                                                                                              06/23/2017


                                          DA 15-0515
                                                                                          Case Number: DA 15-0515

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 154



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

CHAD LARSEN MAILE,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DC 15-226
                        Honorable Russell C. Fagg, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Chief Appellate Defender, Moses Okeyo, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
                        Assistant Attorney General, Helena, Montana

                        Scott D. Twito, Yellowstone County Attorney, Billings, Montana



                                                    Submitted on Briefs: April 26, 2017

                                                               Decided: June 23, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.


¶1    Chad Larsen Maile (Maile) appeals from the June 8, 2015 order of the Thirteenth

Judicial District Court, Yellowstone County, denying his motion to reverse and remand

the Justice Court’s denial of his motion to suppress evidence obtained during the

interrogation of him by Montana Fish, Wildlife, and Park (FWP) game wardens at a game

check station. We affirm.

¶2    We address the following issues on appeal:

      1. Did the District Court err in affirming the Justice Court’s determination that
      Maile was not subject to custodial interrogation at the FWP game check station
      and thus was not entitled to Miranda warnings prior to questioning by the game
      wardens?

      2. Did the District Court err in affirming the Justice Court’s determination that
      the admissions Maile made were voluntary?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3    On November 17, 2013, Maile and Paul Olson (Olson) stopped at a FWP game

check station just outside of Columbus, Montana, with a mule deer harvested by Maile in

the bed of the pickup truck. FWP game wardens inspected the deer at the check station

and contacted Maile after observing that the license attached to the deer had been issued

to a female hunter. The wardens asked Maile about the deer and he began to answer

questions and converse with the wardens. He eventually made numerous admissions

over the course of the questioning. The investigation was recorded by the Outdoor

Channel “Wardens” reality television show, which was on scene and filming the

questioning of Olson and Maile.


                                           2
¶4     During the course of the wardens’ investigation, Maile admitted that he shot the

mule deer and placed his daughter’s tag on the animal. He also told the wardens that he

had illegally shot two additional deer using his fiancé’s tags in Yellowstone County,

Montana. He informed the wardens that one deer was currently being processed at a

commercial butcher in Billings, Montana. The wardens subsequently went to Maile’s

home and he consented to a search of his freezer. The wardens located and confiscated

the deer meat that they determined had been illegally harvested.

¶5     Maile was subsequently charged with License, Permit or Tag Offense in violation

of § 87-6-304(5), MCA; Unlawful Possession, Transfer, or Transport of Game Animal in

violation of § 87-6-202(1), MCA; and Hunting or Killing a Game Animal Over the Legal

Limit in violation of § 87-6-413(1), MCA. Maile moved to suppress evidence gathered at

the FWP check station, arguing that the incriminating statements Maile made were fruits

of an illegal interrogation. On July 16, 2014, the Justice Court conducted a suppression

hearing and, on July 25, 2014, the court denied Maile’s motion, concluding that Maile

was not subject to custodial interrogation at the check station and thus was not required to

receive Miranda warnings.1 On August 15, 2014, the Justice Court held a non-jury trial

and, on August 28, 2014, the court found Maile guilty on all three counts of the

indictment.

¶6     Maile appealed to the Thirteenth Judicial District Court, contending that he was

subjected to a custodial interrogation without first being given Miranda warnings, and

that the admissions he made were not given voluntarily and thus should be suppressed.

       1
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
                                                3
The District Court affirmed the Justice Court on the same grounds given by the lower

court. Maile filed a timely appeal with this Court. Additional facts will be provided as

necessary to address the issues raised.

                               STANDARD OF REVIEW

¶7     Upon Maile’s appeal from the Justice Court, the District Court functioned

effectively as an intermediate appellate court. See §§ 3-5-303, 3-10-115, MCA. We

review cases that originate in justice courts of record and are appealed to a district court

as if the appeal originally had been filed in this Court. Accordingly, we undertake an

independent examination of the record apart from the district court’s decision. State v.

Kebble, 2015 MT 195, ¶ 14, 380 Mont. 69, 353 P.3d 1175; State v. Lamarr, 2014 MT

222, ¶ 9, 376 Mont. 232, 332 P.3d 258.

¶8     The Montana Supreme Court reviews a trial court’s determination that a defendant

was not entitled to Miranda warnings for correctness. State v. Elison, 2000 MT 288,

¶¶ 12, 34, 302 Mont. 228, 14 P.3d 456. We review a trial court’s findings of fact on a

motion to suppress an admission or a confession to determine whether the findings are

clearly erroneous. State v. Loh, 275 Mont. 460, 475, 914 P.2d 592, 601 (1996). A

finding of fact is clearly erroneous if it is not supported by substantial evidence, if the

trial court misapprehended the effect of the evidence, or if this Court has a definite or

firm conviction that the trial court committed a mistake. Loh, 275 Mont. at 475, 914 P.2d

at 601. Substantial evidence requires more than a mere scintilla of evidence, but may be

less than a preponderance of the evidence. State v. Scarborough, 2000 MT 301, ¶ 30,

302 Mont. 350, 14 P.3d 1202. The voluntariness of a confession or admission is a factual

                                             4
question which must take into account the totality of the circumstances. Loh, 275 Mont.

at 475, 914 P.2d at 601.

                                     DISCUSSION

¶9    1. Did the District Court err in affirming the Justice Court’s determination that
      Maile was not subject to custodial interrogation at the FWP game check station
      and thus was not entitled to Miranda warnings prior to questioning by the game
      wardens?

