*1
MONTANA,
STATE OF
Respondent,
Plaintiff
OLSON,
SHARON MARIE
Appellant.
Defendant
No. 02-268.
3, 2002.
Submitted on Briefs October
Decided Marc
For Hon. Mike Ilka Respondent: Becker, General, Attorney Helena; Light, Assistant Brant Cascade County Attorney, Great Falls. Opinion delivered the of the Court.
JUSTICE TRIEWEILER Olson, charged by information Appellant, Sharon Marie ¶1 Eighth filed in the District Court for the Judicial District in Cascade 45-5-207, MCA County, endangerment, with criminal violation § criminal manufacture of accountability production for 45-2-302(3), dangerous drugs, in violation of MCA and 45-9- § § (1999). gathered by evidence suppress She moved motion, guilty State. denied she pled When District Court Olson’s drugs. charge possession dangerous to an amended of criminal appeals she from the District Court’s denial of her motion to suppress. part We reverse in and affirm in the District Court’s judgment affirm of the District Court. order. We appeal as We restate the issues on follows: err it denied motion to Did the District Court when Olson’s suppress the statements she made to Detective Wells? supported by probable 2. Was the search warrant application cause? 3. Did a exist to an particularized suspicion of Olson’s vehicle?
FACTUAL BACKGROUND 16,2001, On March Detective Jeff Beecroft received a from *3 regarding possible methamphetamine informant Mike Smith a Falls, laboratory on his in Montana. Mike stated property wife’s Great wife, Smith, separated, provided that he and his Nora and then Beecroft with Nora’s address. Mike advised Beecroft that he had jacks. Mike further garage camper entered Nora’s to retrieve two garage, advised Beecroft that while in the he had observed what he tubing, believed to be a meth lab. Mike indicated that he had observed had the jars, together, mason and coffeefilters connected and smelled anhydrous odor of ammonia. He informed Beecroft that he had worked years plant in a fertilizer for several and was familiar with the smell anhydrous of ammonia. Mike also told Beecroft that he had observed in the “cooking”methamphetamine garage a man and identified Finally, man as Huston Curran. he informed Beecroft that he had Curran, stated, briefly “you’regoing keep with who had spoken cool, now, right?” Jim Wells and Michael dispatched Detective Beecroft Detectives property. ofNora’s Within an hour after
Grubb to conduct surveillance surveillance, property individuals on Nora’s began Wells and Grubb them into a vehicle. place to remove items from the and began and request At the of Wells property. The then left Nora’s vehicle stop Grubb, Rodriguez initiated an Sergeant Tito driving Olson was the vehicle stop, At the time of the of the vehicle. and a man seat. Curran young passenger son was in the and her in the rear seat. identified as Justin Becker were Rodriguez registered was stopped by Sergeant The vehicle vehicle, from the Detective Wells After Olson was removed Olson. investigation. of his Wells informed her and advised her approached of her placed a meth lab had in the trunk Olson that he knew been initially allegations. denied after Wells vehicle. Olson Wells’ lab, admitted that to her about the health risks of a meth Olson spoke subsequently in A was located her vehicle. warrant was equipment chemicals, issued, glassware, and the search of Olson’strunk revealed funnels, used to tubing, methamphetamine, “precursors” and other methamphetamine, including pills manufacture red labeled Sudafed. Montana, On March State of filed an Respondent, information, charged endangerment, which Olson with criminal a 45-5-207, felony, accountability in violation of MCA and for § production dangerous drugs, felony, criminal or manufacture of a in (1999). (1999) 45-2-302(3), 45-9-110, violation of MCA and MCA § § pled guilty charges April not to both on 2001. On June evidence, a suppress Olson filed motion to which she claimed (1) that: the search warrant did not application adequately establish reliability credibility and of the informant whose statements (2) provided for the request; basis warrant search warrant application legally it included and invalid because inaccurate (3) misleading information; application the search warrant did not (4) cause; supported establish the initial traffic was not a suspicion; statements were obtained rights; of her constitutional seized as a violation evidence result of the search of her vehicle must be suppressed. hearings The Court conducted on Olson’s motion to District 29,2001. 13,2001, on On November
suppress October October information, charged the State filed an amended which Olson with the dangerous offense criminal of possession precursors additional (1999). 45-9-107(l)(n), felony, drugs, violation § day. suppress District Court denied Olson’s motion to that same On *4 15, 2001, charge of pled guilty November Olson to an amended felony, in 45-9- possession dangerous drugs, criminal a violation of § (1999). 102, plea agreement preserved The terms of Olson’s right her motion to appeal to from the District Court’s denial of
suppress. remaining charges against Olson were dismissed. Olson 30, January was sentenced the District Court on 2002.
