State v. Neiss, DA 16-0399

Citation2019 MT 125,396 Mont. 1,443 P.3d 435
Decision Date04 June 2019
Docket NumberDA 16-0399
CourtMontana Supreme Court
Parties STATE of Montana, Plaintiff and Appellee, v. Patrick O. NEISS, Defendant and Appellant.

For Appellant: Nancy G. Schwartz, NG Schwartz Law, PLLC, Billings, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana Scott Twito, Yellowstone County Attorney, Billings, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 A jury in the Thirteenth Judicial District Court, Yellowstone County, convicted Patrick Neiss of evidence tampering and deliberate homicide for the murder of his neighbor, Frank Greene. Neiss appeals, raising three issues:

1. Did the District Court properly deny Neiss's motion to suppress evidence seized pursuant to a search warrant that did not explicitly authorize a no-knock entry?
2. Did the District Court properly deny Neiss's motion to suppress evidence obtained through a forensic search of his computer?
3. Did the District Court abuse its discretion by instructing the jury to choose the "most reasonable" interpretation of circumstantial evidence when there are two competing interpretations—one that supports innocence and one that supports guilt?

¶2 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 What began as a friendship between neighbors founded on a mutual love of cars grew increasingly bitter after Neiss began to suspect Greene had stolen his prized Camaro motor. Neiss's motor went missing in 2007, but beginning around 2011, Neiss became convinced Greene had stolen it. Neiss spoke often about the stolen motor and his suspicions of Greene, and he was "pretty much obsessed with it" as witnesses would later testify. Between 2011 and 2013, the two men had several disagreements and altercations regarding the motor. Neiss became openly hostile toward Greene, even telling his girlfriend at the time that he would like to "shoot" Greene. In September 2012, Neiss told a deputy county sheriff that he considered the sheriff's office to be accomplices of Greene and was angry they had never located the stolen motor. Around the same time, Neiss moved a large water tank to the top of a hill overlooking Greene's property and spray-painted the word "MOTOR" on it in red paint.

¶4 The situation continued to escalate when, during the fall of 2012, Neiss angrily confronted Greene's cousin about the motor. Greene's cousin told Neiss he did not want to become involved with the ongoing dispute, and Neiss responded "you got two weeks." Around February 2013, one of Greene's friends heard Neiss yell expletives at Greene as he drove by Greene's home. On March 7, 2013, another neighbor of Greene's overheard Greene heatedly arguing with an unidentified person. The next day, Greene's girlfriend, Manda Schaible, who lived with Greene at the time, found him in his shop, lying face down in a pool of blood. He had been shot and killed.

¶5 Schaible called 911 immediately. She told the dispatcher Neiss could have been Greene's murderer but she was unsure. About two or three minutes into the call, she saw Neiss's Chevy pickup slowly drive by her home.

¶6 Officers arrived at the scene shortly after. Although they never located a murder weapon, they found five .40 caliber shell casings and what appeared to be fresh shoeprints in the soil near Greene's shop leading to and from the direction of Neiss's property. Officers then located and detained Neiss at a nearby gas station.

¶7 A few days later, Detective Shane Bancroft applied for a search warrant for Neiss's property (March 2013 Warrant). In the warrant application, Detective Bancroft included detailed information connecting Neiss to Greene's death, including evidence from the crime scene investigation, witness statements, prior police reports, and court records. Detective Bancroft stated he had probable cause to believe officers would find evidence on Neiss's property of deliberate homicide and—because officers were unable to locate the murder weapon—evidence tampering. Detective Bancroft believed officers would find evidence including firearms, ammunition, spent shell casings, silencers, biological material, and shoe impressions consistent with those found at the crime scene. Detective Bancroft also described the following items as potential evidence: "[c]ell phones, IPads, computers and/or other electronic devices and the information contained therein"; and "[i]ndicia of Occupancy/Ownership in the form of documents, receipts, statements, mail, billing statements, letters, notes, [and] vehicle registration/titles." Noting the violent nature of the crime, the known prior altercations between Neiss and Greene, Neiss's belief that deputy sheriffs were Greene's accomplices, and a prior federal firearms conviction Neiss received in 2000, Detective Bancroft also requested authorization to execute a no-knock entry—an exception to the knock-and-announce warrant execution requirement. While the ultimate warrant signed by the judge provided for seizure of the evidence Detective Bancroft listed, it left out any authorization for a no-knock entry.

