80-325 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

IN THE MATTER OF R.P. S. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, Montana 

Honorable Diane G. Barz, Judge presiding. 

Counsel of Record: 

For Appellant: 

Stacey and Jarussi, Billings, Montana 

Calvin J. Stacey argued, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mark J. Murphy argued, Assistant Attorney General, 

Helena, Montana 

Harold F. Hanser, County Attorney, Billings, Montana 

Robert P. Morin argued, Deputy County Attorney, 

Billings, Montana 

Submitted: January 19, 1981 

Decided: February 18, 1981 

o Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

R.P.S. appeals from two orders of the District Court of 

Yellowstone County, sitting as the Youth Court: (1) denying 

suppression of alleged incriminatory statements made by R.P.S. 

relating to a homicide, (2) transferring the prosecution of 

R.P.S. from Youth Court to the adult criminal court (i.e. the 

District Court). We aff irm both orders. 

On November 10, 1979, the body of a 16-year-old female was 

found in an area southwest of the Billings KOA Campground. An 

autopsy revealed that the victim had been sexually assaulted and 

had died by strangulation. On November 14, the sheriff Is off ice 

received information that R.P.S. had burned the victim's car. 

The off ice contacted R.P.S. who voluntarily came to the sheriff's 

office without his parents, waived his Miranda rights, and allegedly confessed during questioning. 

R.P.S. was 10 days short of his 18th birthday on the date 

of the alleged crimes, but was 18 years old at the time of the 

interrogation leading to his alleged confession on November 14. 

On November 15, a petition was filed in the Youth Court 

alleging that R.P.S. was a delinquent youth by reason of having 

committed the offenses of deliberate homicide and sexual intercourse without consent. The following day the State moved to 

transfer the case to the District Court in order to prosecute 

R.P.S. as an adult. Ten days later R.P.S. filed a motion to 

suppress the alleged confession or admission and all physical 

evidence directly relating thereto. 

On December 17, while incarcerated in the Yellowstone 

County jail, R.P.S. made a phone call to his friend L.S. who was 

having a party at his home. During the course of the 

conversation, L.S. asked R. P.S. if he really did it and R. P.S. 

replied "Yeah." R.P.S. then related some of the circumstances 

surrounding the offenses. The law enforcement officers were not 

aware of this alleged confession to L.S. until January 26, 
shortly a£ ter they had resumed their investigation. 

On January 21, 1980, following a hearing, the Youth Court, 

the Honorable Diane G. Barz presiding, entered an order 

suppressing the alleged confession and all physical evidence 

derived therefrom on two grounds: (1) that law enforcement off icers failed to obtain a waiver from R.P.S.'s parents prior to 

questioning him as is required when questioning a youth pursuant 

to section 41-5-303, MCA, and (2) that R.P.S. did not make a 

knowing, intelligent and voluntary waiver of his constitutional 

rights at the time of the alleged questioning and confession 

because of his incapacity to do so. On appeal we affirmed on the 

second ground. In the Matter of R.P.S. (1980), Mont . I 

613 P.2d 999, 37 St.Rep. 1083. 

Thereafter on July 1, 1980, the State moved to set for 

hearing its motion to transfer the case from the Youth Court to 

the District Court. On July 9, R.P.S. filed another motion to 

suppress directed at evidence he anticipated would be offered at 

the transfer hearing, specifically the alleged confession R. P.S. 

made to L.S. during the phone call of December 17 and all physical evidence derived therefrom. A consolidated hearing on the 

two motions was held on July 14 in Youth Court. 

On August 4, the Youth Court entered its findings of fact, 

conclusions of law, memorandum and order: (1) denying R. P.S. 's 

motion to suppress, and (2) transferring the case from the Youth 

Court to the District Court for prosecution of R. P.S. as an 

adult. R.P.S. now appeals from these two orders. Following the 

State's motion to expedite the hearing and the filing of written 

statements of fact by opposing counsel, we granted the State's 

motion and heard the appeal on January 19, 1981. 

