State v. Kelm
| Decision Date | 30 April 2013 |
| Docket Number | No. DA 12–0239.,DA 12–0239. |
| Citation | 370 Mont. 61,300 P.3d 687 |
| Parties | STATE of Montana, Plaintiff and Appellant, v. Kristin Elizabeth KELM, Defendant and Appellee. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
For Appellant: Timothy C. Fox, Montana Attorney General; Jonathan M. Krauss, Assistant Attorney General; Helena, Montana.
Steven Howard, Sheridan County Attorney; Plentywood, Montana, Nickolas C. Nurnion, Special Deputy Sheridan County Attorney; Glasgow, Montana.
For Appellee: Brad W. Fjeldheim; O'Toole Law Firm; Plentywood, Montana.
[370 Mont. 62]¶ 1 The State of Montana appeals an order of the Montana Fifteenth Judicial District Court, Sheridan County, granting defendant Kristin Kelm's motion to suppress evidence. We affirm in part, reverse in part, and remand the action for further proceedings.
¶ 2 We address the following issues on appeal:
¶ 3 1. Did the District Court incorrectly conclude that, because the arresting officer did not follow § 46–6–312, MCA, all evidence gathered after Kelm's arrest should be suppressed?
¶ 4 2. Did the District Court incorrectly conclude that the officer's failure to advise Kelm of her Miranda rights at the time of her arrest required suppression of all evidence obtained after her arrest?
¶ 5 3. Did the District Court incorrectly conclude that evidence seized from Kelm's vehicle must be suppressed?
¶ 6 In the early-morning hours of February 19, 2011, Sheridan County Sheriff's Deputy Robert Krause (Krause) observed a blue pickup truck driven by Kristen Kelm cross the center line of a Plentywood, Montana street and drive onto the local highway. Krause followed Kelm for several miles and “observed [her] vehicle weaving within its lane touching both the fog line and the center line and then actually crossing the center line two or three times.”
¶ 7 Krause initiated a traffic stop on Kelm's vehicle and she pulled over to the side of the road. When Krause approached the driver's-side window, Kelm immediately provided her driver's license. Krause informed Kelm that he had stopped her for crossing the center line of the highway. He then remarked to Kelm that her eyes looked “bloodshot and glassy” and asked if she had been drinking. Kelm denied that she had consumed alcohol that evening.
¶ 8 Without having Kelm get out of the car, Krause proceeded to administer a horizontal gaze nystagmus test (HGN) to help determine whether Kelm was intoxicated. He observed a “lack of smooth pursuit in both eyes as well as distinct and sustained nystagmus at maximum deviation in both eyes” and gave her a score of four out of a possible six points, which indicated intoxication. Krause again asked Kelm if she had been drinking alcohol, and she admitted to consuming one drink.
¶ 9 After Krause had finished administering the HGN test, he determined that Kelm needed to pass standardized field sobriety tests before she could resume driving. Because the temperature was minus-one degree Fahrenheit and ice and snow covered the highway, Krause asked Kelm if she would agree to perform sobriety tests at the Sheridan County Jail, where the climate-controlled conditions would give her the best chance of passing the tests. Kelm agreed, turned off her truck, and gave her keys to Krause. In accordance with department policy, Krause put Kelm in handcuffs before placing her in the backseat of his patrol vehicle. Krause did not inform Kelm that she was under arrest.
¶ 10 As Krause was helping Kelm buckle her seatbelt, he smelled alcohol on Kelm's breath. Krause asked Kelm to confirm that she had only had one drink that evening. He then informed her that he could smell alcohol, and asked if she was certain that she had only had one drink; Kelm said yes.
¶ 11 Krause then noticed that Kelm had not turned off her truck's lights. Kelm gave him permission to turn off the lights before they drove away so that the truck's battery would not die. Krause unlocked the pickup, reached in from the driver's side, and turned off the lights. As he was walking back to his patrol car, he noticed that the truck's dome lights still were illuminated. He opened the driver's-side door a second time and immediately noticed a half-full beer bottle on the floor as well as a plastic cup filled with a green liquid that smelled like alcohol in the passenger cup holder. After emptying the beer bottle and plastic cup in front of his cruiser, Krause asked Kelm about the green liquid. Kelm could not identify the liquid and denied that she had been drinking it.
