State v. Wetzel

• Decision Date: 15 June 2005
• Docket Number: No. 04-564.,04-564.
• Citation: 114 P.3d 269,2005 MT 154
• Parties: STATE of Montana, Plaintiff and Respondent, v. Scott L. WETZEL, Defendant and Appellant.
• Court: Montana Supreme Court

114 P.3d 269

2005 MT 154

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

No. 04-564.

Supreme Court of Montana.

Submitted on Briefs March 16, 2005.

Decided June 15, 2005.

For Appellant: Steven J. Shapiro, Attorney at Law, Montana City, Montana.

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

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

¶ 1 Scott L. Wetzel (Wetzel) was charged with, and ultimately pled guilty to, felony criminal possession of dangerous drugs. He appeals the Fifth Judicial District Court's denial of his Motion to Suppress. We affirm.

ISSUE

¶ 2 Did the District Court err in denying Wetzel's Motion to Suppress?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 At approximately 10:30 p.m. on March 12, 2003, officers responded to an attempted shoplifting call from the Montana City Store. The suspects, later identified as Maria and Scott Wetzel, had left the store by the time the officers arrived, but had driven across the street and entered the Jackson Creek Saloon. As the officers entered the Saloon, they recognized Maria — based upon the store clerk's detailed description — just as she was entering the women's bathroom. They also noticed Wetzel, again from the clerk's description, standing near the gaming machines. Responding officer Deputy Grimsrud directed a female Saloon employee to ask Maria to come out of the bathroom. The employee entered the bathroom and returned, reporting that Maria said she would be out shortly. The employee also advised that Maria was putting some things in the water tank of a toilet. Grimsrud entered the bathroom, detained Maria, checked the toilet tank, and seized two spoons from the tank and one liquid-filled syringe from the floor. Subsequent testing established that the liquid in the syringe was methamphetamine.

¶ 4 Grimsrud escorted Maria out of the Saloon where Officer Rogstad had detained Wetzel. The officers conducted weapons searches of both Wetzel and Maria and found no weapons. Both Wetzel and Maria were handcuffed. Maria then gave the officers consent to search her vehicle. Among other incriminating items, the officers found three more spoons and another syringe. Deputy Grimsrud determined that Maria was on probation and following a telephone conversation with Maria's probation officer, Grimsrud arrested her for the probation violation of being in a bar and for possible possession of dangerous drugs and drug paraphernalia. Maria was placed in the back seat of the officer's patrol car. After determining that Wetzel was not on probation, his handcuffs were removed and he was told that he could leave.

¶ 5 It is at this point that Wetzel's report of the events differs from Grimsrud's. Wetzel maintained that after he was told he could leave, the officers said they needed to search him one more time, and that it was during this search that Officer Rogstad found an unlabeled brown plastic pharmacy pill bottle in Wetzel's coat pocket. The bottle contained several pills that were visible through the bottle. When asked what the pills were, Wetzel testified that he did not answer because he did not know what they were.

¶ 6 Grimsrud, on the other hand, testified that after Wetzel was told he could leave, he asked to get into the backseat of the patrol car with his wife before he left. Wetzel had been speaking to his wife through the open back door of the patrol car. Grimsrud stated that he did not want to deprive the couple of the opportunity to speak privately, but determined that he first needed to conduct a contraband search of Wetzel, which had not been done at the time Wetzel was searched for weapons. The deputy asked for Wetzel's consent to another search, explaining that he would be looking for contraband, specifically drugs, that Wetzel could possibly pass to his wife while in the car. According to Grimsrud, Wetzel agreed to the search.

¶ 7 It is undisputed that Grimsrud did not tell Wetzel he had the right to refuse the search. Grimsrud maintained, however, that Wetzel understood that the only consequence of refusing the search was that Wetzel would not be allowed in the patrol car with his wife. After Rogstad discovered the pill bottle in Wetzel's pocket, Grimsrud claims that Wetzel told the officers the pills were Benadryl. Grimsrud, who has suffered from allegeries for many years, could tell by looking at the pills that they were not Benadryl.

¶ 8 Both Wetzel and Grimsrud testified that Grimsrud then seized the pills and told Wetzel he was free to go. The officers then left with Maria en route to the Sheriff's Office. After arriving at the Sheriff's Office, Grimsrud called the St. Peter's Hospital pharmacist. The deputy removed the pills from the pill bottle and read the imprinted numbers and letters to the pharmacist. The pharmacist identified the pills as dextroamphetamine, a highly controlled drug.

