80-325 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

INTHE MATTER OF R.P.S.

Appeal from: DistrictCourt of theThirteenth 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 ClerkMr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. R.P.S. appeals from 

### twoorders 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

### irmboth 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 victimhad been sexually assaulted and had died by strangulation. On November 14, the sheriffIsoffice received information thatR.P.S. had burned the victim's 

### car. The office contacted R.P.S. who voluntarily

### came 

### to the sheriff's office without hisparents, waived hisMiranda rights, and allegedly confessed during questioning. R.P.S. was 10days short of his 18thbirthday on the date of the alleged crimes, but was 18years old at the time of the interrogation leading tohis alleged confession on November 14. On November 15, 

### a petition 

### was filed inthe Youth Court alleging thatR.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 Statemoved to transfer the case to the District Court inorder toprosecute R.P.S. 

### as an adult. Ten days 

### laterR.P.S. filed a motion to suppress the alleged confession or admission and allphysical evidence directly relating thereto. On December 17,while incarcerated intheYellowstone County jail, R.P.S. made a phone call tohis friend L.S. who was having a party athishome. During the course of the conversation, L.S. asked R.P.S. if he reallydid 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 allphysical evidence derived therefrom on two grounds: (1)that law enforcement officers failed to obtain a waiver from R.P.S.'s parents prior to questioning him as is required when questioning a youth pursuant tosection 41-5-303, MCA, and (2)thatR.P.S. did not make a knowing, intelligent and voluntary waiver of hisconstitutional 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 Statemoved 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 17and allphysical evidence derived therefrom. A consolidated hearing on the two motions 

### was held on July 14inYouth Court. On August 4, theYouth 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 forprosecution of R.P.S. as an adult. R.P.S. now appeals from these 

### twoorders. 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 inthe Yellowstone County jail continuously sinceNovember 14, 1979. On appeal, R.P.S. advances 

### twoprincipal arguments supporting suppression of the alleged confession of December 17.Firsthe argues that his alleged confession of December 17to his friend L.S. was the result of his invalid and suppressed confession of November 14to

### lawenforcement 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 virtuallythe same conditions should be excluded. According 

### to R.P.S., there

### was not a sufficientbreak inthe chain of events toremove the primary taintof the first confession and "put the catback inthe bag," citing United States v. Bayer (1947), 331U.S. 532, 67 S.Ct. 1394, 91L.Ed.2d 1654 and related cases. The State, on the otherhand, 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 Statefurther argues that the second alleged confession is not rendered inadmissible under the "cat out of the bag" doctrine because the totalityof circumstances surrounding the second confession demonstrates that it 

### was voluntary and sufficientlyattenuated from the firstto remove any taint. We find that the fruit of the poisonous tree doctrinedoes not prevent the use of the second confession. The information leading tothe discovery of the second confession came from an independent source, and thus the confession 

### was cleansed of any "primary taint." The "fruitof the poisonous tree" doctrine, as part of the exclusionaryrule, 

### was firstdiscussed by the United StatesSupreme Court in SilverthorneLumber 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 exploitationof 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 inSilverthorne and in later 

### cases, the Court made it clear that allevidence 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 inWong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct.

"We need not hold that allevidence is 'fruit of the poisonous 

### tree' simplybecause it would not have come to lightbut 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 atby exploitation of that illegality 

### or instead by means sufficientlydistinguishable to be purged of the primary taint.

## '" 371 U.S. at488, 83 S.Ct. at417, 9 L.Ed.2d at455. If the same facts

### are discovered by the Statefrom 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 incourt 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 torender the second confession admissible. The homicide was discovered onNovember 10, 1979. An entry in the investigating detective's file, dated November 11, 1979, contained the name of L.S., indicating thatL.S. was a friend of the victim. R.P.S. 

