                                           No.    85-620

                I N THE SUPREME C U T O THE STATE O MONTANA
                                 O R   F           F

                                                 1986




STATE O MONTANA,
       F

                  P l a i n t i f f and A p p e l l a n t

         -vs-

JOSEPH F O D R O R V I K ,
        L Y

                  Defendant and Respondent.




APPEAL F O :
        R M       D i s t r i c t C o u r t of t h e N i n t h J u d i c i a l D i s t r i c t ,
                  I n and f o r t h e County o f T e t o n ,
                  The Honorable R. D . M c P h i l l i p s , Judge p r e s i d i n g .


COUNSEL O RECORD:
         F


         For Appellant:

                  Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , Helena, Montana
                  John P a u l s o n , A s s t . A t t y . G e n e r a l , Helena
                  R u s s e l l R . Andrews, Teton County A t t o r n e y , C h o t e a u ,
                  Montana


         For Respondent:

                  C h a r l e s M.   J o s l y n , Choteau, Montana




                                                 S u b m i t t e d on B r i e f s :   Sept.   25,   1986

                                                    Decided:          November 1 8 , 1986


         NUV 1d 1986
Filed:
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.

       The State of Montana appeals from an order of the Ninth
Judicial     District   Court       granting    defendant's       motion   to
suppress.    We reverse and remand.
       During the early morning hours of January 13, 1985, a
burglary    occurred    at    the    residence of Lloyd        and    Joanne
Cunniff in Choteau, Montana.             Numerous undergarments and
swimsuits belonging to Joanne were stolen.              The stolen items
were valued at more than $300.           The burglary was reported to
the Teton County Sheriff's office and Ms. Cunniff informed
the investigating officer that she suspected defendant.
       On January 14, 1985, Deputy Sheriff William Hicks and
Choteau Police Chief Anderson went to defendant's home and
asked him to accompany them to the sheriff's office for an
interview.        Deputy Hicks desired to discuss the Cunniff
burglary and Chief Anderson suspected defendant of taking a
book   from the Choteau library.               Defendant agreed to the
interview and       accompanied      the officers to the           sheriff's
office.    He was not placed under arrest.
       At the sheriff's office, Chief Anderson read defendant
his Miranda rights and defendant signed a waiver of rights.
First, Chief Anderson questioned defendant concerning the
stolen library book.         Deputy Hicks then questioned defendant
about the Cunniff burglary.           Hicks requested that defendant
take a polygraph test and defendant refused.                 Defendant was
told that there were fingerprints and footprints found at the
residence which would possibly link him to the crime.                  These
statements were untrue.         Hicks pressed defendant further and
suggested    that he    make     a written       statement.        Defendant
declined    and    stated he    wanted    to     talk   to   an    attorney.
Questioning            continued          for      another         few    minutes          then         the

i n t e r v i e w was t e r m i n a t e d .
        During         the      next          week,     Chief          Anderson          encountered

d e f e n d a n t on t h e s t r e e t and on two o c c a s i o n s asked d e f e n d a n t

i f he had t a l k e d t o h i s a t t o r n e y .               Defendant responded t h a t

he had been busy b u t would a t t e m p t t o do s o .                           O January 2 1 ,
                                                                                   n

1985,      Chief       Anderson          again        met   defendant           on    the     street.

Defendant s t i l l had n o t spoken w i t h an a t t o r n e y b u t a g r e e d t o

go t o t h e s h e r i f f ' s o f f i c e f o r a n o t h e r i n t e r v i e w .          Anderson

and     Hicks       did      not     question          defendant,         however          defendant

a g r e e d a t t h i s t i m e t o submit t o a p o l y g r a p h t e s t upon b e i n g
a s s u r e d t h e r e s u l t s c o u l d n o t be used a s e v i d e n c e .

        The p o l y g r a p h e x a m i n a t i o n o c c u r r e d i n Shelby on J a n u a r y

23,    1985.           Defendant         was     transported           t o Shelby by Deputy

Hicks.        Defendant s i g n e d a p o l y g r a p h p e r m i s s i o n form and was

a d v i s e d t h a t t h e t e s t r e s u l t s c o u l d n o t b e used a s e v i d e n c e .
Following t h e t e s t ,           t h e examiner informed Deputy Hicks t h a t

d e f e n d a n t had been d e c e p t i v e on f o u r q u e s t i o n s .           Deputy Hicks

t o l d d e f e n d a n t he had been u n t r u t h f u l and a s k e d i f he wanted

t o confess t o t h e burglary.                         Defendant d e s i r e d t o g i v e a

statement         so    Hicks       again       had     defendant         sign       a    waiver        of

r i g h t s form.

