State v. Galpin

No. 01-445

IN THE SUPREME COURT OF THE STATE OF MONTANA

2003 MT 324

STATE OF MONTANA,

Plaintiff and Respondent,

v.

FARREN GENE GALPIN,

Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DC-00-50,
Honorable Jeffrey H. Langton, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

William F. Hooks, Attorney at Law, Helena, Montana

For Respondent:

Honorable Mike McGrath, Attorney General; Mark Mattioli,
Assistant Attorney General, Helena, Montana

George H. Corn, County Attorney; T. Geoffrey Mahar, Deputy
County Attorney, Hamilton, Montana

Submitted on Briefs: July 2, 2002

Decided: November 25, 2003

Filed:

__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1 Farren Gene Galpin (Galpin) was charged in the Twenty-First Judicial District Court,

Ravalli County, with possession of methamphetamine (two counts), possession of precursors

(two counts), criminal endangerment (one count), and manufacture of dangerous drugs (two

counts). Galpin moved to dismiss both possession charges for improper venue, arguing that

Sanders County was the proper venue for the possession of methamphetamine charges and

Missoula County the proper venue for one of the counts of possession of precursors. Galpin

also moved to suppress evidence obtained from a search performed at the time of his arrest,

arguing that the search exceeded the scope of the arrest warrant and any recognized

exceptions. The District Court denied both motions after hearing, and Galpin proceeded to

trial by jury. He was subsequently convicted of all charges except for one count of

possession of methamphetamine, that charge having been dismissed by the court. Galpin

appeals the District Court’s denial of his motions. We affirm in part and reverse in part.

¶2 Galpin raises the following issues on appeal:

¶3 Did the District Court err in denying Galpin’s motion to dismiss for improper venue?

¶4 Was sufficient evidence presented at trial from which the jury could determine that

the offenses of criminal endangerment and production or manufacture of dangerous drugs

were committed in Ravalli County?

¶5 Did the District Court err in denying Galpin’s motion to suppress?

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 FACTUAL AND PROCEDURAL BACKGROUND

¶6 In the early part of March 2000, the Division of Criminal Investigation of the

Montana Department of Justice (DCI) was contacted by a State of Washington detective

regarding an outstanding warrant for the arrest of Farren G. Galpin. According to the

detective, Galpin’s arrest was sought in Washington for failing to appear in a case in which

he was charged with criminal production or manufacture of dangerous drugs. The detective

had received reliable information that Galpin was hiding in Montana and believed to be

manufacturing methamphetamine. Accordingly, DCI commenced an investigation to

determine Galpin’s whereabouts.

¶7 On March 2, 2000, Mike Heaney (Heaney), a DCI agent, interviewed Kimberly Vert

(Vert) at her mobile home in Stevensville, Montana, Ravalli County. Vert was Galpin’s

former girlfriend and the two had lived together in Vert’s mobile home in Missoula County

for several months before moving the home to Stevensville in August 1999. Once in

Stevensville, Galpin resided with Vert on an intermittent basis. Although the couple’s

relationship had “deteriorated” by that time to friendship, they maintained frequent phone

contact and Galpin continued to store many of his personal belongings at Vert’s residence.

¶8 During Heaney’s visit with Vert on March 2, 2000, Vert consented to a search of her

home. While searching the back bedroom, DCI agents discovered a methamphetamine lab

which Vert indicated Galpin used on several occasions to manufacture methamphetamine.

Vert also told Heaney about two storage units–one in Missoula County and one in Ravalli

County–in which Galpin allegedly stored methamphetamine lab equipment. Vert informed

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Heaney that Galpin might be staying at a residence occupied by Lance Grazier (Grazier) and

Althea Liberty (Liberty) located just outside Dixon, Montana, in Sanders County. She

agreed to wear a body wire, an electronic transmitting device, into the residence to determine

whether Galpin was present.

¶9 At approximately 9:30 p.m. that evening, equipped with the body wire provided by

DCI, Vert entered the small Dixon residence. Grazier, Liberty, and Galpin were present.

DCI agents listened from a vehicle outside as Vert engaged Galpin in a brief discussion

concerning the storage unit in Ravalli County. When Vert spoke to Galpin, she used his first

name and Galpin responded. Vert then exited the residence and confirmed that Galpin was

inside.

