application. However, after discussing the situation with 

Sheriff Printz, the Ravalli County Sheriff, it was decided that 

Detective Bailey and the other officers who had conducted the 

search of the Hammond residence would proceed to defendant's home 

without a warrant and attempt to obtain permission to search his 

residence. Sheriff Printz testified that one of the reasons for 

this decision was concern about the cost of overtime compensation 

if time had been taken to obtain a search warrant. 
~t approximately 9 p.m. on December 10, 1992, five armed and 

uniformed Ravalli County deputies arrived at defendant's home for 

the purpose of investigating alleged criminal activity. Detective 

Bailey and another officer approached the front door, and three 

other officers went to the back of the residence to detain anyone 

who attempted to leave. Detective Bailey turned on a tape recorder 

in order to document the ensuing conversation with defendant and 

his wife. However, the Rushtons were unaware that their 

conversation with the officers was being recorded. 

At the time the officers arrived and knocked on the front 

door, defendant was already in bed for the evening, and Susan, 

wearing pajamas and a robe, was preparing for bed. 

When the Rushtons opened the door, Detective Bailey asked them 

their names, identified himself and the other officer, and 

inquired, "Do you have a moment where we could come in and speak to 

you?" The Rushtons were not told that the officers were there for 

the express purpose of attempting to obtain permission to search 

their home or to inquire about alleged criminal activity. 

Defendant invited the officers to come in out of the rain and 

offered them seats in the living room. Defendant and his wife sat 

on the living room couch and Detective Bailey sat in a chair across 

from them. The other officer remained standing in the doorway 

which led out of the living room. Defendant testified that he felt 

he was not free to leave the room at this point. 

During this time, the following exchange occurred: 
BAILEY: Folks, I've gotta advise you of what's going on 

here, and you're probably not gonna be too happy about 

it. Go ahead and sit down. 

DEFENDANT: Ok. 

BAILEY: We, uh, understand you're friends ...y outre Mr. 

Rushton, right? Susan? 

DEFENDANT: Yeah. 

BAILEY: Ok. You're friends with Mr. Hammond. 

DEFENDANT: Yeah. Everything's Ok, isn't it? 

BAILEY: Well, other than the marijuana grow operation in 

his basement. 

SUSAN: In Mr. Hammond's basement? 

BAILEY: Yes, ma'am. 

DEFENDANT: Our friends, the Hammond's...? 

BAILEY: Yes. And your friends the Hammonds indicate 

that you also have a marijuana grow in your garage. And, 

our purpose here is to see if we can clean this situation 

up, and if in fact there is marijuana there, then we'll 

have to do what we have to do, and. . . if not, then there's 

no problem. He said it hasn't been too long ago he seen 

them there. Is that true, sir? 

DEFENDANT: That's true sir. 

BAILEY: Ok. I want to do this the easy way, ok? 

DEFENDANT: Ah, me too. Me too. 

BAILEY: Ok. The easy way is that, uh, we have a Consent 

to Search form here, which you have to agree to sign, and 

1'11.. .I'll be very frank, if vou don't. we'll be sittinq 

here for a number of hours, and we'll have to go get a 

search warrant. But, with the Consent to Search, we'll 

just go ahead and do it, and the only thing I'm gonna 

promise you is when we leave here, you folks'll be 

staying here. Ok? We won't arrest vou here. 

Eventually, though, we'll have to go to the County 

Attorney. Understand that? 

DEFENDANT: I think... 
BAILEY: Go ahead and show him the form. 

DEFENDANT: Oh, Ok. Let me just get... 

BAILEY: Go ahead and ask some questions. Go ahead. 

DEFENDANT: Come on in. [~hird officer enters the home] 

Uh, . . . I'm just being honest with you.. .you been nice and 

honest with me. 

BAILEY: That's fine. We just want to do this the easy 

way. 

DEFENDANT: Quite honestly, do I need a lawyer here or 

anything? I mean.. .I'm not, I'm not saying let me get my 

damn lawyer, I'm not.. .I don't have a lawyer, I don't 

KNOW a lawyer; that's not what I'm saying. Ok? I'm 

saying,. . .from.. .I know, you can read me that, that' s not 

what I'm saying, I'm saying ...y ou know, right. [Emphasis 

added]. 

It is undisputed that defendant was not given a Miranda warning 

prior to the foregoing exchange. When defendant expressed concern 

about whether he needed a lawyer, Detective Bailey informed 

defendant that he was not required to consent to a search, but 

reiterated the promise that if marijuana was found, neither 

defendant nor his wife would be arrested at that time. Defendant 

discussed the matter with Susan and stated, ''1 mean.. .what about.. . would you feel better if there was a lawyer here while they search 

this. You know they're gonna search; they have the right to 

search. You know what they're gonna find." 

