09/06/2016
DA 14-0684
Case Number: DA 14-0684
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 220
STATE OF MONTANA,
Plaintiff and Appellee,
v.
NICHOLAS ANDREW MARINO,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and For the County of Roosevelt, Cause No. DC 13-18
Honorable David Cybulski, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Paul D. Sullivan, Measure, Sampsel, Sullivan & O’Brien, P.C., Kalispell,
Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
Attorney General, Helena, Montana
Ralph J. Patch, Roosevelt County Attorney, Jordan W. Knudsen, Deputy
County Attorney, Wolf Point, Montana
Submitted on Briefs: August 3, 2016
Decided: September 6, 2016
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Appellant Nicholas Andrew Marino (Marino) appeals the order of the Fifteenth
Judicial District Court, Roosevelt County, denying his motion to suppress. We affirm.
¶2 We consider the following issue on appeal:
¶3 Did the District Court err by concluding that law enforcement properly conducted
a canine sniff of Marino’s vehicle based upon particularized suspicion?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 At approximately 1:30 a.m. on June 2, 2013, Marino drove his vehicle out of the
Town Pump gas station in Wolf Point, Montana, without the headlights turned on.
Noticing the lack of headlights, Deputy Sheriff Corey Reum (Deputy Reum) initiated a
traffic stop of Marino’s car. As Deputy Reum pulled closer to Marino’s vehicle, he
noticed the vehicle did not have a rear license plate. When Deputy Reum exited his
vehicle and approached Marino’s car on foot, he was unable to see inside Marino’s
vehicle with his flashlight because the windows were covered in extremely dark tinting.
¶5 Deputy Reum asked to see Marino’s driver’s license, but Marino was only able to
produce a California identification card. Deputy Reum advised Marino that vehicles are
required by law to display license plates. Marino replied that his vehicle’s license plates
were in the trunk of the car because, as testified to by Deputy Reum, “his girlfriend told
him to take them off because they would attract attention to himself.” Marino, with
Deputy Reum’s permission, then exited the vehicle to retrieve the plates from the trunk.
¶6 Marino walked to the trunk of the car, opened it, and leaned into the trunk to
retrieve the plates. When Marino bent over, Deputy Reum noticed a sheath under
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Marino’s clothing. Deputy Reum told Marino to place his hands on the trunk for a pat
down. Marino began to shake nervously as Deputy Reum began the search. Deputy
Reum removed a large knife in a sheath concealed under Marino’s shirt and handed it to
another responding officer, Officer Mehin Wehbe (Officer Wehbe), of the Wolf Point
Police Department. Deputy Reum continued his pat down and discovered a large lump in
Marino’s front pocket which he could not rule out as a weapon. Deputy Reum removed
the object, which turned out to be a large roll of cash (later determined to be $2,914)
attached to a Visa debit card. Deputy Reum then felt a strap on Marino’s body that ran
toward his armpit, and Marino informed him it was a concealed weapon. Deputy Reum
ordered Marino to the ground and handcuffed him before safely removing the pistol from
the concealed holster.
¶7 Deputy Reum had significant prior experience with narcotics investigations and
concluded that indicators for drug trafficking were present. After placing Marino under
arrest for carrying an unlicensed, concealed weapon, Deputy Reum brought his canine
unit from his vehicle to check Marino’s car for odors. The canine alerted near the rear of
the vehicle. Marino’s car was towed to the Roosevelt County Sheriff’s Office and sealed
with evidence tape. A search warrant was obtained and law enforcement discovered
methamphetamine during the search of the vehicle.
¶8 Marino was charged with Criminal Possession of Dangerous Drugs with Intent to
Distribute pursuant to § 45-9-103, MCA (2013), with a persistent felony offender
designation under § 46-18-502, MCA. Marino moved to suppress the evidence seized in
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the search of his car, arguing there was no particularized suspicion of wrongdoing
involving narcotics sufficient to justify a canine sniff. The District Court denied the
motion, concluding there were sufficient facts for Deputy Reum to reasonably believe
Marino was engaged drug trafficking. Marino entered a plea agreement, admitting to the
charge and to his status as a persistent felony offender, but reserving his right to appeal
the District Court’s denial of his motion to suppress. Marino appeals.
STANDARD OF REVIEW
¶9 We review a district court’s denial of a motion to suppress to determine whether
the findings of fact are clearly erroneous and whether the court’s interpretation and
application of the law was correct. State v. Goetz, 2008 MT 296, ¶ 9, 345 Mont. 421, 191
P.3d 489 (citing State v. Copelton, 2006 MT 182, ¶ 8, 333 Mont. 91, 140 P.3d 1074). A
district court’s findings are clearly erroneous if they are not supported by substantial
credible evidence, if the court has misapprehended the effect of the evidence, or if our
review of the record leaves us with a definite and firm conviction that a mistake has been
made. State v. Ellis, 2009 MT 192, ¶ 20, 351 Mont. 95, 210 P.3d 144 (citing State v.
