No
No. 97-574
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 195
STATE OF MONTANA,
Plaintiff and Respondent,
v.
THOMAS JOHN DOYLE,
Defendant and Appellant.
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No
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lucas J. Foust, Assistant Public Defender, Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Micheal S. Wellenstein, Ass't Attorney General, Helena, Montana
Mike McGrath, Lewis and Clark County Attorney,
Lisa Leckie, Deputy Lewis and Clark County Attorney, Helena, Montana
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Submitted on Briefs: April 9, 1998
Decided: August 11, 1998
Filed:
__________________________________________
Clerk
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
¶ On March 11, 1996, Thomas John Doyle (Appellant) was charged by information
in the First Judicial District Court, Lewis and Clark County, with criminal
production of dangerous drugs, a felony, in violation of § 45-9-110, MCA. On June 4,
1996, Appellant filed a motion to suppress evidence obtained in a search of his
residence. On March 6, 1997, the District Court issued its Findings of Fact,
Conclusions of Law, and Order denying Appellant’s motion to suppress, after which
Appellant entered a plea of guilty on the condition that he be allowed to appeal the
court’s adverse ruling. This appeal followed. We affirm the order of the District
Court.
¶ The sole issue on appeal is whether the District Court erred in denying Appellant’s
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motion to suppress evidence found in plain view by a police officer during a search of
his residence.
BACKGROUND
¶ On February 27, 1996, at approximately 6:30 a.m., the Helena Police Department
received an anonymous call made by a woman who reported being in Appellant’s
residence and seeing blood in his refrigerator and bloody clothes on the floor.
Officers Peter Rehman (Officer Rehman) and Richard Drysdale (Officer Drysdale)
were dispatched to investigate the complaint and arrived at Appellant’s residence at
about 7:00 a.m. Officer Rehman knocked on Appellant’s outside storm porch entry
door, but no one answered. Officer Drysdale looked through a window next to the
door and saw Appellant sleeping on the couch. After repeatedly knocking on the
exterior door, Officer Rehman noticed an interior door through the storm porch
leading to Appellant’s residence. Officer Rehman entered the storm porch, knocked
on the interior door, and Appellant answered the door.
¶ Officers Rehman and Drysdale testified that when Appellant opened the door, they
identified themselves and informed Appellant of the complaint they had received
about blood in his refrigerator and bloody clothes on his floor. Both officers were
standing side by side in the doorway during this conversation. Officer Drysdale
testified there was nothing obstructing Appellant’s view of him in the doorway and
that he was easily visible. Officer Rehman asked Appellant whether he and Officer
Drysdale could step inside, inspect the refrigerator, and check the house for other
people. Appellant allowed the officers to enter his home.
¶ Appellant’s house was very small and the entry door immediately led into a joint
living room and efficiency kitchen. The only other rooms in the house included a
bedroom and a bathroom. Officer Rehman explained that the cursory check of the
rooms was for safety reasons, to make sure a weapon was not drawn on them. Officer
Rehman checked the rooms and ascertained that there were no other people in the
house with Appellant. This took less than a minute. Officer Rehman then opened the
refrigerator and saw what appeared to be blood from a large piece of meat. He did
not see bloody clothes. Officer Rehman testified that although the blood in the
refrigerator was messy, there was no cause for concern.
¶ Officers Rehman and Drysdale testified that while Officer Rehman was checking
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the rooms, Officer Drysdale and Appellant remained standing next to each other in
the joint living room and kitchen area. Later, Appellant moved to follow Officer
Rehman to the refrigerator. As Officer Drysdale was standing in the living room, he
observed, approximately four to five feet away from him, a tray on the coffee table
containing the following items: two pipes, two small knives, a pill container, a film
container, and a green leafy substance. Officer Drysdale, who has 22 years of law
enforcement experience, testified that it was obvious to him that the items he saw on
the coffee table were drug paraphernalia.
