State v. Broell, 90-464
| Decision Date | 24 June 1991 |
| Docket Number | No. 90-464,90-464 |
| Citation | 249 Mont. 117,814 P.2d 44 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Boyd Irvin BROELL, Defendant and Appellant. |
| Court | Montana Supreme Court |
Karl P. Seel, Bozeman, for defendant and appellant.
Marc Racicot, Atty. Gen., George Schunk, Asst. Atty. Gen., Helena, Wm. Nels Swandal, Park County Atty., Tara DePuy, Deputy County Atty., Livingston, for plaintiff and respondent.
The appellant, Boyd Broell, was charged with criminal possession of dangerous drugs with intent to sell, under Sec. 45-9-103, MCA, and criminal possession of dangerous drugs, under Sec. 45-9-102, MCA. Broell was found guilty of both offenses at an uncontested bench trial held before the Sixth Judicial District Court, Park County. He now appeals a denial of his motion to suppress. We affirm.
The dispositive issue on appeal is whether the District Court erred in denying the appellant's motion to suppress.
On January 18, 1990, Livingston police officer Sam Frederick noticed a 1976 Chevrolet Camaro stopped on the median in the middle of Park Street in Livingston. The vehicle's motor was still running and an occupant was sitting behind the steering wheel in an unconscious state with his head leaning against the window of the driver's door. Officer Frederick circled the car, pulled up behind it, and activated his lights and siren. The occupant drove the car across the oncoming traffic lane and up onto the curb, where he stopped on the sidewalk. Officer Frederick walked over to the car, saw the appellant inside, opened the driver's door, and shut off the ignition.
The officer detected an odor of alcohol on Broell and, after field sobriety tests, the appellant was arrested for driving under the influence of alcohol. Officer Frederick left Broell's car where it was, locked it, and kept the keys.
The appellant was taken to the station where he was booked for DUI. When asked to empty his pockets, Broell was reluctant to remove or give up his jacket. The police found in the appellant's jacket pocket a white tobacco pouch containing a small bag of what they believed was marijuana, a mirror, razor blade, tiny spoon and pipe, and a three inch plastic tube sniffer, all of which are items utilized by drug users. Also found in the appellant's possession were four small paper packets marked 1/4, 1/2 or 1, with white powder contents, which numbers Officer Frederick believed to signify the drug weights; a small yellow piece of paper that had initials and amounts on it, which Officer Frederick believed was a record of the appellant's customers who had bought drugs on credit; cash totalling $207 in one, five, ten and twenty dollar bills; and a small brown vial tucked into the back of the appellant's waistband, which contained white powder. The white powder in the paper packets and the vial were sent in for lab analysis and proved to be methamphetamine, commonly called "speed."
During the subsequent booking for possession of drugs with intent to sell, the appellant asked to make a telephone call. Broell asked whoever answered the telephone to go change the right front tire on his car and take the spare out of the trunk. This phone call, the fact that there had been no flat tire on the car, Broell's nervous demeanor and conduct, and the drugs found on his person made the police suspicious, so they decided to request a search warrant for the car. The dispatcher called a wrecker and had the car towed to the police garage pending application for, and issuance of, a search warrant.
The search warrant was issued at approximately 8:00 a.m., about three hours after Broell had been arrested for DUI. A search of the car disclosed nothing in the right front tire or the interior, but in the trunk, alongside the spare tire, the officers found a small, two-compartment knapsack. The lower compartment was unlocked and contained a few articles of clothing, some personal hygiene items, and a trifold wallet with $600 in cash and various credit cards. The upper compartment had a small padlock on it, which was opened with a key found on the ring with Broell's car keys. This compartment contained a leather eyeglass case and a vinyl bag.
Inside the eyeglass case police found $67 in one dollar bills and, stuffed beneath them, a matchbox-size tin container with eighteen pieces of blotter paper. Laboratory analysis later determined the blotter paper to be lysergic acid diethylamide, or "LSD".
The vinyl bag contained thirteen paper packets of drugs with various 1/4, 1/2, 1 and 8 markings similar to those on the packets found in Broell's possession when he was arrested, and one packet marked "Mine." Laboratory analysis determined the contents of the thirteen packets to be methamphetamine. The packet marked "Mine" was determined to be inositol, a non-dangerous substance used by drug dealers as a "cutting agent."
The articles and drugs found in Broell's trunk provided the basis for count II, possession of dangerous drugs. Broell filed a motion to suppress as evidence all items seized as a result of the search warrant on the grounds that no probable cause existed to issue the warrant. The motion was denied and the appellant was found guilty on both counts. He appeals the denial of his motion to suppress.
The appellant attacks the District Court's denial of his motion to suppress on three grounds; first, he contends that the application for search warrant lacked sufficient probable cause to justify issuing a search warrant; second, he argues that the search warrant was deficient because it failed to describe with sufficient particularity the articles to be seized; and finally, he contends that the seizure of his vehicle prior to the issuance of a search warrant was unlawful.
The appellant's first argument is that Officer Frederick was on a "fishing expedition" and had no more probable cause to believe there were drugs in Broell's car than he had probable cause to believe there would be drugs at his home or his place of business. The appellant correctly points out that simply because there is probable cause to believe someone is guilty of a crime, does not mean there is probable cause to search that individual's home. However, the standard for probable cause is not a prima facie showing of...
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