State v. Hardaway

• Citation: 36 P.3d 900,307 Mont. 139,2001 MT 252
• Decision Date: 10 December 2001
• Docket Number: No. 99-626.,99-626.
• Parties: STATE of Montana, Plaintiff/Respondent, v. Jason HARDAWAY, Defendant/Appellant.
• Court: United States State Supreme Court of Montana

36 P.3d 900

2001 MT 252

307 Mont. 139

STATE of Montana, Plaintiff/Respondent, v. Jason HARDAWAY, Defendant/Appellant.

No. 99-626.

Supreme Court of Montana.

Heard April 30, 2001.

Submitted May 17, 2001.

Decided December 10, 2001.

Jack E. Sands, Billings, MT, (argued), For Appellant.

Joseph P. Mazurek, Montana Attorney General, John Paulson, Assistant Montana Attorney General, (argued), Helena, MT; Dennis Paxinos, Yellowstone County Attorney, Ira Eakin and Beverly Tronrud, Deputy Yellowstone County Attorneys, Billings, MT, For Respondent.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 On June 8, 1999, a jury in the Thirteenth Judicial District Court, Yellowstone County, found Jason Hardaway (Hardaway) guilty of burglary. Hardaway appeals from this verdict. We reverse.

¶ 2 Hardaway raises three issues on appeal:

1. Did the District Court properly deny Hardaway's motion to suppress blood evidence swabbed from his hands without a warrant following his arrest?

2. Did the District Court err in denying Hardaway's motion to dismiss the amended information, and in allowing the jury to convict under an alternative instruction?

3. Did the District Court abuse its discretion by denying Hardaway's motion for a mistrial?

FACTUAL BACKGROUND

¶ 3 On January 22, 1999, Chris Dobitz (Dobitz) was awakened around 4:30 a.m. by the squeaking of her screen door and noises emanating from her attached garage. She got up from her bed and went to investigate these sounds. She found a man standing about two feet inside her kitchen doorway leading from the attached garage. She asked the man what he was doing, and he replied, "Sorry, wrong house." She took a step back and turned on the kitchen light. The man turned and ran back through the garage and out the garage door. Dobitz chased the intruder and saw items falling from his jacket. She stopped her pursuit to pick up the fallen items, which turned out to be pornographic magazines. Dobitz returned home and called the police.

¶ 4 Billings police officers immediately responded to her call. Officer Helderop began a search of the surrounding area, while Officer Philippi remained with Dobitz and investigated the scene. Officer Philippi observed that the screens to the basement windows had been removed, a window on the detached garage had been broken, and the door to the attached garage had been forced open with a knife and a steel rod. He also found blood on doorknobs, light switches, broken glass, and on other items in the garage, as well as on the screen door handle and front doorknob of the house.

¶ 5 While patrolling the area surrounding Dobitz's house, Officer Helderop spotted Hardaway walking quickly across a street. Hardaway fit the description given by Dobitz of the intruder. Officer Helderop stopped Hardaway and conducted a pat-down search for weapons. Hardaway was carrying a bottle of Yohimbe Erection Lotion in his waistband. Officer Philippi had advised Officer Helderop by radio that the intruder may have cut his hand breaking a garage window, so Officer Helderop had Hardaway remove his gloves. He found what appeared to be fresh blood and cuts on Hardaway's hands. Officer Helderop placed Hardaway under arrest.

¶ 6 During post-arrest processing at the Yellowstone County Detention Facility, Hardaway's hands were photographed and the blood on his hands was swabbed. The blood evidence was sent to the Montana State Crime Lab, where forensic scientists were able to match the blood swabbed from Hardaway's hands with the blood found at the scene. Hardaway was charged by information on January 27 with burglary.

¶ 7 On May 18, 1999, Hardaway filed a motion to suppress the blood evidence swabbed from his hands at the jail shortly after his arrest without a warrant or his permission. The District Court denied Hardaway's motion. It reasoned that under State v. Holzapfel (1988), 230 Mont. 105, 748 P.2d 953 (viewing defendant's hands under an ultraviolet light was not a search), the swabbing of Hardaway's hands was not a search. It further reasoned, in the alternative, that under State v. Ulrich (1980), 187 Mont. 347, 609 P.2d 1218 (swabbing defendant's hands to conduct a neutron activation test to detect gunpowder residue was a lawful search incident to arrest), the law enforcement officers were justified in swabbing Hardaway's hands without a warrant as a search incident to arrest.

