*1 OF MONTANA, STATE Respondent, Plaintiff v. ELISON,
GREGORY
Appellant.
Defendant
99-323.
No.
January
2000.
on Briefs
Submitted
Decided
2000.
November
288.
2000 MT
St.Rep.
For Hon. P. Respondent: Paulson, General, Attorney Helena; John Assistant Dennis Paxinos, Kolar, County Attorney; Deputy Yellowstone Sheila R. County Attorney, Billings. opinion
JUSTICE REGNIER delivered the of the Court. Fact, Elison Gregory appeals Findings from the Court’s Con- ¶1 Law, clusions of by Memorandum Order issued the Thirteenth Court, Judicial District Yellowstone County, denying his motion to suppress. in part, We affirm reverse in part, proceed- and remand for ings with opinion. consistent Elison’s appeal following raises the issues:
¶2 1. Whether District Court erred in finding that Officer Conrad had a particularized suspicion justify sufficient to stopping Elison’s vehicle? 2. Whether the concluding District erred in that Elison warnings
was not entitled to prior preliminary question- Miranda ing? Whether District Court erred in concluding that Elison’s lawfully exception
vehicle was searched under an to the warrant re- quirement?
.BACKGROUND 1,1998, August On after shortly midnight, Billings Police Officer patrol Scott Conrad was on routine on Fourth Avenue eastbound Billings, Jerry North in riding Montana. Gibson was with Officer pa- Conrad as an authorized citizen observer. While Officer Conrad’s passing through trol vehicle the intersection of Fourth Avenue Street, North and 26th truck North Gibson saw the driver of a white in the vehicle immediately lane of Officer Conrad’s *4 hunched a steering smoking pipe. over the wheel from brass-colored truck, the was later eye Gibson made contact with driver of the who patrol identified Elison. Elison as Gibson testified that noticed the startled, car, pipe lighter and the the appeared lowered and below steering wheel. intersection, the in- patrol proceeded through As the car Gibson he Officer that the driver of a white truck smok-
formed Conrad saw that ing marijuana pipe from what he believed be a and the driver car, and patrol appeared attempted noticed the startled hide any activity. had not Officer Conrad witnessed of this Officer pipe. his and his patrol Conrad located the white truck behind car reduced get so pass to allow the truck to his car that he could behind speed his stop. Elison’s vehicle and make traffic Elison slowed vehicle. Finally, brought complete stop Officer Conrad his vehicle so that lights his pass Elison would him. He then activated overhead and si- stopped and Elison’s vehicle. ren Elison his truck. Officer Conrad instructed Upon stopping, exited return Elison Officer Conrad complied.
Elison to to his vehicle and truck, he could approached testified that when he Elison’s immedi- that ately marijuana. ap- He also testified Elison smell odor nervous, glassy, he eyes his were red and and would not sit peared informed stop-advis- ofthe for the still. Officer Conrad Elison reason marijuana him of and the odor of which ing Gibson’s observations reaching to be appeared Conrad had detected. Elison between truck. Elison to show him seat cushions of the Officer Conrad asked exit subsequently requested hand and that Elison his vehi- cle. truck, directed him to the After Elison exited the Officer Conrad him, asked him pickup, pipe
rear of the frisked where him reported seeing smoking had from located. Elison Gibson he thrown it out the window. Officer told Officer Conrad that had marijuana there was Conrad then asked Elison whether he the seat. marijuana Elison had tucked behind replied truck. during leave Conrad testified that Elison was free to Officer vehicle, leaving Elison Officer Conrad returned questioning. min- police had arrived on the scene few with another officer who opened had Elison. Conrad stopped utes after Officer Conrad Officer a film door, seat and discovered canister tilted the driver’s forward vehicle, also he opened. searching he removed and While as a near film canister as well two-inch paper bindle observed the floor the seat and a razor blade on board. tube on in- canister to Elison Elison Officer Conrad showed the film in- Officer Conrad then marijuana. him it contained formed *5 him, arrest, handcuffed and him put formed Elison that he was under time, in seat At that Officer patrol the rear of his car. Conrad advised rights asked for to search Elison of his Miranda and Elison consent gave Elison verbal written Schieno Sergeant truck. and consent. County of the Department Yellowstone Sheriffs arrived with Sergeant drug-sniffing deployed dog trained canine. Schieno his and subsequently dog advised Officer Conrad that the had indicated the presence drugs in the cab of truck. this informa- Upon receiving tion, bindle, paper Officer Conrad searched the vehicle. He seized the straw, and razor previously blade he had observed and located open compartment another bindle in an in the dash of the truck. Gib- son and another pipe officer located a brass few blocks down the positive marijuana street. The items seized later tested for and meth- amphetamine. OnAugust5,1998, charged felony possession
¶11 Elison was with dangerous drugs, dangerous misdemeanor possession drugs, and possession drug paraphernalia. misdemeanor Elison filed a Motion to and Suppress Request Evidentiary for The Proceeding. District evidentiary hearing Court held an regarding sup- Elison’s motion to and, press January 22,1999, on the court denied Elison’s On motion. 17,1999, February pled felony Elison guilty possession danger- to ous The drugs. granted court the State’s motion dismiss the other 5,1999, April counts. On the court entered an Order Deferring Impo- deferring sition of Sentence years Elison’s sentence for two with pro- bationary conditions, including $500 fine. Elison appeals court’s suppress. denial of his motion to OF