Detective Bailey then asked the Rushtons to read and sign the 

form. After describing more about the search process, Detective 

Bailey stated the following: 

BAILEY: You'll be given a complete receipt for every 

item that's taken. You know, one thing I want to do... 

Like I said, irregardless (sic) of anything tonight, we 

will not arrest you, but, you know, we are going to 
advise you of your Miranda Warning. That's something 

that's kinda customary. 

At this time, the Rushtons were given Miranda warnings and Detective 

Bailey asked defendant if he wished to make a statement. Defendant 

declined, saying, "I don't really think I better make a statement 

yet." After some further discussion, defendant signed the form and 

a search was immediately conducted. 

The officers seized fourteen immature marijuana plants, four 

mature plants, dried marijuana seeds, and growing implements and 

literature. 

As a result of the questioning and search of defendant's 

residence, defendant was charged by information on December 22, 

1992, with felony criminal possession of dangerous drugs, in 

violation of § 45-9-102, MCA. Defendant entered a plea of not 

guilty and, on February 9, 1993, filed a motion to suppress the 

statements made and the evidence seized from his home on the night 

of December 10. Following an evidentiary hearing, the District 

Court entered an order in which this motion was denied. 

On August 11, 1993, after this Court denied supervisory 

control, defendant entered a plea of guilty to the offense charged, 

conditioned on his right to appeal the District Court's order. The 

court accepted this plea, and on August 20, 1993, defendant was 

found guilty of the offense charged and sentenced. From the 

District Court's order denying the motion to suppress, defendant 

appeals. 
STANDARD OF REVIEW 

When reviewing a district court's denial of a motion to 

suppress, this Court determines whether there is substantial 

credible evidence to support the court's findings of fact, and 

whether those findings were correctly applied as a matter of law. 

State v. Beach (l985), 217 Mont. 132, 147, 705 P.2d 94, 103. Here, 

defendant does not disagree with the court's factual findings but 

contends the court erred when it concluded Miranda warnings were not 

required prior to the officer's questioning of defendant and that 

defendant voluntarily consented to a search of his residence. Our 

review, therefore, is plenary and we must determine whether the 

court's conclusions were correct as a matter of law. State v. Sage 

(1992), 255 Mont. 227, 229, 841 P.2d 1142, 1143. 

ISSUE 1 

Did the District Court err when it denied defendant's motion 

to suppress evidence of statements made prior to the time defendant 

was given Miranda warnings? 

When asked by Detective Bailey whether there was a marijuana 

grow operation which Timothy Hammond would have recently seen, 

defendant admitted that this statement was true. Defendant 

contends that the court should have granted his motion to suppress 

this admission, and other statements made to the officers when 

asked if he would consent to a search, because he was not advised 

of his Miranda rights prior to making these statements. He asserts 

that Detective Bailey's questioning constituted a custodial 
interrogation triggering the need for Miranda warnings because he 

reasonably believed his freedom was significantly restricted at the 

time Detective Bailey was in his home questioning him. 

The District Court, in its order, relied heavily on the 

contents of the recorded conversation between Detective Bailey and 

the Rushtons, and circumstances such as defendant's age and 

education, the brevity of the interrogation, and the lack of 

physical restraints. The court concluded that defendant was not in 

custody or deprived of his freedom in any significant way when 

Detective Bailey asked the critical question and defendant answered 

it affirmatively. 

The United States Supreme Court has ruled that states may not 

use confessions or admissions resulting from a slcustodial 

interrogationt1 unless the proper Miranda warnings have been given. 

Miranda v. Arizona (1966), 384 U.S. 436, 444, 86 S. ct. 1602, 1612, 16 

L. Ed. 2d 694, 706. The Court defined 'lcustodial interrogation1' as 

"questioning initiated by law enforcement officers after a person 

has been taken into custody or otherwise deprived of his freedom of 

action in any significant way.l1 Miranda, 384 U.S. at 444. Accorci, 

Statev.Staat (1991), 251 Mont. 1, 6, 822 P.2d 643, 646. Thus, before 

determining whether Detective Bailey should have given defendant 

Miranda warnings in this instance, we must first determine whether 

there was a "custodial interrogation.Ir 

This Court has established guidelines for determining when a 

Ircustodial interrogationv' occurs. If a person has no free right to 

9 
leave, either from the express or implied conduct of police 

officers, then the interrogation is custodial in nature. State v. 

Ellinger (1986), 223 Mont. 349, 355, 725 P.2d 1201, 1204; Statev. Osteen 

(1985), 216 Mont. 258, 265, 700 P.2d 188, 193. The United States 

Supreme Court and this Court have made clear that interrogation 

which occurs in a suspect's home is subject to Miranda where it 

occurs in an environment in which the suspect's freedom of action 

has been significantly restricted. Orozco v. Texas (1969), 394 U.S. 

