No. 02-268
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 61
STATE OF MONTANA,
Plaintiff and Respondent,
v.
SHARON MARIE OLSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade, Cause No. BDC 2001-117-4,
The Honorable Julie Macek, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Eric Olson, Chief Public Defender, Great Falls, Montana
Kelli Sather, Deputy Public Defender, Missoula, Montana
For Respondent:
Hon. Mike McGrath, Attorney General;
Ilka Becker, Assistant Attorney General, Helena, Montana
Brant Light, Cascade County Attorney, Great Falls, Montana
Submitted on Briefs: October 3, 2002
Decided: March 27, 2003
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 The Appellant, Sharon Marie Olson, was charged by information filed in the District
Court for the Eighth Judicial District in Cascade County, with criminal endangerment, in
violation of § 45-5-207, MCA (1999), and accountability for criminal production or
manufacture of dangerous drugs, in violation of § 45-2-302(3), MCA (1999) and § 45-9-110,
MCA (1999). She moved to suppress evidence gathered by the State. When the District
Court denied Olson’s motion, she pled guilty to an amended charge of criminal possession
of dangerous drugs. However, she appeals from the District Court’s denial of her motion
to suppress. We reverse in part and affirm in part the District Court’s order. We affirm the
judgment of the District Court.
¶2 We restate the issues on appeal as follows:
¶3 1. Did the District Court err when it denied Olson’s motion to suppress the
statements she made to Detective Wells?
¶4 2. Was the search warrant application supported by probable cause?
¶5 3. Did a particularized suspicion exist to justify an investigative traffic stop of
Olson’s vehicle?
FACTUAL BACKGROUND
¶6 On March 16, 2001, Detective Jeff Beecroft received a report from informant Mike
Smith regarding a possible methamphetamine laboratory on his wife’s property in Great
Falls, Montana. Mike stated that he and his wife, Nora Smith, were separated, and then
provided Beecroft with Nora’s address. Mike advised Beecroft that he had entered Nora’s
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garage to retrieve two camper jacks. Mike further advised Beecroft that while in the garage,
he had observed what he believed to be a meth lab. Mike indicated that he had observed
tubing, mason jars, and coffee filters connected together, and had smelled the odor of
anhydrous ammonia. He informed Beecroft that he had worked in a fertilizer plant for
several years and was familiar with the smell of anhydrous ammonia. Mike also told
Beecroft that he had observed a man “cooking” methamphetamine in the garage and
identified the man as Huston Curran. Finally, he informed Beecroft that he had spoken
briefly with Curran, who had stated, “you’re going to keep this cool, now, right?”
¶7 Detective Beecroft dispatched Detectives Jim Wells and Michael Grubb to conduct
surveillance of Nora’s property. Within an hour after Wells and Grubb began surveillance,
individuals on Nora’s property began to remove items from the garage and place them into
a vehicle. The vehicle then left Nora’s property. At the request of Wells and Grubb,
Sergeant Tito Rodriguez initiated an investigative traffic stop of the vehicle. At the time of
the stop, Olson was driving the vehicle and her young son was in the passenger seat. Curran
and a man identified as Justin Becker were in the rear seat.
¶8 The vehicle stopped by Sergeant Rodriguez was registered to Olson. After Olson was
removed from the vehicle, Detective Wells approached her and advised her of his
investigation. Wells informed Olson that he knew a meth lab had been placed in the trunk
of her vehicle. Olson initially denied Wells’ allegations. However, after Wells spoke to her
about the health risks of a meth lab, Olson admitted that the equipment was located in her
vehicle. A warrant was subsequently issued, and the search of Olson’s trunk revealed
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chemicals, glassware, funnels, tubing, methamphetamine, and other “precursors” used to
manufacture methamphetamine, including red pills labeled Sudafed.
¶9 On March 29, 2001, the Respondent, State of Montana, filed an information, which
charged Olson with criminal endangerment, a felony, in violation of § 45-5-207, MCA
(1999), and accountability for criminal production or manufacture of dangerous drugs, a
felony, in violation of § 45-2-302(3), MCA (1999) and § 45-9-110, MCA (1999). Olson
pled not guilty to both charges on April 12, 2001. On June 22, 2001, Olson filed a motion
to suppress evidence, in which she claimed that: (1) the search warrant application did not
adequately establish the reliability and credibility of the informant whose statements
provided the basis for the warrant request; (2) the search warrant application was legally
invalid because it included inaccurate and misleading information; (3) the search warrant
application did not establish probable cause; (4) the initial traffic stop was not supported by
a particularized suspicion; (5) her statements were obtained in violation of her constitutional
rights; and (6) evidence seized as a result of the search of her vehicle must be suppressed.
