                                                                                             March 4 2009


                                          DA 07-0648

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2009 MT 62



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

DANIEL LACEY,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DC 2005-259
                        Honorable G. Todd Baugh, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Robin A. Meguire, meguirelaw.com, Great Falls, Montana

                For Appellee:

                        Hon. Steve Bullock, Montana Attorney General, C. Mark Fowler,
                        Assistant Attorney General, Helena, Montana

                        Dennis Paxinos, Yellowstone County Attorney, Ann-Marie McKittrick,
                        Deputy County Attorney, Billings, Montana



                                                   Submitted on Briefs: January 7, 2009

                                                              Decided: March 3, 2009


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Daniel Gerard Lacey (Lacey) appeals the denial of his motion to suppress and

conviction on four counts of felony sexual intercourse without consent and two counts of

felony sexual assault in the Thirteenth Judicial District Court. We affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶2     In February 2005, Lacey and his then-girlfriend Carla Dozier (Dozier) moved into

a house on Rimrock Road in Billings, Montana. Dozier had three children from previous

relationships who lived with her and Lacey. Only Dozier’s name appeared on the lease

agreement for the house. Lacey owned a laptop computer which was routinely kept in a

makeshift office in the house. This office was also used to store children’s books,

movies, and various other items. The office was accessible to all members of the house.

Although the children were not allowed to use the laptop, Dozier would occasionally

access the laptop in order to send email, watch videos, and store personal photographs.

On some occasions, the laptop was located on a desk in the office. At other times, Lacey

would store the laptop in a closed case, or take the laptop with him while he was away on

business.

¶3     On March 14, 2005, the laptop was on a desk in the office, plugged in and ready

for use. Lacey was not in the house. Dozier accessed the laptop to search for evidence

that Lacey was being unfaithful to her. During an extended file search of the computer,

Dozier located sexually explicit images involving children. Among the images were

pictures showing Lacey sexually abusing her six year-old daughter. Dozier testified that

she was shocked and horrified to see these images. In reaction, she quickly deleted one


                                             2
of the images. After doing so, Dozier realized that she was deleting evidence that

something had happened to her daughter, so she called Lacey to help her retrieve the

image. Dozier did not tell Lacey what was contained in the image, telling him instead

that the deleted image depicted the two of them together. With Lacey’s verbal assistance,

she was able to retrieve the deleted image. During this phone conversation, Lacey never

instructed Dozier to stop using the laptop.

¶4     After the initial conversation, Dozier and Lacey spoke by phone again throughout

the day. During one of these conversations, Dozier told Lacey about the exact nature of

the images she found on the laptop. Sometime thereafter, Lacey came to the house, and

Dozier confronted him again about the images and physically assaulted him. Lacey left

the house in his car. After Lacey left the house, Dozier reported the evidence she

discovered to the Billings Police Department.       Officer Wanda Spaulding (Officer

Spaulding) of the Billings Police Department responded to the dispatch at approximately

5:30 p.m. When she arrived at the house, Dozier told Officer Spaulding that she had

discovered several images of Lacey sexually abusing her minor daughter. Dozier led

Officer Spaulding to the laptop computer which was still located in the office. The laptop

was sitting on the desk and was not locked or otherwise stored away.

¶5     Officer Spaulding took several photographs of the office and the laptop. Dozier

told Officer Spaulding that the laptop belonged to Lacey; she also indicated that Lacey

had never prevented or prohibited her from using it. Officer Spaulding then had Dozier

fill out a consent-to-search form, listing the laptop computer as one of the items to be

searched. After the form was completed and signed by Dozier and Officer Spaulding,


                                              3
Officer Spaulding seized the laptop. At no time prior to or after seizing the laptop did

Officer Spaulding personally view or search the images on the laptop, relying instead on

Dozier’s statements. Officer Spaulding also did not search any other areas of the house at

that time, but did seize some CDs, DVDs, and associated computer equipment which was

also in the office.

¶6      While Officer Spaulding was still at the house with Dozier, Lacey called. Officer

Spaulding spoke directly to Lacey, identifying herself and stating that he was not to

return to the house or call. Lacey appeared to understand the gravity of the situation

because he told Officer Spaulding that he knew what he did was wrong.

¶7      At the time he called, Lacey was not under arrest, nor had a warrant for his arrest

been issued. Concerned for his mental stability and knowing that Lacey was by himself

in his car, Officer Spaulding asked Lacey if he needed to talk to somebody or wished to

be taken to the emergency room at Deaconess Hospital in Billings. Lacey said that he did

not need this assistance, and told Officer Spaulding that he had spoken to his father, who

lived in California, as well as an attorney and would be talking to his father again soon.

At no time during this conversation did Officer Spaulding ask for Lacey’s consent to

search or seize the laptop, and at no time did Lacey indicate that he objected to its search

or seizure. Lacey later indicated that he believed this was a moot point at the time, since

the laptop had already been seized, and he had been instructed not to return to the house

and told that he could obtain his belongings with the assistance of the police at a later

date.    Officer Spaulding subsequently brought the laptop to the Billings Police




                                             4
Department, tagged it into evidence, and wrote a report of the incident which was turned

over to detectives for further investigation.

¶8      During March 2005, Lieutenant Mark Cady (Lieutenant Cady) was a sergeant and

supervisor of the investigations division at the Billings Police Department. Lacey was a

close personal friend of Lieutenant Cady’s adult daughter Brooke, and had been to

Lieutenant Cady’s house on numerous occasions over a five or six year period. Lacey

himself later testified that he considered Lieutenant Cady to be like a father figure to him.

On the morning of March 15, 2005, Lieutenant Cady read Officer Spaulding’s report and

recognized that Lacey was involved.        Lieutenant Cady also realized that the report

contained information which needed to be assigned to a detective for further

investigation. Lieutenant Cady spoke to his supervisor about the matter, and the case was

assigned to Detective Michael Beckers (Detective Beckers). At the time, Lieutenant

Cady told his supervisor that Lacey was a personal friend of his and that he did not want

to be involved in the investigation of the case. After the case was assigned to Detective

Beckers, Lieutenant Cady called Agent Dan Vierthaler (Agent Vierthaler) of the Federal

Bureau of Investigation (FBI), who served with a unit that specifically worked on sex

crimes involving the use of computers, videos and the Internet, in order to inform him of

the case. As it turned out, Agent Vierthaler had learned of the report about Lacey from

other members of the Billings Police Department the night before, and had already made

arrangements to interview Dozier and her minor daughter on the morning of March 15,

2005.




                                                5
¶9     Agent Vierthaler and Detective Beckers went to Dozier’s house on that morning as

part of a joint investigation, and interviewed Dozier and her daughter.          During the

interview, Dozier indicated to the officers that she, Lacey, and her children had access to

all areas of the house and that none of the areas were restricted solely to Lacey. She also

indicated that while the seized laptop belonged to Lacey, Lacey did not place restrictions

on her ability to use it. At the time of this interview, the laptop was in police custody and

had not yet been searched by any of the officers. After the interview with Dozier, Agent

Vierthaler and Detective Beckers had Dozier sign a consent-to-search form for the house.

Pursuant to this consent, the officers searched the entire house, including an attached

garage. At no point did they encounter locked doors or containers, or find any room

which appeared to be restricted solely to Lacey. By the time the officers reached the

garage, it was late in the day. Because Dozier and Lacey had recently moved into the

house, the garage contained a number of boxes, containers, and other items scattered

about. Dozier testified that all family members had access to the garage, and that none of

the boxes were private only to Lacey. In his testimony, Lacey claimed that one side of

the garage was strictly reserved for his belongings which were in boxes and containers

that he believed were privately his. At any rate, the garage was filled with a large amount

of boxes and containers, and in order to conduct a search of the material, Agent

Vierthaler and Detective Beckers called three additional detectives to assist them in the

search.

