State v. Conley

• Decision Date: 10 April 2018
• Docket Number: DA 16-0134
• Citation: 391 Mont. 164,2018 MT 83,415 P.3d 473
• Parties: STATE of Montana, Plaintiff and Appellee, v. Chance Ryan CONLEY, Defendant and Appellant.
• Court: Montana Supreme Court

391 Mont. 164

415 P.3d 473

2018 MT 83

STATE of Montana, Plaintiff and Appellee,

v.Chance Ryan CONLEY, Defendant and Appellant.

DA 16-0134

Supreme Court of Montana.

Submitted on Briefs: December 28, 2017

Decided: April 10, 2018

For Appellant: Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman ; Assistant Attorney General, Helena, Montana, Wyatt A. Glade, Custer County Attorney, Miles City, Montana

Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 This appeal arises from the Sixteenth Judicial District Court's denial of a motion to suppress evidence discovered in the course of a probationary search. We affirm.

¶2 We restate the issue on appeal as follows:

Did the District Court err in denying Conley's motion to suppress?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On May 19, 2015, Chance Ryan Conley (Conley) was given a deferred sentence for two counts of criminal possession of dangerous drugs, methamphetamine. Conley was placed on probation and assigned to probation officer Tom Fulton (Fulton). Conley's sentence contained numerous conditions and restrictions, including requiring daily reporting to his probation officer, abstention from illegal drug use, and consent to probationary searches. Relevant to this appeal is Condition 8 of Conley's deferred sentence:

Upon reasonable suspicion that the Defendant has violated the conditions of supervision, a probation and parole officer may search the person, vehicle, and residence of the Defendant, and the Defendant must submit to such search. A probation and parole officer may authorize a law enforcement agency to conduct a search, provided the probation and parole officer determines reasonable suspicion exists that the Defendant has violated the conditions of supervision.

¶4 After his supervision was transferred to probation Officer Kristi Moore (Moore), Conley immediately began failing to report. Conley reported in person on June 11 and June 15, 2015; he admitted to using methamphetamine and signed admissions to that fact. Conley made no contact after June 15, 2015. He had multiple probation violations, including continued drug use, lack of employment, lack of compliance with the treatment court, and a current arrest warrant. Another probationer reported Conley was actively using methamphetamine.

¶5 The record shows that on July 6, 2015, Moore and Fulton went to Conley's last known address, hoping to locate him. When Moore and Fulton arrived they observed a white, four-door vehicle in the driveway with at least two occupants. The driver, later identified as Kevin Baker (Baker), attempted to pull out of the driveway when Moore blocked their exit. Conley quickly got out of the front passenger's side of the vehicle. Moore placed Conley in handcuffs and searched his person; no weapons or contraband were found. Conley and Baker were instructed to sit on the ground.

¶6 Moore and Fulton were not aware of the ownership status of the vehicle. They informed the men that the vehicle would be searched because of the "red flags" of on-going drug use Conley exhibited, including dirty and shabby clothing, disheveled physical appearance and the admission that they had been up all night, as well as the conditions of his probation. While Moore waited with the two men, Fulton looked into the passenger side of the vehicle. Fulton testified that from outside of the vehicle he could see a glasses pouch on the back-passenger's seat, and that glasses pouches are often used by drug users to store their drug kits. Upon examination of the glasses pouch, Fulton discovered needles and a baggy with a crystal-like substance. Conley admitted it was his. Fulton placed the glasses pouch on the top of the vehicle and contacted law enforcement.

¶7 Sergeant Kord Merical and Sergeant Barney Murnin arrived at Conley's home. Conley and Baker claimed all personal items in the vehicle and consented to a search, where additional needles and crystal-like substances were discovered. Sergeant Merical requested dispatch provide information on the registered owner of the vehicle; neither Conley nor Baker were identified as the registered owner. Conley and Baker were both arrested. Moore filed an affidavit in support of a petition to revoke Conley's sentence based on eight probation violations. Conley was charged with three new crimes: misdemeanor possession of drug paraphernalia, misdemeanor possession of marijuana, and felony possession of methamphetamine. Conley pleaded not guilty.

