State v. Logan

No. 00-142

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 206

STATE OF MONTANA,

Plaintiff and Respondent,

v.

EVELYN LOGAN,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Susan P. Watters, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Mark S. Hilario (argued); Hilario Law Firm, Billings, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; John Paulson (argued),
Assistant Attorney General, Helena, Montana

Dennis Paxinos, Yellowstone County Attorney; Sheila Kolar,
Deputy County Attorney, Billings, Montana

For Amicus Curiae:

Ira Eakin (argued), Attorney at Law, Billings, Montana (for Montana
County Attorney’s Association)

Kristina Guest, Assistant Appellate Defender, Helena, Montana

Elizabeth Brenneman, Attorney at Law, Helena, Montana (for ACLU
of Montana)

Heard: April 12, 2002
Submitted: April 18, 2002
Decided: September 10, 2002
Filed:

__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.

¶1 The Thirteenth Judicial District Court, Yellowstone County,

denied Evelyn Logan's motion to suppress evidence seized from her

purse and from a car in which she was a passenger. Reserving her

right to appeal the suppression issue, Logan pled guilty to

misdemeanor possession of dangerous drugs and the court entered

judgment against her. Logan appeals. We reverse and remand.

¶2 Logan states the issue on appeal as whether police officers

violated her right to be free from unlawful search and seizure. We

address only the narrow and dispositive question of whether exigent

circumstances support the officers' warrantless search of her purse

and the car.
BACKGROUND

¶3 On the evening of November 8, 1998, Billings, Montana, police

officer Jason Sery made a traffic stop of a white Camaro for

failure to have the rear license plate illuminated--a misdemeanor

under §§ 61-9-204(3) and 61-9-511, MCA. Sery recognized the driver

of the Camaro as Dennis Kubas, an individual with whom he had had

previous dealings and who had a history of carrying weapons and of

violence with police officers.

¶4 Because of Kubas' history, Sery called for backup and waited

for a second officer to arrive before approaching the Camaro.

According to Sery, the slats on the rear window of the Camaro

prevented him from observing any movement within the car. When the

second officer arrived, Sery obtained identification from Kubas and

2
from passengers Richard Miller and Logan. Sery did not smell or

observe any illegal drugs or drug paraphernalia; nor did he observe

any behavior that led him to believe any of the vehicle's occupants

were under the influence of drugs.

¶5 Sery returned to his patrol car and ran a check for

outstanding warrants on all three occupants of the Camaro, learning

that all three had past drug arrests and that an "extreme officer

caution" alert was in effect for Kubas. Sery then specifically called for K-9 Officer Steve

Feuerstein and his drug dog, Igor, to respond to the scene. Sery testified he called for the K-

9 unit primarily for officer safety reasons--because there were three persons in the vehicle

and only two officers present. The District Court subsequently found this testimony

"unpersuasive."

¶6 When Feuerstein and Igor arrived, Sery asked all three

occupants to get out of the Camaro and, during a pat-down search,

the officers took a 3- to 4-inch hunting knife from Kubas. Sery

testified that, after the pat-down, he wrote Kubas a citation for

failing to have the rear license plate illuminated. At the same

time, Feuerstein walked Igor around the outside of the Camaro.

¶7 Igor "alerted" to the passenger side door of the car by

barking and scratching. Sery removed a purse from the back seat of

the car--where Logan had been seated--and searched it, finding a

"snort tube" and a bindle made of notebook paper. Igor was then

allowed to enter the car, where he alerted to the center console

between the front seats. There, Feuerstein found two more bindles

of notebook paper containing a white powdery substance which tested

3
positive for methamphetamine. Sery arrested Logan and the State of

Montana subsequently charged her with felony possession of

dangerous drugs.

¶8 Logan moved to suppress the evidence, arguing primarily that

Sery did not have a particularized suspicion of the presence of

drugs to support a canine sniff of the automobile. The State

opposed the motion, and the District Court held an evidentiary

hearing at which Sery and Feuerstein testified.

¶9 The District Court entered its Findings of Fact, Conclusions

of Law, Order and Memorandum concluding Sery had a particularized

suspicion supporting a stop of the Camaro for a traffic offense and

that, on that basis, he was entitled to ask the driver for his

driver's license, proof of insurance, and registration, and to ask

the identities of the other occupants of the vehicle. The court

further concluded an individual does not have an expectation of

privacy in the air surrounding an automobile nor in the odors

emanating therefrom, and that a canine sniff of an automobile is

not an offensive intrusion or a search under either the Fourth

Amendment of the United States Constitution or Article II, Sections

10 and 11 of the Montana Constitution. On those grounds, the

District Court denied the motion to suppress.
¶10 Logan filed a Motion to Reconsider matters she had raised

briefly in her original motion to suppress and to which the State

had responded: whether probable cause and exigent circumstances

existed to support the warrantless search of the Camaro under the

so-called automobile exception. On June 8, 1999, the District

4
Court entered its Amended Findings of Fact, Conclusions of Law,

Order and Memorandum. It concluded that a drug dog's "alert" to

the presence of drugs from outside a vehicle established the first

prong of the automobile exception to the warrant requirement:

probable cause to search the inside of the vehicle. It also

concluded the second prong--the existence of exigent circumstances

to support a warrantless search of the inside of the vehicle--had

been established. In sum, the court concluded that, "[u]nder the

automobile exception, the contents of a vehicle may be searched,

which includes [Logan's] purse." Shortly thereafter, Logan pled

guilty to a reduced charge of misdemeanor possession of dangerous

drugs, and the District Court entered judgment.
DISCUSSION

¶11 Do exigent circumstances support the officers' warrantless

search of Logan's purse and the car?

