NO. 95-043 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

FRANK MICHAEL GREY, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

David M. Ortley, Kalispell, Montana 

For Respondent: 

Joseph P. Mazurek, Attorney General, Jennifer 

Anders, Assistant Attorney General, Helena, Montana; 

Thomas J. Esch, Flathead County Attorney, Valerie 

D. Wilson, Deputy Flathead County Attorney, 

Kalispell, Montana 

DEC 05 1995 Submitted on Briefs: August 31, 1995 

Fil 
Justice James C. Nelson delivered the Opinion of the Court. 

Defendant Frank Michael Grey (Grey) appeals from the Eleventh 

Judicial District Court, Flathead County's order denying his motion 

to suppress his videotaped statement and judgment of conviction. 

We reverse. 

We find the following issue dispositive: 

Whether the District Court erred in denying Grey's motion to 

suppress his videotaped statement on the ground that the statement 

was obtained involuntarily and thus in violation of Grey's Fifth 

Amendment right against self-incrimination? 

BACKGROUND 

John Zauner (Zauner) owns a Western Auto store in Kalispell, 

Montana where Grey was employed as a salesclerk. After noting 

merchandise missing from his store, and after finding that Grey had 

a prror conviction of theft from a store at which he worked, Zauner 

contacted the Kalispell Police Department. The police initiated an 

investigation focused on Grey. The thefts occurred after Zauner 

hired Grey and some could be traced to Grey's shift. Additionally, 

Zauner saw the same kind of radar detector mount that was missing 

from his store in Grey's pick-up truck and knew that Grey always 

carried a gym bag to and from work. The police placed a video 

camera in the store to "make it look as if there was a hidden 

camera." 

The police contacted Grey at Western Auto, informed him that 

an investigation was being conducted, and told him that all the 

employees would be interviewed, but he was the first. The police 

asked Grey to go to the Kalispell Police Department for the 

interview. Grey voluntarily drove himself to the station and was 

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initially interviewed in the public area of the station. Officer 

Holt told Grey that he was investigating a theft totalling $22,000 

and again told Grey that he would interview each employee. Officer 

Holt used the "Reed" technique of interviewing to interpret Grey's 

responses and body mannerisms to determine whether he was more 

likely guilty than not. 

At that point, Officer Halt contends that he gave Grey his 

Miranda warnings, asked him if he wanted to continue talking, and 

took him to the booking room for formal interrogation. Grey 

contends that Officer Holt did not give him his Miranda warnings. 

The police did not obtain a written waiver or record giving Grey 

his Miranda warnings, but did videotape the interview. Officer 

Holt began the interrogation by again telling Grey that 

approximately $20,000 was missing from Western Auto and asking Grey 

whether the lie detector would "go beep" when he answered 

questions. During the interrogation, Grey confessed to taking 

merchandise from Western Auto. Both parties agree that the 

interview constituted a custodial interrogation. 

The police arrested and incarcerated Grey. Grey filed a pretrial motion to suppress the statement and videotape alleging that 

they were both obtained in violation of his privilege against selfincrimination. On September 19, 1994, the District Court denied 

Grey's motion to suppress. On the date scheduled for trial, the 

District Court heard Grey's renewed motion to suppress, denied the 

motion, and granted Grey's oral motion to continue trial. 

Following a bench trial, the District Court found Grey guilty of 

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felony theft, common scheme, and ordered him to serve 90 days in 

the Flathead County jail and deferred his sentence for 2 years on 

certain conditions. 

DISCUSSION 

Whether the District Court erred in denying Grey's motion to 

suppress his videotaped statement on the ground that the statement 

was obtained involuntarily and thus in violation of Grey's Fifth 

Amendment right against self-incrimination? 

On appeal, Grey raises five issues for our consideration. 

Since we reverse the District Court on the second issue, we will 

only discuss that issue. We review a district court's findings of 

fact regarding suppression hearing evidence to determine whether 

those findings are clearly erroneous. State v. Kaluza (1993), 262 

Mont. 360, 361, 865 P.Zd 263, 264 (citing State v. Bower (19921, 

254 Mont. 1, 7, 833 P.2d 1106, 1110 and State v. Cope (1991), 250 

Mont. 387, 396, 819 P.2d 1280, 1286). The issue of voluntariness 

is largely a factual determination that is within the discretion of 

the district court. State v. Lenon (19771, 174 Mont. 264, 271, 570 

P.2d 901, 906. 

