State v. Scheetz

STATE OF MONTANA, Respondent, Plaintiff SCOTT SCHEETZ, Appellant. Defendant No. 96-358. September 11, on Submitted Briefs 1997. Decided December 1997. St.Rep. 286 Mont. 41. 950 P.2d 722. Amdorfer, Firm, Appellant:

For Brad L. Arndorfer Law Great Falls. Mazurek, Joseph Attorney General; Hon. P. Respondent:

For Jordan, Attorney General; Helena; Patricia J. Assistant Dennis Paxinos, County Attorney; Mrkich, Dale Deputy Yellowstone County Attorney; Billings. Opinion

JUSTICE TRIEWEILER delivered the of the Court. charged in the District Court for the Scott Scheetz was Thirteenth County possession Judicial District in Yellowstone with criminal intent to sell after a dangerous drugs drug-detecting with canine led luggage, they eight- to search his airline in which discovered officers marijuana. suppress een He filed a motion to the seized pounds The pled guilty evidence. District Court denied his motion. Scheetz appeals the District Court’s denial ofhis motion to suppress. now judgment affirm the order and of the District We Court. issue on is whether the use of a appeal drug-detecting sole luggage which has been entrusted to an

canine to sniff airline consti- person’s right privacy guaranteed tutes a search in violation of a by Article Sections and of the Montana Constitution. FACTUALBACKGROUND February 9, 1995, Leighton Officer Lawrence of the Tucson On Authority Airport Department Police noticed Scott Scheetz and two acting nervously prior checking flight. men in for their The other they the walking individuals became cautious when were toward Leighton. check-in counter and noticed the uniformed Rather than directly to the else in line proceed waiting counter where no one was they immediately, they and could have checked in became where nearby They serious” and retreated to some couches. talked “quite among appear themselves and “continued to nervous.” Two of the away two, and left for a minute or Leighton’s individuals walked view new, large, the third remained at the couch with a hard-sided while eye Leighton throughout with All ofthe men avoided contact suitcase. them. his observations of the three men prior flight’s departure, minutes to their

Fifteen Leighton, the suitcase. who in at the counter and checked checked years Authority the Police for five and inves- Airport had been with cases, hundred narcotics and who had tigated approximately two training recognition, officer in narcotics suspected received advanced men He trafficking inspected the three were narcotics. the baggage immediately in the area after the men it. luggage checked luggage tag He found that the listed the name ofJohn Olson and telephone Leighton investigated number. also the men’s travel they very found that had been made a travel plans through agent and shortly flight, the and that the men had been in Tucson for before days. approximately two behavior, experience Leighton on his and the men’s con-

Based them Billings Department tacted the Police and informed of his He de- trafficking provided that the men were narcotics. suspicion number, men, flight their and their time of arrival scriptions men, traveling, going by The while were the names ofJohn Billings. Anderson, BobJones. When Detective Steve Cwalin- Olson, Chris and phone luggage tag, traced the number on the Billings ski of the Police Billings he that it was for a restaurant. found by Cwalinski, accompanied drug-detecting canine and its Officer when it landed at the agent, flight Billings handler and a DEA met carousel, onto the the canine Before the was loaded airport. reaction flight. directed to sniff the from the canine’s was description given by matching indicated that the suitcase drugs. contained Leighton matching description given by men

Cwalinski identified two they near the carousel for their One of Leighton waited that had been identified the canine the two men took suitcase tags He removed the and when it came offthe carousel. Leighton tags, retrieved the discarded them in the trash. Cwalinski threw men, number, approached the phone listed John Olson and the which as an officer. He advised them of his investi- and identified himself airport. them to an officein the gation and escorted men, the officers advised Scheetz of his separating After Scheetz, had the suitcase from the rights. who removed Miranda1 Olson, initially refused to carousel, identified himself as John suitcase, although eventually he admit consent to search his give his suitcase, under arrest. placed had and was drugs ted that he and found that warrant for the suitcase The officers obtained search marijuana. eighteen pounds approximately it contained Attorney filed an 1995, County 1, the Yellowstone On March dangerous possession with criminal charging Scheetz information (1966) 1602, 436, 16 L.Ed.2d 694. U.S. 86 S.Ct. 384 1. Miranda v. Arizona

45 drugs with intent possession to sell and criminal of drug parapher- August 8, 1995, nalia. On Scheetz filed a motion to suppress against him, evidence upon based what he asserted was the State’s privacy by invasion of his the use of a drug-detecting canine. After briefing and a hearing, the District Court concluded that the use of a drug-detecting canine was and, not search accordingly, denied the 6, 1996, motion. On March Scheetz pled guilty to the charges, but reserved his right appeal the denial of his suppress. motion to The District accepted Court the plea and sentenced Scheetz years to ten imprisonment, years with five suspended.

