State v. Parker

• Decision Date: 15 January 1998
• Docket Number: No. 96-662,96-662
• Citation: 953 P.2d 692,287 Mont. 151,1998 MT 6,55 St.Rep. 16
• Parties: STATE of Montana, Plaintiff and Respondent, v. John PARKER, Defendant and Appellant.
• Court: Montana Supreme Court

Page 692

953 P.2d 692

287 Mont. 151

STATE of Montana, Plaintiff and Respondent, v. John PARKER, Defendant and Appellant.

No. 96-662.

Supreme Court of Montana.

Submitted on Briefs Dec. 18, 1997.

Decided Jan. 15, 1998.

Jeffrey G. Michael, Deputy Public Defender, Billings, for Defendant and Appellant.

Joseph P. Mazurek, Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, for Plaintiff and Respondent.

LEAPHART, Justice.

¶1 John Parker (Parker) appeals from the decision of the Thirteenth Judicial District Court, Yellowstone County, denying his motion to suppress evidence obtained during a consensual search of an automobile and denying his motion for directed verdict based on a variance between the State of Montana's (State's) affidavit in support of leave to file the information and the evidence it presented at trial. We affirm.

Factual and Procedural Background

¶2 On November 22, 1995, Officer Joseph Campbell (Officer Campbell) was patrolling traffic on Interstate 90 near Billings, Montana. Officer Campbell was driving in the passing lane when he observed a red Audi with three adult occupants. Charles Parker (Charles), Parker's brother, was driving the automobile. Suzanne Surber (Suzanne) sat in the front passenger seat and Parker sat directly behind Suzanne in the right, rear, passenger seat. Officer Campbell later discovered that a toddler was seated in a child restraint in the left, rear, passenger seat.

¶3 As Officer Campbell approached and proceeded to pass the Audi, he noticed what he described as unusual behavior. Officer Campbell testified that the individuals exhibited an unusual amount of interest in the patrol car and that Suzanne seemed to be transporting something from the front seat to the backseat in what he described as "furtive" movements. As a result of the occupants' unusual behavior, Officer Campbell ran a check on the vehicle's license plates and discovered that the plates were registered to a 1984 Pontiac 600, not an Audi. While Officer Campbell requested the dispatcher to run a second check on the license plate, he exited the interstate, allowed the Audi to pass, then reentered the highway behind the Audi. The Audi exited the interstate at Laurel Road, and Officer Campbell followed. When the dispatcher confirmed the license plate information, Officer Campbell activated his patrol lights indicating that he wanted the car to pull over. The Audi did not stop, but continued onto Parkway Road and finally stopped in a truck stop parking lot.

¶4 Officer Campbell approached the Audi and explained that the license plates were not registered to the Audi. Charles indicated that he did not know anything about the plates and that Suzanne owned the vehicle. Suzanne also denied knowing about the license plates, but agreed that she owned the Audi. Officer Campbell asked for identification and learned that Charles did not have a valid driver's license. Suzanne, however, produced a valid driver's license. Officer Campbell then asked Suzanne why she was reaching around in the vehicle. She explained that she was taking care of the toddler in the back seat. Officer Campbell indicated that the movements seemed to be in the direction of Parker rather than the child.

¶5 Officer Campbell then asked Suzanne if she would accompany him to the patrol car to answer further questions. She agreed. Officer Campbell asked if the car contained any weapons, drugs or drug paraphernalia. Suzanne indicated that it did not. Officer Campbell explained that he suspected that the car contained such items because of Suzanne's suspicious movements which he claimed were not explained by her taking care of the child. Officer Campbell then asked Suzanne if he could search the vehicle. She consented to the search.

¶6 When Officer Campbell approached the vehicle to conduct the search, Parker was still seated in the vehicle. Officer Campbell explained to Parker that he had consent from Suzanne to search the vehicle and asked Parker if he had any objections to the search. Parker indicated that he did not, and exited the Audi. Before Officer Campbell began the search, he asked Parker if any of the items belonged to him. Parker indicated that a box on the left passenger floor belonged to him and that it contained some books and video tapes.

¶7 Officer Campbell began his search by opening a purse located on the front passenger floor. Inside the purse he found a small clear plastic cosmetic case containing Zigzag rolling papers and Visine eye drops. He also found a leather pouch containing a small mirror, an orange-colored hand-carved pipe and a film container covered in iridescent contact paper. The pipe contained a burnt residue and Officer Campell testified that he could smell the odor of burnt marijuana. The film container contained a straight glass pipe with white powdery residue, a razor blade, a hairpin with tarry residue and a small brown glass bottle. The small brown glass bottle had a black cap to which a small spoon hinged. The bottle also contained white powdery residue.

