State v. Scheetz

• Decision Date: 05 December 1997
• Docket Number: No. 96-358,96-358
• Citation: 950 P.2d 722,54 St.Rep. 1286,286 Mont. 41
• Parties: STATE of Montana, Plaintiff and Respondent, v. Scott SCHEETZ, Defendant and Appellant.
• Court: Montana Supreme Court

Page 722

950 P.2d 722

286 Mont. 41

STATE of Montana, Plaintiff and Respondent, v. Scott SCHEETZ, Defendant and Appellant.

No. 96-358.

Supreme Court of Montana.

Submitted on Briefs Sept. 11, 1997.

Decided Dec. 5, 1997.

Brad L. Arndorfer, Arndorfer Law Firm, Great Falls, for Defendant and Appellant.

Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Assistant Attorney General, Helena, Dennis Paxinos, Yellowstone County Attorney, Dale Mrkich, Deputy County Attorney, Billings, for Plaintiff and Respondent.

TRIEWEILER, Justice.

Scott Scheetz was charged in the District Court for the Thirteenth Judicial District in Yellowstone County with criminal possession of dangerous drugs with intent to sell after a drug-detecting canine led officers to search his airline luggage, in which they discovered eighteen pounds of marijuana. He filed a motion to suppress the seized evidence. The District Court denied his motion. Scheetz pled guilty and now appeals the District Court's denial of his motion to suppress. We affirm the order and judgment of the District Court.

The sole issue on appeal is whether the use of a drug-detecting canine to sniff luggage which has been entrusted to an airline constitutes a search in violation of a person's right to privacy guaranteed by Article II, Sections 10 and 11, of the Montana Constitution.

FACTUAL BACKGROUND

On February 9, 1995, Officer Lawrence Leighton of the Tucson Airport Authority Police Department noticed Scott Scheetz and two other men acting nervously prior to checking in for their flight. The individuals became cautious when they were walking toward the check-in counter and noticed the uniformed Leighton. Rather than proceed directly to the counter where no one else was waiting in line and where they could have checked in immediately, they became "quite serious" and retreated to some nearby couches. They talked among themselves and "continued to appear nervous." Two of the individuals walked away and left Leighton's view for a minute or two, while the third remained at the couch with a large, new, hard-sided suitcase. All of the men avoided eye contact with Leighton throughout his observations of them.

Fifteen minutes prior to their flight's departure, the three men checked in at the counter and checked the suitcase. Leighton, who had been with the Airport Authority Police for five years and investigated approximately two hundred narcotics cases, and who had received advanced officer training in narcotics recognition, suspected that the three men were trafficking narcotics. He inspected the luggage in the baggage area immediately after the men checked it. He found that the luggage tag listed only the name of John Olson and a telephone number. Leighton also investigated the men's travel plans and found that they had been made through a travel agent very shortly before the flight, and that the men had been in Tucson for approximately two days.

Based on his experience and the men's behavior, Leighton contacted the Billings Police Department and informed them of his suspicion that the men were trafficking narcotics. He provided descriptions of the men, their flight number, and their time of arrival in Billings. The men, while traveling, were going by the names of John Olson, Chris Anderson, and Bob Jones. When Detective Steve Cwalinski of the Billings Police traced the phone number on the luggage tag, he found that it was for a Billings restaurant.

Officer Cwalinski, accompanied by a drug-detecting canine and its handler and a DEA agent, met the flight when it landed at the Billings airport. Before the luggage was loaded onto the carousel, the canine was directed to sniff the luggage from the flight. The canine's reaction indicated that the suitcase matching the description given by Leighton contained drugs.

Cwalinski identified two men matching the description given by Leighton as they waited near the carousel for their luggage. One of the two men took the suitcase that had been identified by the canine and Leighton when it came off the carousel. He removed the tags and threw them in the trash. Cwalinski retrieved the discarded tags, which listed John Olson and the phone number, approached After separating the men, the officers advised Scheetz of his Miranda ¹ rights. Scheetz, who had removed the suitcase from the carousel, identified himself as John Olson, and initially refused to give his consent to search his suitcase, although he eventually admitted that he had drugs in the suitcase, and was placed under arrest. The officers obtained a search warrant for the suitcase and found that it contained approximately eighteen pounds of marijuana.

the men, and identified himself as an officer. He advised them of his investigation and escorted them to an office in the airport.