STANDARD REVIEW We review a district denial motion suppress court’s of a to de findings clearly erroneous, termine whether the court’s of fact are whether findings correctly those were as a matter applied of law. Dawson, MT 171, 13, 295 212, 916, State v. Mont. ¶ ¶ ¶
ISSUE ONE finding Whether the District Court erred in that Officer Conrad suspicion justify had a particularized stopping sufficient to Elison’s vehicle? a particular- The District found that Officer Conrad had an objective committing
ized and for that Elison suspecting basis was, therefore, offense and entitled to Elison’s truck. Elison con- stop finding clearly erroneous because tends that the District Court’s assumptions Officer Conrad did not as the basis of Gibson’s inquire observations, regarding particular assumption Gibson’s pipe marijuana. Elison also contends using Elison was to smoke did make observations himself which cor- that Officer Conrad report. roborated Gibson’s to United The Fourth Amendment States Constitution II, protect persons 11 of Constitution
Article Section the Montana seizures, against including investi unreasonable searches and brief 277, Jarman, gatory stops stops. such as traffic State v. MT ¶ 967 P.2d 9. We have held that order to vehicle, State cause to the burden is on the show sufficient (1) objec “particularized suspicion:” law had show that enforcement *6 can police tive from an officer make certain experienced data (2) inferences; occupant that ofthe vehi resulting suspicion and the (1981), engaged Gopher cle has in State v. 193 wrongdoing. is or been 189, 194, 631 293, 296 in United (adopting Mont. P.2d test announced (1981), 690, 66 621); 411, 101 S. Ed. 2d v. Cortez 449 U.S. Ct. L. States 147, Gilder, 207, 8, 295 483, 8, 985 MT Mont. P.2d 8.¶ State v. 1999 ¶ ¶ time at the of an in particularized suspicion Whether exists by consider vestigative stop question is a offact which determined 247, v. MT ing totality Lafferty, the ofthe circumstances. State 1998 ¶ 10, 291 10, 967 363, 157, evaluating totality Mont. P.2d 10. “In the ¶ ¶ circumstances, content, quantity, should consider the or court reliability, or the information available degree and quality, 156, 161, 951 37, (1997), P.2d officer.”State v.Pratt 286 Mont. 40 2412, 2416, (1990), 325, 330, 110 S. (citing 496 U.S. Ct. Alabama v. White 309). 301, investigative stop from the 110 Ed. 2d an stems L. Where test to informant, adopted three-part citizen this Court has tip of a “(1) reliability the citizen informant’s information: determine to the authorities informant identified herself whether citizen liability report is civil criminal if the exposed and thus herself to and (2) per report upon citizen informant’s false; whether the is based (3) own observations; and whether the officer’s observations sonal Roberts, 1999 MT information.” State v. the informant’s corroborated Pratt, 979, 17, 286 59, 17, (citing 977 P.2d ¶ ¶ 42-43). P.2d at Mont. Pratt was met. first of the test agrees Elison that the element next to Of- identity: sitting Gibson was knew Gibson’s
Officer Conrad
the second
report.
argues
Elison
he made his
ficer Conrad when
element ofPratt was not met in that Gibson did not have a sufficient
knowledge.
report
basis of
did not es-
Elison contends that Gibson’s
Officer
adequate
suspicion
tablish an
foundation for
Conrad’s
be-
cause
Conrad did not
was trained in
Officer
know whether Gibson
Therefore,
maintains,
narcotics identification.
Elison
there
nowas
suggest
smoking
evidence
that Gibson’s
that Elison was
report
marijuana
reliable. The State contends that the facts of the in-
was
stant
indistinguishable
agree.
case are
from Pratt. We
Pratt,
approval portion
18 In
we cited
ofour decision in State
with
v.Lee
Mont.
938 P.2d
which we underscored
importance
providing
the informant
law enforcement
with
basis
for his
her belief that a
was
particular person
engaged
activity. Pratt,
162-63,
criminal
286 Mont. at
em
at 41. We
phasized
report
that in Lee the
sufficiently
informant’s
was not
reli
able because the
did
provide
dispatcher
informant
with
driving
basis for her belief that Lee was
under the influence of alcohol
Pratt,
163-64,
or speeding.
Elison was
a pipe
marijuana
from
that looked like a
pipe, as
well as
personal
his
observations that formed the basis for that belief.
Gibson told Officer Conrad that
smoking something
he saw Elison
from a
and
pipe
appeared
brass-colored
that Elison
startled and low
ered
pipe
lighter
when he
observing
noticed Gibson was
him.
Regardless
ability
correctly identify marijuana,
of Gibson’s
sup
he
plied Officer Conrad with
objective
particularized
sufficient
facts
for Officer Conrad to determine for himself whether Gibson’sconclu
sion that
smoking marijuana
People
Elison was
v.
warranted. See
(Colo.1982),
Rueda
649 P.2d
(holding
report from two
*7
men
bag
maintenance
that locker held
a white
containing
powdery
they
“dope,”plus
substance which
concluded was
cir
suspicious
other
cause).
cumstances, was
probable
sufficient for
are
¶20 We
also convinced that Officer Conrad’s corroboration of
argues
Gibson’s
report
sufficient. Elison
that Officer Conrad did
not sufficiently
report
corroborate Gibson’s
because Officer Conrad
did
personally
any
activity. However,
not
not
illegal
witness
we have
an
required
illegal activity
officer
in
to
personally observe
order
Pratt,
suspicion
have a
a
particularized
justifying
stop.