¶8 Conley's counsel filed a motion to suppress the evidence seized as a result of the vehicle search, arguing there was no inquiry to determine if Conley was the owner of or if he had control over the white vehicle. On December 7, 2015, the District Court denied the motion, finding that a probationer need not be a driver or owner of a vehicle in order to initiate a probationary search of the vehicle, so long as the probationer was a passenger immediately prior to the search. The State agreed to dismiss the marijuana possession charge and Conley pled guilty to the felony methamphetamine and misdemeanor paraphernalia charges. On January 11, 2016, the District Court revoked Conley's deferred sentence and sentenced Conley in accordance with the plea agreement. Conley appeals.

STANDARD OF REVIEW

¶9 We review a district court's denial of a motion to suppress to determine whether the court's findings are clearly erroneous and whether those findings were applied correctly as a matter of law. State v. Gill , 2012 MT 36, ¶ 10, 364 Mont. 182, 272 P.3d 60. A finding is clearly erroneous if it is not supported by substantial evidence, if the lower court has misapprehended the effect of the evidence, or if our review of the record leaves us with the firm conviction that a mistake has been made. City of Missoula v. Moore , 2011 MT 61, ¶ 10, 360 Mont. 22, 251 P.3d 679 (citing State v. Roberts , 1999 MT 59, ¶ 11, 293 Mont. 476, 977 P.2d 974 ).

DISCUSSION

¶10 Did the District Court err in denying Conley's motion to suppress?

¶11 Conley asserts that the search of the vehicle was illegal. The Fourth Amendment to the United States Constitution and Article II, Section 11 of the Montana Constitution protect citizens against unreasonable searches, and seizures. Article II, Section 11 of the Montana Constitution reads:

Searches and seizures. The 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.

¶12 The right to be free of unreasonable searches and seizures is augmented by Montana's constitutional right of privacy articulated in Article II, Section 10, which reads:

Right of privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.

¶13 When analyzing search and seizure questions that specially implicate the right of privacy, Sections 10 and 11 are read together. State v. Boyer , 2002 MT 33, ¶ 19, 308 Mont. 276, 42 P.3d 771. This conjunction leads us to examine the legality of a search or a seizure by determining whether there has been an unlawful governmental intrusion into one's privacy. State v. Hill , 2004 MT 184, ¶ 19, 322 Mont. 165, 94 P.3d 752.

¶14 Conley asserts the District Court erred when it concluded that the search was authorized by Condition 8 of his deferred sentence and Admin. R. M. 20.7.1101(7). Conley argues that the search was an illegal warrantless search because the vehicle searched was not Conley's and he did not have authority or control over the vehicle to justify a warrantless probation search. The State asserts the District Court properly concluded the search was authorized by the probation search condition in Conley's deferred sentence.

¶15 The District Court found the probation officers had the discretion to search the vehicle. They possessed sufficient articulable facts which gave rise to a reasonable suspicion that Conley had violated the conditions of his release, and as a passenger in the vehicle immediately prior to the search, Conley exerted sufficient control over the vehicle for the purpose of the probationary search.

¶16 To determine whether there has been an unlawful governmental intrusion into one's privacy in search and seizure situations, we look at the following factors: (1) whether the person had an actual expectation of privacy in the place searched; (2) whether society is willing to recognize that expectation as objectively reasonable; and (3) the nature of the State's intrusion. Hill , ¶ 24. Where no reasonable expectation of privacy exists, there is neither a "search" nor a "seizure" within the contemplation of Article II, Section 10 of the Montana Constitution. Hill , ¶ 24.

¶17 To be sure, a criminal conviction and a probationary sentence do not eviscerate all of the defendant's rights of privacy. Mont. Const. art. II, § X ; State v. Moody , 2006 MT 305, ¶ 19, 334 Mont. 517, 148 P.3d 662. However, a probationer has a reduced privacy interest. State v. Burke , 235 Mont. 165, 169-71, 766 P.2d 254, 256-57 (1988) ; see also State v. Fischer , 2014 MT 112, ¶ 11, 374 Mont. 533, 323 P.3d 891 ; State v. Brooks , 2012 MT 263, ¶ 14, 367 Mont. 59, 289 P.3d 105 ; State v. Burchett , 277 Mont. 192, 195-96, 921 P.2d 854, 856 (1996). The reduced expectation does not automatically mean a probationer has no privacy expectations.

¶18 The basic purposes of probation and its corresponding conditions are to provide an offender the chance to rehabilitate outside of the prison setting and to provide the community protection from future criminal activity. Moody , ¶ 19 ; Burke , 235 Mont. at 169, 766 P.2d at 256. The judgment imposing a...