Matter of R.L.H.

                                     No. 03-673

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    2005 MT 177


IN THE MATTER OF R.L.H.,

A YOUTH UNDER THE AGE OF EIGHTEEN.



APPEAL FROM:      District Court of the Fourth Judicial District,
                  In and for the County of Missoula, Cause No. DJ-01-24,
                  The Honorable Ed McLean, Judge presiding.


COUNSEL OF RECORD:

           For Appellant:

                  Margaret L. Borg, Chief Public Defender, Missoula, Montana

           For Respondent:

                  Hon. Mike McGrath, Attorney General; Jim Wheelis,
                  Assistant Attorney General, Helena, Montana

                  Fred Van Valkenburg, Missoula County Attorney; Leslie Halligan, Deputy
                  County Attorney, Missoula, Montana


                                      Submitted on Briefs: October 26, 2004

                                                  Decided: July 19, 2005
Filed:


                  __________________________________________
                                    Clerk
Justice John Warner delivered the Opinion of the Court.

¶1     R.L.H., a juvenile female, appeals from an order entered July 3, 2003, in the Youth

Court for the Fourth Judicial District, Missoula County, finding her a delinquent youth and

committing her to the custody of the Department of Corrections for placement at Riverside

Correctional Center. R.L.H. was 16 years old at the time the Order was entered. We affirm

the commitment to Riverside Correctional Center based on possession of methamphetamine.

We reverse and remand for dismissal of the charges of possession of opiates, a felony, and

possession of marijuana, a misdemeanor.

¶2     We address the following issues on appeal:

¶3     1. Did the Youth Court err in denying R.L.H.’s Motion to Dismiss the petition

alleging possession of methamphetamine based on a positive uranalysis test?

¶4     2. Did the Youth Court err in admitting into evidence R.L.H.’s admission that she

used methamphetamine on or about December 19, 2002?

                I. FACTUAL AND PROCEDURAL BACKGROUND

¶5     R.L.H. first entered the juvenile justice system in March of 2001, at age 13, when she

was charged with misdemeanor theft, obstructing an officer, disorderly conduct, and habitual

truancy. Pursuant to a consent decree entered August 16, 2001, R.L.H. was placed in the

Florence Crittendon Group Home.

¶6     On April 9, 2002, R.L.H. was adjudicated a delinquent youth, based on two

misdemeanor assaults. She was put on probation until age 18, and placed at Children’s

Comprehensive Services in Butte. R.L.H. completed treatment and was released on

probation to the care of her grandparents.

                                             2
¶7     On September 12, 2002, R.L.H. was found to have violated the terms of her probation

by using and possessing marijuana. She was again found to be a delinquent youth. Her

probation was reinstated and she was placed in shelter care.

¶8     On December 23, 2002, the Missoula County Attorney filed a Second Petition to

Revoke R.L.H.’s probation, alleging she ran away from shelter care and tested positive, via

a urinalysis, on December 19, 2002, for illegal drugs, including methamphetamine, opiates

and marijuana. On January 2, 2003, R.L.H. appeared in Youth Court with her counsel and

after acknowledging that she was aware of all of her rights, including the right to remain

silent, she admitted using methamphetamine on or about December 19, 2002. The admission

was made based on the understanding that the County Attorney would recommend a

treatment program as the disposition. The County Attorney did as agreed, and R.L.H. was

ordered to treatment at Shodair Hospital.

¶9     At Shodair, R.L.H. was diagnosed with alcohol and cannabis dependency,

methamphetamine abuse, and bipolar disorder. The Shodair team recommended residential

care as R.L.H. refused to remain in less restrictive treatment programs. R.L.H. was treated

at Shodair from January 3, 2003, to February 14, 2003, when she ran away.

¶10    On March 5, 2003, the Missoula County Attorney filed a Third Petition to Revoke.

The petition alleged R.L.H. committed the offenses of felony possession of

methamphetamine, felony possession of opiates, and misdemeanor possession of marijuana.

