No
No. 97-436
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 173
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DONITA HERRERA,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell C. Fagg, Judge presiding.
COUNSEL OF RECORD:
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For Appellant:
Carrie L. Garber, Yellowstone County Public Defenders Office,
Billings, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Ass't
Attorney General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney, Billings, Montana
Submitted on Briefs: May 14, 1998
Decided: July 15, 1998
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Donita Herrera (Donita) appeals from the decision of the Thirteenth Judicial
District Court, Yellowstone County, granting in part and denying in part her motion
to suppress evidence obtained during a search of an automobile and her purse. In
addition, Donita requests that this Court review the issue of whether the officers
legally stopped the automobile in which Donita was a passenger. Donita asserts that
she presented this issue to the District Court during an evidentiary hearing, but that
the District Court failed to address the issue in its findings of fact and conclusions of
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law. We deny Donita's request to review the issue of the legality of the automobile
stop and affirm the decision of the District Court denying Donita's motion to
suppress.
Factual and Procedural Background
¶2 On the evening of June 13, 1996, Donita went to Gabby's Casino where she met
her friend Anne Ditzel (Anne). Anne was accompanied by Arnold Muhs (Arnold).
Donita asked Anne if she would give her a ride to a friend's house. They left Gabby's
at approximately 10:00 p.m. Anne was driving, Donita sat in the front passenger seat
and Arnold sat in the backseat. They made one stop at the Lobby Liquor Store, then
proceeded south on 27th Street.
¶3 Officer Hirst was stopped at the corner of 1st Avenue and 27th Street when he
received a call from an undercover officer. The undercover officer indicated that a
blue Dodge hatchback was traveling two vehicles in front of Officer Hirst. The
undercover officer further advised Officer Hirst that he "knew who the person was
in the car" and that Officer Hirst "should pay particular attention to that person."
Officer Hirst followed the blue vehicle until it turned down an alley. Officer Hirst
testified that, when the car turned into the alley, the driver shut off the headlights
then continued to travel through the alley. Officer Hirst stopped at the north end of
the alley while he observed Anne's vehicle.
¶4 Anne testified that she drove into the alley and then into the driveway which
belonged to John, a mutual friend of Anne and Donita. Anne parked the car, turned
off the headlights and went to knock on the door to see if anyone was home. When no
one answered the door, Anne returned to the vehicle, backed out of the driveway,
proceeded down the alley and turned right onto the street.
¶5 Upon seeing Anne's vehicle pull out of the parking spot, Officer Hirst began
following Anne's vehicle through the alley. When Anne turned onto the street,
Officer Hirst activated his overhead lights and pulled the vehicle over. Officer Hirst
testified at trial that he pulled the vehicle over based on his earlier observation of the
vehicle traveling at night without its headlights.
¶6 Officer Hirst approached the vehicle and requested Anne's driver's license. Anne
indicated that she did not have identification, and gave the officer a false name.
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About this time, Officer Paharik arrived on the scene. Officer Paharik recognized
Anne and told Officer Hirst her correct identity. Anne explained that she gave a false
name because she believed there was an outstanding warrant for her arrest. Officer
Hirst placed Anne under arrest for the offense of obstructing a peace officer and
based on the outstanding warrant.
¶7 While Officer Hirst placed Anne in the back of his patrol car, Officer Paharik
went to the passenger side of the vehicle to question Donita. Donita identified herself
and gave Officer Paharik her birth date, but explained that she did not have any
identification with her. Officer Paharik asked Donita to exit the vehicle. He testified
that when he shined his flashlight through the windshield, he saw, underneath the
driver's seat, a rolled up baggie which contained a brownish powdery substance and
a brown pouch next to the baggie. Upon seeing the suspicious items, Officer Paharik
began searching the vehicle. Inside the pouch, Officer Paharik found syringes, a
silver container and what he described as a "coke spoon."
