Muir v. Bilderback

• Decision Date: 30 June 2015
• Docket Number: No. DA 14–0688.,DA 14–0688.
• Citation: 353 P.3d 473,2015 MT 180,379 Mont. 459
• Parties: Mark MUIR, Chief of Police, City of Missoula, State of Montana, Petitioner and Appellee, v. Bobby Jerome BILDERBACK, Respondent and Appellant.
• Court: Montana Supreme Court

379 Mont. 459

353 P.3d 473

2015 MT 180

Mark MUIR, Chief of Police, City of Missoula, State of Montana, Petitioner and Appellee

v.Bobby Jerome BILDERBACK, Respondent and Appellant.

No. DA 14–0688.

Supreme Court of Montana.

Submitted on Briefs May 6, 2015.

Decided June 30, 2015.

For Appellant: Craig Shannon, Attorney at Law, Missoula, Montana.

For Appellee: Kirsten H. Pabst, Missoula County Attorney, Andrew Paul, D. James McCubbin, Deputy County Attorneys, Missoula, Montana.

Opinion

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

¶ 1 Bobby Bilderback appeals from several orders of the District Court. We affirm.

¶ 2 We restate Bilderback's issues for review as follows:

¶ 3 1. Whether the District Court in its order of December 3, 2013, properly denied Bilderback's motion to suppress the evidence seized pursuant to the search warrant executed on his Hummer vehicle.

¶ 4 2. Whether the District Court in its order of August 25, 2014, properly denied Bilderback's motion to dismiss the forfeiture proceeding for lack of personal service of the notice of the forfeiture hearing.

¶ 5 3. Whether the District Court in its order of December 2, 2013, properly denied Bilderback's motion for summary judgment.

BACKGROUND

¶ 6 In March 2013 law enforcement officers in Washington State contacted the Missoula Police asking for assistance in locating Bobby Bilderback, who was wanted in Washington in connection with a homicide case. Washington officers supplied a Missoula address for Bilderback and a description of his Hummer vehicle which had Montana license plates. Missoula Police found Bilderback at the residence in Missoula, along with the Hummer. They took Bilderback into custody and seized the Hummer vehicle. Missoula Police Detective Curtis applied for and received a search warrant for the Hummer from the Montana Fourth Judicial District Court. Curtis supplied his own affidavit in support of the warrant, incorporating an affidavit of Detective Brown of the Whitman County Washington Sheriff's Office. The contents of the Brown affidavit are discussed more thoroughly below.

¶ 7 Missoula officers executed the search warrant for the Hummer. They found a locked metal tool box that contained over $36,000 in cash. They also found a thermos bottle in the engine compartment attached by a magnet. The thermos contained a baggie with methamphetamine residue in it.

¶ 8 On May 9, 2013, Mark Muir, then the Missoula Chief of Police, instituted this proceeding pursuant to § 44–12–102, MCA, seeking forfeiture of the Hummer, the cash and other items found during the search. The forfeiture petition and summons were served on Bilderback. He appeared through counsel and filed several motions in the forfeiture proceeding, including a motion to suppress the results of the search warrant. The District Court denied the motion and set the forfeiture matter for hearing on May 21, 2014. Neither Bilderback nor his attorney appeared at the hearing. The District Court received evidence from the State in support of forfeiture and ordered forfeiture of the Hummer and the cash. Bilderback appeals.¹

STANDARDS OF REVIEW

¶ 9 This Court reviews a district court's ruling on a motion to suppress evidence to determine whether the court's findings of fact are clearly erroneous and whether the court's interpretation and application of the law are correct. State v. Minett, 2014 MT 225, ¶ 7, 376 Mont. 260, 332 P.3d 235. This Court reviews a district court's decision on a motion to dismiss de novo, to determine whether it is correct. Milky Whey, Inc. v. Dairy Partners, 2015 MT 18, ¶ 7, 378 Mont. 75, 342 P.3d 13. This Court reviews a district court's ruling on summary judgment de novo, applying the same criteria under M.R. Civ. P. 56 as the district court. Bennett v. Hill, 2015 MT 30, ¶ 9, 378 Mont. 141, 342 P.3d 691.

DISCUSSION

¶ 10 Issue 1: Whether the District Court in its order of December 3, 2013, properly denied Bilderback's motion to suppress the evidence seized pursuant to the search warrant executed on his Hummer vehicle.

¶ 11 The Montana Constitution requires that:

No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing.