¶10   Maile argues that the FWP wardens violated his right against self-incrimination

guaranteed by the Montana and United States Constitutions when they interrogated him

without first issuing him Miranda warnings.       The Justice Court concluded that no

constitutional violation occurred because Maile was not in custody for purposes of

Miranda.

¶11   The Fifth Amendment to the United States Constitution and Article II, Section 25

of the Montana Constitution provide that no person shall be compelled, in any criminal

case, to be a witness against himself. The United States Supreme Court addressed this

privilege against self-incrimination in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602

(1966), holding that “the prosecution may not use statements that stem from a custodial

interrogation of a defendant 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, 384 U.S. at 444, 86 S. Ct. at

1612). Thus, an individual must be apprised of his Miranda rights when the individual is

“taken into custody or otherwise deprived of his freedom of action in any significant


                                            5
way” and is subjected to questioning. Olson, ¶ 18 (quoting State v. Belgarde, 1998 MT

152, ¶ 26, 289 Mont. 287, 962 P.2d 571). “[F]ailure to give the prescribed warnings and

obtain a waiver of rights before custodial questioning generally requires exclusion of any

statements obtained.” Missouri v. Seibert, 542 U.S. 600, 608, 124 S. Ct. 2601, 2608

(2004).

¶12    Whether a “custodial interrogation” has occurred which requires law enforcement

officers to issue Miranda warnings before questioning can begin involves a two-step

inquiry: “(1) whether the individual was ‘in custody’ and (2) whether the individual was

subjected to an ‘interrogation.’” State v. Munson, 2007 MT 222, ¶ 21, 339 Mont. 68, 169

P.3d 364. The State does not dispute that Maile was subject to an “interrogation” in this

case. Thus, we need only determine whether Maile was “in custody” at the check station

at the time of the interrogation. In this regard, the United States Supreme Court has

articulated “‘[t]wo discrete inquiries’ that are essential to the ‘in custody’

determination”:

       first, what were the circumstances surrounding the interrogation; and
       second, given those circumstances, would a reasonable person have felt he
       or she was not at liberty to terminate the interrogation and leave. Once the
       scene is set and the players’ lines and actions are reconstructed, the court
       must apply an objective test to resolve the ultimate inquiry: [was] there a
       formal arrest or restraint on freedom of movement of the degree associated
       with a formal arrest.

Munson, ¶ 22 (quoting Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 465

(1995)). This Court has explained the variety of circumstances pertinent to the first

inquiry, including:



                                            6
       the language used by the officers; the location or physical surroundings
       where the questioning occurs; whether the individual consented to speak
       with the officers; the degree of pressure applied to detain the individual;
       whether the individual was moved to another area; whether the officers
       informed the individual that he or she was not under arrest and was free to
       leave or could ask the officers to leave; whether there was a threatening
       presence of several officers; whether the officers used coercive tactics such
       as hostile tones of voice, the display of weapons, or physical force; the
       duration of the detention; and the extent to which the individual was
       confronted with evidence of guilt.

Munson, ¶ 23. The foregoing circumstances are not dispositive and “must be considered

together in determining whether ‘a reasonable person would have felt he or she was not at

liberty to terminate the interrogation and leave.’” Munson, ¶ 24 (quoting Thompson, 516

U.S. at 112, 116 S. Ct. at 465). Additionally, “we note that while consideration of these

factors might be useful, the ultimate inquiry is not whether a reasonable person would

feel free to leave, but rather whether there was a ‘formal arrest or restraint on freedom of

movement’ of the degree associated with a formal arrest.”           Elison, ¶ 28 (quoting

Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1529 (1994)).

¶13    In State v. Dawson, 1999 MT 171, 295 Mont. 212, 983 P.2d 916, we held that

Miranda warnings were not required where a defendant was questioned in his hotel room

because although the “mood in the room was tense because of the officer’s suspicions,”

the questioning only took a few minutes, there were other people in the room during the

questioning and a brief protective frisk, and he was not placed under arrest or in

handcuffs. Dawson, ¶¶ 34, 36. We explained that when an investigative stop is routine

and the detention is brief, it does not fall within the ambit of a custodial interrogation

requiring Miranda warnings:


                                             7
      This Court has previously held that law enforcement officers need not
      administer Miranda warnings to suspects during brief investigative
      encounters even if those encounters are somewhat coercive. Moreover, we
      have stated that an interrogation is not custodial unless there is a significant
      restriction of personal liberty similar to an arrest . . . and even temporary
      confinement as a safety precaution does not render the detention
      “custodial” for Miranda purposes . . . .

Dawson, ¶¶ 34-35 (citations omitted).

¶14   Likewise, in State v. Elison, 2000 MT 288, 302 Mont. 228, 14 P.3d 456, we found

no custodial interrogation where a police officer: 1) stopped a vehicle upon hearing a

report that the defendant had been observed smoking a marijuana pipe; 2) asked the

defendant a moderate number of questions in a public setting and in the presence of

another officer to determine the defendant’s identity and to obtain information

confirming or dispelling the officer’s suspicion that he had been smoking marijuana; 3)

requested that the defendant exit his vehicle and frisked him; and 4) informed the

defendant that he was not free to leave during the questioning. In doing so, we explained,

and reiterated our approval of, the United States Supreme Court’s holding in Berkemer v.