Lewis, 2007 MT 295, ¶ 17, 340 Mont. 10, 171 P.3d 731).
DISCUSSION
¶10 Marino argues that the use of a canine sniff on his vehicle was a warrantless
search that must be supported by a warrant exception, and that all such exceptions,
including the canine sniff in this case, must be justified by exigent circumstances, citing
State v. Hardaway, 2001 MT 252, 307 Mont. 139, 36 P.3d 900. As such, Marino argues
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the canine sniff of his car was improper because no exigent circumstances remained after
Deputy Reum removed any potential threat by arresting and placing Marino in handcuffs.
The State argues that our reasoning in State v. Tackitt, 2003 MT 81, 315 Mont. 59, 67
P.3d 295, where we held that canine searches of constitutionally protected areas need
only be supported by particularized suspicion, controls the outcome in this case.
¶11 Marino is correct that a canine search of a container in which a person has a
reasonable expectation of privacy is a search. That is the essence of the first part of our
holding in Tackitt. Tackitt, ¶ 20. However, the State accurately explains the second part
of our holding in Tackitt, that law enforcement needs only particularized suspicion to
conduct a canine search without a warrant. Tackitt, ¶ 31.
Drug-Canine Exception to the Warrant Requirement
¶12 “The threshold question in a search case is whether there is an expectation of
privacy which society is prepared to recognize as objectively reasonable.” Tackitt, ¶ 17
(citing State v. Scheetz, 286 Mont. 41, 46, 950 P.2d 722, 724 (1997)). If there is a
reasonable expectation of privacy, the nature of the state’s intrusion must also be
reasonable. Tackitt, ¶ 17. Regarding automobiles in particular, “when a person stores
something in a concealed area of a vehicle and seeks to preserve their privacy, that
privacy has constitutional protections.” Tackitt, ¶ 20; accord State v. Elison, 2000 MT
288, ¶ 51, 302 Mont. 228, 14 P.3d 456. As such, a search—including a canine sniff—of
the concealed areas of a vehicle is subject to constitutional protections. Tackitt, ¶ 22;
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State v. Hart, 2004 MT 51, ¶¶ 20–21, 320 Mont. 154, 85 P.3d 1275; State v. Meza, 2006
MT 210, ¶ 22, 333 Mont. 305, 143 P.3d 422.
¶13 Generally, warrantless searches are per se unreasonable subject to a few, narrowly
drawn exceptions. Elison, ¶ 39; State v. Munson, 2007 MT 222, ¶ 50, 339 Mont. 68, 169
P.3d 364. One of those exceptions, as we established in Tackitt, is the use of a drug or
narcotic detecting canine where law enforcement has particularized suspicion and the
odors from the searched container are exposed in the public. Tackitt, ¶ 29; accord Hart,
¶¶ 20–21; State v. Stoumbaugh, 2007 MT 105, ¶ 18, 337 Mont. 147, 157 P.3d 1137.
¶14 As we noted in Tackitt, government has a significant interest in discouraging
illegal drug trafficking. Tackitt, ¶ 29. Discovering illegal drug trafficking is often
difficult because it involves activities that usually appear innocent and trafficking, by its
nature, is inherently transient. Tackitt, ¶ 29. Canine sniffs are far less intrusive than an
actual, physical search of a space because a sniff only examines the odors on the exterior
of the container. Tackitt, ¶ 29; Meza, ¶ 22. Further, unlike thermal scans, State v. Siegal,
281 Mont. 250, 274–75, 934 P.2d 176, 190–91 (1997) (noting thermal scans do not
differentiate between legal and illegal activities), overruled in part on other grounds,
State v. Kuneff, 1998 MT 287, ¶¶ 18–19, 291 Mont. 474, 970 P.2d 556, a canine sniff is
both selective and accurate because the canine only alerts on the presence of the
contraband it has been trained to detect. Tackitt, ¶ 29. As such, the minimally intrusive
and accurate nature of a canine sniff supported by particularized suspicion appropriately
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balances the enhanced individual privacy interests under the Montana Constitution with
governmental interests. Tackitt, ¶ 29.
¶15 Marino argues that an exigency requirement should be implied in all warrantless
searches based on our holding in Hardaway. However, Marino appears to confuse the
requirements for the drug canine warrant exception with the individual requirements for
the search incident to arrest, automobile, exigency, and plain view warrant exceptions.