¶8 Donita, believing she was free to leave the scene, began to walk away to call for a
ride. However, when Officer Paharik found the drug paraphernalia, he requested
that she come back and remain near the vehicle. Donita returned to the scene, set her
purse and sack of beer on the hood of the car and waited while Officer Paharik
conducted the search. Officer Paharik found what he described as a black checkbook
cover sitting on the floor of the passenger side where Donita had been sitting.
Although he testified that he did not notice anything suspicious about the checkbook
cover, he found syringes when he looked inside. When he finished searching the
passenger side of the vehicle, Officer Paharik indicated that he needed to check
Donita's purse for identification. Officer Paharik testified that Donita consented to
letting him search her purse. In addition, Officer Paharik testified that when he
found bindles containing a yellowish white substance inside the purse, Donita asked
if he needed a warrant to look in her purse. Donita, on the other hand, testified that
as soon as Officer Paharik sought permission to look in her purse, she asked if he
needed a warrant. Donita further testified that Officer Paharik responded that he
did not need a warrant because he could search the purse as part of the search of the
car.
¶9 After finding the bindles in Donita's purse, Officer Paharik called a third officer
to the scene. The third officer placed Donita under arrest for possession of dangerous
drugs and transported her to the Yellowstone County Detention Facility for
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processing. Donita was charged with one count of possessing dangerous drugs, a
felony, and one count of possessing drug paraphernalia, a misdemeanor.
¶10 Donita moved to suppress the evidence obtained by the officers, arguing that the
search of her purse was conducted without a warrant and not pursuant to an
exception to the warrant requirement. Donita's motion did not challenge the legality
of the traffic stop. Although Anne and Donita were charged separately, the District
Court held a combined evidentiary hearing for Anne and Donita. Anne, in her
motion to suppress, had raised the issue of whether the investigatory stop by Officer
Hirst was legal. Therefore, during the course of the hearing, the issue of whether
Officer Hirst had grounds for initiating the stop of the vehicle was discussed. As a
result, Donita addressed the issue in her proposed findings of fact and conclusions of
law. The District Court, however, despite holding a combined hearing, issued
separate findings and conclusions for Anne and Donita. In its findings of fact and
conclusions of law on Donita's motion, the court limited its order to the suppression
issues presented by Donita in her motion and did not discuss the issue of whether
Officer Hirst had grounds to stop the vehicle. The District Court suppressed the drug
paraphernalia found in the checkbook cover, but determined that Donita consented
to the search of her purse. Thereafter, Donita pled guilty to the offense of possessing
dangerous drugs, reserving her right to appeal the portion of the District Court's
order denying her motion to suppress. Donita presents three issues on appeal:
¶11 1) Did the District Court err in failing to address the issue of whether Officer
Hirst had grounds to stop the vehicle?
¶12 2) Did the District Court err in holding that Officer Hirst had grounds to stop
the vehicle?
¶13 3) Did the District Court err in denying Donita's motion to suppress the evidence
found in her purse?
Discussion
I
¶14 1) Did the District Court err in failing to address the issue of whether Officer
Hirst had grounds to stop the vehicle?
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¶15 Donita argues that the District Court erred in failing to address the issue of
whether Officer Hirst had a reasonable, articulable suspicion warranting the stop of
Anne's vehicle. In support of her argument, Donita asserts that the record reveals
that the validity of the traffic stop was at issue at the evidentiary hearing. In
addition, Donita presented proposed findings of fact and conclusions of law which
stated that the traffic stop was not supported by a reasonable, articulable suspicion
that the occupants of the car had been or were engaged in criminal activity.
Alternatively, Donita requests that this Court review the issue pursuant to the plain
error doctrine.
¶16 The State of Montana (State), however, argues that Donita did not properly raise
or preserve this issue in the District Court. The State contends that this Court should
deny Donita's request for review of this issue for two reasons. First, Donita did not
raise the issue in her motion to suppress. The State argues that the reason the issue
was litigated at the hearing is that Anne raised the issue in her motion to suppress.
The State points out that the District Court made findings and conclusions regarding
the issue in its order denying Anne's motions to suppress, but did not address the
issue in its findings and conclusions on Donita's motion. Second, Donita did not
object to the alleged oversight and thereby failed to give the District Court an
opportunity to amend its findings and conclusions. Rather, she entered her guilty
plea and now raises the issue for the first time on appeal.