¶12 In reviewing a district court's denial of a motion to suppress

evidence, we determine whether the court's findings of fact are

clearly erroneous and whether its interpretation and application of

the law are correct. State v. Boyer, 2002 MT 33, ¶ 7, 308 Mont.

276, ¶ 7, 42 P.3d 771, ¶ 7 (citation omitted). Here, Logan

challenges--and our decision hinges upon--the District Court's

interpretation and application of the law.

¶13 Both the Fourth Amendment to the United States Constitution

and Article II, Section 11 of the Montana Constitution afford

individuals the right to be free from unreasonable searches and

seizures. A search and seizure by the state without a warrant is

5
presumed illegal and unreasonable. Katz v. United States (1967),

389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585. In

addition, Article II, Section 10 of the Montana Constitution

guarantees that the right of individual privacy shall not be

infringed without a showing of compelling state interest. As a

result, the category of warrantless searches which may be lawfully

conducted under the Montana Constitution is narrower than the

category of warrantless searches which may be conducted under the

Fourth Amendment. State v. Elison, 2000 MT 288, ¶ 46, 302 Mont.

228, ¶ 46, 14 P.3d 456, ¶ 46.
¶14 In Elison, ¶ 54, we held there is no "automobile exception" to

the search warrant requirement under the Montana Constitution.

Under the right to privacy guaranteed by Montana's Constitution,

the mobility of an automobile--without more--is not sufficient to

justify a warrantless search. Elison, ¶ 57. In addition to

particularized suspicion to support a stop of the vehicle, a

warrantless search of an automobile requires probable cause and a

generally applicable exception to the warrant requirement such as

plain view search, a search incident to arrest, or exigent

circumstances. Elison, ¶ 54.

¶15 We did not decide Elison until after the District Court's

denial of Logan's motion to suppress in this case. However, Elison

applies to all defendants whose cases were pending on direct appeal

or not yet final when that decision was issued. See State v. Waters,

1999 MT 229, ¶ 21, 296 Mont. 101, ¶ 21, 987 P.2d 1142, ¶ 21 (citations omitted).

6
Because Logan's case was not yet final when Elison was issued, she is entitled to

application of that decision. Consequently, we hold the District Court's reliance on the

"automobile exception" is erroneous. That error is harmless, however, because the District

Court also analyzed probable cause and exigent circumstances, and that two-pronged analysis

remains applicable. See Elison, ¶ 54.

¶16 In this case, we begin with the last of the various issues

raised: whether exigent circumstances support the officers' search

of Logan's purse and the car. The parties agree this is the only

generally applicable exception to the warrant requirement at issue

here.

¶17 Exigent circumstances are those that would cause a reasonable

person to believe prompt action is necessary to prevent physical

harm to police officers or other persons, the destruction of

relevant evidence, the escape of the suspect, or some other

consequence improperly frustrating legitimate law enforcement

efforts. Elison, ¶ 56 (citation omitted). "The State bears the

heavy burden of showing the existence of exigent circumstances and

can meet that burden only by demonstrating specific and articulable

facts." Elison, ¶ 56.

¶18 The District Court concluded exigent circumstances existed in

that none of the occupants of the Camaro were under arrest, Logan's

purse was still inside the vehicle, there would have been a delay

between obtaining a warrant and searching the vehicle, and it would

have been impracticable to allow Logan to leave the scene without

allowing her to take her purse. The court postulated that if the

7
officers allowed Logan to re-enter the Camaro to get her purse, she

would have had an opportunity to destroy evidence in her purse and

in the vehicle's center console. According to the District Court,

"[t]his possible destruction of evidence provided the exigent

circumstances."

¶19 The testimony of Sery, the arresting officer, does not support

the District Court's determination that exigent circumstances

existed. After a series of related questions and answers, Logan's

counsel asked Sery: "So there was nothing that you know of that

prevented you from obtaining a search warrant?" Sery responded:

"Not that I know of."
¶20 Sery's response is a far cry from the "specific and

articulable facts" required to establish the existence of exigent

circumstances. See Elison, ¶ 56. Indeed, it is tantamount to a

concession that exigent circumstances were not present. We hold

the State failed to meet its heavy burden of establishing that

exigent circumstances justified the officers' failure to obtain a

warrant before removing Logan's purse from the car and searching

both it and the interior of the car.

¶21 Our decision herein is based solely on the absence of exigent

circumstances. We need not--and expressly do not--address the

other grounds on which this case was briefed and argued, including

whether particularized suspicion existed to call for Igor, whether

Igor's sniffs of the Camaro constituted a search and whether

probable cause existed for the officers to search the Camaro and

the purse. Our rationale is that, even if the State's arguments

8
prevailed on those issues, the officers' warrantless search of the

car and Logan's purse would still fail to satisfy the warrant

requirement because they were not justified by exigent

circumstances.

¶22 We hold the District Court erred in concluding exigent

circumstances justified the officers' warrantless search of the

purse and the car. As a result, we further hold the District Court

erred in denying Logan's motion to suppress.

¶23 Reversed and remanded for further proceedings consistent with

this opinion.

/S/ KARLA M. GRAY

We concur:

/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE

9