McCarty, 468 U.S. 420, 104 S. Ct. 3138 (1984):

              In Berkemer, the Supreme Court considered whether roadside
      questioning of a motorist detained pursuant to a traffic stop should be
      considered custodial interrogation for purposes of Miranda. The Court
      acknowledged that a traffic stop “significantly curtails the ‘freedom of
      action’ of the driver and passengers, if any, of the detained vehicle.” The
      Court also noted that under the law of most States it is a crime to leave a
      traffic stop without permission and “few motorists would feel free to . . .
      leave the scene of a traffic stop without being told they might do so.”
      However, these factual observations did not end the Court’s inquiry into
      whether the defendant was subjected to custodial interrogation. Instead, the
      Court focused on whether the defendant had demonstrated that the officer’s
      conduct before eliciting the incriminating statement was “comparable to
      those [restraints] associated with formal arrest.” In this regard, the

                                             8
       Supreme Court observed that “the usual traffic stop is more analogous to a
       so-called ‘Terry stop,’ . . . than to a formal arrest.” The Court decided that
       statements made by a defendant in response to an officer’s roadside
       questioning did not require warnings of constitutional rights because of the
       brevity of questioning and its public setting, even though few motorists
       would feel free to leave. We have repeatedly cited Berkemer with
       approval.

Elison, ¶ 29 (quoting Berkemer, 468 U.S. at 436-39, 441, 104 S. Ct. at. 3148-51) (citing

Billings v. Skurdal, 224 Mont. 84, 89, 730 P.2d 371, 374 (1986)).

¶15    Applying these principles to the facts of this case, we now consider whether Maile

was “in custody” when the game wardens interrogated him at the game check station.

We first note that a FWP check station, where hunters are required to “stop and report,” is

closely akin to a traffic stop which is, in turn, “more analogous to a so-called Terry stop,

than to a formal arrest.” Berkemer, 468 U.S. at 439, 104 S. Ct. at 3150 (citing Terry v.

Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)). Like the roadside questioning of a motorist

detained pursuant to a traffic stop, the roadside questioning of a hunter at a game check

station detains a vehicle and curtails a driver and passenger’s freedom of action because it

is unlikely that a hunter would feel free to leave a game check station without the

permission of a game warden. However, as explained in Berkemer, this does not end the

inquiry as to whether a custodial interrogation has occurred; rather, we must determine

whether the wardens’ conduct before eliciting the incriminating statement is comparable

to the restraints of a formal arrest. In this vein, we have held that “[r]outine, public, and

temporary investigatory stops, to confirm or dispel suspicions, are not generally custodial

interrogations.” State v. Peters, 2011 MT 274, ¶ 61, 362 Mont. 389, 264 P.3d 1124.



                                             9
¶16    To be clear, we are not disturbing our prior holding in State v. Boyer, 2002 MT 33,

308 Mont. 276, 42 P.3d 771, that the governmental interest in the enforcement of

Montana’s wildlife laws and our constitutional right to a clean and healthful environment

is sufficiently substantial to justify the minimal intrusion upon the rights of those stopped

for brief questioning and a visual inspection of their vehicle and harvest therein. Indeed,

Boyer is inapplicable to the case at bar. The Berkemer decision did not reconsider

whether a Fourth Amendment seizure, requiring a particularized suspicion justification,

occurred in that case. Instead, Berkemer, as explained in Elison, simply invoked the

circumstances surrounding a Terry stop for analogical purposes in the Fifth Amendment

context. As such, in this case, and contrary to the assertion in the Special Concurrence,

we are not blending “Fourth Amendment jurisprudence and Fifth Amendment

jurisprudence.” Rather, we are considering whether the brief, public “stop and report” in

this case, which is akin to a brief, public Terry stop that the Supreme Court considered in

Berkemer, is nevertheless custodial because the other circumstances surrounding the

interrogation rose to the level of a formal arrest or restraint on freedom of movement of

the degree associated with a formal arrest.

¶17    Here, the game wardens did not place Maile under arrest or in handcuffs.

Accordingly, no formal arrest occurred prior to questioning. We also conclude that the

circumstances surrounding the wardens’ questioning cannot be fairly characterized as the

functional equivalent of a formal arrest when viewed from the perspective of a reasonable

person in Maile’s situation. While the game wardens did ask Maile to step away from

Olson’s truck for questioning, they did not conduct a pat down frisk of Maile, nor did

                                              10
they require Maile to remove the knife or firearm on his person, even when Maile

volunteered to do so. Also, as in Elison, the questioning of Maile occurred in a public

setting, at a highway rest stop, where hunters, motorists, and a camera crew were present

to witness the interaction. The questioning also occurred in the presence of, at most, two

other wardens at any one time in order to determine his identity and to obtain information

confirming or dispelling the wardens’ suspicion that he had illegally harvested the deer in

the back of Olson’s pickup and, as the investigation developed, the deer killed in

Yellowstone County. Finally, during the investigation, Maile was left standing alone

while the wardens conversed, followed leads, and wrote up citations. Compare Olson, ¶

16 (concluding that a custodial interrogation occurred where “there [were] officers

everywhere,” and the defendant was not “ever standing alone.”).