¶17 Section 46-20-104, MCA, provides that an appeal for purposes of criminal
procedure "may be taken by the defendant only from a final judgment of conviction
and orders after judgment which affect the substantial rights of the defendant."
Moreover, that section provides that "[u]pon appeal from a judgment, the court may
review the verdict or decision and any alleged error objected to which involves the
merits or necessarily affects the judgment. Failure to make a timely objection during
trial constitutes a waiver of the objection except as provided in 46-20-701(2)." Section
46-20-104(2), MCA (emphasis added). This Court has clearly established that it will
consider for review only those issues raised in the pleadings or otherwise before the
district court. Matter of Estate of Rogers (1986), 223 Mont. 78, 82, 725 P.2d 544, 546.
We explained in State v. Walker (1966), 148 Mont. 216, 223, 419 P.2d 300, 304, and
affirmed in State v. Long (1986), 223 Mont 502, 726 P.2d 1364, that "[a] District
Court will not be put in error where it was not accorded an opportunity to correct
itself." Long, 223 Mont. at 506, 726 P.2d at 1366. Thus, we determine that Donita's
failure to raise the issue of the legality of the traffic stop in her motion to suppress
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and her further failure to give the District Court an opportunity to amend its
findings and conclusions preclude her from raising this issue on appeal.
¶18 We also reject Donita's alternative request that we review the issue pursuant to
the plain error doctrine. As a general rule, this Court will not review an issue which
the defendant fails to present to the district court or an issue to which the defendant
fails to timely object. State v. Thompson (1993), 259 Mont. 62, 65, 853 P.2d 1188,
1190. However, one exception to that general rule is the plain error doctrine set forth
at § 46-20-701, MCA.
¶19 Section 46-20-701(2), MCA, provides:
Any error, defect, irregularity, or variance that does not affect substantial
rights must be disregarded. A claim alleging an error affecting jurisdictional
or constitutional rights may not be noticed on appeal if the alleged error was
not objected to as provided in 46-20-104, unless the convicted person
establishes that the error was prejudicial as to the convicted person's guilt or
punishment and that:
(a) the right asserted in the claim did not exist at the time of the trial and has
been determined to be retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement agency suppressed
evidence from the convicted person or the convicted person's attorney that
prevented the claim from being raised and disposed of; or
(c) material and controlling facts upon which the claim is predicated were not
known to the convicted person or the convicted person's attorney and could
not have been ascertained by the exercise of reasonable diligence.
Donita states that her "fundamental constitutional right against unreasonable
searches and seizures is implicated by the investigative traffic stop." Thus, she
contends that she raised an alleged error implicating a constitutional right. However,
we determine that Donita fails to satisfy the required elements of § 46-20-701(2),
MCA. Specifically, the material and controlling facts regarding the traffic stop were
known to Donita and her attorney at the time of filing her motion to suppress. Yet,
Donita failed to assert a claim regarding the traffic stop at the time of filing that
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motion. Second, Donita has not alleged that she was prevented from raising the claim
due to suppression of evidence by the prosecutor, the judge or law enforcement.
¶20 Having failed to satisfy the requirements of § 46-20-701, MCA, we refuse to
review Donita's claim pursuant to the plain error doctrine. Moreover, we reject
Donita's request that we invoke our common law plain error review pursuant to
State v. Finley (1996), 276 Mont. 126, 137-38, 915 P.2d 208, 215. As we explained in
Finley, we will use our common law plain error review sparingly and only where
failing to review a claimed error may result in a manifest miscarriage of justice, may
leave unsettled the question of the fundamental fairness of the proceedings, or may
compromise the integrity of the judicial process. Finley, 276 Mont. at 137, 915 P.2d at
215. This is not such a case.
¶21 In sum, we determine that Donita did not properly raise the issue of the legality
of the traffic stop in her motion to suppress, nor did she object to the District Court's
failure to address the issue in its findings and conclusions. Therefore, Donita is
precluded from raising the issue on appeal. Furthermore, we determine that Donita
fails to satisfy the prerequisites for obtaining a plain error review. We hold that the
District Court did not err in failing to address the issue of whether Officer Hirst had
grounds to stop the vehicle. Accordingly, we do not reach the merits of Donita's
second issue.