¶10    The detectives and Agent Vierthaler took numerous photographs of the materials

they uncovered during the course of their search of the house and the garage, and the


                                             6
search turned up numerous items which were seized.          These included a number of

videotapes, and computer removable media such as floppy diskettes, CDs, and USB

devices. The officers also discovered sex toys and sex devices. These latter items were

of particular interest because Dozier had reported that some of these items were depicted

in the pictures showing Lacey abusing her daughter. All of these materials were seized

and reviewed by the detectives and Agent Vierthaler at a later time.

¶11   While the officers were conducting their search, Lieutenant Cady made attempts to

locate Lacey, partly motivated by his personal relationship with Lacey, and partly

motivated by his duties as a public officer. Lieutenant Cady phoned his adult daughter,

Brooke, to speak with her about Lacey. Taking pains not to discuss any particulars about

the incidents involving Lacey, Lieutenant Cady asked Brooke in general terms to be

careful with Lacey and stated that he was going through some difficult times. Brooke

informed her father that Lacey had just been at their house looking for him and seemed

upset and stated that he wanted to talk to Lieutenant Cady and borrow some money.

Later in the day, Lieutenant Cady spoke with Brooke again and she informed him that she

had received a number of calls from Lacey which she was unable to return due to the fact

that she was at work. She told her father that Lacey seemed upset and was acting weird

on the messages he left her. Lieutenant Cady reiterated to Brooke that Lacey was going

through some tough times at the moment, and urged her to be supportive.           Again,

Lieutenant Cady did not disclose to Brooke any of the details surrounding the

investigation of Lacey.




                                            7
¶12    After this phone call with Brooke, Lieutenant Cady became concerned about

Lacey’s mental state, as Brooke had mentioned that his demeanor on the phone messages

led her to worry that he might attempt to commit suicide by driving his car off a cliff at

the “Rims” area outside Billings. While Agent Vierthaler and Detective Beckers were

still at the house, Lieutenant Cady called them to express his concerns over Lacey’s

personal safety. Lieutenant Cady then put out an attempt to locate, or ATL, for a welfare

check on Lacey. The ATL was broadcast to city, county, and highway patrol vehicles.

At that time, however, there was still no warrant issued for Lacey’s arrest.

¶13    After putting out the ATL, Lieutenant Cady himself spent several hours driving

around the rims area outside of Billings attempting to locate Lacey. Around 5:00 or

6:00 p.m., Lieutenant Cady abandoned his search, and returned to Dozier’s house, where

the detectives and Agent Vierthaler were finishing up. Lieutenant Cady expressed to the

officers that whether or not they intended to arrest Lacey, it was his intent to locate Lacey

and take him to Deaconess Hospital for his own safety. In his testimony, Lieutenant

Cady stressed that it was not his intent at that time to arrest Lacey if he located him.

¶14    Lieutenant Cady was soon able to reach Lacey by phone. Lieutenant Cady asked

Lacey if he wished to speak with him, to which Lacey responded affirmatively.

Lieutenant Cady expressed concern for his safety and asked him if his “head was screwed

on tight.” Lacey responded that it was not, and he and Lieutenant Cady had a fairly

emotional phone call. Eventually, Lieutenant Cady asked Lacey if he wished to come to

his office and talk with him and the detectives. Lacey responded that he would, telling

Lieutenant Cady that he could be there around 7:00 p.m. Lacey later testified that it was


                                              8
his understanding based on this conversation that if he did not show up at the office, then

a warrant would be put out for his arrest. Lacey testified that Lieutenant Cady told him

he had spoken to the FBI and told them Lacey was a “good guy” and that there would be

no need to put a warrant out for him if he would come down to the office that evening.

¶15   When Lacey arrived at the Billings police station, an officer escorted him to the an

interview room on the third floor where Lieutenant Cady greeted him. Lieutenant Cady

spoke with Lacey for a couple of minutes, asking him if he was okay or needed anything.

Lieutenant Cady informed Lacey about the call to the Billings Police Department

concerning Dozier’s discovery of the images on Lacey’s laptop computer. Lieutenant

Cady also informed Lacey that the laptop was in the custody of the FBI and that they

would be able to uncover its contents. Lieutenant Cady told Lacey that because they

were friends he would not be involved in the interview, and informed him that two other

officers, Agent Vierthaler and Detective Beckers, would be conducting it. Lieutenant

Cady also told Lacey that it was his “one-shot deal” to speak with the officers and that

they would be able to get him help. Lacey indicated that he understood at that time

which pictures on the laptop the FBI would be interested in discussing. Lacey later

testified that he thought the purpose of meeting Lieutenant Cady was solely to get some

form of help, possibly treatment, and claimed he did not know he would be arrested when

he went to the police station. Lacey claimed that when Lieutenant Cady told him the

interview was a “one-shot deal,” Lacey believed that he had no other choice but to meet

with the officers and tell them everything he knew.




                                            9
¶16    After Lacey’s conversation with Lieutenant Cady, Agent Vierthaler and Detective

Beckers came into the room and Lieutenant Cady left. Detective Beckers began by

informing Lacey that they wanted to offer him some help. Detective Beckers then

informed Lacey it was necessary to advise Lacey of his Miranda rights, by telling him

that in order for them to give Lacey a chance to tell them what was “going on . . . we

need to advise you of your Rights, okay?” Detective Beckers then went over a standard

Miranda warning form with Lacey. Lacey read the form, initialed it, and indicated that

he understood his rights. At this time, the following exchange occurred among Detective

Beckers (indicated by the letter “Q”), Lacey (indicated by the letter “A”), and Agent

Vierthaler (indicated by the letters “DV”):

       Q. If you’d read through those and just ah, read it through and if you would
       by each paragraph, initial it.
       A. I can exercise my Rights at any time?
       DV. You can.
       A. I talked to my parents’ attorney and he says you should have an attorney
       present. I, I’ve never been through this before in my life. I mean I’m not
       trying to do anything to stop anything.
       Q. Okay.
       DV. Dan, I, I, I’ll tell you . . .
       A. You know what I’m saying? I mean . . .
       DV. Sure.
       A. You guys have been through this more than I have that’s for damn sure!
       DV. We’ll tell you this, Dan.
       A. Yes sir.
       DV. Ah, since this was brought to our attention we’ve had the opportunity
       to talk to a lot of people. Ah, ah . . .
       A. Mark was saying [Dozier’s daughter] and . . .
       DV. That’s right. Ah, we look at this as an opportunity to hear your side,
       okay?
       A. Okay.
       DV. It’s a one-shot deal.
       A. I understand.



                                              10
      DV. Ah, you know whether or not you want to take the opportunity it, it’s
      purely up to you.
      A. Okay.
      DV. At this point we have a fair amount of information.
      A. Yes sir.
      DV. Ah, for obvious reasons we’d like to talk to you.
      A. I understand!
      DV. Usually, usually there’s a reason why things happen and it’s nice
      when we can get the full story.
      A. Okay.
      DV. Ah, so it’s your opportunity but ah, you know you can certainly
      exercise those Rights and you can do that at any time, you know?
      A. Okay.
      DV. We can talk and if at some point you want to stop . . .
      A. Well I’ll, I’ll sign. I will sign and I will talk.
      DV. And read that over before you . . .
      A. Well it says “I give up my Rights, I understand my Rights and I am
      willing to make this statement and answer questions. I do not want a
      lawyer at this time. I understand what I am doing. No promises or threats
      have been made to me to proceed (SIGH) against me.” But I . . .
      DV. Okay. That’s saying that a Public Defender will be appointed for you
      if you don’t have the money to do that. You talked about your, your
      parents and an attorney but that, that’s just something (INAUDIBLE/
      TALKING AT THE SAME TIME).
      A. Well . . . this is, I’m, yeah. Okay.
      DV. You understand all that?
      A. Yes sir.