STANDARD OF REVIEW The standard of review of a district court’s denial of motion to erroneous, suppress findings clearly is whether the court’s of fact are findings correctly applied whether those as a matter of law. Dawson, 13, 171, 212, 13, State v. 295 Mont. 983 P.2d ¶ ¶ 916, 13. ¶
DISCUSSION ISSUE 1 Did the District err Court when it denied Olson’s motion to suppress statements she made to Detective Wells? The Fifth Amendment to the United States Constitution II,
Article
of the Montana
provide
Constitution
that no
person
any
case,
shall be
compelled,
against
criminal
to
a witness
be
Supreme
himself. The United States
Court
privilege
addressed this
against
self-incrimination Miranda v.Arizona
384 U.S.
86 S. Ct.
Detective Wells were obtained violation of her Fifth Amendment rights and state constitutional because she did not receive Miranda warnings before she made the A person statements. is entitled to receive warnings only subject Miranda if he or she is ato custodial Elison, interrogation. 228, 27, State v. MT ¶ previously 27. This Court has concluded that a custodial interrogation occurs when “there a significant personal restriction of liberty Dawson, similar to an arrest.” Olson was not under arrest at the time she conversed with repeatedly
Detective Wells. Wehave
held that law enforcement officers
do not need to
warnings
suspects during
administer Miranda
brief
encounters,
even if such encounters are somewhat
Dawson,
if a
coercive.
we have also concluded that
*5
is custodial.
leave,
interrogation
the
then
right
no free
person has
643,
6,
To determine
(1991),
1,
P.2d
646.
822
Staat
State v.
occurred,
this Court
has
interrogation
a custodial
or not
whether
(2)
(1)
interrogation;
the
place
factors:
following
the
six
examines
(3)
interrogation;
during the
interrogation;
persons present
time of the
(5)
length
the
warnings
gratuitously given;
Miranda
whether
suspect
or not the
was
interrogation; and whether
and mood of the
Staat,
6,
Detective Wells was restricted Court Consequently, arrest. District concluded that Olson’s agree. conversation with Detective Wells was custodial in nature. We However, although the District Court also determined that Olson was custody, interrogated by finding, she was not With that we Wells. disagree. by Court as Interrogation previously has been defined initiated by after a has
“questioning
person
law enforcement officers
custody
taken into
of his freedom of action
deprived
been
otherwise
152,
26,
any
way.”
Belgarde,
State
289
significant
287, 26, 962
571,
Here,
concluded
Mont.
the District Court
any
questions,
that because Detective Wells did not ask Olson
direct
by
have also
interrogated
Olson had not been
Wells.
we
context of the Fifth Amendment and
“interrogation”
noted that
II,
Constitution,
only
of the Montana
refers not
Article
“any
or actions on the
express questioning, but also to
words
(other
custody)
arrest and
normally
than those
attendant
police
reasonably likely to elicit an
should know are
police
(1993),
suspect.”
State v. Flack
incriminating response from
Island v. Innis
Mont.
see also Rhode
further noted
291, 100
S. Ct.
conversation his get away with was to from Curran and Becker. Wells further testified that he told Olson he knew she had a vehicle, meth lab in her and that he had being watched the meth lab loaded into her vehicle. Wells also testified spoke that he to Olson in some detail about dangers of a meth Finally, lab. Wells testified that he told Olson that he was concerned safety, for her and for the safety of her son. statements made Detective Wells were directed
specifically at Olson. No other party privy conversation, was to their and Wells testified that, that Olson was not free to leave. We conclude circumstances, under Wells should have known that his reasonably likely statements were to elicit an incriminating response Therefore, from Olson. we hold that Wells’ statements to Olson an interrogation constituted for purposes of the Fifth Amendment and II, 25, Article of the Montana Accordingly, Constitution. because Olson did not receive warnings Miranda before she was interrogated by Wells, the statements she made to Wells were obtained in violation of her Fifth Amendment right against self-incrimination, and must suppressed. be The District Court
¶21 erred when it denied Olson’s motion suppress the statements she made to Detective Wells. This Court has excised Olson’s statements from the search application, warrant we now review the search application warrant without information to determine whether it probable established cause.