¶10 In the early morning hours of March 3, 2000, Heaney sought and received a warrant

authorizing DCI to search for and arrest Galpin at the Dixon residence. In his application,

Heaney noted that Galpin’s presence at the residence had been confirmed by Vert, who had

provided information the previous day leading to the discovery of a methamphetamine lab.

¶11 At approximately 4:30 a.m. on March 3, 2000, Ken Poteet (Poteet), the regional agent

in charge of the Missoula, Montana, region for DCI, along with a team of specially trained

agents, executed the search warrant at the Dixon residence. Grazier, for whom an arrest

warrant from Sanders County had been issued on poaching charges, answered the door, and

was handcuffed and placed on the small living room floor. Agents discovered Galpin

sleeping on the living room couch, wearing only his pants, with a button-down shirt draped

over the couch. Within seconds of their entry, agents forced Galpin to his knees on the living

4
room floor and handcuffed him. They then placed his shirt over his shoulders and performed

a pat-down search of Galpin’s person, discovering two plastic baggies of methamphetamine,

which they seized.

¶12 Galpin remained on the living room floor while agents secured the rest of the

premises, which were also occupied by Liberty. In the process of securing the residence,

Agent Poteet discovered a duffel bag and coat which Galpin identified as belonging to him.

Although testimony presented at the suppression hearing conflicted as to the precise location

of Galpin’s coat and duffel bag, the District Court determined these possessions were located

on a hutch approximately four to six feet from the couch where Galpin slept, with his coat

either lying on top of the duffel bag or hanging just above it.

¶13 In the process of handcuffing Galpin, agents had placed him near the end of the couch

closest to the hutch, putting Galpin in even closer proximity to his belongings. Knowing

chemicals used to manufacture methamphetamine to be easily mobile, highly toxic, and even

explosive when mishandled, Agent Poteet performed a precautionary search of the duffel

bag. He then searched Galpin’s coat, discovering two sets of keys which he seized as

possible evidence of the storage facilities in Missoula and Ravalli Counties. Galpin and his

belongings were subsequently transported to the detention center where officers performed

a search of his duffel bag pursuant to a separately issued search warrant.

¶14 Later that same morning, also pursuant to separately issued search warrants, DCI

agents searched the storage facilities in Missoula and Ravalli Counties. As Poteet

anticipated, the set of keys seized earlier that morning contained one key fitting padlocks to

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both storage units. Inside the Missoula County unit, agents discovered several mason jars

filled with a suspicious looking liquid. In one jar, the liquid had separated into two layers,

with a clear liquid on top. On another, the word “waste” was written. An analysis of

samples obtained from the jars revealed traces of methamphetamine, ephedrine,

pseudoephedrine, red phosphorous, and red iodine.

¶15 On April 17, 2000, the State of Montana filed an Information in the Twenty-First

Judicial District Court, Ravalli County, charging Galpin with one count of criminal

production or manufacture of methamphetamine (in Ravalli County), two counts of criminal

possession of precursors to methamphetamine (in Ravalli and Missoula Counties), and three

counts of criminal endangerment (in Ravalli County). The State also charged Galpin with

one count of criminal possession of methamphetamine in Ravalli County. However, at trial,

the State conceded that charging Galpin with this offense in Ravalli County was due to a

typographical error and that the Information should have charged the offense as occurring

in Sanders County. In response to the State’s oversight, the District Court amended the

Information as to form, pursuant to § 46-11-205(3), MCA (1999), so that it reflected Sanders

County as the place where the offense allegedly occurred.

¶16 From the outset, Galpin had proceeded upon the assumption that the State’s

Information, charging him with possession of methamphetamine in Ravalli County, was

simply an oversight and should have identified the offense as occurring in Sanders County.

Shortly after the State filed its Information, Galpin moved to dismiss the charges of

possession of methamphetamine in Sanders County (inadvertently alleged in the Information

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as Ravalli County) and possession of precursors in Missoula County for improper venue,

arguing that the State failed to prove these offenses, or any element thereof, occurred in

Ravalli County.

¶17 At the same time, Galpin moved to suppress evidence obtained from the search and

seizure of his coat and duffel bag. Although conceding the agents were authorized to search

and seize the methamphetamine found on his person, Galpin argued the warrantless search

of his coat and duffel bag was unlawful, thereby violating his constitutional rights to be free

from unlawful searches and seizures.

