State v. Lott , 52 State Rptr. 696 ( 1995 )

NO. 94-319
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
v.
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Douglas J. DiRe, Knight, Dahood, McLean,
Everett & Dayton, Anaconda, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Barbara C. Harris, Assistant Attorney
General, Helena, Montana
Thomas R. Scott, Beaverhead County Attorney,
Calvin Erb, Deputy County Attorney,
Dillon, Montana
Submitted on Briefs: April 27, 1995
Decided: August 1, 1995
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Harvey D. Lott appeals from his conviction of
possession of dangerous drugs and possession of drug paraphernalia
in the District Court for the Fifth Judicial District, Beaverhead
County.
We reverse.
The sole issue on appeal is:
Did the District Court err when it denied appellant's motion
to suppress evidence?
In September 1993, the Department of Narcotics Task Force in
Arizona contacted the Beaverhead County Sheriff's Office. It
informed them that a package containing marijuana was recovered in
a random audit by United Parcel Service in Tucson, Arizona, and
that the recovered package was addressed to appellant at his home
address in Dillon, Montana.
The Beaverhead County Sheriff's Office decided to set up a
"controlled drop," or delivery of the package by an undercover
officer to appellant's home address. Before the controlled drop,
the Sheriff's Office obtained search warrants for appellant's home
and for his three vehicles.
Appellant was at work when the package was delivered to his
home. At appellant's request, one of his co-workers went to his
home, picked up the package, and delivered it to him while he was
at work. Beaverhead County law enforcement officers watched this
scenario unfold.
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The affidavit in support of the request for leave to file an
information states:
That Harvey D. Lott then unwrapped the package and placed
the contents in his coat and proceeded to leave the area.
A short time later Harvey D. Lott was stopped by Deputy
Sheriff Jay T. Hansen and other law enforcement
personnel. In the truck owned and driven by Harvey D.
Lott, the marijuana was in a coat and placed in between
the seats of this motor vehicle.
An affidavit in support of a subsequent application for a
warrant to search appellant's storage shed provides more detail:
[The co-worker] delivered the package to Harvey D. Lott
at the State Lands Office in Dillon, Montana, and Harvey
D. Lott acknowledged receipt of the package.
Later, on [the same day], Harvey D. Lott was
observed leaving the State Lands Office with the United
Parcel Service package in his possession. Harvey D. Lott
was observed throwing items into or around the dumpster
in the back of the State Lands Office. Harvey D. Lott
entered his vehicle and left the parking area of State
Lands. Harvey D. Lott left in a 1991 Ford pickup truck,
license place number 18T-924C. At that time a stop of
Harvey D. Lott's vehicle was effectuated by law
enforcement and Harvey D. Lott was placed under arrest
for suspicion of possession of dangerous drugs. An
examination of the dumpster behind the State Lands Office
revealed that the box in which the marijuana was shipped
had been discarded in the dumpster. A subsequent search
of the 1991 Ford pickup truck owned and occupied by
Harvey D. Lott revealed the marijuana wrapped in a coat
and placed between the seats in the motor vehicle.
A search of appellant's home netted a set of grow lights, a
scale, a sandwich baggie, two additional containers of marijuana,
marijuana seeds, rolling papers, a knife with marijuana or hashish
residue, a $20 bill rolled to form a straw, and a homemade
marijuana or hashish pipe. Appellant was charged with two counts
of possession of dangerous drugs with intent to sell, misdemeanor
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possession of dangerous drugs, and possession of drug
paraphernalia.
Appellant moved to suppress evidence of the marijuana seized
from his truck, arguing that the State failed to establish probable
cause to search the truck and that the search warrant was,
therefore, invalid. The District Court denied the motion ruling
that the search warrant was valid and that the search of the truck
was also justified under the automobile exception to the warrant
requirement. Pursuant to a plea agreement, appellant pled guilty
to the charges against him.
ISSUE
Did the District Court err when it denied appellant's motion
to suppress evidence?
We review a district court's ruling on a motion to suppress to
determine whether there is substantial credible evidence to support
the court's findings of fact and whether the court correctly
applied the findings as a matter of law. State v. Stubbs (Mont.
1995), 892 P.2d 547, 550, 52 St. Rep. 232, 233. In addition, we
determine whether the district court's interpretation of the law
was correct. Stubbs, 892 P.2d at 550.
A search of a place may be made, and contraband may be seized,
when the search is made either by the authority of a valid warrant
or in accordance with a judicially recognized exception to the
warrant requirement. Section 46-5-101, MCA. The District Court
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denied appellant's motion to suppress the contraband seized from
his truck after concluding that the search warrant was valid.
A warrant is valid if the application in support thereof:
(1) states sufficient facts to support probable cause to believe
that an offense has been committed; (2) states sufficient facts to
support probable cause to believe that contraband connected with
the offense may be found; (3) describes with particularity the
place to be searched; and (4) describes with particularity what is
to be seized. Section 46-5-221, MCA.