¶18    Maile’s detention also occurred at a routine “stop and report” game check station,

which is authorized by §§ 87-1-207 and 87-6-218, MCA, and requires all hunters

traveling in the direction of a station to stop to allow FWP officers to inspect the licenses

and game possessed by hunters. Like the detention of a motorist pursuant to a traffic

stop, the detention of a hunter at a game check station is “presumptively temporary and

brief.” See Berkemer, 468 U.S. at 437, 104 S. Ct. at 3149. As long as hunters produce a

valid license and can otherwise prove that they harvested their game legally, such

roadside detentions are short in duration. A hunter’s expectation upon pulling into a

game check station is that he will be required to spend some time answering questions

and waiting while the warden checks his license and other documents proving that a legal

harvest has occurred. He may also expect to be given a citation if he has not comported

                                             11
with the law, but, in the end, will most likely be allowed to continue on his way. See

Berkemer, 468 U.S. at 437, 104 S. Ct. at 3149. At no point during Maile’s detention was

he informed that his detention would exceed that of a routine “stop and report” game

inspection and, indeed, Maile was eventually allowed to go on his way after being issued

a citation.

¶19    Finally, while we concede that the length of the warden’s investigation and

amount of questions the wardens posed to Maile exceeds that of a normal roadside

investigatory stop, we cannot say that Maile’s detention ripened into a custodial

interrogation because the record demonstrates that the wardens kept the scope of inquiry

reasonably related to the purpose for which the investigation was initiated. See State v.

Larson, 2010 MT 236, ¶ 31, 358 Mont. 156, 243 P.3d 1130. Indeed, it was Maile’s

attempts to obfuscate and delay the investigation as well as his failure to answer the

wardens’ questions directly and truthfully that continued to confirm the wardens’

suspicions and thus extend the length of the investigation. Furthermore, as shown in the

“Wardens” video, Maile himself extended his roadside detention by continuing to

volunteer additional information and, towards the end of his detention, even asked

permission to reinitiate conversation with one of the wardens. It is because of factual

circumstances such as these that we have repeatedly and “explicitly declined to define

specific time parameters for roadside investigatory stops.” Larson, ¶ 31; see State v.

Nelson, 2004 MT 310, ¶ 23, 323 Mont. 510, 101 P.3d 261 (“We have noted that, while

law enforcement officers conducting an investigation or investigatory stop should be

guided by principles of reasonableness, ‘effective law enforcement requires some latitude

                                           12
to be given to investigating officers to react to and follow up on their observations.’”)

(quoting State v. Sharp, 217 Mont. 40, 47, 702 P.2d 959, 963 (1985)).

¶20    We conclude that Maile’s roadside detainment at the FWP game check station

remained public, routine, and temporary in nature, never exceeding the scope of a

wildlife crime investigation. As such, Maile was not taken into custody for purposes of

Miranda and the statements Maile made to the game wardens were admissible against

him.

¶21    2. Did the District Court err in affirming the Justice Court’s determination that
       the admissions Maile made were voluntary?

¶22    Maile also argues that the confession he made to the FWP game wardens was

involuntary under the totality of the circumstances of his interrogation. The Justice Court

determined that Maile was not intimidated or coerced into admitting to the wardens that

he illegally harvested deer in both Carbon County and Yellowstone County.

¶23    While both the Justice Court and the District Court seemed to conflate the analysis

of the Miranda issue above with the voluntariness issue addressed here, it is important to

note that these are two distinct grounds upon which Maile challenges the admissibility of

his statements and it is necessary to analyze these discrete issues accordingly.2 Unlike

the Miranda doctrine, which is grounded in the Fifth Amendment’s Self-Incrimination

Clause and applied to the states via the Fourteenth Amendment’s Due Process Clause, the

United States Supreme Court has “based the rule against admitting coerced confessions

primarily, if not exclusively, on notions of due process” under the Fifth and Fourteenth

       2
         We previously addressed a similar case of conflation of the Miranda doctrine and the
voluntariness doctrine in State v. Morrisey, 2009 MT 201, 351 Mont. 144, 214 P.3d 708.
                                             13
Amendment. Dickerson v. United States, 530 U.S. 428, 433, 120 S. Ct. 2326, 2330

(2000); see State v. Morrisey, 2009 MT 201, ¶¶ 26-30, 351 Mont. 144, 214 P.3d 708.

Thus, “where there has been no Miranda violation or the Miranda rule simply does not

apply, the defendant may still challenge the admissibility of his statement on due process

grounds” under the voluntariness doctrine. Morrisey, ¶ 30. This constitutional protection

against involuntary confessions and admissions is codified in statute at § 46-13-301,

MCA, and provides the procedure by which a defendant may move to suppress an

involuntary confession or admission.3

¶24   “[T]he essential inquiry under the due process voluntariness test is whether the

suspect’s will was overborne by the circumstances surrounding the giving of the

confession.” Morrisey, ¶ 47 (citing Dickerson, 530 U.S. at 433-34, 120 S. Ct. at 2330-

31). “A court must examine the totality of all the surrounding circumstances, including

      3
          Section 46-13-301, MCA, states:

             (1) A defendant may move to suppress as evidence any confession or
      admission given by the defendant on the ground that it was involuntary. The
      motion must be in writing and state facts showing why the confession or
      admission was involuntary.

             (2) If the allegations of the motion state facts that, if true, show that the
      confession or admission was involuntary, the court shall conduct a hearing into
      the merits of the motion. The prosecution must prove by a preponderance of the
      evidence that the confession or admission was voluntary.

             (3) The issue of the admissibility of the confession or admission may not
      be submitted to the jury. If the confession or admission is determined to be
      admissible, the circumstances surrounding the making of the confession or
      admission may be submitted to the jury as bearing upon the credibility or the
      weight to be given to the confession or admission.

              (4) If the motion is granted, the confession or admission is not admissible
      in evidence against the movant at the trial of the case.