¶18 The District Court denied both motions after hearing, concluding that Ravalli County

was the proper venue for all charges and that the search of Galpin’s coat and duffel bag was

a lawful search incident to arrest. In the alternative, the court found the search of Galpin’s

coat and duffel bag was lawful by virtue of the agent’s having probable cause to conduct the

search, and by the existence of exigent circumstances which made it impracticable to obtain

a search warrant.

¶19 On October 17, 2000, the State filed an Amended Information, adding to the charges

one count of criminal production or manufacture of methamphetamine in Missoula County,

one count of criminal possession of methamphetamine in Missoula County, and dismissing

two counts of criminal endangerment. At trial, Galpin orally renewed his motion to dismiss

for improper venue, which the court denied. However, upon Galpin’s motion for a directed

verdict, the court dismissed the charge of criminal possession of methamphetamine in

Missoula County, finding insufficient evidence to support the charge. Galpin was

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subsequently convicted by jury on all remaining counts. He now appeals the District Court’s

denial of his motions to dismiss for improper venue and to suppress, and additionally argues

the State failed to satisfy its burden of proof at trial that venue for the criminal endangerment

charge and production of dangerous drugs offense was proper in Ravalli County.

DISCUSSION

¶20 Did the District Court err in denying Galpin’s motion to dismiss for improper

venue?

¶21 Galpin argues the District Court erred in denying his pre-trial motion to dismiss the

charges of criminal possession of methamphetamine (Sanders County) and possession of

precursors (Missoula County), asserting there was no evidence before the District Court

proving the alleged offenses were committed in Ravalli County. The State responds that

venue in Ravalli County was proper pursuant to § 46-3-112, MCA, which allows a defendant

to be charged in any county in which any of the criminal acts occurred when several acts

form the basis for a single offense.

¶22 The grant or denial of a motion to dismiss for improper venue in a criminal case is

a question of law which we review de novo. State v. Diesen, 2000 MT 1, ¶ 11, 297 Mont.

459, ¶ 11, 992 P.2d 1287, ¶ 11. Our standard of review of a conclusion of law being

plenary, this Court reviews a district court’s denial of a motion to dismiss to determine

whether the court’s conclusion is correct. Diesen, ¶ 11; State v. Cooney (1995), 271 Mont.

42, 45, 894 P.2d 303, 305.

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¶23 Article II, Section 24, of the Montana Constitution provides that “in all criminal

prosecutions, the accused shall have the right to . . . a speedy public trial by an impartial jury

of the county or district in which the offense is alleged to have been committed . . . .”

(Emphasis added.) In Montana, it is firmly established that venue, although not an element

of the crime, is a “jurisdictional fact” that must be established at trial beyond a reasonable

doubt. State v. Price, 2002 MT 229, ¶ 11, 311 Mont. 439, ¶ 11, 57 P.3d 42, ¶ 11; State v.

Johnson (1993), 257 Mont. 157, 161, 848 P.2d 496, 498. However, this Court has

recognized that direct evidence that an offense was committed in a particular county is not

required to prove venue. State v. Keeland (1909), 39 Mont. 506, 513, 104 P. 513, 516

(holding that circumstantial evidence may be sufficient to prove venue); Johnson, 257 Mont.

at 161, 848 P.2d at 498 (holding that testimony from three witnesses regarding certain

portion of a highway was sufficient to establish venue in Dawson County); and State v.

Jackson (1979), 180 Mont. 195, 200, 589 P.2d 1009, 1013 (concluding that testimony that

an act occurred in Billings, Montana, was sufficient to establish venue in Yellowstone

County, Montana).

¶24 Here, the initial Information alleged one count of criminal possession of precursors

in Missoula County and one count of criminal possession of methamphetamine in Sanders

County. For purposes of a pretrial motion to dismiss for improper venue, generally it will

suffice if the charging documents, which are supported by probable cause, assert that the

court has jurisdiction of the subject matter and that the offense was committed within the

territory encompassed by the court. See State v. Andrews (Ohio App. 10th Dist. 2002), 772

9
N.E.2d 167, 169. However, in this case, the Information does not allege these offenses were

committed in Ravalli County, where the Information was filed, but in Missoula and Sanders

Counties.