R. P.S. has been incarcerated in the Yellowstone County 

jail continuously since November 14, 1979. 

On appeal, R. P. S. advances two principal arguments supporting suppression of the alleged confession of December 17. 
First he argues that his alleged confession of December 17 to his 

friend L.S. was the result of his invalid and suppressed confession of November 14 to law enforcement officers; hence the 

alleged confession of December 17 is "fruit of the poisonous 

tree" and inadmissible under Silverthorne Lumber Co. v. United 

States (1920), 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed 319, and its 

progeny. Secondly, R. P.S. contends that the alleged confession 

of December 17 is inadmissible because once he confessed on 

November 14, he "let the cat out of the bag" and any subsequent 

confession made under virtually the same conditions should be 

excluded. According to R.P.S., there was not a sufficient break 

in the chain of events to remove the primary taint of the first 

confession and "put the cat back in the bag," citing United 

States v. Bayer (1947), 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed.2d 

1654 and related cases. 

The State, on the other hand, contends that the information leading to the discovery of the alleged confession to L.S. 

came from an independent source unrelated to the first inadmissible and suppressed confession of November 14; hence the 

second confession is untainted by the first and is not subject to 

suppression as "fruit of the poisonous tree." The State further 

argues that the second alleged confession is not rendered inadmissible under the "cat out of the bag" doctrine because the 

totality of circumstances surrounding the second confession 

demonstrates that it was voluntary and sufficiently attenuated 

from the first to remove any taint. 

We find that the fruit of the poisonous tree doctrine does 

not prevent the use of the second confession. The information 

leading to the discovery of the second confession came from an 

independent source, and thus the confession was cleansed of any 

"primary taint." 

The "fruit of the poisonous tree" doctrine, as part of the 

exclusionary rule, was first discussed by the United States 
Supreme Court in Silverthorne Lumber Co. v. U.S. (1920), 251 U.S. 

385, 40 S.Ct. 182, 64 L.Ed 319. It forbids the use of evidence 

which comes to light as a result of the exploitation of an initial illegal act of the police. Silverthorne, supra, 251 U.S. 

at 392, 40 S.Ct. at 183, 64 L.Ed at 321. But in Silverthorne and 

in later cases, the Court made it clear that all evidence 

obtained as the result of an initial illegality does not become 

forever unavailable or inaccessible. Certain conditions can 

purge the evidence of its "primary taint." The Supreme Court 

said in Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 

"We need not hold that all evidence is 'fruit of 

the poisonous tree' simply because it would not 

have come to light but for the illegal actions 

of the police. Rather, the more apt question in 

such a case is 'whether, granting establishment 

of the primary illegality, the evidence to which 

instant objection is made has been come at by 

exploitation of that illegality or instead by 

means sufficiently distinguishable to be purged 

of the primary taint. ' " 

371 U.S. at 488, 83 S.Ct. at 417, 9 L.Ed.2d at 455. 

If the same facts are discovered by the State from an 

independent source, such evidence may be found to be cleansed of 

any taint and becomes "unpoisoned . I' Silverthorne, supra, 251 

U.S. at 392, 40 S.Ct. at 183, 64 L.Ed at 321. Such evidence can 

be used in court or can be used to obtain additional information. 

The question in the present case, then, is whether the information leading to the questioning of L.S., which resulted in the 

discovery of the second confession, was sufficiently independent 

to render the second confession admissible. 

The homicide was discovered on November 10, 1979. An 

entry in the investigating detective's file, dated November 11, 

1979, contained the name of L.S., indicating that L.S. was a 

friend of the victim. R.P.S. was arrested and confessed on 

November 14, 1979, and in that confession mentioned that L.S. was 

a friend of his. On November 17, 1979, one of the other detec- 
tives received information that a student (B.M.) was talking 

about the homicide at high school. B.M. was interviewed on 

November 26, and at that time B.M. indicated that prior to 

R. P. S. 's arrest, R. P. S. had given some information concerning the 

murder to L.S. and B.M. L. S. was interviewed for the first time 

on January 26. 