                                              14
the characteristics of the individual and the details of the interrogation, to determine

whether the confession was given freely, voluntarily, and without compulsion or

inducement of any sort.” Morrisey, ¶ 47; see Dickerson, 530 U.S. at 434, 120 S. Ct. at

2331. The various factors relevant to this inquiry include:

       the defendant’s age, maturity, education, physical condition, and mental
       health; the defendant’s demeanor, coherence, articulateness, and capacity to
       make full use of his or her faculties; the defendant’s background and
       experience, including any prior experience with the criminal justice system
       and police interrogation; the length, mood, location, and continuity of the
       questioning; the use of threats, violence, or physical punishment (such as
       the deprivation of food or sleep); the exertion of improper influence,
       psychological coercion, deception, or implied or express promises; and
       whether the police advised the defendant of his or her rights to remain
       silent and to have counsel present during custodial interrogation.

Morrisey, ¶ 47.

¶25    Maile contends that his statements to the wardens were not made voluntarily. He

argues that Miranda warnings were not given to him and that the wardens would not let

Maile leave until they obtained a confession. He claims that the wardens used coercive

questioning for over thirty minutes and that the questioning was “aggressive,

confrontational, and emphatic.” Maile also argues that the wardens “threatened” to bring

obstruction of justice charges against him, at which point Maile contends he was forced

to acquiesce and confess to avoid charges against himself, his daughter, and his fiancé.

¶26    First, the fact that the wardens did not advise Maile of his Miranda rights is not

relevant in this case because we have determined that Maile was not required to receive

such warnings. Additionally, Maile does not argue, and there is no reason to suggest, that

his age, maturity, education, physical condition, mental health, demeanor, coherence,


                                            15
articulateness, capacity, background, or his general and criminal justice experience

precluded him from giving a free and voluntary confession. He also does not contend,

and the record does not demonstrate, that the wardens engaged in behavior relating to

improper influence, psychological coercion, deception,4 or that they made implied or

express promises to him, acted violently toward him, or physically punished him in order

to produce a confession.         Rather, Maile argues that he felt the compulsion and

inducement to confess due to the length, mood, and location of the interrogation, as well

as the wardens’ threat of prosecution. We are not persuaded.

¶27    With respect to the location and length of the interrogation, we conclude that, just

as the circumstances surrounding Maile’s detainment failed to rise to the level of a

custodial interrogation under Miranda, many of the same circumstances surrounding the

public, routine, and temporary detainment of Maile support the Justice Court’s finding

that his confession was voluntary. The wardens interviewed Maile in public, with other

hunters, motorists, and a camera crew witnessing the interrogation. Further, they left

Maile standing alone on more than one occasion and allowed him move about freely. At

one point, the “Wardens” video shows that he and Olson were even listening to a game

on the truck’s radio when one of the wardens approached them. In short, we cannot say

that the wardens in any way took advantage of the location of the questioning in an

attempt to create a coercive environment.

       4
          We recognize that, contrary to one of the warden’s contentions, there are no facts in the
record to suggest that Maile could have been charged with Obstructing Justice under § 45-7-303,
MCA. However, given that Maile does not argue, and we find nothing in the record to suggest,
that the warden deceived Maile to obtain his confession, we will not address whether the warden
engaged in a deceptive interrogation practice that runs afoul of the United States Constitution.
                                                16
¶28   As for the length of the interrogation, while the timing and number of questions

the wardens posed to Maile weighs slightly in his favor, we have upheld confessions

obtained during interrogations lasting much longer than, as Maile contends, the

approximately thirty minutes of questioning Maile endured here. See, e.g., Morrisey,

¶ 48 (upholding a confession where the interrogation lasted “roughly three hours during

the afternoon, followed closely by two or three hours in the evening”); State v. Reavley,

2003 MT 298, ¶ 27, 318 Mont. 150, 79 P.3d 270 (upholding a confession where the

“interview lasted approximately four hours and twenty minutes”). Additionally, the

record demonstrates that the wardens’ line of questioning was not only direct and

responsive to Maile’s vague and untruthful answers, but that Maile himself willingly

engaged in, and at times initiated, a running conversation with the wardens.

¶29   With respect to the mood of the interrogation, we concede that, at times, the

wardens became increasingly forceful in their questioning and confrontation of Maile,

particularly when they caught him being untruthful. However, the record demonstrates

that, on balance, the wardens remained calm and professional even in the face of Maile’s

clear attempts to obfuscate and delay the investigation. Maile cites a section of the

interrogation where Wardens Heaton and Burroughs confront Maile regarding his

misleading statements and attempts to change the subject:

      Warden Heaton: No, what did I ask you? What did I ask you [gesturing
      towards Maile with four fingers]? I asked you for [Louri’s] phone number
      or an address and you’re rattlin’ off a bunch of other things here. That’s
      being uncooperative. Ok. Where is she at? What about Mary? How do I
      get in touch with Mary?



                                            17
Maile: Probably a phone, but I don’t have that memorized either. I’m just
telling you the truth.

Warden Burroughs: Listen, the bullshit is over . . . and you haven’t been
telling the truth [pointing at Maile].

Maile: Yes, I have.

Warden Burroughs: Then why did Paul tell us the truth? You shot that
deer, Louri and Mary Ann were never here today. Now quit lyin’ to me.
That’s bullshit.

Maile: Ok, whatever. Take the deer, take my license, whatever you are
doing, do it.

Warden Burroughs: All we wanna do is find out the truth.

Maile: Ok, do what you are doing.

Warden Burroughs: What’s the truth?

Maile: The truth is you’re going to do what you wanna do . . . you have the
badge, I don’t.

