MARK BEST, JANE HOWELL, JOAN HURDLE, VERN KLINGMAN, TOM TOWE аnd CLARENCE WILLIAMS, Petitioners and Appellants, v. POLICE DEPARTMENT OF THE CITY OF BILLINGS and THE CITY OF BILLINGS POLICE CHIEF TUSSING, Defendants and Respondents.
No. 99-406
Supreme Court of Montana
Decided April 17, 2000
2000 MT 97 | 57 St.Rep. 396 | 299 Mont. 247 | 999 P.2d 334
Argued February 8, 2000. Submitted February 14, 2000.
For Respondents: Brent Brooks (argued) City Attorney, Billings.
For Amicus Curiae: Charles F. Moses, Attorney at Law, Billings; Palmer A. Hoovestal, Attorney at Law, Helena (for Montana Association of Criminal Defense Lawyers); Hon. Joseph P. Mazurek, Attorney General; Chris D. Tweeten (argued), Chief Counsel, Helena (for Montana Attorney General).
JUSTICE GRAY delivered the Opinion of the Court.
¶ 1 Mark Best and others (collectively, Citizens) filed an Application for Writ of Mandate against the Police Department of the City of Billings and City of Billings Police Chief Ronald Tussing to compel Chief Tussing to direct his police officers to сomply with an order suppressing evidence entered by Judge Maurice R. Colberg, Jr. (Judge Colberg). The Thirteenth Judicial District Court, Yellowstone County, the Honorable G. Todd Baugh, presiding, denied the application and the Citizens appeal. We affirm.
¶ 2 The dispositive issue on appeal is whether the District Court erred in denying the Citizens’ application fоr writ of mandate.
BACKGROUND
¶ 3 The relevant facts in this case are not disputed. In Cause Numbers DC 98-214 and DC 98-219, in the Yellowstone County District Court, the State of Montana charged Mark Best (Best) and Rae Trotchie (Trotchie) with certain drug-related offenses. Best and Trotchie moved to suppress evidence obtained after a stop of the vehicle in which they were traveling on the grounds it was obtained in violation of their constitutional search and seizure rights.
¶ 4 On November 17, 1998, after an evidentiary hearing, Judge Colberg entered Findings of Fact, Conclusions of Law and Memorandum granting the motions to suppress. The court found that the vehicle, which was registered to Best, had been stopped for a suspected trаffic offense and that the officer requested—and obtained—identifying information from the vehicle‘s occupants. Intending to write a warning citation for failure to have an illuminated license plate, the
¶ 5 Prior to the dog‘s arrival, another officer responded to the scene of the traffic stop. Based on that officеr‘s recognition of Trotchie, she was arrested for obstruction of justice for providing false identification. After Zidack arrived with his dog, pat-down searches were conducted of the vehicle‘s occupants. The search of Best produced a small box containing women‘s jewelry and what appeared to be marijuana; the box could not reasonably have contained a weapon.
¶ 6 The drug-detecting dog was then deployed and, upon circling the vehicle, “alerted” as to an indication by odor of the presence of illicit drugs. The dog then entered the vehicle through an open door and appeared to be detecting the odor of illegal drugs in the vicinity of the glove box. Officers then searched the vehicle and found drugs and drug paraphernalia upon which criminal charges against Best and Trotchie subsequently were based.
¶ 7 Judge Colberg concluded that the officer had a particularized suspicion to stop the vehicle for a suspected traffic offense. He also concluded that, while the dog sniff was a search, it was the type of search for which particularized suspicion, rather than probable cause, was required. In that regard, the court concluded “[t]here was an insufficient particularized suspicion of illegal activity involving possession of drugs or contraband to allow the investigаtive tool of a dog sniff.” Alternatively, the court concluded that the intrusion of the dog into the vehicle constituted a search without probable cause. Accordingly, the court granted the motions to suppress. Judge Colberg added a lengthy Memorandum to the Findings of Fact and Conclusions of Law which further explained his reasoning and which included his оbservation that the application of legal principles to cases in the search and seizure arena seems to “substantially depend on the factual nuances of each case.” Judge Colberg ended his Memorandum as follows:
In conclusion, the motions to suppress of Best and Trotchie should be granted and all of the drugs аnd contraband found within the interior of the vehicle and alleged marijuana found in
the 3 inch by 5 inch box located on the person of Best should be suppressed and not allowed to be utilized at trial.
