State v. St. Marks

• Decision Date: 10 December 2002
• Docket Number: No. 01-863.,01-863.
• Citation: 59 P.3d 1113,2002 MT 285
• Parties: STATE of Montana, Plaintiff and Respondent, v. Floyd ST. MARKS, Defendant and Appellant.
• Court: Montana Supreme Court

59 P.3d 1113

2002 MT 285

STATE of Montana, Plaintiff and Respondent, v. Floyd ST. MARKS, Defendant and Appellant.

No. 01-863.

Supreme Court of Montana.

Submitted on Briefs July 6, 2002.

Decided December 10, 2002.

Daniel A. Boucher, Altman & Boucher, Havre, Montana, For Appellant.

Mike McGrath, Montana Attorney General, Jim Wheelis, Assistant Montana Attorney General, Helena, Montana; David G. Rice, Hill County Attorney, Cyndee L. Faus, Deputy Hill County Attorney, Havre, Montana, For Respondent.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Floyd St. Marks (St.Marks) was charged in the Twelfth Judicial District Court with the offense of criminal possession of dangerous drugs based on contraband found during execution of a search warrant on St. Marks' vehicle and motel room. St. Marks filed a motion to suppress all evidence gathered as a result of the search warrant, arguing that the search warrant application lacked sufficient probable cause. The State conceded that some information contained in the search warrant application was stale and agreed the District Court should not consider that information in determining the sufficiency of probable cause, but argued that the remaining information was sufficient to support the application. The District Court denied the motion to suppress, concluding there was sufficient probable cause for the issuance of the search warrant. St. Marks plead guilty to the charge, reserving the right to appeal from the order denying his motion. We affirm. ¶ 2 While St. Marks challenges only the sufficiency of the probable cause contained in the search warrant application, the State asserts that it was appropriate for the District Court to give deference to the issuing magistrate, since the material excised from the search warrant application was merely stale and not illegally obtained. We deem it appropriate to address this matter as a separate issue. Therefore, we restate the issues as:

1. Whether the District Court erred in giving deference to the issuing magistrate's determination of probable cause, in light of the State's concession that some information from the search warrant application was stale and should not have been considered; and

2. Whether the District Court erred when it concluded there was sufficient probable cause to support issuance of the search warrant.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On December 1, 2000, the Hill County Justice of the Peace issued a search warrant for St. Marks' vehicle and motel room. The search warrant was issued upon review of an application and supporting affidavit prepared by Deputy Shawn Van Vleet (Van Vleet) of the local Tri-Agency Task Force. The first portion of Van Vleet's affidavit set out his training and experience, while the second part described information specific to St. Marks and his alleged drug trafficking activities and behavior. Among other material in the affidavit were descriptions of three interviews with informants that took place between January and July of 2000. During proceedings on the motion to suppress, the State stipulated to the District Court that these interviews were "stale," and should not have been considered in the issuance of the search warrant. The District Court did not refer to the interviews in its order denying St. Marks' motion to suppress.

¶ 4 The search warrant application also described three anonymous phone calls, one received by the Hill County Sheriff's Office in October, 2000, and two received by the Havre Police Department in November, 2000. Two of the callers specified that St. Marks dealt drugs from the Corner Bar in Havre, and one caller stated St. Marks' nickname was "Skidzy." Along with various other details, all three callers alleged that St. Marks was selling dangerous drugs in the area. However, the District Court noted the absence of information concerning the reliability of these tips, and while it found they may have created some suspicion and were not completely useless, the court concluded they did not establish probable cause.

¶ 5 The remaining relevant information from the search warrant application and Van Vleet's affidavit is summarized as follows:

1. On November 29, 2000, an informant called the Havre Police Department, stating an interest in talking to a task force agent. Van Vleet and Sergeant Jerry Nystrom met with the informant, identified only as CI-00-025 (CI), who stated that St. Marks, also known as "Skidzy," had been killing people with all the cocaine he had been selling. CI stated that she had been "good friends" with St. Marks, but was tired of the drug dealing.¹ The informant explained that St. Marks hides the cocaine in a vent on the driver's side of his blue Eagle Talon that has the vanity plate, "SKIDZY." According to the informant, St. Marks was currently staying at the Townhouse Inn in room 109, and dealt drugs from the Townhouse Inn. She told the officers that St. Marks and Pete Torres received a cocaine shipment about two weeks prior, and described the quantity to be around one kilo (2.2 lbs). CI also reported to Van Vleet that St. Marks and Torres were expecting another shipment of cocaine and that they would not travel to get it. She also explained that St. Marks would have the cocaine on his person, in his car, and in room 109. 2. On November 30, 2000, a federal search warrant was executed on Pete Torres' residence at Rocky Boy, Montana, where agents seized documents and empty envelopes with currency notations on them. Pursuant to an arrest warrant, Torres was arrested while driving a Rocky Boy school bus. Eleven baggies of cocaine were removed from his person, and an agent also seized $1084.00 and a baggie of marijuana from Torres and the bus.