traffic
In
we
informant’s
anonymous
stated that
an
in
tip
where
lacks
opinio'n,
dication of the basis for the informant’s
the officer
cor
must
offi-
tip by observing suspicious
roborate the
behavior that alerts the
Officer Conrad testified suspicious. agree. light report In of Gibson’s that Elison peared We sub- smoking pipe, had been witnessed from a Elison’s was aware he in- suspicious; reasonably it could be sequent appear behavior does by being stopped. as to avoid attempt an Elison terpreted disregard if Gibson’s inference Accordingly, even we were following marijuana, Officer Conrad had smoking that Elison was vehicle: Gib- prior to him Elison’s stopping information available from smoking ofElison report personal based on his observation son’s car and at- noticing patrol upon startled pipe, appearing brass view; corroboration from Officer Conrad’s tempting pipe hide vehicle; independent ofthe and Officer Conrad’s description Gibson’s appeared which subsequent driving behavior observation of Elison’s objec- facts These are reliable light report. Gibson’s suspicious inferences, could make certain tive from Officer Conrad data *8 years on his four of experience training, based which would lead resulting suspicion engaged to a that Elison was in wrongdoing. The finding totality District Court’s that from the of the cir
¶23 particularized suspicion jus cumstances Officer Conrad had a stopping clearly tified Elison is not erroneous.
ISSUE TWO Whether the District concluding Court erred in that Elison was not entitled to a warning prior preliminary Miranda to questioning? The District Court concluded that Elison was not entitled Miranda warnings prior preliminary questioning because Officer merely Conrad conducting investigatory an stop to determine being committed, whether a crime was and it was within his discre- investigatory tion to ask Elison questions designed identify him as a suspect reported in a crime giving before Elison Miranda warnings. Elison contends that he was warnings entitled to Miranda because Officer Conrad testified that Elison was not free to during leave preliminary questioning and questions Officer Conrad’s were not in- vestigatory they in that designed were not to determine whether Elison was a suspect reported in a crime. The Fifth Amendment to the United pro States Constitution person
vides that no “shall compelled any be criminal case to be a against witness (1966), himself.” In Miranda v.Arizona 384 U.S.
86 S. Ct. 16 L. Ed. 2d the Supreme Court addressed the problem protecting suspect’s right against compelled self-incrimination in the context of interrogation. custodial The Court held that the prosecution may not use stemming statements from interrogation custodial unless the defendant is prior advised to questioning right silent, of the any may remain statement against defendant, be used as evidence the defendant presence Miranda, has a an attorney. atU.S. By
S. Ct. at 1612.
custodial interrogation, the court meant “question
ing
by
initiated
person
law enforcement officers after a
has been
custody
taken into
deprived
[her or]
otherwise
his freedom of ac
tion in
significant way.”Miranda,
subject to “custodial they deprived if of their tody” of Miranda have been purposes for way freedom of action has any significant or their freedom of action Dawson, arrest. degree to a associated with a formal been curtailed *9 Dawson, 30. In we stated: officers has held that law enforcement previously
This Court during in- warnings suspects Miranda brief need not administer are co- even if those encounters somewhat vestigative encounters Moreover, interrogation that an is not custo- ercive. we have stated liberty sim- significant personal dial unless there is a restriction safety confinement as temporary ilar to an arrest ... and even for Miranda not render the detention “custodial” precaution does .... purposes (citations omitted).
Dawson, 35¶ upon that the trial court had also relied We noted in Dawson (1994), 248, 264 Mont. 870 in State v.Rushton this Court’s decision 1355, denying suppress motion to his statement. P.2d Dawson’s Dawson, Rushton, the determination of 33. In we stated is made on a interrogation” has occurred whether a “custodial person” a “reasonable would case-by-case basis and looks to whether place as the time and considering after such factors feel free to leave questioning, of the length and mood questioning, of the Rushton, during questioning. presence persons ofother However, consideration of 256, 870 at 1360. we note while at useful, is not whether inquiry the ultimate might these factors be leave, there feel free to but rather whether person would reasonable de freedom of movement’ of the or restraint on was a “’formalarrest Stansbury v. a formal arrest.” gree associated with California 1526, 1529, L. Ed. 2d 293. See 114 Ct. also S. U.S. (6th 2000), 284 (quoting Stansbury); 205 F.3d Coyle v. Cir. Combs (Utah 1144, 1147(observing “[i]n 1996),914 P.2d Mirquet State v. passengers, and the stop, traffic the driver of a routine context and, momentarily, are at least they stopped been though even have Allen, purposes”); leave, custody’ ‘in for Miranda free to are not stop subject of a traffic who (holding that the defendant warn was, nonetheless, to Miranda not entitled and not free to leave ings). roadside Berkemer, considered whether Supreme Court In stop traffic should be to a pursuant detained of a motorist
questioning
interrogation
purposes
considered custodial
for
of Miranda. The
acknowledged
stop “significantly
that a traffic
curtails the
passengers,
any,
‘freedom of action’ ofthe driver and
if
ofthe detained
436, 104
vehicle.” 468 U.S.
