State v. Lewis

Citation171 P.3d 731,2007 MT 295
Decision Date08 November 2007
Docket NumberNo. DA 07-0114.,DA 07-0114.
PartiesSTATE of Montana, Plaintiff and Appellant, v. Robert L. LEWIS, Defendant and Appellee.
CourtUnited States State Supreme Court of Montana
171 P.3d 731
2007 MT 295
STATE of Montana, Plaintiff and Appellant,
Robert L. LEWIS, Defendant and Appellee.
No. DA 07-0114.
Supreme Court of Montana.
Submitted on Briefs July 11, 2007.
Decided November 8, 2007.

[171 P.3d 733]

For Appellant: Hon. Mike McGrath, Montana Attorney General, Mark W. Mattioli, Assistant Attorney General, Helena, Montana, Thomas P. Meissner, Fergus County Attorney, Lewistown, Montana.

For Appellee: Jeremy S. Yellin; Havre, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 This is an interlocutory appeal by the State of Montana ("State") from two orders entered by the District Court for the Tenth Judicial District, Fergus County. The court's January 16, 2007 order suppressed physical and photographic evidence relevant to the State's prosecution of Robert Lewis ("Lewis") for felony arson. The court's January 26, 2007 order denied the State's request for reconsideration. We affirm in part, reverse in part, and remand for further proceedings consistent with this Opinion.

¶ 2 The dispositive issue on appeal is whether the District Court erred in granting Lewis's motion to suppress.


¶ 3 On November 26, 2004, at 10:39 p.m., Fergus County Deputy Sheriff Larry McCord ("McCord") received a dispatch to respond to a structure fire north of Lewistown, Montana. The one-story structure contained two apartments, one of which had been rented by Lewis. Elizabeth Massey ("Massey"), the tenant in the other apartment, noticed smoke coming from Lewis's apartment around 10 p.m. and reported the fire. The following sequence of events ensued.

¶ 4 McCord arrived on the scene at 10:48 p.m. He was the first to respond to the fire, and when he arrived, Massey and her two children were the only other persons there. McCord asked Massey where the fire was and she directed him to the back of the structure. Through a window, McCord observed flames behind a wood stove in Lewis's apartment. McCord broke the window and reached through it to discharge his fire extinguisher onto the flames near the stove and also onto the flames coming from a nearby vacuum cleaner. After his extinguisher was emptied, McCord borrowed another from Massey because the flames continued to flare up. He endeavored to suppress the blaze until Dick Hassler ("Hassler") with the Hilger Fire Department arrived.

¶ 5 The owner of the structure arrived at the scene and crawled through a broken window to unlock the door and allow McCord to enter. Hassler entered the structure along with McCord. Although there were no flames visible at that point, there was still a lot of smoke coming from the structure. Additionally,

171 P.3d 734

McCord observed smoldering embers inside the structure.

¶ 6 McCord later reported in his Incident Narrative that immediately upon entering the structure,

I observed what I would call fuse [sic] on the table near the wood stove. The "fuses" were match books with cigarettes in them. One had burned and caught the matches on fire and the other had burned to the matches but had not ignited the matches. I observed what appeared to be toilet paper on one of the "fuses." On the table near the "fuses" was a roll of toilet paper.

I also located a match/cigarette fuse on a bed in the same room. It had not been lit.

¶ 7 McCord testified at the hearing on Lewis's motion to suppress that, after entering the structure and upon seeing the matchbooks in plain view on the table and the bed, he went back to his patrol car to get a camera and then re-entered the structure to take pictures, after which he seized the evidence. McCord explained that he wanted to preserve the evidence and prevent it from being altered or damaged by efforts to suppress the fire. "I believe[d] or thought that the—with the Fire Department coming I didn't know how much water they were going to use. I didn't know what was going to happen so I latched onto them, yes. I recovered them as evidence, yes." McCord then left the structure to deposit the evidence in his patrol car.

¶ 8 At some point after depositing the evidence in his car, McCord called Sheriff Killham with the Fergus County Sheriff's Office to report that Lewis's residence was a possible crime scene. Approximately seventeen minutes later, a crew from the Lewistown Rural Fire Department arrived and entered Lewis's residence. The fire crew removed some ceiling tiles in the kitchen area because they were concerned that the fire may have spread into the ceiling. McCord re-entered the structure after the Lewistown firefighters had removed the ceiling tiles. In his Incident Narrative, he explained:

I went back into the residence to look for further evidence. I located several match books on the kitchen counter and a cigarette lighter on the divider and I took them for evidence. An alcohol bottle was located on the divider and had what appeared [to be] fingerprints on it. I took it for evidence and placed it into my patrol vehicle.

