No. 91-506
IN THE SUPREME COURT O F THE STATE O F MONTANA
1992
STATE O F MONTANA,
Plaintiff and Respondent,
-vs-
GEORGE F R E D ALLEN,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Leif B. Erickson, Judge presiding.
COUNSEL O F RECORD:
For Appelfant:
Chris christensen, Attorney at Law, Kalispell,
Montana
For Respondent:
Hon. Marc Racicot, Attorney General, John Paulson,
Assistant Attorney General, Helena, Montana
Ted 0 . Lympus, County Attorney, Kalispell, Montana
Submitted on Briefs: August 6, 1992
Decided: December 18, 1992
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
Following a jury trial in the District Court for the Eleventh
~udicial District, Flathead County, defendant was convicted of
criminal possession of dangerous drugs with intent to sell, in
violation of 5 45-9-103(1), MCA. Defendant appeals. We affirm.
The parties state the issue as whether the District Court
properly denied defendant's motion to suppress. We restate the
issues as follows.
1. Were defendant's Fourth Amendment rights violated when
law enforcement officers made a warrantless stop and search of his
truck?
A. Was there probable cause?
B. Were there exigent circumstances?
2. Did defendant consent to the search of his truck?
3. Did the District Court err in denying defendant's motion
to suppress?
On Saturday, April 7, 1990, Sergeant Fisher of the Kalispell
Police Department (KPD) called Officer Christensen at home and
informed him that a woman, April Allen, had come to the police
station with some information on drugs. Officer Christensen
interviewed Ms. Allen early that afternoon. She told him that her
father-in-law, defendant George Allen, had gone to Tucson, Arizona,
to pick up a load of marijuana and was bringing it back that
evening in an old yellow Ford pickup truck. She also informed the
officers that defendant hid the marijuana in spare tires and that
he broke down the spare tires in the basement of his residence.
2
Officer Christensen testified that although he had not previously
spoken with Ms. Allen, the information she gave was similar to
information he had received in the past from other informants.
Officer Christensen helped organize a stakeout on ~ i g h w a y2,
west of ~alispell,to intercept defendant before he reached his
home. Sergeant Fulton testified that Officer Christensen, Officer
Sward and he were on the stakeout together from 5: 00 p.m. Saturday
afternoon. He further testified that at 1:30 a.m., he advised
Officer Sward to go home and get some rest because he had been up
f o r almost 24 hours. Shortly before 2 a.m. on April 8, 1990,
Officer Christensen and Sergeant Fulton observed defendant's yellow
Ford truck drive by the stakeout location. The officers stopped
the truck. Defendant testified that Officer Christensen was
standing in the opposite lane of Highway 2, holding a gun on him
when he ordered him to show his identification and to step out of
the truck.
Defendant was pat-searched when he exited the truck. He was
then taken to the rear of the vehicle to stand in front of the
police car's headlights. Sergeant Fulton was standing on the
passenger side of the police car between the opened passenger door
of the police car and the car itself with an AR-15 assault rifle
pointed at defendant.
Officer Christensen advised defendant that he had been stopped
because they had received information that he was transporting
marijuana back from Arizona. Officer Christensen then advised
defendant of his Miranda rights. Defendant asked Officer
Christensen if he was under arrest, to which Officer Christensen
responded "not at this timef1. Defendant testified that he was
asked to sign a search consent form and that he denied such consent
to search, Officer Christensen testified that defendant verbally
consented to the search but refused to sign the consent form.
The officers at the scene radioed Officer Sward and requested
that he return to the scene. Officer Rick Jensen also arrived at
the scene with his dog (the Ifdrug dogfT)that was trained in the
detection of marijuana. officer J e n s e n opened the topper on the
truck, picked up the dog, and placed him inside. Officers Jensen
and Sward then conducted a search of the vehicle. The drug dog
showed a strong interest in a spare tire located in the truck box
and on the right front tire of an '86 Mazda being towed by
defendant on a trailer. Following the dogfs alert to the tire,
Offices Christensen informed defendant that the truck, Mazda and
trailer would be impounded.