S. Ct. at 3148. The Court also noted that
under the
of most
a crime
a traffic stop
law
States
to leave
with
out permission and “fewmotorists would feel free to... leave the scene
being
they might
of traffic
without
told
do so.”468 U.S. at
However,
tucked behind the Officer hicle, police another officer who had arrived on leaving Elison with stop. after the Officer separate in a vehicle about a minute scene and retrieved a film canister. Of- pickup Conrad moved the seat ofthe and asked Elison if it contained opened ficer Conrad the canister placed marijuana. informed him that it did. Officer Conrad Elison arrest, him, patrol him in the placed Elison under handcuffed during free leave testified that Elison was not car. Officer Conrad elapsed ten minutes Gibson estimated that five to questioning. stopped Elison and the time Officer the time Officer Conrad between in the car. placed patrol Conrad Elison by The issue as defined Berkemer is whether circumstances fairly character surrounding questioning Conrad’s could be Officer from equivalent of a formal arrest when viewed ized as the functional See person position. in Elison’s perspective reasonable Berkemer, 442, 104 failed to dem S. at 3151. Elison has 468 U.S.at Ct. ar that, stop initial and his actual at time between the onstrate to those associated rest, subjected comparable to restraints he was that Officer Conrad tes points arrest. Elison to the fact with a formal during questioning that Elison was free to leave tified not However, Conrad did at rear of Elison’s vehicle. Officer occurred policeman’s “[A] to Elison. unarticulated not communicate this fact ‘in cus suspect of whether a plan bearing question has no on the time; only inquiry is how a reason tody’ at a relevant particular [his or would have understood suspect’s position in the [person] able 442, 104 3151; Berkemer, S. Ct. at accord 486 U.S. at her] situation.” Allen, 324-25, 114 1529; 13. See also at S. Ct. at Stansbury, 511 U.S. Court, County Flathead Eleventh Judicial Dist. Evans v. Montana (Mont. (discussing *3 definition of 11, 2000),2000 Feb. WL 41-5-331, pursuant custody questioning” § taken into for “youth MCA). prearrest questioning Conrad’s Elison also claims that Officer to deter designed stop of the because was scope
exceeded the inquiry crime. suspect “[T]he was a in a mine he whether their justification for initi ‘reasonably scope related in must be ” United Berkemer, (quoting Ct. at 3150 468 U.S. at S. ation.’ 873, 881, Ct. 95 S. 422 U.S. Brignoni-Ponce *11 States v. 607). may ask the regard, In this an officer detainee L. Ed. 2d identity determine the detainee’s questions of to a moderate number the officer’s confirming dispelling information try and to to obtain Berkemer, requirements Miranda attach. suspicions before questions Officer U.S. at 104 S. Ct. 3150. We think Conrad’s reasonably designed for the to dis- were related reason particularized suspicion smoking that Elison had mari- pel his been juana: he asked where the was Gibson had re- pipe Elison which observing any he asked whether Elison had mari- ported Elison juana in his vehicle. other between Elison aspects None of the interaction support subject
and Officer Conrad the contention that Elison was to interrogation prior clearly to arrest. While Elison was custodial his during prearrest to Officer questioning, not free leave Conrad’s nor leave, person would reasonable have felt free Elison was not sub ject degree to restraint on freedom of the his of movement associated placed with a formal arrest until he was handcuffed and in the back of arrest, patrol Officer Conrad’s car. Prior to Elison’s actual he was sub ject any expect to the same might restraints motorist to be sub jected to during Terry a routine Officer stop. Conrad removed him him, justifiable his from vehicle and frisked both law enforcement ac Dawson, during Terry stop.1 25; tions Terry, See seealso U.S.at 30, 88S. Ct. at (holding 1884-85 that an officer is entitled to conduct “a carefully clothing limited search ofthe persons outer of such in an at him”). tempt weapons discover be used might to assault Offi cer questions designed dispel Conrad asked Elison Officer particularized Conrad’s suspicion, justifiable also a action during Terry stop. prearrest The questioning public setting was and in presence only Berkemer, one other enforcement See law officer. 438-39, 104 468 U.S. at S. Ct. Lastly, prearrest ques at 3149-50. tioning point during was brief and at no the interval his stop between and his arrest inform did Officer Conrad Elison that detention Berkemer, 441-42, 104 would not be See temporary. 468 U.S.at S. Ct. at 3151. A person position reasonable Elison’s would have assumed that, barring discovery supporting evidence Officer suspicions, he would the questioning Conrad’s be free leave after Combs, completed. was See 284-85 that the (holding F.3d at defen dant “in custody” person because a reasonable in the defendant’s arrest). position would he under have believed was legality does Officer not contest Conrad’s frisk. 1. Elison *12 correctly the Elison’s Wehold that District Court denied motion ¶34 suppress prearrest to his statements.