Warden Heaton: I’m going to jump in here real quickly. What we’re
dealing with here, like I said, we’ve got some issues, we’ve got some
problems. Ok, we need to get these straightened up, ok. . . . . We’ve got
wildlife violations. It is a criminal matter, it is a problem. It’s something
we can deal with ok? It’s not going to go on your record . . . the only
people that are going to know about it are other game wardens in the state.
The path you’re going down, that’s what we call obstruction of justice.
You know what that is? That’s a criminal charge. That stays on your
record. Ok, that’s something you can go to jail for. . . .

Maile: I’m not doing anything funny . . . I’ll help you, fair enough?

Warden Heaton: No. What we need to know is you need to tell us what
happened. No more lies. . . . .

Maile: I am telling you I am not doing anything to obstruct you. Ok, I am
not messing with you.

Warden Heaton: So did you shoot the deer?

                                     18
       Maile: OK. I am giving you the deer so you can do what you gotta do.

       Warden Heaton: Did you shoot the deer? Yes or no.

       Maile: Yes, to help my daughter.

       Warden Burroughs: Was your daughter there today?

       Maile: No.

       Warden Heaton: That’s all we needed to know.

However, despite what Maile calls an “aggressive, confrontational, and emphatic” line of

questioning, Maile remained calm and conversational. He also continued to offer more

information as the interrogation continued. At one point, Maile asked the wardens “what

else do you need from me?” and, towards the end of the check station interrogation,

asked Warden Heaton if he could speak with him further in order to “straighten things

out.” Considering the entirety of the interaction between the wardens and Maile, we

conclude that this factor weighs in favor of the State.

¶30    Finally, we must weigh any statements interpreted as threats as part of our totality

of the circumstances analysis under the voluntariness doctrine. However, we find no

“threat” in this case, where the legal consequences of a suspect’s conduct are pointed out

and naturally flow from a truthful and honest course of conduct by the police. We do not

think that Warden Heaton’s statement that Maile could be subject to obstruction charges

is inherently coercive; rather, we conclude that, although he miscited the applicable

statute, the warden truthfully informed Maile that he could face an additional criminal

charge if it was discovered that he made statements in an effort to mislead the warden or


                                             19
hinder the investigation. Merely discussing the potential criminal consequences of such

conduct fails to create an unduly coercive environment.

¶31   In sum, based on the totality of the circumstances, we hold that Maile’s

admissions and confession were voluntary.

                                    CONCLUSION

¶32   Accordingly, Maile’s conviction is affirmed.


                                                 /S/ MICHAEL E WHEAT

We Concur:

/S/ DIRK M. SANDEFUR
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE




Justice Jim Rice, concurring.

¶33   I concur with the Court’s opinion. Although the Court reasons that Boyer is

inapplicable, Opinion, ¶ 16, I believe that decision provides key support for the result

here and enhances our rationale. As the Court notes, the “discrete inquiries” the United

States Supreme Court has mandated be made in this case include whether “a reasonable

person [would] have felt he or she was not at liberty to terminate the interrogation and

leave.” Opinion, ¶ 12. The Court properly reasons that “[a] hunter’s expectation upon

pulling into a game check station is that he will be required to spend some time

answering questions and waiting while the warden checks his license and other

documents proving that a legal harvest has occurred.” Opinion, ¶ 18. In Boyer, we

                                            20
analyzed this same expectation at length in the context of the privilege to fish. In

upholding the warden’s inspection of the defendant’s catch in that case, we held that our

system of wildlife protection was rooted in the constitutional protections of the

environment, Boyer, ¶¶ 22–23, and explained as follows:

       Our holding today should come as no surprise to outdoor enthusiasts. As
       alluded above, the Montana Fishing Regulations inform anglers of the
       requirement to produce their license and catch upon demand. To fish is a
       privilege accorded by the State, not a private right. Anglers are responsible
       for knowing the laws pertaining to their sport. See State v. Huebner (1992),
       252 Mont. 184, 188, 827 P.2d 1260, 1263. In complying with the well
       established license requirements, anglers acknowledge the prospect of at
       least some governmental intrusion into their activities. In engaging in this
       highly regulated activity, anglers must assume the burdens of the sport as
       well as its benefits. . . . In this capacity, game wardens are acting not only
       as law enforcement officers, but as public trustees protecting and
       conserving Montana's wildlife and habitat for all of its citizens.

Boyer, ¶ 24.

¶34    Just as for the fishermen at issue in Boyer, there are additional burdens that

hunters undertake when they choose to participate in the highly regulated sport—and

privilege—of hunting, and they must expect “at least some governmental intrusion into

their activities.” Boyer, ¶ 24. I believe that this expectation, one imposed as a matter of

law, makes such roadside game inspection checkpoints as the one in this case a matter of

ordinary course for the hunter that weighs against the argument that such stops and

inquiries constitute custodial interrogations.

¶35    I concur.

                                                  /S/ JIM RICE


                                             21
Justice Laurie McKinnon, specially concurring and dissenting in part.

¶36    To begin, the Court addresses in Issue Two a matter not raised by the parties—

voluntariness of Maile’s confessions. While the District Court addressed voluntariness as

an issue in its order denying Maile’s motion to dismiss, Maile has not raised that issue on

appeal. The sole issue Maile has presented to this Court is whether he was in custody.

As the State does not dispute that there was an interrogation, if Maile were in custody and

not advised of his Miranda rights then his statements would have to be suppressed.