¶ 8 The day after Judge Colberg‘s ruling, Best apparently was again in a vehicle stopped for a traffic violation. Best alleges that law enforсement officers again brought a drug-detecting dog to the scene which sniffed the exterior of the vehicle without particularized suspicion to believe illegal drugs were present. Without regard to the veracity of Best‘s allegations, the record reflects that, on that date, another Yellowstone County District Court Judge issued a search wаrrant authorizing the impoundment and search of the vehicle without requiring the particularized suspicion discussed in Judge Colberg‘s suppression order of the day before.
¶ 9 Subsequent to Judge Colberg‘s ruling, Chief Tussing was quoted in the Billings Gazette as stating he would not direct his officers to change their procedures to follow Judge Colberg‘s ruling on Best and Trotchie‘s motions to suppress. He also stated that, while failure to establish particularized suspicion in some cases might result in the dismissal of those cases, he would rely on the “court of public opinion.” Chief Tussing later wrote a letter to the Billings Gazette stating that Judge Colberg‘s ruling was “not ‘the law’ but that, if the Montana Supreme Court did not reverse the ruling, the ruling would be precedent by which he аnd his officers would be bound.”
¶ 10 On December 23, 1998, the Citizens filed an Application for Writ of Mandate to compel Chief Tussing to direct his officers to comply with Judge Colberg‘s ruling. Thereafter, and prior to a hearing on the application, the Billings Gazette reported two more incidents in which Best had been stopped and a drug-detecting dog deployed. Again, Chief Tussing responded publicly to those reports stating, among other things, that Judge Colberg‘s “ruling did not order the police to stop making such searches.”
¶ 11 Chief Tussing subsequently moved to dismiss the application for writ of mandate and the matter was fully briefed and submitted to Judge Baugh on the basis of the parties’ briefs. Concluding that the Citizens had not established entitlement to a writ of mandate, Judge Baugh denied their application. The Citizens appeal.
¶ 12 It is important to note that Judge Colberg‘s ruling on Best and Trotchie‘s motions to suppress is not on appeal in this case. Therefore, we do not address the merits of that ruling or substantive arguments presented by the parties relating to search and seizure law in general and dog sniffs in particular.
¶ 13 Did the District Court err in denying the Citizens’ application for writ of mandate?
¶ 14
¶ 15 Judge Baugh denied the Citizens’ application for writ of mandate based on his conclusion that no clear legal duty was owed by Chief Tussing as a result of Judge Colberg‘s ruling. A district cоurt‘s denial of a writ of mandate calls for a conclusion of law which we review to determine if it is correct. Larson v. State, Dept. of Justice (1996), 275 Mont. 314, 317, 912 P.2d 783, 785.
¶ 16 The Citizens advance a number of arguments on appeal which are unassailable and which are not disputed by Chief Tussing. They contend, for example, that it is the province and duty of the judiciary “to say what the law is” and, indeed, this has been well established since Marbury v. Madison (1803), 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60. Closely related to this fundamental principle is the doctrine of separation of powers between branches of government and the corresponding duty of members of the executive branch, including local law enforcement officials, to comply with lawful court orders. See, e.g.,
¶ 17 From these premises, and in opposition to Judge Baugh‘s detеrmination that court opinions are not usually an appropriate foundation for mandamus, the Citizens contend “there is no reason to believe that a district court ruling may not constitute a legal duty of a public officer that may be compelled by writ.” In this regard, they cite to Boung Jae Jang, 560 N.Y.S.2d at 312 (citations omitted), for the prop-
¶ 18 The question before us here, however, is whether Judge Colberg‘s grant of Best and Trotchie‘s motions to suppress, on the basis that insufficient particularized suspicion existed to deploy a drug-dеtecting dog, imposed a clear legal duty on Chief Tussing which can be compelled by writ of mandate. The Citizens contend that Judge Colberg‘s ruling did just that; namely, that Judge Colberg determined the police “practice” at issue—the use of drug-detecting dogs without sufficient particularized suspicion—to be unconstitutional and that Chief Tussing has a clear legal duty to direct his officers to discontinue that particular “practice.”
¶ 19 The first flaw in the Citizens’ contention is their failure to point to any specific language in Judge Colberg‘s Findings of Fact, Conclusions of Law and Memorandum determining that a “practice” of the Billings Police Department is unconstitutional. Indeed, close scrutiny of Judge Colberg‘s ruling establishes that no such language is contained therein. It is true, as the Citizens contend, that Judge Colberg expressed a concern that the alleged traffic violation on which the stop was made was relatively insignificant and “one wonders if such a stop would have been made under different circumstances in a different part of town rather than thе south side of Billings.” Judge Colberg also commented that calling a drug-detecting dog to every traffic stop “appears” to be the Billings Police Department‘s modus operandi. However, these comments and concerns fall far short of a determination that a “practice” was at issue in the Best and Trotchie cases and was, as a matter of law, unсonstitutional.