In order for her to be placed in a youth detention facility, it was necessary to secure a

determination that R.L.H. was guilty of an offense that would be a felony crime if committed

by an adult. Sections 41-5-341(1); 41-5-206(1)(b)(x), MCA. The charges in the petition

                                             3
were based on the uranalysis test of December 19, 2002, and on the admissions made on

January 2, 2003, in open court.

¶11   R.L.H. denied the allegations of the Third Petition to Revoke and filed a Motion to

Dismiss, claiming possession by ingestion or consumption was insufficient to prove

possession of a dangerous drug under Montana law. The Youth Court denied the motion.

¶12   The petition was set for a jury trial. R.L.H. filed a motion to exclude evidence, to

prevent the introduction of the admissions she made on January 2, 2003. The motion to

exclude was denied.

¶13   At the close of the evidence at the jury trial, R.L.H. moved for a directed verdict,

again claiming that ingestion of illegal drugs was insufficient to prove possession. This

motion was likewise denied.

¶14   A jury found R.L.H. guilty of all three charges in the Third Petition to Revoke. On

July 3, 2003, R.L.H. appeared with counsel for disposition. The Youth Court committed

R.L.H. to the custody of the Department of Corrections for placement at Riverside

Correctional Center, a secure youth detention facility. This appeal followed.

                              II. STANDARD OF REVIEW

¶15   The denial of a motion to dismiss a formal petition in Youth Court is a matter of law

which we review de novo, determining only whether the court correctly interpreted the law.

State v. R.B. “J” C., 2004 MT 254, ¶ 7, 323 Mont. 62, ¶ 7, 97 P.3d 1116, ¶ 7.

¶16   We treat a motion to exclude testimony as a motion to suppress. State v. Baldwin,

2003 MT 346, ¶ 11, 318 Mont. 489, ¶ 11, 81 P.3d 488, ¶ 11. Our standard of review for a

Youth Court's denial of a motion to suppress is whether the court's findings of fact are

                                            4
clearly erroneous, and whether those findings are correctly applied as a matter of law.

Baldwin, ¶ 11.

                                      III. DISCUSSION

                                         ISSUE ONE

¶17    Did the Youth Court err in denying R.L.H.’s Motion to Dismiss the petition

alleging possession of methamphetamine based on a positive uranalysis test?

¶18    A person commits the offense of criminal possession of dangerous drugs if the person

possesses any dangerous drug defined in § 50-32-101(6), MCA. Section 45-9-102, MCA.

Methamphetamine is a dangerous drug. Possession is the knowing control of anything for

a sufficient time to be able to terminate control. Section 45-2-101(58), MCA. Possession

can be either actual or constructive. State v. Neely (1993), 261 Mont. 369, 374, 862 P.2d

1109, 1112. Constructive possession may be imputed when the substance is subject to the

defendant’s dominion and control. Neely, 261 Mont. at 374, 862 P.2d at 1112. Whether

constructive possession can be proved by a positive urinalysis is an issue of first impression

in Montana.

¶19    R.L.H. argues that she was not in “possession” of dangerous drugs because once the

drugs were in her system, she did not have dominion or control over them. Accordingly,

R.L.H. urges this Court to follow those state courts that have held that once a person injects

or ingests an illegal substance into their body and it is assimilated into the blood stream, they

cease to possess the substance because they lose dominion and control over it. See, e.g.,

State v. Flinchpaugh (Kan. 1983), 659 P.2d 208; People v. Spann (Cal. App. 1986), 232 Cal.

Rptr. 31; State v. Downes (Or. App. 1977), 572 P.2d 1328.

                                               5
¶20    In the alternative, R.L.H. argues that if this Court concludes that the presence of an

illegal substance in a person’s blood or urine constitutes circumstantial evidence of prior

possession, such circumstance is not sufficient to prove guilt beyond a reasonable doubt in

criminal proceedings because it is impossible to determine from a urinalysis or blood test

when or how the substance entered the body and whether it was taken knowingly.

Flinchpaugh, 659 P.2d at 212.