DISCUSSION Does the use of a drug-detecting canine to sniff which has been entrusted to an airline constitute a search in violation of a person’s right to privacy guaranteed by II, Article 11, Sections 10 and of the Montana Constitution?

We review district court’s denial of a motion to suppress to determine whether the court’s interpretation and application of the law is correct. See State v. Graham 510, 271 512, Mont. 1206, 1207-08; P.2d State v. Stubbs 364, 270 Mont. P.2d

The use of drug-detecting canines to inspect luggage anis issue of impression first in Montana. Although search protections and seizure traditionally are founded on the Fourth Amendment of the United Constitution, States we stated in Sawyer (1977), State v. 512, 515, 571 P.2d 1131, 1133,that “[w]eneed not consider the Fourth Amendment issue because we view the Montana Constitution to afford an individual greater protection ... than is found under the Fourth Amendment.” explained We also in State v. Siegal (1997), 281 Mont. that when a right specially implicated part of a traditional search and seizure analysis, we must pursuant address the issue to both Sections 10 and 11 ofArticle II of the Montana II, Constitution. Article Section states: “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.” Article Section states: people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures. No warrant any place, any search seize or thing shall issue without describing place to be searched or the person or thing to be seized, probable cause, supported or without oath or affirmation writing. reduced to question

A threshold the determination of whether an is there has government unlawful search has occurred whether been reasonably into an area is The expected. intrusion where U.S. (1984), Court stated in United States v. Jacobsen 466 Supreme U.S. 1656, 94, 113, 1652, 85, 109, “[a] 104 S.Ct. 80 L.Ed.2d that ‘search’ that expectation society prepared when is occurs infringed.” in State v. Loh (1995), consider reasonable is We stated 460, 592, compromises “[a] Mont. 914 P.2d that search 275 Loh, 468, at privacy.” interest in 275 Mont. 914 P.2d at 597 individual (1990), 496 U.S. 110 Horton v. S.Ct. (quoting California 2306, 110 112, 120). no 2301, L.Ed.2d “Where exists, neither nor a ‘seizure’ there is a ‘search’ within the Amendment of the Fourth of the United States contemplation Con 11 II, of the Montana Constitution.” stitution or Article Section State 117, (1983), 121, 747, 666 P.2d v. Bennett 696, (1983), 2637, In United States v. Place 462 U.S. 103 S.Ct. 77 110, Supreme exposing person’s the U.S. Court held L.Ed.2d public place, drug-detecting is in a to a canine luggage, which located Amendment. the Fourth meaning not a search within the Place suspi airport facts similar to these. An officer relied on his involved drug trafficking passenger’s to alert officers in the destination cions of investigation a canine city passenger’s to conduct was investigation Court “much less intru Supreme reasoned search,” and “the typical than a information obtained is sive 2644, Place, 707, 103 77 at 121. 462 U.S. at S.Ct. at L.Ed.2d limited.” greater protection are free citizens based on state grant States provisions Supreme than the Court divines from U.S. constitutional Castle, City v. Aladdin’s Mesquite U.S. Constitution. See Inc. 1077, 71 283, 293, 102 1070, 152, 162; U.S. S.Ct. L.Ed.2d (1983), 455 Nonetheless, at 1133. most states Sawyer, 174 Mont. at P.2d have drug-detecting the use of canines followed that have addressed canines does not drug-detecting have that the use of Place and held (Ariz. 1997), App. v. Ct. 947 a search. See State Weinstein constitute (Ark. 1997), 322; v. Ct. 939 S.W.2d State v. 880; Vega App. State P.2d (Idaho (Haw. App. Ct. 1984), 980; P.2d State v. Martinez 681 Snitkin (Kan. 885; 1993), P.2d State 1125; v.Barker 850 1996), 925 State (La. 1997), 575; 2d Gadson v. State App. Ct. 687 So. Washington v. (Md. 1704, 22, 116 S. Ct. L. 1995), 668 cert. denied A.2d (Neb. 547; 1993), Gama v. 803; 500 N.W.2d State v. Morrison Ed. 2d (Nev. (N.D. 1996), 1010; State 920 P.2d State v. Kesler 1986), 396 (Okla. 729; Scott v. 1996), N.W.2d State Crim. App. 1066; 927 P.2d (Ohio Knight 1997), State v. Com. Pl. 679 N.E.2d 758. But Pooley see (Alaska. (Colo. 1985), v. State Ct. App. 1293; 705 P.2d People May v. (Conn. 1994), 280; 886 P.2d State v. 1994), Torres 529; 645 A.2d State (Me. (N.H. 1992), 45; 604 A.2d State v. 1990), Pellicci Gifford (N.Y. 710; A.2d v. Dunn People 1990), 564 N.E.2d cert. denied 501 U.S. 111 S. Ct. 115 L. Ed. 1000; 2d State v. (Or. (Pa. 1997), Juarez-Godinez 772; Commonwealth v. Cass 1995), Super. Ct. 666 A.2d 313.

