No. 01-194
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 211
STATE OF MONTANA,
Plaintiff and Respondent,
v.
KATHY OLSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kristina Guest, Assistant Appellate Defender, Helena, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Jim Wheelis,
Assistant Attorney General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney; Sheila R. Kolar,
Deputy County Attorney, Billings, Montana
Submitted on Briefs: February 7, 2002
Decided: September 17, 2002
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Kathy Olson (Olson) appeals from the judgment entered by the
Thirteenth Judicial District Court, Yellowstone County, on her
convictions for criminal possession of dangerous drugs and criminal
possession of dangerous drugs with intent to sell. We reverse and
remand.
¶2 The issue on appeal is whether the District Court erred in
denying Olson’s motion to suppress evidence.
BACKGROUND
¶3 On December 10, 1999, Yellowstone County Deputy Sheriffs Shane
Skillen (Skillen) and Steve Corson (Corson) went to Olson’s home to
arrest her pursuant to a warrant issued as a result of her failure
to appear at a justice court hearing. After knocking on the front
door and receiving no response, Skillen went around to the back
door of the residence. As Skillen approached the back, Brian
Aichele (Aichele), who also resided in the home, exited the back
door. Skillen asked Aichele whether Olson was home and Aichele
responded that she was. Aichele reentered the house, followed by
Skillen and Corson. The back entrance led into a laundry room
where Aichele paused and called several times to Olson. Olson did
not respond. Aichele informed Skillen that Olson was in the living
room. Skillen also called to Olson and, again, she did not
respond. Skillen then walked through the laundry room into the
kitchen. As he began to cross the kitchen, Olson entered the
kitchen through the doorway from the living room.
2
¶4 After Olson identified herself, Skillen informed her she was
under arrest and Corson handcuffed her. Skillen asked whether
there was anyone else in the residence, and both Olson and Aichele
stated there was not. At that point, Skillen was standing at the
door between the kitchen and the living room. He looked into the
living room and observed a marijuana bong on the coffee table.
Aichele then became agitated and began yelling at Olson. Skillen
handcuffed Aichele and informed him he would be detained until the
deputies determined what they were going to do.
¶5 After handcuffing Aichele, Skillen conducted a search of the
living room, bathroom and bedroom of the house, locating what he
believed to be drugs and drug paraphernalia in each room. Aichele
was then taken from the house and placed in the deputies’ vehicle
while Olson remained in the kitchen. Shortly thereafter, Detective
Evans (Evans) of the City-County Special Investigations Unit
arrived. Evans asked Aichele for permission to search the house
and Aichele signed a form consenting to the search. Evans and
Skillen reentered the house and requested Olson to consent to a
search; she also signed a consent form. Olson was removed from the
house at that time and another search was conducted, resulting in
the discovery of drugs and drug paraphernalia. Olson later was
taken to the Yellowstone County Detention Facility where she gave a
taped statement to a deputy.
¶6 The State of Montana (State) charged Olson by information with
the offenses of felony criminal possession of dangerous drugs,
felony criminal possession of dangerous drugs with intent to sell,
3
misdemeanor criminal possession of dangerous drugs and misdemeanor
criminal possession of drug paraphernalia. She subsequently moved
to suppress both the evidence found in her home and her taped
statement on the basis that the search of her home violated her
right to be free from unreasonable searches and seizures as
guaranteed by the United States and Montana Constitutions and her
right to privacy under the Montana Constitution. The District
Court held a hearing, following which it orally denied the motion.
Olson then pleaded guilty to the offenses of felony criminal
possession of dangerous drugs with intent to sell and misdemeanor
criminal possession of dangerous drugs, pursuant to a plea
agreement in which she expressly reserved her right to appeal the
District Court’s denial of her motion to suppress. The District
Court sentenced Olson and entered judgment. Olson appeals.
STANDARD OF REVIEW
¶7 We review a district court’s ruling on a motion to suppress to
determine whether the court’s findings of fact are clearly
erroneous and whether its interpretation and application of the law
are correct. State v. Nalder, 2001 MT 270, ¶ 5, 307 Mont. 280, ¶
5, 37 P.3d 661, ¶ 5.
DISCUSSION
¶8 Did the District Court err in denying Olson’s motion to
suppress evidence?
¶9 Both the Fourth Amendment to the United States Constitution
and Article II, Section 11 of the Montana Constitution guarantee
the right to be free from unreasonable searches and seizures. It
4
is well-established that a warrantless search is per se
unreasonable absent the existence of one of a few narrow exceptions
to the warrant requirement. See, e.g., State v. Elison, 2000 MT
288, ¶ 39, 302 Mont. 228, ¶ 39, 14 P.3d 456, ¶ 39; State v.
