State v. Stone

• Decision Date: 15 June 2004
• Docket Number: No. 03-243.,03-243.
• Citation: 2004 MT 151,92 P.3d 1178
• Parties: STATE of Montana, Plaintiff and Respondent, v. Clifford Lee STONE, Defendant and Appellant.
• Court: Montana Supreme Court

92 P.3d 1178

2004 MT 151

STATE of Montana, Plaintiff and Respondent, v. Clifford Lee STONE, Defendant and Appellant.

No. 03-243.

Supreme Court of Montana.

Submitted on Briefs September 25, 2003.

Decided June 15, 2004.

For Appellant: Matthew C. Claus, Attorney at Law, Bozeman, Montana.

For Respondent: Honorable Mike McGrath, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana; Mathew J. Johnson, Jefferson County Attorney, Boulder, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Clifford Lee Stone (Stone) appeals the judgment of the Fifth Judicial District Court, Jefferson County, denying his motion to suppress and imposing on him an illegal sentence.

¶ 2 We affirm in part, reverse in part, and remand in part for proceedings consistent with this Opinion.

¶ 3 1. Did the District Court err in denying Stone's motion to suppress evidence seized during a warrantless search and seizure?

¶ 4 2. Did the District Court err in imposing on Stone a sentence of five years on his felony animal cruelty charges when Stone was not classified as a felony persistent offender?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 Stone lived with his wife Mary Parenti in Clancy, Montana, where he ran an animal zoo, called Stone Cave Reptile/Amphibian Ranch Hatchery and Hospital. At this animal zoo, Stone was responsible for several animals, including rabbits, dogs, cats, and guinea pigs.

¶ 6 Stone kept most of his animals in cages on his property. Because his property was surrounded by a fence, a closed latched gate, and several "No Trespassing" signs, the cages could not be seen from the road.

¶ 7 To assist him in feeding the animals and in cleaning their cages, Stone hired two neighborhood boys. With their parents' consent, the boys worked on Stone's property after school tending to the animals. The boys ceased working when Stone told them that he could no longer afford to pay them. However, Stone assured them that he would rehire them as soon as he had the money.

¶ 8 Some time later, Stone again asked the boys to assist him with the animals after school. On their first day back in assisting Stone—November 13, 2001—one of the boys went after school onto Stone's property to begin his work. While on the property, the boy discovered a number of dead and dying animals. The animals did not have the appropriate food and water. The rabbits in some of the cages that were still alive were feeding off of the dead rabbits that were contained within the same cages.

¶ 9 The boy immediately ran home and called his father. His father left work and rushed home. When he got home he asked his son to tell him again what he saw. The boy did so, after which time, the father called the sheriff's office and relayed the story. Deputy Gleich was dispatched and arrived at Stone's residence around six o'clock in the evening. Deputy Gleich approached Stone's residence and found no one home. However, once on Stone's property, Deputy Gleich and two other officers saw some of the rabbit cages and some of the rabbits that were feeding on the dead rabbits in the same cage. They also found dog and cat kennels behind the garage, and none of the dogs or cats in the kennels had food or water.

¶ 10 After seeing the animals, Deputy Gleich and the other officers became concerned for the animals' well being, as Deputy Gleich testified that it appeared to him "that the animals were starving to death." Deputy Gleich immediately called dispatch and ordered them to contact a veterinarian. He also requested that the boy return, as he knew where all of the cages were located. Deputy Gleich and the other officers began cutting the locks to the cages, and all people at the scene began feeding and providing water to the rabbits, dogs, and cats found on Stone's property.

¶ 11 The boy informed the officers that he knew that Stone had animals in the house. At that point, Deputy Gleich was also informed that Stone was on probation, so Deputy Gleich called Stone's probation officer in order to get his permission to enter the house. Stone's probation officer arrived, was apprised of the situation, and consented to the entry of Stone's house. The boy and the veterinarian's assistant crawled through a window that the officers opened, so as to minimize any damage to the house. The boy and the assistant then opened the door to the house, after which time the remaining individuals entered and assisted the animals contained therein.

¶ 12 Stone was charged with one misdemeanor count of animal cruelty; one misdemeanor count of child endangerment¹; and four felony counts of animal cruelty. He moved to suppress the evidence obtained from the search of his property as an unreasonable search and seizure. The District Court denied his motion. Stone was ultimately convicted and sentenced to five years on each felony count of animal cruelty with his sentences to run concurrently.

