State v. Martinez

Decision Date01 April 2003
Docket Number No. 00-781, No. 00-802.
Citation314 Mont. 434,2003 MT 65,67 P.3d 207
PartiesSTATE of Montana, Plaintiff and Respondent, v. Jesus MARTINEZ and Daniel Olson, Defendants and Appellants.
CourtMontana Supreme Court

Kristina Guest, Appellate Defender Office, Helena, Montana, for Appellants.

Mike McGrath, Montana Attorney General, Stephen C. Bullock, Assistant Montana Attorney General, Helena, Montana; Dennis Paxinos, Yellowstone County Attorney, Billings, Montana, for Respondent.

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

¶ 1 Jesus Martinez and Daniel Olson pled guilty to felony drug offenses, while preserving the right to appeal the denial of separate motions to suppress evidence gathered as a result of an investigative stop of their vehicle. We reverse the order of the Thirteenth Judicial District Court, Yellowstone County, denying the Appellants' motions to suppress.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 The investigative stop of Jesus Martinez and Daniel Olson on the afternoon of November 4, 1999, culminated a two-week investigation by the Billings Police Department's Special Investigation Unit (SIU). The issue on appeal is whether the police officers had a particularized suspicion to justify the stop. Because a finding of particularized suspicion is fact-specific, we recount the events leading up to the stop in some detail.

¶ 3 On October 20, 1999, Detective Richard Hirschi received a call from a woman who stated a man named Ricky would arrive in Billings within three days with fifty pounds of marijuana. According to the woman, Ricky would travel from Oregon in a tan Thunderbird with license plate number WFY768 and stay at the Townhouse Motel. Later that day, Hirschi met the caller and signed her up as a confidential informant. The woman stated that she was the girlfriend of a man named Daniel Olson, who lived in Havre, Montana, and that her boyfriend knew about many illegal dealings.

¶ 4 Hirschi and Detective Ken Paharik followed up the tip by visiting the Townhouse Motel and determining that a Thunderbird with a similar plate number had been listed on the motel register two weeks earlier by a guest named Jesus Martinez. Martinez had stayed at the Townhouse on October 1 and 2, 1999, and on October 12 through 14, 1999. The detectives ran a vehicle registration check and learned that the plate number provided by the informant was registered to Pedro Martinez Acezedo of Salem, Oregon, for a tan-colored 1989 Thunderbird. Upon questioning, Townhouse employees reported noticing no suspicious activity during Martinez's prior stays at the motel. The police requested that motel personnel contact them should Martinez check-in again.

¶ 5 On November 2, 1999, the motel clerk alerted Hirschi that Martinez had again registered and that he was driving a small 1986 Chevrolet truck with Oregon plates. The police verified the truck was registered to a Mario Rodriguez of Monmounth, Oregon. Later that day, the confidential informant called again and told Hirschi that Ricky had checked-in at the Townhouse. In addition, the informant related that Daniel Olson had stolen a flat-bed truck in Great Falls and driven it to Billings. She directed the police to a three-block area where the truck was parked in Billings. The detectives verified that a truck stolen in Great Falls the previous day was at the described location.

¶ 6 The police placed Martinez under surveillance shortly after his arrival in Billings and continued to follow his movements for most of the next two and one-half days. Throughout this time, the surveillance team observed no activity that they associated with drug-dealing. The officers saw no persons come to or leave Martinez's motel room; did not witness Martinez meeting with people in bars or restaurants, on the street or at other public places; and never observed Martinez carrying large sacks or luggage to or from his vehicle.

¶ 7 During the second day of surveillance, the police pulled Martinez over for illegally changing lanes on a Billings street. After questioning him, the officers requested permission to search the vehicle. Martinez consented. Officer Lamb and the department's drug-sniffing dog "Tico" assisted in the search. A small bud, weighing approximately 0.4 gram and testing positive for THC, was found on the truck seat. Unable to establish that the marijuana belonged to Martinez, the police retained the evidence and allowed Martinez to leave without issuing a traffic ticket or complaint.

¶ 8 On November 4, 1999, the confidential informant again contacted Hirschi and told him that Martinez planned to leave Billings with Daniel Olson at about 1:00 p.m. that day to sell the remaining marijuana in Bozeman. She stated that Martinez probably would be driving a different vehicle. The police confirmed with a motel employee that Martinez was seen leaving the motel driving a teal Mazda pickup with a temporary registration sticker.