¶25 As pointed out by the State, charges in criminal prosecutions generally must be filed

in the county where the offense was allegedly committed. Section 46-3-110(1), MCA.

However, Montana law makes provision for those situations where criminal offenses occur

in multiple counties. Section 46-3-112(1), MCA, provides:

Except as provided in 46-3-110(2), if two or more acts are requisite to the
commission of an offense or if two or more acts are committed in furtherance
of a common scheme, the charge may be filed in any county in which any of
the acts or offenses occurred.

Thus, venue is proper in any county in which the evidence reveals a requisite act of the

offense was committed, or where an offense in furtherance of a common scheme of offenses

occurred.

¶26 Section 45-9-107(1), MCA, provides that “[a] person commits the offense of criminal

possession of precursors to dangerous drugs if the person possesses any material, compound,

mixture, or preparation that contains any combination of . . . [materials identified in § 45-9-

107(1), MCA, including ephedrine, pseudoephedrine, anhydrous ammonia, or red

phosphorus] with intent to manufacture dangerous drugs.” As set forth in the Compiler’s

Comments to § 45-9-107, MCA, “[c]onviction under this section requires proof of (1)

possession, as that term is defined in 45-2-101 of (2) any of the named combinations of

chemicals, as well as (3) intent to manufacture.” For purposes of establishing venue in

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Ravalli County pursuant to § 46-3-112(1), MCA, the State must show that an act requisite

to any element of this offense occurred in Ravalli County.

¶27 In the county attorney’s affidavit supporting the State’s motion for leave to file an

Information, the State alleged that prior to Galpin’s arrest, Kimberly Vert, Galpin’s former

girlfriend, led DCI agents to a methamphetamine lab in her Ravalli County residence.

According to Vert, the lab belonged to Galpin, who had used it to manufacture

methamphetamine in her home while her children were present. Vert also advised officers

that Galpin maintained storage units in Missoula and Ravalli Counties, allegedly housing

clandestine methamphetamine labs. With Vert’s assistance, DCI located and obtained a

search warrant for Galpin at the Sanders County residence of Lance Grazier and Althea

Liberty near Dixon, Montana. Upon arresting Galpin, agents discovered two plastic baggies

of methamphetamine in Galpin’s clothing and a set of keys in his jacket, later found to fit

the padlocks to the storage facilities in Missoula and Ravalli Counties. When agents

searched the storage units pursuant to separately issued search warrants, they discovered

evidence of methamphetamine precursors, including Red Devil Lye, red crystals, toluene,

lacquer thinner, and pseudoephedrine.

¶28 At the September 5, 2000 hearing, Agent Poteet additionally testified that, prior to

Galpin’s arrest, DCI had received information from Washington authorities that Galpin’s

arrest was sought in the State of Washington for failing to appear in a case in which he was

charged with criminal production of dangerous drugs. According to Agent Poteet, Galpin

was believed to be hiding in Montana and was possibly manufacturing methamphetamine

11
in several counties throughout the western region of the state. Agent Poteet explained that,

with Kimberly Vert’s assistance, DCI located Galpin in Sanders County and learned that he

maintained storage facilities in Missoula and Ravalli Counties. Upon arresting Galpin,

Agent Poteet discovered two plastic baggies of methamphetamine and a set of keys later

found to fit the padlocks to both storage facilities.

¶29 Section 45-2-101(58), MCA, states, “possession is the knowing control of anything

for a sufficient time to be able to terminate control.” In State v. Meader (1979), 184 Mont.

32, 43, 601 P.2d 386, 392, we held that possession of contraband may be imputed when it

is found in a place which is immediately and exclusively accessible to the accused and

subject to his dominion and control. In State v. Caekaert, 1999 MT 147, ¶ 10, 295 Mont.

42, ¶ 10, 983 P.2d 332, ¶ 10, we cited Meader, noting that “[c]onstructive possession occurs

when the accused maintains control or a right to control the contraband . . . .” (Citation

omitted.) Furthermore, “the possession of keys to a locked area is probative of constructive

possession of items within that area.” Caekaert, ¶ 12.

¶30 Here, Galpin’s possession of the keys to the storage facilities in both Missoula and

Ravalli Counties is probative of his exclusive possession of the contents contained therein.