The investigatory stop took approximately 85 minutes.
Defendant was held at gun point for approximately 50 minutes. The
truck was impounded but defendant was not arrested at that time.
Officer Christensen gave defendant a ride home.
Once at his residence, defendant was asked for permission to
search his home. Again, the State maintains that he gave verbal
permission to search but declined to sign a consent form; and
again, defendant maintains that he gave no consent to search.
Nonetheless, a search was conducted, and the officers found a tool
used to break down tires in defendant's basement. The officers
seized the tool.
On Monday, April 9, 1990, Officer Christensen obtained a
search warrant for defendant's truck. Inside the spare tire the
officer found four garbage bags containing a total of 15.8 pounds
of marijuana.
Defendant was subsequently arrested and charged with criminal
possession of dangerous drugs with intent to sell, in violation of
§ 45-9-103 (1), MCA.
A suppression hearing was held on May 23 and May 24, 1991.
Following the hearing, the District Court denied defendant's motion
to suppress the evidence discovered as a result of the stop,
search, and seizure of his vehicle. Defendant appeals, challenging
the propriety of the stop and warrantless search of his truck on
April 8, 1990, as well as the warrant search of his spare tire on
April 9, 1990
Were defendant's Fourth Amendment rights violated when law
enforcement officers made a warrantless stop and search of his
truck?
With regard to the necessity of a warrant, ~rticle11, Section
11 of the Montana Constitution in pertinent part provides:
Section 11. Searches and seizures. The people
shall be secure in their persons, papers, homes and
effects from unreasonable searches and seizures. No
warrant to search any place . . . shall issue without
describing the place to be searched . . . , or without
probable cause, supported by oath or affirmation reduced
to writing.
The requirements for searches and seizures are set forth in .
§ 46-5-
101, MCA, which provides:
Searches and seizures -
when authorized. A search
of a person, object, or place may be made and evidence,
contraband, and persons may be seized in accordance with
Title 46 when a search is made:
(1) by the authority of a search warrant; or
(2) in accordance with recognized exceptions to the
warrant requirement.
An exception to the warrant requirement is the uautornobile
exception,'' which "requires two things (1) the existence of
probable cause to search; and (2) the presence of exigent
circumstances, that is, that it was not practicable under the
circumstances to obtain a warrant." State v. Cripps (19781, 177
Mont. 420, 422, 582 P.2d 312, 319, citing State v. Amor (1974), 164
Mont. 182, 520 P.2d 773; and Coolidge v. New Hampshire (1971), 403
U.S. 443.
A. Was there probable cause?
Probable cause requires only a probability of criminal
activity, not a prima facie showing. State v. Dess (1982), 201
Mont. 456, 655 P.2d 149. In its order denying the motion to
suppress, the District Court first set forth the relevant facts
from which it concluded that the officers had probable cause to
stop and search defendant's truck. Those facts were known to the
officers at the time they stopped the truck, and were eventually
included in Officer Christensen's application for a search warrant.
The court stated that in October 1984, the Flathead County
Sheriff Is Off ice received a report from the Rocky Mountain
~nformationNetwork that defendant had drug connections in New York
and New Jersey and that he was involved in drugs and prostitution.
It further noted that in May of 1989, an anonymous informant
reported to Officer Christensen that defendant was bringing kilos
of marijuana back from Tucson, Arizona in spare tires and that
defendant made deliveries in each state he passed through on his
way back to Montana.
The court further noted that Don Bird, a convicted drug user,
stated to Officer Christensen that defendant was his supplier and
that defendant brought back large quantities of marijuana from
Arizona. Officer Christensen considered Bird to be reliable
because of his familiarity with the drug scene and because other
names he provided were of other drug users known as such to the
police. Although Don Bird testified at the suppression hearing
that he did not remember defendant ever supplying him with drugs,
Officer Christensen testified that he was present at a recorded
interview with Bird in which Bird stated that defendant had sold
him marijuana on one occasion and that defendant was bringing
marijuana back from Tucson. The tape recording was played for the
District Court.
