State v. Tackitt

• Decision Date: 15 April 2003
• Docket Number: No. 01-830.,01-830.
• Citation: 67 P.3d 295,315 Mont. 59,2003 MT 81
• Parties: STATE of Montana, Plaintiff and Respondent, v. James Kirk TACKITT, Defendant and Appellant.
• Court: Montana Supreme Court

67 P.3d 295

2003 MT 81

315 Mont. 59

STATE of Montana, Plaintiff and Respondent, v. James Kirk TACKITT, Defendant and Appellant.

No. 01-830.

Supreme Court of Montana.

Heard October 22, 2002.

Submitted October 22, 2002.

Decided April 15, 2003.

Lane K. Bennett, Kalispell, Montana, for Appellant.

Mike McGrath, Montana Attorney General, Mark W. Mattioli, Assistant Montana Attorney General, Helena, Montana; Thomas J. Esch, Flathead County Attorney, Richard Hickel, Deputy Flathead County Attorney, Kalispell, Montana, for Respondent.

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

¶ 1 Appellant James Tackitt (Tackitt) appeals an order of the Eleventh Judicial District Court, Flathead County, denying his motion to suppress. We reverse.

¶ 2 We address the following issues on appeal:

¶ 3 1. Did the District Court properly conclude that the use of a drug-detecting canine to sniff for drugs in a vehicle parked in an area accessible to the public is not a search?

¶ 4 2. Did the District Court properly conclude that if the use a drug-detecting canine is a search, the State had particularized suspicion to conduct the investigatory search of Tackitt's vehicle?

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 On or about June 1, 2000, Corporal Mike Meehan (Corporal Meehan) of the Northwest Drug Task Force (Task Force) received an anonymous call from an individual who asserted that Tackitt was selling drugs. The individual stated that he personally saw Tackitt with between eight and ten large garbage bags of marijuana on May 31, 2000; that Tackitt told him that the marijuana was from California; that Tackitt told him he wanted to sell it quickly so he could do another load; that Tackitt put the marijuana in his white Subaru Legacy parked at his residence in Kalispell; and that Tackitt said he was going to take the marijuana to his residence in Marion.

¶ 6 Corporal Meehan checked county records and verified that Tackitt owned a white Subaru Legacy and that he owned property in Marion. Corporal Meehan went to the Kalispell residence in the mobile home park identified by the anonymous caller, where he found the white Subaru parked. He also went to the Marion residence where he located another vehicle registered to Tackitt. Corporal Meehan also checked the Task Force records which included reports that Tackitt may have been involved in drug trafficking marijuana in the early 1990's. Finally, Corporal Meehan also checked Tackitt's record and discovered that he had a 1993 misdemeanor conviction for possession of marijuana paraphernalia. In addition to the above information, about two weeks previous to the anonymous call, Sergeant Brock Wilson (Sergeant Wilson) of the Flathead County Sheriff's office reported to the Task Force that he received information from a reliable informant that Tackitt was involved in narcotics trafficking.

¶ 7 Given this information, Deputy Pete Wingert used a dog named Dantz to conduct a sniff survey of the exterior of the white Subaru while it was parked at the Kalispell residence. Dantz alerted on the trunk of the vehicle, indicating the presence of drugs.

¶ 8 Based on all the above information, Officer Roger Nasset, also with the Task Force, applied for a search warrant to search Tackitt's Subaru and his Marion residence. Flathead County Justice of the Peace David Ortley reviewed the application and issued a search warrant. The subsequent search of Tackitt's vehicle did not reveal any evidence. The search of Tackitt's Marion residence did not produce eight to ten garbage bags of marijuana, nor did it reveal packing material for this volume of marijuana. The search did however reveal about three and one-half pounds of marijuana, part of which was wrapped in a plastic bag from a California sporting goods store. The search also revealed a bong.

¶ 9 Based on this evidence, Tackitt was charged with criminal possession of dangerous drugs with intent to distribute, a felony in violation of § 45-9-103, MCA. Tackitt then filed a motion to suppress the evidence discovered at his residence on the grounds that the use of Dantz to detect drugs constituted a search in violation of his privacy rights. After briefing, Judge Katherine Curtis held a hearing on Tackitt's suppression motion. During the hearing, she heard evidence regarding both Dantz's reliability and Tackitt's asserted expectation of privacy in his parking area and vehicle. Further, the court also heard testimony regarding the information in the search warrant application. This testimony revealed that neither Corporal Meehan, nor any other police officer including Sergeant Wilson, could remember who the confidential informant was or identify that person. Subsequently, Judge Curtis issued an order concluding that Tackitt had no reasonable expectation of privacy in the odors emanating from his vehicle while it was parked in an area accessible to the public. In the alternative, Judge Curtis held that if particularized suspicion is required for the use of a drug-detecting canine, the search in this case was supported by proper particularized suspicion. Therefore, the District Court denied Tackitt's motion to suppress.