McBride, 1999 MT 127, ¶ 12, 294 Mont. 461, ¶ 12, 982 P.2d 453, ¶
12; State v. Rushton (1994), 264 Mont. 248, 257, 870 P.2d 1355,
1361. In her motion to suppress, Olson advanced a variety of
arguments supporting her contention that the drug evidence and her
taped statement were obtained in violation of her constitutional
right to be free from unreasonable searches and seizures, as well
as her right to privacy. In response, the State argued that,
notwithstanding the absence of a search warrant, the searches of
Olson’s home were justified by various exceptions to the warrant
requirement. The District Court denied the motion to suppress,
concluding that the marijuana bong was in plain view, Skillen’s
initial search was justified as a protective sweep of the residence
during which he observed more drugs and drug paraphernalia in plain
view, the second search was authorized by Olson’s written consent
and, because the searches were not illegal, Olson’s subsequent
statement was given voluntarily. Olson asserts error.
¶10 Olson first argues that the District Court’s determination
that the marijuana bong on the coffee table in the living room was
in Skillen’s plain view is erroneous. The plain view doctrine is a
recognized exception to the warrant requirement which “begins with
the premise that the police officer had a prior justification for
an intrusion, in the course of which he came inadvertently across a
5
piece of evidence incriminating the accused.” State v. Loh
(1996), 275 Mont. 460, 468-69, 914 P.2d 592, 597 (citing Coolidge
v. New Hampshire (1971), 403 U.S. 443, 465-66, 91 S.Ct. 2022, 2037-
38, 29 L.Ed.2d 564, 582-83). Thus, because the doctrine
presupposes the law enforcement officer was lawfully on the
premises at the time the evidence is observed, the doctrine
authorizes the seizure of--rather than the search for--evidence
without a warrant. To justify seizing evidence under the plain
view doctrine, a law enforcement officer must be lawfully located
in a place from which the evidence can be plainly seen, the
incriminating nature of the evidence must be immediately apparent
and the officer must have a lawful right of access to the object.
Loh, 275 Mont. at 473, 914 P.2d at 600.
¶11 At the close of the hearing on the motion to suppress, the
District Court made the oral finding of fact that Skillen “could
see from where he was standing in the kitchen doorway . . . enough
of the living room to see the bong on the coffee table.” The court
concluded, based on that finding, that the marijuana bong was
within Skillen’s plain view and could be seized as evidence without
the necessity of a warrant. Olson concedes Skillen’s presence in
her kitchen was lawful. Under Loh, the next question is whether
Skillen could plainly see the bong from his lawful location in the
kitchen. In that regard, Olson contends the bong was not in
Skillen’s plain view because it could not be observed readily from
his location in the kitchen without at least partially entering a
portion of her home where he was not lawfully entitled to be.
6
¶12 Skillen testified at the hearing that he was standing next to
the refrigerator by the door between the kitchen and living room at
the time he observed the bong. He further testified, however, that
the kitchen and living room are separated by a short hall
approximately one and one-half feet long and, in order to observe
the marijuana bong on the coffee table, he was required to lean in
through the door between the kitchen and living room. Indeed, his
testimony contains numerous statements that he had to lean around
the wall between the kitchen and living room in order to see the
bong. We conclude that, by leaning through the doorway, Skillen
entered a portion of the residence not included within the
boundaries of his lawful presence in the kitchen. Consequently,
the District Court’s finding that Skillen could see the bong from
his location in the kitchen is not supported by substantial
credible evidence and is, therefore, clearly erroneous. We further
conclude that, because the court’s finding that Skillen observed
the marijuana bong from a place where he was lawfully located is
clearly erroneous, its conclusion--based on that finding--that the
bong was in Skillen’s plain view from the kitchen is incorrect.
¶13 The State argues, however, that the District Court correctly
concluded the marijuana bong, as well as the other drugs and drug
paraphernalia later observed by Skillen, are admissible evidence.