¶ 8 On May 26, 1999, the State moved to amend the information against Hardaway, alleging that he committed burglary by entering Dobitz's home with the intent to commit "either a theft or a sexual crime." Hardaway filed a motion to dismiss this amended information, alleging that the term "sexual crime" was insufficient to apprise him of the charge against him. The District Court denied his motion to dismiss, finding that the amended information's "sexual crime" description sufficiently put Hardaway on notice regarding the charge against him.

¶ 9 A jury trial was held on June 7 and 8, 1999. On the second day of trial, Hardaway moved for a mistrial, claiming that the Judge interrupted his testimony before the jury, and audibly accused him of lying during a bench conference with counsel. His motion was denied. Hardaway also objected unsuccessfully to the jury being instructed that it could convict him of burglary if it found that he entered the Dobitz home "to commit either the offense of theft or the offense of sexual assault therein." The jury found Hardaway guilty of burglary, and he was sentenced to thirty years at the Montana State Prison. Hardaway now appeals to this Court.

ISSUE 1

¶ 10 Did the District Court properly deny Hardaway's motion to suppress blood evidence swabbed from his hands without a warrant following his arrest?

¶ 11 This Court reviews a district court's ruling on a suppression motion to determine whether the court's findings are clearly erroneous, and whether the findings were correctly applied as a matter of law. State v. Weaselboy, 1999 MT 274, ¶ 6, 296 Mont. 503, ¶ 6, 989 P.2d 836, ¶ 6. When, as here, the facts are essentially undisputed, this Court's review of a district court's conclusions of law is plenary. State v. Devlin, 1999 MT 90, ¶ 7, 294 Mont. 215, ¶ 7, 980 P.2d 1037, ¶ 7.

¶ 12 Hardaway argues that the swabbing of blood from his hands without permission was clearly a search, which must be justified by both probable cause and exigent circumstances. He asserts that no exigent circumstances existed because he was in custody at the time and a warrant could have been obtained. Thus, he maintains that denial of the motion to suppress the blood evidence was error.

¶ 13 The State counters that the non-intrusive swabbing of blood from the surface of Hardaway's hands following his arrest and during processing at the detention facility was not a search within the protective scope of the Fourth Amendment or the privacy and search provisions of the Montana Constitution. The State alternatively argues that if this swabbing did constitute a warrantless search, the procedure was fully justified as a search incident to a lawful arrest and is therefore exempt from the warrant requirement.

A. Constitutional Protections Against Unreasonable Searches and Seizures

¶ 14 It is important to note, before determining whether the swabbing of Hardaway's hands constituted a search and, if so, whether the search was lawful in the absence of a warrant, that both the federal and the Montana constitutions offer protection against unreasonable searches and seizures. Article II, Section 11 of the Montana Constitution mirrors the familiar language of the Fourth Amendment to the United States Constitution:

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.

These rights extend to all of Montana's citizens including those suspected of a criminal act or charged with one.

B. Was the Swabbing of Hardaway's Hands a Search?

¶ 15 The first question this Court must answer is whether the swabbing of Hardaway's hands actually constituted a search. We start with the obvious proposition that the swabbing of his hands was undertaken to procure evidence to be used against him. This distinguishes the swabbing from an inventory search which is best described as a "routine administrative caretaking function," as opposed to an evidentiary or investigatory activity. South Dakota v. Opperman (1976), 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000.

¶ 16 A search is the use of some means of gathering evidence which infringes upon a person's reasonable expectation of privacy. State v. Elison, 2000 MT 323, ¶ 48, 302 Mont. 228, ¶ 48, 14 P.3d 456, ¶ 48. To determine what constitutes a search pursuant to Article II, Section 11 of the Montana Constitution, we consider two separate factors: (1) whether the person had an actual expectation of privacy that society is willing to recognize as reasonable; and (2) the nature of the state's intrusion. State v. Scheetz (1997), 286 Mont. 41, 48, 950 P.2d 722, 726 (use of drug-detecting canine to sniff luggage which was entrusted to an airline was not a search in violation of defendant's right to privacy). Applying the first of the two factors established by Scheetz, it is necessary to determine what, if any, reasonable expectation of privacy did Hardaway have.

¶ 17 Article II, Section 11 of the Montana Constitution, recited in its entirety above, guarantees that people shall be "secure in their persons ... from unreasonable searches and seizures." The question of whether an action constitutes a search is rarely addressed in a vacuum; generally, we are called upon to analyze a challenged search in the context of its exigency, the presence or lack of...