The District Court found that another confidential informant
had reported in early 1989 that defendant had supplied the
informant with marijuana which defendant had brought back from
Arizona.
Finally, the District Court found that on April 7, 1990,
Officer Christensen met with Ms. Allen, who told him that defendant
would be coming in from Arizona that evening with a large quantity
of marijuana in a spare tire in the back of a yellow Ford pickup
belonging to defendant.
In conclusion, the District Court stated:
Here, the police had specific information from
various informants that Defendant Allen regularly
transported large quantities of drugs from Tucson to
Kalispell. A family member, who spent a great deal of
time with the Defendant and would be in a unique position
to know, contacted the police, gave them the description
of Allen's pickup truck and the approximate time and
place of his arrival into the Flathead. She also stated
that Allen would be transporting marijuana in the spare
tire of this vehicle. The police verifiedthat Defendant
owned a pickup matching the description given as well as
his resident address. The police were present at the
time and place as stated by the family member, and
Defendant appeared, driving a vehicle matching the
description given. At this point, the police had
probable cause to believe that illegal activity was
occurring and were therefore entitled to conduct the
search which led to discovery of the spare tire
containing the marijuana which is the subject of the
suppression motion. The search being proper, the fruits
of the search are admissible.
We agree with the District Court's conclusion that the
evidence clearly established probable cause. We hold that the
officers had probable cause to believe that defendant was
transporting contraband, and had probable cause to stop defendant's
vehicle.
B. Were there exigent circumstances?
Defendant maintains that his Fourth Amendment right to be free
from unreasonable search and seizure was violated when the police
stopped him on ~ighway2 without a warrant, held him at gun point,
searched his truck and impounded it. He maintains that the police
had ample time to obtain a search warrant the night of the stop,
and the officer's failure to obtain a warrant under these
circumstances violated his constitutional rights. He contends that
since there were three officers on the stakeout until 1:30 a.m.,
one of them could have obtained a search warrant before sending
Officer Sward home at 1:30 a.m. to "get some rest." He maintains
that there were no exigent circumstances which would justify a
warrantless stop and search since the officers had all the
information they needed to obtain a warrant hours before the stop.
The State contends that a warrantless search was justified by
exigent circumstances: (1) that there was not time to secure a
warrant; and (2) that there were not enough officers available to
safely conduct the stakeout. Relying in part on Officer
Christensen's testimony, the State maintains that it would have
taken four hours or more to obtain a search warrant since it was
Saturday and thus more difficult to find a judge and the county
attorney. Officer Christensen testified he thought it was more
important to set up the stakeout as soon as possible. He further
testified that there were not enough officers available at the time
to get a warrant and organize a stakeout in time. He testified he
was concerned about defendant's reputed dangerousness and believed
that it was necessary to have more than one officer available at
the stop.
In the recent case of California v. Acevedo (1991), 111 S.Ct.
1982, the United States Supreme Court considered various cases
which had addressed warrantless searches of automobiles and luggage
and other containers in automobiles. The court referred to Carroll
v. United States (1924), 267 U.S. 132, where the Supreme Court in
pertinent part stated:
It therefore held that a warrantless search of an
automobile based upon probable cause to believe that the
vehicle contained evidence of crime in the light of an
exigency arising out of the likely disappearance of the
vehicle did not contravene the Warrant Clause of the
Fourth Amendment. (Citation omitted.)
The court refined the exigency requirements in
.
Chambers v. Maroney . . when it held that the existence
of exigent circumstances was to be determined at the time
the automobile is seized. (Citation omitted.)
Acevedo, 111 S.Ct. at 1986. The court discussed the various cases
and concluded that it was appropriate to have one clear-cut rule to
govern automobile searches and stated in pertinent part:
We conclude that it is better to adopt one clear-cut rule
to govern automobile searches and eliminate the warrant
requirement for closed containers set forth in Sanders.