¶ 9 Wetzel was subsequently arrested and charged with criminal possession of dangerous drugs. On November 4, 2003, Wetzel filed a Motion to Suppress Evidence seeking suppression of the pill bottle and its contents. The District Court conducted a hearing on Wetzel's Motion and after considering the conflicting testimony, ultimately ruled from the bench at the end of the hearing. The court denied the Motion on the grounds that Wetzel had consented to the search and that it was objectively reasonable under the circumstances for the officers to search the closed container. It is from the District Court's denial of his Motion to Suppress Evidence that Wetzel appeals.

STANDARD OF REVIEW

¶ 10 The standard of review of a district court's denial of a motion to suppress evidence is whether the court's findings are clearly erroneous. To determine whether a finding of fact is clearly erroneous, this Court ascertains whether the finding is supported by substantial evidence, whether the district court misapprehended the effect of the evidence, and whether the Court is nevertheless left with a definite and firm conviction that the district court made a mistake. We further review a district court's denial of a motion to suppress to determine whether the court's interpretation and application of the law are correct. This Court's review is plenary as to whether the district court correctly interpreted and applied the law. State v. Martinez, 2003 MT 65, ¶ 19, 314 Mont. 434, ¶ 19, 67 P.3d 207, ¶ 19 (internal citations omitted).

¶ 11 It is not this Court's function, on appeal, to reweigh conflicting evidence or substitute our evaluation of the evidence for that of the district court. In re A.F., 2003 MT 254, ¶ 24, 317 Mont. 367, ¶ 24, 77 P.3d 266, ¶ 24 (citations omitted). In cases in which the district court must resolve conflicting testimony, if substantial evidence supports the district court's factual findings, then such findings are not clearly erroneous. Bonnie M. Combs-DeMaio Liv. Trust v. Colony, 2005 MT 71, ¶ 16, 326 Mont. 334, ¶ 16, 109 P.3d 252, ¶ 16. We defer to the district court in cases in which conflicting testimony is presented because we recognize that the court had the benefit of observing the demeanor of witnesses and rendering a determination of the credibility of those witnesses. In re Marriage of Peetz (1992), 252 Mont. 448, 454, 830 P.2d 543, 547.

DISCUSSION

¶ 12 Did the District Court err in denying Wetzel's Motion to Suppress?

¶ 13 Wetzel claims on appeal that the officers committed a series of errors on the evening of March 12, 2003, and that these errors led to the discovery of the controlled substance. To the extent that Wetzel failed to present arguments regarding some of these alleged errors to the District Court, we decline to address them. It is well-established that this Court will not address either an issue raised for the first time on appeal or a party's change in legal theory. Bekkedahl v. McKittrick, 2002 MT 250, ¶ 31, 312 Mont. 156, ¶ 31, 58 P.3d 175, ¶ 31 (citing Unified Industries, Inc. v. Easley, 1998 MT 145, ¶ 15, 289 Mont. 255, ¶ 15, 961 P.2d 100, ¶ 15; Day v. Payne (1996), 280 Mont. 273, 276, 929 P.2d 864, 866). We therefore review only the issues presented to and ruled upon by the District Court — did the police legally search Wetzel and seize the pill bottle, and did the police then lawfully identify the bottle's contents?

¶ 14 Wetzel argues that even if Grimsrud asked for consent to search him — a contention he disputes — Grimsrud failed to "express the consequences of failure to consent," and, as a result, if consent was given, it was coerced and invalid. Wetzel also argues that because the pills were not obvious contraband (Grimsrud did not know what they were by merely looking at them), Grimsrud had no right to seize the pill bottle or to subsequently open it and have its contents identified without first obtaining a warrant.

¶ 15 The State counters that while the deputy did not "express the consequences of failure to consent," Wetzel clearly understood that the only consequence of his refusal to consent to the search was that he would not be allowed in the patrol car with his wife. Additionally, the State points out that whether a defendant is told the consequences of failure to consent to a search is only one factor that courts consider when determining whether a defendant's consent is voluntarily given and is not definitive of whether consent is voluntary. The State further asserts that after Wetzel gave consent to be searched and Rogstad discovered the pill bottle, Wetzel did not revoke his consent. Therefore, it was reasonable for Grimsrud to seize the bottle, open it and identify its contents.

¶ 16 In State v. Rushton (1994), 264 Mont. 248, 257-58, 870 P.2d 1355, 1361, we explained:

Under the Fourth and Fourteenth Amendments to the United States Constitution, and Article II, Section 11, of the Montana...