State v. Ochadleus

• Citation: 2005 MT 88,110 P.3d 448,326 Mont. 441
• Decision Date: 11 April 2005
• Docket Number: No. 04-266,04-266
• Parties: STATE OF MONTANA, Plaintiff and Respondent, v. JAMES B. OCHADLEUS, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

2005 MT 88

326 Mont. 441

110 P.3d 448

STATE OF MONTANA, Plaintiff and Respondent, v. JAMES B. OCHADLEUS, Defendant and Appellant.

No. 04-266

Supreme Court of Montana.

Submitted on Briefs: April 5, 2005

Decided: April 11, 2005

For Appellant: Nancy G. Schwartz, LaRance Syth & Schwartz, Billings, Montana.

For Respondent: Honorable Mike McGrath, Montana Attorney General, Tammy K. Plubell, Assistant Attorney General, Helena, Montana; Dennis Paxinos, Yellowstone County Attorney, Sheila Kolar, Deputy County Attorney.

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

¶ 1 James B. Ochadleus appeals his conviction in the District Court for the Thirteenth Judicial District, Yellowstone County, of Criminal Possession of Dangerous Drugs with Intent to Distribute. We affirm.

¶ 2 We address the following issues on appeal:

¶ 3 1. Whether the District Court properly denied Ochadleus's motion to suppress evidence seized pursuant to a search warrant based on Ochadleus's claim that the Postal Inspector did not have reasonable grounds to subject a suspicious package placed in the United States Mail to a canine sniff.

¶ 4 2. Whether the District Court properly denied Ochadleus's motion to suppress based on his claim that law enforcement officers failed to follow the "knock and announce" rule prior to executing a warrant to search his residence.

Factual and Procedural Background

¶ 5 Postal Inspector Mark Morse has been employed by the United States Postal Inspectors Office for over 18 years. In that position, Inspector Morse investigates crimes in Montana that affect the United States Postal Service and the United States Mail.

¶ 6 On January 30, 2003, while profiling Express Mail packages at the Billings Post Office, Inspector Morse discovered a package that he thought looked suspicious. Inspector Morse testified at the suppression hearing in this matter that his suspicions were aroused because the package had a handwritten label; the zip code the customer filled out was different from the actual zip code of mailing; all of the seams of the package were taped; and the package originated from Tucson, Arizona. Inspector Morse believed these facts to be significant because Express Mail is a premium service used primarily by businesses and most express mail packages have typed labels rather than handwritten labels. In addition, Inspector Morse explained that taped seams are a common characteristic of packages containing contraband and that Tucson, Arizona is a known drug distribution area.

¶ 7 Based on this information, Inspector Morse spoke with the special delivery carriers and learned that they had delivered three other Express Mail packages to the same address within the past six weeks. Consequently, Inspector Morse took the package to the Drug Enforcement Agency (DEA) in downtown Billings to have them conduct a canine sniff of the package.

¶ 8 Officer Tim Vicars is a canine handler with the Billings Police Department. He and his dog, Duke, were called to the DEA office to investigate the suspicious package. Upon arriving at the DEA office, Officer Vicars observed four or five different-sized packages on the floor a few feet apart. Inspector Morse informed Officer Vicars that he suspected one of the packages may contain illegal drugs, but he did not tell Officer Vicars which one he suspected. Officer Vicars deployed Duke to sniff the packages and Duke alerted on the same package that Inspector Morse had brought from the Post Office.

¶ 9 Thereafter, Inspector Morse obtained a search warrant from the Federal Magistrate to inspect the contents of the package. In the package, Inspector Morse found 495.8 grams of a green leafy substance that field-tested positive for marijuana. Based on this evidence, Inspector Morse also obtained a warrant to search the intended destination of the package—a residence at 709 North 26th Street in Billings. Later that day, Inspector Morse, dressed as a mail carrier, delivered the package of marijuana to that location. Shortly thereafter, five officers with the Billings Police Department's City-County Special Investigations Unit (CCSIU) and the DEA executed the search warrant.

¶ 10 To enter the residence, the officers had to pass through a screen door and a wooden door with a window that led into an enclosed porch. About five feet from this porch entrance was another wooden door with a window that led into the residence itself. Neither of the windows in the doors had any type of curtain or other covering. Detective Jamie Schillinger with the CCSIU entry team later testified that he thought the wooden door at the porch entrance was open prior to the officer's entry.