Mont. Const. Art. II, § 11. This is consistent with the requirements of the Fourth Amendment to the United States Constitution. State v. Bar–Jonah, 2004 MT 344, ¶ 63, 324 Mont. 278, 102 P.3d 1229. Montana law specifies the requirements for issuing a search warrant:

A judge shall issue a search warrant to a person upon application, in writing or by telephone, made under oath or affirmation, that:

(1) states facts sufficient to support probable cause to believe that an offense has been committed;

(2) states facts sufficient to support probable cause to believe that evidence, contraband, or persons connected with the offense may be found;

(3) particularly describes the place, object, or persons to be searched; and

(4) particularly describes who or what is to be seized.

Section 46–5–221, MCA. Officers executing a warrant may search for and seize evidence, contraband, or persons. Section 46–5–224, MCA. The warrant must be specific enough to reasonably identify the things to be seized, and to prevent general exploratory searches. The description of items to be seized needs to be reasonably specific but not elaborately detailed. Bar–Jonah, ¶ 64. The fact that evidence may be used to support another charge does not require suppression. Bar–Jonah, ¶ 64. The sufficiency of a warrant is considered on a case-by-case basis to determine whether alleged defects affect the substantial rights of the accused. State v. West, 1998 MT 282, ¶ 8, 291 Mont. 435, 968 P.2d 289.

¶ 12 This Court assesses the totality of the circumstances to determine whether a search warrant is based upon probable cause. In that context, the official issuing the warrant must only determine that there was a probability of criminal activity. State v. Barnaby, 2006 MT 203, ¶¶ 29–30, 333 Mont. 220, 142 P.3d 809. The official issuing the warrant must make a “practical, common sense determination, given all the evidence contained in the application for a search warrant, whether a fair probability exists that contraband or evidence of a crime will be found in a particular place.” State v. Zito, 2006 MT 211, ¶ 7, 333 Mont. 312, 143 P.3d 108. Probable cause must be determined from within the four corners of the application for a warrant, and the judicial officer's determination that probable cause exists is entitled to “great deference and every reasonable inference possible [must] be drawn to support that determination of probable cause.” State v. Tucker, 2008 MT 273, ¶ 17, 345 Mont. 237, 190 P.3d 1080.

¶ 13 When the information supporting the application for a search warrant comes from an informant, the first inquiry is whether the informant was anonymous. If so, then the information must be corroborated. Tucker, ¶ 20. If an informant is identified and is motivated by “good citizenship” then the information is deemed reliable if it demonstrates a sufficient degree of knowledge of the circumstances under which the information was obtained. State v. Palmer, 2003 MT 129, ¶ 18, 316 Mont. 46, 68 P.3d 809.

¶ 14 Bilderback moved to suppress the results of the search warrant issued for his Hummer vehicle and the District Court denied that motion in its order of December 3, 2013. Bilderback raises several issues on appeal attacking the validity of the search warrant. He contends that the application for the search warrant was deficient in that it relied upon information from an informant named Griffith. He contends that the basis for Griffith's knowledge about a “lock box” in the Hummer was not established, that his tip was not corroborated, and that his information did not “establish” that evidence would be found in the Hummer.

¶ 15 The application for the search warrant was supported by an affidavit from Detective Curtis of the Missoula Police, which incorporated a separate affidavit by Deputy Sheriff Brown of the Whitman County Washington Sheriff's Office. Brown's affidavit recounted in detail the Washington investigation of Bilderback's involvement in the drug-overdose death of a minor in Bilderback's house in Washington. The Brown affidavit listed several individuals who provided information to the investigation, including Bradley Griffith. Griffith was a long-time resident of Spokane, Washington; a “close friend” of Bilderback for four years; and had stayed at Bilderback's house where the overdose occurred. He originally contacted law enforcement himself, because of his concern for the safety of the minor, who was “missing” at that point, and for his own safety “due to the people involved.” Griffith had no criminal history and provided law enforcement with his name, address, phone number, and social security number. Deputy Brown affirmed that Griffith's knowledge of Bilderback and the residence were consistent with information from other sources. Brown also described Bilderback's Hummer vehicle, observed at his residence in Washington, and provided the Montana license plate, the VIN number, and the registered owners—Bilderback and his mother Marie Felton.

¶ 16 Griffith reported to Washington officers that Bilderback was “heavily involved in the distribution of methamphetamine and cocaine from Las Vegas to Montana.” Griffith also reported that Bilderback asked him to come to his house after the minor overdosed, and that Bilderback described the death as an overdose of methamphetamine. Griffith also reported Bilderback's description of using a safe that Griffith had previously seen in Bilderback's house to dispose of the body. Griffith described his observation of Bilderback and another individual loading the safe containing the body into a vehicle and leaving Bilderback's house. Griffith reported that Bilderback had given methamphetamine to the other...