State v. Elison, 99-323.

• Citation: 302 Mont. 228,2000 MT 288,14 P.3d 456
• Decision Date: 16 November 2000
• Docket Number: No. 99-323.,99-323.
• Parties: STATE of Montana, Plaintiff and Respondent, v. Gregory ELISON, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

14 P.3d 456

2000 MT 288

302 Mont. 228

STATE of Montana, Plaintiff and Respondent, v. Gregory ELISON, Defendant and Appellant.

No. 99-323.

Supreme Court of Montana.

Submitted on Briefs January 20, 2000.

Decided November 16, 2000.

Kevin R. Peterson, Deputy Public Defender, Billings, MT, For Appellant.

Hon. Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General, Helena, MT, Dennis Paxinos, Yellowstone County Attorney; Sheila R. Kolar, Deputy County Attorney, Billings, MT, For Respondent.

Justice JIM REGNIER delivered the opinion of the Court.

¶ 1 Gregory Elison appeals from the Court's Findings of Fact, Conclusions of Law, Memorandum and Order issued by the Thirteenth Judicial District Court, Yellowstone County, denying his motion to suppress. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

¶ 2 Elison's appeal raises the following issues:

¶ 3 1. Whether the District Court erred in finding that Officer Conrad had a particularized suspicion sufficient to justify stopping Elison's vehicle?

¶ 4 2. Whether the District Court erred in concluding that Elison was not entitled to Miranda warnings prior to preliminary questioning?

¶ 5 3. Whether the District Court erred in concluding that Elison's vehicle was lawfully searched under an exception to the warrant requirement?

BACKGROUND

¶ 6 On August 1, 1998, shortly after midnight, Billings Police Officer Scott Conrad was on routine patrol eastbound on Fourth Avenue North in Billings, Montana. Jerry Gibson was riding with Officer Conrad as an authorized citizen observer. While Officer Conrad's patrol vehicle was passing through the intersection of Fourth Avenue North and North 26th Street, Gibson saw the driver of a white truck in the lane immediately to the right of Officer Conrad's vehicle hunched over the steering wheel smoking from a brass-colored pipe. Gibson made eye contact with the driver of the truck, who was later identified as Elison. Gibson testified that Elison noticed the patrol car, appeared startled, and lowered the pipe and lighter below the steering wheel.

¶ 7 As the patrol car proceeded through the intersection, Gibson informed Officer Conrad that he saw the driver of a white truck smoking from what he believed to be a marijuana pipe and that the driver noticed the patrol car, appeared startled and attempted to hide the pipe. Officer Conrad had not witnessed any of this activity. Officer Conrad located the white truck behind his patrol car and reduced his speed to allow the truck to pass his car so that he could get behind Elison's vehicle and make a traffic stop. Elison slowed his vehicle. Finally, Officer Conrad brought his vehicle to a complete stop so that Elison would pass him. He then activated his overhead lights and siren and stopped Elison's vehicle.

¶ 8 Upon stopping, Elison exited his truck. Officer Conrad instructed Elison to return to his vehicle and Elison complied. Officer Conrad testified that when he approached Elison's truck, he could immediately smell the odor of marijuana. He also testified that Elison appeared nervous, his eyes were red and glassy, and he would not sit still. Officer Conrad informed Elison of the reason for the stop-advising him of Gibson's observations and the odor of marijuana which Conrad had detected. Elison appeared to be reaching in between the seat cushions of the truck. Officer Conrad asked Elison to show him his right hand and subsequently requested that Elison exit his vehicle.

¶ 9 After Elison exited the truck, Officer Conrad directed him to the rear of the pickup, frisked him, and asked him where the pipe that Gibson had reported seeing him smoking from was located. Elison told Officer Conrad that he had thrown it out the window. Officer Conrad then asked Elison whether there was any marijuana in the truck. Elison replied that he had tucked marijuana behind the seat. Officer Conrad testified that Elison was not free to leave during this questioning. Officer Conrad returned to the vehicle, leaving Elison with another police officer who had arrived on the scene a few minutes after Officer Conrad had stopped Elison. Officer Conrad opened the door, tilted the driver's seat forward and discovered a film canister which he removed and opened. While searching the vehicle, he also observed a paper bindle near the film canister as well as a two-inch tube on the seat and a razor blade on the floor board.