Montana, however, recognizes protections broader for an indi vidual’s right privacy pursuant Article Section of Mon Constitution, tana’s than the United States Supreme Court does Amendment pursuant to the Fourth of the United States Constitu tion, and other states typically pursuant do to their state constitu Sawyer, tions. 516, See 174 Mont. at 571 P.2d at apply 1133. As we Constitution, the Montana we have chosen not to “march lock-step” with the United Supreme Court, States even when applying nearly identical language. (1986), State v. Johnson 221 Mont. 719 1248, Thus, Place is not determinative of whether the government’s use of a drug-detecting canine violates the Montana Constitution.

To determine whether the use of a drug-detecting canine consti- light tutes a search in of right Montana’s to privacy, we look first to two recent decisions in which protected we have the right privacy of from state intrusion.

First, (1995), in State v. 361, Bullock 272 61, Mont. 901 P.2d we recognized person that a may have a expectation privacy in beyond land that extends curtilage the of his residence. In Bullock, the posted defendant had Trespassing” “No signs, moved his away cabin far from the public point road to a it hardly where was visible, gated and property. access to his precautions he took to protect property his from intrusion a were sufficient basis for this recognition right Court’s of his privacy beyond to the curtilage of his potentially residence and into what other states or the United States Supreme Court might classify open as fields. See United States 294, Dunn 1134, 480 U.S. 107 S.Ct. 94 L.Ed.2d 326. Accord- ingly, we held that entry by the state onto private property required constituted a search and a warrant or the owner’s consent. Next, Siegal (1997), 250, State v. Mont. we held that the state’s use of imaging a thermal device to “view” a building private property on constituted search inside conditions though even most other right privacy, ofthe defendant’s in violation Siegal, 281 Mont. 934 P.2d at held otherwise. See states have length reasoning). Siegal, the cases and their (discussing at 185-92 1972 Montana legislative history from the relied on substantial we imaging that “thermal ... is to conclude Convention Constitutional II, Article Section technology against which very sort of Constitution, Siegal, Mont. guard.” enacted to was Montana’s Accordingly,we held that its use constitutes P.2d at 192. 250, 934 interest. compelling of a state requires the demonstration and search pursuant to Article constitutes search To determine what considered, in Constitution, we have the Montana Section seizure, and two involving and other cases search Bullock, Siegal, (2) (1) expectation; privacy the extent of factors: separate that the canine Here, intrusion. Scheetz contends ofthe state’s nature airline, already surrendered it to the after he had luggage, ofhis sniff his sufficient to be offensive intrusion into constituted safeguards. disagree. We constitutional triggering search legitimate Scheetz had a consideration is whether Our first objec society willing recognize expectation exists and can be determined expectation That tively reasonable. any public intrusion either the prior independent of naturally seeks words, recognize we In other state. and it is those desires which privacy, ofhis or her parts certain protect exist to safeguards that for the constitutional at the foundation are Solis State v. generally them. See protect P.2d 518. has legitimate of a recognition

This Court’s investigation factors, place as the various such based on been investi- by property the over the person exercised the control and not in this case. present Those factors are gated. notion long-standing the Siegal, we validated

In Bullock Montana, person’s that a country, especially but this throughout govern unwarranted are secure from and his homestead residence means. See also by technological or intrusion, physical be it ment 1355; City Billings 248, 870P.2d (1994), 264 Mont. State v.Rushton of (1979), 471; v. 293, P.2d State Olson (1990), 242 Mont. 790 v. Whalen v. Karo United States generally 663. See 151, 589 P.2d Mont. 180 3302-03, Ed. 2d 3296, 82 L. 705, 714-15, Ct. 104 S. (1984), 468 U.S. (“[a]t obvious, residences private the belaboring of the risk 530, 541 free of normally expects privacy the individual in which places are