324, 89 S. Ct. 1095, 22 L. Ed. 2d 311; Statev. Ryan (1979), 182 Mont. 

130, 133-35, 595 P.2d 1146, 1147-48. However, even when the 

defendant is the focus of a criminal investigation at the time of 

questioning by officers, Miranda warnings are only required where a 

person's freedom is so restricted as to render him in custody. State 

v.Dan?~ek (1987), 226 Mont. 80, 87, 734 P.2d 188, 193. 

To determine if a custodial interrogation has occurred, this 

Court considers each case on a case-by-case basis and looks to 

whether a "reasonable personu would not feel free to leave, after 

considering such factors as the time and place of interrogation, 

the length and mood of interrogation, and persons present during 

the questioning. Statev. Lapp (l983), 202 Mont. 327, 331, 658 P.2d 

400, 403; Staat, 822 P.2d at 646. 

Here, two armed officers were in defendant's home late at 

night after arousing him from bed. When Detective Bailey and the 

other officers went to defendant's home, it is clear that they 
suspected defendant of criminal activity. Moreover, the officers 

specifically intended to obtain defendant's consent to conduct a 

search of his home because, for administrative reasons only, they 

did not attempt to get a warrant. Defendant was not told why the 

officers wanted to talk with him, nor that he had the right to 

refuse them entry. Although defendant quickly put on some clothes, 

his wife was dressed only in a robe and pajamas during the time 

they were questioned by Detective Bailey. Furthermore, after the 

Rushtons were told to sit on the couch, a second armed officer 

remained standing and blocked the exit from the room. Defendant 

testified that he did not feel he was free to leave and the 

officers present admitted their intention to stop and detain anyone 

who attempted to leave. At that time, without providing Miranda 

warnings, Detective Bailey asked a direct question of defendant for 

the purpose of obtaining evidence against him. 

After considering these circumstances, we conclude that a 

person in defendant's position could reasonably believe that his 

freedom was restricted and he was not free to leave. Therefore, we 

hold that the questioning of defendant constituted a custodial 

interrogation. 

In Osteen, 700 P.2d at 188, this Court addressed a similar 

situation. In that case, Narvin Osteen was at home when two 

officers knocked on his front door sometime after 10 p.m. The 

officers requested admission and were invited in by Osteen, but did 

not tell Osteen why they wanted to talk with him, nor that he had 
the right to refuse them entry. The officers clearly suspected 

Osteen of criminal activity and proceeded to question him without 

giving him Miranda warnings. After eliciting certain admissions 

from Osteen, he was arrested for aggravated assault. We concluded 

that Osteen was questioned in a custodial atmosphere and that the 

statements he made during that interrogation were inadmissible. 

Although the State attempts to distinguish defendant's 

situation from Osteen by emphasizing certain factors which it 

asserts were less ncoercive,ll we do not find the distinctions in 

Osteen as significant as the similarities. 

Because we have determined that defendant was interrogated in 

a custodial atmosphere requiring Miranda warnings under the Fifth 

Amendment to the United States Constitution, and Article 11, 

Section 25, of the Montana Constitution, the failure of Detective 

Bailey to preface his questions with Miranda warnings renders 

inadmissible the statements defendant made. The District Court 

erred when it concluded that Miranda warnings were not required and 

denied defendant's motion to suppress evidence of defendant's 

statements. 

ISSUE 2 

Did the District Court err when it denied defendant's motion 

to suppress evidence seized during an unwarranted search of his 

residence? 

Under the Fourth and Fourteenth Amendments to the United 

States Constitution, and Article 11, Section 11, of the Montana 
Constitution, warrantless searches and seizures conducted inside a 

home are perse unreasonable subject only to a few carefully drawn 

exceptions. Schneckloth v. Bustarnonte (1973) , 412 U. s . 218, 93 S. ct. 

2041, 36 L. Ed. 2d 854; State v. Kim (l989), 239 Mont. 189, 779 P.2d 

512. One of the recognized exceptions to the warrant requirement 

arises when a citizen has knowledgeably and voluntarily consented 

to a search. Schneckloth, 412 U.S. at 219; 5 46-5-101, MCA. 

"'[Wlhen a prosecutor seeks to rely upon consent to justify 

the lawfulness of a search, he has the burden of proving that the 

consent was, in fact, freely and voluntarily given.' Bumperv.North 

Carolina [1968], 391 U.S. 543, 548." Schneckloth, 412 U.S. at 222. 

Accord, Kim, 779 P.2d at 517. 

The Schneckloth Court made clear that the Constitution requires 

that consent be voluntarily given, uncontaminated by any duress or 

coercion, express or implied. In order to determine whether 

consent to a search was given voluntarily, this Court has adopted 

the same test used by the Supreme Court, which is the "totality of 

the circumstances" test. Kim, 779 P.2d at 517. 

