NO. 95361
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John W. Larson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Marcia M. Jacobson, Public Defender Office,
Missoula, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
John Paulson, Assistant Attorney General,
Helena, Montana
Robert L. Deschamps, III, Missoula County
Attorney, Karen Townsend, Deputy County
Attorney, Missoula, Montana
Submitted on Briefs: May 2, 1996
Decided: June 4, 1996
Filed:
Justice Charles E. Erdmann delivered the opinion of the Court.
Douglas Leroy New appeals from an opinion and order partially
denying his motion to suppress evidence and from the judgment
entered by the Fourth Judicial District Court, Missoula County,
convicting him of the offenses charged. We affirm.
The issue on appeal is whether the District Court erred in
denying New's motion to suppress evidence obtained during a search
of his vehicle by New's probation officer.
FACTS
Shortly before midnight on May 24, 1994, Missoula County
Sheriff's Deputy Pat Turner was on patrol in Missoula and observed
a pickup truck driving at a slow rate of speed. Turner saw the
vehicle make two turns without signaling and called his dispatcher
to run a check on the license plate number. The dispatcher
informed Turner that the vehicle belonged to New and that New was
on probation for possession of drugs with intent to sell and was
subject to "search on demand."
Turner continued to follow the vehicle as it turned into a
convenience store. As he went to stop New for the traffic
violation, Turner noticed another vehicle drive past him without
its headlights on. As he went to stop the second vehicle, Turner
saw New get out of his pickup and approach the public telephone
outside the convenience store. After dealing with the second
vehicle, Turner returned to speak with New who was still on the
telephone.
2
Turner told New that he had observed him make two turns
without signaling. Turner informed New that he knew he was on
probation and was subject to search and then directed him to empty
his pockets onto the hood of his pickup. Turner also performed a
quick pat-down search of New and discovered a small metal tubular
container inside his pants pocket. Inside the container were a
number of small plastic bags containing a white powdery substance
which New claimed was cocaine obtained from a friend's house.
Turner then placed New under arrest and continued to search New's
clothing. He found an after-shave box in New's coat pocket which
contained approximately twenty-nine long white pills which were
later determined to be Lortab, a dangerous drug. New was taken to
the county jail and his vehicle was impounded.
In the early morning hours of May 25, 1994, Turner notified
New's probation officer, Tom Forsyth, of the arrest and Forsyth
requested a report of the arrest and directed that New also be
arrested for violating his probation. Later that same day, New was
interviewed on tape by Missoula County Sheriff's Detective Larry
Jacobs. During that interview, Jacobs informed New that the white
powdery substance had tested positive for methamphetamine. New
indicated that he intended to sell some of the drugs to pay his
distributor and to support his own habit. During the interview,
New gave his consent to search his pickup and admitted to the
officers that they would find drugs and drug paraphernalia in the
vehicle.
Following the interview, Jacobs discussed the matter with a
deputy county attorney who advised Jacobs not to rely on New's
consent for the search of his vehicle but to contact Forsyth to
determine if he had independent grounds to search the vehicle.
Jacobs contacted Forsyth who determined that a probationary search
of the vehicle was appropriate. Forsyth had previously received
information that New was using drugs and alcohol, he knew that New
was not in the court-ordered drug/alcohol treatment program and he
was uncertain of New's living arrangements--all of which led
Forsyth to believe he had independent grounds to search New's
vehicle and that such a search might produce evidence indicating a
probation violation. Forsyth and Jacobs subsequently searched
New's vehicle and discovered a pill bottle containing a number of
baggies with a white powdery substance which later tested positive
for methamphetamine. They also recovered drug paraphernalia from
the pickup.
On June 6, 1994, New was charged by information with felony
criminal possession of dangerous drugs (methamphetamine) with
intent to sell pursuant to § 45-g-103, MCA (Count I), felony
criminal possession of dangerous drugs (Lortab) pursuant to
§ 45-g-102, MCA (Count II), and misdemeanor criminal possession of
drug paraphernalia in violation of § 45-10-103, MCA (Count III).
New entered pleas of not guilty to the charges.
On September 2, 1994, New filed a motion to suppress the
evidence obtained during both the search of his person and the
4
search of his vehicle. On November 30, 1994, the District Court
issued an opinion and order granting New's motion to suppress the
evidence seized during the search of his person but denied the
motion as to evidence seized during the search of his vehicle. The
District Court held that probationary searches are within the
discretion of the probation officer and found that in this case
Forsyth did not abuse his discretion in scheduling the search of
New's vehicle.