¶ 10 After the court's denial, Tackitt pled guilty pursuant to the terms of a plea agreement. However, he reserved his right to appeal the suppression motion to this Court. Judge Stewart Stadler issued a judgment giving Tackitt a deferred sentence for six years with probation conditions. Tackitt now appeals. Further facts are discussed below.

II. STANDARD OF REVIEW

¶ 11 We review a court's denial of a motion to suppress to 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. Reesman, 2000 MT 243, ¶ 18, 301 Mont. 408, ¶ 18, 10 P.3d 83, ¶ 18. In reviewing a motion to suppress evidence discovered as a result of a search pursuant to a valid warrant, we normally review a magistrate's determination of probable cause in the search warrant with deference. State v. St. Marks, 2002 MT 285, ¶ 14, 312 Mont. 468, ¶ 14, 59 P.3d 1113, ¶ 14. However, when information must be excised from the application for the search warrant, we review the warrant de novo for probable cause. St. Marks, ¶ 14.

III. DISCUSSION

¶ 12 1. Did the District Court properly conclude that the use of a drug-detecting canine to sniff for drugs in a vehicle parked in an area accessible to the public is not a search?

¶ 13 Tackitt first asserts that the District Court erred in concluding that the use of a canine to detect drugs in his vehicle did not constitute a search. Tackitt argues that he had a reasonable expectation of privacy in both the "curtilage" where his car was parked and in the trunk of his car. Tackitt further asserts that use of a drug-detecting canine invaded his privacy expectation. Consequently, Tackitt argues that probable cause and a warrant were required before the police could use Dantz to search his vehicle.

¶ 14 The State asserts the District Court correctly determined Tackitt had no reasonable expectation of privacy in either the curtilage or in the odors emanating from his car while it was parked in an area accessible to the public. Therefore the State argues the sniff was properly conducted and served as a proper basis for the later warrant. Alternatively, the State asserts, albeit at the end of its brief in passing, that the use of drug-detecting canines should be allowed based on particularized suspicion and that particularized suspicion supported the use of Dantz in this case.

¶ 15 The District Court concluded that the concept of curtilage does not apply in Montana. Further, based on both testimony and photos of Tackitt's car parked next to his Kalispell residence which were entered into the record, the court found that the area where Tackitt parked his car was freely accessible to the public. Therefore, the court concluded that Tackitt had no legitimate expectation of privacy in the parking area by his residence. The District Court also held that because the use of a drug-detecting canine is minimally intrusive and only reveals information about the presence of contraband, Tackitt had no reasonable expectation of privacy in the odors emanating from the vehicle while it was parked in an area accessible by the public. The Court stated:

If the Defendant had an actual expectation of privacy in odors emanating from his vehicle, he should have chosen, and society would expect him to have chosen, a private parking area to which access could be controlled or restricted.

Therefore, the District Court concluded that a warrant was not required for the use of a canine to sniff the exterior of Tackitt's vehicle. The court also made alternate conclusions based on particularized suspicion which we address in the second issue.

¶ 16 While we disagree with the District Court, and accordingly, agree with Tackitt that he had a reasonable expectation of privacy in the trunk of his vehicle, we do not agree that this expectation necessitated a search warrant for the use of a canine to survey the exterior of his vehicle as discussed below.

A. The Expectation of Privacy

¶ 17 We previously addressed the constitutionality of the use of drug-detecting canines in State v. Scheetz (1997), 286 Mont. 41, 950 P.2d 722. That case noted that search analysis to determine proper constitutional criminal procedure in Montana is typically conducted under Article II, Sections 10 and 11 of the Montana Constitution, in addition to the Fourth Amendment to the United States Constitution. Scheetz, 286 Mont. at 45, 950 P.2d at 724. The threshold question in a search case is whether there is an expectation of privacy which society is prepared to recognize as objectively reasonable. Scheetz, 286 Mont. at 46, 950 P.2d at 724. Assuming there is a reasonable expectation of privacy, the next question to consider is whether or not the nature of the state's intrusion is reasonable...