                              No.   91-290
            IN THE SUPREME COURT OF THE STATE OF MONTANA




THE STATE OF MONTANA,
            Plaintiff and Appellant,
     -vs-
LARRY T. MOORE,
            Defendant and Respondent.



APPEAL FROM:     District Court of the Eighteenth Judicial District,
                 In and for the County of Gallatin,
                 The Honorable Larry Moran, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                 Marc Racicot, Attorney General, Helena, Montana;
                 Elizabeth Griffing, Assistant Attorney General,
                 Helena, Montana; Robert Brown, Assistant Attorney
                 General, Bozeman, Montana; Mike Salvagni, County
                 Attorney, Bozeman, Montana; Marty Lambert, Deputy
                 County Attorney, Bozeman, Montana.
            For Respondent:
                  James H. Goetz and Brian K. Gallik, Goetz, Madden
                  & Dunn, Bozeman, Montana;    Larry Jent, Williams,
                  Jent & Dockins, Bozeman, Montana.


                              Submitted on briefs:    September 5, 1991
                                             Decided: October 8, 1991
Filed:
~usticeTerry N. ~rieweilerdelivered the opinion of the Court.
     On   December   17, 1990,    the    State   of   Montana   filed   an
Information in the District Court for the Eighteenth Judicial
~istrictin i all at in County, charging defendant Larry Moore with
~eliberate~omicide. On February 8, 1991, the State amended its
Information to add two counts of Tampering With or Fabricating
Evidence.    Moore then moved to suppress two taped interviews with
law enforcement officers.     On April 12, 1991, the District Court

granted Moore's motion in part.         The court reserved its ruling,
however, on whether the State could use the suppressed evidence for
impeachment.    The State appeals the order of the District Court.
We affirm.
     The issues are:
     1.     Did the District Court err in suppressing all reference
in a legal interview to Moore's statements in an earlier illegal
interview?
     2.   Did the District Court err in refusing to rule on whether
the State could use the suppressed evidence for impeachment?
     Brad Brisbin, a resident of West Yellowstone, disappeared on
November 9, 1990. The State's search for Brisbin focused on Moore,
who was the last person known by authorities to have seen Brisbin
alive.
     Members of the Gallatin County Sheriff's Office interviewed
Moore on November 23, 1 9 9 0 .   Moore was alone, unaccompanied by
counsel. The officers informed Moore of his rights under Mirarzda v.
A i o a (l966), 384 U.S. 436, 86 S.Ct 1602, 16 L.Ed.2d 694.
 rzn                                                                As

required by Miranda, the officers told Moore that he had the right

to remain silent, that anything he said could be used against him,
that he had the right to a retained or appointed attorney, and that
he could stop talking and assert his rights at any time.
       The officers then began the interview by telling Moore they
had a search warrant for his camper and wanted him to tell them
what they would find in it. Almost immediately Moore attempted to
exercise his Fifth Amendment right to terminate the interview, but
the    questioning   continued.    Later   in the   interview, Moore
specifically asked to talk to an attorney.                The questions
continued.
       After this second unsuccessful attempt to invoke his Fifth
Amendment rights, Moore told the officers that he had shot a rat
in his camper and suggested that they would find bullet holes and
possibly bullet fragments when they searched the camper.        He also
offered to give the authorities the pistol he used to shoot the
rat.     Later Moore asked a third time for an attorney.            The
interview ended after this third attempt by Moore to assert his
Fifth Amendment rights.
       A West Yellowstone police officer then drove Moore home,
retrieved the pistol,       and   left.    Later   that   night, Moore
voluntarily returned to the West Yellowstone police station in
search of personal property he had left in the patrol car.         When
Moore arrived at the police station, Gallatin County Sheriff Ron
                                    3
Cutting continued to question him about the rat shooting story.
Sheriff Cutting did not re-issue the Miranda warnings.          The sheriff

asked Moore to diagram the rat shooting incident, and Moore
complied.
     On December 1, 1990, the authorities interviewed Moore again,
This time Moore was accompanied by counsel.            No ~ i f t hAmendment
violations   are   alleged    to have      occurred    during   this    third
interview. Pursuant to his attorney's advice, Moore admitted that
he had lied about shooting rats in his camper.          He explained that
he had found Brisbin in the camper, armed with a pistol and in a
suicidal state. Moore said he and Brisbin wrestled for the gun and
it   discharged,    grazing    Brisbin's      head     and   wounding    him
superficially.     According to Moore, Brisbin made him promise not
to tell anyone what had happened.          He left to get water to clean
Brisbin up and when he returned, Brisbin was gone.
     Moore's motion to suppress included the November 23, 1990,
interview, the      pistol,   the    rat    shooting   diagram,   and     the
December 1, 1990, interview.        The State opposed that motion, but
asked the court to rule specifically that any evidence suppressed