In this instance, defendant contends his consent to the search 

was not given freely and that the court erred when it denied his 

motion to suppress the evidence seized during the search. 

Defendant alleges his consent was the product of illegal 

questioning, the threat that he and his wife would be held in 

custody "for a number of hourst1 until a warrant could be obtained, 
and an implied threat that they would be arrested if consent was 

not given for a search. 

The State counters with the assertion that the court correctly 

denied the motion to suppress because defendant was clearly told 

that he did not have to consent to the search, the officers were 

polite and nonaggressive during this incident, and his verbal and 

written consent were not coerced in any manner. 

Although we agree that defendant was specifically told he was 

not required to consent to a search, this factor is not 

controlling. In Schneckloth, 412 U.S. at 248-49, the court 

specifically held that a subject's knowledge of a right to refuse 

is only one of the factors to be taken into account and is not 

determinative of the question of voluntariness. Here, after 

considering the totality of the circumstances, we conclude that 

several factors, when considered cumulatively, negate the 

voluntariness of defendant's verbal and written consent. 

First, as concluded under the first issue, defendant's 

admission that there was marijuana on the premises was extracted 

improperly without Miranda warnings, after entry to defendant s home 

was gained without a warrant. Although we are not adopting a rule 

which would invalidate consent in any situation following an 

unlawful interrogation, we conclude the State has not met the 

burden in this instance of demonstrating that defendant's consent 

was not affected by the fact that he had made a highly 

incriminating statement. 
Furthermore, Detective Bailey explicitly promised that if 

defendant consented to the search, he would not arrest and 

incarcerate the Rushtons. The court concluded that this did not 

constitute an implied threat to incarcerate if consent was 

withheld. However, after considering this statement in light of 

the entire circumstances, we conclude the implication existed that 

if defendant did not cooperate, incarceration would result, and 

that this contributed to the coercive atmosphere in which 

defendant's consent was received. 

The statement made by Officer Bailey that the officers would 

remain in the Rushton's home for several hours, if necessary, until 

a warrant could be obtained raises particular concerns. When 

Officer Bailey said, llIrll be very frank, if you don't [consent], 

we'll be sitting here for a number of hours, and we'll have to go 

get a search warrant," the message was conveyed that the officers 

would remain in the house, with defendant and his wife in custody, 

until a search warrant was obtained. The District Court relied on 

this Court's decision in State v. Yoss (1965), 146 Mont. 508, 409 P.2d 

452, to conclude that this statement was permissible. However, we 

conclude that this statement was a misrepresentation of the law and 

was coercive in nature. 

In Yoss, the defendant had been arrested pursuant to a valid 

warrant and was legally in custody. We held that neither the fact 

that defendant was informed a search warrant could be obtained if 

he refused to consent, nor the fact that he was under arrest at the 
time consent was given, rendered the consent coerced. YOSS, 409 

P.2d at 455. 

Here, however, the officers had no right to imply that they 

could sit in defendant's home for a number of hours while a warrant 

was obtained. In this instance, there was no valid warrant 

permitting the officers to be in defendantls home. Defendant had 

af f owed the officers to come into his home after they asked if they 

could talk with him. However, they had no right to remain in his 

home, absent a valid warrant, if defendant revoked that consent. 

See, e.g., Uni~ed States v. Kelly (6th cir. 1990), 913 F.2d 261 (consent 

terminated when defendant revokes previously given consent) . While 

the officers may have been able to remain on defendant's property 

during the time it took to obtain a warrant, it was a 

misrepresentation to imply that they could remain in defendant's 

home, keeping him and his wife in custody, while a warrant was 

obtained. 

Based on these circumstances, considered in theirtotality, we 

hold that defendantls consent was obtained in a coercive manner and 

was not given freely and voluntarily. Therefore, evidence obtained 

during that search was seized in violation of the Fourth Amendment 

to the United States Constitution and Article 11, Section 11, of 

the Montana Constitution, and is inadmissible. The District Court 

erred when it denied the motion to suppress the evidence seized 

during the search of defendant's residence. 
The order of the District Court is reversed. Pursuant to the 

plea agreement, the conviction is reversed and the case remanded 

for further proceedings. 

We concur: 
March 22, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

Michael J. Shenvood 

Attorney at Law 

P. 0. Box 8142 

Missoula, MT 59807 

George H. Corn, County Attorney 

Gerald D. Williams, Deputy Attorney 

Ravalli County Courthouse, Box 5008 

Hamilton, MT 59840 

Hon. Joseph Mazurek, Attorney General 

Kathey Seeley , Assistant 

Justice Bldg. 

Helena, MT 59620 

ED SMITH 

CLERK OF THE SUPREME COURT 

BY: