State v. Loh

Decision Date05 April 1996
Docket NumberNo. 94-325,94-325
Citation914 P.2d 592,275 Mont. 460
PartiesSTATE of Montana, Plaintiff and Respondent, v. Peng Y. LOH, Defendant and Appellant.
CourtMontana Supreme Court

Patrick D. Sherlock, Sherlock & Nardi, Kalispell, for Appellant.

Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Assistant Attorney General; Thomas J. Esch, Flathead County Attorney, Ed Corrigan, Deputy Flathead County Attorney, Kalispell, for Respondent.

NELSON, Justice.

Peng Y. Loh (Loh) appeals from her conviction of criminal possession of dangerous drugs, a felony, and the Flathead County, Eleventh Judicial District Court's denial of her motions to suppress evidence seized from her home and to suppress her incriminating statements. We affirm.

ISSUES

1. Did the District Court err in denying Loh's motions to suppress in violation of Rule 2, Uniform District Court Rules?

2. Did the District Court err in denying Loh's motion to suppress evidence found in plain view by fire fighters and police officers during an emergency entry of Loh's home?

3. Did the District Court err in denying Loh's motion to suppress her incriminating statements?

4. Did the District Court err in taking judicial notice of testimony given during the suppression hearing?

BACKGROUND

On May 31, 1993, the Whitefish Police Department responded to a report of a house fire at 530 1/2 Spokane Avenue, Whitefish, Montana. Officers Denham, Cook, and Bergstrom arrived at the scene at about 7:30 p.m. One of the individuals gathered near the house told the officers that there were possibly two people inside the house. Officer Denham kicked in the back door, but could not enter because of thick black smoke. Officers Cook and Bergstrom kicked in the front door. The smoke was too heavy to see above three to four feet from the floor, so they crawled through the house on their hands and knees. Officer Denham went around to the front door and followed Officers Bergstrom and Cook.

Officer Denham crawled into the bedroom, did not see anyone, but did see a "classical spaghetti jar with green leafy substance" that he suspected to be marijuana. He gave the jar to Officer Bergstrom to take out to the patrol car. Officer Denham continued into the bedroom where he saw a flat cardboard box with clear glass jars containing the same leafy substance. He gave the box of jars to Officer Bergstrom. As soon as Officer Denham exited out the front door, the firemen arrived.

After the firemen took care of the smoke and flames from the burning pan on the stove, Fire Chief Sipe told the officers that he thought there was still "some more stuff in the bedroom." Officer Denham and Fire Chief Sipe went back into the bedroom where they found two more boxes with a green leafy substance spilling out onto the floor. The boxes had been knocked over when the firemen had gone through the house. Officer Denham put the boxes on the futon. The officers then called the drug team.

While the officers waited for the drug team's arrival, Loh came home from work. Officer Cook informed her that there had been a fire in her house, but nothing had been destroyed. He then advised Loh of her Miranda rights and told her that he had found marijuana in her house. She replied "I know." Officer Cook arrested Loh and took her to the Whitefish Police Department. When Officers Voelker and Cook interviewed Loh, she admitted that she knew of the marijuana and admitted that it was hers. Loh grew up in Malaysia and moved to the United States eleven years prior to her arrest. She had not yet perfected her citizen status.

After the drug team arrived, the officers thoroughly searched the house, including the basement, cars, drawers, and Loh's bicycle bag. Loh was charged with criminal possession of dangerous drugs, a felony. She was arraigned on the charge, appeared before the District Court, was advised of her rights, and entered a plea of not guilty. The District Court set the case for further proceedings. Loh moved to suppress evidence and to suppress her confession. At the suppression hearing, Loh admitted that she knew there was marijuana in the house. The State sought admittance of only the evidence seized before the drug team arrived and thus before the extensive search. The District Court denied Loh's motion.

At the beginning of the bench trial, the State requested that the District Court take judicial notice of Loh's testimony from the suppression hearing. Over Loh's objection, the District Court concluded that it would take judicial notice of facts it obtained from presiding over the earlier proceeding. The District Court found Loh guilty of criminal possession of dangerous drugs, a felony, deferred imposition of sentence, and placed her on probation.