Although no direct testimony was presented at the hearing indicating that the possession of

precursors offense was committed in Ravalli County, Agent Poteet’s testimony and the

affidavit filed in support of the State’s Information established that Galpin traveled in and

out of Ravalli County, remaining in possession of the storage facilities’ contents as he did

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so. Furthermore, this Court has previously held that direct testimony is not required to

establish venue. Jackson, 180 Mont. at 200, 589 P.2d at 1013. In Jackson, we noted that:

No positive testimony that the violation occurred at a specific place is
required. It is sufficient if it can be concluded from the evidence as a whole
that the act was committed in the county where the indictment is found.
Circumstantial evidence may be and often is stronger and more convincing
than direct evidence. . . . If, from the facts and evidence, the only rational
conclusion which can be drawn is that the crime was committed in the state
and county alleged, the proof is sufficient.

Jackson, 180 Mont. at 200, 589 P.2d at 1013 (citing State v. Campbell (1972), 160 Mont.

111, 118, 500 P.2d 801). The allegations contained in the April 17, 2000 Information and

the testimony presented at the September 5, 2000 hearing was sufficient to establish Ravalli

County as a proper venue for prosecution of the possession of precursors offense. Thus, the

motion to dismiss was properly denied.

¶31 Galpin next takes issue with the District Court’s denial of his motion to dismiss the

possession of methamphetamine charge (Sanders County) for improper venue. As set forth

at § 45-9-102(1), MCA, “[a] person commits the offense of criminal possession of dangerous

drugs if he possesses any dangerous drug, as defined in 50-32-101.” As defined,

methamphetamine is a dangerous drug. See §§ 50-32-101(6) and 50-32-222, MCA.

¶32 At the time of Galpin’s arrest on March 3, 2000, DCI agents discovered two plastic

baggies of methamphetamine on Galpin’s person. While Galpin concedes the agents’ search

was lawful, he argues that the proper venue for the charge was in Sanders, not Ravalli,

County. We agree.

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¶33 Although § 46-3-112, MCA, allows an accused to be tried in any county in which any

element of the crime occurred, it still requires that some act material and essential to the

crime, and requisite to its consummation occur in each county before the provisions of the

statute become applicable. State v. Preite (1977), 172 Mont. 318, 324, 564 P.2d 598, 601.

Here, Galpin correctly notes that the crime of possession of methamphetamine has but one

requisite act–possession of the drug itself. Although it defies logic that one can be engaged

in the production of methamphetamine and not also be in possession, neither the State’s

Information nor the testimony presented at hearing established that Galpin actually possessed

manufactured methamphetamine anywhere but Sanders County. Furthermore, at trial, the

State conceded it mistakenly charged Galpin with this offense in Ravalli County.

Accordingly, Ravalli County was not a proper venue for prosecution of the possession of

dangerous drugs charge. We therefore reverse the District Court’s denial of the motion to

dismiss this charge, and, accordingly, Galpin’s conviction of that offense.

¶34 Was sufficient evidence presented at trial from which the jury could determine

that the offenses of production or manufacture of dangerous drugs and criminal

endangerment were committed in Ravalli County?

¶35 Viewing the evidence in a light most favorable to the prevailing party in district court,

we review the sufficiency of the evidence to determine whether any rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt. State v.

Duffy, 2000 MT 186, ¶ 50, 300 Mont. 381, ¶ 50, 6 P.3d 453, ¶ 50.

¶36 Pursuant to § 45-9-110(1), MCA, “[a] person commits the offense of criminal

production or manufacture of dangerous drugs if the person knowingly or purposely

14
produces, manufactures, prepares, cultivates, compounds, or processes a dangerous drug, as

defined in 50-32-101.” Thus, the components of this offense include (1) knowingly or

purposely, (2) manufacturing, preparing, cultivating, compounding, or processing, (3) a

dangerous drug. Because the offense consists of more than one requisite act, we examine

the record to determine whether a rational trier of fact could have reasonably concluded that

any of the acts requisite to this offense occurred in Ravalli County.

