Best v. Police Dept. of City of Billings, No. 99-406.

Docket NºNo. 99-406.
Citation299 Mont. 247, 999 P.2d 334, 2000 MT 97
Case DateApril 17, 2000
CourtUnited States State Supreme Court of Montana

999 P.2d 334
2000 MT 97
299 Mont. 247

Mark BEST, Jane Howell, Joan Hurdle, Vern Klingman, Tom Towe and Clarence Williams, Petitioners and Appellants,
v.
POLICE DEPARTMENT OF the CITY OF BILLINGS and the City of Billings Police Chief Tussing, Defendants and Respondents

No. 99-406.

Supreme Court of Montana.

Argued February 8, 2000.

Submitted February 14, 2000.

Decided April 17, 2000.


999 P.2d 335
Elizabeth Brenneman (argued), American Civil Liberties Union of Montana, Billings, Montana, For Appellants

Brent Brooks (argued) City Attorney, Billings, Montana, For Respondents.

Charles F. Moses, Attorney at Law, Billings, Montana Palmer A. Hoovestal, Attorney at Law, Helena, Montana (for Montana Association of Criminal Defense Lawyers), Hon. Joseph P. Mazurek, Attorney General; Chris D. Tweeten (argued), Chief Counsel, Helena, Montana (for Montana Attorney General), For Amicus Curiae.

Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 Mark Best and others (collectively, Citizens) filed an Application for Writ of Mandate against the Police Department of the City of Billings and City of Billings Police Chief Ronald Tussing to compel Chief Tussing to direct his police officers to comply with an order suppressing evidence entered by Judge Maurice R. Colberg, Jr. (Judge Colberg). The Thirteenth Judicial District Court, Yellowstone County, the Honorable G. Todd Baugh, presiding, denied the application and the Citizens appeal. We affirm.

¶ 2 The dispositive issue on appeal is whether the District Court erred in denying the Citizens' application for writ of mandate.

BACKGROUND

¶ 3 The relevant facts in this case are not disputed. In Cause Numbers DC 98-214 and DC 98-219, in the Yellowstone County District Court, the State of Montana charged Mark Best (Best) and Rae Trotchie (Trotchie) with certain drug-related offenses. Best and Trotchie moved to suppress evidence obtained after a stop of the vehicle in which they were traveling on the grounds it was obtained in violation of their constitutional search and seizure rights.

999 P.2d 336
¶ 4 On November 17, 1998, after an evidentiary hearing, Judge Colberg entered Findings of Fact, Conclusions of Law and Memorandum granting the motions to suppress. The court found that the vehicle, which was registered to Best, had been stopped for a suspected traffic offense and that the officer requested—and obtained—identifying information from the vehicle's occupants. Intending to write a warning citation for failure to have an illuminated license plate, the officer ran a warrants check on the persons in the vehicle. No warrants were outstanding, but the identity provided by one of the occupants—later established to be Trotchie—was suspicious. Based solely on his knowledge that Best previously had been involved with drugs, the officer requested Officer Zidack (Zidack) to respond with his trained drug-detecting dog

¶ 5 Prior to the dog's arrival, another officer responded to the scene of the traffic stop. Based on that officer's recognition of Trotchie, she was arrested for obstruction of justice for providing false identification. After Zidack arrived with his dog, pat-down searches were conducted of the vehicle's occupants. The search of Best produced a small box containing women's jewelry and what appeared to be marijuana; the box could not reasonably have contained a weapon.

¶ 6 The drug-detecting dog was then deployed and, upon circling the vehicle, "alerted" as to an indication by odor of the presence of illicit drugs. The dog then entered the vehicle through an open door and appeared to be detecting the odor of illegal drugs in the vicinity of the glove box. Officers then searched the vehicle and found drugs and drug paraphernalia upon which criminal charges against Best and Trotchie subsequently were based.

¶ 7 Judge Colberg concluded that the officer had a particularized suspicion to stop the vehicle for a suspected traffic offense. He also concluded that, while the dog sniff was a search, it was the type of search for which particularized suspicion, rather than probable cause, was required. In that regard, the court concluded "[t]here was an insufficient particularized suspicion of illegal activity involving possession of drugs or contraband to allow the investigative tool of a dog sniff." Alternatively, the court concluded that the intrusion of the dog into the vehicle constituted a search without probable cause. Accordingly, the court granted the motions to suppress. Judge Colberg added a lengthy Memorandum to the Findings of Fact and Conclusions of Law which further explained his reasoning and which included his observation that the application of legal principles to cases in the search and seizure arena seems to "substantially depend on the factual nuances of each case." Judge Colberg ended his Memorandum as follows:

In conclusion, the motions to suppress of Best and Trotchie should be granted and all of the drugs and contraband found within the interior of the vehicle and alleged marijuana found in the 3 inch by 5 inch box located on the person of Best should be suppressed and not allowed to be utilized at trial.

