State v. Dupree

• Decision Date: 14 April 2015
• Docket Number: No. DA 13–0352.,DA 13–0352.
• Parties: STATE of Montana, Plaintiff and Appellee, v. Billie Rae DUPREE, Defendant and Appellant.
• Court: Montana Supreme Court

378 Mont. 499

346 P.3d 1114

2015 MT 103

STATE of Montana, Plaintiff and Appellee

v.Billie Rae DUPREE, Defendant and Appellant.

No. DA 13–0352.

Supreme Court of Montana.

Submitted on Briefs Feb. 18, 2015.

Decided April 14, 2015.

For Appellant: Wade Zolynski, Chief Appellate Defender; Kristen L. Larson, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant Attorney General, Helena, Montana, Gina Dahl, Hill County Attorney, Havre, Montana.

Opinion

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Billie Rae Dupree appeals from the Judgment of the Twelfth Judicial Court, Hill County, denying her motion to suppress evidence resulting from a search of her purse. She also challenges her written sentence as inconsistent with the court's oral pronouncement of sentence. We affirm in part, and reverse in part, addressing the following issues on appeal:

¶ 2 1. Did the District Court err by denying Dupree's motion to suppress evidence resulting from the search of her purse by police officers?

¶ 3 2. Did the District Court err in its written judgment by altering Dupree's sentence from its oral pronouncement?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 On April 7, 2009, Aaron Wittmer, an officer with the Havre Police Department and a member of the Tri–Agency Safe Trail Drug Task Force, received a phone call from Border Patrol Agent John Mennell. Mennell advised Wittmer he had received a call from an Amtrak employee indicating Dupree would be departing from the train station later that day with drugs in her possession. Sometime later, Wittmer received a second call from Mennell, informing him that Dupree had checked in at the station. Based on the phone calls, Wittmer and Agent Pete Federspiel proceeded to the station to investigate.

¶ 5 Arriving at the station, the officers located and approached Dupree. After identifying themselves as law enforcement officers, Wittmer and Federspiel told Dupree about the tip they had received. Dupree explained she was expecting them because her boyfriend, Dustin Lamere, had told her that he was making a report to the police. Dupree and Lamere had recently been arguing, precipitating both her planned train trip home and his calling in the tip. The officers asked Dupree whether she would be willing to sign a consent form allowing them to search her luggage. Dupree responded in the affirmative. The officers then asked Dupree if she would be willing to go to a back room to be searched. Dupree again agreed to do so. Upon reaching the back room, Dupree asked what would happen if she declined to consent to a search. The officers explained they would hold her until getting a canine unit to come sniff her luggage. Dupree then acquiesced to the request, signed the consent form, and told the officers to “search the bags.”

¶ 6 While searching Dupree's bags the officers found three prescription pills in unmarked containers in her purse. Dupree indicated the pills were prescription Xanax. Wittmer seized the pills, not recognizing them to be Xanax. The entire interaction lasted about 10 to 15 minutes and Dupree was allowed to depart on her train as scheduled following the encounter. Later, Wittmer obtained an investigative subpoena for Dupree's medical records, confirmed she had never been prescribed Xanax, and identified the pills as Oxycodone.

¶ 7 Dupree was charged with Criminal Possession of Dangerous Drugs in violation of § 45–9–102, MCA. Dupree moved to suppress the seized pills pursuant to State v. Pratt, 286 Mont. 156, 951 P.2d 37 (1997), arguing Lamere's tip failed to establish particularized suspicion and the seizure and search were thus illegal. She also argued that her consent to search was involuntary. The District Court denied the motion to suppress, finding that “the information provided to Wittmer contained sufficient indicia of reliability to form the basis for his particularized suspicion that Defendant was engaged in criminal activity. Once the agents had corroborated the tip, particularized suspicion existed to lawfully effectuate an investigative stop of Defendant.” Dupree appeals.

STANDARD OF REVIEW

¶ 8 We review the grant or denial of a motion to suppress to determine whether a district court's findings of fact are clearly erroneous and whether the court correctly interpreted and applied the law to those facts. State v. Nixon, 2013 MT 81, ¶ 15, 369 Mont. 359, 298 P.3d 408. A court's determination that particularized suspicion exists is a question of fact reviewed for clear error. State v. Gill, 2012 MT 36, ¶ 10, 364 Mont. 182, 272 P.3d 60. A finding of fact is clearly erroneous if 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 a definite and firm conviction a mistake has been made. State v. Cooper, 2010 MT 11, ¶ 5, 355 Mont. 80, 224 P.3d 636.