Grey argues that the police used impermissible procedures to 

obtain his confession, rendering it involuntary and violative of 

both his Fifth Amendment privilege against self-incrimination and 

his Fourteenth Amendment right to due process of the law. Grey 

also contends that the police did not administer adequate Miranda 

warnings and should have recorded the warnings and obtained a 

written waiver. Grey claims that he did not voluntarily, 

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intelligently, and knowingly waive his rights. Therefore, he 

contends that the District Court erred in admitting his statement 

into evidence. 

Confessions are generally admissible. To be admissible, 

however, a confession must be made freely, voluntarily, and without 

compulsion of any sort. State v. Allies (1979), 186 Mont. 99, 109, 

606 P.2d 1043, 1049. 

The abhorrence of society to the use of involuntary 

confessions does not turn alone on their inherent 

untrustworthiness. It also turns on the deep-rooted 

feeling that the police must obey the law while enforcing 

the law; that in the end life and liberty can be as much 

endangered from illegal methods used to convict those 

thought to be criminals as from the actual criminals 

themselves. 

Allies, 606 P.2d at 1047 (quoting Spano v. New York (1959), 360 

U.S. 315, 320, 79 S.Ct. 1202, 1205, 3 L.Ed.2d 1265, 1270). 

The procurement of a confession must comport with the 

guarantee that an individual will not be compelled to incriminate 

himself or herself, and that the individual may not be convicted of 

a crime without due process of law. Allies, 606 P.2d at 1047. It 

follows that I' [ilf a defendant's confession is involuntary, it 

violates [the1 Fifth Amendment privilege against self-incrimination 

and may not be used as evidence at [the] criminal trial without 

violating [the] Fourteenth Amendment right to due process of the 

law." Lenon, 570 P.2d at 906 (citing Brown v. Mississippi (1936), 

297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682). A defendant may waive 

the Fifth and Fourteenth Amendment rights only if the waiver of 

those rights is made voluntarily, knowingly, and intelligently. 

Miranda v. Arizona (19661, 384 U.S. 436, 444, 86 S.Ct. 1602, 1613, 

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16 L.Ed.2d 694, 707; State v. Blakney (1982), 197 Mont. 131, 134, 

641 P.Zd 1045, 1049. 

Voluntariness is the underlying test of admissibility of 

confessions. Lenon, 570 P.2d at 906 (citing Brown v. Illinois 

(1975), 422 U.S. 590, 604, 95 S.Ct. 2254, 2262, 45 L.Ed.2d 416, 

427). 

Voluntariness has reflected an accommodation of the 

complex values implicated in police questioning of a 

suspect . . At one end of the spectrum is the 

acknowledged need for police questioning as a tool for 

the effective enforcement of criminal laws . . At the 

other end of the spectrum is the set of values reflecting 

society's deeply felt belief that the criminal law cannot 

be used as an instrument of unfairness . . . [Citations 

omitted.] 

Schnekloth v. Bustamonte (1973), 412 U.S. 218, 225-26, 93 S.Ct. 

2041, 2046, 36 L.Ed.2d 654, 861. In determining whether a 

defendant's confession was voluntary, the United States Supreme 

court has assessed the totality of all the surrounding 

circumstances, including the characteristics of the accused and the 

details of the interrogation. Schnekloth, 412 U.S. at 226. 

Significantly, none of the decisions regarding the admissibility of 

a confession turns on the presence or absence of a single 

controlling criterion, each reflects a careful scrutiny of all the 

surrounding circumstances. Schnekloth, 412 U.S. at 226. 

Accordingly, this Court has held that an analysis of the 

voluntariness of a confession is a factual question that must take 

into account the totality of the circumstances. State v. Mayes 

(1992), 251 Mont. 358, 376, 825 P.2d 1196, 1208 (citing Allies, 606 

P.2d at 1050). 
Pursuant to § 46-13-301(l), MCA, a defendant may move to 

suppress a confession that the defendant feels was involuntary. 

This section places the burden on the State to prove by a 

preponderance of the evidence that the confession was voluntary. 