¶17   During the course of the interview, Lacey admitting to performing sexual acts on

Dozier’s minor daughter and taking pictures of them. He also admitted to possessing

other child pornography which he had downloaded from the Internet. Lacey also gave

the officers permission to search and seize a digital camera which was in his car. At the

conclusion of the interview, Lacey was arrested and taken to the Yellowstone County

Detention Facility.

¶18   On March 17, 2005, a federal magistrate granted Agent Vierthaler a federal search

warrant to search the seized laptop, which at that time was in the custody of the FBI. In


                                           11
support of the search warrant, Agent Vierthaler provided a narrative account of his

interviews with Dozier, Lacey, and Dozier’s minor daughter, and the results of the search

of Dozier’s house. Based on this information, Agent Vierthaler stated there was probable

cause to believe that Lacey had committed felonies under federal law by receiving,

possessing, or manufacturing child pornography.

¶19   On March 18, 2005, the State filed an information against Lacey charging him

with one count of felony sexual intercourse without consent and two counts of felony

sexual assault. Based on additional investigation, the charges against Lacey were later

amended to add three counts of felony sexual intercourse without consent, and three

counts of felony sexual assault. Lacey subsequently filed motions to suppress all the

evidence discovered in the course of the investigation, including the statements he made

to Agent Vierthaler and Detective Beckers during his interview. Lacey advanced several

theories in support of his motions. First, he maintained that the laptop was illegally

seized and searched in violation of his right to privacy under state and federal law,

because Dozier did not own the computer and thus did not have the actual authority to

consent to its search and seizure. Second, Lacey argued that the search of the garage was

also illegal because his consent to search his belongings was never given.         Lacey

maintained that he had a right to privacy in his belongings and that his consent was

required to search them in the absence of an exception to the warrant requirement. Third,

Lacey argued that the statements he gave to Agent Vierthaler and Detective Beckers

should be suppressed because he invoked his right to counsel at the outset of the

interview. Additionally, Lacey maintained that his statements were not voluntary and


                                           12
had been in fact coerced because Lieutenant Cady had used his personal relationship with

Lacey to entice him to the Billings police station in order to extract his confession, and

had also misrepresented the nature of the interview. Lastly, Lacey argued that all the

evidence obtained from the searches and seizures, as well as statements produced against

him, flowed from the initial illegal search and seizure of the laptop, and thus should be

suppressed as the “fruit of the poisonous tree.”

¶20    After the motions were fully briefed by Lacey and the State, the District Court

held a suppression hearing on April 4 and 5, 2006. During the hearing, the District Court,

Hon. G. Todd Baugh presiding, heard from Dozier, Officer Spaulding, Detective

Beckers, Lieutenant Cady, Agent Vierthaler, and Lacey. After the hearing, the District

Court received proposed findings of fact and conclusions of law from both Lacey and the

State. On July 7, 2006, the District Court adopted the State’s proposed findings of fact

and conclusions of law in their entirety by oral pronouncement from the bench. The

District Court did not enter a separately written order. In adopting these findings of fact

and conclusions of law, the District Court concluded that Dozier did have authority to

consent to the search and seizure of the laptop and the items discovered in the garage,

because she had joint access to and control over these items with Lacey. Additionally,

the District Court concluded that Lacey’s statements were admissible because he was not

subject to custodial interrogation by Agent Vierthaler and Detective Beckers. Moreover,

the District Court concluded that Lacey had made a knowing, voluntary and intelligent

waiver of his rights, that his statements were voluntarily made, and that he did not invoke

his right to an attorney at any time during the interview. The District Court also rejected


                                            13
Lacey’s request to suppress the evidence as “fruit of the poisonous tree,” concluding that

all the searches and seizures in this case were lawful.

¶21    After the denial of his motion, Lacey entered into a plea agreement with the State

which retained his right to appeal the denial of his motion to suppress. In exchange for

pleading guilty to four counts of felony sexual intercourse without consent and two

counts of felony sexual assault, the State agreed to dismiss the remaining counts of felony

sexual assault. Lacey received a life sentence for one of the felony sexual intercourse

without consent charges, and 130 years on the remaining felony counts.

¶22    Lacey now appeals from the District Court’s denial of his motion to suppress.

Lacey claims that the District Court erred in denying his motion to suppress the physical

evidence (i.e., the laptop and other evidence from the garage search), as well as the

testimonial evidence (i.e., statements he made during his interview) against him. Lacey

also maintains that Judge Baugh’s conduct during the suppression hearing and his

verbatim adoption of the State’s proposed findings of fact and conclusions of law

constituted judicial bias which undermined his right to a fair trial and due process.

¶23    We state the issues presented by Lacey on appeal as follows:

¶24    Issue One: Did the District Court err in denying Lacey’s motion to suppress the

physical evidence against him?

¶25    Issue Two: Did the District Court err in denying Lacey’s motion to suppress the

testimonial evidence against him?

¶26    Issue Three: Was there judicial bias in this case and did it deprive Lacey of his

right to due process and a fair and impartial trial?


                                             14
                              STANDARD OF REVIEW

¶27   We review a district court’s denial of a motion to suppress in order to determine

whether its findings of fact are clearly erroneous and whether its interpretation and

application of the law is correct. State v. Bieber, 2007 MT 262, ¶ 20, 339 Mont. 309, 170

P.3d 444. To determine whether a finding of fact is clearly erroneous, we consider

whether that finding is supported by substantial evidence, whether the district court

misapprehended the effect of the evidence, or whether our review of the record leaves us

with a definite and firm conviction that a mistake has been made. Bieber, ¶ 20.

                                     DISCUSSION

¶28   Issue One: Did the District Court err in denying Lacey’s motion to suppress the
      physical evidence against him?

¶29   Lacey argues that the District Court erred when it failed to suppress the physical

evidence seized by the officers in this case. With respect to the laptop, Lacey maintains

that Dozier did not possess the requisite joint access, control, common authority, or

possessory interest in the laptop in order to consent to its search and subsequent seizure.

Lacey argues that under State v. McLees, 2000 MT 6, 298 Mont. 15, 994 P.2d 683,

Dozier is required to have actual, not apparent, authority over the laptop in order to

consent to its search and seizure.    Lacey claims that Dozier occasionally used and

accessed the laptop, but only with his permission.

¶30   Furthermore, Lacey argues that he had an actual and reasonable expectation of

privacy in his computer files where the child pornography was found because he had

placed them in a hidden file.     Lacey argues that computers are entitled to greater



                                            15
protection under the law of search and seizure, and points to a number of cases from

various state and federal courts to support his argument. Lacey also maintains that

neither Officer Spaulding nor any of the other officers ever sought his consent to search

or seize the laptop. Moreover, Lacey claims that Officer Spaulding told him not to come

to Dozier’s house, thus precluding him from objecting to the search or seizure.

¶31    With respect to the search and seizure of his items from the garage (see ¶¶ 9-10),

Lacey maintains that he had an expectation of privacy in his boxes and containers which

were in the garage, and that Dozier did not have the required actual authority to consent

to their search. He argues that his boxes were stored in a particular location in the garage

and thus readily distinguishable from the other boxes, giving rise to an actual and

reasonable expectation of privacy in them.

¶32    Finally, Lacey argues that the “fruit of the poisonous tree” doctrine applies in the

instant case to bar the admission of the physical evidence against him. The “fruit of the

poisonous tree” doctrine forbids the use of evidence which is discovered as a result of the

exploitation of an initial illegal act by the police. State v. Dasen, 2007 MT 87, ¶ 19, 337

Mont. 74, 155 P.3d 1282 (citing State v. Therriault, 2000 MT 286, ¶ 57, 302 Mont. 189,

14 P.3d 444). On appeal, Lacey reiterates the argument presented in the District Court

that the search of the garage, founded as it was on the illegal search and seizure of the

laptop, was fruit of the poisonous tree which must be suppressed.

