State v. Anderson

• Decision Date: 26 March 1999
• Docket Number: No. 97-667,97-667
• Citation: 1999 MT 60,977 P.2d 983
• Parties: STATE of Montana, Plaintiff and Respondent, v. Robert Duane ANDERSON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 983

977 P.2d 983

1999 MT 60

STATE of Montana, Plaintiff and Respondent, v. Robert Duane ANDERSON, Defendant and Appellant.

No. 97-667.

Supreme Court of Montana.

Submitted on Briefs Dec. 3, 1998.

Decided March 26, 1999.

Amy Guth, Public Defenders Office, Libby, Montana, for Appellant.

Hon. Joseph P. Mazurek, Attorney General, Patricia Jordan, Ass't Attorney General, Helena, Montana, Bernard J. Cassidy, Lincoln Justice KARLA M. GRAY delivered the Opinion of the Court.

County Attorney, Libby, Montana, for Respondent.

¶1 Robert Duane Anderson (Anderson) appeals from the judgment entered by the Nineteenth Judicial District Court, Lincoln County, on his conviction for criminal possession of dangerous drugs and criminal possession of drug paraphernalia, both misdemeanors. We reverse and remand.

¶2 The dispositive issue on appeal is whether the District Court erred in denying Anderson's motion to suppress.

BACKGROUND

¶3 On October 8, 1996, Detective Steve Hurtig (Hurtig) of the Lincoln County Sheriff's Department (LCSD) applied for and received a search warrant from the Lincoln County Justice Court (Justice Court) authorizing the search of a trailer house in which Toni Merrill (Merrill) and Randy Erickson(Erickson) lived. The search warrant authorized the search of the residence for dangerous drugs, drug paraphernalia and other specified evidence or contraband relating to illegal drug possession or distribution; it did not authorize the search of any person.

¶4 At approximately 11:30 a.m. that same day, Hurtig and several other LCSD officers arrived at the trailer to execute the search warrant. Anderson, who was living at the trailer for several days while in the process of moving, answered the door and Hurtig announced that he had a warrant to search the residence. The officers directed Anderson to go into the living room, where he remained seated on the couch while they conducted the search. Hurtig went into a back bedroom where Merrill and Erickson were sleeping and, during his search of the bedroom, discovered several small plastic bags containing what he believed to be methamphetamine. Hurtig arrested Merrill and Erickson at that point and brought them into the living room.

¶5 Anderson then asked to be allowed to leave the trailer and Hurtig responded that Anderson could not leave the premises until he had been searched. Hurtig searched Anderson and found a small bag containing what he believed to be marijuana and a pipe used for smoking marijuana. Anderson was arrested and subsequently charged in Justice Court with the misdemeanor offenses of criminal possession of dangerous drugs and criminal possession of drug paraphernalia. Following a bench trial, the Justice Court found Anderson guilty of both offenses and imposed sentence. Anderson appealed his convictions to the District Court.

¶6 Anderson moved the District Court to suppress the evidence seized during the search of his person, asserting that the warrantless search violated his right to be free from unreasonable searches and seizures. The District Court held a combined hearing on the motion to suppress and bench trial and subsequently entered its order denying Anderson's motion to suppress. Thereafter, the court rendered its verdict finding Anderson guilty of both charged offenses and sentenced him to six months in jail for each offense, with execution of the sentences suspended subject to specified conditions. The District Court entered judgment on the convictions and sentences and Anderson appeals.

STANDARD OF REVIEW

¶7 "We review a district court's denial of a motion to suppress to determine whether the court's findings of fact were clearly erroneous and whether those findings were correctly applied as a matter of law." State v. Williamson, 1998 MT 199, p 7, 965 P.2d 231, p 7, 55 St.Rep. 843, p 7 (citing State v. Fitzgerald (1997), 283 Mont. 162, 167, 940 P.2d 108, 111). The parties do not dispute the pertinent facts in this case and, as a result, we address only whether the District Court correctly applied the law in denying Anderson's motion to suppress.

DISCUSSION

¶8 Did the District Court err in denying Anderson's motion to suppress?