from the State's case in chief would still be admissible for
impeachment.   The court suppressed all of the November 23, 1990,
interview, the diagram, and any reference in the December 1, 1990,
interview to the illegal November 23, 1990, interview.            The court
took the matter of impeachment under advisement.
     Did the District Court err in suppressing all reference to
the illegal November 23, 1990, interview in the subsequent legal
December 1, 1990, interview?
     The State does not contest the suppression of the November 23,
1990, interview.   That interview is clearly inadmissible because
the interrogating officers did not respect Moore's assertion of his
Fifth Amendment rights.   SeeEdwar&v.Arizona   (19811, 451 U.S. 477,

101 S-Ct. 1880, 68 L.Ed.2d 378.   Instead, the State argues that all

of the December 1, 1990, interview is admissible, iizcluding the

references to the November 23, 1990, interview.
     In discussing the December 1, 1990, interview, the District
Court ruled:
     It cannot be said this interrogation was "fruit of the
     poisoned tree, i.e., the interview of November 23, 1990:
     the matters discussed were not identical; there was no
     indication Defendant       labored    under  any    mental
     difficulties; Defendant had counsel in attendance; and
     there was no justification for Defendant to feel he was
     in a hopeless position. Therefore, the tests of S a e v.
                                                          tt
     A l e , [I90 Mont. 475,] 621 P.2d 1080 (19801 and In the
      lis
     MatterofRPS, 1191 Mont. 275,] 623 P.2d 964 (1981) are met,
     and this interrogation is admissible evidence. However,
     any reference[] in this interrogation to any matter
     within the November 23, 1990 interrogation      . . .   is
     tainted and must remain inadmissible.
The District Court was correct: nothing in the December 1, 1990,
interview other than the references to the November 23, 1990,
interview could have been fruit of the poisoned tree.      We hold,
however, that under the facts of this case, references to the
November 23, 1990, interview are simply inadmissible in their own
right, without reference to the poisoned tree doctrine.
    We are aware of the "independent sourcer~exception to the
fruit of the poisoned tree doctrine.       In Wong Sun v. United States

(1963), 371 U.S. 471, 487-88, 83 S.Ct. 407, 417 9 L.Ed.2d 441, 455,
the United States Supreme Court said:
     We need not hold that all evidence is "fruit of the
     poisonous tree" simply because it would not have come to
     light but for the illegal actions of the police. Rather,
     the more apt question in such a case is "whether,
     granting establishment of the primary illegality, the
     evidence to which instant objection is made has been come
     at by exploitation of that illegality or instead by means
     sufficientlv distinsuishable to be pursed of the ~rimary
     taint." [Emphasis added.]
In In reRP.S. (1981), 191 Mont. 275, 623 P.2d 964, we noted that the

following factors are relevant to determining whether derivative
evidence has been "purged of the primary taint": passage of time,
change in location, manner of interrogation, representation by
counsel, defendant's mental condition, police conduct, opportunity
to talk with family and friends, and whether the defendant believes
the first confession or admission has made the defendant's present
position hopeless. RP.S.,   623 P.2d at 968. The State argues that

the presence of several of these factors in this case purges the
taint of the November 23, 1990, Miranda violations and renders the

December 1, 1990, interview admissible in its entirety
     The State misapprehends the problem.        References to the
November 23, 1990, interview are not "fruit" of the poisoned
tree--they are the poisoned tree itself.   Law enforcement officers

violated Moore's Fifth Amendment rights.      The exclusionary rule
dictates that the product of those violations is inadmissible. It
makes no sense to suppress the November 2 3 , 1990, interview and
then admit that evidence by allowing reference to it in another
discussion.
     Moore's   December    1, 1990, admission      that   he   lied   on
November 2 3 , 1990, did not occur in a vacuum. Any mention at trial
of the rat shooting story, or even Moore's own admission that he
had lied earlier in the investigation of the case, would inevitably
resurrect the suppressed November 23, 1990, interview itself.
Thus,   questions   of    l'independent sources"   and    "sufficiently
distinguishable approachesw are irrelevant to this particular fact
situation.     We hold that the District Court was correct in
suppressing all references to the November 23, 1990, interview from
the December 1, 1990, interview.
                                 II