¶33    The State urges us to affirm. The State argues that Dozier had a possessory

interest sufficient to consent to the search of the laptop, because she regularly accessed it

with or without Lacey’s presence and was not required to gain his permission to do so.


                                             16
Further, the State points out that the laptop was not password-protected, and Dozier

regularly used the laptop for personal e-mails, letters, and for storing personal videos and

photos. The State argues that Dozier fits the characteristics of a co-user of the laptop

with the ability to give consent to its search. The State further maintains that the District

Court found Dozier’s testimony regarding her use and access of the computer to be

credible, and discounted Lacey’s testimony that her authority to use it was limited to

“casual use” and was thus insufficient to permit her to search through its files.

¶34       Additionally, the State disputes Lacey’s claims that his privacy interest in the

laptop is to be afforded any greater constitutional protection. The State maintains that it

is necessary to assess the relative weight of those who share common authority over

property based on the mutual use of such property by persons having joint control or

access.      While the State concedes that computers do have some unique privacy

considerations, it discounts the notion that those considerations are operative in this case

given Dozier’s use of the laptop, the fact that neither the laptop, nor the specific files

themselves were password-protected, and because the laptop itself was not locked or

otherwise prohibited to Dozier. In this connection, the State notes that Lacey willingly

helped Dozier retrieve a deleted file during their initial phone conversation. The State

further argues that Lacey was not precluded from objecting to the search and seizure of

the laptop, noting the lack of evidence that the officers actually prohibited Lacey from at

least voicing an objection to the search and seizure of the laptop.

¶35       With regards to the garage search, the State argues that Lacey failed to evince the

requisite actual expectation of privacy in his items because he allowed Dozier and the


                                              17
friends who helped them move to haphazardly pack the items from their former residence

and place them in the garage.        The items in the garage were disorganized and

intermingled; none of Lacey’s containers or boxes were tied, taped shut, locked or

labeled, and many of them were simply open. In this regard, the State argues that

Lacey’s assertions that his boxes were identifiable and distinguishable as belonging to

him are based solely on his own testimony which the District Court did not find credible

in light of the testimony of Dozier and the officers involved in the search. The State

argues that this Court should not disturb these credibility findings on appeal since Lacey

has not asserted that any of the District Court’s findings of fact were clearly erroneous.

Based on these facts, the State claims that Dozier did have common authority to consent

to the search of the garage.

¶36    Finally, the State argues that the fruit of the poisonous tree doctrine is inapposite

in the instant case. Citing to State v. New, 276 Mont. 529, 917 P.2d 919 (1996), the State

notes that “fruit” or derivative evidence is admissible if it is either attenuated from the

constitutional violation so as to remove its primary taint, obtained from an independent

source, or if it would have been inevitably discovered apart from the constitutional

violation.   In this case, the State notes that Dozier saw evidence of a crime while

accessing the laptop separate and apart from any police involvement; thus, her discovery

was a wholly private action which cannot trigger the exclusionary rule.

A. Search of the Garage




                                            18
¶37   The Fourth Amendment to the United States Constitution and Article II, Section

11 of the Montana Constitution protect the citizens of this state from unreasonable

searches and seizures.   “Warrantless searches conducted inside a home are per se

unreasonable, subject only to a few specifically established and well-delineated

exceptions.” McLees, ¶ 10 (alteration and quotations omitted). One such exception is

when consent to search is “freely and voluntarily given.”       McLees, ¶ 10 (quotation

omitted).   When the State seeks to justify a warrantless search based on voluntary

consent, it has the burden of proof and may either show that consent was given by the

defendant herself, or “ ‘that permission to search was obtained from a third party who

possessed common authority over or other sufficient relationship to the premises or

effects sought to be inspected.’ ” McLees, ¶ 10 (quoting State v. Sorenson, 180 Mont.

269, 275, 590 P.2d 136, 140 (1979)). As we further stated in McLees,

      “[c]ommon authority is, of course, not to be implied from the mere property
      interest a third party has in the property. The authority which justifies the
      third-party consent does not rest upon the law of property, with its attendant
      historical and legal refinements, . . . but rests rather on mutual use of the
      property by persons generally having joint access or control for most
      purposes, so that it is reasonable to recognize that any of the co-inhabitants
      has the right to permit the inspection in his own right and that the others
      have assumed the risk that one of their number might permit the common
      area to be searched.”


McLees, ¶ 13 (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993

(1974)).

¶38   In McLees, we explicitly held that a third party can only consent to the search of

another’s property if she has actual authority to do so. McLees, ¶ 32. In that case, the


                                           19
Madison County Sheriff’s office received reports of two burglaries and thefts and

commenced an investigation. The investigation led them to suspect that Travis McLees

(Travis) was involved in the incidents. Travis lived with his father in Three Forks,

Montana, in an apartment which was owned by his grandfather Earl McLees (Earl), who

lived next to the apartment. An officer went to Travis’s residence and spoke to Earl, and

asked Earl if he could enter the apartment. Earl gave him permission to do so. When the

officer and Earl attempted to enter the front door of the apartment, they found it locked.

Because Earl did not have a key to the front door, they were forced to enter through an

unlocked door which led from an adjoining building to the apartment. McLees, ¶ 5.

¶39    Inside, the officer discovered drug paraphernalia and items which he believed

were stolen.    After Earl signed a consent-to-search form for the whole apartment,

additional officers were called to the scene to assist. McLees, ¶¶ 6-7. As a result of the

investigation, Travis was charged with several crimes and convicted.            Prior to his

conviction, Travis moved to suppress the evidence seized from his apartment. The

motion was denied by the district court.

¶40    On appeal, we reversed the denial of Travis’ motion to suppress, concluding that

Earl did not have actual authority to consent to the search of Travis’s apartment. In

holding that Earl possessed authority to consent to the search, the district court had relied

on the fact that Travis did not pay rent or utilities, had no rental agreement with Earl, did

not furnish the apartment, and kept his belongings in duffel bags while his father, who

lived in the apartment with him, kept his items in dresser drawers. McLees, ¶ 16. We

rejected these factors as indicating actual authority, and instead found that no “mutual use


                                             20
of the property” or “joint access and control for most purposes” was presented which

would create common authority on Earl’s behalf to consent to a search. McLees, ¶ 17.

We noted that Earl did not enter the apartment if Travis or his father were not there, did

not have free access to the apartment, and would have to knock before entering. Thus,

Earl was clearly not a cohabitant of the apartment, did not share in its use, and thus could

not consent to a search. McLees, ¶ 17. Furthermore, we rejected the argument that Earl’s

ownership of the apartment and his limited access in order to visit Travis’s father gave

rise to common authority, noting that such access was limited to those particular activities

and did not expand further. McLees, ¶ 18.

¶41    Lacey argues that Dozier lacked the authority to consent to the search of his

belongings which were located in the garage under the authority of McLees.               We

disagree. As the State points out, Lacey has not alleged that any of the District Court’s

findings of fact were clearly erroneous. Those findings, based on the testimony of Dozier

and the officers involved in the search, indicated that none of Lacey’s possessions were

specifically marked, labeled, locked, or set in a separately identifiable part of the garage.

Moreover, Dozier testified that all the family members’ items were mixed in the garage,

and that she and her children had full access to the garage and its contents. The facts of

the present case are clearly distinguishable from McLees and Dozier had sufficient

common authority to consent to their search. By allowing his items to remain co-

mingled, unmarked, and unlocked in a common area in a house he shared with Dozier

which was rented in her name alone, Lacey assumed the risk that Dozier could in fact

assert control over those items at any time.


                                               21
¶42    For these reasons, therefore, we affirm the District Court’s denial of Lacey’s

motion to suppress the evidence seized during the search of the garage.