ISSUE THREE concluding Whether the District Court erred in that Elison’s ve- ¶35 lawfully exception hicle searched under an to the warrant re- was quirement? lawfully The that Elison’s vehicle was District concluded probable a had
searched without warrant because Officer Conrad marijuana in the there cause to believe that there was truck and were obtaining excused a warrant. The exigent circumstances which the of finding the that probable court based its of cause on fact Officer marijuana, he to Elison in- Conrad smelled what believed be burned truck, drug dog that in and a trained marijuana dicated there was the in In a drugs reaching finding indicated of the truck.2 of presence the circumstances, mobility noted the vehicle and exigent the court the of The that a confederate could move the vehicle. court possibility the a.m., stop noted the made at 12:05 and that would also that was The a search at that hour. court have been difficult obtain warrant magistrates the are not judicial judges took notice of fact that or rea- night. at that of sonably to obtain a search warrant time available exigent of cir- finding Elison contends that the District Court’s and, result, his clearly the search of cumstances is erroneous as a au- exception requirement. to the warrant tomobile did not fall within an could that the that a confederate have possibility Elison claims prior obtaining law enforcement warrant moved vehicle and, fact, contrary to in the record was Officer support without In that he did not testimony. regard, Elison notes have Conrad’s occurred, squad he was in the car stop him passenger with when communication, no means of Officer Conrad testi- in handcuffs with vehicle, anyone might he who move the and fied that was aware attempt made a warrant. Conrad testified that he no secure Officer by its Court abused discretion tak- Elison also claims the District unavailability judges magistrates ing judicial notice of night time of was made. presence drugs until dog after note trained did not indicate the 2. We that the already the vehicle. Conrad had entered
Officer exigency justified due finding The State claims that the mobility difficulty securing of Elison’s and the vehicle at the time of Elison’s arrest. The State asserts that search warrant taking judicial by the court did not abuse its notice of the discretion reasonably and judges magistrates fact that are not available at Montana, Billings, 12:05 a.m. in because the fact the ac- was within alternative, knowledge In tual immediate of the court. urges
State that we conclude a warrantless search vehicle is readily permitted prob- where vehicle is mobile an officer has cause to or other able believe the vehicle contains contraband ev- idence of a crime. The Fourth Amendment States United Constitution and II,
Article 11 of prohibit Section the Montana Constitution unreason *13 seizures, including able searches and unreasonable searches of auto (1992), by mobiles law v. personnel. enforcement See Allen 256 State 47, 884 Mont. 105. per P.2d Warrantless searches and are se seizures subject only carefully unreasonable to a few drawn exceptions. State (1996), 460, 468, 914 592, 597. Loh exception v. 275 Mont. One to exception.” the warrant is the requirement so-called “automobile Al len, 256 at Mont. at 884 P.2d 108. See also v. Carney California (1985), 386, 390, 105 2066, 2068, 471 S. Ct. 85 2d U.S. L. Ed. 406. In the Carney, United States Court Supreme ¶40 stated the exception” “automobile on grounds. is based two One basis for the ex ception exigency. Court, is According requirement the warrant on capacity is excused based the of a to quickly vehicle moved be that, exigency which “creates circumstances of such a ne practical as cessity, rigorous requirement enforcement of the is impossi warrant 391, 105 Carney, 471 U.S. at Ct. at The of ble.” S. 2069. other basis exception expectation Court, is a reduced of privacy. According to a expectation individuals have reduced of privacy of on account pervasive regulation capable traveling high on public vehicles ways are, therefore, they may stopped and on notice that be and protection by Carney, searched without the a afforded warrant. 471 392, 105 short, at S. U.S. Ct. at 2069-70. “In schemes of pervasive regulation, necessarily expectations of privacy, lead to reduced mobility, exigencies ready justify and the attendant to with searches prior authority magistrate long to of a as the overrid out recourse so 392, 105 ing Carney, is S. probable standard of cause met.” U.S. at 471 atCt. 2070. decisions, by Supreme subsequent As clarified
warrantless search of an automobile not violate the Fourth does “readily probable if the Amendment automobile is mobile cause contraband;” exigent showing exists to believe contains further (1996), unnecessary. Pennsylvania v. Labron circumstances 938, 940, 116 2485, 2487, 135 curiam); L. 1031 (per U.S. S. Ct. Ed. 2d 2013, 144 Maryland Dyson v. S. Ct. L. Ed. 2d U.S. curiam) (summarily reversing Special (per Maryland Court of search Appeals which had concluded that warrantless automobile no exigency violated the Fourth Amendment because there was significantly even made it difficult for the to ob prevented police warrant). tain a search had to certainly probable Officer Conrad cause believe contained evidence of a crime after Elison informed
Elison’s vehicle
marijuana
he had
behind his seat.
Officer Conrad that
tucked
readily
just
driving
Elison’s vehicle was also
mobile-he had
been
it.
Constitution,
Fourth Amendment
Under the
to the United States
warrantless search of Elison’s vehicle was not unreasonable.
recognized
exception”
We have also
an “automobile
II,
Section
of the Montana
requirement
warrant
under Article
Court,
However,
Supreme
unlike the United States
we
Constitution.
See,
showing
exigent
require
have continued
circumstances.
Allen,
Allen,
884 P.2d at
In
we stated that
e.g.,
(1)
two
existence of
exception
requires
things
the “automobile
...