DISCUSSION

¶ 9 1. Did the District Court err by denying Dupree's motion to suppress evidence resulting from the search of her purse by police officers?

¶ 10 Both the United States and Montana Constitutions protect individuals from unreasonable searches and seizures. U.S. Const. amend. IV ; Mont. Const. art. II, § 11. Section 46–5–401(1), MCA, requires law enforcement officers to have “particularized suspicion” a person “has committed, is committing, or is about to commit an offense” before effecting an investigate stop of the person. To have particularized suspicion sufficient for an investigative stop, a “peace officer must be possessed of (1) objective data and articulable facts from which he or she can make certain reasonable inferences and (2) a resulting suspicion the person to be stopped has committed, is committing, or is about to commit an offense.” State v. Marcial, 2013 MT 242, ¶ 18, 371 Mont. 348, 308 P.3d 69. Whether particularized suspicion supports an investigative stop is a question of fact, analyzed in context of the totality of the circumstances. State v. Martinez, 2003 MT 65, ¶ 23, 314 Mont. 434, 67 P.3d 207. A defendant aggrieved by an unlawful search and seizure may “move the court to suppress as evidence anything obtained by the unlawful search and seizure.” Section 46–13–302(1), MCA.

¶ 11 In light of Dupree's reliance on Pratt, the parties focus on the requirements of that case, as did the District Court. Pratt addressed an informant's call to police to report a possible DUI offense. A gas station employee believed Pratt was intoxicated and reported him to the police, offering specific information about Pratt's vehicle and the direction in which he was driving. Pratt, 286 Mont. at 159, 951 P.2d at 39. It was on the basis of this descriptive information that Pratt was stopped, which we found to be lawful. Pratt, 286 Mont. at 168, 951 P.2d at 44. We identified three factors to be considered in determining the reliability of a citizen informant's tip for purposes of creating reasonable suspicion. The factors include: whether the citizen informant identifies himself to law enforcement and thus exposes himself to criminal and civil liability if the report is false; whether the report is based on the personal observations of the informant; and whether the officer's own observations corroborated the information. Pratt, 286 Mont. at 165, 951 P.2d at 42–43.

¶ 12 However, the circumstances here are not governed by the Pratt analysis. As we stated in Martinez, “[t]he Pratt test is a narrowly drawn variant of the Gopher analysis and addresses the reliability of a citizen's tip in the context of a DUI investigative stop.” Martinez, ¶ 37. We explained that Pratt is not necessarily limited to a DUI context, but that it should be applied only in those cases where the circumstances parallel a DUI stop. Martinez, ¶ 37. Here, the facts do not mirror the stop of a vehicle in the DUI context. Dupree was not operating an automobile, was not suspected of being under the influence, and was in a public area of her choosing when approached by the officers.

¶ 13 This matter is governed by general particularized suspicion principles, which permit officers to initiate a stop when possessing (1) objective data and articulable facts from which an officer can make certain reasonable inferences and (2) a resulting suspicion the person being stopped has committed, is committing, or is about to commit an offense. Here, Dupree was not stopped while driving a vehicle, but was in a public place. Thus, the question is whether Dupree was subjected to an investigative stop and at what point she was seized.

The Seizure of Dupree

¶ 14 Not all interactions between peace officers and citizens rise to the level of an investigative stop or seizure. See State v. Wagner, 2003 MT 120, ¶ 31, 315 Mont. 498, 68 P.3d 840 (where the encounter took place in a public venue of defendant's choosing and his compliance was not compelled by police, no investigative stop occurred); U.S. v. Mendenhall, 446 U.S. 544, 554–55, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (the government may stop and question any individual for any reason as long as the person to whom questions are put remains free to disregard the questions and walk away; such an encounter is not a seizure). A person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed she was not free to leave. Wagner, ¶ 27 (citing State v. Clayton, 2002 MT 67, ¶ 22, 309 Mont. 215, 45 P.3d 30 ). Only when an officer “by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” State v. Wilkins, 2009 MT 99, ¶ 8, 350 Mont. 96, 205 P.3d 795 (citation omitted).

¶ 15 The District Court found the initial encounter between the officers and Dupree did not constitute a seizure. As the District Court noted, the officers approached Dupree in a public place of her choosing, identified themselves,...