¶37 Prior to commencing its investigation in March 2000, DCI received information from

Washington authorities that Galpin was a transient methamphetamine manufacturer whose

arrest was sought in the State of Washington for failing to appear in a case in which he was

charged with manufacturing dangerous drugs. When Agent Heaney interviewed Vert at her

Ravalli County residence on March 2, 2000, she confirmed that Galpin was engaged in an

ongoing operation of manufacturing methamphetamine. At trial, Vert testified to several

instances in which she witnessed Galpin producing the drug, both at her Missoula and

Ravalli County residences, as well as in motel rooms throughout Missoula County. Vert

additionally testified that Galpin stored recipes for making methamphetamine at his storage

unit in Ravalli County and often transported equipment needed to manufacture

methamphetamine, such as mason jars and barrels, through Ravalli County. During their

search of the storage facilities in Missoula and Ravalli Counties, agents indeed uncovered

recipes for manufacturing methamphetamine, mason jars containing mysterious liquids,

various receipts for products containing ephedrine, and empty boxes of Sudafed.

¶38 The jury also heard testimony from Vert’s daughters, S.C. and K.C., who at the time

of trial were eleven and twelve years old respectively. Both girls testified that Galpin lived

15
with their mother at the residences in Missoula and Ravalli Counties and recalled a strange

turpentine-like odor that seemed to come from the back bedroom when Galpin was present.

S.C. additionally recalled seeing cans of toluene in the back of Galpin’s vehicle when Galpin

was present at the Ravalli County residence. According to the State’s forensic scientist,

Annalivia Harris, toluene is an organic solvent that can be used to extract or purify

methamphetamine from the reaction mixture.

¶39 In Harris’s expert opinion, methamphetamine had been manufactured at both the

Missoula County and Ravalli County storage facilities. An analysis of the samples obtained

from the storage facilities revealed substances consistent with methamphetamine, as well as

several precursors to methamphetamine, including ephedrine and pseudoephedrine. In one

sample, Harris identified red phosphorus and red iodine, significant when found together

because it suggests that methamphetamine has been produced.

¶40 From this evidence, we conclude Galpin was engaged in an ongoing operation of

manufacturing methamphetamine throughout Missoula and Ravalli Counties. At trial, the

State presented sufficient evidence that Galpin knowingly or purposely prepared, processed,

or manufactured the drug as he traveled between Missoula and Ravalli Counties. It is

irrelevant that the final consummation of the offense may have ultimately occurred in

another county. See § 46-3-112, MCA, Commn. Cmt. Accordingly, a rational trier of fact

could have found that at least one of the requisite elements of § 45-9-110, MCA, occurred

in Ravalli County, thus making it a proper venue in Galpin’s prosecution pursuant to § 46-3-

112(1), MCA.

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¶41 Further, as argued by the State, the record demonstrates that Galpin’s activities in

Missoula and Ravalli Counties were part of a common scheme to manufacture

methamphetamine. “Common scheme” is defined in § 45-2-101(7), MCA, as “a series of

acts or omissions motivated by a purpose to accomplish a single criminal objective or by a

common purpose or plan that results in the repeated commission of the same offense . . . .”

(Emphasis added.) Here, the evidence presented at trial showed that many of Galpin’s

activities were motivated by a common objective to maintain an ongoing methamphetamine

manufacturing operation in which he repeatedly committed the same offense.

¶42 Key to the success of Galpin’s operation was his use of individuals like Kimberly

Vert, who provided Galpin a place to live, a location to manufacture the drug, and assistance

in obtaining the requisite precursors. Vert and another woman were responsible for the

initial rental of the storage facilities in Missoula and Ravalli Counties and dutifully

purchased the chemicals necessary to make methamphetamine when instructed to do so by

Galpin. In addition, Vert frequently allowed Galpin to manufacture methamphetamine at

her mobile home residence, both in Missoula and Ravalli Counties, and assisted him in

washing and transporting the mason jars and barrels used in manufacturing the drug.

¶43 The evidence produced at trial additionally indicated that Galpin took great care in

maintaining anonymity. According to Vert, Galpin traveled in vehicles registered to other

individuals, always paid for things in cash, and used his twin brother’s driver’s license for

identification purposes. In support of her testimony, the State produced evidence of bills

of sales to vehicles identified as belonging to Galpin, made out in the names of other

individuals, as well as an expired driver’s license issued to Darren Galpin, Galpin’s twin

17
brother, which was discovered in Galpin’s duffel bag following his arrest and transportation

to the detention center.

¶44 Further, Galpin concealed his whereabouts by frequently moving between counties.