(2)
search;
probable
presence
exigent
cause
circum
stances,
is,
practicable
under the circumstances to
that it was
51,
State v. Bullock Mont. 901 P.2d We have repeatedly held that unique Montana’s constitu tional language and, affords a greater right privacy, citizens there fore, provides protection broader than the Fourth Amendment cases involving private property. Bullock, searches of See 272 Mont. at
246 384, 75; Justice, 108, MT Department 901 P.2d at Hulse v. 1998 ¶ of 25, 1, 25, 75, result, 961 P.2d 25. As a we have con ¶ may category of be cluded the warrantless searches which law the fully conducted under Montana Constitution is narrower than category may pursu the ofwarrantless searches which be conducted Bullock, example, the in we held that ant to Fourth Amendment. For open field, although the a warrantless search of defendant’s lawful Amendment, the under the Fourth was unlawful under Montana 385, at Constitution. 272 Mont. 901 P.2d only greater protection Montana’s Constitution confers fields, greater pro of but confers open from warrantless searches also instance, from searches of For tection warrantless automobiles. (1977), 512, 518, 1131, 1134, Sawyer v. 174 571 P.2d we State Mont. Supreme declined to the Court’s decision in South Dakota v. follow 1000, Ct. L. Ed. 2d Opperman 96 S. U.S. recognized inventory of searches of which warrantless lawfulness pursuant police procedures. to standard On basis of automobiles right we warrantless privacy, Montana’s constitutional to restricted inventory purpose searches of to those searches whose automobiles officer’s safeguard plain articles within view of the vision. 518, 571 holding, at 1134. so we reaf Sawyer, Mont. at While not a our that “the word ‘automobile’is talisman firmed observation away presence requirement] [warrant the ... fades and dis whose Accordingly, Mont. at P.2d at 1133. we appears.” Sawyer, analyze under our the warrantless search of Elison’s vehicle will unique provisions. constitutional gathering have “search” the use of some means of We defined as infringes upon expectation of person’s reasonable
evidence
Hulse,
determining whether there has been an
privacy.
22. When
in search and sei-
governmental
privacy
intrusion into one’s
unlawful
(1)
situations,
following
per-
look at
factors: whether
zure
we
(2)
society willing
an
whether
expectation
privacy;
son has
actual
(3)
reasonable; and
objectively
recognize
expectation
as
Corrections,
Desserly Department
v.
nature of the State’s intrusion.
(Mont.
15, 2000),
*4.
Feb.
2000 WL
privacy in
expectation
actual
Webelieve Elison had an
seat,
expectation of
stowed
and we believe his actual
items
behind
beyond
purview the
Placing
object
an
was reasonable.
privacy
has the
to exclude
in a
others
public
place
person
from which the
per-
“What a
subjective expectation
privacy.
an
actual or
evidences
in
knowingly exposes
public
protected,
son
is not
but what an
preserve
private,
seeks to
as
in an area
dividual
even
accessible
Bullock,
maybe constitutionally
public,
protected.”
Elison’s actual
of
was unreasonable.
cantly,
Supreme
essentially
Court decisions which have
done
away
the exigent
requirement
with
circumstances
ofthe “automobile
exception”
so,
partially,
theory
have done
at least
on a
of the reduced
See,
expectations
privacy people operating
of
of
e.g.,
automobiles.
Car
ney, 471 U.S. at
S.
at
In Carney,
105 Ct.
2069-70.
the Court ob
served that this reduced expectation
privacy
of
derives from the “per
regulation
vasive
capable
traveling
of vehicles
of
on the public high
ways.” 471 U.S. at
explanation,
Automobiles, homes, subjected pervasive unlike are and con- tinuing governmental controls, regulation and including periodic inspection licensing and requirements. everyday occurrence, As an police stop and examine plates vehicles when license or inspection expired, violations, stickers have or if other such as exhaust fumes noise, noted, headlights excessive are or if safety equip- or other ment are not in proper working order.
Carney, 471 U.S. at S. at 2069-70. Ct. Supreme We do not find the Court’s “reduced expectation pri of vacy” analysis compelling. We do believe that a person when rides in automobile, an person accepts that any that their actions and items left on the longer uncovered dashboard or on the seat are no private public visibility. Montana, because of their Even in persons when privacy leave the expose of their home and and themselves their ef public independent fects and its powers perception, of it is clear they that expect cannot to preserve degree privacy the same of for they themselves or their affairs as expect could at home. State v. 41, 49, 950 722, 726. However, Scheetz when a person precautions place seats, takes items or underneath behind boxes, glove in trunks or ensuring or uses other methods of that those may items permission, not be accessed and viewed without there is no obvious reason to privacy regard believe interest with those items has been surrendered simply happen because those items Furthermore, to be in an automobile. there is no reason to believe that the “pervasive continuing governmental regula- and controls and expectation to reduce could serve someone’s
tions” of automobiles Although may legitimate the State have a in items so stowed. privacy regulations, safety and traffic securing compliance with interest prohibitions such as absolutely logical no connection there is between muffler, noisy and the registration stickers or a driving expired with au the seat of an need to conduct a search behind State’s warrantless tags do not plates expired license for inspections Visual tomobile. boxes, trunks, gen and underneath seats. See glove entail searches LaFave, A Treatise on erally, Wayne R. Search Seizure: 1996). 