On November 26, R.P.S. filed his motion to suppress his 

November 14 confession. On December 17, R. P.S. gave his second 

confession to L.S. On January 21, the trial court held the 

first confession inadmissible, and the State began its 

investigation anew. The December 17 confession was revealed in 

the January 26 interview of L.S. 

Detective Newel1 testified that he began his second 

investigation on the basis of the entries in his file referring 

to L.S. He testified that he did not utilize the reference to 

L.S. contained in R.P.S. Is first confession in seeking out L.S., 

nor did he recall even being aware of that reference. 

In summmary, his testimony indicated that even if the name 

of L.S. came to light as a result of an initial illegality, this 

same information was discovered independently, three days prior 

to the giving of the invalid confession. Thus we do not consider 

the evidence to be the product of any exploitation of a prior 

illegality, and we find it to be admissible. 

We need not make the finding which the State urges this 

Court to make, that there was no police misconduct and therefore 

no "taint" associated with the initial con£ ession. Because the 

independent source doctrine allows the use of the confession in 

this case, we need not determine what degree of police misconduct, ranging from intentional to inadvertent, serves to 

taint the evidence, for purposes of invoking the protections of 

the "fruits" doctrine. 

Appellant next argues that the second confession must be 

suppressed because of the "cat out of the bag" doctrine. The 

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trial judge rejected this argument, finding that there was "a 

clear showing the second statement was voluntarily made and was 

sufficiently insulated and disassociated from the first statement 

to avoid any taint." We find substantial evidence to support 

that finding and affirm the District Court's ruling that the 

second confession is admissible. 

Justice Jackson first formulated "the cat out of the bag" 

doctrine in 1947, in United States v. Bayer (1947), 331 U.S. 532, 

67 S.Ct. 1394, 91 L.Ed.2d 1654. It is applied in cases in which 

an inadmissible confession is obtained, and subsequently defendant makes a further confession. State v. Allies (1980), 

Mont . -1 - P. 2d , 37 St.Rep. 2089, 2098. The United 

States Supreme Court explained the doctrine : 

"Of course, after an accused has once let the 

cat out of the bag by confessing, no matter what 

the inducement, he is never thereafter free of 

the psychological and practical disadvantages of 

having confessed. He can never get the cat back 

in the bag. The secret is out for good. In 

such a sense, a later confession always may be 

looked upon as fruit of the first. But this 

Court has never gone so far as to hold that 

making a confession under circumstances which 

preclude its use, perpetually disables the confessor from making a useable one after those 

conditions have been removed. " 

United States v. Bayer, supra, 331 U.S. at 540-541, 67 S.Ct. at 

This Court endorsed this doctrine in its December 31, 

1980, opinion in State v. Allies, supra, finding in that case 

that Allies' later statements were inadmissible because there was 

not a "'break in the stream of events . . . sufficient to insulate the final events from the effect of all that went before.'" 

Whether or not the "causative link" between the two confessions 

has been broken sufficiently to remove the taint must be determined on a case-by-case basis, and the burden is on the State to 

show that the second statement is not tainted by the prior invalid confession or statement. Allies, supra, Mont. at I 

In making our finding in Allies, we looked at the 

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circumstances surrounding each confession in determining whether 

the conditions which served to invalidate the first confession 

carried over to make the second one likewise inadmissible. 

Specifically, we considered the passage of time, the change in 

location, the manner of interrogation, whether there was representation by counsel, and the defendant's mental condition. 

Allies, supra, Mont. at -1 - P.2d at , 37 St.Rep. at 

2098-2099. In Allies. we found that the continuous incarceration 

and the frequent persistent questioning (42 times) by Allies' 

girlfriend throughout the six-week period mandated a finding that 

there was an insufficient break in the causative chain. 