¶21    R.L.H. next argues that if the Montana Legislature had intended to criminalize

possession of dangerous drugs by ingestion or consumption, it would have explicitly done

so. Since this language is absent from both the statutory language criminalizing the

possession of dangerous drugs found in § 45-9-102, MCA, and the statutory definition of

“possession” found in § 45-2-101(58), MCA, R.L.H. argues that the Montana Legislature

did not contemplate possession by ingestion. R.L.H. notes that Senate Bill No. 439,

proposing to include “consumption by any means” in the statutory definition of possession,

was defeated in the 2003 legislative session. She argues that this is further proof that the

Legislature did not intend to criminalize possession by ingestion. See State v. Schroeder

(S.D. 2004), 674 N.W.2d 827, 831 (holding a positive urinalysis is sufficient to support a

conviction for possession where the legislature amended the statute governing the definition

of a controlled substance to include substances once they have been absorbed in the body).

¶22    In jurisdictions which have enacted separate statutes that criminalize both the “use”

and the “possession” of dangerous drugs, courts have held that evidence of use, such as a

positive urinalysis, cannot also be used to support a separate charge for possession. See, e.g.,

Spann, 232 Cal. Rptr. at 35; Downes, 572 P.2d at 1330. However, Montana has not adopted

                                               6
statutes creating such separate offenses, and the reasoning of such cases does not apply.

¶23    We do conclude that once a substance is ingested and then assimilated into the

bloodstream, the person who ingested it does cease to exercise dominion and control over

the substance.    See, e.g., Spann, 232 Cal. Rptr. at 32; Downes, 572 P.2d at 1330;

Flinchpaugh, 659 P.2d at 210; State v. Thronsen (Alaska App. 1991), 809 P.2d 941, 942.

However, like many of those jurisdictions which have addressed this issue, we also conclude

that the presence of an illegal substance in the body constitutes circumstantial evidence of

prior possession of that substance. The theory is that in order to have ingested the drug the

person had to have possessed it, if even for a short period of time. See, e.g., United States

v. Blackston (3d Cir. 1991), 940 F.2d 877, 887. We also agree with those courts that have

reached the logical conclusion that loss or destruction of evidence by ingestion prior to arrest

should not be allowed to automatically defeat a possession charge. See, e.g., People v.

Palaschak (Ca. 1995), 893 P.2d 717, 720.

¶24    In Montana, to constitute an offense, the possession of a dangerous drug must be

knowingly. Sections 45-9-102; 45-2-103(1), MCA. In order to prove that the possession

of a dangerous drug is with knowledge, it is necessary for the state to present evidence that

the person charged with the offense was aware that they possessed the dangerous drug, or

that such person was aware of a high probability that such substance is a dangerous drug.

Section 45-2-101(34), MCA. Further, to establish criminal possession of a dangerous drug,

the state must present evidence that such possession was voluntary. Section 45-2-202,

MCA. Based on Montana’s statutory definitions we conclude that while the presence of a

dangerous drug in one’s body constitutes a circumstance that indicates prior possession of

                                               7
that substance, it is insufficient, standing alone, to sustain a conviction for possession of

dangerous drugs. This is so because without more than proof that a person had a dangerous

drug in their system, there is no evidence to establish that such drug was knowingly and

voluntarily ingested.

¶25    However, where there exists sufficient direct or circumstantial evidence of past

possession, over and above evidence of mere use or ingestion, that is sufficient to sustain a

conviction for possession at the time of ingestion, rather than possession at the time of arrest.

See Palaschak, 893 P.2d at 720; Blackston, 940 F.2d at 891 (holding where the defendant

had three positive urinalyses plus admitted drug use, it was sufficient to establish

possession).