¶10 The District Court conducted hearings on Olson’s motion to suppress on October 24,
and October 29, 2001. On November 13, 2001, the State filed an amended information,
which charged Olson with the additional offense of criminal possession of precursors to
dangerous drugs, a felony, in violation of § 45-9-107(1)(n), MCA (1999). The District Court
denied Olson’s motion to suppress that same day. On November 15, 2001, Olson pled guilty
to an amended charge of criminal possession of dangerous drugs, a felony, in violation of
§ 45-9-102, MCA (1999). The terms of Olson’s plea agreement preserved her right to appeal
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from the District Court’s denial of her motion to suppress. The remaining charges against
Olson were dismissed. Olson was sentenced by the District Court on January 30, 2002.
STANDARD OF REVIEW
¶11 The standard of review of a district court’s denial of a motion to suppress is whether
the court’s findings of fact are clearly erroneous, and whether those findings were correctly
applied as a matter of law. State v. Dawson, 1999 MT 171, ¶ 13, 295 Mont. 212, ¶ 13, 983
P.2d 916, ¶ 13.
DISCUSSION
ISSUE 1
¶12 Did the District Court err when it denied Olson’s motion to suppress the statements
she made to Detective Wells?
¶13 The Fifth Amendment to the United States Constitution and Article II, Section 25, of
the Montana Constitution provide that no person shall be compelled, in any criminal case,
to be a witness against himself. The United States Supreme Court addressed this privilege
against self-incrimination in Miranda v. Arizona (1966), 384 U.S. 436, 86 S. Ct. 1602, 16
L. Ed. 2d 694. The Miranda Court held that the prosecution may not use statements that
stem from a custodial interrogation of a defendant unless the defendant is warned, prior to
questioning, that he has a right to remain silent, that any statement he does make may be
used as evidence against him, and that he has a right to the presence of an attorney.
Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. These “warnings” are often referred to as
Miranda warnings.
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¶14 In this case, Olson alleges that the statements she made to Detective Wells were
obtained in violation of her Fifth Amendment and state constitutional rights because she did
not receive Miranda warnings before she made the statements. A person is entitled to
receive Miranda warnings only if he or she is subject to a custodial interrogation. State v.
Elison, 2000 MT 288, ¶ 27, 302 Mont. 228, ¶ 27, 14 P.3d 456, ¶ 27. This Court has
previously concluded that a custodial interrogation occurs when “there is a significant
restriction of personal liberty similar to an arrest.” Dawson, ¶ 35.
¶15 Olson was not under arrest at the time she conversed with Detective Wells. We have
repeatedly held that law enforcement officers do not need to administer Miranda warnings
to suspects during brief investigative encounters, even if such encounters are somewhat
coercive. Dawson, ¶ 35. However, we have also concluded that if a person has no free right
to leave, then the interrogation is custodial. State v. Staat (1991), 251 Mont. 1, 6, 822 P.2d
643, 646. To determine whether or not a custodial interrogation has occurred, this Court
examines the following six factors: (1) place of the interrogation; (2) time of the
interrogation; (3) persons present during the interrogation; (4) whether Miranda warnings
were gratuitously given; (5) the length and mood of the interrogation; and (6) whether or not
the suspect was arrested following the interrogation. Staat, 251 Mont. at 6, 822 P.2d at 646.
¶16 In this case, Detective Wells conversed with Olson after she had been removed from
her vehicle. Prior to their conversation, Curran and Becker had been removed from Olson’s
vehicle and placed in handcuffs. Wells testified that at the time he approached Olson, “there
[were] officers everywhere,” and that he did not “believe [that Olson] was ever standing
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alone.” Wells further testified that he denied Olson’s request to see her son. Finally, Wells
testified that although Olson was not restrained or placed under arrest until after she admitted
the meth lab was in her vehicle, Olson was not free to leave during their conversation.