The central question is whether the State has established by a 

preponderance of the evidence that the defendant was advised of his 

constitutional rights and whether that defendant knowingly waived 

them and voluntarily gave a statement. State v. Blakney (19821, 

197 Mont. 131, 143, 641 P.2d 1045, 1051. 

Several factors can culminate in a totality of circumstances 

that render a confession involuntary. A confession extracted by 

any sort of threat or violence, by any direct or implied promises, 

however slight, or by the exertion of any improper influence has 

the potential to be involuntary. State v. Phelps (1985), 215 Mont. 

217, 224, 696 P.2d 447, 451. Physical coercion, psychological 

coercion, inadequate Miranda warnings, and impermissible police 

practices are each factors weighed in a court's consideration of 

undue influence. Brown v. Mississippi, 297 U.S. 270 (holding that 

physical brutality led to an involuntary confession); Payne v. 

Arkansas (1958), 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (holding 

that mental coercion led to an involuntary confession); Miranda, 

384 U.S. 436 (holding that failure to warn defendant of rights 

rendered confession inadmissible); Allies, 606 P.2d 1043 (holding 

that impermissible police procedures rendered confession 

involuntary). In the instant case, the police followed 

impermissible practices and failed to administer adequate Miranda 
warnings. 

When a defendant moves to suppress a statement, the district 

court ' s analysis should focus on whether the law enforcement 

authorities followed impermissible procedures. Allies, 606 P.2d at 

1049; State v. Grimestad (1979), 183 Mont. 29, 36, 598 P.2d 198, 

202. For example, in Allies, the defendant voluntarily presented 

himself at the police station three times, underwent a polygraph 

test, and eventually confessed to four murders. The police used 

two impermissible procedures in Allies; they lied to the defendant 

and used subtle psychological pressure. Even though the police 

advised the defendant of his Miranda rights, we held that in 

considering the totality of the circumstances, the State did not, 

by a preponderance of the evidence, show that the defendant 

voluntarily and knowingly waived his constitutional right against 

self-incrimination or that he voluntarily confessed. 

In Maves, a defendant found guilty of incest confessed after 

taking a polygraph test. Maves, 825 P.2d 1196. This Court 

suppressed the confession because the combination of the 

circumstances surrounding his confession mandated suppression. At 

the time the defendant confessed, he had been awake for more than 

30 hours, questioned continually, separated from his children, and 

lied to about evidence against him. w, 825 P.2d at 1208. The 

polygraph test indicated that the defendant was not telling the 

truth, and the examiner used that information to obtain a 

confession. 

In State v. Craig (1993), 262 Mont. 240, 864 P.2d 1240, the 

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defendant had slept prior to the exam and the officers did not lie 

about evidence, however we still held that the district court did 

not err in suppressing a statement made by the defendant following 

a polygraph examination where police officers used the results of 

the polygraph to elicit a statement or confession. We reached that 

result even though at no time did the police make any false 

statements to the defendant in order to induce a confession. 

Craiq, 864 P.2d at 1243 (Nelson, J., dissenting). 

In the instant case, the police made false statements in order 

to induce Grey's confession and thus clearly used impermissible 

procedures. The Kalispell Police Department's investigation 

singled out Grey and focused on obtaining enough evidence to charge 

him. They lied to him and told him that they were going to 

interview each employee. They lied to him about the extent of the 

theft problem. They lied to him that $22,000 worth of merchandise 

had been stolen, when in fact, only several hundred dollars worth 

of property was missing. They set up a video camera in the store 

purely to create a false impression that the store was monitored. 

Lastly, they told Grey that the lie detector test would go "beep" 

if Grey did not tell the truth, when in fact Grey did not have to 

take a lie detector test. In summary, Officer Halt's use of 

deception to obtain Grey's confession was not a permissible police 

procedure. 

The police committed an additional transgression of procedure 

in this case by not giving Grey adequate Miranda warnings. In 

State v. Johnson (19781, 177 Mont. 182, 580 P.2d 1387, we held that 

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the requirements of Miranda were not met when a county attorney 

testified that the defendant was given his rights but there was no 

proof regarding what the defendant was told about his rights. We 

concluded that without knowing what the defendant was told, we 

could not possibly determine if the defendant was properly advised 

of his rights prior to making a statement to the county attorney. 