McCord later testified that he had "collected the wine bottle for the fingerprints on it." Additionally, McCord testified that he had entered the structure at least four times that evening.

¶ 9 On December 22, 2004, the State charged Lewis with felony arson and criminal mischief. The State subsequently filed an Amended Information, adding a charge of solicitation for assault. The State alleged that Lewis had offered to pay an inmate in the Fergus County Jail to hurt or kill his former landlady.

¶ 10 On October 3, 2006, Lewis filed a motion to suppress the evidence obtained by McCord. Lewis did not contest McCord's initial entry; indeed, he conceded that McCord was justified in entering the structure to put out the fire. However, he claimed that, after the fire was put out, McCord unlawfully re-entered the structure in order to gather evidence. Lewis argued that McCord's second and subsequent entries had to be justified separately because they were separate entries. He further argued that there were no exceptions to the warrant requirement for McCord's second and subsequent entries and searches. Thus, according to Lewis, McCord was required to apply for a search warrant with supporting probable cause before re-entering the structure and invading Lewis's privacy.

¶ 11 In response, the State argued that McCord was not required to obtain a search warrant. First, McCord had the right to enter the structure to suppress the fire. Second, according to the State, exigent circumstances prompted McCord's re-entries and subsequent searches and provided an exception to the warrant requirement. Third, the State also maintained that the plain view doctrine provided another exception to the warrant requirement. Lastly, the State contended that Lewis had abandoned his residence and, therefore, could not claim

171 P.3d 735

that his constitutional rights had been violated.

¶ 12 The District Court issued an order on Lewis's motion on January 16, 2007. The court stated that "[u]nequivocally, exigent circumstances existed for [McCord's] first entry." The court also noted that "[d]uring this first entrance, Deputy McCord observed `fuses' on the table (match books with cigarettes in them), toilet paper with one of the fuses, and a match/cigarette fuse on a bed in the same room." According to the court, because "[t]hese first observations satisf[ied] the exigent circumstances exception to a warrantless search," and because these items "were in plain view," the "Motion to Suppress with regard to these first visit observations is Denied."

¶ 13 Regarding McCord's second entry into the structure, the court stated that the photographic and physical evidence obtained during this entry "poses a more difficult analysis." According to the court, testimony clearly reflected that the purpose of McCord's second visit was "to memorialize with pictures those pieces of evidence observed in visit one. Consequently, that visit, despite some testimony about additional fire danger spotted during the second visit, does not fall under the exceptions and required a search warrant." Further, the court reasoned that the purpose of McCord's third and fourth visits was to gather evidence and that each successive visit reflected "the lack of exigency existing in visit two." Therefore, the court granted Lewis's motion to suppress "with regard to evidence seized or obtained in visits two, three and four."

¶ 14 The State filed a motion for reconsideration on January 24, 2007. The State argued that the District Court's decision was "internally inconsistent" and that the court's legal basis for suppression was "not judicially recognized." According to the State, because the District Court noted that McCord's first entry was justified by exigent circumstances and that the purpose of McCord's second entry was to preserve evidence, exigent circumstances certainly justified McCord's second entry. The State questioned why, if the fuses were in plain view when McCord entered for the first time, their seizure upon McCord's second entry was unlawful. The State argued that the District Court had ignored this Court's analysis in State v. Bassett, 1999 MT 109, 294 Mont. 327, 982 P.2d 410, when it analyzed the facts of the case at hand, even though both parties had relied on Bassett in their respective arguments. Lastly, the State argued that the court had ignored or misread the authority cited by the State on the issue of abandonment.

¶ 15 On January 26, 2007, the District Court issued an order on the State's motion for reconsideration. The court stated that it

did not suppress evidence obtained during the deputy's first foray into the fire scene/home because the fireman (Dick Hassler) accompanying the deputy saw smoke and clearly testified that entrance was necessary to assess and control. However, no such "emergency" or "exigency" existed on subsequent visits. Regardless of the deputy's intentions . . ., his subsequent reentries did not rise to the level of...

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