State v. Clark, DA 07-0148.

CourtUnited States State Supreme Court of Montana
Citation198 P.3d 809,2008 MT 419
Docket NumberNo. DA 07-0148.,DA 07-0148.
PartiesSTATE of Montana, Plaintiff and Appellee, v. Cody CLARK, Defendant and Appellant.
Decision Date16 December 2008

For Appellant: Jack H. Morris; Jardine, Morris & Tranel, PLC; Whitehall, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General; Jonathan M. Krauss, Assistant Attorney General; Helena, Montana, Matthew C. Johnson, Jefferson County Attorney; Boulder, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Appellant Cody Clark (Clark) was convicted of criminal possession of dangerous drugs, a felony, driving with a suspended/revoked license, a misdemeanor, and failure to carry liability insurance, a misdemeanor, after a jury trial in the Fifth Judicial District Court, Jefferson County. Clark appeals the District Court's order denying his motion to suppress evidence and the resulting jury verdict. We affirm.

¶ 2 We address the following issues on appeal:

¶ 3 1. Did the District Court err by denying Clark's motion to suppress evidence obtained following law enforcement's stop of Clark's motor vehicle and his consent to search the vehicle, for one of the following reasons?

a. No particularized suspicion justified the stop;

b. Clark was not given Miranda warnings;

c. The interrogation and search exceeded the scope of the stop;

d. Clark's consent to the search was inadequate;

e. Clark requested but was denied counsel.

¶ 4 2. Did the District Court abuse its discretion by excluding evidence of Clark's negative urinalysis test obtained six days after his arrest?

¶ 5 3. Did sufficient evidence support the jury's verdict convicting Clark of criminal possession of dangerous drugs?

¶ 6 4. Did the District Court abuse its discretion by admitting the testimony of a pharmacist, Tammy Cox, without conducting a Daubert hearing?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 7 Clark was driving a 1991 green Ford Explorer on the night of August 9, 2004, when he was pulled over by Montana Highway Patrol Trooper David Gleich (Trooper Gleich). Trooper Gleich pulled Clark over after receiving a cell phone call from his brother, Deputy Sheriff Robert Gleich (Deputy Gleich), notifying him that a domestic disturbance had been reported in Basin, Montana, between Clark and the passenger in his vehicle, Robin Wing, and that they were believed to be traveling north on Interstate 15, south of Helena. Deputy Gleich also notified Trooper Gleich that neither Clark nor Wing had a valid driver's license, having interacted with both individuals two weeks prior, and that Clark might be in possession of a firearm. Upon pulling Clark over, Trooper Gleich established that Clark's driver's license was in fact suspended and the vehicle was not insured. Trooper Gleich asked Clark to exit the vehicle, then handcuffed Clark and placed him in the back of the patrol car in order to separate Clark from Wing and better investigate the alleged disturbance. Clark had a cut and dried blood on his hand. As he was being led to Trooper Gleich's patrol car, Clark yelled to Wing, "Call the attorney now. This is harassment."

¶ 8 When Trooper Gleich returned to Clark's vehicle and questioned Wing about the alleged disturbance, she was upset that she and Clark had been pulled over and denied that there was any disturbance. She assured Trooper Gleich she was unharmed. She and Clark both maintained that the cut on Clark's hand was from cleaning up broken glass. Deputy Gleich arrived shortly thereafter, and also checked with Wing to make sure she was okay before questioning Clark about the alleged disturbance. Deputy Gleich also asked whether there was a weapon in the vehicle. Clark responded that there was and gave Deputy Gleich permission to locate a .45 caliber handgun, which he did. Upon returning to the patrol car, Deputy Gleich asked Clark for permission to search the rest of the vehicle and Clark consented. Deputy Gleich and Trooper Gleich then located five prescription drug pills (one brand name Oxycontin, three generic Darvocet, one generic Vicodin) in bindles in the backseat of the vehicle, for which Clark admitted that he did not have prescriptions. The phrase "Stay High" was written on one of the bindles along with a picture of a balloon. Clark was arrested for driving with a suspended license and failure to carry proof of insurance. He was later charged with possession of dangerous drugs.

¶ 9 The green Ford Explorer Clark was driving did not belong to him, but rather had been loaned to him for the summer by his employer, Teresa Hecker (Hecker). Clark worked for Hecker's fire suppression company and was given Hecker's vehicle so that he could get to fires quickly when he was needed. However, Clark treated and used the vehicle as his own and let others borrow the vehicle throughout the summer. Unbeknownst to Hecker, for example, Clark had loaned Hecker's vehicle to another individual, Judy Piper (Piper), for over a month of the summer, trading it for Piper's 2003 Chevy Trailblazer to prevent the Trailblazer from being repossessed. Piper was a retired military veteran and had prescriptions for Oxycontin, Darvocet, and Vicodin. A few days prior to being pulled over, Wing and Clark had also helped Piper move from Basin to Butte using Hecker's vehicle. After helping Piper move, Clark once again had possession of the Ford Explorer for the remainder of the summer, although some of Piper's possessions may have remained in the back seat.