¶ 8 The day after Judge Colberg's ruling, Best apparently was again in a vehicle stopped for a traffic violation. Best alleges that law enforcement officers again brought a drug-detecting dog to the scene which sniffed the exterior of the vehicle without particularized suspicion to believe illegal drugs were present. Without regard to the veracity of Best's allegations, the record reflects that, on that date, another Yellowstone County District Court Judge issued a search warrant authorizing the impoundment and search of the vehicle without requiring the particularized suspicion discussed in Judge Colberg's suppression order of the day before.

¶ 9 Subsequent to Judge Colberg's ruling, Chief Tussing was quoted in the Billings Gazette as stating he would not direct his officers to change their procedures to follow Judge Colberg's ruling on Best and Trotchie's motions to suppress. He also stated that, while failure to establish particularized suspicion in some cases might result in the dismissal of those cases, he would rely on the "court of public opinion." Chief Tussing later wrote a letter to the Billings Gazette stating that Judge Colberg's ruling was "not the law'"...

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9 practice notes
  • State v. Cooksey, No. DA 11–0165.
    • United States
    • Montana United States State Supreme Court of Montana
    • October 9, 2012
    ...and upholding [286 P.3d 1192]the law” is a “constitutionally designated role[ ]” of the courts); Best v. Police Dept. of Billings, 2000 MT 97, ¶ 16, 299 Mont. 247, 999 P.2d 334 (the doctrine of separation of powers between branches of government is “[c]losely related” to the fundamental pri......
  • Larson v. State, DA 18-0414
    • United States
    • Montana United States State Supreme Court of Montana
    • January 30, 2019
    ...cognizable claims for relief. Mont. Const. arts. III, § 1, and VII, § 1 ; Best v. City of Billings Police Dep’t of the City of Billings , 2000 MT 97, ¶ 16, 299 Mont. 247, 999 P.2d 334 ; State v. Finley , 276 Mont. 126, 135, 915 P.2d 208, 214 (1996) (quoting Marbury v. Madison , 5 U.S. (1 Cr......
  • Montana Pet. Tank Comp. Bd. v. Crumleys, No. DA 06-0505.
    • United States
    • January 3, 2008
    ...designated roles in interpreting and upholding the law. Mont. Const. art. VII, § 1; Best v. Police Dept. of City of Billings, 2000 MT 97, ¶ 16, 299 Mont. 247, ¶ 16, 999 P.2d 334, ¶ 16 ("It is the province and duty of the judiciary `to say what the law is' . . . .") (citing Marbury v. Madiso......
  • McLaughlin v. Mont. State Legislature, OP 21-0173
    • United States
    • Montana United States State Supreme Court of Montana
    • May 12, 2021
    ...judgments thereon ....") (citing Mont. Const. arts. III, § 1, and VII, § 1, inter alia ; Best v. City of Billings Police Dep't , 2000 MT 97, ¶ 16, 299 Mont. 247, 999 P.2d 334 (among the three coordinate branches of a constitutional government "it is the province and duty of the judiciary ‘t......
  • Request a trial to view additional results
9 cases
  • State v. Cooksey, No. DA 11–0165.
    • United States
    • Montana United States State Supreme Court of Montana
    • October 9, 2012
    ...and upholding [286 P.3d 1192]the law” is a “constitutionally designated role[ ]” of the courts); Best v. Police Dept. of Billings, 2000 MT 97, ¶ 16, 299 Mont. 247, 999 P.2d 334 (the doctrine of separation of powers between branches of government is “[c]losely related” to the fundamental pri......
  • Larson v. State, DA 18-0414
    • United States
    • Montana United States State Supreme Court of Montana
    • January 30, 2019
    ...cognizable claims for relief. Mont. Const. arts. III, § 1, and VII, § 1 ; Best v. City of Billings Police Dep’t of the City of Billings , 2000 MT 97, ¶ 16, 299 Mont. 247, 999 P.2d 334 ; State v. Finley , 276 Mont. 126, 135, 915 P.2d 208, 214 (1996) (quoting Marbury v. Madison , 5 U.S. (1 Cr......
  • Montana Pet. Tank Comp. Bd. v. Crumleys, No. DA 06-0505.
    • United States
    • January 3, 2008
    ...designated roles in interpreting and upholding the law. Mont. Const. art. VII, § 1; Best v. Police Dept. of City of Billings, 2000 MT 97, ¶ 16, 299 Mont. 247, ¶ 16, 999 P.2d 334, ¶ 16 ("It is the province and duty of the judiciary `to say what the law is' . . . .") (citing Marbury v. Madiso......
  • McLaughlin v. Mont. State Legislature, OP 21-0173
    • United States
    • Montana United States State Supreme Court of Montana
    • May 12, 2021
    ...judgments thereon ....") (citing Mont. Const. arts. III, § 1, and VII, § 1, inter alia ; Best v. City of Billings Police Dep't , 2000 MT 97, ¶ 16, 299 Mont. 247, 999 P.2d 334 (among the three coordinate branches of a constitutional government "it is the province and duty of the judiciary ‘t......
  • Request a trial to view additional results

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