¶26    We conclude that the presence of a controlled substance in a person’s blood or urine

constitutes sufficient circumstantial evidence to prove prior possession beyond a reasonable

doubt only when accompanied by other corroborating evidence of knowing and voluntary

possession, such as an admission of drug use. See Flinchpaugh, 659 P.2d at 212; Blackston,

940 F.2d at 891; State v. Lewis (Minn. Ct. App. 1986), 394 N.W.2d 212, 217.

¶27    In this case, R.L.H. was charged with possession of dangerous drugs “on or about”

December 19, 2002. She does not dispute that she was charged with possession prior to

ingesting the drugs. Charging R.L.H. with possession on or about December 19, 2002, is

sufficient to give her notice that she was being charged with possession at the time she

ingested the drugs that were found to be in her system on December 16, 2002.

¶28    A minute entry states that R.L.H. appeared with her counsel in Youth Court on

January 2, 2003, and admitted the allegations of the Second Petition to Revoke. She also

                                               8
signed a document entitled Juvenile Acknowledgment of Rights wherein she admitted the

allegations of that petition. Such petition charged that “on December 16, 2002, [R.L.H.]

tested positive for, and admitted to using, illegal drugs, specifically methamphetamine.”

This admission, presented to the jury at trial, provides direct evidence that R.L.H. knowingly

and voluntarily possessed the dangerous drug methamphetamine, as charged. Thus, the State

presented sufficient direct evidence to corroborate the circumstantial evidence of the

urinalysis test which was positive for methamphetamine.

¶29    However, as the State concedes, R.L.H. made no admission that she used opiates or

marijuana. Thus, there was no corroborating evidence to support the uranalysis test which

was positive for these substances. The determination that R.L.H. committed the offenses of

felony possession of opiates and misdemeanor possession of marijuana must be reversed and

the charges dismissed.

                                       ISSUE TWO

¶30    Did the Youth Court err in admitting into evidence R.L.H.’s admission that she

used methamphetamine on or about December 19, 2002?

¶31    R.L.H. argues that the Youth Court erred in not excluding her admission entered on

January 2, 2003, because she was not explicitly advised that the admission could be used

against her in subsequent criminal proceedings.

¶32    R.L.H’s admission was indeed a self-incriminating statement, which she could not

have been compelled to make. However, the Fifth Amendment of the United States

Constitution, and Article II, Section 25, of the Montana Constitution speak of “compulsion.”

If the State has not compelled a person to respond, the privilege against self-incrimination

                                              9
does not attach. A person claiming the benefit of the privilege must invoke it. A person may

lose the benefit of the privilege without making a knowing and intelligent waiver if she

simply fails to assert it. State v. Fuller (1996), 276 Mont. 155, 160, 915 P.2d 809, 812.

Thus, we will not reverse the Youth Court’s disposition simply because R.L.H. was not

explicitly advised that her admission of methamphetamine use could be later used against

her should she violate the terms of her continued probation. If the statement was not

compelled, that is, if it was voluntary, it could properly be used at the trial on the subsequent

charge of possession of methamphetamine contained in the Third Petition to Revoke R.L.H’s

probation.

¶33    The substance of R.L.H’s claim is that her admission was not voluntary because she

was placed in a position where she was compelled to admit the offense. R.L.H. argues that

this Court should rely on the decisions of those state courts which have held that

incriminating testimony given by a probationer at a probation revocation hearing is

inadmissible, except for purposes of impeachment or rebuttal, in subsequent criminal

proceedings against the probationer arising out of the same violations for which probation

was revoked. See California v. Coleman (Ca. 1975), 533 P.2d 1024, 1042; McCracken v.

Corey (Alaska 1980), 612 P.2d 990; State v. Begins (Vt. 1986), 514 A.2d 719.

¶34    In each of the cases relied on by R.L.H., criminal charges were filed against the

probationer along with the petition to revoke. Thus, the probationer was compelled to make

a decision whether to testify on their own behalf at the probation revocation hearing, in an

attempt to convince the court that even if they did whatever they were accused of, their

probation should not be revoked, and thereby risk self-incrimination in the subsequent

                                               10
criminal trial, or to invoke their Fifth Amendment right against self-incrimination. To

alleviate this dilemma, the California Supreme Court in Coleman fashioned a judicial

exclusionary rule whereby any incriminating testimony offered by the probationer during the

probation revocation hearing would be inadmissible against the probationer during

subsequent criminal proceedings on related charges, so long as the probationer made a timely

objection during the probation revocation proceedings. Coleman, 553 P.2d at 1042.