DISCUSSION
1. Did the District Court err in denying Loh's motions to suppress in violation of Rule 2, Uniform District Court Rules?

Loh argues that Rule 2 of the Uniform District Court Rules requires the adverse party to file an answer brief to a motion within ten days or the motion will be well taken, and that the District Court erred by not ruling in Loh's favor when the State filed its answer brief well after the ten day period had expired. Loh also contends that by denying her motion, the District Court set a prejudicial trend against her. The State counters that failure to file a brief within ten days does not require a district court to grant the motion and that the record does not support Loh's allegation that the District Court was biased against her.

Our standard of review of discretionary trial court rulings in criminal cases is whether the trial court abused its discretion. State v. Sullivan (1994), 266 Mont. 313, 324, 880 P.2d 829, 836. Rule 2 of the Uniform District Court Rules provides:

(a) Upon filing a motion or within five days thereafter, the moving party shall file a brief. The brief may be accompanied by appropriate supporting documents. Within ten days thereafter the adverse party shall file an answer brief which also may be accompanied by appropriate supporting documents. Within ten days thereafter, movant may file a reply brief or other appropriate responsive documents.

(b) Failure to file briefs. Failure to file briefs may subject the motion to summary ruling. Failure to file a brief within five days by the moving party shall be deemed an admission that the motion is without merit. Failure to file an answer brief by the adverse party within ten days shall be deemed an admission that the motion is well taken. Reply briefs by movant are optional, and failure to file will not subject a motion to summary ruling.

We have interpreted this Rule as allowing the trial court discretion to either grant or deny an unanswered motion. Maberry v. Gueths (1989), 238 Mont. 304, 309, 777 P.2d 1285, 1289. In Maberry, the adverse party did not file a response to a motion within the ten days allowed under Rule 59(c), M.R.Civ.P. The moving party argued that Rule 2(b) of the Uniform District Court Rules required that the motion be well taken. The district court denied the motion even though the nonmoving party did not file its answer brief within the allotted ten days. Maberry, 777 P.2d at 1288. In Maberry, we reasoned that under Rule 2(b), failure to file a brief "may" subject such a motion to summary ruling. Therefore, while the adverse party's failure to file a brief within the time allowed may be viewed as an admission that the motion is well-taken, the rule does not require a district court to grant the unanswered motion. Accordingly, we held in Maberry that Rule 2(b) does not remove the district court's discretion to grant or deny an unanswered motion as it sees fit. Maberry, 777 P.2d at 1289.

Similarly, in State v. Fertterer (1993), 260 Mont. 397, 399, 860 P.2d 151, 153, the defendants filed a motion to amend their sentences. The state did not file an answer brief. The defendants then filed a motion for summary ruling to which the state also failed to respond. On the date of the hearing on the motions, the state filed its objections. On appeal, the defendants claimed that Rule 2(b) of the Uniform District Court Rules required that the district court grant their motion for summary ruling because the state did not file its response briefs within the allotted ten days. We disagreed. Citing Maberry, we held that the district court did not abuse its discretion in denying the defendant's summary ruling on their motion to amend sentences. Fertterer, 860 P.2d at 153.

In the instant case, although the State failed to file its brief within the allotted ten days, it was within the sound discretion of the District Court to deny Loh's motion. Furthermore, the record does not support Loh's contentions that the District Court set a prejudicial trend against her by denying her motion. Accordingly, we conclude that the District Court did not abuse its discretion, and, thus, we affirm the trial court on this issue.

2. Did the District Court err in denying Loh's motion to suppress evidence found in plain view by fire fighters and police officers during an emergency entry of Loh's home?

Loh argues that the District Court erred in denying her motion to suppress and that the search of her home violated her Fourth Amendment rights. Loh concedes that the officers lawfully entered her home under exigent circumstances, but she contends that the evidence upon which she was convicted was discovered after it was determined that no persons were in danger. She maintains that when the officers discovered the evidence on which her conviction was based, they were unlawfully in her home, without a search warrant.

The State claims that the record does not support Loh's argument. The State contends that in the course of searching for persons in the house, the officers saw the...

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