When not with Vert in Ravalli County or with his girlfriend in Missoula County, he stayed

at the residence of Lance Grazier and Althea Liberty in Sanders County. Evidence produced

at trial showed that as Galpin traveled between Missoula and Ravalli Counties, he continued

to manufacture methamphetamine at different locations within these counties. Just as agents

discovered substances consistent with the production of methamphetamine at the Missoula

County storage facility, they also discovered evidence of methamphetamine production at

the Ravalli County facility, including a tea strainer bearing a white residue, and a red powder

consistent with red iodine. In the expert opinion of Annalivia Harris, methamphetamine had

been manufactured at both storage facilities.

¶45 We conclude, from this evidence, that Galpin was “motivated by a common purpose

or plan,” which resulted “in the repeated commission of the same offense.” Galpin’s

activities, from possessing precursors to preparing the drug, were performed in furtherance

of a common objective to manufacture methamphetamine. The resulting commission of

offenses in Missoula and Ravalli Counties are therefore interrelated and sequential, both

requiring overlapping proof of criminal acts and mental state. Because Galpin committed

one or more acts in Ravalli County in furtherance of this common scheme, venue was proper

in Ravalli County.

¶46 Finally, Galpin takes issue with the sufficiency of evidence presented in support of

venue for the criminal endangerment charge in Ravalli County, arguing that the State failed

18
to satisfy its burden of proof that the alleged criminal endangerment occurred in Ravalli

County. According to Galpin, the evidence on the record is insufficient to determine

whether the offense occurred in Missoula County, prior to Vert’s move to Stevensville, or

in Ravalli County, following her move.

¶47 At trial, Vert testified that Galpin manufactured methamphetamine at her Ravalli

County residence in the presence of her children on at least three separate occasions. In one

instance, Vert returned home with her children to discover Galpin in the process of

manufacturing the drug. On several other occasions, Vert testified that Galpin manufactured

methamphetamine while the children slept at the Ravalli County residence.

¶48 Both S.C. and K.C. recalled several instances in which they smelled a strange

turpentine-like odor emanating from the back bedroom when Galpin was present. On one

such occasion, the odor was so powerful that it made K.C. feel dizzy and gave S.C. a

headache. S.C. additionally testified to the collection of mason jars located on Galpin’s side

of the back bedroom and recalled Galpin stapling matchbooks together to form a long string.

According to Vert, Galpin frequently obtained the red phosphorous necessary to produce

methamphetamine by removing the strikers from matches.

¶49 Viewing this evidence in a light most favorable to the prosecution, a rational trier of

fact could have found, and did find here, the requisite elements of criminal endangerment

beyond a reasonable doubt. Because venue is proper in the county in which the offense

occurred, Ravalli County was a proper venue for prosecution of the criminal endangerment

charge.

¶50 Did the District Court err in denying Galpin’s motion to suppress?

19
¶51 Galpin charges that the search of his coat and duffel bag on March 3, 2000, leading

to the discovery of a key fitting the padlocks to both storage facilities, exceeded the scope

of a search incident to a lawful arrest, thereby violating his right to be free from

unreasonable searches and seizures, guaranteed under the Fourth Amendment of the United

States Constitution and Article II, Sections 10 and 11, of the Montana Constitution.

Accordingly, he maintains the District Court erred in denying his motion to suppress.

¶52 We review a district court’s denial of a motion to suppress to determine whether the

court’s findings are clearly erroneous, and whether those findings were correctly applied as

a matter of law. State v. Elison, 2000 MT 288, ¶ 12, 302 Mont. 228, ¶ 12, 14 P.3d 456, ¶

12.

¶53 Here, the District Court found that the coat and duffel bag were within Galpin’s

immediate presence, or “grab area,” and that a potential existed for Galpin, although

handcuffed, to reach his coat and remove a weapon or eliminate evidence. The court

therefore concluded the search was justified as a warrantless search incident to a lawful

arrest. We agree with the District Court.

¶54 Under Montana law, warrantless searches are per se unreasonable. State v.

Hardaway, 2001 MT 252, ¶ 36, 307 Mont. 139, ¶ 36, 36 P.3d 900, ¶ 36. However, when

a lawful arrest is made, it is permissible for law enforcement to reasonably search the person

arrested and the area immediately within his reach in order to locate any weapons the person

might use or any evidence that might otherwise be destroyed. State v. Olson, 2002 MT 211,

¶ 17, 311 Mont. 270, ¶ 17, 55 P.3d 935, ¶ 17; see also Chimel v. California (1969), 395 U.S.