¶35    In Coleman the California Supreme Court stated that the federal law was at that time

in a state of confusion. Coleman, 553 P.2d at 1034. Since Coleman was decided in 1975,

the United States Supreme Court decided Minnesota v. Murphy (1984), 465 U.S. 420, 104

S.Ct. 1136, 79 L.Ed.2d 409, and this Court relied on Murphy in deciding Fuller. There is

now less confusion. As stated above in ¶ 32, the right not to incriminate one’s self is

generally not self-executing. It must be invoked. However, there is an exception to the

general rule that a defendant must invoke the privilege. That is, where the defendant is not

free to admit, deny, or refuse to answer, the privilege is deemed self-executing. Fuller, 276

Mont. at 161, 915 P.2d at 812 (citing Murphy, 465 U.S. at 429, 104 S.Ct. at 1143).

¶36    In this case the State had not filed a petition seeking a separate determination that

R.L.H. had committed the offense of criminal possession of dangerous drugs. The petition

to revoke her probation indicates that it did not intend to do so. The State desired the

admission so that it could revoke her probation and send her to treatment. Thus, R.L.H.

appeared in Youth Court on January 2, 2003, and with the advice and assistance of counsel

made the admissions in question only after being advised that such would be used to revoke

her probation. She was further advised in the written admission form that the disposition

                                             11
could include placement in a State Correctional Facility with restrictions on her release. In

other words, she was aware that if she admitted methamphetamine use her probation would

be revoked, she would be placed out of her home, and her liberty could be restricted.

¶37    R.L.H. admitted that she had used methamphetamine as a part of an agreement with

the County Attorney whereby she would admit the charged offenses in exchange for a

recommendation that she be placed at Shodair for treatment. The agreement contemplated

that her probation would be revoked. She received the benefit of her bargain, and was

placed at Shodair on probation. It was only later, after she violated the terms of her

probation, that the formal petition was filed for the purpose of making a determination that

she indeed committed the offense of criminal possession of dangerous drugs, which would

be a felony crime if she were an adult. As noted by the Youth Court in response to her

attorney’s objection to the introduction of R.L.H.’s admissions into evidence:

       [T]he position you’re taking, quite simply, is that your client can come before
       the [c]ourt and admit the allegations that have been lodged against her. Then,
       if the rehabilitation plan fails, that none of those admissions should be able to
       be used against her, even though she: A) was advised of her rights, filed an
       acknowledgment of those rights, which included the right to remain silent, and
       if she said anything, it may be used against her; and B) the waiver of those
       rights in which she states that she understands that by entering admissions
       she’s waiving all of the rights that she was previously advised of on January
       2nd, 2003, which included . . . her right not to incriminate herself in this or
       any other proceeding related to this matter.

       She was advised that if she testified or that if she made admissions, that she
       gave up her right not to incriminate herself. She was represented by counsel
       ....

       The simple fact is that when you admit to committing an offense, those
       admissions may be used against you if you’ve been properly informed of your
       rights, which [R.L.H.] was.


                                              12
¶38    That admissions are made voluntarily is all that is required for a confession to be

admissible in a Youth Court proceeding. Matter of C.L., 2004 MT 71, ¶¶ 9-17, 320 Mont.

369, ¶¶ 9-17, 87 P.3d 462, ¶¶ 9-17; see also State v. Stevens (1921), 60 Mont. 390, 401, 199

P. 256, 259. The State did not place R.L.H. in a position where she was coerced into

waiving her right to not incriminate herself by a threat to penalize her if she chose to invoke

it. She was not presented with a classic penalty situation as described in Murphy, 465 U.S.

at 426-27, 104 S.Ct. at 1141-42, (quoted in Fuller, 276 Mont. at 162, 915 P.2d at 813),

wherein the State either expressly or by implication asserts that invocation of the privilege

against self- incrimination would lead to the revocation of her probation or some other type

of sanction. Even though the dissent posits otherwise, there was no coercion by the State.