On March 1, 1995, the Yellowstone County Attorney filed an information charging Scheetz with criminal possession of dangerous drugs with intent to sell and criminal possession of drug paraphernalia. On August 8, 1995, Scheetz filed a motion to suppress the evidence against him, based upon what he asserted was the State's invasion of his privacy by the use of a drug-detecting canine. After briefing and a hearing, the District Court concluded that the use of a drug-detecting canine was not a search and, accordingly, denied the motion. On March 6, 1996, Scheetz pled guilty to the charges, but reserved his right to appeal the denial of his motion to suppress. The District Court accepted the plea and sentenced Scheetz to ten years of imprisonment, with five years suspended.

DISCUSSION

Does the use of a drug-detecting canine to sniff luggage which has been entrusted to an airline constitute a search in violation of a person's right to privacy guaranteed by Article II, Sections 10 and 11, of the Montana Constitution?

We review a district court's denial of a motion to suppress to determine whether the court's interpretation and application of the law is correct. See State v. Graham (1995), 271 Mont. 510, 512, 898 P.2d 1206, 1207-08; State v. Stubbs (1995), 270 Mont. 364, 368, 892 P.2d 547, 550.

The use of drug-detecting canines to inspect luggage is an issue of first impression in Montana. Although search and seizure protections are traditionally founded on the Fourth Amendment of the United States Constitution, we stated in State v. Sawyer (1977), 174 Mont. 512, 515, 571 P.2d 1131, 1133, that "[w]e need not consider the Fourth Amendment issue because we view the Montana Constitution to afford an individual greater protection ... than is found under the Fourth Amendment." We also explained in State v. Siegal (1997), 281 Mont. 250, ----, 934 P.2d 176, 184, that when a right of privacy is specially implicated as part of a traditional search and seizure analysis, we must address the issue pursuant to both Sections 10 and 11 of Article II of the Montana Constitution. Article II, Section 10, states: "The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest." Article II, Section 11, states:

The people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures. No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing.

A threshold question in the determination of whether an unlawful search has occurred is whether there has been government intrusion into an area where privacy is reasonably expected. The U.S. Supreme Court stated in United States v. Jacobsen (1984), 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85, 94, that "[a] 'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." We stated in State v. Loh (1996), 275 Mont. 460, 914 P.2d 592, that "[a] search compromises the individual interest in privacy." Loh, 275 Mont. at 468, 914 P.2d at 597 (quoting Horton v. California (1990), 496 U.S. 128, 133, 110 S.Ct. 2301, 2306, 110 L.Ed.2d 112, 120). "Where no reasonable expectation of privacy exists, there is neither a 'search' nor a 'seizure' within the contemplation of the Fourth Amendment of the United States Constitution or Article II, Section 11 of the Montana Constitution." State v. Bennett (1983), 205 Mont. 117, 121, 666 P.2d 747, 749.

In United States v. Place (1983), 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110, the U.S. Supreme Court held that exposing a person's luggage, which is located in a public place, to a drug-detecting canine is not a search within the meaning of the Fourth Amendment. Place involved facts similar to these. An airport officer relied on his suspicions of drug trafficking to alert officers in the passenger's destination city to conduct a canine investigation of the passenger's luggage. The Supreme Court reasoned that the investigation was "much less intrusive than a typical search," and that "the information obtained is limited." Place, 462 U.S. at 707, 103 S.Ct. at 2644, 77 L.Ed.2d at 121.

States are free to grant citizens greater protection based on state constitutional provisions than the U.S. Supreme Court divines from the U.S. Constitution. See City of Mesquite v. Aladdin's Castle, Inc. (1983), 455 U.S. 283, 293, 102 S.Ct. 1070, 1077, 71 L.Ed.2d 152, 162; Sawyer, 174 Mont. at 515, 571 P.2d at 1133. Nonetheless, most states that have addressed the use of drug-detecting canines have followed Place and have held that the use of drug-detecting canines does not constitute a search. See State v. Weinstein (Ariz.Ct.App.1997), 190 Ariz. 306, 947 P.2d 880; Vega v. State (1997), 56 Ark.App. 145, 939 S.W.2d 322; State v. Snitkin (1984), 67 Haw. 168, 681 P.2d 980; State v. Martinez (Idaho.Ct.App.1996), 129 Idaho 426, 925 P.2d 1125; State v. Barker (1993), 252 Kan. 949, 850 P.2d 885; State v. Washington...