*1 82
STATE OF MONTANA,
Appellee,
Plaintiff and
KARSTEN K. SMITH,
Appellant.
Defendant
No. DA 06-0287.
September
Submitted on Briefs
2007.
January
Decided
2008.
MT
For Hon. John Appellee: Attorney Mike Paulson, General, Helena; Fred Van Attorney Assistant Paul, Attorney; Deputy Andrew W. Valkenburg, County Missoula Attorney, Missoula. County Opinion of the Court.
CHIEF JUSTICE GRAYdelivered (Smith) judgment entered appeals Karsten Karl Smith from Court, County, on his by the Fourth Judicial District Missoula felony convictions for criminal *2 drug We affirm in possession paraphernalia.
misdemeanor criminal of part and remand. following appeal: Smith raises the issues on
¶2 to denying 1. Did the District Court err in Smith’s motion ¶3 evidence? suppress 2. Did the Court err in Smith’s motion to dismiss
the on a violation of his trial? charges
BACKGROUND 11,2002, On March and Beccari probation parole officer Kathleen (Beccari) (Doman). probationer time, met with Mark Doman At the living Missoula, Montana, Doman girlfriend was with his Delores sister, (Garcia), Shepherd (Shepherd). Shepherd’s Darlene Garcia who probation, supposed living also was on was to be at the same residence Shepherd. with Doman and Doman informed Beccari that Garcia had and, instead, living not lived with them for several months had been boyfriend Pruyn with Smith a trailer on the Ranch. Beccari officer, reported probation Forsyth this information to Garcia’s Tom (Forsyth). Forsyth Shepherd, contacted who confirmed that Garcia had Shepherd living not lived with Doman and for and several months was Forsyth following day with Smith. met with Garcia Garcia that, although previously admitted she Doman reported she lived with Shepherd, actually living Pruyn she was with Smith on the Ranch. test, drug positive Garcia then submitted to a which tested for methamphetamine, violating she was arrested for the conditions probation. unreported change of her Based on the in residence and the test, determined positive drug Forsyth probation also a search of Pruyn justified. Garcia’s residence at the Ranch was day, Forsyth, Beccari, officer, Later a third County accompanied officers from the Missoula Sheriffs Office Garcia Pruyn Ranch. indicated she was fearful of Smith’s Garcia key reaction to a of the trailer and stated she did not have a gained entry by prying open the trailer. officers the trailer’s back The drug Upon searching, weapons, paraphernalia, door. the officersfound drugs. They also found and items used to manufacture and distribute purse Garcia’s and located of clothing some her in a closet. trailer, searching After apply officers decided to for a parked warrant search a bus near the trailer. they While arrive, waited for the search warrant to drove up to trailer pickup in a truck. drug-related trailer, Based on the items found in the as well as one knowledge officer’s that Smith’s driver’s license was suspended, Smith was arrested. In a search person of his incident to arrest, cash, officers large marijuana discovered a amount of pipe and a vial which Smith methamphetamine. admitted contained The officers later obtained a search warrant truck and discovered a leather pouch containing nine bindles of methamphetamine. The search ofthe precursors bus revealed chemical to methamphetamine. (State) April 16,2002, charged the State of Montana
information felony possession criminal misdemeanor drug criminal paraphernalia. amended the third charge information on June to add a felony possession dangerous criminal drugs with intent to distribute. suppress Smith moved to all evidence obtained in the searches. The 3,2003. District Court denied Smith’s motion February on The District eventually jury August 11, Court scheduled a trial for of2004, 2004. In late June Smith moved the charges against to dismiss *3 him on the that right basis his constitutional to a trial had speedy been violated. The District Court denied this motion. The court then vacated setting trial, the trial rescheduling nothing without the further happened parties in this matter until the District Court ordered the to 5, appear for a status conference on 2005. After April several conference, continuances ofthe status the the trial court scheduled 9, 28, 2005, November 2005. On June again moved to dismiss charges against the him based on lack of a trial. The District hearing Court held a and denied Subsequently, Smith’s motion. February of2006, appeared pled guilty in the District Court and possession to offenses of criminal of and criminal drug paraphernalia pursuant plea agreement of State, reserving right appeal pretrial his to the court’s denial ofhis accepted guilty pleas, motions. The District Court sentenced him, and entered on the and sentences. Smith judgment convictions appeals.
