State v. Siegal
| Decision Date | 24 October 1996 |
| Docket Number | No. 95-419,95-419 |
| Citation | 934 P.2d 176,281 Mont. 250,54 St.Rep. 158 |
| Parties | , 65 USLW 2679 STATE of Montana, Plaintiff and Respondent, v. James Robert SIEGAL, Doyle Wayne Jones and James Jeremiah McIntyre, Defendants and Appellants. . Heard |
| Court | Montana Supreme Court |
William A. Hritsco, Davis, Warren & Hritsco, Dillon, for Doyle Wayne Jones.
Vincent J. Kozakiewicz, Dillon, for James Jeremiah McIntyre.
Andrew P. Suenram, Hoffman & Suenram, Dillon, for James Robert Siegal.
Joseph P. Mazurek, Attorney General, Chris D. Tweeten, Assistant Attorney General, Helena; Loren Tucker, Madison County Attorney, Robert Zenker, Deputy Madison
County Attorney, Joseph E. Thaggard, Special Deputy Madison County Attorney, Virginia City, for Plaintiff and Respondent.
Defendants James Robert Siegal (Siegal), Doyle Wayne Jones (Jones) and James Jeremiah McIntyre (McIntyre) moved to suppress the fruits of a search on the ground that the warrantless use of a thermal imager violated their constitutional rights. In addition, Jones moved to dismiss the charges against him on the ground that his Fifth Amendment protection against double jeopardy had been violated. The District Court for the Fifth Judicial District, Madison County, denied the motions and Defendants appeal. We reverse.
Defendants raise the following issues on appeal:
1. Was the warrantless use of a thermal imager an unconstitutional search?
2. Did the election by the State not to make a videotape of the results obtained by the thermal imager constitute destruction of exculpatory evidence?
3. Did sufficient probable cause exist to support the issuance of a search warrant for Defendants' premises?
4. Did the District Court err in denying Jones' Motion to Dismiss the criminal proceedings against him on double jeopardy grounds after the State obtained a judgment against him in a civil forfeiture action?
In October 1993, McIntyre purchased a ten-acre parcel of property with a ranch house and outbuildings near Waterloo, Montana. The property is heavily wooded and completely fenced. McIntyre and Jones occupied the ranch house. They took numerous steps to insure their privacy including posting the property with "No Trespassing" signs, painting the fence posts orange, maintaining perimeter and interior fences and locking the gates.
Shortly after purchasing the property, McIntyre and Jones constructed a 30-by-70-foot building approximately 126 feet from the ranch house. On August 25, 1994, members of the Southwest Montana Drug Task Force searched the buildings on the property pursuant to a search warrant issued by the Fifth Judicial District Court. The search disclosed that the newly constructed building was being used to grow marijuana.
The Application for Search Warrant states that in the early morning hours of June 2, 1994, Stanton Hayes, an agent with the Narcotics Investigation Bureau of the Montana Department of Justice (NIB), used a thermal imager to measure heat emissions from the buildings on the property. Hayes had been certified in the use of the device by the Drug Enforcement Administration (DEA) in October 1993. He conducted the scan from the property of a neighbor, who had given permission for Hayes to be there, at a vantage point of about 25 to 30 feet from the grow shed.
The thermal imager showed that the grow shed was discharging a considerable amount of heat. Hayes determined that the distribution of heat energy was consistent with the presence of grow lamps hanging from the ceiling. In contrast, a scan of the other buildings on the property showed them to be normal in their heat emissions.
Hayes admitted at the suppression hearing, that he had not obtained a search warrant to use the thermal imager and that there were no exigent circumstances at the time which would lead him to believe that any evidence would dissipate prior to obtaining a search warrant. Although the thermal imager is capable of making a videotape, Hayes elected not to do so on this occasion. Hayes was required to walk a substantial distance in the dark over uneven terrain, crossing fences and irrigation ditches in order to reach the vantage point from which he conducted the scan. He stated that carrying the extra equipment, which weighed almost 20 pounds, would have created a substantial risk of injury to himself or damage to the equipment, and he doubted the practicality of wiring up the videotape in the dark.