49 governmental by warrant, intrusion not authorized and that expec- plainly is that society prepared recognize tation one is justifi- as able”); Gryczan (1997), 433], [283 v. State Mont. 942 P.2d (denying 112 regulate state’s attempt private the the sexual of practices consent- adults). fact, of the ing distinguished courts that have Place and many to be searches, held canine sniffs have so on done the that basis sniff the canine occurred at a person’s home.2 See United v. States (2d. 1985), 1359; Dunn, Thomas 757 Cir. F.2d 564 N.E.2d 1054. However, in Montana, person even when a leaves privacy the exposes of his home and himself and his to the public effects and its of independent powers perception, it is clear that he cannot expect preserve degree privacy the same of for or his himself affairs he expect could at home. “What a person knowingly exposes to the public what protected, is not but preserve individual seeks to as private, public, even in an area accessible to may constitutionally the be Bullock, 375, protected.” 272 Mont. at 901 P.2d at 70 (citing Katz v. (1967), 347, 351, 389 507, 511, 19 United States U.S. 88 S. Ct. L. Ed. 582). 576, 2d We also stated in State v. 456, Dess 464, 655 P.2d that of “[t]he [the reasonableness defendant’s] of turned the expectation privacy right on defendant’s to exclude premises.” others from the

Here, luggage that person brings the to the airport gener ally subject by to observation or public the state to the extent that significant steps have not taken preserve other been privacy person For cannot example, expect it and its contents. to conceal completely public from the of the luggage contents, odor its its color, weight or even its since it must be handled others. Accord that ingly, we conclude lacks a in the he or brings smell she to an airport he way the same or she lacks an expectation (Cal. weight generally color or See v. People Mayberry 1982), 810, (declaring 644 P.2d 814 a lack in both the escaping visibly smell of contraband from leaking (N.Y. container); from a People 1997), fluid v. Bramma Dist. Ct. 655 (“[t]he any 282 Court is not aware of case holding N.Y.S.2d recognized 2. Almost all other courts that have as a search canine sniff have done where, search, here, the context of an defendant so in automobile unlike maintained Torres, 529; Pellicci, 710; Dunn, of the searched vehicle. 645 A.2d 580 A.2d control See 1054; Or.App. N.Y.S.2d 564 N.E.2d State Juarez-Godinez see, 880; e.g., Weinstein, _ Ariz. _, Vega, 1044. But 947 P.2d 939 S.W.2d 322; Martinez, 1125; Washington, 129 Idaho 687 So.2d 575. 50 privacy a of expectation emanating

there is reasonable the odors possessions”); the air person surrounding one’s in one’s Brown from (Va. (“[a] 1992), Ct. App. Commonwealth 421 S.E.2d 880 of the expectation privacy airspace did not extend to vehicle”). surrounding appellant’s

Therefore, person privacy a maintains a interest in the while luggage, by checking checked we that the contents of his conclude expectation privacy less of of than if he was he manifests an luggage, possession it. checking Accordingly, maintain its control and not sufficient a not a conclude that does maintain we to an airline that the Montana entrusted inspection luggage by dog of that trained to prohibits Constitution drugs by sniffing the presence detect consideration is the nature of the state’s intrusion. A second recognized that Delegates to the Montana Constitutional Convention However, point.” into at some private “the state must come our lives explicit right “semiperme- create they established individual, the state and the such the state wall” between able unless the individual in the form of a search upon not intrude should doing Montana Constitutional very good has a reason for so. it 1681. There- Convention, Transcript page Verbatim March fore, investigation whether the state’s method of we also consider recognize the intrusion a search invasive we personally so special a warrant or other requires justification, further such as 270 P.2d v. Stubbs Mont. 892 See State circumstances. Mont. 1218. 547; Ulrich State v. investigate drug-detecting person’s canine The use ofa revealing unnecessary aspects a less substantial threat presents into private than the state’s intrusion an individual’s affairs does privacy via a thermal gated private property or their person’s imagers provide As out “thermal imaging pointed inSiegal, device. we and illegal both while canine legal about heat emissions information presence of illicit sub only information about provide sniffs Bullock, Similarly, P.2d at Siegal, stances.” ignored posted officers was over-broad: when the state’s invasion un peered private property, the defendant’s warnings, entered would homestead which into areas of defendant’s restricted forcefully public view, from the state been obstructed have otherwise home all areas of the defendant’s power to scrutinize acquired ability to but his stead, right, not his also frustrating thus contrast, drug-de- home. in the area around his preserve tecting very canine allows the state limited and discriminating obser- private A person’s might vation of a affairs. canine sniff reveal to the of contraband in a presence person’s luggage, divulges state but it else about the contents of the nothing luggage, permits and it a person private everything except to maintain as the contraband. In'addition to the fact that the use of a drug-detecting canine to inspect luggage checked airline reveals limited information about the private affairs, defendant’s of method the state’s intrusion is A canine can delaying inoffensive. sniff be conducted without a traveler and without a opening person’s luggage, whereas another investigation might subject form of the owner property of the significant embarrassment and inconvenience. The fact that a trav- already eler has surrendered possession of his checked luggage also subjected means that he has not been ato seizure of his property. Accordingly, we conclude that the use of a drug-detecting canine to inspect luggage offensively checked airline does not upon intrude a person’s privacy invade so as to constitute a search.