¶ 11 At the time the officers executed the search warrant, Ochadleus, his roommate Les Wright, and another male were sitting in the living room when Wright saw someone pass by a window. Wright got up and went to the door to see who was there. When he looked through the window of the door, Wright saw a man with "a shield and a gun." Wright remembered seeing one of the officers wearing a tie-dyed t-shirt with a marijuana leaf on it, but various officers testified that they were all wearing law enforcement attire with identifying insignia. According to Wright, he heard one of the officers say "freeze, get on the ground, you're under arrest." Wright claimed that after only a two-second delay from the time he saw the officers, they rammed in the door.

¶ 12 Detective Rick Ballantyne, who led the entry team, testified that as soon as he approached the door to the residence he saw a man at the window of the door and made direct eye contact with him. Detective Ballantyne further testified that when he called out "police, search warrant, open the door," the man looked directly at him and moved towards the door as if to open it. However, when Detective Ballantyne again called out "police," the man backed away from the door. As soon as he saw the man backing away, Detective Ballantyne used a battering ram on the door to gain entry into the residence.

¶ 13 Detective Schillinger later estimated that there was a five-to-seven second delay between the time Wright made eye contact with the officers and the time officers forced their way into the residence. In the search, officers found the package of marijuana that had just been delivered to the residence, miscellaneous drug paraphernalia, scales, cash and other illegal drugs.

¶ 14 On February 4, 2003, the State filed an Information charging Ochadleus with Criminal Possession of Dangerous Drugs with Intent to Distribute, a felony, in violation of § 45-9-103, MCA. Ochadleus pled not guilty to the charge and, on April 10, 2003, he filed a motion to suppress the evidence seized in the search of his home. Ochadleus argued in his motion that Inspector Morse did not have sufficient grounds to subject the package to a canine sniff prior to obtaining a search warrant and that the officers who executed the search warrant for his residence did so in violation of the federal "knock and announce" statute and the Fourth Amendment to the United States Constitution. After conducting a suppression hearing, the District Court entered its findings of fact, conclusions of law and order denying Ochadleus's motion to suppress.

¶ 15 On September 10, 2003, Ochadleus filed with the District Court his Acknowledgment of Waiver of Rights by Plea of Guilty and Plea Agreement With Reservation of Right to Appeal wherein he agreed to plead guilty to the charge of Criminal Possession of Dangerous Drugs with Intent to Distribute in exchange for the State's recommendation that the court impose a seven-year suspended sentence. Ochadleus reserved his right to appeal the District Court's denial of his motion to suppress. The court subsequently deferred imposition of Ochadleus's sentence for three years based upon his successful completion of numerous conditions. Ochadleus appeals the District Court's Judgment and Order.

Standard of Review

¶ 16 We review a district court's grant or denial of a motion to suppress to determine whether the court's findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Lanegan, 2004 MT 134, ¶ 10, 321 Mont. 349, ¶ 10, 91 P.3d 578, ¶ 10 (citing State v. Roberts, 1999 MT 59, ¶ 11, 293 Mont. 476, ¶ 11, 977 P.2d 974, ¶ 11). A trial court's findings are clearly erroneous if they are not supported by substantial evidence, if the court has misapprehended the effect of the evidence, or if our review of the record leaves us with a definite and firm conviction that a mistake has been made. Lanegan, ¶ 10.

Issue 1.

¶ 17 Whether the District Court properly denied Ochadleus's motion to suppress evidence seized pursuant to a search warrant based on Ochadleus's claim that the Postal Inspector did not have reasonable grounds to subject a suspicious package placed in the United States Mail to a canine sniff.

¶ 18 The Fourth Amendment to the United States Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ." The United States Supreme Court determined in United States v. Van Leeuwen (1970), 397 U.S. 249, 251, 90 S.Ct. 1029, 1031, 25 L.Ed.2d 282, that this included first-class mail, such as letters and sealed packages. However, the Supreme Court also held in Van Leeuwen that first-class mail is not beyond the reach of all inspection. Van Leeuwen, 397 U.S. at 252, 90 S.Ct. at 1032.

¶ 19 The Ninth Circuit Court of Appeals has stated that "[p]ostal authorities may seize and detain packages if they have a reasonable and articulable suspicion of criminal activity." United States v. Aldaz (9th Cir. 1990), 921 F.2d 227, 229, cert. denied, 501 U.S. 1207, 111 S.Ct. 2802, 115 L.Ed.2d 975 (1991). A reasonable suspicion "is formed by specific, articulable facts which, together with objective and reasonable inferences, form the basis for suspecting...