¶ 20 In addition, Judge Colberg‘s ruling was made “[b]ased on the evidence” submitted at the evidentiary hearing and related solely to Best and Trotchie‘s motions to suppress certain evidence on the basis of law enforcement actions in stopping a particular vehicle. First, Judge Colberg entered extensive Findings of Fact detailing the events surrounding the traffic stop of the vehicle in which Best and Trotchie were passengers and the eventual deployment of the drug-detecting dog based on the knowledge of one of the officers “that Best had previously been involved in drugs[.]”
¶ 21 Judge Colberg then made Conclusions of Law “[f]rom the foregoing findings of fact[.]” The first conclusion was that the оfficer had a
¶ 22 Moreover, the limitations of Judge Colberg‘s ruling were recognized repeatedly in his lengthy Memorandum. Judge Colberg stated “[a]t the outset it is noted that cases in the area in which we are dealing are very difficult to reconcile and the legal principles seem to substantially depend on the factual nuances of each case.” In addition, “[e]ach case must be examined based on its particular facts to determine whether a particularized suspicion exists to justify an investigatory stop.” Finally, “‘the issue of whether or not a particularized suspicion existed in order to justify an investigatory stop is factually driven.‘” These observations by Judge Colberg are, of course, in accord with our numerous casеs holding that whether particularized suspicion exists “is a factually driven inquiry dependent upon the totality of circumstances giving rise to the investigative stop.” See, e.g., State v. Roberts, 1999 MT 59, ¶ 13, 293 Mont. 476, ¶ 13, 977 P.2d 974, ¶ 13 (citation omitted). Because of the fact-specific nature of cases questioning the existence of particularized suspicion vis-a-vis a motion to supprеss evidence, both the law and the language of Judge Colberg‘s ruling controvert the Citizens’ contention that such a ruling imposes a clear legal duty on a law enforcement official to cease a “practice.”
¶ 23 Nor is the Citizens’ reliance on the underlying purposes of the “exclusionary rule“—that is, the rule excluding use of evidencе obtained by law enforcement personnel via illegal or unconstitutional means—of any help to their position here that Judge Colberg‘s ruling imposed a clear legal duty on Chief Tussing. It is true, as the Citizens assert, that “[t]he exclusionary rule is meant to deter police from using illegal and unconstitutional methods of gathering evidence.” State v. Christensen (1990), 244 Mont. 312, 319, 797 P.2d 893, 897; see also State v. Long (1985), 216 Mont. 65, 71, 700 P.2d 153, 157. The intent of thе rule is to indirectly deter future, or prospective, conduct through the suppression of evidence in a given case based on a judi-
¶ 24 Finally, the cases on which the Citizens rely to advance their argument that Judge Colberg‘s ruling directs prospective relief—and thereby imposes a clear legal duty—are readily distinguishable. In Boung Jae Jang, 560 N.Y.S.2d at 309, a court order directed at demonstrators also directed the New York Police Department to enforce its provisions; police officers attempted to enforce the order, but gave up upon meeting resistance. A writ of mandamus subsequently was issued to compel the Police Department to enforce the terms of the earlier order. In the present case, unlike Boung Jae Jang, Judgе Colberg‘s ruling on the motions to suppress concluded that specific past actions had not met the legal standard required to deploy a drug-sniffing dog. It did not expressly direct action or enforcement by Chief Tussing.
¶ 25 Similarly, in People v. Cortez (N.Y. City Crim. Ct. 1990), 564 N.Y.S.2d 963, 964-65, the court issued a subpoena duces tecum ordering the New York Police Department to produce certain records in court in conjunction with a proceeding to determine questions relating to a stop and arrest; the Police Department neither complied nor moved to quash, but erased one of the tapes at issue. The court concluded that the erasure was an unjustifiable defiance of a court order subject to appropriate punishment. Cortez, 564 N.Y.S.2d at 966. Again, Cortez directed a specific аction by the Police Department; Judge Colberg‘s ruling on the motions to suppress did not. Neither Boung Jae Jang nor Cortez has any application to the present case in which no directory language is contained in Judge Colberg‘s ruling.
¶ 26 We conclude that the Citizens have not established the first prong of the test for issuance of a writ of mandate; namely, they have not еstablished that Judge Colberg‘s ruling on Best and Trotchie‘s motions to suppress entitled them to the performance of a clear legal duty by Chief Tussing. As a result, issuance of the writ is barred. See
¶ 27 We hold that the District Court did not err in denying the Citizens’ application for writ of mandate.
¶ 28 Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, REGNIER, TRIEWEILER, HUNT and LEAPHART concur.