¶ Officer Drysdale looked around the room and next observed a grouping of plants,
some of which were marijuana, on a plant stand by the living room window about
eight feet away. Officer Drysdale testified that, based on his training and experience,
he could identify a marijuana plant. He testified that he believed the plants to be
marijuana because of the distinctive finger-like leaves. He stated that although he
was reasonably sure the plants were marijuana, he walked a few feet and shined his
flashlight on the plants to confirm his suspicions. After identifying the plants as
marijuana, Officer Drysdale told Officer Rehman what he had observed and called a
Drug Task Force officer, as required whenever an officer discovers drugs. The
officers seized the marijuana plants and drug paraphernalia and arrested Appellant
for committing several drug-related offenses.
¶ Appellant testified to a different set of facts concerning the timing and
circumstances of Officer Drysdale’s presence. Appellant testified that when he heard
knocking and opened the door, only Officer Rehman was standing in the doorway.
Appellant testified that he did not see another officer and that Officer Rehman did
not indicate he was with another officer. Appellant testified he was not aware of
Officer Drysdale’s presence until he saw Officer Drysdale and another young officer
enter his house, after Officer Rehman had inspected the refrigerator. Appellant
testified that Officer Drysdale and the third officer searched his house and that
Officer Drysdale found the marijuana plants. Appellant stated that either Officer
Rehman, Officer Drysdale, or the third officer told him they were going to call the
Drug Task Force officer.
DISCUSSION
¶ Did the District Court err in denying Appellant’s motion to suppress evidence found in
plain view by a police officer during a search of his residence?
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¶ This Court reviews a district court’s denial of a motion to suppress to determine
whether the district court's findings of fact are clearly erroneous. State v. Cassell
(1996), 280 Mont. 397, 400, 932 P.2d 478, 479. A finding of fact is clearly erroneous if
it is not supported by substantial evidence, if the trial court misapprehended the
effect of the evidence, or if this Court is left with a definite and firm conviction that
the district court made a mistake. Cassell, 280 Mont. at 400, 932 P.2d at 479. We
review a district court’s conclusions of law de novo to ensure that the court’s
interpretation of the law was correct. State v. Hardy (1996), 278 Mont. 516, 519, 926
P.2d 700, 702.
¶ The Fourth and Fourteenth Amendments to the United States Constitution, and
Article II, Section 11 of the Montana Constitution protect against unreasonable
searches and seizures. State v. Loh (1996), 275 Mont. 460, 467-68, 914 P.2d 592, 597.
Warrantless searches and seizures are per se unreasonable subject to only a few
carefully drawn exceptions. Loh, 275 Mont. at 468, 914 P.2d at 597. One of these
exceptions is the plain view doctrine which allows police officers, under certain
circumstances, to seize evidence in plain view without a warrant. Loh, 275 Mont. at
468, 914 P.2d at 597. In Loh, we adopted the United States Supreme Court’s three-
part criteria enabling a police officer to seize evidence pursuant to the plain view
doctrine. First, "the officer must be lawfully at the place from which he could plainly
view the evidence. In other words, his initial entry onto or intrusion into the place
where he views the evidence must not have been in violation of the Fourth
Amendment or in violation of Article II, section 11 of Montana’s Constitution."
Second, "the item must be in plain view and its incriminating character be
‘immediately apparent.’ " Third, the officer "must also have a lawful right of access
to the object itself." Loh, 275 Mont. at 473, 914 P.2d at 600 (citing Horton v.
California (1990), 496 U.S. 128, 136-37, 110 S.Ct. 2301, 2307-08, 110 L.Ed.2d 112).
¶ In the instant case, Appellant disputes only the first criterion of the plain view
doctrine. Appellant argues that Officer Drysdale was not lawfully in Appellant’s
home when he observed the marijuana plants and drug paraphernalia because
Officer Drysdale was beyond the scope of Appellant’s consent. Appellant argues that
when a person consents to a search of his home, the consent is limited to only those
officers of which the person is aware. Appellant argues that his consent to allow
Officer Rehman to enter his home extended only to Officer Rehman because he did
not see Officer Drysdale and was otherwise unaware of Officer Drysdale’s presence.
