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                                                                No. 98-383



                              IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                             1998 MT 317N




                                                       STATE OF MONTANA,



                                                        Plaintiff and Appellant,



                                                                      v.



                                                        JOSEPH W. PINKLEY,



                                                      Defendant and Respondent.




                               APPEAL FROM: District Court of the Ninth Judicial District,

                                                   In and for the County of Toole,



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                                       The Honorable Marc G. Buyske, Judge presiding.




                                                      COUNSEL OF RECORD:



                                                              For Appellant:



                               Hon. Joseph P. Mazurek, Attorney General; Patricia J. Jordan,

                            Assistant Attorney General; Elizabeth Horsman, Assistant Attorney

                            General, Special Deputy Toole County Attorney; Helena, Montana



                                                             For Respondent:



                               Robert G. Olson, Frisbee, Moore & Olson; Cut Bank, Montana




                                             Submitted on Briefs: November 12, 1998



                                                     Decided: December 23, 1998

                                                                    Filed:




                                      __________________________________________

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                                                                     Clerk




                      Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1. Pursuant to Section I, paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number, and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.

¶2. The defendant, Joseph W. Pinkley, was charged by information in the District
Court for the Ninth Judicial District in Toole County with misdemeanor sexual
assault and official misconduct. Pinkley moved to suppress statements that he had
made to Toole County law enforcement officials. Following a hearing, the District
Court granted the motion to suppress the statements. The State appeals. We affirm
the order of the District Court.

¶3. The sole issue on appeal is whether Pinkley was entitled to a Miranda warning
prior to being questioned by the law enforcement officials.

                                                FACTUAL BACKGROUND

¶4. Joseph Pinkley, a deputy sheriff for Toole County, was on duty during the early
morning of December 6, 1997, when, at approximately 2:30 a.m., a woman contacted
the Toole County Sheriff and alleged that an officer had sexually assaulted her. In
response to the complaint, Sheriff Vern Anderson, Undersheriff David Robins, and
Chief Deputy Donna Matoon all went directly to the home of the woman's friend
where they personally interviewed the complainant. Based on the woman's
description of the officer, it was clear to them that she was referring to Pinkley.

¶5. Robins went immediately to the Toole County Sheriff's Department. Pinkley, who
was still in uniform and on duty, noticed Robins, who usually works the day shift,
and asked Robins, "What's the problem?" Robins answered, "Let's go in the back
and talk."

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¶6. Robins and Pinkley went to the officers' workroom, which for security reasons is
accessible only to authorized personnel of the Sheriff's Department. However, unlike
the evidence locker and the Sheriff's and Undersheriff's offices, the workroom is
unlocked and officers have free access to the workroom.

¶7. Robins asked Pinkley whether he had had any dealings that night with the
complainant. Pinkley told him that he and another officer had given her a ride home
after they had noticed her walking home in the cold while intoxicated. Robins
testified that he remembered telling Pinkley that the reason for his question was that
the woman had made an allegation that Pinkley had sexually assaulted her. Robins
then told Pinkley that he wanted to wait to discuss the matter any further until
Anderson and Matoon, who had taken the woman home after their interview with
her, arrived. Robins had coffee while they waited in the workroom.

¶8. When the other officers arrived, they joined Robins and Pinkley in the
workroom. Robins testified that Pinkley was asked again to describe his dealings
with the woman. Pinkley answered questions from the officers, all of whom were his
supervisors, and who at times sought clarification of Pinkley's answers. After the
meeting, Robins instructed Pinkley to prepare a written statement, and Pinkley did
so. At no point during or prior to either his oral or written statements was Pinkley
                                     (1)
advised of his Miranda                     rights.

¶9. Pinkley's description of his dealings with the woman contradicted the woman's
allegations. For that reason, on December 8, 1997, Robins requested an independent
investigation by the Criminal Investigation Bureau of the Montana Department of
Justice. On December 11, the investigating agent from the CIB interviewed Pinkley
after advising him of his rights pursuant to Miranda v. Arizona.

¶10. On February 5, 1998, Pinkley was charged by information in the District Court
with misdemeanor sexual assault and misdemeanor official misconduct. He pled not
guilty to both charges, and later moved to suppress both the written and oral
statements that he made on December 6, 1997, based on the fact that he had not first
been given a Miranda warning. After a hearing, the District Court granted the
motion to suppress. It found that there had been a custodial interrogation, prior to
which Pinkley was entitled to a Miranda warning. The District Court also rejected
the State's argument that Pinkley's knowledge of Miranda rights excused the need for
a Miranda warning in this case.

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                                                             DISCUSSION

¶11. Was Pinkley entitled to a Miranda warning prior to being questioned by the law
enforcement officials?

¶12. We review a district court's order to suppress to determine whether the district
court's interpretation and application of the law is correct. See State v. Scheetz
(Mont. 1997), 950 P.2d 722, 724, 54 St. Rep. 1286, 1287.

¶13. "For the Miranda protections to apply, the defendant must be subject to
custodial interrogation." State v. Woods (1997), 283 Mont. 359, 368, 942 P.2d 88, 94.
Custodial interrogation is any situation in which "a reasonable person being
interrogated would feel he was in custody or otherwise significantly deprived of his
freedom." Woods, 283 Mont. at 368, 942 P.2d at 94. The State contends that Pinkley
was neither in custody nor subject to interrogation and, therefore, that he was not
entitled to a Miranda warning.

¶14. In Woods, 283 Mont. at 370, 942 P.2d at 95, we determined that whether a
defendant's statements are the result of interrogation depends on the existence of
some degree of compulsion. Here, Pinkley was asked specific questions about his
conduct that night by his superior officers and was expected to provide answers to
the officers' inquiries. He was also instructed to restate in writing his version of the
events. It is reasonable to assume that Pinkley felt compelled to respond to his
superiors' inquiries. In fact, Robins testified that Pinkley would have been
insubordinate had he refused to do so. We conclude that he was, therefore,
interrogated.

¶15. Whether Pinkley was in custody was a factual question. See Woods, 283 Mont. at
368, 942 P.2d at 94. We held in State v. Rushton (1994), 264 Mont. 248, 255-56, 870
P.2d 1355, 1360, that "[i]f a person has no free right to leave, either from the express
or implied conduct of police officers, then the interrogation is custodial in nature."
The factors which we consider in our determination of whether an interrogation is
custodial include "the time and place of interrogation, the length and mood of
interrogation, and persons present during the questioning." Rushton, 264 Mont. at
256, 870 P.2d at 1360.



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¶16. The District Court relied heavily on the persons present for, and the time and
place of, the interrogation, stating that "a reasonable person would not have felt free
to leave this interrogation." We agree. The fact that Pinkley's superiors had gathered
at a time of day they would not normally be present to question him about the
complaint against him strongly suggested that he was not free to leave. Although the
location was less significant than it would have been to a "civilian," it was still within
the confines of a law enforcement facility; and, finally, everyone present was a law
enforcement official. The State has offered no evidence of the length or mood of the
interrogation to suggest that it was anything but custodial.

¶17. We conclude, therefore, that the District Court correctly concluded that
Pinkley's interrogation was custodial and affirm the order of the District Court.



/S/ TERRY N. TRIEWEILER



We Concur:



/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART

/S/ JAMES C. NELSON

1. 1Miranda v. Arizona (1966), 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694




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