This Court has said that where the police investigation 

has focused on a particular suspect who is held in police 

custody, law enforcement officers must adopt effective 

safeguards securing the suspect's constitutional right 

against self-incrimination prior to questioning him. . . 

Johnson, 580 P.Zd at 1389. 

Moreover, a valid waiver will not be presumed simply from the 

silence of the accused after a warning is given or simply from the 

fact that a confession was in fact eventually obtained. The 

evidence must show the defendant intelligently understood his or 

her rights and rejected them. Miranda, 384 U.S. at 475. In 

Allies, we noted that the defendant was advised of his Miranda 

rights before he confessed. However, we proceeded with the 

understanding that " [mlore than mere lip service must be given to 

Miranda and the principles it embodies." Allies, 606 P.Zd at 1050. 

Similarly, in Grimestad, the State appealed the district 

court's order granting defendant's motion to suppress evidence on 

the grounds that certain admissions were not voluntary. The police 

downplayed defendant's Miranda rights and persisted in assuring the 

defendant that he was not a suspect. In Grimestad, we agreed with 

the district court that "mere lip service was given to the Miranda 

requirements . . . rather than a meaningful warning." Grimestad, 

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598 P.Zd at 203. 

Similarly, in the instant case, the police gave mere lip 

service to the Miranda requirements. The officer who interrogated 

Grey testified that he gave Grey his Miranda rights before taking 

Grey to the interrogation room. However, he did not recall exactly 

what he told Grey, merely that he had recited the Miranda 

requirements from memory. The officer did, however, remember that 

he chose not to use a waiver form because he did not want to 

jeopardize the interrogation. He further testified that although 

Grey did not specifically say so, by agreeing to continue to talk 

with the police officers, Grey agreed to waive his rights. 

The State simply did not prove by a preponderance of the 

evidence that Grey voluntarily confessed. It is immeasurably more 

difficult for the State to sustain its burden to prove the 

voluntariness of a confession when there is no record of the 

Miranda warnings other than the officer's testimony that he gave 

them. 

We do not hold that the police must tape record or create an 

audio-visual record of Miranda warnings and the detainee's waiver, 

as Grey urges we should and as some jurisdictions have. See, for 

example, Stephan v. State (Alaska 19851, 711 P.2d 1156 and State v. 

Scales (Minn. 1994), 518 N.W.2d 587. Although that may be the 

better practice and would help assure that the accused receives a 

constitutionally adequate Miranda warning while, at the same time, 

enhancing the prosecution's ability to meet its burden to prove 

voluntariness, we leave the imposition of any such procedural 

11 
requirement to the legislature and to individual law enforcement 

agencies. Similarly, we do not hold that in every instance the 

failure to secure a written Miranda waiver will be fatal. We 

recognize, as one example, that an officer Mirandizing a suspect in 

the field at the time of arrest, may not be able to preserve a 

tangible record of his or her giving of the warning or of the 

accused's waiver. 

Nevertheless, the situation in the instant case does not 

involve the arresting officer's administration of the Miranda 

warning in the field. We do hold, that, in the context of a 

custodial interrogation conducted at the station house or under 

other similarly controlled circumstances, the failure of the police 

officer to preserve some tangible record of his or her giving of 

the Miranda warning and the knowing, intelligent waiver by the 

detainee will be viewed with distrust in the judicial assessment of 

voluntariness under the totality of circumstances surrounding the 

confession or admission. That is all the more so where the 

evidence demonstrates that, as here, the police officer made a 

conscious decision not to secure a written waiver or otherwise 

preserve his giving of the Miranda warning and the detainee's 

waiver on the premise that to do so would alert the accused to 

exercise his rights and, thus, jeopardize the interrogation. 

In the instant case, assuming, arguendo, that the warning was 

given, the mere perfunctory reading of Grey's Miranda rights was 

not sufficient; the police, here, made a pretense of advising Grey 

of his rights while simultaneously making sure he did not assert 

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them. Such a procedure renders the giving of the Miranda warnings 

a hollow and meaningless exercise, indeed, and does not comport 

with due process. 

Based on the totality of the circumstances of police deception 

and failure to give Grey an adequate Miranda warning, we hold that 

the District Court's findings were clearly erroneous. The District 

Court misapprehended the evidence in finding that Grey's confession 

was voluntary. 

Accordingly, Grey's conviction is reversed. 

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