Anaconda Law v. 1994 Truck

No. 01-579
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 6N
ANACONDA DEER LODGE COUNTY LAW
ENFORCEMENT DEPARTMENT,
Petitioner and Respondent,
v.
ONE 1994 FORD TRUCK,
STEVEN M BERRINGTON,
Respondent and Appellant.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Deer Lodge,
The Honorable Ted L. Mizner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Steven M. Berrington, Bozeman, Montana (Pro Se)
For Respondent:
Hon. Mike McGrath, Attorney General; Jennifer Anders,
Assistant Attorney General, Helena, Montana
Michael B. Grayson, Deer Lodge County Attorney,
Anaconda, Montana
Submitted on Briefs: December 13, 2002
Decided: January 17, 2003
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1996 Internal Operating Rules, the following decision shall not be
cited as precedent but shall be filed as a public document with the
Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter
Publishing Company and to West Group in the quarterly table of
noncitable cases issued by this Court.
¶2 Steven M. Berrington (Berrington) appeals from the findings of
fact, conclusions of law and order entered by the Third Judicial
District Court, Deer Lodge County, granting the petition for
forfeiture filed by the Anaconda Deer Lodge County Law Enforcement
Department (Department). We affirm.
¶3 The issue on appeal is whether the District Court erred in
granting the Department’s forfeiture petition.
BACKGROUND
¶4 On the night of April 15, 2000, a Department officer on patrol
in Anaconda, Montana, observed a vehicle matching the description
of one owned by Berrington. Aware warrants existed for
Berrington’s arrest, the officer attempted to stop the vehicle.
The driver of the vehicle, later identified as Berrington, tried to
elude the officer, but eventually pulled over to the side of the
road. Berrington then exited the vehicle and ran away on foot.
Several hours later, Department officers responded to a call that a
man matching Berrington’s description was at a private residence
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asking to use the telephone and refusing to leave the premises.
The officers arrived at the residence, found Berrington and
arrested him. The officers then conducted a pat-down search of
Berrington for weapons, during which they discovered two small
containers containing a white powdery substance suspected--and
later established--to be methamphetamine.
¶5 Berrington was on probation at the time of his arrest. On
April 17, 2000, Department officers contacted Berrington’s
probation officer and requested that the probation officer
authorize a search of Berrington’s vehicle. The search uncovered
additional methamphetamine, two firearms and drug paraphernalia.
Berrington subsequently was charged with--and pleaded guilty to--a
variety of offenses, including felony criminal possession of
dangerous drugs.
¶6 The Department then filed a petition alleging that
Berrington’s vehicle was a conveyance used to unlawfully transport
methamphetamine and requesting the District Court to declare the
vehicle forfeit pursuant to Title 44, Chapter 12 of the Montana
Code Annotated (MCA). Berrington opposed the petition, arguing
that evidence of the methamphetamine found in his vehicle should be
suppressed as gained through an unlawful search and that, absent
the evidence, the Department could not establish a basis for the
forfeiture. The District Court held a hearing and later entered
findings of fact, conclusions of law and an order granting the
Department’s petition. Berrington appeals.
STANDARD OF REVIEW
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¶7 In reviewing a district court’s grant of a forfeiture
petition, we review its findings of fact to determine whether they
are clearly erroneous and its conclusions of law to determine
whether the court correctly interpreted the law. In the Matter of
the Seizure of $23,691.00 in U.S. Currency (1995), 273 Mont. 474,
483, 905 P.2d 148, 154.
DISCUSSION
¶8 Did the District Court err in granting the Department’s
forfeiture petition?
¶9 As stated above, the Department brought its forfeiture
petition pursuant to Montana’s forfeiture statutes. Section 44-12-
102(1)(d), MCA, provides that any vehicle used or intended to be
used to facilitate the commission of a drug offense is subject to
forfeiture. Moreover, § 44-12-103(1), MCA, provides that
[a] peace officer who has probable cause to make an
arrest for a violation of Title 45, chapter 9 [a drug
offense], probable cause to believe that a conveyance has
been used or is intended to be used to unlawfully
transport a controlled substance, or probable cause to
believe that a conveyance has been used to keep, deposit,
or conceal a controlled substance shall seize the
conveyance so used or intended to be used or any
conveyance in which a controlled substance is unlawfully
possessed by an occupant. He shall immediately deliver a
conveyance that he seizes to the offices of his law
enforcement agency, to be held as evidence until
forfeiture is declared or release ordered.
A presumption of forfeiture exists regarding most property eligible
for forfeiture under § 44-12-102, MCA, including vehicles; the
presumption may be rebutted by the property owner proving the
property was not used for the purpose charged or was used without
his consent. Sections 44-12-203(1) and 44-12-204, MCA.
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¶10 The Department’s petition alleged that Berrington’s vehicle
was subject to forfeiture pursuant to these statutes because it was
used, and intended to be used, by Berrington for the transportation
and possession of dangerous drugs in violation of § 45-9-102, MCA.
The District Court concluded, following a hearing, that the
Department had proven by clear and convincing evidence the vehicle
was used to transport methamphetamine, Berrington had not offered
proof to overcome the presumption of forfeiture and, as a result,
the vehicle was subject to forfeiture.
¶11 Berrington argues that the District Court’s conclusion the
vehicle was used to transport methamphetamine is erroneous and,
consequently, its further conclusion that the vehicle was subject
to forfeiture also is erroneous. Specifically, he asserts that the
Department’s petition was based on the discovery of methamphetamine
in his vehicle as a result of the search authorized by his
probation officer and that the search was illegal because it was
conducted for the purposes of a criminal investigation rather than
for legitimate probation purposes. On that basis, Berrington
contends that the District Court should have suppressed the
evidence of the methamphetamine found in his vehicle and, had the
court done so, there would be no basis for the forfeiture. We need
not address the legality of the search of Berrington’s vehicle.
¶12 In its findings of fact, the District Court determined that,
at the time Berrington was arrested, there was
[f]ound on his person . . . two small containers that
contained a white powdery substance suspected to be
Methamphetamine. During the time of this man-hunt Mr.
Berrington did not have the opportunity to acquire the
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dangerous drug elsewhere thereby leading to the
conclusion that he possessed the dangerous drug while
eluding police officers while driving and while on foot.
Berrington offered no evidence at the hearing on the petition to
dispute these facts and does not challenge the finding on appeal.
Consequently, according to the District Court’s finding, Berrington
was in possession of the two small containers of methamphetamine in
violation of § 45-9-102, MCA, at the time he was driving his
vehicle and the vehicle was used to transport those containers. As
a result, and on that basis, his vehicle was subject to seizure and
forfeiture pursuant to §§ 44-12-102 and 44-12-103, MCA, regardless
of the discovery of the additional methamphetamine in the vehicle
during the subsequent search.
¶13 We conclude that the District Court’s conclusions of law that
Berrington’s vehicle was used to transport methamphetamine and was
subject to forfeiture are not erroneous. We hold, therefore, that
the District Court did not err in granting the Department’s
forfeiture petition.
¶14 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ TERRY N. TRIEWEILER
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