On January 17, 1995, the District Court allowed New to
withdraw his pleas of not guilty and to enter a conditional plea of
guilty to Counts I and III pursuant to 5 46-12-204(3), MCA,
reserving the right to appeal the suppression order as it related
to the evidence seized during the search of his vehic1e.l As it
was evident that New would appeal the suppression order relating to
the vehicle search, the State then requested that the District
Court allow it to enter testimony from Forsyth into the record
concerning the specific reasons why he conducted the search of
New's vehicle. The District Court granted the State's request and
both parties were allowed to examine Forsyth. Following Forsyth's
testimony, the court determined that its earlier ruling on New's
motion to suppress would stand.
On May 5, 1995, the District Court rendered its judgment
sentencing New to fifteen years in the Montana State Prison on each
1 Count II was no longer at issue since the District Court had
suppressed the evidence supporting that charge in its November 30,
1994, opinion and order.
5
of Counts I and II, and to a term of six months in the Missoula
County Jail on Count III.2 The sentences were to run concurrently
but the District Court suspended the entire sentence on certain
terms and conditions. This appeal followed.
STANDARD OF REVIEW
The standard of review for a district court's denial of a
motion to suppress is whether the court's findings of fact are
clearly erroneous and whether those findings were correctly applied
as a matter of law. State v. Williams (Mont. 1995), 904 P.Zd 1019,
1021, 52 St. Rep. 1085, 1086 (citing State v. Flack (1993), 260
Mont. 181, 188, 860 P.2d 89, 94). In this case and at New's
request, the District Court ruled on the motion to suppress without
conducting an evidentiary hearing or relying on a stipulation of
facts from the parties. The court based its initial ruling on the
briefs submitted by the parties and stated that the facts
concerning the two searches were not in dispute. However, after
the District Court received Forsyth's testimony concerning the
basis for the vehicle search the court made a factual determination
that its earlier ruling would stand in light of the new evidence
obtained from Forsyth. Thus, despite the fact that no formal
findings of fact were made on the matter, we must nevertheless
determine whether the District Court's findings are clearly
2 The District Court's judgment erroneously referred to Count
II and this error will be addressed later in the opinion.
6
erroneous and whether they were correctly applied as a matter of
law.
DISCUSSION
Did the District Court err in denying New's motion to suppress
evidence obtained during a search of his vehicle by New's probation
officer?
In denying New's motion to suppress the evidence obtained
during the search of his vehicle, the District Court concluded that
a probation officer is not required to have a prearranged schedule
for his or her searches. The court noted that such searches lie
within the discretion of the probation officer and in this case the
court was persuaded by the fact that Forsyth had authorized and
conducted the search himself and that the information he had at the
time constituted reasonable grounds under State v. Small (1989),
235 Mont. 309, 767 P.2d 316.
New relies on Wong Sun v. United States (1963), 371 U.S. 471,
83 s. ct. 407, 9 L. Ed. 2d 441, to argue that since the District
Court determined that the search of his person was illegal, the
evidence obtained during Forsyth's subsequent search of the vehicle
was "fruit of the poisonous tree" and should have been suppressed
as well. He claims that without the illegal search and seizure, he
would not have been arrested, booked, or interrogated, nor would he
have made incriminating statements or consented to the search of
his vehicle. New notes that after the illegal search and seizure
Jacobs contacted Forsyth to determine if he (Forsyth) had
independent grounds for the vehicle search. However, according to
NW?, such after-the-fact justification of the vehicle search does
not cleanse the evidence of the taint created by the illegal search
of his person.
The State counters New's reliance on the "fruit of the
poisonous tree" doctrine by arguing that certain conditions can
purge such derivative evidence of its primary taint and allow the
evidence to be used despite any initial illegality. The State
maintains that Forsyth had information which he acquired prior to
and independent of Turner's search of New's person and that the
evidence obtained during the probationary search of New's vehicle
was therefore "unpoisoned" and purged of any taint created by the
initial illegal search.
The State also argues that a degree of flexibility must be
accorded a probation officer in the course of supervising a
probationer. The State argues that a probation officer may search
a probationer's vehicle without a warrant as long as the officer
has a reasonable suspicion of a probation violation. The State
maintains that the operation of a probation system and its need for
supervision of a probationer's conditional liberty presents special
needs beyond normal law enforcement that justify departure from the
usual warrant and probable cause requirements.