B. Search and Seizure of the Laptop

¶43    As an initial matter, it is critical to note that the laptop was not searched based on

Dozier’s consent. Dozier gave consent to Officer Spaulding to seize the laptop, but the

laptop was searched pursuant to a federal search warrant later obtained by Agent

Vierthaler, and not upon Dozier’s consent. This search warrant was granted two days

after the laptop itself had been seized and was already in FBI custody.

¶44    In the application for the search warrant, Agent Vierthaler cited information

gleaned during his interviews with Dozier and her minor daughter, the interview he and

Detective Beckers conducted with Lacey, as well as evidence discovered in the search of

the garage. As the State notes, the validity of this search warrant has not been challenged

on appeal. A review of the application for the federal search warrant demonstrates that

the interviews with Dozier, her minor daughter, and Lacey himself (wherein he admitted

that he stored images of child pornography and images of himself committing sexual acts

upon Dozier’s minor daughter on the laptop), as well as evidence discovered in the

garage search, provided the necessary probable cause for the search warrant with respect

to the laptop.1 Therefore, the pertinent inquiry with respect to the laptop is whether

Dozier had sufficient authority to consent to its seizure by Officer Spaulding.



1
   Later in this Opinion, we conclude that Lacey’s statements were voluntary, and that he
knowingly, intelligently, and voluntarily waived his right to counsel in making those statements
to Detective Beckers and Agent Vierthaler.

                                              22
¶45    Both Article II, Section 11 of the Montana Constitution and the Fourth

Amendment to the United States Constitution protect against unreasonable searches and

seizures. There is a distinction between search and seizure as noted by the Illinois Court

of Appeals in People v. Blair, 748 N.E.2d 318 (Ill. App. 3 Dist. 2001), a case relied upon

by Lacey. In that case, police officers had arrested defendant Blair for disorderly conduct

while he was videotaping children at a zoo in Rock Island County, Illinois. After Blair’s

arrest, officers went to his residence and were greeted by Blair’s father, Howard Blair

(Howard). Officers were allowed inside by Howard, and then asked if they could search

some of Blair’s belongings. Howard led the officers to the basement where Blair stored

some of his belongings. In the basement officers came upon a computer owned by Blair.

At the time, Howard stated that he had no ownership interest whatsoever in the computer.

Nevertheless, the officers turned it on and began searching it. The officers later stated

that they believed they had Howard’s permission to turn on the computer.

¶46    In the course of their search, the officers discovered internet bookmarks with

references to teenagers which they believed indicated the computer contained child

pornography. They seized the computer. The officers later testified that Howard gave

them permission to seize it, but Howard’s recall of the events was not clear. Evidence

later discovered on the computer led to Blair being charged with 16 counts of possessing

child pornography. Prior to trial, Blair moved to suppress the evidence discovered on the

computer. His motion was denied and he was later convicted in a bench trial, preserving

his right to appeal the denial of his motion to suppress.




                                             23
¶47    The Illinois Court of Appeals reversed the denial of Blair’s motion to suppress.

First, citing to Arizona v. Hicks, 480 U.S. 321, 107 S. Ct. 1149 (1987), the court noted

that police officers must have probable cause to effect a seizure in the absence of either

consent or a warrant. The court found probable cause was lacking because Blair’s arrest

for disorderly conduct and the internet bookmarks with references to teenagers were

considered too ambiguous to give rise to probable cause. Blair, 748 N.E.2d at 323.

¶48    Additionally, the court rejected the argument that Howard could have given

consent to the seizure of the computer. Because the court’s treatment of this subject is

instructive in the instant case, we quote it at some length:

              A third party may consent to a search if he has common authority
       over, or other sufficient relationship to, the premises or effects to be
       searched. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242. In the
       case at bar, however, we must decide, not whether a third party’s common
       authority gives him the power to consent to a search, but whether that
       authority may permit government seizure of the property. This issue has
       received scant judicial attention. See United States v. Woodrum, 202 F.3d 1
       (1st Cir. 2000) (third-party consent has been invoked only to validate
       warrantless searches of property, not seizures). Perhaps this is so because
       third-party consent is often superfluous where the incriminating character
       of an item is apparent, allowing it to be seized pursuant to the plain view
       doctrine without consent or a warrant. See, e.g., United States v. Smith, 27
       F.Supp.2d 1111 (C.D.Ill. 1998) (police could seize computer pursuant to
       plain view doctrine where police discovered child pornography while
       conducting search authorized by third party); see also State v. Ready, 148
       Or.App. 149, 939 P.2d 117 (1997) (police could seize videotapes labeled
       “kid porn” pursuant to plain view doctrine during valid third-party consent
       search). As noted previously, however, the police in the instant case lacked
       probable cause to believe that defendant’s computer contained contraband
       or was otherwise connected with a crime. Accordingly, the question of
       third-party consent to seize is foursquarely before this court.


                                              .   .   .



                                             24
             Measuring a third party’s authority to consent by a suspect’s
      expectation of privacy is consistent with the idea that the Fourth
      Amendment’s guarantee of freedom from unreasonable searches protects
      against unreasonable government intrusions upon privacy (Katz. v. United
      States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Nevertheless,
      it should be remembered that the Fourth Amendment not only guarantees
      freedom from unreasonable searches, but freedom from unreasonable
      seizures. United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80
      L.Ed.2d 85 (1984). This latter guarantee protects against unreasonable
      government interference, not with privacy alone, but with possessory
      interests in property. Soldal v. Cook County, 506 U.S. 56, 113 S.Ct. 538,
      121 L.Ed.2d 450 (1992). Moreover, the right to retain possession of
      property against unreasonable deprivation is not inferior to the right to
      maintain privacy. Soldal, 506 U.S. 56, 113 S.Ct. 538, 121 L.Ed.2d 450.
             The rationale for third-party consent searches resting, as it does,
      upon the diminished expectation of privacy attending a third party’s
      common authority over the premises or effects to be searched, does not
      provide a sufficient basis for a third party’s consent to the seizure of
      another’s personal effects. While one who permits a third party access or
      control over his property has a diminished expectation of privacy, the third
      party’s a c c e s s o r c o n t r o l d o e s not similarly diminish the owner’s
      expectation that he will retain possession of his property.
             A third party having common authority over premises or effects may
      permit a search of the premises or effects in his own right. Matlock, 415
      U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242. In such a case, the third party is
      permitting others to do no more than the third party may do on his own, i.e.,
      inspect the premises or effects. However, a third party may not in his own
      right consent to depriving the owner of possession of his property. The
      third party could not in his own right lawfully exclude the owner from
      possession of the property. Accordingly, the third party cannot permit
      others to do what he himself has no right to do.


Blair, 748 N.E.2d at 324-25.

¶49   Based upon the foregoing authorities and analysis, we conclude that Dozier did

not have the right or authority to consent to the seizure of Lacey’s computer. Thus, we

turn to the question of whether, absent the owner’s consent, the officer had probable

cause to seize the laptop. Arizona, 480 U.S. at 326-27, 107 S. Ct. at 1153.


                                            25
¶50      Officer Spaulding did not herself see any pornographic images on Lacey’s laptop.

If Dozier had left one of the pornographic images on the computer screen when Officer

Spaulding entered the room, then the plain view doctrine would arguably apply,

supplying probable cause for the seizure. However, Officer Spaulding had only Dozier’s

statements that such contraband was on the computer, and did not personally see it

herself. Thus, the question remains as to whether Dozier’s statements, by themselves,

were sufficient to establish the probable cause necessary to seize the laptop in the first

place.

¶51      “Probable cause to seize property exists when the facts and circumstances within

an officer’s knowledge are sufficient to warrant a reasonable person to believe that

another person has committed an offense.” State v. Branam, 2006 MT 300, ¶ 22, 334

Mont. 457, 148 P.3d 635. In this case, the District Court did not make any findings as to

whether Officer Spaulding had probable cause to seize the laptop. Instead, the District

Court, in its verbatim adoption of the State’s proposed findings of fact and conclusions of

law, focused solely on whether Dozier had authority to consent to a search of the laptop.