7.2(b) (3d ed. Amendment at 470 § Fourth “the state’s method ofin Lastly, must also consider whether we recognize the intrusion invasive that we vestigation personally is so justification, such as a warrant or requires further as a search Scheetz, Mont. at 950 P.2d at circumstances.” special other consideration been whether motivating concern has 727. One threat a “substantial presents method is overbroad State’s private affairs.” unnecessary aspects of an individual’s revealing investigation A method of Scheetz, Mont. at 950 P.2d illegal be regarding legal information both tends to reveal a person’s in that it frustrates justification further require havior will Scheetz, 50-51, 950 Mont. at See legitimate expectation privacy. *17 luggage at issue drug-detecting canine sniff of at 727. Unlike the P.2d behind the Scheetz, through person’s personal a effects rummaging everything stowed behind the seat divulges seat of their automobile everything ex private to “maintain as permit person a and does 51, Scheetz, P.2d at 727. This Mont. at contraband.” cept the investigation example of a method of is the classic type of search special or other circumstances. requires a warrant typically Bullock, 384, P.2d at 75-76. 272 Mont. at See interest privacy have a reasonable may an individual Because beyond purview public of the automobile in items stowed in an legitimate inter- investigation invades this method of and the State’s II, Art. doing interest for so. est, compelling § a the State must have the State interest exists where 10, compelling A state Mont. Const. other fun- protection for the benefit enforces its criminal laws Hulse, compelling ahas citizens. Montana rights ¶ ofits damental drugs or the influence of alcohol under interest to remove drivers 61-8-401, (prohibiting Hulse, MCA roadways. 34. See also § from our also drugs). Montana of alcohol or under the influence driving while unlawful eradicating possession compelling interest has a (“Controlled generally, Chapter intoxicants. Title MCA See Substances”). interests, compelling even Yet with these state may privacy procedural an State not invade individual’s unless safeguards attached to the to be free from unreasonable Hulse, are and seizures met. 34. searches legitimate privacy implicated Because of the interests generally
and the nature of the state’s intru invasive overbroad interests, requires on these the search an more sion automobile merely probable than the existence of cause to believe it contains evi basis, that, dence of a the foregoing despite any crime. On we conclude language contrary decisions, previous to the in our is no there “auto to the exception” requirement mobile search under the warrant Rather, held, consistently Montana Constitution. as we have requires warrantless search of an proba automobile the existence of cause a generally applicable exception ble as well as warrant search, requirement plain such arrest, as view a search incident to exigent or circumstances.3 remaining The issue is whether Officer Conrad’s warrantless justified by
search was both cause probable exception and an noted, requirement. warrant As District Court concluded that Of- ficer justified Conrad’s search was exigency. because of The Court exigent the following vehicle, found ofthe mobility circumstances: possibility vehicle, confederate could move the and the fact that the made at 12:05 a.m. and that it would have been diffi- cult obtain a search warrant In regard at that hour. to the last cir- cumstance, judicial judges the court took notice of the fact that magistrates reasonably are not available obtain a search warrant at that time of night. previously We explained exigent have circumstances
are those person circumstances that would cause a reasonable be- previous The District stated that under of our un some decisions lawfully clear whether could Officer Conrad have seized Elison’s vehicle for rea time sonable until a search warrant could obtained. In v. Broell be State stated of a car falls un we a “warrantless seizure” *18 exception” requirement. 122, 814 the der “automobile 249 Mont. at warrant However, regard at 47. held that at issue in lawful P.2d we the seizure Broell was exigent probable of less circumstances because “there was sufiicient cause under illegal drugs the facts of this case to believe that were Broell’s car.” 249 located in legality Mont. at at 47. The a has not of warrantless seizure been P.2d currently raised and not therefore is before us. harm necessary prevent physical lieve that action to to prompt evidence, persons, the of police officers or other destruction relevant escape suspect, consequence other frus improperly the ofthe or some trating Wakeford, v. legitimate law enforcement efforts. State 24, 953 MT Mont. 24. The State bears ¶ ¶ heavy exigent the the showing burden of existence circumstances only by can demonstrating specific meet burden Wakeford, 24. articulable facts. exigent finding The District Court’s circumstances is First, above, the an auto
clearly mobility erroneous. as discussed mobile, more, is sufficient a warrantless search. justify without not Second, might the vehicle possibility confederate move exigency by indicating possibility that relevant could establish destroyed prompt evidence unless took action. police would be However, possibil there is no evidence in the record to establish this ity; contact Elison was alone and without means to a confederate. Third, that the was made at 12:05 a.m. and that would fact the avail have been difficult obtain a search warrant because of night ability magistrates at that time of does not estab judges Signifi exigent justifying lish circumstances warrantless search. Fur cantly, Officer Conrad made no effort obtain search warrant. thermore, judges and while we understand that Montana’s night, late into the magistrates prefer would be disturbed simply away with protections constitutional do not fade Montana’s searches setting prohibition against ofthe sun. The unreasonable at all cannot conclude that safeguards people Montana We times. solely search could turn on the time validity of warrantless day that search was conducted. heavy that the State did not bear its bur We conclude in specific and facts demonstrating
den of the existence of articulable searching first ob dicating necessity of Elison’s vehicle without conclude, state taining independent We further on a warrant. II, 10 and of the Montana grounds pursuant to Article Sections Constitution, Elison’s was un that the warrantless search of vehicle sup motion to denying the District erred Elison’s lawful and press fruits of search. this de- consistent with proceedings We and remand for reverse
cision. TURNAGE, GRAY JUSTICES NELSON and
CHIEF JUSTICE concurring.