VI
The interpretation ofthe Carroll doctrine set forth
in Ross now applies to all searches of containers found
in an automobile. In other words, the police may search
without a warrant if their search is supported by
probable cause. The court in Ross put it this way:
"The scope of a warrantless search of an
automobile . . . is not defined by the nature
of the container in which the contraband is
secreted. Rather, it is defined by the object
of the search and the places in which there is
probable cause to believe that it may be
found." (Citation omitted.)
The police may search an automobile and the containers
within it where they have probable cause to believe
contraband or evidence is contained.
Acevedo, 111 S.Ct. at 1991.
The Acevedo court defined exigent circumstances as those
circumstances where it is not practicable to secure a warrant
because the vehicle in question can be quickly moved out of the
locality or jurisdiction in which the warrant must be sought.
Acevedo, 111 S.Ct. 1982, citing Carroll v. United States (1925),
267 U.S. 132, 153
In this case the police set up a stakeout and stopped
defendant's vehicle on the highway a few miles from his home. The
defendant's daughter-in-law had indicated to the police that the
defendant would arrive some time during the evening but the police
did not know exactly the time when the defendant would arrive. The
stakeout started at 5 p.m. on Saturday and continued until just
before 2 a.m. the following morning. Three officers manned the
stakeout until 1:30 a.m. when one officer was allowed to go home
and get rest because he had been up for almost 24 hours. The
contention of the defendant is that since there were three officers
on the stakeout until 1:30 a.m., one of the officers could have
obtained a search warrant. He therefore contends there were no
exigent circumstances which would justify the warrantless search.
The contentions of the defendant disregard salient facts
presented by the prosecution. Officer Christensen testified that
defendant was extremely dangerous. His testimony included the
following:
g. And why would you have had your gun drawn?
A. I have talked to a number of people about Mr. Allen
and they indicated that he was--had mob connections
in New York and that he was involved with Mexican
Mafia in Arizona. And everybody I talked to
believed that Mr. Allen was a dangerous person and
everyone I talked to refused to have their name
used because they felt that he was extremely
dangerous. And I took them at their word.
Q. You mean people who had provided you with
information?
A. People who had provided me with information.
Q. Expressed a fear of him?
A. Yes, agreat fear.
The stakeout took place on Saturday evening and night. Officer
Christensen testified that obtaining a search warrant on Saturday
evening or Saturday night would have taken approximately four
hours. We conclude there were exigent circumstances which made it
impracticable to secure a search warrant.
We hold that defendant's Fourth Amendment rights and Montana
constitutional rights were not violated when law enforcement
officers made a warrantless stop and search of his truck.
I1
Did defendant consent to the search of his truck?
Because we held that there was probable cause to search
defendant's truck, the issue of consent is irrelevant and we need
not discuss it. State v. Evjen (1988), 234 Mont. 516, 765 P.2d
708.
I11
id the ~istrictCourt err in denying defendant's motion to
suppress?
Based on our holding on the first issue, we conclude that the
District Court correctly denied defendant's motion to suppress.
IV
We note that defendant has raised several other issues on
appeal. However, we find it unnecessary to review any of these
12
issues due to their lack of merit o r the fact that s o m e of t h e m
were raised for the first t i m e on appeal and therefore, not
properly before this Court.
A E f irmed .
We Concur: ,
Justices
Justice Karla M. Gray, dissenting.
I respectfully dissent from the opinion of the majority. The
facts of this case do not meet the "exigent circumstancesn test for
the so-called automobile exception to the search warrant
requirement. I would reverse the District Court's denial of
appellant's motion to suppress.
The majority correctly notes our definition of "exigent
circumstances," namely, that it was not practicable to obtain a
warrant under the circumstances. State v. Cripps (1978), 177 Mont.
410, 422, 582 P.2d 312, 319. "Practicable" is defined by both
Webster's Third International Dictionary and Black's Law Dictionary
(Rev. 4th Ed.) as possible to perform or capable of being done or
accomplished. The term certainly does not mean, and has never been
construed to mean, merely convenient. The majority's conclusion
that the facts of this case meet the exigent circumstances test
renders that test null and void insofar as it has heretofore
protected the Fourth Amendment rights of Montanans. The
constitutional requirement for search warrants has given way to a
"convenience" analysis. I cannot agree.