ISSUE 2 Was the application ¶22 search warrant supported by probable cause? Detective Beecroffc obtained a warrant to search both Nora’s garage and Olson’s vehicle. Olson contends that the search warrant application was not supported by probable Specifically, cause. asserts that Mike Smith not a reliable and credible informant. An application for a search warrant must state facts sufficient to probable show Grams, cause for the issuance of a warrant. State v. 188, 14, 311 Mont. ¶ 14. To ¶ ¶ exists, determine if cause to issue a warrant this Court applies totality of the circumstances test set forth in Illinois v. 2d 527. Pursuant 76 L.Ed. 213, 103 S.Ct. (1983), 462 U.S. Gates the four within the facts asserted test, evaluates judge “the to this makes a practical, application warrant] [search comers of the probability is a fair whether there decision as to common-sense entry is in the to which place found items will be incriminating Grams, 14. sought.” ¶ largely on was based case, application warrant In this the search a test for adopted This Court Mike Smith. of informant by an informant provided information
determining whether Reesman, MT in State v. probable cause sufficient to establish 408, 27, 10 The Reesman test 27. ¶ ¶ First, must ascertain this Court on three considerations. based Reesman, Here, 28. anonymous. or not the informant was whether Therefore, anonymous not informant. that Mike was an Olson concedes proceed question. we to the second determine whether the anonymous, If is not we next an informant on his or her own by the informant was based provided
information Reesman, activity. In this of the criminal personal observation by Mike case, provided the information was based Olson concedes that Smith’s property. of the on Nora personal on his observation Therefore, to the third consideration. proceed we this Court to ascertain requires The final of the Reesman test Reesman, source of information. the informant is a reliable whether (1) reliable, must either: In for an informant to be he or she order reliable and accurate provided informant who has be confidential his or her own against in the make an admission past; information citizen, by “good citizenship.” interest; or be a concerned motivated that Mike Reesman, In the District Court found 32-34. ¶ ¶ immediately reported by “good citizenship,” because he was motivated *7 is, found that even if That the District Court what he had witnessed. immediately mixed, undisputed it is that he went Mike’s motives were garage. department after he observed Nora’s police to the that Mike was a reliable the District Court concluded Consequently, informant further noted that a citizen informant. The District Court by reliable, reliability generally “is shown to be and such presumed is incriminating under which the very the nature of the circumstances Valley Reesman, State v. (quoting information became known.” 1255, 1258). Here, informed 489, 493, 830 Mike (1992), P.2d retrieve two garage that he entered Nora’s Detective Beecroft that, garage, while Nora’s Mike advised Beecroft jacks. also camper what he reported meth He to be a lab. what he believed he observed saw immediately. While there is evidence that Mike and Nora had a fact, strained relationship, by itself, is not sufficient to overcome presumption the that he acted good as a citizen. Accordingly, we hold that the District Court did not err it when concluded that Mike was a reliable informant. In addition to Mike’s report, the search warrant application also
contained the Grubb, observations Detectives Wells who conducted surveillance of Nora’s property. application stated that: “Within an hour after Detective Wells arrived with Detective Mike Grubb, a man began and a woman transporting garbage numerous bags full of items to a white 1989 Ford Taurus. These two individuals then left the scene in the Although not, Ford Taurus.” this behavior is itself, illegal, when combined with other information the search warrant application, is, it becomes significant. only That hours after reported Mike that: he had observed a meth garage; lab Nora’s Curran was aware that he observation; had made this began individuals to move items from Nora’s into a vehicle. We conclude that the above provided combination of facts the Detectives with probable sufficient cause to believe that a meth lab was relocated from Nora’s garage to Olson’s vehicle. We further that, conclude under the totality circumstances, of the the search warrant application contained sufficient support cause to the issuance of a search warrant.