We conclude that the state’s use of a drug-detecting canine to checked airline inspect person’s does not violate a right pursuant II, 10, to Article Section of privacy, the Montana Constitu tion, and that it is neither a search pursuant nor a seizure to Article II, Section Therefore, Montana Constitution. we conclude properly that the District Court dismissed Scheetz’s motion to sup press, judgment and we affirm the of the District Court. TURNAGE, NELSON, GRAY,

CHIEF JUSTICE JUSTICES HUNT and REGNIER concur. LEAPHART, dissenting.

JUSTICE respectfully majority opinion. I dissent from the I would hold that performed dogs sniff examinations trained narcotics constitute a II, meaning search within the of Article Sections 10 and 11 of the I Montana Constitution. would further hold that in order to conduct such parameters,

a search within constitutional law enforcement must have trafficking activity place. that is particularized suspicion drug taking a Finally, I would hold that law enforcement in this case did not have a suspicion perform a sniff search on Sheetz’s particularized

I that II, provides 11 of the Montana Constitution Article Section homes and persons, papers, shall be secure in their people “[t]he unreasonable noted in State searches and seizures.” We effects from in (1984), Mont. and affirmed State v. v. Solis “ right privacy [t]he Siegal unreasonable searches and protections against is the cornerstone person’s right search can violate a Thus a warrantless seizures. thereby right to be free from unreasonable violate privacy and Solis, Accordingly, 693 P.2d at 522-23. and seizures.” searches determining whether a search occurred is question threshold governmental intrusion into area where there has been whether determining whether there is a reasonably expected. privacy looks to Article this Court expectation privacy provides: which 10 of the Montana Constitution Section of a well-being is essential to right of individual showing of a infringed not be without society free and shall interest. compelling state determining whether an individual two-part test employ

We privacy: the individual must constitutionally protected right to has expectation and that must subjective expectation have Solis, 693 P.2d at 520. as reasonable. society views one be Therefore, expecta- had an determine first whether Sheetz we must his was and then whether tion reasonable. Sheetz testified that society objectively views as one suitcase, in his he refused to Cwalinski asked to look Officer when addition, in his brief that Sheetz asserts to the search. consent Thus, Sheetz contends luggage.” in our expect privacy “[w]e should... luggage. in his subjective expectation privacy of he had a suitcase, in a personal belongings his packs an individual When the contents of the also to conceal only to contain but he seeks not privacy maintains a person that “a recognizes The Court luggage. that, concludes luggage checked ...”but the contents ofhis interest in privacy of expectation less of an luggage, he manifests “by checking possession by checking not maintain its control than if he were to which is en- luggage between checked making a distinction By it.” which an carry-on baggage over personnel and to airline trusted effectively the Court possession, control and maintains individual any he loses baggage checks his an individual that when holds luggage. contents of his of in the expectation privacy meaningful enjoys heightened individual majority that an with the agree I personal in his and in items person in his privacy of expectation that when however, the conclusion with disagree, I possession. he has less counter at the check-in luggage his “surrenders” person When of that in the contents privacy expectation of an traveling by airplane, may on, others, certain items be carried but they to their size or be due dimensions must checked because cannot properly plane. be stowed in the cabin of the While the record does luggage case, not reveal the exact dimensions of the involved in this in transcripts large Delsey it is described as “a black brand indicating may that the airline required suitcase” have that it be many instances, checked. In including perhaps case, this individuals a choice do not have of whether to check their baggage carry or to it on. The mere fact that a suitcase has been checked does not lead to voluntarily the conclusion that its owner has surrendered it and has thereby evinced expectation privacy less of an in its contents. I society would conclude that willing recognize objectively as reasonable an expectation individual’s in the contents of luggage his whether it be checked in or carried on.