At the close of the hearing on the motion to suppress, the District
Court stated that, even if the marijuana bong was not in Skillen’s
plain view from the kitchen, all of the evidence was in plain view
when Skillen made his initial search of the residence. The court
7
further determined that this search, although conducted without a
warrant, was justified as a “protective sweep” incident to a lawful
arrest, stating that “Officer Skillen is never going to make it to
retirement alive if he doesn’t check out the premises upon which an
arrest is being performed.” The court further stated that
I think that an arrest [is] a situation that is fraught
with danger. There could be others there in the house
that they don’t know about. Whether they hear them or
not doesn’t mean they are or are not there, but they’re
certainly justified in checking. Now, when they go
around checking, of course they’re not supposed to put on
blinders when they’re doing the arrest, and they’re not
supposed to put on blinders when they’re checking the
rest of the rooms for anybody else that might be there
that might pose a danger. And when they see contraband
in plain view, they’re not bound to forget about it or
not pay any attention to it. We have drugs and
paraphernalia in plain view . . . .
The State cites Chimel v. California (1969), 395 U.S. 752, 89 S.Ct.
2034, 23 L.Ed.2d 685, in support of its argument that Skillen’s
initial search of Olson’s home was legal.
¶14 When an arrest is made, it is reasonable for a law enforcement
officer to search the person arrested and the area within that
person’s immediate reach in order to locate any weapons the person
might use or secure evidence which may be concealed or destroyed.
Chimel, 395 U.S. at 763, 89 S.Ct. at 2040, 23 L.Ed.2d at 694; see
also § 46-5-102, MCA. Such a search generally must be limited to
the immediate locale of the arrest. “There is no comparable
justification, however, for routinely searching any room other than
that in which an arrest occurs . . . .” Chimel, 395 U.S. at 763,
89 S.Ct. at 2040, 23 L.Ed.2d at 694; see also Maryland v. Buie
(1990), 494 U.S. 325, 333, 110 S.Ct. 1093, 1097, 108 L.Ed.2d 276,
8
285. Here, Olson’s arrest occurred in her kitchen and it is clear
that Skillen’s initial search of Olson’s home in areas other than
the kitchen went beyond the boundaries of a search incident to a
lawful arrest as outlined in Chimel.
¶15 The United States Supreme Court has held, however, that an
arresting officer also may make a precautionary “protective sweep”
by looking in other spaces immediately adjoining the place of
arrest in order to ascertain that there are no other persons who
are dangerous and could launch an unexpected attack and that such a
search does not violate the arrestee’s right to be free from
unreasonable searches and seizures under the Fourth Amendment to
the United States Constitution. Buie, 494 U.S. at 333-34, 110
S.Ct. at 1098, 108 L.Ed.2d at 286. In order to justify a search as
a protective sweep, “there must be articulable facts which, taken
together with the rational inferences from those facts, would
warrant a reasonably prudent officer in believing that the area to
be swept harbors an individual posing a danger to those on the
arrest scene.” Buie, 494 U.S. at 333-34, 110 S.Ct. at 1098, 108
L.Ed.2d at 286.
¶16 The State argues that Skillen’s search was justified as a
protective sweep. In response, Olson contends the State failed to
present specific articulable facts supporting a determination by
Skillen that a protective sweep was necessary. Skillen testified
that both Olson and Aichele informed him no one else was in the
house at the time of the arrest. He also testified he did not hear
voices or observe any other indications that there might be someone
9
else in the residence; nor did he believe that either Olson or
Aichele presented a danger to the deputies. Indeed, Skillen did
not testify to a single articulable fact creating a reasonable
belief on his part that there was anyone else in the residence who
might pose a danger. We conclude that Skillen’s first search of
Olson’s home was not justified as a protective sweep as outlined in
Buie and, consequently, it violated Olson’s right to be free from
unreasonable searches and seizures pursuant to the Fourth Amendment
to the United States Constitution.
¶17 Olson also argued in the District Court that Skillen’s initial
search of her home exceeded the parameters of a search incident to
a lawful arrest pursuant to § 46-5-102, MCA, and violated her right
to be free from unreasonable searches and seizures and her right to
privacy as guaranteed by the Montana Constitution. See Art. II,
Secs. 10 and 11, Mont. Const. Section 46-5-102, MCA, provides
that, when a law enforcement officer effects a lawful arrest, it is
reasonable for the officer to search the arrestee and the area
within the arrestee’s immediate presence in order to protect the
officer from attack, prevent the arrestee from escaping, discover
and seize fruits of the crime, or discover and seize any people or
items which may have been used in committing--or constitute
evidence of--a crime. In order to render lawful a search incident
to arrest under § 46-5-102, MCA, the State must demonstrate that
specific and articulable exigent circumstances existed justifying
the search. State v. Hardaway, 2001 MT 252, ¶ 57, 307 Mont. 139, ¶
57, 36 P.3d 900, ¶ 57.