We must initially address the propriety of the January 17,
1995, change of plea hearing where the District Court granted the
State's request, over New's objection, to illicit testimony from
8
Forsyth concerning his reasons for authorizing the search of New's
vehicle. While New does not appeal the District Court's decision
to allow Forsyth's testimony, he states in his reply brief that,
"Mr. Forsyth's testimony was not used by the lower court in making
its suppression decision. Furthermore, the contents of that
transcript do not change anything about this appeal."
We agree that the District Court initially ruled on New's
motion to suppress prior to hearing Forsyth's testimony. However,
in deciding to allow the testimony the court stated Forsyth's
testimony might assist the court and the Supreme Court in resolving
the matter. Following the testimony, the District Court determined
that "its earlier ruling would stand." We therefore conclude that
the District Court did, in fact, use Forsyth's testimony in
reaching its final decision on the matter.
We further note that without the benefit of Forsyth's
testimony this Court would have been required to remand the case
for a factual hearing to determine Forsyth's reasons for conducting
the search of New's vehicle. We also note that in briefing the
matter before the District Court, New did not contest the State's
assertion that Forsyth had a legitimate basis for the probationary
search, stating only that the defense had no information to
indicate Turner contacted Forsyth prior to the search. Thus, we
conclude that the District Court properly allowed Forsyth's
testimony at the January 17, 1995, hearing and we consider the
transcript from that hearing to be part of the record on appeal.
9
Even though Forsyth claims he had independent reasons for
searching New's vehicle, he acknowledges the fact that the
telephone call from Jacobs was an additional element supporting the
search. We must therefore determine whether the evidence obtained
during the search of the vehicle was the result of the illegal
search of New's person or if, instead, it was obtained by means
sufficiently distinguishable from the illegal search to be purged
of the primary taint.
In In re R.P.S. (1981), 191 Mont. 275, 623 P.2d 964, this
Court examined the "fruit of the poisonous tree" doctrine first
discussed by the U.S. Supreme Court in Silverthorne Lumber Co. v.
United States (1920), 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319.
The doctrine forbids the use of evidence which comes to light as a
result of the exploitation of an initial illegal act of the police.
In re R.P.S., 623 P.2d at 967 (citing Silverthorne, 251 U.S. at
392). However, we also noted that the U.S. Supreme Court has made
it clear that all evidence obtained as the result of an initial
illegality does not become forever unavailable or inaccessible and
that certain conditions can purge the evidence of its "primary
taint." In re R.P.S., 623 P.2d at 967. The U.S. Supreme Court
stated in Wona Sun that:
We need not hold that all evidence is "fruit of the
poisonous tree" simply because it would not have come to
light but for the illegal actions of the police. Rather,
the more apt question in such a case is "whether,
granting establishment of the primary illegality, the
evidence to which instant objection is made has been come
at by exploitation of that illegality or instead by means
10
sufficiently distinguishable to be purged of the primary
taint."
Wont Sun, 371 U.S. at 487-88 (citation omitted).
We reviewed the exceptions to the "fruit of the poisonous
tree" doctrine in State v. Pearson (1985), 217 Mont. 363, 704 P.2d
1056, and stated that derivative evidence is admissible if it is
(1) attenuated from the constitutional violation so as to remove
its primary taint; (2) obtai ned from an independent source; or
(3) determined to be evidence which would have been inevitably
discovered apart from the constitutional violation. Pearson, 704
P.2d at 1058-59. The U.S. Supreme Court has discussed the
"independent source" exception more recently in Murray v. United
States (1988), 487 U.S. 533, 108 S. Ct. 2529, 101 L. Ed. 2d 472,
and stated that:
"[T]he interest of society in deterring unlawful police
conduct and the public interest in having juries receive
all probative evidence of a crime are properly balanced
by putting the police in the same, not a WOYX, position
that they would have been in if no police error or
misconduct had occurred. . When the challenged
evidence has an independent source, exclusion of such
evidence would put the police in a worse position than
they would have been in absent any error or violation."
Murray, 487 U.S. at 537 (quoting Nix v. Williams (1984), 467 U.S.
431, 443).
Forsyth testified that New had failed to report to him for
several months, was reported to be using drugs and alcohol, had
failed to pay his fine or enroll himself into chemical dependency
treatment, and had moved several times without approval or
notification. All of these constitute violations of New's parole
11
conditions. Forsyth testified that he had intended to search New's
vehicle on May 24, 1994, but New did not have his pickup with him
when Forsyth saw him. When Forsyth saw New's vehicle on May 25,
1994, it appeared that New was living out of his pickup, thus
giving Forsyth an additional reason to search the vehicle. Forsyth
testified as follows:
Q. Can you tell the Court whether you were able to make
a decision about the search independent of what was found
by Deputy Turner?