¶ 12 Krause drove Kelm to the booking room at the Sheridan County Jail, where she performed three field sobriety tests under the direction of Sheriff Deputy Darren Ginn (Ginn): a second HGN test, a “walk and turn” test, and a “one-leg stand” test. Kelm failed each test. Like Krause, Ginn observed a “lack of smooth pursuit” and “distinct nystagmus at maximum deviation” during the HGN test. During the walk and turn test, Kelm failed to follow directions by walking too soon, raising her arms while walking, and making an improper turn. She also was unable to walk in a straight line in a heel-toe fashion. During the one-leg stand, she swayed back and forth, raised her arms, and put her foot down too soon. Ginn and Krause did not ask Kelm any potentially incriminating questions while administering the sobriety tests.
¶ 13 Following the sobriety tests, Ginn read to Kelm an implied consent advisory form. Ginn informed Kelm that she was under arrest for driving a motor vehicle while under the influence of alcohol and that, under Montana law, she was deemed to have given her implied consent to either a blood or breath test for alcohol. This was the first time a law enforcement officer told Kelm that she was under arrest. Ginn also explained that Kelm's Miranda right to an attorney did not apply during the testing procedure and advised her of the consequences if she refused to take the test. Kelm signed the form and agreed to take a breath test. The test showed that her blood alcohol content was 0.198—over twice the legal limit. Krause then read Kelm her Miranda rights for the first time. Kelm signed a form indicating that she understood her rights and stated she did not wish to further speak with law enforcement. Krause then formally booked Kelm into the Sheridan County Jail.
¶ 14 Later that day, Kelm appeared before the Sheridan County Justice Court and was charged with three separate counts: (1) unlawful possession of an open alcoholic beverage container in a motor vehicle, in violation of § 61–8–460, MCA; (2) failure to drive on the right side of a roadway, in violation of § 61–8–321, MCA; and (3) driving under the influence of alcohol, first offense, in violation of § 61–8–401, MCA. After the Justice Court denied Kelm's motion to suppress all evidence collected after her arrest, Kelm pleaded guilty to all three charges, but gave notice of her intention to appeal the denial of her motion to the District Court pursuant to § 46–12–204(3), MCA.
¶ 15 On October 17, 2011, Kelm filed motions requesting the District Court to order the evidence against her suppressed. Kelm asserted that the State should not be allowed to introduce evidence obtained during the HGN test Krause administered, evidence of the half-full beer bottle and plastic cup that Krause took from Kelm's car as he was trying to turn off her lights, and “all evidence gathered prior to [her] Miranda warning.”
¶ 16 The District Court held a hearing on the matter, and entered an order on March 28, 2012. The court denied Kelm's motion regarding the HGN test and concluded that the State could introduce evidence of Krause's HGN test after laying a proper foundation.1 The District Court disagreed with the State's contention that Krause's seizure of the beer bottle and plastic cup fell within the plain view doctrine because Krause was not “lawfully present” in Kelm's vehicle; consequently, the court granted Kelm's motion to suppress that evidence. The court also granted Kelm's motion to suppress at the Sheridan County Jail. The District Court agreed with Kelm's argument that, because Deputy Krause did not satisfy § 46–6–312, MCA, and did not apprise Kelm of her Miranda rights immediately after arresting her, her arrest was unlawful and all evidence subsequently obtained must be suppressed. The State appeals.
¶ 17 The State may appeal from any court order or judgment in a criminal case “the substantive effect of which results in ... suppressing evidence.” Section 46–20–103(2)(e), MCA. When reviewing a district court's ruling on a motion to suppress, we determine “whether the findings of fact are clearly erroneous and whether the court correctly interpreted the law and applied it to those facts.” State v. Nixon, 2013 MT 81, ¶ 15, 369 Mont. 359, 298 P.3d 408 (quoting State v. Haldane, 2013 MT 32, ¶ 15, 368 Mont. 396, 300 P.3d 657). A factual finding is clearly erroneous if it is “not supported by substantial evidence, if the court has misapprehended the effect of the evidence, or if this Court's review of the record leaves us with a definite or firm conviction that a mistake has been made.” Nixon, ¶ 15 (quoting State v. Morrisey, 2009 MT 201, ¶ 14, 351 Mont. 144, 214 P.3d 708).
¶ 18 Our review of constitutional questions is plenary, State v. Dugan, 2013 MT 38, ¶ 14, 369 Mont. 39, 303 P.3d 755, and we “review for correctness a district court's interpretation of constitutional law.” Nichols v. Dept. of Just., 2011 MT 33, ¶ 8, 359 Mont. 251, 248 P.3d 813. Likewise, to the extent a district court's ruling is based on interpretation of a statute, our review is de novo. State v. Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d 811.
¶ 19 1. Did the District Court incorrectly conclude that, because...
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