### was arrested and confessed on November 14, 1979, and in that confession mentioned thatL.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 athigh school. B.M. was interviewed on November 26, and atthat time B.M. indicated thatprior to R.P.S.'s arrest, R.P.S. had given some information concerning the murder toL.S. and B.M. L. S. was interviewed for the first

### time

on January 26. On November 26, R.P.S. filed hismotion 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 firstconfession inadmissible, and the Statebegan its investigation anew. The December 17confession was revealed in the January 26 interview of L.S. DetectiveNewel1 testified thathe began his second investigation on the basis of the entries inhis filereferring toL.S. He testified thathe did not utilize the reference to L.S. contained inR.P.S. Isfirstconfession 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 tothe giving of the invalid confession. Thus we do not consider the evidence tobe the product of any exploitation of a prior illegality, and we find it 

### to be admissible. Weneed not make the finding which the Stateurges 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, forpurposes 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



## - 6-trialjudge 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. JusticeJackson first formulated "the cat out of the bag" doctrine in 1947, inUnited States v. Bayer (1947), 331U.S. 532, 67 S.Ct. 1394, 91L.Ed.2d 1654. It is applied incases inwhich an inadmissible confession is obtained, and subsequentlydefendant makes a further confession. Statev. Allies (1980), Mont

# . -1 

### - P.2d 

## , 37 St.Rep. 2089, 2098. The United StatesSupreme 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 fruitof the first. But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetuallydisables the confessor from making a useable one after those conditions have been removed.

### " United States 

### v. Bayer, supra, 331U.S. at540-541, 67 S.Ct. at

This Court endorsed thisdoctrine in 

### its December 31, 1980, opinion in Statev. Allies, supra, finding in that case thatAllies' later statements

### were inadmissible because there was not a "'break in the streamof events

# .. . sufficient 

### to insulate the finalevents from the effect of all thatwent before.'" Whether or not the "causative link" between the two confessions has been broken sufficiently to remove the taintmust be determined on a case-by-case basis, and the burden is on the Stateto show that the second statement is not tainted by the prior invalidconfession or statement. Allies, supra, Mont. at I

Inmaking our finding inAllies, we looked at the -7-circumstances surrounding each confession indetermining 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. InAllies. 

### we found that the continuous incarceration and the frequent persistent questioning (42times) by Allies' girlfriend throughout the six-week period mandated a finding that therewas an insufficient break in the causative chain. Inaddition 

### to the factors

### we considered inAllies, we find several other factors cited by other jurisdictions to be relevant inmaking a determination in this case: police conduct, opportunity to talkwith family and friends, and whether the defendant is in a position tobelieve thathis first confession has made hispresent 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 (1stCir. 1975), 511 F.2d 1060, 1061. R.P.S. first confessed in the sheriff's officewhile being questioned about the burning of the victim's 

### car. Thirty-three days 

### later, he confessed again, thistimewhile incarcerated in theYellowstone County jail. The firstconfession 

### was made during an interrogation by the State; the second 

### came during a phone 

### call which R.P.S. voluntarilymade toL.S., and about which the Statehad no knowledge. The second confession was not the result of persistent questioning as inAllies; L.S. testified thatduring 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. hadappointed counsel prior tomaking the second confession and had appeared in court with counsel inorder to gethis firstconfession suppressed. R.P.S. was aware, then, atthe timeof the second confession that therewas a decision pending which could put the "cat back in the bag." R.P.S. Isfamily appears 

### to have been supportive and came to see him atleast 18times 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 thisfactor 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. Wedisagree. Atthe hearing to suppress the firstconfession, 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 intelligentwaiver of his rights. After considering his testimony and other con£licting testimony, the districtjudge found that "itis 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 firmed that finding of the District Court on the firstappeal. In the Matter of R.P.S., supra. Atthe hearing on the motion to suppress the second confession, R.P.S. made no allegation thathe was suffering from anymental illness on December 17which would invalidate his confession, and there was no evidence introduced with respect tohismental condition. The finding thatR.P.S. was incapable of waiving hisMiranda rights onNovember 14was simply not 

### relevant 

### to a consideration of the circumstances of the December 17confession, because there was no question of waiver involved in the second confession. The second confession 

### was made voluntarily to a nonpolice person, a situationwhich does not require any understanding of, nor waiver of, the Miranda rights. In contrast to the Alliessituation, inwhich Allieswas found to be mentally ill during both 

### timeperiods, R.P.S. was found only to be incapable of waiving his rights inmaking hisfirst confession. This fact is insufficient to justify a finding that R.P.S. 

### was mentally incapable of making a later, voluntary 

### statement toa friendwho 

### was outside of jail. The districtjudge found that the second confession

### was voluntarilymade and sufficiently disassociated from the first tobe admissible. As this finding 

### is supported by substantial credible evidence, 

### we willnot disturb it. We a£f

### irmthe order of the Youth Court finding the second confession admissible and transferring the case to the District Court.

, -7 

### We concur: Chief Justice