¶ 13 Stone now appeals the District Court's denial of his motion to suppress and the sentencing of him to five years on each felony count.

STANDARD OF REVIEW

¶ 14 We review a district court's denial of a motion to suppress to determine whether the district court's findings of fact are clearly erroneous. State v. Tackitt, 2003 MT 81, ¶ 11, 315 Mont. 59, ¶ 11, 67 P.3d 295, ¶ 11. We review a district court's conclusions of law to determine whether the district court's interpretation and application of the law is correct. Tackitt, ¶ 11.

DISCUSSION

¶ 15 1. Did the District Court err in denying Stone's motion to suppress evidence seized during a warrantless search and seizure?

¶ 16 Stone argues that he had a reasonable expectation of privacy: (1) in the cages around his house, as they were in close proximity to his house; and (2) in the entire fenced area around his house, as he took much effort to protect his privacy by posting several "No Trespassing" signs. In addition, Stone argues that the exigent circumstances exception does not apply to his situation here because: (1) Deputy Gleich did not act as a reasonable person would have acted under the same circumstances because he could have waited to obtain a search warrant; and (2) this case does not involve a threat to the lives of officers or other persons, nor does it involve a situation where relevant evidence may be destroyed or a suspect may escape.

¶ 17 The State of Montana (the State) argues that Deputy Gleich's entry onto Stone's property and into Stone's house was justified, as exigent circumstances existed. These exigent circumstances, the State argues, included the fact that prompt entry was necessary so as not to frustrate legitimate law enforcement efforts regarding prevention of continuing animal cruelty.

¶ 18 Under Montana law, a warrantless search is per se unreasonable. State v. Hardaway, 2001 MT 252, ¶ 36, 307 Mont. 139, ¶ 36, 36 P.3d 900, ¶ 36. However, there exists an exception to the warrant requirement if both exigent circumstances and probable cause justify a warrantless search. State v. Saxton, 2003 MT 105, ¶ 26, 315 Mont. 315, ¶ 26, 68 P.3d 721, ¶ 26. Exigent circumstances exist if the situation at hand would cause a reasonable person to believe that prompt action is necessary to prevent physical harm to an officer or other person, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating law enforcement efforts. State v. Wakeford, 1998 MT 16, ¶ 24, 287 Mont. 220, ¶ 24, 953 P.2d 1065, ¶ 24. Probable cause exists "if the facts and circumstances within the officer's personal knowledge, or imparted to the officer by a reliable source, are sufficient to warrant a reasonable person to believe that the suspect has committed an offense." Saxton, ¶ 26.

¶ 19 Stone concedes that Deputy Gleich had probable cause to enter onto his property. Therefore, with probable cause established, we will only address whether exigent circumstances existed upon which to justify Deputy Gleich's warrantless search of Stone's property.

¶ 20 Montana has never before addressed whether the exigent circumstances exception applies to situations of threats to animal life. However, several other states have addressed the issue, including the District of Columbia, Wisconsin, Illinois, and Texas.

¶ 21 The defendant in Tuck v. United States (1984), 477 A.2d 1115, moved to suppress the evidence seized during a warrantless search of his business. Tuck, 477 A.2d at 1117-18. The District of Columbia Court of Appeals applied the exigent circumstances exception in situations of threats to animal life in justifying the warrantless search. Tuck, 477 A.2d at 1119.

¶ 22 In Tuck, a humane society cruelty investigator and two officers visited the defendant's pet store in response to a citizen's complaint. While at the pet store, the officers noticed a puppy and a rabbit that appeared to be suffering from the direct sunlight to which they were exposed in the closed unventilated display window of the defendant's store. The temperature outside that day was 103 degrees Fahrenheit. Although reluctant, the defendant removed the puppy from the window, after which time the puppy "perked up and became playful." One of the officers then removed the rabbit from the window chamber which the officer testified to being "as hot as a furnace." The rabbit was immediately rushed to an animal clinic, where a veterinarian diagnosed it as suffering from heat stroke. The defendant was then charged with one count of cruelty to animals. Tuck, 477 A.2d at 1117.

¶ 23 The District of Columbia Court of Appeals ultimately held that exigent circumstances existed to justify the officers' warrantless search. In addressing the defendant's constitutional arguments regarding unreasonable searches and seizures, the District of Columbia Court of Appeals noted that:

[a]lthough the exigency in the present case involved the protection of animal life rather than human life, we believe that the "public interest" in

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