State v. Pierce
| Decision Date | 20 July 2005 |
| Docket Number | No. 04-444.,04-444. |
| Citation | 2005 MT 182,116 P.3d 817 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Roy Dean PIERCE, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Kristina Guest, Appellate Defender Office, Helena, Montana.
For Respondent: Mike McGrath, Attorney General; Jon Ellingson, Assistant Attorney General, Helena, Montana Fred Van Valkenberg, Missoula County Attorney; Jennifer S. Johnson, Deputy County Attorney, Missoula, Montana.
¶ 1 Roy Dean Pierce (Pierce) appeals from the denial of his motion by the Fourth Judicial District Court, Missoula County, to suppress drugs and drug paraphernalia found in his truck. We affirm.
¶ 2 Pierce raises the following issues on appeal:
¶ 3 1. Whether probable cause existed to support the warrantless seizure of Pierce's truck.
¶ 4 2. Whether probable cause existed to support the issuance of a search warrant to search Pierce's truck.
¶ 5 Highway Patrol Officer Scott Hoffman (Officer Hoffman) responded to a one-car accident site where he found Pierce sitting in his truck. Pierce got out of his truck and provided Officer Hoffman with his driver's license, proof of insurance, and registration demonstrating that he owned the truck. Officer Hoffman's call to the dispatcher revealed that Pierce had over $8,000 in outstanding warrants. Officer Hoffman arrested Pierce and placed him in the back of the patrol car at which time Pierce requested that Officer Hoffman retrieve a phone book from the dashboard of his truck.
¶ 6 Officer Hoffman opened the truck to retrieve Pierce's phone book and noticed a "strong odor of burnt marijuana." Officer Hoffman confronted Pierce about the odor and Pierce replied that someone had been smoking marijuana earlier in the truck, but that he did not smoke marijuana due to drug-testing requirements for his job. Pierce refused Officer Hoffman's request to search the truck. Officer Hoffman then asked dispatch to run a criminal history check on Pierce that uncovered earlier drug-related offenses.
¶ 7 Officer Hoffman sealed the truck with evidence tape and called a tow truck to impound it while he sought to obtain a search warrant. The tow truck arrived and Officer Hoffman left the scene to take Pierce to jail. An unidentified woman arrived a short time later and asked the tow truck driver if she could retrieve items from the truck. The tow truck driver informed the woman that Officer Hoffman had left instructions that the truck was to remain sealed. The woman left abruptly when the tow truck driver called Officer Hoffman to report her request. An unidentified woman also later called the highway patrol dispatch asking to retrieve items from Pierce's truck. The woman hung up when the dispatcher informed her that her call would be transferred to Officer Hoffman.
¶ 8 Officer Hoffman contacted the Missoula Police Department for assistance after Pierce's arrest. In response, Officer Ken Wickman from the Missoula Police Department brought his K-9 officer, Boaz, to sniff Pierce's truck. Boaz "alerted" to the passenger side of the truck.
¶ 9 Officer Hoffman obtained a search warrant for the truck two days after seizing and impounding Pierce's truck. Officer Hoffman based his application for the search warrant on the accident, Pierce's outstanding warrants, the smell of marijuana in the truck, Pierce's admission that someone recently had smoked marijuana in the truck, Pierce's denial of consent to search the truck, Pierce's earlier drug-related offenses, the unknown woman's attempts to remove property from the truck, and the K-9 sniff and "alert." District Court Judge Harkin concluded from Officer Hoffman's application that probable cause existed to justify issuing a warrant to search Pierce's truck. The search turned up an inventory of drugs and drug paraphernalia. The State charged Pierce with felony criminal possession of dangerous drugs and two other misdemeanor drug offenses.
¶ 10 Pierce filed a motion to suppress the evidence obtained from the search of his truck. He asserted that the State lacked probable cause to seize his truck and lacked probable cause to support the issuance of the warrant to search his truck. Officer Hoffman conceded at the suppression hearing that the information filed in his affidavit concerning the number of Pierce's past drug-related offenses could have been wrong. He further conceded that the two days between impounding Pierce's truck and the search provided "plenty of time" to confirm Pierce's criminal history. Officer Hoffman admitted that he had failed to confirm it. Indeed Pierce had only one prior misdemeanor drug conviction approximately twenty-five years before his arrest. He did have prior convictions, however, for several other offenses.
¶ 11 District Court Judge Larson denied the motion to suppress. Pierce pled guilty to all three counts pursuant to a plea agreement and reserved his right to appeal the court's denial of his motion to suppress. The District Court sentenced Pierce to five years to the Department of Corrections and suspended the entire sentence. Pierce now appeals the District Court's denial of his motion to suppress.