In addition to the factors we considered in Allies, we find 

several other factors cited by other jurisdictions to be relevant 

in making a determination in this case: police conduct, opportunity to talk with family and friends, and whether the defendant 

is in a position to believe that his first confession has made 

his present position hopeless. Comm. v. Meehan (1979), Mass. 

, 387 N.E.2d 527, 537, cert. dismissed, 445 U.S. 39, 100 

S.Ct. 1092, 63 L.Ed.2d 185; Knott v. Howard (1st Cir. 1975), 511 

F.2d 1060, 1061. 

R.P.S. first confessed in the sheriff's office while being 

questioned about the burning of the victim's car. Thirty-three 

days later, he confessed again, this time while incarcerated in 

the Yellowstone County jail. The first confession was made 

during an interrogation by the State; the second came during a 

phone call which R.P.S. voluntarily made to L.S., and about which 

the State had no knowledge. The second confession was not the 

result of persistent questioning as in Allies; L.S. testified 

that during the phone call, he asked R.P.S. if he had done it, 

and R.P.S. replied, "Yeah," and then gave details. Police 

misconduct, if any, appears to have been inadvertent at the first 

confession; police were not present and had no knowledge of the 

second confession until a month after it was made. R. P.S. had 
appointed counsel prior to making the second confession and had 

appeared in court with counsel in order to get his first confession suppressed. R. P.S. was aware, then, at the time of the 

second confession that there was a decision pending which could 

put the "cat back in the bag." R. P.S. Is family appears to have 

been supportive and came to see him at least 18 times between the 

arrest and the second confession. 

These factors, when taken as a whole, indicate that there 

was a significant break in the chain of events which purged any 

taint from the second confession. Admittedly, R. P.S., like 

Allies, was incarcerated throughout the period, but this factor 

alone does not require suppression of the second statement. 

Additionally, appellant argues that R. P.S. 's mental condition 

precluded his ever making any admissible statements concerning 

the alleged crimes, once he had confessed. We disagree. 

At the hearing to suppress the first confession, Dr. 

Tranel, who had conducted a psychiatric examination of R. P.S. , 

testified that R. P.S. could not understand the "abstract terms" 

contained in the Miranda warning. He concluded therefore that 

R.P.S. could not make a knowing, voluntary and intelligent waiver 

of his rights. After considering his testimony and other 

con£ licting testimony, the district judge found that "it is 

impossible to make a factual determination that the youth in this 

case made a knowing, intelligent and voluntary waiver of his 

constitutional rights ." We af f irmed that finding of the District 

Court on the first appeal. In the Matter of R.P.S., supra. 

At the hearing on the motion to suppress the second 

confession, R.P.S. made no allegation that he was suffering 

from any mental illness on December 17 which would invalidate 

his confession, and there was no evidence introduced with respect 

to his mental condition. The finding that R.P.S. was incapable 

of waiving his Miranda rights on November 14 was simply not relevant to a consideration of the circumstances of the December 17 
confession, because there was no question of waiver involved in 

the second confession. The second confession was made voluntarily to a nonpolice person, a situation which does not require 

any understanding of, nor waiver of, the Miranda rights. In 

contrast to the Allies situation, in which Allies was found to be 

mentally ill during both time periods, R.P.S. was found only to 

be incapable of waiving his rights in making his first 

confession. This fact is insufficient to justify a finding that 

R.P.S. was mentally incapable of making a later, voluntary statement to a friend who was outside of jail. 

The district judge found that the second confession was 

voluntarily made and sufficiently disassociated from the first 

to be admissible. As this finding is supported by substantial 

credible evidence, we will not disturb it. 

We a£ f irm the order of the Youth Court finding the second 

confession admissible and transferring the case to the District 

Court. 

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We concur: 

Chief Justice