Best v. Police Dept. of City of Billings, 99-406.

• Citation: 299 Mont. 247,999 P.2d 334,2000 MT 97
• Decision Date: 17 April 2000
• Docket Number: No. 99-406.,99-406.
• Parties: 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.
• Court: United 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.

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. ¶ 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'" but that, if the Montana Supreme Court did not reverse the ruling, the ruling would be precedent by which he and his officers would be bound.

¶ 10 On December 23, 1998, the Citizens filed an Application for Writ of Mandate to compel Chief Tussing to direct his officers to comply with Judge Colberg's ruling. Thereafter, and prior to a hearing on the application, the Billings Gazette reported two more incidents in which Best had been stopped and a drug-detecting dog deployed. Again, Chief Tussing responded publicly to those reports stating, among other things, that Judge Colberg's "ruling did not order the police to stop making such searches."

¶ 11 Chief Tussing subsequently moved to dismiss the application for writ of mandate and the matter was fully briefed and submitted to Judge Baugh on the basis of the parties' briefs. Concluding that the Citizens had not established entitlement to a writ of mandate, Judge Baugh denied their application. The Citizens appeal.

¶ 12 It is important to note that Judge Colberg's ruling on Best and Trotchie's motions to suppress is not on appeal in this case. Therefore, we do not address the merits of that ruling or substantive arguments presented by the parties relating to search and seizure law in general and dog sniffs in particular.

DISCUSSION

¶ 13 Did the District Court err in denying the Citizens' application for writ of mandate?

¶ 14 Section 27-26-102, MCA, sets forth the two requirements which must be met by a party seeking a writ of mandamus. The writ is available where the party applying for it is entitled to the performance of a clear legal duty by the party against whom the writ is sought and there is no speedy and adequate remedy in the ordinary course of law. Section 27-26-102, MCA; Smith v. County of Missoula, 1999 MT 330, ¶ 28, 297 Mont. 368, ¶ 28, 992 P.2d 834, ¶ 28. If the first part of the standard is not met—that is, if no clear legal duty is established—issuance of the writ is barred. Newman v. Wittmer (1996), 277 Mont. 1, 11-12, 917 P.2d 926, 932 (citations omitted).

¶ 15 Judge Baugh denied the Citizens' application for writ of mandate based on his conclusion that no clear legal duty was owed by Chief Tussing as a result of Judge Colberg's ruling. A district court's denial of a writ of mandate calls for a conclusion of law which we review to determine if it is correct. Larson v. State, Dept. of Justice (1996), 275 Mont. 314, 317, 912 P.2d 783, 785.

¶ 16 The Citizens advance a number of arguments on appeal which are unassailable and which are not disputed by Chief Tussing. They contend, for example, that it is the province and duty of the judiciary "to say what the law is" and, indeed, this has been well established since Marbury v. Madison (1803), 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60. Closely related to this fundamental principle is the doctrine of separation of powers between branches of government and the corresponding duty of members of the executive branch, including local law enforcement officials, to comply with lawful court orders. See, e.g., Article III, Section 1, Mont. Const.; § 7-32-2121(5), MCA. Indeed, as the Citizens point out, municipal police are under the jurisdiction of courts based not on a court's jurisdiction over their persons, but because police departments are "chargeable with an independently existing duty to enforce the law." See Boung Jae Jang v. Brown (1990), 161 A.D.2d 49, 560 N.Y.S.2d 307, 312

(citations omitted).

¶ 17 From these premises, and in opposition to Judge Baugh's determination that court opinions are not usually an appropriate foundation for mandamus, the Citizens contend "there is no reason...