ISSUE 3 particularized Did a suspicion exist justify investigative traffic stop of Olson’s vehicle? Olson maintains that of her vehicle
was not supported by a particularized on suspicion of law 46-5-401, enforcement. (1999), Section MCA addresses investigative 46-5-401, stops. provides: In order to verify obtain or an account person’s of the presence or conduct or to determine whether to person, peace arrest officer stop any person or vehicle that is observed in circumstances that create a particularized suspicion that person occupant committed, of the vehicle committing, has or is about to commit an offense. applies This Court a two-part test to determine whether a law requisite enforcement officer had the suspicion Grindeland,
an investigative stop. State, First, Mont. 32 State required to show
411 make certain officer could experienced an data from which objective that the resulting suspicion Second, show a the State must inferences. been, in is, engaged or has question the vehicle occupant of Grindeland, wrongdoing. P.2d 278 Mont. Rope Broken cites State v. Olson a officers lacked of her contention support ofher vehicle. investigative stop an suspicion perform
particularized
a
store with
a convenience
Rope visited
in Broken
The defendant
check on their
registration
a
in the area ran
An officer
companion.
of
issued for the arrest
a
had been
learned that warrant
vehicle and
for the two men to
then waited
companion. The officer
the defendant’s
428-29, 925
at
Rope, 278 Mont.
store. Broken
exit the convenience
they
the store
noticed
when the men exited
at 1157-58.
around
officer,
at him. The men also moved
began
to stare
and used the
lot,
pockets,
hands in their
put their
parking
store’s
get
men did not intend to
The
determined that the
telephone.
officer
area,
requested
in the
so he
assistance.
while he was
into their vehicle
men.
investigative stop
an
of the two
officers then initiated
two
at
possessed particularized Court, Court, however, reversed the District of the defendant. This inherently [the about nothing suspicious noting that “there around in a convenience telephone, moving a using pay defendant] staring at a lot, pockets in his or putting his hands parking store 432, 925 at P.2d at 1160. We Rope, Broken 278 Mont. deputy.” sheriffs “many law-abiding citizens well be nervous noted that further by law enforcement officers.” being their activities are watched when Therefore, at 1160. we at Rope, Broken particularized defendant’s actions did not create concluded that the been, in criminal was, engaged had that the defendant suspicion P.2d at 1160. 278 Mont. at activity. Rope, Broken to those of this case are similar alleges that the facts Detectives Wells because, Rope, like the officer in Broken Rope Broken activity. engaged in criminal individuals and Grubb did not observe case. In however, from the instant distinguishable Rope, Broken parking in the of the defendant the officer’sobservation Rope, Broken In Wells and investigative stop. for the lot was the sole basis Nora’s place items from merely observe individuals did not Grubb and Grubb away. Wells a vehicle and drive into the trunk of time at the in Mike’s information contained aware of the they performed stop of Olson’s vehicle. The existence particularized suspicion question is a by fact determined examining totality of the circumstances surrounding Grindeland, investigative stop. Therefore, while the behavior by not, itself, observed Wells and Grubb did raise a *9 suspicion activity, of criminal that given behavior have rise to a particularized suspicion when combined with Mike’s that he observed a meth lab Nora’s garage day. that same This Court repeatedly has held particularized that suspicion is a stringent less standard probable than Kirk, cause. See State v. Van ¶ 184, 14, MT 215, 14, 735, 14, ¶ 32 P.3d and State Williamson, MT Mont. 12. Accordingly, we conclude that because cause existed to vehicle, search Olson’s it is axiomatic that suspicion existed stop same Therefore, vehicle. we hold that a particularized suspicion existed to
of Olson’s vehicle. reasons, For the foregoing we reverse that part of the District
Court’s order which held that Olson had not been interrogated in violation of her Fifth Amendment rights. However, deleting after her admission from the search application, warrant we conclude that probable cause existed to issue the search warrant for Olson’s vehicle. Therefore, the judgment of the District Court is affirmed.
CHIEF GRAY, JUSTICE JUSTICES LEAPHART and COTTER concur.
JUSTICE RICE concurring in part dissenting in part. I concur with the Court’s resolution of Issues 2 and and with holding in this matter. I find that the District Court correctly Olson, concluded though in custody, was questioned not Wells, Officer and was subjected not to interrogation. Therefore, I would affirm the District Court’s denial of Olson’s motion to suppress statement, and dissent from the Court’s contrary conclusion in Issue 1.