        Hicks       told      defendant          that       if    he     had    any       kind     of    a

problem        Hicks       would        do     everything          possible          to     see    that

d e f e n d a n t r e c e i v e d some h e l p .       Defendant t h e n s a i d , " I n e v e r

do    this      unless        I'm       drunk."         Defendant          confessed          to    the

Cunniff b u r g l a r y and a l s o produced a gem s t o n e he had s t o l e n
from     another        home       in    Choteau.            At    that        point,      defendant
requested         they       return       to     Choteau          where    he     would       sign       a

w r i t t e n statement.
        Pursuant to Hick ' s request, Hicks and defendant stopped
at   defendant's      home      to    gather    the   evidence    from     the
burglaries.     They proceeded to the Sheriff's office where a
taped    interview was conducted and defendant confessed in
detail to the burglaries.            Following the interview, Hicks had
defendant take home a written confession form to fill out,
which defendant completed the following week.
     Counsel was        appointed       for defendant.        A   motion    to
suppress was filed covering all statements made by defendant
and any evidence obtained as a result of such statements.
The District Court granted the motion, finding that defendant
had asserted his right to counsel and that further police
initiated contact violated defendant's request for counsel.
     The State appeals and raises the following issue:                     Did
the District Court err in granting defendant's motion to
suppress?
     The District Court concluded that defendant's request
for counsel at the first interview barred further police
initiated interrogation.             The court cited Smith         Illinois
(1984)        U.S.      ,   105 S.Ct. 490, 83 L.Ed.2d 488, as being
decisive of     the    suppression issue.             A   reading of Smith
reveals that the rule against further questioning once a
defendant has        asserted    his    right    to   counsel applies to
custodial interrogation.             In the present case, the District
Court did not address whether defendant had been subjected to
custodial interrogation.         Based upon the facts in the record,
we find that he was not.
     In State v. Dupre (1982) 200 Mont. 165, 650 P.2d 1381,
we held that a custodial interrogation situation requiring
Miranda warnings does not arise merely because an individual
is the focus of police investigation or because questioning
takes place at the station house when there is no indication
that freedom to depart is in any way restricted.                 In this
instance, there is not a Miranda issue because defendant was
given Miranda warnings prior to each interview with                    the
police.      Whether defendant was "in custody1' depends upon
whether there was a formal arrest or restraint on freedom of
movement of the degree associated with               a    formal arrest.
California v. Beheler (1983) 4 6 3 U.S. 1121, 1 0 3 S.Ct. 3517,
77 L.Ed.2d   1275.
      There is nothing in the record indicating defendant
believed he was under arrest or was not free to leave the
station house during any of the interviews.              Defendant agreed
to   accompany the officers to the station house                 for the
interviews and he agreed to take a polygraph test.             The facts
do not support defendant's assertion that he was not free to
leave during the polygraph test and interview in Shelby.
Defendant went to Shelby voluntarily to take the polygraph in
order to clear up suspicion that he committed the Cunniff
burglary.         Further, during     the    interview     following   the
polygraph test, defendant's request to return to Choteau was
granted.
     The suppression issue in this case requires analyzing
two questions.        First, whether defendant's confession was
voluntary.        Second, whether defendant made a knowing and
intelligent waiver of his right to counsel.              State v. Blakney
(1982) 197 Mont. 131, 6 4 1 P.2d 1 0 4 5 .     The District Court did
not address the voluntariness issue.            The court did address
waiver,     but    concluded   that    Smith    v.   Illinois,     supra,
prohibited the police from further questioning of defendant
once he had asserted his right to counsel.               As noted above,
the Smith rule does not apply in this instance for there was
no custodial interroga.tion.
     We reverse the suppression order of the District Court
and remand   for hearing on the issues of voluntariness and

waiver.




We Concur:
                    ,/



  fd7LT6
    Chief Justice




I concur i the result.
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