In addition to considering the reasonableness of an individual’s privacy, this Court considers the nature of the state’s intrusion determining when what constitutes a search. In the course analyzing constitutionality of thermal in imaging Siegal, we distinguished dog sniff procedures from thermal imaging searches concluding that dog sniffs are more limited they because detect illegal substances and do not any reveal information legal about the the area being contents of searched. Siegal, 934 P.2d at 186-87.While I limited agree dog sense; sniffs are more in they are, this nonethe less, similar to thermal imaging they in that detect substances “which do not knowingly expose [individuals] to the public.”Siegal, 934 P.2d at 191.As we indicated in State v.Bullock 361, 375, “[w]hat knowingly exposes to the public is not protected, but what individual seeks to preserve private, even in an area public, may constitutionally accessible to the be protected.” Bullock, 901 P.2dat 70 (citing Katz v. United States 389 U.S. 576) added). 507, 511, 19 88 S.Ct. L.Ed.2d (emphasis

The Court reasons that an individual does not have a public interest characteristics of readily can such airport weight observe as its and color. I agree. With this However, the Court further concludes that an individual does not interest in the air space surrounding have his any airspace. thus no interest odor detectable in that It is at this point analysis that the Court takes a that I leap willing am not to Siegal, distinguished light take. In we between “visible [which] is perceived by eye, usually unaided, [and] the human infrared radia- [which], longer length tion because of its wave be cannot ‘seen’ device, commonly imager.” as a thermal the aid of a known without fashion, I distinguish at 180. In a similar would Siegal, 934 P.2d that can be detected humans and those that are between odors dogs of with a of smell only with the use devices sense detectable exceeding that of a human. far that most courts which have addressed recognized Siegal

We marijuana imaging investigation growing thermal of the use of procedure held that the does not constitute a search have operations, the Fourth Amendment of the United States and does not violate However, specifi- we that in Siegal, 934 P.2d at 181. noted Constitution. right privacy, with a constitutional cally providing Montanans expressed 1972 Montana Constitutional Convention delegates of the through with intrusion the use of governmental concern particular monitoring Siegal, and surveillance. types of electronic various imaging that the use of thermal Accordingly, Siegal we held in at 191. II, of Article Section 11 subject requirement to the warrant is a search Siegal, 934 P.2d at 190-91. the Montana Constitution. of privacy leaves the ofhis home The Court holds “when public independent effects to the and its himself and his exposes expect preserve it is clear that he cannot perception, of powers expect affairs as he could at for himself or his degree privacy same of proposition, dog’s I do not view a sense agree While I with that home.” powers perception.” I “public’s independent smell as within characteristics of the Siegal, as we did in between distinguish, would human and those that are are detectable to senses luggage which olfac- sophisticated the assistance of a canine’s more detectable with is not an dog a trained narcotics detection tory Although sense. merely device, dog “a does more than allow detection electronic they using only could do their own efficiently what to do more police unobtainable dimension previously A adds a new and dog senses. therefore, greater represents dogs, The use of perception. human States v. Place United privacy.” into an individual’s intrusion (Brennan, 77 L.Ed.2d 696, 719-20,103 S.Ct. 462 U.S. subjective expectation light of Sheetz’s J., concurring). believe, a reasonable society is, willing recognize I the fact I would hold luggage, of checked in the contents of checked the contents dog narcotics to sniff use of a trained that the interest in a man- upon protected luggage intrudes airline Article Sec- meaning within constitutes search ner that Constitution. 11 of the Montana tions 10 and

II luggage at an dog investigation sniff I hold that would While it not rise to search, further hold that does to a I would amounts airport a search cause and requiring probable of search type of a the level Place, dog held that Court, in United States v. Supreme warrant. meaning ‘search’ within the do “not constitute a procedures sniff de- but, nonetheless, investigatory amount to an Fourth Amendment” suspicion before have at least a reasonable that officers requiring tention (“we 696, 2644 Place, at 103 S.Ct. at sniff. 462 U.S. conducting dog reasonably him to lead an officer’s observations conclude that when narcotics, that contains the carrying luggage that a traveler is believe the officer to detain the permit would Terry progeny and its principles suspi- circumstances that aroused his briefly investigate to properly is limited investigative detention provided cion scope”). analysis by the same Place, several courts have followed