However, because officers did not search the laptop based upon Dozier’s consent, but

rather based upon the federal search warrant obtained by Agent Vierthaler, this analysis is

misplaced. The question of whether Dozier could consent to a search of the laptop is

immaterial to whether she could consent to its seizure.

¶52      Arguably, Dozier’s statement to Officer Spaulding that she had observed images

on the laptop showing Lacey sexually abusing her minor daughter was sufficient, by



                                            26
itself, to demonstrate probable cause to seize the laptop. However, even if Officer

Spaulding lacked probable cause to seize the laptop, it is clear under the circumstances

presented here that the evidence later discovered on the laptop pursuant to the federal

search warrant is admissible under the “inevitable discovery” exception to the fruit of the

poisonous tree doctrine. Thus, the District Court did not err in denying Lacey’s motion

to suppress this evidence.

¶53    As noted above, the fruit of the poisonous tree doctrine forbids the use of evidence

which is discovered as a result of the exploitation of an initial illegal act by the police.

Dasen, ¶ 19.    Montana follows federal law in recognizing three exceptions to this

doctrine, providing that evidence is admissible if it is:        (1) attenuated from the

constitutional violation so as to remove its primary taint; (2) obtained from an

independent source; or (3) determined to be evidence which would have been inevitably

discovered apart from the constitutional violation.      Dasen, ¶ 19.     We examine the

exceptions in turn.

¶54    Exception one would be clearly inapplicable under the present circumstances due

to the proximity of the laptop seizure and the search of the house and interviews of

Dozier, her minor daughter, and Lacey the next day. See Therriault, ¶ 60. Exception

two, the “independent source,” applies in those circumstances where law enforcement

possessed an independent source of information which would have led to the evidence, or

were engaged in an investigation which would have led to the evidence. Therriault, ¶ 60

(citing New, 276 Mont. at 537, 917 P.2d at 924). While “independent source” could

feasibly apply, we noted in Dasen that “genuine independence ‘may well be difficult to

                                            27
establish where the seized goods are kept in the police’s possession.’ ” Dasen, ¶ 20

(quoting Murray v. United States, 487 U.S. 533, 542, 108 S. Ct. 2529, 2535 (1988)).

¶55   This leaves the third exception to the fruit of the poisonous tree doctrine known as

“inevitable discovery.” Under this exception “evidence initially obtained illegally by the

State may nevertheless be used against a defendant in a criminal proceeding where it can

be shown that the evidence would have been inevitably discovered despite a

constitutional violation.” State v. Notti, 2003 MT 170, ¶ 20, 316 Mont. 345, 71 P.3d

1232 (citing State v. Pearson, 217 Mont. 363, 704 P.2d 1056 (1985)). We apply the

inevitable discovery exception sua sponte, provided there is a sufficient record before us

to conclude that the evidence would have been inevitably discovered pursuant to the

execution of a valid search warrant. State v. Dickinson, 2008 MT 159, ¶ 24, 343 Mont.

301, 184 P.3d 305.

¶56   Here, the record before us leaves no doubt that the evidence on the laptop would

have been inevitably discovered even if Officer Spaulding had not initially seized the

laptop after speaking with Dozier. If Officer Spaulding had left the laptop at Dozier’s

house, then the evidence discovered during the search of the garage the next day, as well

as the statements made by Dozier, her minor daughter, and Lacey during their interviews

with law enforcement, would have provided probable cause to seize the laptop. Even

putting aside for the moment Lacey’s admissions, Dozier identified some of the sex toys

and sex devices found in the garage as those she had seen in the computer images of

Lacey committing sexual acts on her minor daughter.         Thus, we conclude that the

evidence would have been lawfully discovered in any event; therefore, the District Court

                                           28
did not err in denying Lacey’s motion to suppress the evidence obtained from the seizure

and search of the laptop.

¶57    Issue Two: Did the District Court err in denying Lacey’s motion to suppress the
       testimonial evidence against him?

¶58    Lacey argues that the District Court erred in denying his motion to suppress the

testimonial evidence against him because: (1) he was subject to custodial interrogation

by Agent Vierthaler and Detective Beckers; (2) he invoked his right to counsel during the

interrogation, and did not voluntarily, intelligently, and knowingly waive that right; and

(3) his confession was coerced and not voluntarily given. Accordingly, Lacey argues that

all the testimonial evidence taken from his custodial interrogation should be suppressed

pursuant to his constitutional rights against self-incrimination under Article II, Section 25

of the Montana Constitution and the Fifth Amendment to the United States Constitution.

We disagree and affirm the District Court’s denial of Lacey’s motion to suppress.

¶59    The right against self-incrimination applies to bar the use of statements obtained

from a custodial interrogation “unless the defendant is warned, prior to questioning, that

he has a right to remain silent, that any statement he does make may be used as evidence

against him, and that he has a right to the presence of an attorney.” State v. Olson, 2003

MT 61, ¶ 13, 314 Mont. 402, 66 P.3d 297 (citing Miranda v. Arizona, 384 U.S. 436, 444,

86 S. Ct. 1602, 1612 (1966)). Persons are considered to be “in custody” and entitled to

Miranda warnings “if they have been deprived of their freedom of action in any

significant way or their freedom of action has been curtailed to a degree associated with a

formal arrest.” State v. Munson, 2007 MT 222, ¶ 21, 339 Mont. 68, 169 P.3d 364


                                             29
(quotation omitted). Whether a custodial interrogation has occurred is determined on a

“case-by-case basis” and focuses on whether, under the circumstances, a reasonable

person would feel free to leave. State v. Reavley, 2003 MT 298, ¶ 19, 318 Mont. 150, 79

P.3d 270.     We examine the following factors to determine whether a custodial

interrogation has occurred:

       “(1) place of the interrogation; (2) time of the interrogation; (3) persons
       present during the interrogation; (4) whether Miranda warnings were
       gratuitously given; (5) the length and mood of the interrogation; and (6)
       whether or not the suspect was arrested following the interrogation.”


Reavely¸ ¶ 19 (quoting Olson, ¶ 15).

¶60    If a custodial interrogation has taken place and a subject has been properly

informed of his Miranda rights, an individual may waive those rights by a waiver which

is made voluntarily, knowingly, and intelligently. State v. Gittens, 2008 MT 55, ¶ 14,

341 Mont. 450, 178 P.3d 91. The State has the burden of proving that the waiver of the

right against self-incrimination has met this standard. Gittens, ¶ 14.

¶61    Finally, a defendant may move to suppress an admission or confession on the

grounds that it was involuntary. Section 46-13-301, MCA; State v. Maestas, 2006 MT

101, ¶ 17, 332 Mont. 140, 136 P.3d 514. The determination of whether a confession is

voluntary is a factual inquiry which takes into account the totality of the circumstances,

focusing on whether the suspect’s confession was the product of free choice or

compulsion. State v. Scarborough, 2000 MT 301, ¶ 31, 302 Mont. 350, 14 P.3d 1202.

When considering the totality circumstances, courts consider a number of factors



                                             30
including “the defendant’s age and level of education; the length and method of the

interrogation; whether the defendant was advised of his or her Miranda rights; the

defendant’s prior experience with the criminal justice system and police interrogation; the

defendant’s background and experience; and the defendant’s demeanor, coherence,

articulateness, and capacity to make full use of his or her faculties.” Scarborough, ¶ 32.