The State had already petitioned to revoke her probation, and the use of methamphetamine

was the main allegation of why. What the State fairly offered was the carrot of a placement

at Shodair if she admitted her methamphetamine use. She would have not suffered any

penalty if she remained silent. The result of her silence would have been that the State was

put to its proof. If the State was successful anyway, she may have lost the recommendation

for a placement at Shodair. R.L.H. was required to decide whether to forego her Fifth

Amendment right in exchange for the treatment recommendation. However, such was not

improper and did not place her in a classic penalty situation because she would have lost

nothing by invoking her privilege. R.L.H. was in a classic plea bargain situation. She

gained the recommendation that she be treated at Shodair in exchange for her admission.

Further, she made no objection to the later use of the admissions if she were to violate the

terms of the probation.

                                              13
¶39    Under these circumstances, the Youth Court did not err in admitting R.L.H.’s

admissions into evidence and in taking judicial notice of R.L.H.’s waiver of her right against

self-incrimination.

                                    IV. CONCLUSION

¶40    We affirm the disposition of the Youth Court finding that R.L.H. is a delinquent youth

by virtue of her use of methamphetamine and committing her to the custody of the

Department of Corrections for placement at Riverside Correctional Center. We reverse the

Youth Court disposition finding that R.L.H. committed the offenses of possession of opiates

and possession of marijuana on or about December 19, 2002.



                                                         /S/ JOHN WARNER




We Concur:

/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




Justice Jim Rice concurring.

¶41    I concur with the Court’s opinion.

¶42    We hold that a positive drug test, “standing alone,” is insufficient to sustain a

conviction for drug possession. We do so because, without more, a positive test result is


                                             14
insufficient to establish the mental state which is an element of the offense. I would add,

however, that “[a] person’s mental state rarely can be proved by direct evidence; it usually

must be inferred from the facts and circumstances about which the witnesses testify.” State

v. Bay, 2003 MT 224, ¶ 16, 317 Mont. 181, ¶ 16, 75 P.3d 1265, ¶ 16 (citing State v.

Longstreth, 1999 MT 204, ¶ 34, 295 Mont. 457, ¶ 34, 984 P.2d 157, ¶ 34.) Various kinds

of evidence may serve to provide a basis to infer one’s mental state in this instance. For

example, multiple positive tests were found sufficient, for revocation purposes, in United

States v. Oliver (8th Cir. 1991), 931 F.2d 463. In Brown v. State (Tex. Ct. App. 1988), 760

S.W. 2d 748, the large concentration of marijuana in defendant’s body was sufficient, upon

expert testimony, to defeat his claim that he had passively inhaled smoke from others’ use

and thereby establish culpability. Although, as the Court notes, a defendant’s admission of

drug use may provide the basis to infer possession, other kinds of evidence, depending on

its probative value, may do so also.


                                                 /S/ JIM RICE


Chief Justice Karla M. Gray joins in the foregoing concurrence of Justice Jim Rice.


                                                 /S/ KARLA M. GRAY




Justice Patricia O. Cotter dissents.

¶43    I dissent.




                                            15
¶44    As the Court notes at ¶ 36, the State represented in its petition to revoke R.L.H.’s

probation that it had no intention of seeking a separate determination that R.L.H. had

committed the offense of criminal possession of dangerous drugs. R.L.H. was therefore

explicitly led to believe that the admissions she would make in court would be used solely

as a basis for the disposition of the State’s petition to revoke her probation.

¶45    As the majority also correctly notes, if the State has not compelled an individual to

incriminate herself, she must invoke the privilege in order for it to attach. See ¶ 32, above.

However, the majority concludes that R.L.H. was not compelled in the “classic penalty”

sense and thus lost the benefit of this privilege because she failed to invoke it. This is where

we part ways.

¶46    In Fuller, we explained that the “classic penalty situation” is that instance in which

an individual’s access to the Fifth Amendment privilege against self-incrimination is

foreclosed because the individual is threatened with a penalty should he or she invoke it.

