State v. Mose Moulton , 2015 MT 97N ( 2015 )

April 1 2015
DA 13-0556
Case Number: DA 13-0556
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 97N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MOSE DAMON MOULTON,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DC 11-108
Honorable Deborah Kim Christopher, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender, Kristen Larson, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
Attorney General, Helena, Montana
Mitchell A. Young, Lake County Attorney, Polson, Montana
Submitted on Briefs: March 11, 2015
Decided: April 1, 2015
Filed:
__________________________________________
Clerk
Justice Patricia Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not serve
as precedent. Its case title, cause number, and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 On August 5, 2011, at approximately 10 p.m., Flathead Tribal Police Officer Casey
Couture initiated a traffic stop in Pablo, Montana, on a pickup truck with a broken tail light.
Couture recognized Mose Moulton as the driver and Dewayna Greycloud as the passenger.
As he approached the vehicle, Couture observed Moulton and Greycloud making furtive
movements and placing something into a blue backpack. Couture asked if Moulton’s license
had been reinstated and Moulton admitted that he was driving without a valid license. The
officer then informed Moulton that there was an active warrant for his arrest outstanding in
Tribal Court.
¶3 The officer asked Moulton to step out of the truck. Couture noticed that Moulton
was clenching his teeth, was fidgety, and that his pupils were dilated and did not react to
light. The officer suspected that Moulton was under the influence of stimulants. While
searching Moulton incident to the arrest, the officer found several hundred dollars in
Moulton’s pocket and a list of names with dollar amounts next to them, typical—in
Couture’s experience—of notes of drug transactions. He asked Moulton if he could search
the vehicle but Moulton refused, saying the truck was not his.
¶4 Couture called Agent Arlen Auld with the Northwest Drug Task Force (NDTF) and
asked Auld to meet him at the scene. Auld arrived and assumed responsibility for the
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investigation. Auld also observed that Moulton displayed multiple signs of stimulant use.
Moulton also refused Auld’s request to search the truck. Moulton was arrested and
transported to Tribal Law and Order.
¶5 The following day, Auld obtained a warrant and searched Moulton’s impounded
vehicle. In the blue backpack Couture had seen, Auld discovered 20 plastic packages of
white powder that he field tested and identified as methamphetamine. He also found 11
oxycodone pills in an unlabeled prescription bottle and a scale with white powder residue on
it. A cell phone found on the front seat had numerous text messages from people seeking to
purchase drugs.
¶6 The Lake County Attorney’s Office issued an Information on August 16, 2011,
charging Moulton with felony criminal possession with intent to distribute
(methamphetamine) and felony criminal possession of dangerous drugs (oxycodone).
Moulton entered a not guilty plea. On December 1, 2011, Moulton filed a motion to
suppress the search results from the pickup truck because the search warrant had been
“improvidently” granted as there was no probable cause for issuance of a warrant. The
District Court denied his motion without a hearing concluding that under the totality of the
circumstances probable cause existed for a search warrant.
¶7 A jury trial commenced on July 9, 2012, and the District Court declared a mistrial
on July 10. A second trial commenced on September 17, 2012, but was vacated when the
District Court granted both parties’ request for an order that Moulton undergo psychological
testing.
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¶8 While the District Court proceedings were underway, Moulton was charged in
Tribal Court with multiple misdemeanors arising from this traffic stop. He moved the Tribal
Court to suppress evidence obtained in the vehicle search. The Tribes opposed the motion1
but on November 7, 2012, the Tribal Court granted it, finding no particularized suspicion for
the stop.
¶9 On December 14, 2012, arguing that the Tribal Court ruling was similar to “newly
discovered evidence” and constituted “good cause,” Moulton again moved the District Court
to suppress the evidence obtained in the vehicle search. He argued that the Tribal Court’s
decision was entitled to comity. In January 2013, the District Court denied his motion. The
court recited the multiple factors constituting particularized suspicion for the stop. The court
observed that while Tribal Court has exclusive jurisdiction over misdemeanors committed by
a tribal member on the reservation, the State of Montana has jurisdiction over felonies
occurring in Lake County. The District Court concluded that the issue of comity was not
relevant because the charges against Moulton before the Tribal Court were different than the
charges in the District Court.
¶10 On March 21, 2013, Moulton entered into a conditional guilty plea for felony
criminal possession of dangerous drugs and the State agreed to dismiss the felony charge of
criminal possession with intent to distribute. Moulton preserved his right to appeal District
Court rulings on pretrial motions. Following receipt of Moulton’s pre-sentencing
investigation, the District Court deferred imposing Moulton’s sentence for a period of three
years and granted him 185 days credit against his sentence. Moulton filed a timely appeal.
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The State was not a party or participant in the Tribal Court proceedings.
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¶11 Moulton argues that the District Court erred when it denied his December 1, 2011
motion to suppress because there was insufficient probable cause to obtain the search
warrant. We disagree. In its order denying Moulton’s motion, the court expressly
considered the totality of the circumstances and set forth the specific facts contained in the
application for the search warrant that established sufficient probable cause to issue the
warrant. In State v. Deshaw, 2012 MT 284, ¶ 33, 367 Mont. 218, 291 P.3d 561, we stated
that under the totality of the circumstances test, “the issuing judicial officer ‘must make a
practical, common sense determination, given all the evidence contained in the application
for a search warrant, whether a fair probability exists that contraband or evidence of a crime
will be found in a particular place.’” The District Court correctly applied the test and
determined that probable cause existed.
¶12 Likewise, the court did not err in denying the second motion to suppress. The
finding of the Tribal Court regarding a lack of particularized suspicion is not binding on the
District Court. As we explained in Oberson v. Federated Mut. Ins. Co., 2005 MT 329, ¶ 10,
330 Mont. 1, 126 P.3d 459, “[c]omity is ‘not a rule of law’ but rather ‘an expression of one
state’s entirely voluntary decision to defer to the policy of another.’” The District Court
could have deferred to the Tribal Court’s decision on particularized suspicion, but was
clearly not obligated to do so. We find no error.
¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
Internal Operating Rules, which provides for noncitable memorandum opinions. The issues
in this case are legal and are controlled by settled Montana law which the District Court
correctly interpreted.
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¶14 Affirmed.
/S/ PATRICIA COTTER
We Concur:
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ LAURIE McKINNON
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