10
¶18 In response to Olson’s argument that Skillen’s first search
was not justifiable as incident to a lawful arrest, the State
“acknowledges that existing authority requires specific information
at least suggesting the possibility of danger to officers before
they may conduct a protective sweep” and tacitly concedes that
Skillen had no such specific information at the time he conducted
his search. Notwithstanding this lack of specific information, the
State contends that the search was legal because it was conducted
in a reasonable manner. The State cites no authority supporting
this proposition and, therefore, we refuse to address it further.
See Rule 23(a)(4), M.R.App.P. Furthermore, because we concluded
above that Skillen’s first search of Olson’s home violated her
rights under the Fourth Amendment to the United States
Constitution, it is not necessary to address whether that search
also violated her rights as guaranteed by the Montana Constitution.
¶19 Olson next contends that the District Court erred in denying
her motion to suppress the drugs and drug paraphernalia found
during the second search based on its conclusion that her written
consent to that search was voluntary. The District Court stated at
the close of the hearing that
it was explained to them that they didn’t have to sign
the consent. They signed the consent because, right or
wrong, they thought it didn’t make any difference at that
point. I think both of them testified, basically, in
that fashion, but they certainly didn’t make [sic] to
this Court that they were threatened or coerced; that
their consent wasn’t voluntary.
¶20 The knowing and voluntary consent by a citizen to a search is
a recognized exception to the warrant requirement. Rushton, 264
11
Mont. at 257, 870 P.2d at 1361. The prosecution carries the burden
of establishing that consent to a warrantless search was freely and
voluntarily given and uncontaminated by any express or implied
duress or coercion. Rushton, 264 Mont. at 257-58, 870 P.2d at
1361.
¶21 The State asserts that Olson’s consent to the search was
voluntary because she was read her Miranda rights prior to
consenting and informed she could refuse to consent, the consent
form she signed reiterated her right to refuse, and she was not
threatened or otherwise coerced by law enforcement to consent.
However, knowledge of the right to refuse to consent is only one
factor to be considered and is not determinative of the question of
whether consent was voluntary; rather, we must consider the
totality of the circumstances surrounding the giving of the
consent. Rushton, 264 Mont. at 258, 870 P.2d at 1361. In that
regard, Olson testified at the hearing on the motion to suppress
that she consented to the search of her home because Skillen had
already searched the home and found drugs and drug paraphernalia
and, consequently, she thought her consent was irrelevant. She
argues that these circumstances override the fact that she knew she
could refuse and her consent cannot be considered voluntarily and
freely given because it resulted from a prior illegal search. We
agree.
¶22 Consent to a search is not voluntary where it is given only
after law enforcement already has conducted an illegal search
because the consent flows directly from the unlawful intrusion.
12
State v. Romain, 1999 MT 161, ¶ 21, 295 Mont. 152, ¶ 21, 983 P.2d
322, ¶ 21; State v. Bullock (1995), 272 Mont. 361, 385, 901 P.2d
61, 76. Here, Olson consented to the search by Skillen and Evans
shortly after Skillen’s initial warrantless search of the residence
and the consent flowed directly therefrom. We concluded above that
Skillen’s search was unlawful. Consequently, we conclude that
Olson’s subsequent consent to search, a direct product of the
unlawful search, was not voluntarily and freely given and the
evidence obtained during the search must be suppressed. The
District Court’s conclusion to the contrary is incorrect.
¶23 Finally, Olson argues that the District Court erred in
refusing to suppress the taped statement she made after she was
taken to the detention facility as “fruit of the poisonous tree”
because it was obtained as the direct result of the unlawful
searches. Incriminating statements gathered as the result of an
unlawful search are inadmissible by virtue of the exclusionary
rule. State v. Bassett, 1999 MT 109, ¶ 58, 294 Mont. 327, ¶ 58,
982 P.2d 410, ¶ 58. Consequently, we conclude that the District
Court erred in not suppressing Olson’s statement which flowed from
the unlawful searches of her home.
¶24 In sum, we conclude that the drug and drug paraphernalia
evidence found in Olson’s home should have been suppressed as
having been obtained via illegal searches and an involuntary
written consent to search, and that her subsequent statement to law
enforcement should have been suppressed pursuant to the
exclusionary rule. Based on these conclusions, we hold that the
13
District Court erred in denying Olson’s motion to suppress
evidence.
¶25 Reversed and remanded for further proceedings consistent with
this opinion.
/S/ KARLA M. GRAY
We concur:
/S/ JIM REGNIER
/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
14