Fuller, 276 Mont. at 162, 915 P.2d at 813 (citing Murphy, 465 U.S. at 434, 104 S.Ct. at

1145-46). In the situation at hand, R.L.H. was compelled to confess to methamphetamine

use because had she refused to do so, the State would have recommended that her probation

be revoked and that she be incarcerated; this would mean, obviously, that she would not

receive drug treatment at Shodair. Although the majority asserts that R.L.H. knew that her

admission of methamphetamine use could result in a restriction on her liberty (¶ 36),

probationary placement in a treatment program at Shodair is a far cry from incarceration.

Simply put, R.L.H. was given two options: admit and get treatment or deny and go to jail.




                                              16
¶47    The majority further asserts that R.L.H. was advised that the disposition of her

Juvenile Admission and Waiver of Rights could include placement in a State Correctional

Facility. See ¶ 36, above. This is true for the disposition of the petition to revoke on the

conviction R.L.H. already faced. The Admission and Waiver states that, among other things,

the disposition may include counseling, community service, probation, placement with the

Department of Corrections, and other serious consequences. What the Admission and

Waiver does not say is that additional charges could be filed against R.L.H. as a result of her

admission.

¶48    In Fuller, 276 Mont. at 162, 915 P.2d 813 (quoting Murphy, 465 U.S. at 434, 104

S.Ct. at 1146), we explained, “A State may require a probationer to appear and discuss

matters that affect his probationary status; such a requirement, without more, does not give

rise to a self-executing privilege. The result may be different if the question put to the

probationer, however relevant to his probationary status, calls for answers that would

incriminate him in a pending or later criminal proceeding.” (Emphasis added.) This is

precisely the situation before us. Questions put to probationer R.L.H. indeed incriminated

her in a later criminal proceeding. Furthermore, R.L.H. was never advised that her statement

could be used to support subsequent criminal proceedings against her should she violate the

terms of her continued probation. See ¶ 32, above.

¶49    A command to speak, under threat of loss of liberty, implicitly forecloses the option

of remaining silent. Fuller, 276 Mont. at 163, 915 P.2d at 814. In Fuller, the defendant was

ordered to continue his participation in a sex offender treatment program--to include the

disclosure of his offense history--or face probation revocation and incarceration. Fuller, 276


                                              17
Mont. at 162, 915 P.2d at 813. The self-incriminatory evidence Fuller then divulged caused

him to be subsequently charged with and convicted of three additional crimes. Fuller, 276

Mont. at 163, 915 P.2d at 814. In the situation before us, R.L.H. was ordered to divulge her

methamphetamine use in order to get drug treatment at Shodair, or face probation revocation

and incarceration. The self-incriminatory evidence she then divulged caused her to be

subsequently charged with and convicted of a crime. In Fuller, we concluded that if the

State chooses to compel answers to incriminating questions, it cannot use those answers

against the defendant in a later criminal proceeding. Fuller, 276 Mont. at 167, 915 P.2d at

816. The same result is compelled here.

¶50    Finally, it is troubling to me that we find it of no consequence that the State made a

representation to R.L.H. that it failed to honor. The State made an affirmative representation

during the revocation proceedings that it would not seek a separate determination that she

had committed the offense of criminal possession of dangerous drugs. True, R.L.H.

absconded. Nonetheless, it seems to me that if the State wishes to reserve the right to use

a defendant’s incriminating statement against her should she violate the probation conditions,

the State should make this clear on the record before the admissions are made. A properly

informed defendant can then either decline to make the admission and suffer the

consequences, or proceed with the full knowledge that should she fail to comply with the

terms of probation, her statements may and likely will be used against her to support

independent felony charges at a later time. In this respect, I agree with the decision of the

California Supreme Court in Coleman, 533 P.2d 1024.




                                             18
¶51   For the foregoing reasons, I dissent from the majority’s conclusion that R.L.H.’s

incriminating statements were properly admitted as evidence at trial.



                                                 /S/ PATRICIA O. COTTER




                                            19