¶62    In the State’s proposed findings of fact and conclusions of law, it asserted that

Lacey was not subject to custodial interrogation under the six Reavley factors. The State

asserted that factor one weighed in its favor because while the questioning did occur at

the Billings police station, Lacey voluntarily drove himself there and was not

accompanied by an officer, or forced to go there in any way. The State argued that factor

two also weighed in its favor because the questioning took place at 7:20 p.m., at a time

when Lacey was lucid and articulate. Under factor three, the State argued that there were

only two plain clothes officers present during the interrogation, they were polite and

cordial during the questioning, and did not resort to a “good cop/bad cop” routine. Under

factor four, the State asserted that because Lacey was given his Miranda rights, this

factor weighed in its favor as well. Turning to factor five, the State noted that the

interrogation lasted only 65 minutes and that the atmosphere was not coercive or

threatening, given that the officers took steps to make sure Lacey was comfortable, did

not handcuff or restrain him, and made him aware that he could exercise his Miranda

rights and stop the interview at any time. Finally, while the State acknowledged under

factor six that Lacey had been arrested, it suggested this factor should be accorded little




                                            31
weight because Lacey’s arrest only occurred after he made incriminating statements and

admitted molesting Dozier’s minor daughter.

¶63    As noted above, the District Court adopted these proposed findings of fact and

conclusions of law verbatim from the bench without entering a separate written order. As

we have previously stated, we “disapprove, heartily and stoutly” of this practice. Sawyer-

Adecor Intl., Inc. v. Anglin, 198 Mont. 440, 447, 646 P.2d 1194, 1198 (1982). More to

the point, we conclude that the State’s proposed conclusions of law on the issue of

whether a custodial interrogation occurred here are incorrect. First, factor one focuses on

the “place of interrogation,” not how the suspect got there. In this case, it took place at

the Billings police station, and undoubtedly weighs in favor of a custodial interrogation.

Under factor two, we agree with the State that the time of the interrogation, around 7

p.m., weighs against finding a custodial interrogation as it is a reasonable hour. Under

factor three, the “persons present” in this case were two plain clothes police officers.

Lacey was surprised by their presence, and commented that they seemed “big.” This

factor, however, does not definitely weigh either for or against a finding of custodial

interrogation. Factor four, however, clearly does weigh in favor of finding a custodial

interrogation. Based on the transcript, it is patent that Detective Beckers did not give the

Miranda warnings gratuitously, but out of necessity.       As reflected in the transcript,

Detective Beckers told Lacey that in order to give him a chance to tell them what was

“going on . . . we need to advise you of your Rights, okay?” Under factor five, however,

we do agree with the State that the interrogation was not excessively long and that, based

on the transcripts, it does not appear to have been confrontational or coercive in nature.

                                            32
Thus, this factor would weigh against finding a custodial interrogation. Factor six, on the

other hand, weighs in favor of finding a custodial interrogation. This factor does not

focus on whether there was justification for the arrest, but simply considers whether the

suspect was in fact arrested after the interrogation. The fact of an arrest after questioning

makes it likely that the questioning was custodial in nature to begin with.

¶64    In determining whether a custodial interrogation has occurred, the inquiry is

ultimately an objective one to determine “ ‘whether there was a formal arrest or restraint

on freedom of movement of the degree associated with a formal arrest.’ ” Munson, ¶ 24

(quoting Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 465 (1995)). Here,

there is little doubt that a reasonable person in Lacey’s shoes would not have felt free to

get up, terminate the encounter, and leave the Billings police station. Thus, the District

Court erred in adopting the State’s position that Lacey was not subject to custodial

interrogation.

¶65    Because Lacey was subject to custodial interrogation, he must have been advised

of his Miranda rights and knowingly, voluntarily, and intelligently waived those rights

for the State to use his statements against him. Here, we find that both conditions have

been satisfied. As the waiver of rights form and transcript cited above make clear (see

¶ 16), Lacey was advised of his rights, including his right to stop the questioning at any

time and have an attorney present during his questioning. Nevertheless, he agreed to sign

the waiver of rights form giving up those rights, and specifically stated that he would sign

the form, that he would talk, and that he did not want “to do anything to stop anything.”



                                             33
These statements indicate that he understood those rights, knowingly and intelligently

waived them, and agreed to make statements to the officers.

¶66    Lacey also argues that his waiver and subsequent confession were not voluntary

and were in fact coerced.      He maintains that Lieutenant Cady used his personal

relationship to entice Lacey to come into the police department and then turned him over

to Detective Beckers and Agent Veirthaler for questioning.         He claims that both

Lieutenant Cady and Agent Vierthaler made a false promise to Lacey, telling him that his

opportunity to confess was a “one-shot deal” and that if he did not confess he would lose

his opportunity to talk with the officers. He also claims that he was under substantial

emotional distress at the time, and that Lieutenant Cady exploited his personal

relationship with him to gain his confession.

¶67    The question of voluntariness depends on the totality of the circumstances,

considering the characteristics of the defendant and what transpired during the interview.

State v. Hill, 2000 MT 308, ¶ 39, 302 Mont. 415, 14 P.3d 1237. Here, we agree with the

State that the totality of the circumstances show that the waiver and subsequent

confession were a product of Lacey’s own free will, and not the product of coercion.

First, although Lieutenant Cady did use his personal relationship to bring Lacey to the

police station, he never threatened or intimidated him into doing so. Lacey voluntarily

drove himself to the Billings police station with full knowledge that officers were

investigating the allegations that he sexually abused Dozier’s minor daughter. Once

there, he was informed that he had a “one-shot deal” to speak directly with the officers



                                            34
and tell his side of the story. Regardless of whether or not this would ultimately turn out

to be the case, this type of statement, under these circumstances, does not constitute a

threat, deception, or an attempt to overpower Lacey’s will in an effort to get him to

confess. Moreover, as noted above, the mood of the interrogation as reflected in the

transcript was not overbearing or misleading; the officers were polite with Lacey and did

not threaten him at any time. Finally, it is clear that Lacey is an intelligent individual,

that he was not suffering from any mental impairments or mental health issues, and that

he was not intoxicated at the time of the interrogation. While Lacey was likely in an

intense emotional state at the time, there is no indication that officers took advantage of

this state in order to manipulate him and coerce his confession. Thus, we conclude the

waiver of rights and confession were voluntary.

¶68    While Lacey also argues that he made a clear request for counsel during his

interrogation, we see no evidence of this in the record. Once a suspect waives his or her

right to counsel, he may invoke that right and stop the questioning at any time. Maestas,

¶ 13. However, the request for counsel must be unequivocal and an ambiguous or

equivocal reference to an attorney does not require the police to cease questioning the

suspect. Maestas, ¶ 15. “[A] suspect ‘must articulate his desire to have counsel present

sufficiently clearly that a reasonable police officer in the circumstances would understand

the statement to be a request for an attorney. If the statement fails to meet the requisite

level of clarity . . . [the officer is not required to] stop questioning the suspect.’ ”

Maestas, ¶ 19 (quoting State v. Simmons, 2000 MT 329, ¶ 21, 303 Mont. 60, 15 P.3d

408). Such requests for counsel do not depend on the use of any particular words and are

                                            35
“construed broadly.” State v. Clark, 2008 MT 419, ¶ 30, 347 Mont. 354, 198 P.3d 809

(quotation omitted). For instance, statements such as “Shit, I need a lawyer, man” and “I

would like to talk to somebody” are sufficient to meet this standard. Clark, ¶ 30.

¶69    Here, Lacey’s references to an attorney did not meet the “requisite level of clarity”

to invoke his right to counsel. Lacey did not express a desire to speak with an attorney or

to consult with someone other than the officers during the interrogation. In fact, his most

direct statement on this issue was the following: “I talked to my parents’ attorney and he

says you should have an attorney present. I, I’ve never been through this before in my

life. I mean I’m not trying to do anything to stop anything.” These equivocal statements

were not sufficient to invoke Lacey’s right to counsel, thus requiring the officers to cease

all further questioning.

¶70    While we have concluded that Lacey was subject to custodial interrogation, we

nonetheless hold that the District Court did not err in denying Lacey’s motion to suppress

the testimonial evidence against him because the District Court did correctly conclude

that Lacey was properly advised of his Miranda rights, knowingly and intelligently

waived those rights, and that his waiver and subsequent confession were voluntary.