¶ 10 Prior to trial, Clark moved to suppress the evidence seized and statements made to law enforcement after he was stopped. The District Court denied Clark's motion to suppress, concluding that particularized suspicion justified the investigative stop and that Clark had validly consented to a search of the vehicle. At the request of the State, the District Court excluded evidence of a negative drug urinalysis test Clark took six days after his arrest. The District Court concluded that such evidence was not probative of whether Clark possessed dangerous drugs on the day of his arrest. Finally, the District Court denied Clark's request for a Daubert hearing on the testimony of the State's pharmaceutical expert, Tammy Cox (Cox), regarding identification of the prescription pills found in Clark's vehicle. According to Clark, identification of prescription pills only by visual reference to numbers printed on the pills, and not by chemical analysis of their contents, was "novel scientific evidence." The District Court apparently did not rule on the motion but allowed Cox to testify at trial.

¶ 11 A jury found Clark guilty of criminal possession of dangerous drugs, driving with a suspended license, and failure to carry liability insurance. Clark appeals.

STANDARD OF REVIEW

¶ 12 We review a district court's denial of a motion to suppress to determine whether its findings of fact were clearly erroneous and whether it correctly applied those findings as a matter of law. State v. Graham, 2007 MT 358, ¶ 10, 340 Mont. 366, ¶ 10, 175 P.3d 885, ¶ 10. "Findings of fact are clearly erroneous when they are not supported by substantial credible evidence, the district court has misapprehended the effect of the evidence, or a review of the record leaves this Court with the conviction that a mistake has been committed." Graham, ¶ 10.

¶ 13 We review a district court's evidentiary rulings for an abuse of discretion. State v. Ayers, 2003 MT 114, ¶ 24, 315 Mont. 395, ¶ 24, 68 P.3d 768, ¶ 24. A district court is vested with great latitude in ruling on the admissibility of expert testimony. Ayers, ¶ 35.

¶ 14 The standard of review of sufficiency of the evidence on appeal is whether, upon viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Rennaker, 2007 MT 10, ¶ 16, 335 Mont. 274, ¶ 16, 150 P.3d 960, ¶ 16. The trier of fact is in the best position to determine the credibility of witnesses and the weight to be given to their testimony, and its determination with regard to disputed questions of fact and credibility will not be disturbed on appeal. Rennaker, ¶ 16.

DISCUSSION

¶ 15 1. Did the District Court err by denying Clark's motion to suppress evidence obtained following law enforcement's stop of Clark's motor vehicle and his consent to search the vehicle?

a. Particularized Suspicion

¶ 16 Clark argues that Trooper Gleich did not have a sufficient particularized suspicion to pull over Clark's vehicle for an investigative stop. According to Clark, neither Trooper Gleich nor Deputy Gleich was justified in stopping Clark's vehicle because the domestic violence reported to police was alleged to have occurred in Basin, Montana, forty miles from where Trooper Gleich ultimately stopped Clark's vehicle. In addition, Clark argues Trooper Gleich was simply responding to his brother's phone call, not to specific vehicle information provided by dispatch, and therefore Trooper Gleich did not have sufficient information to justify stopping Clark's vehicle.

¶ 17 "To justify an investigative stop, an officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." State v. Martinez, 2003 MT 65, ¶ 21, 314 Mont. 434, ¶ 21, 67 P.3d 207, ¶ 21 (citations omitted). Thus, to prove the existence of a particularized suspicion justifying an investigative stop of a vehicle, the State must show: (1) objective data from which an experienced police officer can make certain inferences; and (2) a resulting suspicion that the occupant of the vehicle is or has been engaged in wrongdoing or was a witness to criminal activity. Martinez, ¶ 22 (citing State v. Gopher, 193 Mont. 189, 194, 631 P.2d 293, 296 (1981)). This standard is codified at § 46-5-401(1), MCA, and reads:

In order to obtain or verify an account of the...

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  • State v. Laster
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    ...to search without cause beyond the initial justification for a stop as long as subject is free to decline). See also State v. Clark , 2008 MT 419, ¶¶ 24-25, 347 Mont. 354, 198 P.3d 809 (request for consent to search vehicle for weapons without particularized suspicion after initial domestic......
  • State v. Laster
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    ...to search without cause beyond the initial justification for a stop as long as subject is free to decline). See also State v. Clark, 2008 MT 419, ¶¶ 24-25, 347 Mont. 354, 198 P.3d 809 (request for consent to search vehicle for weapons without particularized suspicion after initial domestic ......
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