¶8 Officer Campbell discovered a black fanny pack on the rear deck of the Audi. The fanny pack was located near Parker's seat. Officer Campbell began to search the pack and asked the three occupants of the vehicle whom it belonged to; Suzanne indicated that it belonged to Parker. However, Officer Campbell testified that Charles, Suzanne and Parker all denied owning the fanny pack. The main compartment of the fanny pack contained three packages of temporary tattoos, a notebook, and a business card which said "John F. 'T.J.' Parker, Computer Consulting and Chemistry." The business card did not indicate an address or phone number. Officer Campbell testified that, when he found the business card, he believed the fanny pack belonged to Parker.

¶9 The notebook contained chemical formulas. On one page, a long chemical formula appeared with the word "meth" written at the end. Another compartment of the fanny pack contained a calculator and more business cards. In the rear compartment of the fanny pack, Officer Campbell found a blue nylon pouch containing a small pipe, two small Ziplock bags with powdery residue, two syringes, a razor blade, four Ziplock bags, three small plastic bindles, a teaspoon with a broken handle and a small glass bottle containing a clear liquid. Upon finding what he believed to be drug paraphernalia, Officer Campbell placed Charles, Suzanne and Parker under arrest. Officer Campbell informed them of their Miranda rights then asked Suzanne if he could continue searching the vehicle; Suzanne revoked her consent at this point. Officer Campbell transported them to the Yellowstone County Detention Facility where they were booked. Parker was charged with felony criminal possession of dangerous drugs and misdemeanor criminal possession of drug paraphernalia.

¶10 Subsequent testing of the items at the crime lab indicated that the pipe found in the fanny pack tested positive for tetrahydrocannabinol (THC), the active ingredient in marijuana. The glass bottle from the fanny pack tested positive for methamphetamine.

¶11 Prior to trial, Parker moved to suppress evidence seized from the fanny pack asserting that Suzanne's consent to search the vehicle was not a valid consent as to the fanny pack, therefore the search, conducted without a warrant, did not fall within a recognized exception to the warrant requirement. The District Court held a suppression hearing and denied the motion. In its findings of fact and conclusions of law, the court determined that Officer Campbell had a particularized suspicion warranting the investigative stop of the vehicle. Additionally, the District Court concluded that Suzanne, as the owner of the vehicle had authority to consent to the search and that her consent was voluntary. Finally, the court determined that Parker did not have standing to challenge the search of the vehicle.

¶12 A bench trial was held on May 20, 1996. Officer Campbell was the only witness to testify. At the conclusion of the State's case, defense counsel moved for a directed verdict claiming a fatal variance between the proof offered by the State at trial and that contained in the State's affidavit in support of leave to file the information. Defense counsel asserted that items found in Suzanne's purse were improperly entered into evidence at Parker's trial. Defense counsel further asserted that there was insufficient evidence produced at trial that Parker possessed dangerous drugs. In its findings of fact and conclusions of law, the court determined that Parker's variance claim was without merit because any variance that existed between the State's affidavit and the evidence it produced at trial was not prejudicial to Parker and found Parker guilty of the charges. Parker appealed the denial of his motions to suppress and for directed verdict to this Court. We review two issues on appeal:

¶13 1) Did the District Court err in denying Parker's motion to suppress evidence obtained during a consensual search of a vehicle?

¶14 2) Did the District Court err in denying Parker's motion for directed verdict based on a variance between the State's affidavit and the evidence it produced at trial?

I

¶15 1) Did the District Court err in denying Parker's motion to suppress evidence obtained during a consensual search of a vehicle?

¶16 The Fourth Amendment of the United States Constitution and Article II, section 11 of the Montana Constitution protect individuals from unreasonable searches and seizures by requiring law enforcement to obtain a warrant. Warrantless searches and seizures are considered unreasonable per se under those constitutional provisions. State v. Graham (1995), 271 Mont. 510, 512, 898 P.2d 1206, 1208. However, Montana's statutory law and common law recognize certain exceptions to the constitutional warrant requirement. See § 46-5-101, MCA; State v. Rushton (1994), 264 Mont. 248, 870 P.2d 1355 (...