¶ 9 The SIU planned a stake-out along the route to Bozeman, and Sergeant Tim O'Connell requested permission to ride with the Montana Highway Patrol to execute the stop as soon as Martinez and Olson traveled past the Laurel exit on Interstate 90, a few miles west of Billings. When the Mazda pickup passed Highway Patrolman Craig Baum heading west at about 1:30 in the afternoon, Baum caught up with the vehicle and pulled it over. O'Connell and Baum approached the pickup from opposite sides. After a brief exchange, the officers directed Martinez and Olson to get out of the pickup.

¶ 10 Detectives Hirschi and Paharik arrived at the scene within two minutes of the stop and immediately handcuffed and separated Martinez and Olson. Paharik interviewed Martinez in one police vehicle; Hirschi questioned Olson in another. The detectives advised each defendant of his Miranda rights and informed each that he was not under arrest but was detained for investigation. Officers Evans and Lamb soon drove up and had "Tico" sniff the scene. The dog "signaled" positively for the presence of contraband in the pickup cab. Martinez refused to consent to a search, stating that he had borrowed the vehicle. The record contains no information on the duration of the separate interrogations of Martinez and Olson or whether the handcuffs were removed prior to questioning.

¶ 11 Martinez confessed to Paharik that a suitcase in the pickup contained "mota." The record does not reveal whether Paharik interviewed Martinez in Spanish or English. Paharik explained to the other officers at the scene that "mota" means marijuana. The police arrested Martinez and Olson and impounded the pickup. The detectives obtained a warrant to search the vehicle and found approximately 15 pounds of marijuana in a suitcase. Martinez and Olson were separately charged with felony possession and possession with the intent to sell dangerous drugs. Olson requested and received court-appointed counsel.

¶ 12 The defendants filed separate motions to suppress all evidence gathered as a result of the investigative stop on the grounds that the police lacked particularized suspicion of any wrongdoing to justify the stop. The State moved without objection to consolidate the defendants' motions for hearing, which occurred on April 14, 2000. The District Court denied the motions on May 2, 2000.

¶ 13 Preserving their rights to appeal, Martinez pled guilty to criminal possession with intent to sell under § 45-9-303, MCA, and Olson to criminal possession under § 45-9-302, MCA. Martinez received a five-year suspended sentence and deferred fine. The District Court granted Martinez's request for court-appointed counsel to carry this appeal. Olson received a four-year suspended sentence and deferred fine on October 2, 2000. Both defendants filed timely appeals, which this Court thereafter consolidated.

¶ 14 After the initial briefing, this Court noted that all parties argued our decision in State v. Pratt (1997), 286 Mont. 156, 951 P.2d 37, as the legal basis underlying the particularized suspicion for the vehicle stop in this case. We directed the parties to assume, arguendo, that Pratt and its progeny are not appropriate authority for the vehicle stop on the facts presented and ordered supplemental briefing on whether the stop is or is not supportable based on other legal authority and argument.

¶ 15 Citing Alabama v. White (1990), 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, the State argues that particularized suspicion of criminal activity can arise from information that is less reliable than that required to show probable cause and that deficiencies in police corroboration of criminal behavior may be overcome by the strength of an informant's basis of knowledge. Moreover, the State points out that this Court recognized in State v. Elison, 2000 MT 288, ¶ 20, 302 Mont. 228, ¶ 20, 14 P.3d 456, ¶ 20, that when a tip is reliable, "corroboration of innocent behavior may be sufficient to raise a particularized suspicion."

¶ 16 Martinez and Olson argue in their supplemental brief that the investigative stop of November 4, 1999, constituted a warrantless arrest. The Appellants analogize the circumstances of their stop to the facts depicted in United States v. Beck (9th Cir. 1979), 598 F.2d 497, where nine border police acting on a custom agent's uncorroborated hunch that three young men crossing the border from Mexico were importing illegal drugs, surrounded and stopped a taxi carrying the young men to the airport. The "suspects" were separated and questioned individually. The Ninth Circuit Court of Appeals held the investigative stop was actually an illegal arrest executed without probable cause or warrant. The Appellants similarly claim that their detention, handcuffing and interrogation in separate police vehicles exceeded the scope of an investigative stop and the police lacked probable cause for an arrest.1

¶ 17 The rule is well established that this...

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