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¶ The State maintains that Appellant’s argument should be rejected based on both
the facts and the law. First, the State argues that Appellant’s position is wholly
dependent on his version of the facts which the District Court, as the finder of fact,
was entitled to reject. State v. Brogan (1993), 261 Mont. 79, 87, 862 P.2d 19, 24.
Second, the State cites several federal circuit court cases holding that consent to
search cannot be qualified to a certain number of officers. United States v. Rubio
(9th Cir. 1983), 727 F.2d 786, 796-97 (stating that once valid consent has been given,
any expectation of privacy has been lost and the entry of additional officers does not
further diminish the consenter’s expectation of privacy); accord United States v.
Betts (7th Cir. 1994), 16 F.3d 748, 755; Wildauer v. Frederick County (4th Cir. 1993),
993 F.2d 369, 372.
¶ We hold that substantial evidence exists to support the District Court’s finding that
Appellant voluntarily consented to Officer Drysdale entering and searching his
house. Because our holding is based entirely on the facts of this case, we need not
reach the legal issue of whether consent can be qualified to a certain number of
officers.
¶ As previously stated, in order to meet the third criterion of the plain view doctrine,
the State was required to prove that Officer Drysdale was lawfully in Appellant’s
home when he viewed Appellant’s contraband. Loh, 275 Mont. at 473, 914 P.2d at
600. It is undisputed that Officer Drysdale did not have a warrant to enter
Appellant’s home. Thus, only if Officer Drysdale entered Appellant’s home pursuant
to one of the recognized exceptions to the warrant requirement was he lawfully in
Appellant’s home. Loh, 275 Mont. at 473, 914 P.2d at 600.
¶ One recognized exception to the warrant requirement is that a search is legal if it is
conducted pursuant to consent that is voluntarily given. State v. Rushton (1994), 264
Mont. 248, 257, 870 P.2d 1355, 1361. The State has the burden of showing a
defendant voluntarily consented to an officer entering his house. Rushton, 264 Mont.
at 257, 870 P.2d at 1361. This Court has adopted the "totality of circumstances" test
used by the United States Supreme Court to determine whether consent is voluntary.
Rushton, 264 Mont. at 258, 870 P.2d 1361.
¶ The totality of circumstances indicate that Appellant voluntarily consented to
Officer Drysdale entering his house. The record contradicts Appellant’s claim that he
was unaware of Officer Drysdale’s presence and that he did not knowingly consent to
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Officer Drysdale’s entry. Officers Rehman and Drysdale testified that they both were
standing in the doorway when Appellant answered the door. Officer Drysdale
testified that there was nothing obstructing Appellant’s view of him in the doorway
and that he was clearly visible. Officers Rehman and Drysdale testified that
Appellant let both of them in the house. Both officers
testified that while Officer Rehman was checking the rooms, Appellant was with
Officer Drysdale in the joint living room and kitchen area.
¶ The weight of evidence and the credibility of witnesses are exclusively within the
province of the trier of fact. State v. Ahmed (1996), 278 Mont. 200, 212, 924 P.2d 679,
686. If the evidence conflicts, the trier of fact determines which shall prevail. Ahmed,
278 Mont. at 212, 924 P.2d at 686. The District Court heard all the evidence
presented and chose to believe the State’s version of the events. We will not disturb
the District Court’s factual and credibility determinations on appeal. Ahmed, 278
Mont. at 212, 924 P.2d at 686.
¶ We hold that the District Court’s finding that Appellant consented to Officer
Drysdale entering his house was supported by substantial evidence and, therefore,
was not clearly erroneous. We hold that because Officer Drysdale was lawfully in the
house when he observed the marijuana plants and drug paraphernalia, the District
Court properly denied Appellant’s motion to suppress.
¶ Affirmed.
/S/ WILLIAM E. HUNT, SR.
We concur:
/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
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No
/S/ JIM REGNIER
/S/ KARLA M. GRAY
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