II
¶22 3) Did the District Court err in denying Donita's motion to suppress the evidence
found in her purse?
¶23 The Fourth Amendment of the United States Constitution and Article II, Section
11 of the Montana Constitution prohibit searches and seizures by law enforcement
without a valid warrant. In addition, Montana statutory law at § 46-5-101, MCA,
provides that "[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 judicially
recognized exceptions to the warrant requirement." Consent to a search is a
judicially recognized exception to the warrant requirement. State v. Kim (1989), 239
Mont. 189, 779 P.2d 512. The State has the burden of showing that the defendant's
consent was given voluntarily. Kim, 239 Mont. at 196, 779 P.2d at 517.
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"Voluntariness is a factual issue and is determined from the totality of the
circumstances." Kim, 239 Mont. at 196, 779 P.2d at 517 (citing Schneckloth v.
Bustamonte (1973), 412 U.S. 218, 248-49, 93 S.Ct. 2041, 2058-59, 36 L.Ed.2d 854).
¶24 The parties agree that Officer Paharik searched Donita's purse without a
warrant. Donita argues that the search was not conducted pursuant to a judicially
recognized exception to the warrant requirement and therefore the search was
illegal. In support of her argument, Donita contends that when Officer Paharik
requested to look in her purse, she asked Officer Paharik if he needed a warrant and
he responded that he did not. Donita also contends that she did not consent to Officer
Paharik's search of her purse. Officer Paharik, on the other hand, testified that after
finding the drugs and drug paraphernalia in the vehicle, he asked to look in Donita's
purse. Officer Paharik further testified that Donita consented to the search and it
was not until after he found the bindles in Donita's purse that she asked him if he
needed a warrant.
¶25 The District Court, based on the evidence presented at the hearing, concluded
that Donita voluntarily permitted the officer to search her purse and thus the
evidence was admissible. When considering a court's ruling on a motion to suppress,
this Court considers whether the record contains substantial credible evidence to
support the district court's findings, and whether those findings were applied
correctly as a matter of law. Kim, 239 Mont at 196, 779 P.2d at 517 (citing State v.
Beach (1985), 217 Mont. 132, 147, 705 P.2d 94, 103). The trial court is the finder of
fact at a suppression hearing and the credibility of the witnesses is properly
determined by the trial court that heard the testimony and observed the witnesses.
Kim, 239 Mont. at 196, 779 P.2d at 517.
¶26 Donita contends that the District Court's conclusions regarding the voluntariness
of her consent are not supported by her testimony at the hearing. Specifically, she
argues that, while she may not have felt compelled to remain at the scene initially,
after Officer Paharik asked her to return and stand by the car, she did not feel free
to leave. Additionally, Donita maintains that Officer Paharik attempted to
manipulate her into consenting to his search of the purse by telling her that he did
not need a warrant.
¶27 The State argues that the District Court properly concluded that, based on the
totality of the circumstances, Donita's consent was given voluntarily. The State points
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to Officer Paharik's testimony that he did not order Donita to give him the purse, nor
did he coerce her. It was his testimony that Donita consented to the search of the
purse. Furthermore, Officer Paharik recalled that it was not until after he found the
bindles in Donita's purse that she asked him if he needed a warrant.
¶28 The issue before the District Court was one of credibility. The District Court
found Officer Paharik's recollection of the events more credible than Donita's. We
determine that the record contains substantial credible evidence to support the
District Court's findings. Since the District Court is in a better position to determine
the credibility of the witnesses, this Court will not disturb the District Court's
findings if they are supported by substantial credible evidence. We determine that
the District Court did not err in finding that, based on the totality of the
circumstances, Donita voluntarily consented to the search of her purse. Accordingly,
we hold that the District Court did not err in denying Donita's motion to suppress.
Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
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