The relevant and undisputed facts relied on by the majority
are as follows. Early in the afternoon of April 7, 1989, officers
received a tip from appellant's daughter. The tip was consistent
with earlier information received by law enforcement, but never
acted upon, that appellant was involved with drugs. A procedure
was in place for obtaining warrants on weekends. It would have
taken approximately four hours to obtain a search warrant, given
14
the fact that April 7 was a Saturday. The officers did not attempt
to obtain a warrant. Instead, by 5:00 p.m., three officers had
established a stakeout. Because appellant was considered
dangerous, law enforcement believed it necessary to have "more than
onen officer present at the stakeout. The officer in charge
believed that it was more important to set up the stakeout than to
obtain a warrant. The three officers remained at the stakeout from
5:00 p.m. until 1:30 a.m., at which point one of the officers was
allowed to leave. Appellant drove past the stakeout location at
approximately 2:00 a.m., and was stopped; his automobile
subsequently was searched at the scene.
The majority relies on specific facts and arguments to support
its conclusion that these facts meet the exigent circumstances
test: that there was not time to obtain a warrant; that more than
one officer was needed at the stakeout; and that the officer
believed it was "more importantv to set up the stakeout than to
obtain a warrant. The majority's reliance is flawed.
First, it is simply not the case, and the record does not
support the assertion, that there was insufficient time to obtain
the warrant. Rather, the record makes it clear that a procedure
was in place for obtaining warrants on weekends and that it would
have taken approximately four hours to do so. In other words,
given that four hours elapsed from the time the tip was received
until the stakeout was in place, the search warrant could have been
obtained by the time the stakeout was established. Second, the
officer's belief that more than one officer was needed at the
stakeout location adds nothing to the exigencyof the circumstances
here. In fact, by 5:00 p.m., three officers were at the stakeout
and remained there in excess of eight hours, at which time one was
allowed to leave. No testimony supports the need for three
officers at the stakeout: nor does anything in the record or in the
majority's analysis support the notion that all three officers were
needed for the entire time between receipt of the tip and 5:00 p.m.
to the extent that no one was available to obtain a warrant.
Finally, the majority's reliance on the officer's belief that it
was "more important1' to set up the stakeout than to obtain a
warrant, as somehow helping to create exigent circumstances here,
is chilling indeed. I do not question the officer's belief; I do
submit that the relative priorities placed on such matters by law
enforcement officers is based on considerations unrelated to this
Court's obligation to uphold the public's constitutional right to
be free from unreasonable searches.
The facts of this case are clear that there was sufficient
time and sufficient staff available to obtain a warrant. Under
these facts, the "exigent circumstances1' test was not met and
appellant's Fourth Amendment rights were violated.
Justice William E. Hunt, Sr., dissenting.
I dissent. The facts of this case do not justify a
warrantless search. The officers had ample time and resources to
obtain a search warrant from either the two District Court Judges
located in the county, or from the Justice of the Peace. The fact
that the officer who remained did not request additional assistance
after letting one of the officers go home, demonstrates that the
officers were not in great fear for their safety. The Constitution
should not be suspended merely because it might take some extra
effort on the part of the authorities to obtain a warrant. The
Constitution applies seven days a week, twenty-four hours a day,
holidays included.
I would reverse the District Court and suppress the evidence
obtained by the illegal search.
December 18, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
CHRIS CHRISTENSEN
Attorney at Law
P.O. Box 1954
Kalispell, MT 59903-1954
George Fred Allen
700 Conley Lake Rd.
Deer Lodge, MT 59722
HON. MARC RACICOT, Attorney General
John Paulson, Assistant
Justice Building
Helena, MT 59620
Ted 0. Lympus, County Attorney
Flathead County
P.O. Box 1516
Kalispell, MT 59903-1516
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA