State v. Olson

• Decision Date: 17 September 2002
• Docket Number: No. 01-194.,01-194.
• Citation: 311 Mont. 270,55 P.3d 935,2002 MT 211
• Parties: STATE of Montana, Plaintiff and Respondent, v. Kathy OLSON, Defendant and Appellant.
• Court: Montana Supreme Court

55 P.3d 935

2002 MT 211

311 Mont. 270

STATE of Montana, Plaintiff and Respondent, v. Kathy OLSON, Defendant and Appellant.

No. 01-194.

Supreme Court of Montana.

Submitted on Briefs February 7, 2002.

Decided September 17, 2002.

Rehearing Denied October 10, 2002.

Kristina Guest, Assistant Appellate Defender, Helena, Montana, For Appellant.

Hon. Mike McGrath, Attorney General; Jim Wheelis, Assistant Attorney General, Helena, Montana, Dennis Paxinos, Yellowstone County Attorney; Sheila R. Kolar, Deputy County Attorney, Billings, Montana, For Respondent.

Chief Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 Kathy Olson (Olson) appeals from the judgment entered by the Thirteenth Judicial District Court, Yellowstone County, on her convictions for criminal possession of dangerous drugs and criminal possession of dangerous drugs with intent to sell. We reverse and remand.

¶ 2 The issue on appeal is whether the District Court erred in denying Olson's motion to suppress evidence.

BACKGROUND

¶ 3 On December 10, 1999, Yellowstone County Deputy Sheriffs Shane Skillen (Skillen) and Steve Corson (Corson) went to Olson's home to arrest her pursuant to a warrant issued as a result of her failure to appear at a justice court hearing. After knocking on the front door and receiving no response, Skillen went around to the back door of the residence. As Skillen approached the back, Brian Aichele (Aichele), who also resided in the home, exited the back door. Skillen asked Aichele whether Olson was home and Aichele responded that she was. Aichele reentered the house, followed by Skillen and Corson. The back entrance led into a laundry room where Aichele paused and called several times to Olson. Olson did not respond. Aichele informed Skillen that Olson was in the living room. Skillen also called to Olson and, again, she did not respond. Skillen then walked through the laundry room into the kitchen. As he began to cross the kitchen, Olson entered the kitchen through the doorway from the living room.

¶ 4 After Olson identified herself, Skillen informed her she was under arrest and Corson handcuffed her. Skillen asked whether there was anyone else in the residence, and both Olson and Aichele stated there was not. At that point, Skillen was standing at the door between the kitchen and the living room. He looked into the living room and observed a marijuana bong on the coffee table. Aichele then became agitated and began yelling at Olson. Skillen handcuffed Aichele and informed him he would be detained until the deputies determined what they were going to do.

¶ 5 After handcuffing Aichele, Skillen conducted a search of the living room, bathroom and bedroom of the house, locating what he believed to be drugs and drug paraphernalia in each room. Aichele was then taken from the house and placed in the deputies' vehicle while Olson remained in the kitchen. Shortly thereafter, Detective Evans (Evans) of the City-County Special Investigations Unit arrived. Evans asked Aichele for permission to search the house and Aichele signed a form consenting to the search. Evans and Skillen reentered the house and requested Olson to consent to a search; she also signed a consent form. Olson was removed from the house at that time and another search was conducted, resulting in the discovery of drugs and drug paraphernalia. Olson later was taken to the Yellowstone County Detention Facility where she gave a taped statement to a deputy.

¶ 6 The State of Montana (State) charged Olson by information with the offenses of felony criminal possession of dangerous drugs, felony criminal possession of dangerous drugs with intent to sell, misdemeanor criminal possession of dangerous drugs and misdemeanor criminal possession of drug paraphernalia. She subsequently moved to suppress both the evidence found in her home and her taped statement on the basis that the search of her home violated her right to be free from unreasonable searches and seizures as guaranteed by the United States and Montana Constitutions and her right to privacy under the Montana Constitution. The District Court held a hearing, following which it orally denied the motion. Olson then pleaded guilty to the offenses of felony criminal possession of dangerous drugs with intent to sell and misdemeanor criminal possession of dangerous drugs, pursuant to a plea agreement in which she expressly reserved her right to appeal the District Court's denial of her motion to suppress. The District Court sentenced Olson and entered judgment. Olson appeals.

STANDARD OF REVIEW

¶ 7 We review a district court's ruling on a motion to suppress to determine whether the court's findings of fact are clearly erroneous and whether its interpretation and application of the law are correct. State v. Nalder, 2001 MT 270, ¶ 5, 307 Mont. 280, ¶ 5, 37 P.3d 661, ¶ 5.

DISCUSSION

¶ 8 Did the District Court err in denying Olson's motion to suppress evidence?

¶ 9 Both the Fourth Amendment to the United States Constitution and Article II, Section 11 of the Montana Constitution guarantee the right to be free from unreasonable searches and seizures. It is well-established that a warrantless search is per se unreasonable absent the existence of one of a few narrow exceptions to the warrant requirement. See, e.g., State v. Elison, 2000 MT 288, ¶ 39, 302 Mont. 228, ¶ 39, 14 P.3d 456, ¶ 39; State v. McBride, 1999 MT 127, ¶ 12, 294 Mont. 461, ¶ 12, 982 P.2d 453, ¶ 12; State v. Rushton (1994), 264 Mont. 248, 257, 870 P.2d 1355, 1361. In her motion to suppress, Olson advanced a variety of arguments supporting her contention that the drug evidence and her taped statement were obtained in violation of her constitutional right to be free from unreasonable searches and seizures, as well as her right to privacy. In response, the State argued that, notwithstanding the absence of a search warrant, the searches of Olson's home were justified by various exceptions to the warrant requirement. The District Court denied the motion to suppress, concluding that the marijuana bong was in plain view, Skillen's initial search was justified as a protective sweep of the residence during which he observed more drugs and drug paraphernalia in plain view, the second search was authorized by Olson's written consent and, because the searches were not illegal, Olson's subsequent statement was given voluntarily. Olson asserts error.

¶ 10 Olson first argues that the District Court's determination that the marijuana bong on the coffee table in the living room was in Skillen's plain view is erroneous. The plain view doctrine is a recognized exception to the warrant requirement which "begins with the premise that the police officer had a prior justification for an intrusion, in the course of which he came inadvertently across a piece of evidence incriminating the accused." State v. Loh (1996), 275 Mont. 460, 468-69, 914 P.2d 592, 597 (citing Coolidge v. New Hampshire (1971), 403 U.S. 443, 465-66, 91 S.Ct. 2022, 2037-38, 29 L.Ed.2d 564, 582-83). Thus, because the doctrine presupposes the law enforcement officer was lawfully on the premises at the time the evidence is observed, the doctrine authorizes the seizure of—rather than the search for—evidence without a warrant. To justify seizing evidence under the plain view doctrine, a law enforcement officer must be lawfully located in a place from which the evidence can be plainly seen, the incriminating nature of the evidence must be immediately apparent and the officer must have a lawful right of access to the object. Loh, 275 Mont. at 473,914 P.2d at 600.

¶ 11 At the close of the hearing on the motion to suppress, the District Court made the oral finding of fact that Skillen "could see from where he was standing in the kitchen doorway ... enough of the living room to see the bong on the coffee table." The court concluded, based on that finding, that the marijuana bong was within Skillen's plain view and could be seized as evidence without the necessity of a warrant. Olson concedes Skillen's presence in her kitchen was lawful. Under Loh, the next question is whether Skillen could plainly see the bong from his lawful location in the kitchen. In that regard, Olson contends the bong was not in Skillen's plain view because it could not be observed readily from his location in the kitchen without at least partially entering a portion of her home where he was not lawfully entitled to be.

¶ 12 Skillen testified at the hearing that he was standing next to the refrigerator by the door between the kitchen and living room at the time he observed the bong. He further testified, however, that the kitchen and living room are separated by a short hall approximately one and one-half feet long and, in order to observe the marijuana bong on the coffee table, he was required to lean in through the door between the kitchen and living room. Indeed, his testimony contains numerous statements that he had to lean around the wall between the kitchen and living room in order to see the bong. We conclude that, by leaning through the doorway, Skillen entered a portion of the residence not included within the boundaries of his lawful presence in the kitchen. Consequently, the District Court's finding that Skillen could see the bong from his location in the kitchen is not supported by substantial credible evidence and is, therefore, clearly erroneous. We further conclude that, because the court's finding that Skillen observed the marijuana bong from a place where he was lawfully located is clearly erroneous, its conclusion—based on that finding—that the bong was in Skillen's plain view from the kitchen is incorrect.

¶ 13 The State argues, however, that the District Court correctly concluded the marijuana bong, as well as the other drugs and drug paraphernalia later observed by Skillen, are admissible evidence. At the close of the hearing on the motion to suppress, the District Court stated that, even if the marijuana...