¶71    Issue Three: Was there judicial bias in this case and did it deprive Lacey of his
       right to due process and a fair and impartial trial?

¶72    Finally, Lacey argues that Judge Baugh demonstrated judicial bias during the

suppression hearing, thus depriving him of his right to due process and a fair trial. Lacey

notes that judges are to avoid “officious interference” in judicial proceedings, must

maintain impartiality at all times in both their demeanor and their actions, and should not


                                            36
become advocates for any particular party. Lacey argues that Judge Baugh ran afoul of

this principle due to what Lacey terms his “excessive interruption of defense counsel and

improper questioning of both defense counsel and Lacey.” Lacey points to several

instances in the suppression hearing transcript where Judge Baugh either directly

questioned Lacey or challenged the feasibility of the explanations he gave for his

conduct. In particular, Judge Baugh questioned Lacey about his initial discussion with

Officer Spaulding in which he was told not to return to Dozier’s house, about the fact that

he did not raise an objection to the search of the house or seizure of his laptop, and about

his subsequent decision to drive down to the Billings police station to meet with

Lieutenant Cady and his expectations concerning whether he would be arrested there.

Lacey also notes that his trial counsel had to object to Judge Baugh’s questioning of

Lacey on three occasions. Lacey argues that these actions show Judge Baugh’s bias in

favor of the State, and demonstrate that he was deprived of an impartial hearing. Further,

Lacey argues that this bias was confirmed, and his constitutional rights further impaired,

by Judge Baugh’s verbatim adoption of the State’s proposed findings of fact and

conclusions of law.

¶73    We agree with Lacey that judges should not interfere in proceedings, must remain

impartial, and should not become advocates for any particular party. State v. Skinner,

2007 MT 175, ¶ 36, 338 Mont. 197, 163 P.3d 399; State v. Stafford, 208 Mont. 324, 331,

678 P.2d 644, 648 (1984). Yet, as the State points out, judges may in fact question

witnesses. M. R. Evid. 614(b); State v. Hibbs, 239 Mont. 308, 311, 780 P.2d 182, 184

(1989). Had these particular instances of conduct occurred in front of a jury, they may

                                            37
have raised significant concerns. However, this was a suppression hearing where Judge

Baugh was the finder of fact. Moreover, while Lacey’s trial counsel did object to Judge

Baugh’s questioning, she did not move to terminate the hearing or disqualify Judge

Baugh. Further, a review of the transcripts of the suppression hearing in its entirety

establishes that Judge Baugh did give Lacey a fair hearing and presented him with the

opportunity to fully argue his motion to suppress.

¶74   In his reply brief, Lacey suggests this Court has the discretion to review his

claimed errors of judicial bias under the plain error doctrine. See State v. English, 2006

MT 177, ¶ 66, 333 Mont. 23, 140 P.3d 454. We invoke the doctrine of plain error only

“sparingly” and on a “case-by-case” basis, when failure to do so may result in a manifest

miscarriage of justice, leave unsettled the fundamental fairness of the proceedings, or

compromise the integrity of the judicial process. English, ¶ 66. None of these concerns

are present here, and we decline to review Lacey’s claimed errors under the plain error

doctrine.

                                    CONCLUSION

¶75   We conclude that the District Court did not err in denying Lacey’s motion to

suppress the physical and testimonial evidence against him. While we do conclude that

Lacey was subject to custodial interrogation, we also determine that he knowingly,

intelligently, and voluntarily waived his constitutional rights, and made a voluntary

confession. Finally, we reject Lacey’s claims of judicial bias. Thus, we affirm his

conviction.



                                            38
                                                         /S/ PATRICIA COTTER



We concur:

/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS




Justice Jim Rice, concurring.

¶76      I concur with the Court’s holding on all issues herein, but would affirm two issues

under alternative rationales.

¶77      Under Issue 1B, search and seizure of the laptop, the Court examines the

difference between the third-party consent necessary for a search and the third-party

consent necessary for a seizure, relying upon the discussion of that issue in People v.

Blair.    The Court explains, in ¶ 49, that this issue arises here because 1) Officer

Spaulding did not personally observe the pornographic images on the laptop and thus

could not seize the computer under the plain view doctrine, and 2) “the question remains”

whether Dozier’s statements were sufficient to establish the probable cause necessary to

seize the laptop. Indeed, the discussion in Blair was premised upon the fact that police

there “lacked probable cause to believe that defendant’s computer contained contraband


                                             39
or was otherwise connected with a crime.” Blair, 748 N.E.2d at 324. However, unlike

Blair, I do not believe probable cause is lacking in this case, which would necessitate

reaching the issue of consent for the seizure. And, though the Court explains that the

question of whether Dozier could consent to a search of the laptop may be immaterial to

whether she could consent to its seizure, that distinction should not be taken to mean that

facts which demonstrate probable cause for a search cannot also be used to demonstrate

probable cause for a seizure.

¶78    Here, I believe Dozier’s statements to police did establish probable cause for the

seizure. Although the District Court’s conclusions of law did not address whether Officer

Spaulding had probable cause to seize the laptop, its findings of fact were nevertheless

directly applicable to that issue. The court found that Dozier turned on the computer and

observed multiple photographs of Lacey engaged in explicit sexual activities with her

own daughter. The court described the photographs in graphic detail, and found that

Dozier had reported this information to Officer Spaulding. Thus, Dozier’s actions and

observations established probable cause for the seizure. See Branam, ¶ 22. The Court

acknowledges that this is “arguably” so in ¶ 52, but leaves this issue unresolved in favor

of determining that the evidence was properly seized under the “inevitable discovery”

doctrine. I would resolve the seizure issue based upon probable cause, leaving both the

consent and inevitable discovery analyses for another case.

¶79    Under Issue 2, I disagree with the Court’s conclusion that the District Court erred

in determining that Lacey was not subjected to a custodial interrogation.           Lacey

voluntarily drove himself to the police station, parked his car in the parking garage, and


                                            40
entered the lobby where he had to wait for an officer to let him into the station because it

was after hours and the door was locked. Lacey arrived there of his own volition. As the

Court notes, “Cady asked Lacey if he wished to come to his office and talk with him and

the detectives. Lacey responded that he would, telling Lieutenant Cady that he could be

there around 7 p.m.” Opinion, ¶ 14 (emphasis added). The mood of the interview was

cordial, with no use of intensive interrogation tactics. There was no “formal arrest or

restraint on freedom of movement of the degree associated with a formal arrest” until the

officers actually placed him under arrest, subsequent to his confessing to the crime.

Munson, ¶ 24.

¶80    These facts are similar to those we relied upon in State v. Reavley to conclude that

the defendant was not subject to a custodial interrogation. In Reavley, the defendant was

also invited to come down to the station to talk to officers, and he did so. Like Lacey,

Reavley chose the date and the time. Reavley, ¶ 22. Reavley arrived of his own volition,

as here. Reavley, ¶ 23. The mood of Reavley’s interrogation was cordial, as here.

Officers were wearing plain clothes, as here, and offered Reavley something to drink, as

the officers did Lacey. Reavley, ¶¶ 24, 27. Lacey’s testimony that he thought he would

be arrested if he did not go to the station voluntarily, and that he did not understand he

would be arrested after confessing, was found to be “not credible” by the District Court.

While Reavley was not arrested afterwards, as Lacey was, Reavley did not clearly

confess to the crime during his statement to police, while Lacey did. At that point, an

arrest was made and the issue of custody changed.




                                            41
¶81    Therefore, I agree with the Court’s ultimate conclusion to affirm the District

Court’s denial of Lacey’s motion to suppress his statement, but I would do so on the

ground that the District Court did not err by concluding that Lacey was not subjected to a

custodial interrogation.



                                                       /S/ JIM RICE




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