Since Terry investigatory termed a dog sniffs to what has been analogizing before suspicion that officers have a requires stop which (Idaho See, State v. Martinez investigation. e.g., an with proceeding (Colo. 1993), 807; Boylan 854 P.2d 1996), 1125; People 925 P.2d v. App. (Conn. 1994), 529; A.2d Commonwealth 645 State v. Torres (Pa. 1987), recognizes This Court also 530 A.2d 74. Johnston 1868, 20 L.Ed.2d (1968), 392 U.S. S.Ct. Terry v. Ohio principles to Terry investigations exceptions 889, have been termed or what See, 11. of Article Section requirement cause warrant probable (automobile 195, 900 P.2d 306 (1995), 272 Mont. State v. Lott e.g., 510, 1206 (1995), 271 Mont. v. Graham exception); State (search 364, (1995), 270 Mont. 892 arrest); State v. Stubbs incident to (1992), 256 Mont. State v. Dow (stop exception); and frisk P.2d 547 (hot pursuit). P.2d 780 requirement, we exceptions to the warrant recognizing these conducting investigatory interest compelling state balance the right with the individual’s exigent under circumstances type search from unreasonable searches right to be free requirement, warrant exceptions note that these seizures. We and seizure cause, implicate still search probable requiring not while P.2d 258 Mont. State v. Anderson protections. pursuant conducted Thus, searches investigatory have a reasonable law enforcement exception require warrant activity taking place. that criminal suspicion” “particularized Montana’s right constitutional of privacy requires that the state have compelling state intruding upon interest for right privacy. one’s When government intrudes upon right, any fundamental compelling state interest for doing closely so must be tailored to effect only that compelling 43, 47, 887 interest. State v. 199, 202. Pastos More specifically,while the compelling state has a interest in preventing drug courier in airports, activities that interest carefully must be tailored to compelling effect interest and must be balanced against an right individual’s baggage. contents of his I agree dog with the Court that a sniff search is limited in both its substances). (only invasiveness and what it can detect illegal Further- more, I recognize that the transient airport status of in an distinguishes environment this case image from the thermal search of stationary Thus, a in building Siegal. in contrast I Siegal, to would not subject canine sniffs to the probable requirement cause of Article Section 11 of the Montana hand, Constitution. On the other I disagree sniffs allowing, blanche, with the Court’s carte canine of checked airport in the a luggage particularized absence of suspicion. expressed Siegal

We concern in presently nothing that “there is to stop simply law enforcement from selecting neighbor- structures or a (or scanning every hood at random and then building) home to any determine whether of the structures are generating suspicious signature.” Siegal, Likewise, heat 934 P.2d at 190. under this Court’s opinion nothing prevent there is to housing law enforcement from trained dog luggage any airport randomly narcotics area of to every piece luggage sniff that on the passes conveyor belt. Moreover, given the nature of a imperfect dog’s sense of smell1 we randomly should not allow law enforcement sniff search LaFave, 1 William F. Search and A See Seizure: Treatise on the Fourth (3d 2.2(f) 1996) (N.D.Ind. 1979) (citing F.Supp. Amendment ed. § Doe v. Renfrow (7th 1980) part dog 13-year-old cir. F.2d where a “alerted” to a aff'd girl during dog girl a school-wide sniff of all students. The continued to alert to the emptied pockets, subjected even after she all of her so she was to a nude search. No found, drugs playing dog were but it was later discovered that she had been with her addition, morning dog dog students, and her was in heat. In alerted to some 50 possessionn drugs. 17 of whom were found in See also United States v. (D.C.Cir. 1992) $639,558.00 Currency dog in United States 955 F.2d where a luggage, alerted to cocaine in traveler’s but no cocaine was found. It was determined currency dog luggage. that the was alerted to traces of cocaine on contained in the percent currency noted that 75 to 97 court estimates contains sufficient traces of dogs.) to alert cocaine trained suspicion support the search. particularized at least a without Therefore, sniffing allow canine at the unbridled discre- rather than enforcement, dog recognize airport I would sniff searches tion of law requirement, require to the warrant law exception as an particularized suspicion that an individual is enforcement have activity using dogs before trained narcotics involved in criminal luggage. the contents of airline sniff search Ill enforcement did not have a Finally, particu I would hold that law sniff search of Sheetz’s suspicion justifying investigatory an larized Reynolds by drug detecting dog. In State v. we noted that particularized suspicion or not a existed in order “the issue ofwhether factually Bauer State justify investigatory stop driven.” 119, 125, (citing Reynolds 910 P.2d State v. 543). totality (1995), 272 Mont. When the particularized create a suspicion, circumstances does not the inves Bauer, justified. Realizing is not 910 P.2d at 889-90. tigatory stop suspicion” ambiguities term resulted in for law “particularized enforcement, particularized suspicion that the must be explained we objective data and circumstantial evidence from which comprised of inferences and makes deductions that lead “a trained officer draws that the individual is resulting suspicion the officer to a involved Anderson, hand, activity.” criminal 853 P.2d at 1248. the case at objective Leighton did not have data and circumstantial Officer suspicion justifying an investi supporting particularized evidence gatory sniff search of Sheetz’s Authority Leighton Airport of the Tucson testified that he