251 LEAPHABT, concurring part dissenting part. JUSTICE in and in one For I with the Court’s resolution of issues and three. concur ¶60 reasons, two. following the I dissent as to issue number custody not in The District Court concluded that Elison was ¶61 marijuana questions Conrad him certain about when Officer asked apply. and that Miranda therefore does not The District Court con- after “[i]t cluded further that within Officer Conrad’s discretion was particularized suspicion stop, he had a to effectuate the traffic to ask a investigatory questions designed identify Defendant him as wit- or suspect reported ness a a crime.” (1994), 248, 1355, Citing State v. 870 Rushton Mont. P.2d argues person
Elison that when a is not free to because of the ex leave conduct the press implied police, interrogation is custodial Rushton, nature. In that a “[t]o Court concluded determine if cus occurred, interrogation todial has Court on considers each case a case-by-case person’ basis and a would looks whether ‘reasonable leave, considering not feel free to after such factors as the time and place interrogation, length interrogation, per and mood of and 256, 870 present during sons the questioning.”Rushton, 264 Mont. at P.2d at argues 1360. Elison that he at the was “secured” back truck, person leave, that no reasonable would have felt free to and that the District found that Elison was not free to Elison leave. argues merely further that questions Officer Conrad’s “in were vestigatory” “the charged.” but went to heart offenses responds The State questions Officer Conrad’s were inves- tigatory Further, in nature and did not a require warning. Miranda citing Allen, 81, MT State v. Mont. argues that investigative questions during
State
made
a temporary
roadside
preceded by
detention need not be
a
even
warning
Miranda
a
is not
suspect
urges
questions
when
free
leave. The State
that the
during
“public, routine,
occurred
temporary” stop.
and
Allen,
stopped by
In
defendant Allen
police
was
because his ve-
plate.
approached
hicle lacked a front license
Allen
police
The
officer
why
explained
stopped
suspect
and
he had
him. The
came to
officer
improperly using
that Allen
and
Al-
plate
demonstrator
asked
car
they
explained
len to exit the
so that
could talk. As the
officer
charges
Allen,
against
the officer smelled alcohol on Allen’s person
drinking.
and asked Allen whether he had been
Allen admitted hav-
ing
told
he
two beers. The officer
Allen that
did not have the
tests,
perform sobriety
and
lawyer
call his
had him
he failed.
Allen,
station,
The
him to
and had
brought
police
officer arrested
sample
him
showed a BAC of
At that time
provide breath
0.13.
rights
Relying Berkemer
Allen was advised of his
under Miranda.
on
McCarty
v.
468 U.S.
S.Ct.
82 L.Ed.2d
public,
“[t]he
Court concluded that
was still
routine and
Allen
distinguish
facts
[and that] [t]hose
in nature
critical
temporary
Allen,
interrogations.”
from ‘custodial’
Berkemer,
highway patrol
In
an Ohio
officer
car
observed
stopped
in and
traffic
the car. The officer
weaving
out of
had
car,
standing,
he
get out
noticed that
had trouble
Berkemer
responded
him
he had
intoxicants. Berkemer
asked
whether
used
marijuana.
smoked
Berkemer
recently
he had
drunk alcohol and
*20
However,
jail.
time
Berkemer
was arrested and taken to
at no
before
rights under Miranda. The
jail
was he advised of his
went
subjected
interroga
“a person
Court held that
to custodial
Berkemer
safeguards
tion
ofthe
enunciated
procedural
is entitled
the benefit
Miranda,
severity of
regardless
in
of the nature or
the offense
Berkemer,
suspected
for
he
468
which he is
or which was arrested.”
434, 104
3147,
U.S. at
S.Ct. at
questioning motorist Berkemer, interrogation. 468 U.S. should not be considered custodial added). 3149, 82 (emphasis 438, 441, 104 333-35 at S.Ct. at L.Ed.2d at has ordinary stop an traffic two The Court Berkemer found that questioned will be danger person “mitigate features that ” freely.’ he do so speak induced ‘to where would otherwise 437, 104 First, Berkemer, 3149, 82 at L.Ed.2d at 333. 468 U.S. at S.Ct. traffic stop presumptively to a is pursuant of a motorist “detention 437, 104 3149, 82 Berkemer, at and brief.” 468 U.S. at S.Ct. temporary questions during Court at 333. The Berkemer contrasted L.Ed.2d de where “the interrogations detention with stationhouse such a questioning provides will continue until he is aware that tainee often Berkemer, at they seek.” 468 U.S. interrogators the answers 3149, 82 Second, Berkemer Court con L.Ed.2d at 333. 104 S.Ct. at surrounding ordinary stop traffic is an “atmosphere that the cluded surrounding the kinds than that substantially ‘police less dominated’ Berkemer, U.S. interrogation at issue Miranda itself.” The concluded at 334. Court 438-39, 104 S.Ct. at L.Ed.2d Terry stops. The Berkemer analogous are stops that most roadside just re- conceded, however, to the doctrine that “our adherence counted will mean that police and lower courts will continue occa sionally difficulty deciding exactly to have suspect when a has been custody.” Berkemer, 441, 104 taken into 468 U.S. at S.Ct. at L.Ed.2d at 335. case, In the present the State’s reliance on Allen and Berkemer persuasive.
is not The State has not shown Officer Conrad’s stop of Elison majority notes, was “routine.” As the Officer Conrad in- formed Elison of Gibson’s him observations and told that he smelled marijuana. Further, Gibson’s observations indicate that Elison real- ized that an occupant of a police car had seen him smoking mari- juana. Thus, when Officer stopped Elison, Conrad Elison had no rea- grounds sonable to believe that his ordinary was routine stop traffic of a presumptively temporary duration. Both Elison and Conrad full knew well that being Elison was stopped on suspicion illegal drugs-not for a traffic violation. Berkemer makes clear that in determining whether a person
questioned will be induced
speak
“to
where he would not otherwise do
so freely,”the nature of the stop
important. Berkemer,
JUSTICES TRIEWEILER, HUNT and join in foregoing concurring and dissenting opinion.