¶8 At 4 a.m. on March 14, 2013, officers executed the search warrant at Neiss's property with SWAT team assistance. Neiss's property was large and had a long gravel road leading to his home, which the officers drove across with their vehicle lights off under the cover of darkness. After parking the vehicles, multiple SWAT team members exited them and stealthily approached Neiss's house. Then, over the course of twelve-to-fifteen seconds, the SWAT team entered Neiss's sunporch, deployed a flashbang device outside his front door, and entered his home, all while sheriff's deputies outside Neiss's residence activated their vehicle lights and announced their presence over their loudspeakers.

¶9 After they gained entry to Neiss's home, the officers executed the search warrant. The officers seized multiple items from Neiss's home and the surrounding area, including three computers and numerous .40 caliber shell casings. The officers did not search the information on the computers at that time.

¶10 On August 12, 2014, officers received a warrant for Neiss's arrest and a warrant for a second search of Neiss's residence.1 Officers located an item thought to be a silencer for a firearm. The item appeared to be the body of a Maglite flashlight with gunshot residue coating its interior. On May 15, 2015, nearly one year after his arrest and two years following the March 2013 seizure of his computers, Neiss filed a motion to suppress the results of the March 2013 search, arguing the warrant lacked probable cause and officers failed to knock and announce their presence before executing it. On July 22, 2015, the District Court issued an order denying the motion. Following seizure of Neiss's computers in March 2013 and continuing until the District Court's July 2015 order, Neiss's computers were in the possession and control of law enforcement, who did not search or otherwise disturb their contents. Law enforcement kept the computers in a manner that protected them from any physical tampering or environmental degradation. While still lawfully in possession of the computers, officers applied for a third search warrant on August 12, 2015—this time to search the computers themselves. Detective Shane Bancroft applied for the warrant and averred, in pertinent part, as follows:

During the search of the residence on March 14, 2013, Investigators noted computer printouts that would indicate that someone had been actively using the computer. Additionally, Investigators were aware that on at least one occasion the Defendant had written a letter to himself that detailed his history with Greene. While the letter was handwritten; Investigators thought it was possible that Neiss may have kept a journal or log of events on one or more of the computers.
Finally, during a subsequent search of the property at 7200 Central Avenue on August 12, 2014 (pursuant to a Search Warrant signed by Judge Todd earlier in the day), Investigators located an item we thought could possibly have been used as a silencer. The item was what appeared to be the body of a mag light style flashlight. The interior of the item had residue inside it. Later when the suspect's son was interviewed he stated that his father had attached the item to the end of a firearm in the past. Additionally, the Montana Crime lab tested the item and determined that there were substances consistent with gunshot residue. Investigators were interested to know if the computers had been used to obtain information about silencers or other firearms related questions. Investigators noted that at least five rounds had been fired in the Homicide, yet no one in the home or neighborhood reported hearing any gun shots.
Investigators are asking for the search warrant to be granted to attempt to analyze the devices for data that may be related to the homicide, the planning of the homicide, and the investigation of crimes, including but not limited to, the homicide. Again, the computers were seized pursuant to a search warrant signed by Judge Todd on March 13, 2013. Due to the nature of this case and the development of additional information, your affiant is now seeking another search warrant out of an abundance of caution based on information contained herein.

Judge Todd signed the third warrant to search the three computers seized from Neiss's home for evidence connecting Neiss to Greene's death (August 2015 Warrant). Detective Bancroft executed the warrant, and his search revealed that, on one computer, a user had searched the internet for general information and videos about firearm suppressors and, more specifically, how to manufacture homemade suppressors.

¶11 After the August 2015 computer search, Neiss filed a second motion to suppress, this time contending officers lacked probable cause to search the computers and the delay...

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    ...in relation to the reason that justified the search or seizure in the first place. See State v. Neiss, 2019 MT 125, ¶¶ 23-26, 396 Mont. 1, 443 P.3d 435 (distinguishing reasonableness and warrant requirements Mont. Const. art. II, § 11, and recognizing constitutional reasonableness as functi......
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    ...may be constitutionally unreasonable if the manner of execution was unreasonable under the totality of the circumstances. See State v. Neiss , 2019 MT 125, ¶¶ 23-26, 396 Mont. 1, 443 P.3d 435 (distinguishing reasonableness and warrant requirements of Mont. Const. art. II, § 11, and recogniz......
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