On the basis of information obtained from citizen informants, a sheriff's investigation, and the thermal imaging scan, a search warrant was issued. The search of the grow shed revealed that it was divided into three rooms. One room contained a diesel generator that provided electricity to the building and 23 pounds of drying marijuana. A second room contained 167 marijuana plants growing under artificial light. The third room contained 72 mature, budding marijuana plants, also growing under artificial light. Based on the evidence obtained in the search, warrants were issued for the arrest of Jones, McIntyre and Siegal.
On August 30, 1994, Jones, McIntyre and Siegal were charged by information with Criminal Possession with Intent to Sell, a felony, in violation of § 45-9-103, MCA, and Criminal Production or Manufacture of Dangerous Drugs, a felony, in violation of § 45-9-110, MCA. All three Defendants appeared for an initial appearance, received court-appointed counsel, and subsequently pleaded not guilty. In November and December 1994, all three Defendants filed motions to suppress the fruits of the search on the ground that the warrantless use of the thermal imager violated their rights under the Fourth Amendment to the United States Constitution and Article II, Sections 10 and 11 of the Montana Constitution.
A hearing on Defendants' motions to suppress was held on January 10, 1995, wherein the District Court heard testimony from expert witnesses regarding the use of the thermal imager. On March 23, 1995, the court issued its Findings of Fact, Conclusions of Law and Order denying Defendants' motions.
In addition to the criminal charges filed against Defendants, on September 1, 1994, the State filed a civil forfeiture action against real and personal property seized from Defendants. The State contended that every item seized pursuant to the search warrant issued in the criminal proceeding was used, or intended for use, in the commission of, or to facilitate the commission of, a violation of Title 45, Chapter 9, Montana Code Annotated. In its prayer for relief, the State requested that the District Court enter a judgment forfeiting the property to the Madison County Sheriff's Department and the NIB in the event Defendants failed to respond to the petition and a default might be entered.
On September 30, 1994, the State filed a Motion for Partial Forfeiture of Respondent Properties and a supporting brief stating that neither Jones nor Siegal had responded within the allotted time. Thus the State requested that the court enter an order of forfeiture against Jones and Siegal granting all of their right, title and interest in the properties to the State. The District Court signed an order to that effect on October 7, 1994. On October 18, 1994, the State filed an Amended Petition to Institute Forfeiture Proceedings, in an effort to include additional property.
On April 18, 1995, the State filed a Motion to Dismiss the civil forfeiture action. The State gave no reason for its Motion to Dismiss before obtaining an ex parte Order granting the dismissal. In a subsequent telephone conversation with defense counsel, a Deputy County Attorney for Madison County acknowledged that the State had concluded that to pursue both the civil forfeiture action and the criminal action would constitute double jeopardy.
Jones filed a Motion to Dismiss the criminal charges against him on April 25, 1995, based upon the theory that the State had already punished him in the civil forfeiture action and that further proceedings in the criminal action were barred by the double jeopardy clause's prohibition of multiple punishments for a single offense. The District Court summarily denied Jones' motion.
On June 20, 1995, both Jones and McIntyre withdrew their not guilty pleas and pleaded guilty to the charges against them. They each signed an Acknowledgment of Waiver of Rights wherein they reserved the right to appeal the denial of their Motions to Suppress and, in Jones' case, his Motion to Dismiss as well. Both Jones and McIntyre were sentenced to 10 years at Montana State Prison and ordered to pay restitution in the amount of $10,000, however, the District Court stayed execution of their sentences pending appeal.
On July 25, 1995, Siegal withdrew his not guilty plea and, pursuant to an agreement with the State, entered a plea of guilty to the charge of Criminal Production or Manufacture of Dangerous Drugs. The State dismissed the other charge against him and he was given 6 years deferred imposition of sentence. In his Acknowledgment of Waiver of Rights, Siegal also reserved the right to appeal the denial of his Motion to Suppress.
The standard of review of a district court's denial of a motion to suppress is whether the court's findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Williams (1995), 273 Mont. 459, 462, 904 P.2d 1019, 1021 (citing State v. Flack (1993), 260 Mont. 181, 188, 860 P.2d 89, 94).
Was the warrantless use of a thermal imager an unconstitutional search?
The legal question which we address in this case is whether law enforcement authorities may utilize thermal imaging technology to observe a structure suspected of concealing an indoor marijuana growing operation without first obtaining a search warrant. In other words, may law enforcement utilize warrantless thermal imaging of a...
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