Consideration of the voluntariness of Maile’s statement is premised upon the Fifth

Amendment and involves a different inquiry from whether Maile was in custody. While

a custodial interrogation that occurs following a Miranda advisement may still implicate

considerations of voluntariness; voluntariness is not relevant if there was a custodial

interrogation without a Miranda advisement, for the simple reason that the statements are

automatically suppressed.    In these proceedings, there is no dispute that a Miranda

advisement was not given and that an interrogation occurred; consequently, Maile chose

to raise on appeal only the issue of whether he was in custody. In my opinion, the Court

errs in nonetheless addressing the voluntariness of Maile’s confession.

¶37    It is also my view that the Court confuses, through its blending of Fourth

Amendment jurisprudence and Fifth Amendment jurisprudence, the context of this

particular stop and the significance of context in resolving whether Maile was in custody

for purposes of Miranda. This was a fixed checkpoint established by FWP pursuant to

§ 87-1-207, MCA, which allows wardens to stop, detain, and question individuals

without any individualized suspicion that the individuals were engaged in unlawful
hunting activity. It is not a Terry stop, requiring particularized suspicion; a voluntary

stop by Maile himself; or a formal arrest, requiring probable cause. As long as the

interrogation bore a reasonable relationship to the duties of the wardens, no other

justification for the encounter was required. This does not resolve the question, however,

of whether Maile was in custody for purposes of Miranda. As best I can ascertain, this

Court has not previously considered the implications of Miranda within the context of a

fixed checkpoint established pursuant to statute.5

¶38    The Supreme Court has concluded that a stop at a fixed checkpoint constitutes a

seizure. United States v. Martinez-Fuerte, 428 U.S. 543, 556, 96 S. Ct. 3074, 3082

(1976) (“It is agreed that checkpoint stops are ‘seizures’ within the meaning of the Fourth

Amendment.”). The Supreme Court has explained, and we have endorsed, that “a person


5
  Our decision in Boyer considered whether there was a search and seizure of fish under
the Fourth Amendment and Article II, Section 10 of Montana’s Constitution, not whether
Miranda warnings applied to a person stopped at a fixed checkpoint. We held in Boyer
that “[a]n impermissible . . . seizure only occurs within the meaning of Article II, Section
10 of the Montana Constitution when a reasonable expectation of privacy has been
breached.” Boyer, ¶ 18 (emphasis added). We concluded in Boyer that “no objectively
reasonable expectation of privacy exists when a wildlife enforcement officer checks for
hunting and fishing licenses in open season near game habitat, inquires about game taken,
and requests to inspect game in the field.” Boyer, ¶ 24. Our conclusion was premised
upon the licensing requirements establishing an angler’s acknowledgment of the prospect
that there will be at least some governmental intrusion into their sporting activities. We
rejected Boyer’s claim that he had a legitimate expectation of privacy in his catch,
concluding, instead, that the authorization provided to wardens to inspect game pursuant
to § 87-1-502(6), MCA, established that Boyer’s subjective expectation of privacy in his
catch was not one society was willing to recognize as objectively reasonable. Thus,
Boyer informs us only with respect to the Fourth Amendment and Article II, Section 10
of Montana’s Constitution, establishing that a detention to inspect fish does not require
individualized suspicion or a justification. Boyer does not address custody of a suspect
and the requirements of Miranda, it addresses the justification for the search and seizure
of fish.
                                            23
has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the

circumstances surrounding the incident, a reasonable person would have believed that he

was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870,

1877 (1980); INS v. Delgado, 466 U.S. 210, 228, 104 S. Ct. 1758, 1769 (1984); see

Munson, ¶ 23. Nonetheless, a Fourth Amendment seizure does not necessarily render a

person in custody for purposes of Miranda.       For example, the Supreme Court has

specifically held that a traffic stop constitutes a Fourth Amendment seizure.        See

Delaware v. Prouse, 440 U. S. 648, 653, 99 S. Ct. 1391, 1396 (1979). Such stops are not,

however, necessarily custodial for purposes of Miranda. Berkemer, 468 U.S. at 440, 104

S. Ct. at 3150. The Berkemer Court noted the distinction between a Fourth Amendment

seizure and Miranda’s custody requirement when it explained “the threat to a citizen’s

Fifth Amendment rights that Miranda was designed to neutralize has little to do with the

strength of an interrogating officer’s suspicions.” Berkemer, 468 U.S. at 435, 104 S. Ct.

at 3148, n.22.

¶39    A number of courts have recognized the important distinction between a Fourth

Amendment seizure and Miranda’s custody requirement, and have held that while a stop

at a fixed checkpoint may be a Fourth Amendment seizure, it is not custodial for purposes

of Miranda. See United States v. Fernandez-Ventura, 132 F. 3d 844, 846 (1st Cir. 1998),

and United States v. Moya, 74 F. 3d 1117, 1120 (11th Cir. 1996). The critical distinction

between a seizure in the Fourth Amendment sense and custody in the Miranda sense, is

that custody arises only if the restraint on freedom is a certain degree–the degree

associated with a formal arrest.    Berkemer, 468 U.S. at 440, 104 S. Ct. at 3150.

                                           24
Accordingly, the context of the police encounter, such as whether there has been a formal

arrest, is significant in determining whether a person is in custody for purposes of

Miranda.