¶ 10 Officer Conrad showed the film canister to Elison and Elison informed him that it contained marijuana. Officer Conrad then informed Elison that he was under arrest, handcuffed him, and put him in the rear seat of his patrol car. At that time, Officer Conrad advised Elison of his Miranda rights and asked Elison for consent to search the truck. Elison gave verbal and written consent. Sergeant Schieno of the Yellowstone County Sheriff's Department arrived with a trained drug-sniffing canine. Sergeant Schieno deployed his dog and subsequently advised Officer Conrad that the dog had indicated the presence of drugs in the cab of the truck. Upon receiving this information, Officer Conrad searched the vehicle. He seized the paper bindle, straw, and razor blade that he had previously observed and located another bindle in an open compartment in the dash of the truck. Gibson and another officer located a brass pipe a few blocks down the street. The items seized later tested positive for marijuana and methamphetamine.

¶ 11 On August 5, 1998, Elison was charged with felony possession of dangerous drugs, misdemeanor possession of dangerous drugs, and misdemeanor possession of drug paraphernalia. Elison filed a Motion to Suppress and Request for Evidentiary Proceeding. The District Court held an evidentiary hearing regarding Elison's motion to suppress and, on January 22, 1999, the court denied Elison's motion. On February 17, 1999, Elison pled guilty to felony possession of dangerous drugs. The court granted the State's motion to dismiss the other counts. On April 5, 1999, the court entered an Order Deferring Imposition of Sentence deferring Elison's sentence for two years with probationary conditions, including a $500 fine. Elison appeals the court's denial of his motion to suppress.

STANDARD OF REVIEW

¶ 12 We review a district court's denial of a motion to suppress to determine whether the court's findings of fact are clearly erroneous, and whether those findings were correctly applied as a matter of law. State v. Dawson, 1999 MT 171, ¶ 13, 295 Mont. 212, ¶ 13, 983 P.2d 916, ¶ 13.

ISSUE ONE

¶ 13 Whether the District Court erred in finding that Officer Conrad had a particularized suspicion sufficient to justify stopping Elison's vehicle?

¶ 14 The District Court found that Officer Conrad had a particularized and objective basis for suspecting that Elison was committing an offense and was, therefore, entitled to stop Elison's truck. Elison contends that the District Court's finding is clearly erroneous because Officer Conrad did not inquire as to the basis of Gibson's assumptions regarding his observations, in particular Gibson's assumption that Elison was using the pipe to smoke marijuana. Elison also contends that Officer Conrad did not make any observations himself which corroborated Gibson's report.

¶ 15 The Fourth Amendment to the United States Constitution and Article II, Section 11 of the Montana Constitution protect persons against unreasonable searches and seizures, including brief investigatory stops such as traffic stops. State v. Jarman, 1998 MT 277, ¶ 9, 291 Mont. 391, ¶ 9, 967 P.2d 1099, ¶ 9. We have held that in order to show sufficient cause to stop a vehicle, the burden is on the State to show that law enforcement had "particularized suspicion:" (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. State v. Gopher (1981), 193 Mont. 189, 194, 631 P.2d 293, 296 (adopting test announced in United States v.. Cortez (1981), 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621); State v. Gilder, 1999 MT 207, ¶ 8, 295 Mont. 483, ¶ 8, 985 P.2d 147, ¶ 8.

¶ 16 Whether particularized suspicion exists at the time of an investigative stop is a question of fact which is determined by considering the totality of the circumstances. State v. Lafferty, 1998 MT 247, ¶ 10, 291 Mont. 157, ¶ 10, 967 P.2d 363, ¶ 10. "In evaluating the totality of the circumstances, a court should consider the quantity, or content, and quality, or degree of reliability, of the information available to the officer." State v. Pratt (1997), 286 Mont. 156, 161, 951 P.2d 37, 40 (citing Alabama v. White (1990), 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 309). Where an investigative stop stems from the tip of a citizen informant, this Court has adopted a three-part test to determine the reliability of the citizen informant's information: "(1) whether the citizen informant identified herself to the authorities and thus exposed herself to civil and criminal liability if the report is false; (2) whether the report is based upon the citizen informant's personal observations; and (3) whether the officer's own observations corroborated the informant's information." State v. Roberts, 1999 MT 59, ¶ 17, 293 Mont. 476, ¶ 17, 977 P.2d 974, ¶ 17 (citing Pratt, 286 Mont. at 165, 951 P.2d at 42-43).

¶ 17 Elison agrees that the first element of the Pratt test was met. Officer Conrad knew Gibson's identity: Gibson was sitting next to Officer Conrad when he made his report. Elison argues that the second element of Pratt was not met in that Gibson did not have a sufficient basis of knowledge. Elison contends that Gibson's report did not establish an adequate foundation for Officer Conrad's suspicion because Officer Conrad did not know whether Gibson was trained in narcotics identification. Therefore, Elison maintains, there was no evidence...