State v. Rushton

Decision Date22 March 1994
Docket NumberNo. 93-498,93-498
PartiesSTATE of Montana, Plaintiff and Respondent, v. Richard T. RUSHTON, Defendant and Appellant.
CourtMontana Supreme Court

Joseph P. Mazurek, Atty. Gen., Kathy Seeley, Asst. Atty. Gen., Helena, George Corn, Ravalli County Atty., Hamilton, for plaintiff and respondent.

TRIEWEILER, Justice.

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 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.

seized during an unwarranted search of his residence?

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 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.

At 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 ... you're 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 I'll ... I'll be very frank, if you don't, we'll be sitting 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 you 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. [Third 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 ... you 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, "I 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 (1985), 217 Mont. 132, 147, 705 P.2d 94, 103. Here, defendant does not disagree with the court's factual findings but...

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