In the present case, the affidavit supporting the application
for a search warrant recites background data regarding what
transpired in Arizona, how the marijuana was being sent to Montana,
and how it would be delivered to appellant's home via a "controlled
drop." Concerning the truck, the affidavit states:
That Affiant is further informed and believes that the
said Harvey D. Lott owns three (3) vehicles that may be
used in the distribution of a controlled substance. Said
vehicles are described as a 1962 Ford pickup truck, white
in color . . a 1980 Yamaha motorcycle, black in color
. . and a 1991 Ford pickup truck, silver in color.
Appellant argues that the affidavit in support of the
application for a warrant to search his truck does not state facts
sufficient to justify a conclusion that evidence or contraband
would probably be found in the truck.
The affidavit in support of the application for a warrant to
search appellant's truck states that the marijuana was being
delivered to appellant's home. The only discussion of the truck is
the conclusory statement that appellant's three vehicles "may be
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used in the distribution of a controlled substance." No facts are
set forth supporting that particular conclusion.
"A mere affirmance of belief or suspicion by a police officer,
absent any underlying facts or circumstances, does not establish
probable cause for the issuance of a search warrant." State v.
Isom (1982), 196 Mont. 330, 343, 641 P.2d 417, 424. Here, the
affiant's statement that appellant's vehicles "may be used" to
distribute drugs is unsupported by any underlying facts or
circumstances. The affidavit did not provide a substantial basis
for concluding that probable cause existed to search the truck.
Consequently, we hold that the search warrant was invalid as to the
truck.
The District Court concluded further that independent of the
validity of the warrant, the stop and search of appellant's truck
was permissible under the automobile exception to the warrant
requirement. We disagree.
Under the automobile exception to the warrant requirement, the
police may search an automobile without a warrant if the search is
supported by probable cause and there is the presence of exigent
circumstances. State v. McCarthy (1993), 258 Mont. 51, 56-57, 852
P.2d 111, 114. In Montana, exigent circumstances include the
mobility of the vehicle, the possible destruction of the evidence,
the safety of police officers, emergency situations, and the
potential gravity of the crime committed. McCarthy, 852 P.2d at
114. The record shows that appellant was observed opening a box,
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throwing the box into a dumpster, and entering a building with the
contents of the box. A short time later he left the building,
entered his truck, and drove away. Appellant was never observed
placing anything in his truck before he drove away. Nothing in the
actions of appellant warranted a search based on probable cause.
Similarly, there existed none of the recognized exigent
circumstances that would allow a warrantless search of appellant's
vehicle.
We hold that the District Court erred when it denied
appellant's motion to suppress evidence.
For the reasons set forth above, we reverse.
We concur:
Chief Justic
Justices
Chief Justice Turnage, dissenting.
I respectfully dissent from the conclusion of the majority
that the search of Lott's truck was not justified under the automo-
bile exception to the warrant requirement.
This Court has held that the automobile exception to the
warrant requirement demands two things: (1) the existence of
probable cause to search; and (2) the presence of exigent circum-
stances making it impracticable to obtain a warrant. State v.
Allen (1992), 256 Mont. 47, 51, 844 P.2d 105, 108. Probable cause
requires only a probability of criminal activity, not a prima facie
showing. State v. Dess (1982), 201 Mont. 456, 465, 655 P.2d 149,
154. In determining whether exigent circumstances are present, all
circumstances are relevant. As the majority has noted, 'I [plolice
may need to consider not just the mobility of the vehicle, but the
possible destruction of evidence, the safety of police officers,
emergency situations, and the possible gravity of the crime
committed." State v. McCarthy (19931, 258 Mont. 51, 57-58, 852
P.Zd 111, 115.
In this case, the officers knew that a package containing
fourteen ounces of marijuana had been delivered to Lott's resi-
dence. When they stopped and searched Lott's truck, they had
important additional information, as well. They knew that Lott had
asked a co-worker to pick up the package from his residence and
deliver it to him at work at the State Lands office. They knew
that Lott received the package. They knew he thereafter went
outside the State Lands office, opened the package and took out the
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cellophane-wrapped marijuana. They knew that Lott then got into
his truck and drove away.
From the above facts, I conclude that the Beaverhead County
law enforcement officers had probable cause to believe that Lott's
truck contained contraband. Further, it would have been easy for
Lott to flee with or dispose of the contraband. I conclude that
exigent circumstances were present in which there was a real danger
of loss or destruction of evidence. I would hold that, under these
circumstances, a warrantless search of Lott's truck was justified,
and that the District Court did not err in denying the motion to
suppress the marijuana seized as a result of that search.
Justice Fred J. Weber joins in the foregoing dissent of Chief
Justice J.A. Turnage.
Justice James C. Nelson joins in the foregoing dissent of Chief
Justice J. A. Turnage.
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