DISCUSSION 1. Did the District Court err in Smith’s motion to 85 evidence? suppress during all the evidence seized suppress Smith’s motion to his initial
searches in this case asserted that the warrantless search justified probation it not as a search trailer was unlawful because was As a requirement. warrant by any exception or other Smith, of his bus result, according subsequent person, to searches the initial emanating truck also unlawful as from pickup were search of the trailer. unlawful change Court determined that Garcia’s unreported officer, Forsyth, positive drug gave
in residence and test of Garcia’s new reasonable cause to conduct residence, which was Smith’s trailer. The court further determined arrest, that Smith’s the search of his to subsequent person pursuant arrest, pursuant and the searches of his vehicles all warrants Consequently, were lawful. the District Court denied Smith’s motion to suppress evidence. Smith asserts error. ruling We review a district court’s on a motion to
evidence to findings clearly determine whether its offact are erroneous Fritz, interpretation application its ofthe law correct. State v. 202, 8, 215, 8, 806, 2006 MT 333 Mont. 142 P.3d 8. ¶ ¶ ¶ The Fourth Amendment to the United States Constitution and II, Article an guarantee Section 11 of the Montana Constitution individual’s to be free from unreasonable searches and seizures. It is well-established that a search in the of a conducted absence properly se probable per issued warrant based on cause is recognized exception unreasonable absent a to the warrant requirement. 182, 10, MT e.g. Copelton, See State v. 2006 ¶ (citation omitted). 91, 10, 140 P.3d ¶ ¶ effects, however, may probationer’s A search of a residence or be pursuant conducted without a search warrant and to the lesser 10; cause,” Fritz, probable standard of“reasonable rather than cause. ¶ Kriesel, 144, 12, 44, 12, State v. Mont. ¶ ¶ ¶ probationer 12. The rationale for the lesser standard is that a applying expectation privacy supervising probation has a diminished and a supervision officer is in a determine the level position better safety to the necessary provide probationer rehabilitation to the community. Fritz, 10; Kriesel, Determining existence ¶ ¶ *4 a a factual probationary reasonable cause to conduct search involves Kriesel, Fritz, 10; inquiry totality of the circumstances. on ¶ ¶ had argues finding Forsyth that the District Court’s that
sufficient information on which living to determine Garcia was at Pruyn Smith’s trailer on the Ranch is erroneous clearly and cannot further support finding Forsyth court’s that had reasonable cause probationary disagree. conduct a search of the trailer. We reporting Forsyth Garcia had been that she resided with 11, 2002, however, Shepherd Dornan. March Dornan’s Forsyth officer informed that Dornan had stated Garcia was currently living Pruyn with Smith at the trailer on the Forsyth Ranch. directly Shepherd, then spoke with who confirmed that Garcia was no longer living Dornan, her and living with but was with Smith. Furthermore, 12, 2002, met Forsyth Garcia with on March living with Forsyth admitted she was Smith and had failed to inform change Thus, Forsyth of her in residence. had first-hand information-including Garcia’s living own admission-that Garcia was changed with Smith and had her residence in violation of the conditions of her We conclude probation. finding the District Court’s not regard clearly of fact in this is erroneous. provided addition, In sample drug testing Garcia a urine for at during
Forsyth’s their request meeting. drug March 12 test Thus, positive methamphetamine Forsyth showed a result use. had using drugs the additional information that Garcia was in violation of conditions, her probation drugs and reason to evidence of believe at drug might use found agree be residence. We that, totality circumstances-including Court under the of the Garcia’s unreported change of residence and had positive drug test-Forsyth Pruyn reasonable cause to search Smith’s trailer on the Ranch where living. Thus, currently Garcia we further conclude that the was justified probationary of Smith’s trailer was as a search. however, argues, Forsyth’s probationary Smith also that Forsyth policies ofhis trailer was unlawful because failed to follow set the Montana procedures by Department Corrections Probation Bureau, Forsyth verify [Garcia] and Parole in “failed to lived at trailer, permission that she had Smith’s to live at the trailer and the implications allowing [Garcia] that Smith understood live However, Smith specific policies the trailer.” fails to cite the provide legal authority he were violated and fails to procedures asserts policies of his contention that a violation of such or support not procedures would render search unlawful. We do legal citation to arguments supported address which are not Hicks, 71, 22, authority. e.g. See ¶ ¶ 12(l)(f). 206, 22; M. R. App. P. ¶ *5 search of Smith’s trailer was Having that the determined ¶20 residence, search of Garcia’s legally justified as a legality of the searches of any other challenge by absent the District Court did not err in person vehicles, his we conclude determining these lawful. searches were Smith’s denying did not err in We hold that the District Court
motion to evidence. in denying 2. Did the Smith’s motion District Court err right speedy his to a charges dismiss the on a violation trial? charges against dismiss the moved the District Court occasions, right
him on State had violated his to a asserting two In second speedy trial. The denied both motions. its District Court that, although court observed it motion, order Smith’s length troubling, found the the case to trial delay bringing in establishing State had met the delay prejudiced its burden had not Thus, speedy Smith. to a trial was court determined not violated. Smith District Court’s conclusion in this contends the regard is erroneous. appeal, analyze this trial both Smith and the pursuant originally City issue set forth in to the standards we
Billings Bruce, 148, 965 However, 186, 290 Mont. P.2d 866. 1998MT parties after the we rendered our in State briefed this decision appeal, 442, 815, v. Ariegwe, in which we Thus, claims. analyzing speedy established a trial new framework for parties neither the opportunity had the Court nor the analyze the speedy this new framework. We deem it trial issue under appropriate apply Ariegwe analysis that the in the District Court and, first reason, instance. For that decline to resolve this issue we instead, prejudice timely remand it Court without to the District appeal thereafter party. either Affirmed for further part proceedings consistent and remanded opinion.
with this COTTER, JUSTICES and MORRIS concur. WARNER JUSTICE dissents. NELSON concurs and Opinion I concur in Issue 1.1 dissent from our Opinion our as to remand as to that I dissented from our Issue for the same reasons 06-0753, issued Billman, order State v. DA November No.