Hardaway held the search incident to arrest exception implied an exigency requirement
only for § 46-5-102(4), MCA. Hardaway, ¶ 57. As our case law demonstrates, these
warrant exceptions are separate and independent, and each exception has its own
requirements. E.g., Elison, ¶ 43 (automobile); State v. Wakeford, 1998 MT 16, ¶¶ 22–24,
287 Mont. 220, 953 P.2d 1065 (exigent circumstances); State v. Bassett, 1999 MT 109,
¶¶ 52–53, 294 Mont. 327, 982 P.2d 410 (plain view). There is no uniform requirement
for all warrant exceptions that exigency must always be present. Accordingly, exigent
circumstances need not be established before law enforcement may conduct a canine sniff
search. Rather, law enforcement may conduct a canine sniff search of a container in
which a person has a reasonable expectation of privacy if (1) the officers have
particularized suspicion; and (2) the odors from that container are freely exposed to the
public. Tackitt, ¶ 31.
¶16 Marino had a reasonable expectation of privacy in the concealed contents of his
car and the canine sniff of his car was a warrantless search. However, the odors at
question were freely exposed to the public because Marino’s vehicle was on a public
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road. As such, we must examine whether Deputy Reum had particularized suspicion to
conduct the canine sniff of Marino’s car.
Particularized Suspicion to Conduct a Drug-Canine Sniff
¶17 Particularized suspicion requires “(1) objective data from which an experienced
police officer can make certain inferences; and (2) a resulting suspicion that the person is
or has been engaged in wrongdoing.” Stoumbaugh, ¶ 18. “Whether a particularized
suspicion exists represents a question of fact determined by examining the totality of
circumstances surrounding the investigation stop.” Meza, ¶ 25. “In evaluating the
totality of the circumstances, a court should consider the quantity, or content, and quality,
or degree of reliability, of the information available to the officer.” State v. Pratt, 286
Mont. 156, 161, 951 P.2d 37, 40 (1997) (citing Alabama v. White, 496 U.S. 325, 330, 110
S. Ct. 2412, 2416 (1990)).
¶18 In Tackitt, we determined that particularized suspicion was lacking because the
informant was anonymous and unconfirmed, and police investigation verified only
innocent public information and stale prior convictions. Tackitt, ¶¶ 34–41. However, in
Hart, we affirmed the district court’s finding of particularized suspicion for a canine
search where the officers approached the defendant’s home to serve an arrest warrant for
felony criminal sale of dangerous drugs, saw the defendant driving away, and, after
pulling him over, observed furtive movements consistent with an individual attempting to
either get a weapon or hide something. Hart, ¶ 21. Similarly, in Meza, we upheld the
finding of particularized suspicion where the defendant illegally parked in the middle of
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the street in front of a known narcotics operation, acted nervously when pulled over, and
police dispatch informed the officer the defendant had a history of narcotics use. Meza,
¶¶ 24–25. Finally, in Stoumbaugh, we upheld a determination of particularized suspicion
to use a canine search of a vehicle where the officers responded to a report of illegal drug
use, the defendant’s family disclosed the defendant’s location in their home so the
officers could arrest the defendant on pending arrest warrants, the defendant admitted to
drug charges in Washington state, the police confirmed the felony drug charges, and the
defendant urgently attempted to tow her vehicle away at a cost exceeding the value of the
vehicle itself. Stoumbaugh, ¶¶ 21–24.
¶19 Here, the District Court did not err in determining that particularized suspicion
existed to support the canine sniff of Marino’s car. Marino was pulled over by Deputy
Reum because he was driving without headlights at 1:30 a.m. Marino’s car had
extremely dark window tinting and did not have a rear license plate. When informed that
his vehicle should have license plates, Marino told Deputy Reum that he had removed
them, on the advice of his girlfriend, so he would not attract attention, thus implying he
was attempting to avoid detection. Marino did not have a driver’s license even though he
was operating a vehicle. While Marino was retrieving the license plates, Deputy Reum
noticed a sheath concealed under Marino’s shirt. During the ensuing pat down of
Marino, Deputy Reum discovered a concealed knife, a roll of cash in the amount of
$2,914, and an unlicensed, concealed weapon.
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¶20 As such, Deputy Reum had sufficient, objective information to suspect that
Marino was engaged in illegal narcotics trafficking. Whether particularized suspicion
exists is a question of fact determined by the totality of the circumstances. Meza, ¶ 25.
On these facts, the District Court correctly determined there was particularized suspicion
to support the canine search of Marino’s car.
¶21 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ PATRICIA COTTER
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