3. On November 30, 2000, St. Marks' vehicle was observed parked across the street from the Corner Bar at approximately 7:30 p.m. At about 8:30 p.m., St. Marks' car was observed in the Townhouse Inn parking lot. St. Marks' vehicle was also observed at the Townhouse Inn on November 29, 2000.

4. On November 30, 2000, at 11:45 p.m., two law enforcement officers spoke to the desk clerk at the Townhouse Inn. The clerk stated that St. Marks had been staying in room 109 for the last two months and that he had been paying in cash every two weeks. The officers learned from the Inn's register that St. Marks listed his address as 1424 2nd Street, Havre, Montana.

5. Van Vleet believed, based on his training and experience, that people who distribute drugs will often hide the drugs on their person, vehicle, and residence. Van Vleet also stated it was unusual for people to stay in a motel for long periods of time when they have a local address, but added that it is common for people distributing dangerous drug to stay at places other than their own residences to avoid drawing attention to themselves or placing their residence at risk.

¶ 6 The warrant application also explained that a canine, trained to detect the odor of illegal drugs, performed a sniff on St. Marks' vehicle on November 30, 2000. While the dog was reportedly "somewhat interested" in the driver's door handle and trunk lid, it "did not give full indication." The District Court did not rely on this information in its order denying the motion to suppress.

¶ 7 Law enforcement officers executed the search warrant on December 1, 2000, and searched St. Marks' vehicle and motel room. From St. Marks' motel room, officers seized prescription drugs not prescribed to St. Marks, including Xanax tablets wrapped in cellophane wrappers. Officers also found and seized two small baggies of cocaine weighing approximately 2.3 grams from under the driver's seat in St. Marks' vehicle. Based on the seized contraband, St. Marks was charged by Information on March 19, 2001, with one count of criminal possession of dangerous drugs, a felony, in violation of § 4-5-9-102, MCA.

¶ 8 On April 30, 2001, St. Marks filed a motion to suppress, alleging that the search warrant was not supported by sufficient probable cause. The District Court conducted a hearing on the motion on June 11, 2001. At the hearing, the court heard testimony from Sergeant Jerry Nystrom (Nystrom) of the Havre Police Department, as Deputy Van Vleet had died. Nystrom had been involved with the investigation of St. Marks, participated in the search, and was present for the interview with CI.

¶ 9 The District Court entered its order denying the motion on June 25, 2001. In its order, the District Court did not reference the three interviews that were stipulated as stale and concluded that "[c]onsidering the totality of the circumstances, [and] giving deference to the decision of the issuing magistrate," there was sufficient probable cause to support the issuance of the search warrant.

¶ 10 On July 24, 2001, St. Marks plead guilty to the charge and reserved the right to appeal the court's order denying his motion. On September 7, 2001, the District Court sentenced St. Marks to a three year deferred imposition of sentence under the supervision of the Department of Corrections. St. Marks appeals from the District Court's order denying his motion to suppress.

STANDARD OF REVIEW

¶ 11 In reviewing a district court's denial of a motion to suppress evidence, we determine whether the court's findings of fact are clearly erroneous and whether the court's interpretation and application of the law is correct. State v. Gray, 2001 MT 250, ¶ 10, 307 Mont. 124, ¶ 10, 38 P.3d 775, ¶ 10 (citing State v. Reesman, 2000 MT 243, ¶ 18, 301 Mont. 408, ¶ 18, 10 P.3d 83, ¶ 18). When determining whether the district court correctly interpreted and applied the law, this Court's review is plenary. State v. Griggs, 2001 MT 211, ¶ 17, 306 Mont. 366, ¶ 17, 34 P.3d 101, ¶ 17 (citation omitted).

¶ 12 When the evidence that is the subject of a motion to suppress was gathered pursuant to a search warrant, this Court's function as a reviewing court is to ensure that the court issuing the search warrant had...