A. Absolutely. Yes.
. . . .
Q. You wouldn't have searched his vehicle on May 25th
unless you would have gotten a call from that officer; is
that true?
A. A search of Mr. New was imminent regardless. I
think that was just one more, ah, factor that -- that
factored into my decision. He hadn't been reporting like
I said.
When asked about his conversation with Jacobs, Forsyth stated: "I
think he asked me if I had any plans to do a search. I indicated
that I did . . .'I
In Small we stated that "[tlhe probation officer must be able
to supervise the probationer, and upon his judgment and expertise,
search the probationer's residence or cause it to be searched."
Small, 767 P.2d at 318 (quoting State v. Burke and Roth (19881, 235
Mont. 165, 171, 766 P.2d 254, 257). The terms of New's probation
included the requirement that New would submit to the search of his
person, vehicle, and/or residence upon the reasonable request of
his probation officer. Forsyth had independent grounds for
12
searching New's vehicle, his request was reasonable based on the
information he had at the time, and the timing of the search was
within his discretion as New's probation officer.
A criminal defendant who seeks to suppress evidence has the
burden of proving that the search was illegal. State v. McCarthy
(1993), 258 Mont. 51, 55, 852 P.2d 111, 113. We conclude that New
failed to establish that Forsyth's probationary search of his
vehicle was not based on reasonable cause arising from information
Forsyth had acquired from independent sources. The evidence
obtained during the search of the vehicle was not the result of the
exploitation of the illegal search but rather was based on
information known to Forsyth which was independent of the fact that
New had been arrested and illegally searched the previous day. We
therefore hold that the District Court's findings are not clearly
erroneous and that those findings were correctly applied as a
matter of law to deny New's motion to suppress the evidence
obtained from the search of his vehicle.
Finally, the State did not appeal the District Court's order
suppressing the evidence obtained during the search of New's person
which supported Count II. However, the District Court's judgment
states as follows:
IT IS THE JUDGMENT OF THE COURT that DOUGLAS LEROY NEW be
and DOUGLAS LEROY NEW is hereby sentenced to a term of
fifteen (15) years each on Count I and II in the Montana
State Prison in Deer Lodge, Montana, and to a term of six
(6) months on Count III in the Missoula County Jail in
Missoula, Montana. Said sentences shall run concurrently
with each other.
13
During the January 17, 1995, change-of-plea hearing the following
exchange took place which conflicts with the court's judgment:
THE COURT: Mr. Beccari, do you know of any facts [that]
should be made known to [the1 Court prior to the
acceptance of a plea of guilty in this matter?
MR. BECCARI: No, sir, and I believe it's a plea of guilty
to Counts I and III; is that correct? I guess we should
clarify that beforehand. It's Count II that the Court
has ordered suppressed.
THE COURT: That's the State's understanding?
MS. TOWNSEND: Yes.
THE COURT: Okay. So as to I and III of the Information
filed June 6, 1994, you desire to change your plea --
NEW: Yes.
. . .
THE COURT: You stand convicted of the offenses of
criminal possession of dangerous drugs with intent to
sell, a felony, [Count 11 and criminal possession of drug
paraphernalia, a misdemeanor [Count 1111.
We therefore note the clerical error in the District Court's
judgment convicting New of Count II and sentencing him to fifteen
years in the Montana State Prison for that offense. The evidence
supporting the charge was suppressed and Count II should have
therefore been dismissed. Thus, pursuant to this Court's authority
under § 46-20-703(l), MCA, we modify the District Court's judgment
and sentence removing the reference to Count II, felony criminal
possession of dangerous drugs (Lortab) pursuant to 5 45-p-102, MCA.
Affirmed.
Justice
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we concur:
Justices
15
Justice W. William Leaphart, dissenting.
I dissent from the majority's holding that "[t]he evidence
obtained during the search of the vehicle was not the result of the
exploitation of the illegal search but rather was based on
information known to Forsyth which was independent of the fact that
New had been arrested and illegally searched the previous day."
The District Court and the majority recognize that the search of
New's person was illegal. Nonetheless, the majority holds that the
subsequent search of New's vehicle was obtained by means
sufficiently distinguishable from the illegal search to be purged
of the primary taint. I disagree that the vehicle search was not
derived by exploitation of the illegal search. I also disagree
that the vehicle search was arrived at by means sufficiently
distinguishable to be purged of the primary taint. Wong Sun v.