¶9 Anderson moved to suppress the evidence obtained during the search of his person on the basis that the search was neither authorized by a warrant nor justified by an exception to the warrant requirement and, therefore, violated his constitutional right to be free from unreasonable searches and seizures. In denying Anderson's motion, the District Court concluded that the LCSD officers had probable cause to believe that Anderson was committing a crime and, as a result, that they were justified in conducting the warrantless search. The court also determined that it was preferable to conduct the relatively noninvasive search than to detain Anderson while the officers applied for a search warrant. Anderson asserts that the District Court erred.

¶10 The Montana Constitution guarantees citizens the right to be free from unreasonable searches and seizures by providing that

[t]he people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures. No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing.

Art. II, Sec. 11, Mont. Const. It is well-established that a warrantless search is per se unreasonable absent the existence of one of the carefully drawn exceptions to the warrant requirement. State v. Wakeford, 1998 MT 16,p 21, 287 Mont. 220, p 21, 953 P.2d 1065, p 21 (citation omitted); see also § 46-5-101, MCA. In this case, the parties do not dispute that the search warrant obtained by the LCSD officers did not authorize the search of any person and that no other search warrant authorized the search of Anderson's person. Consequently, unless the search was justified by a judicially recognized exception to the search warrant requirement, it was per se unreasonable.

¶11 One exception to the search warrant requirement is where probable cause exists to conduct the search and exigent circumstances make it impracticable to obtain a warrant. See Wakeford, p 22 (citations omitted). Anderson argues that this exception is inapplicable here because neither probable cause nor exigent circumstances existed when Hurtig searched him.

¶12 Probable cause exists where the facts and circumstances within an officer's knowledge, or conveyed to the officer by a reliable source, are sufficient to warrant a reasonable person to believe that another person has committed an offense. Wakeford, p 22 (citation omitted). The District Court concluded that Hurtig had probable cause to believe that Anderson was committing the offense of possession of dangerous drugs based on his knowledge of Anderson's extensive history of drug-related activity, much of which was associated with Merrill and Erickson and their trailer residence, combined with the fact that Hurtig had found what he believed to be methamphetamine in the trailer prior to his search of Anderson. We agree.

¶13 In his affidavit in support of the search warrant application, Hurtig stated that Anderson had been arrested in March of 1996 for possession with intent to sell one pound of marijuana. The affidavit further stated that the LCSD had received information from anonymous and confidential informants in December of 1995, January of 1996 and March of 1996 regarding Anderson's involvement with drug trafficking. These informant tips also connected Anderson's drug-related activities to Merrill, Erickson and the trailer which was searched pursuant to the warrant. Hurtig also testified at the hearing on the motion to suppress that he knew Anderson had been arrested in 1991 for possession with intent to sell eleven pounds of marijuana. Thus, Hurtig was aware, prior to searching the trailer, that Anderson had a history of possessing and trafficking in dangerous drugs. This knowledge, when combined with his subsequent discovery of what Hurtig believed to be methamphetamine in the trailer bedroom and Anderson's presence in the trailer at the time of the search, was sufficient to give Hurtig probable cause to believe that Anderson was committing the offense of possession of dangerous drugs.

¶14 Anderson argues, however, that the information regarding his prior drug-related activity was stale and cannot support a determination of probable cause. A determination of whether information is too stale to be considered in establishing probable cause depends largely on the nature of the activity at issue. State v. Rinehart (1993), 262 Mont. 204, 213, 864 P.2d 1219 1224. Where criminal activity is continuing in nature, information which would be stale when considered individually will carry greater weight in a probable cause determination when combined with more recent information. Rinehart, 262 Mont. at 214, 864 P.2d at 1224-25. Furthermore, we previously have determined that where information reveals that the possession and distribution of dangerous drugs by a person is a protracted and continuing activity, the passage of time between prior conduct and the probable cause determination becomes less significant. State v. O'Neill (1984), 208 Mont. 386, 395-96, 679 P.2d 760, 765.

¶15 Here, the LCSD received the informant tips regarding Anderson's drug-related activities between seven and ten months prior to the search at issue. One of Anderson's drug-related arrests was five years prior to the search and the other was a mere seven months earlier. Although the informant tips and arrest information may be stale when each is considered individually, the combined effect of the information--in the context of Hurtig's discovery, only minutes before he searched Anderson, of methamphetamine in the trailer where Anderson was staying and where much of Anderson's prior...