     Did the District Court err in refusing to rule on the
admissibility of the suppressed evidence for the purpose of
impeachment?
     The State asked the District Court to rule specifically that
it could use Moore's November 2 3 , 1990, statements for impeachment,
despite the suppression of those statements from its case in chief.
In the District Court, the State cited Oregon v Hass (1975), 420 U . S .
                                              .
714, 95 S.Ct. 1215, 43 L.Ed.2d 570, and State v. Cartwright (l982), 200

Mont. 91, 650 P.2d 758, for the proposition that impeachment is a
collateral use to which the exclusionary rule does not apply. The
District Court took the matter under advisement.
     The State now asks this Court to intervene and rule on the
basis of Hass, Cartwright, and the limited pre-trial record in this

case that the evidence is admissible for impeachment purposes.
Moore, on the other hand, asks us to intervene on his behalf by
rejecting the federal and state cases on independent and adequate
state grounds.
     Essentially both parties ask us to compel the District Court
to rule on this issue prior to trial. We decline that invitation.
The impeachment issue is not properly before us until the District
Court has entered a ruling.
     The State argues that the District Court's refusal to rule on
this issue deprived it of its right to appeal suppression rulings
under 5 46-20-103, MCA.     That statute provides:
     Scope of appeal by s t a t e . (1) Except as otherwise
     specifically authorized, the state may not appeal in a
     criminal case.
     (2)   The state may appeal from any court order or
     judgment the substantive effect of which results in:
          (a) dismissing a case;
          (b) modifying or changing the verdict
          (c) granting a new trial;
                                                       . . .;
          (d) quashing an arrest or search warrant;
          (e) su~pressinqevidence;
                           a
          (f) su~~ressinq confession or admission:
          (g) granting or denying change of venue; or
          (h) imposing a sentence that is contrary to law.
     [Emphasis added.]
Section 46-20-103, MCA.          We note that nothing in this statute
expressly guarantees the State the right to have the District Court
enter its suppression ruling in time to perfect an appeal.
     In anticipation of this problem the State cites the following
language in   Stale   v Canley (l986), 219 Mont. 412, 418, 714 P.2d 532,
                      .


     The objection was sustained by the District Court. These
     facts do not suggest a plain and obvious case warranting
     an appeal, nor do they describe an urgent circumstance.
     The prosecution had an adequate opportunity to present
     the question of admissibility in a pre-trial motion.
     Thev did not exercise that choice. [Emphasis added.]
From this language the State concludes that it is entitled to a
pre-trial ruling any time it presents pre-trial motions                      on
admissibility.        However, we note that this was dicta, and that we

did not indicate that the State could appeal from such an order.
Furthermore, rulings on impeachment evidence cannot, by their
nature, always be made prior to trial.
     Moore, by contrast, likens the State's pre-trial motion in the
District Court to a motion in Limine.             We agree.     The power to
grant or deny such motions lies within the sound discretion of the
District Court.        S e W a I h v. Kirzyorz Estate (1974), 164 Mont. 160, 519
                        e
P.2d 1236.    In the instant case the District Court held that:
     [I]t is far too early to decide what evidence may be used
     to impeach a witness who is not required to testify, and
     who may not testify. That matter is better left to the
     time of trial, and is considered as "under advisement."
W e hold t h a t t h i s w a s within t h e scope of   the D i s t r i c t Court's
discretion     and     that   the   District   Court   did   not   abuse     that

discretion,
      Affirmed.




We concur:
                         /




          ef J u s t i c e
                                            October 8, 1991

                            CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


Hon. Marc Racicot, Attorney General
Elizabeth Griffing, Asst. Atty. Gen.
Justice Building
Helena, MT 59620

Mike Salvagni, Gallatin County Attorney
Marty Lambert, Deputy County Attorney
615 S. 16th Ave., Room 100
Bozeman, MT 59715

Larry Jent
WILLIAMS, JENT & DOCKINS
506 E. Babcock
Bozeman, MT 59715

James H. Goetz and Brian K. Gallik
GOETZ, MADDEN & DUNN
35 N. Grand
Bozeman, MT 59715

                                                ED SMITH
                                                CLERK OF THE SUPREME COURT
                                                STATE OF MONTANA