¶ 12 We review a district court's denial of a motion to suppress to determine whether its findings of facts prove clearly erroneous and whether its interpretation and application of the law remains correct. State v. Dewitt, 2004 MT 317, ¶ 21, 324 Mont. 39, ¶ 21, 101 P.3d 277, ¶ 21. A court's findings are clearly erroneous if they are not supported by substantial evidence, the court misapprehended the effect of the evidence, or we are convinced by our review of the record that a mistake has been committed. Dewitt, ¶ 21.
¶ 13 In reviewing a motion to suppress evidence discovered as a result of a search pursuant to a valid warrant, we normally review with deference a magistrate's determination of probable cause in the search warrant. State v. Tackitt, 2003 MT 81, ¶ 11, 315 Mont. 59, ¶ 11, 67 P.3d 295, ¶ 11 (citing State v. St. Marks, 2002 MT 285, ¶ 14, 312 Mont. 468, ¶ 14, 59 P.3d 1113, ¶ 14). When information must be excised from the application for the search warrant, however, we review the warrant de novo for probable cause. Tackitt, ¶ 11. We review de novo the district court's conclusion of law when denying a motion to suppress. Dewitt, ¶ 21.
¶ 14 Whether probable cause existed to support the warrantless seizure of Pierce's truck.
¶ 15 Pierce contends that Officer Hoffman lacked probable cause to seize and impound his truck and thereby violated his right to be protected against unreasonable seizure. Officer Hoffman seized Pierce's truck without a warrant, after arresting him based on his outstanding warrants, when he placed evidence tape around the truck and had it towed and impounded. Officer Hoffman did so, however, only after smelling burnt marijuana in the truck and Pierce admitted that someone had smoked marijuana in the truck.
¶ 16 This matter mirrors State v. Broell (1991), 249 Mont. 117, 122, 814 P.2d 44, 47, where Broell argued that the police unlawfully seized his car when they impounded it without a warrant before the issuance of a search warrant. We held that a warrantless seizure of a car fell under the "automobile exception" to illegal searches and seizures and is permissible "where there is probable cause to believe that such automobile's contents `offend against the law.'" Broell, 249 Mont. at 122, 814 P.2d at 47 (citing State v. Evjen (1988), 234 Mont. 516, 765 P.2d 708).
¶ 17 Pierce contends that Broell should not control this matter as we have since rejected the "automobile exception" and demands that "a warrantless search of an automobile requires the existence of probable cause as well as a generally applicable exception to the warrant requirement such as a plain view search, a search incident to arrest, or exigent circumstances." State v. Elison, 2000 MT 288, ¶¶ 53-54, 302 Mont. 228, ¶¶ 53-54, 14 P.3d 456, ¶¶ 53-54. Pierce claims that he maintained a privacy interest in his truck and invites us to apply Montana's fundamental right to privacy under Article II, Section 10, of the Montana Constitution to the seizure of his truck. He points to State v. Martinez, 2003 MT 65, ¶ 52, 314 Mont. 434, ¶ 52, 67 P.3d 207, ¶ 52, where we held that a traffic stop based on an unreliable tip constituted an unconstitutional infringement on Martinez's right to privacy.
¶ 18 Pierce seemingly again forgets, however, that Officer Hoffman smelled the burnt marijuana, not based on a tip, but because he requested that Officer Hoffman retrieve his phone book from the truck. Pierce apparently also has a memory lapse regarding his own admission, and not that of an informant's admission, that someone had committed the offense of smoking marijuana inside of the truck. We therefore reject Pierce's invitation to disallow the seizure of his truck under Article II, Section 10, and conclude that, for today, Broell controls the warrantless seizure. See Elison, ¶ 54, n. 3. As we have noted, "the seizure at issue in Broell was lawful regardless of exigent circumstances because `there was sufficient probable cause under the facts of this case to believe that illegal drugs were located in Broell's car.'" Elison, ¶ 54, n. 3 (quoting Broell, 249 Mont. at 123, 814 P.2d at 47).
¶ 19 Similar to Broell, we will base our analysis on Officer Hoffman's probable cause to conduct the warrantless seizure solely on the information that Officer Hoffman received before towing and impounding the truck. Broell, 249 Mont. at 122, 814 P.2d at 47. We agree with the State that Officer Hoffman possessed sufficient facts before towing the truck, including the smell of burnt marijuana, Pierce's admission that someone had smoked marijuana in the truck, and the dispatch report that Pierce had earlier...
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