752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685, 694; § 46-5-102, MCA. Such a search

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generally must be limited to the immediate locale of the arrest. 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, 285. In Montana, the scope of a lawful search incident

to arrest is codified at § 46-5-102, MCA, providing 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 (1) protect the officer from attack, (2)

prevent the arrestee from escaping, (3) discover and seize fruits of the crime, or (4) discover

and seize any people or items which may have been used in committing–or constitute

evidence of–a crime. Thus, the scope of a warrantless search incident to a lawful arrest

under § 46-5-102, MCA, must be commensurate with the underlying purposes of preventing

the arrestee from using any weapons he or she may have, escaping, or destroying any

incriminating evidence in his or her possession. Hardaway, ¶ 57. Because subsections (1)

through (3) of § 46-5-102, MCA, inherently anticipate exigent circumstances, such as police

protection, escape, or imminent destruction of evidence, a separate showing of exigency is

unnecessary. Hardaway, ¶ 57. However, to the extent a warrantless search incident to a

lawful arrest is performed under § 46-5-102(4), MCA, the State must demonstrate specific

and articulable exigent circumstances to justify and render lawful a search incident to arrest.

Hardaway, ¶ 57.

¶55 Here, it is uncontroverted Galpin was lawfully arrested. According to the testimony

presented by the State at the September 5, 2000 suppression hearing, Galpin’s coat and duffel

bag were located approximately four to six feet from the couch where Galpin slept. In the

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small confines of the living room of the Dixon residence, Galpin was handcuffed and placed

on his knees near the end of the couch closest to the hutch, putting him in even closer

proximity to his coat and duffel bag. Despite the handcuffs, the District Court found that “a

man leaning his body and reaching, even with his hands in cuffs, could potentially reach

articles within that range.” In the darkness of the early morning hours of March 3, 2000, it

would have been readily possible for Galpin to access a weapon hidden among his

possessions or discreetly eliminate evidence. Thus, we conclude the search of Galpin’s coat

and duffel bag was permissible pursuant to § 46-5-102(1) and (3), MCA, both as a means of

protecting agents from attack, as well as discovering and seizing fruits of the crime.

¶56 The search of Galpin’s coat and duffel bag was additionally justified pursuant to § 46-

5-102(4), MCA, due to exigent circumstances present at the time of Galpin’s arrest.

“Exigent circumstances” are those which would cause a reasonable person to believe that

prompt action is necessary to prevent physical harm to an officer or other person, the

destruction of relevant evidence, the escape of a suspect, or some other consequence

improperly frustrating law enforcement efforts. State v. Wakeford, 1998 MT 16, ¶ 24, 287

Mont. 220, ¶ 24, 953 P.2d 1065, ¶ 24. In this case, agents had discovered methamphetamine

on Galpin’s person following a pat-down search and a methamphetamine lab stored in a

similar duffel bag at Kimberly Vert’s residence the previous day. Consequently, they

reasonably suspected Galpin’s duffel bag contained equipment and chemicals used in

methamphetamine production. Knowing such chemicals to be highly toxic and potentially

explosive when mishandled, agents were justified in their precautionary search of Galpin’s

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duffel bag. Furthermore, the seizure of Galpin’s coat and, in particular, the keys found

inside, was justified in light of the fact that Althea Liberty, who was not arrested, would

remain behind at the house upon the agents’ departure with Galpin, thereby subjecting the

evidence to Liberty’s disposition and possible destruction.

¶57 We therefore conclude, from the facts and circumstances present at the time of

Galpin’s arrest, that the search of Galpin’s coat and the cursory search of his duffel bag was

commensurate with the purposes set forth at § 46-5-102(1), (3), and (4), MCA, as it was

supported by the existence of exigent circumstances and conducted for the purposes of

protecting the agents from attack, discovering and seizing the fruits of the crime, as well as

discovering and seizing articles which may have been used in the commission of the crime

or constitute evidence thereof. Accordingly, the District Court did not err in denying

Galpin’s motion to suppress evidence obtained as a result of the search.

¶58 Affirmed in part and reversed in part.

/S/ JIM RICE

We concur:

/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON

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