Officer companions they and his because were suspicious was Sheetz signs Leighton explained of nervousness.” Officer “exhibiting the three individuals near the Continental Airlines when he noticed a and one counter, carrying bag each of them was duffle was ticket they new, explained suitcase. He further hard-sided pulling According to casually talking among and themselves. walking were in account, young Leighton three men noticed Officer when the his themselves and uniform, they talking among continued stopped, his the ticket counter. Two of by some couches near to stand proceeded minutes, while for a few Leighton’s left Officer view the individuals ahead straight and “stared the third remained with he not Leighton noted that was Officer the ticket counter....” towards stayed with the the individual who eye make contact with able to luggage. The two individuals returned a few later, minutes they and all checked in about fifteen minutes before their flight. “suspicious”

Based on this conduct, Officer Leighton decided to investigate their travel plans. He found that they purchased had their tickets from a agent travel and visited only Tucson for couple days. Leighton Officer checked the identification tag on the hard- suitcase; only sided a name and a phone appeared number on the tag. Leighton explained Officer that he had been trained to look for a “combination of characteristics” investigating when possible drug trafficking activity. Although Leighton Officer using denied “pro- file,” he nonetheless explained appearance that the ofthe individuals and the circumstances of their travel led him to believe that Sheetz companions and his were involved in drug trafficking activity. As a result, Officer Leighton called the Billings Police Department, re- ported suspicions, his and recommended that the Billings Police perform a sniff search on the luggage when it arrived in Montana. contrast, explained Sheetz his conduct as follows: He and two into airport friends walked near the Continental Airlines ticket counter. Each of his friends bag; carried duffle Sheetz had a backpack, bag a camera and pulling was They hard-sided suitcase. noticed that there many were not people airport, they so proceeded to the couch area and two of the individuals used the Shortly thereafter, restroom. they checked in at the ticket counter baggage. and checked their Sheetz does not recall seeing Officer Leighton Airport. at Tucson Sheetz further testified that he arranged plans his travel agent approximately with a travel one week trip spent days Tucson, before his three conduct which he any likened traveling business person. say

I dare Leighton’s inability eye Officer to make contact with three young, long-haired men who talked among themselves and stood a couch near the ticket counter until about 15 minutes before flight their would not lead a to believe Sheetz and his companions conducted themselves in a manner consistent with drug trafficking activity. Even Leighton subsequently when Officer they purchased learned that had agent tickets from a travel and had days, totality visited Tucson for a couple of of the circum- amount particularized suspicion stances did not to a warranting the Leighton’s testimony sniff search that occurred in this case. Officer “exhibiting signs that he believed the individuals were of nervous- “nothing [an] ness” was based on more substantial than inarticulate hunch[],” Supreme Court, a standard which the United States rejected

this Court have as insufficient to warrant investigatory Reynolds, (citing Terry, intrusion. 899 P.2d at 542 392 U.S. at 1880). merely at Officer Leighton S.Ct. saw three men young with hair, long ponytails and facial hair. Such innocuous characteristics government’s allowing do not warrant the a trained “canine cannabis emanating connoisseur” to savor the subtle aromas from a traveler’s baggage. I dissent.

Case Details

Case Name: State v. Scheetz

Court Name: Montana Supreme Court

Date Published: Dec 5, 1997

Citation: 950 P.2d 722

Docket Number: 96-358

Court Abbreviation: Mont.