United States (1963), 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9
L.Ed.2d 441, 455. Additionally, I disagree that the vehicle search
was: (1) attenuated from the constitutional violation so as to
remove its primary taint; (2) obtained from an independent source;
or (3) determined to be evidence which would have been inevitably
discovered apart from the constitutional violation. State v.
Pearson (19851, 217 Mont. 363, 366, 704 P.2d 1056, 1058-59.
On May 25, 1995, the day after New's arrest, upon the
recommendation of a Deputy County Attorney, Detective Jacobs
contacted New's parole officer, Tom Forsyth. Subsequently, on the
same day, Forsyth conducted a search of New's pickup truck and
found drugs and drug paraphernalia. The State argues that even if
the initial search of New's person were illegal, the drugs in New's
16
vehicle arose from an independent source based on the information
Forsyth had prior to New's arrest. However, Forsyth admitted that
he would not have been in a position to search New's truck if he
had not received a call from the officers involved in its seizure.
New's vehicle was impounded and available to search because of the
initial illegal search.
According to the State, a probationary search was imminent at
the time of New's arrest. However, Forsyth testified that he had
seen New in his office the day before New's arrest and that, at
that time, Forsyth did not search New's pickup. Forsyth testified
that he could not recall clearly whether New had the truck with him
that day or not. Clearly, a search of the truck had not been
foremost on Forsyth's mind if he could not recall if it were
available for searching on May 24, 1995. Forsyth's notes from the
May 24 meeting make no indication that Forsyth intended to search
New's home or truck at any future time. It is very unlikely that
Forsyth would have searched New's vehicle the morning of May 25 had
the police not illegally seized the truck and contacted Forsyth.
Additionally, the reasons that Forsyth offered in support of
his alleged intent to search New's truck, i.e., that New failed to
report to him for several months (although he had seen New the day
before, May 24), was reported to be using drugs and alcohol, failed
to pay his fine or enroll himself into chemical dependency
treatment, and had moved several times without approval or
notification, do not lead to the conclusion that a search of New's
truck would have been inevitable or a priority. The fact that New
was living out of his truck was not revealed until after New's
17
arrest and the truck's seizure. His living in the truck was
clearly an after-the-fact rationalization for searching the truck.
The District Court's conclusion that probation officers are not
required to have prearranged schedules for searches of
probationers' persons or possessions does not adequately excuse the
obvious causal relationship between the illegal search of New's
person, the notification of Forsyth, and Forsyth's search of the
truck.
The District Court noted that:
Here the Probation Officer also received information
interviewed [sic] by Missoula County Sheriff's Detective
indicating the presence of small amounts of drugs and
illegal drug paraphernalia in the Defendant's vehicle
which are prohibited under Defendant's probation.
The information mentioned by the District Court was obtained by
Detective Jacobs during his interview of New after the illegal
search of New's person. Thus, Forsyth relied on tainted custodial
admissions in ascertaining that there was adequate "reasonable
suspicion" to search New's vehicle.
This Court examined the doctrine of the "fruit of the
poisonous tree" as part of the exclusionary rule in Matter of
R.P.S. (1981), 191Mont. 275, 623 P.2d 964. First discussed by the
United States Supreme Court in Silverthorne Lumber Co. v. United
States (1920), 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, the
doctrine forbids the use of derivative evidence which comes to
light as a result of the exploitation of an initial illegal act.
The search of New and the seizure of New's pickup truck were the
initial illegal acts. The notification to Forsyth and his
subsequent search of the truck were derivative in nature. That is,
18
the search of the truck by Forsyth was an exploitation of the
illegal search and seizure by Officer Turner.
This Court reviewed the exception to the "fruit of the
poisonous tree" rule in Pearson, 704 P.2d at 1058-59. We noted
that derivative evidence is admissible if it is: (1) attenuated
from the constitutional violation so as to remove its primary
taint; (2) obtained from an independent source; or (3) determined
to be evidence which would have been inevitably discovered apart
from the constitutional violation. Given the consumable and
vendable nature of the drugs, it was far from inevitable that they
would have remained in the truck to be discovered when, and if, the
truck were to be searched at a later time.
The State's reliance on both independent grounds and
inevitable discovery seem too convenient as after-the-fact
justifications for searching the truck. I would hold that
Forsyth's probationary search of New's truck was an exploitation of
the illegal search of New's person and seizure of his truck, and
was not based on information known to Forsyth independently of the
fact that New had been arrested and illegally searched the previous
night.
Justices William E. Hunt, Sr., and Terry N. Trieweiler join in the
foregoing dissenting opinion.
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