¶40      Of the several types of police-citizen encounters–voluntary cooperation, a Terry

investigatory detention, and a formal arrest–Miranda’s custody requirement is triggered

only in situations associated with a formal arrest.     While the unique context of a

checkpoint allows wardens to stop, briefly detain, and question individuals without any

individualized suspicion that the individuals are engaged in criminal activity, such

checkpoints do not necessarily trigger the custody requirement of Miranda.            The

protections afforded persons at checkpoints pursuant to the Fourth Amendment to the

United States Constitution and Article II, Sections 10 and 11 of the Montana Constitution

lie in the appropriate limitations on the scope of the stop.        See United State v.

Martinez-Fuerte, 428 U.S. 543, 566-67, 96 S. Ct. 3074, 3087 (1976). During a routine

checkpoint stop, law enforcement may ask questions and conduct an investigation

reasonably related to their duties, but any extended detention of an individual beyond the

scope of the routine checkpoint violates the Fourth Amendment, unless justification for

extension of the detention is supported by reasonable suspicion, consent, or probable

cause.    In contrast, the Fifth Amendment protections established in Miranda apply

anytime an individual is in custody and is being interrogated, regardless of the level of

Fourth Amendment justification.

¶41      Section 87-1-207, MCA, allows FWP to “establish checking stations when

considered necessary to inspect licenses of hunters and anglers to inspect any game

                                            25
animals, fish, or fur-bearing animals in the possession of hunters and anglers.” Thus, at a

fixed checkpoint, FWP wardens may stop, briefly detain, and question individuals

without any individualized suspicion that the particular individual is engaged in criminal

activity. While a seizure has occurred, the requirements of Miranda are not implicated

because the individual is not in custody, akin to a formal arrest. Berkemer, 468 U.S. at

436-39, 104 S. Ct. at 3148-49; Elison, ¶ 29. Although a Terry-type stop similarly does

not invoke Miranda requirements, a Terry-type stop, in contrast to a checkpoint stop,

requires that law enforcement have articulable reasonable suspicion that an individual is

involved in criminal activity. Articulable suspicion is the justification for a Terry-type

stop; § 87-1-207, MCA, combined with Boyer’s rationale, is the justification for a

checkpoint stop.

¶42    Here, in my opinion, Maile’s encounter with seven wardens over an extended

period of time in which the State concedes an interrogation took place, exceeded the

parameters of the detention authorized by § 87-1-207, MCA. Maile was detained for

nearly 78 minutes at the checkpoint, and wardens followed up their initial investigation

with a four hour visit to Maile’s home. In total, Maile’s encounter with law enforcement

lasted 5 hours. These facts, in conjunction with the State’s concession that there was an

interrogation, demonstrate that the scope of the stop exceeded the brief detention and

inquiry authorized by § 87-1-207, MCA.           However, whether justification for the

extension was based upon Maile’s voluntary cooperation, the development of reasonable

suspicion, or even probable cause does not resolve the question of whether Maile was in

custody.   Therefore, although I would conclude that the encounter exceeded the

                                            26
parameters of a checkpoint stop authorized by § 87-1-207, MCA, such a conclusion does

not dictate a determination that Maile was in custody for purposes of Miranda. The

Court’s inquiry on this point, whether Maile was in custody akin to a formal arrest, is

correct and I concur with the Court’s conclusion that Maile was never under “formal

arrest” and thus cannot be deemed in custody. While the record supports that there was

an extension of the detention initially authorized by § 87-1-207, MCA, and an

interrogation as the State concedes, the record does not support a conclusion that Maile

was under formal arrest or in custody for purposes of Miranda.

¶43   Accordingly, I disagree with the Court’s analysis, particularly our failure

to acknowledge the context of this stop–a fixed checkpoint pursuant to § 87-1-207,

MCA—and to blend the justifications for a Fourth Amendment seizure with Miranda’s

Fifth Amendment neutralizing protections.        Section 87-1-207, MCA, is the only

justification for Maile’s stop and the context within which our Miranda custodial analysis

must begin. Any extension of the checkpoint detention beyond what was reasonable for

wardens to dispel suspicions of wrongdoing should have been supported by Maile’s

voluntary cooperation, reasonable suspicion, or probable cause. The presence or absence

of adequate justification, however, is not before the Court. Nonetheless, assuming the

absence of any of these justifications and therefore a corresponding Fourth Amendment

violation, Miranda’s Fifth Amendment neutralizing protection is still not implicated

when the suspect is not in custody. See Berkemer, 468 U.S. at 442, 104 S. Ct. 3141 (“A

policeman’s unarticulated plan has no bearing on the question whether a suspect was ‘in

custody’ at a particular time; the only relevant inquiry is how a reasonable man in the

                                           27
suspect’s position would have understood his situation.”). The existence of probable

cause does not mandate that law enforcement place a suspect under formal arrest; a

suspect does not have a right to be arrested. Concomitantly, the existence of probable

cause does not mandate that Miranda warnings be given absent custody and

interrogation. Although Maile’s detention exceeded the checkpoint stop authorized by

§ 87-1-207, MCA, by both its length and the wardens’ extensive interrogation, a

conclusion that Maile was in custody at any time during the extended detention period

cannot be supported by the record. Even assuming Maile was seized for an extended

period of time without Fourth Amendment justification, there simple were no

circumstances indicating Maile was ever subject to a formal arrest during his detention.

¶44    I agree with the ultimate result reached by the Court on Issue One; however, I

would apply the foregoing analysis in reaching the result.       Accordingly, I specially

concur on Issue One. I would not reach Issue Two and therefore I dissent from the

Court’s decision to address the merits.

                                          /S/ LAURIE McKINNON




                                            28