¶17 The District Court found that at the time Olson conversed with Detective Wells her
liberty was restricted in a manner similar to an arrest. Consequently, the District Court
concluded that Olson’s conversation with Detective Wells was custodial in nature. We
agree. However, the District Court also determined that although Olson was in custody, she
was not interrogated by Wells. With that finding, we disagree.
¶18 Interrogation has previously been defined by this Court as “questioning initiated by
law enforcement officers after a person has been taken into custody or otherwise deprived
of his freedom of action in any significant way.” State v. Belgarde, 1998 MT 152, ¶ 26, 289
Mont. 287, ¶ 26, 962 P.2d 571, ¶ 26. Here, the District Court concluded that because
Detective Wells did not ask Olson any direct questions, Olson had not been interrogated by
Wells. However, we have also noted that “interrogation” in the context of the Fifth
Amendment and Article II, Section 25, of the Montana Constitution, refers not only to
express questioning, but also to “any words or actions on the part of the police (other than
those normally attendant to arrest and custody) that the police should know are reasonably
likely to elicit an incriminating response from the suspect.” State v. Flack (1993), 260 Mont.
181, 186, 860 P.2d 89, 92, see also Rhode Island v. Innis (1980), 446 U.S. 291, 100 S. Ct.
1682, 64 L. Ed. 2d 297. We have further noted that to determine whether an incriminating
response was reasonably likely to be elicited from the suspect, the primary focus of the
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analysis should be on the perceptions of the suspect, rather than on the intent of the police.
Flack, 260 Mont. at 186, 806 P.2d at 92.
¶19 In this case, Detective Wells testified that when he initiated his conversation with
Olson, his goal was to get her away from Curran and Becker. Wells further testified that he
told Olson he knew she had a meth lab in her vehicle, and that he had watched the meth lab
being loaded into her vehicle. Wells also testified that he spoke to Olson in some detail
about the dangers of a meth lab. Finally, Wells testified that he told Olson that he was
concerned for her safety, and for the safety of her son.
¶20 The statements made by Detective Wells were directed specifically at Olson. No
other party was privy to their conversation, and Wells testified that Olson was not free to
leave. We conclude that, under the circumstances, Wells should have known that his
statements were reasonably likely to elicit an incriminating response from Olson. Therefore,
we hold that Wells’ statements to Olson constituted an interrogation for purposes of the Fifth
Amendment and Article II, Section 25, of the Montana Constitution. Accordingly, because
Olson did not receive Miranda warnings before she was interrogated by Wells, the
statements she made to Wells were obtained in violation of her Fifth Amendment right
against self-incrimination, and must be suppressed.
¶21 The District Court erred when it denied Olson’s motion to suppress the statements she
made to Detective Wells. This Court has excised Olson’s statements from the search warrant
application, and we now review the search warrant application without that information to
determine whether it established probable cause.
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ISSUE 2
¶22 Was the search warrant application supported by probable cause?
¶23 Detective Beecroft obtained a warrant to search both Nora’s garage and Olson’s
vehicle. Olson contends that the search warrant application was not supported by probable
cause. Specifically, Olson asserts that Mike Smith was not a reliable and credible informant.
¶24 An application for a search warrant must state facts sufficient to show probable cause
for the issuance of a warrant. State v. Grams, 2002 MT 188, ¶ 14, 311 Mont. 102, ¶ 14, 53
P.3d 897, ¶ 14. To determine if probable cause to issue a warrant exists, this Court applies
the totality of the circumstances test set forth in Illinois v. Gates (1983), 462 U.S. 213, 103
S.Ct. 2317, 76 L.Ed. 2d 527. Pursuant to this test, “the judge evaluates the facts asserted
within the four corners of the [search warrant] application and makes a practical, common-
sense decision as to whether there is a fair probability that incriminating items will be found
in the place to which entry is sought.” Grams, ¶ 14.
¶25 In this case, the search warrant application was based largely on the report of
informant Mike Smith. This Court adopted a test for determining whether information
provided by an informant is sufficient to establish probable cause in State v. Reesman, 2000
MT 243, ¶ 27, 301 Mont. 408, ¶ 27, 10 P.3d 83, ¶ 27. The Reesman test is based on three
considerations. First, this Court must ascertain whether or not the informant was
anonymous. Reesman, ¶ 28. Here, Olson concedes that Mike was not an anonymous
informant. Therefore, we proceed to the second question.
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¶26 If an informant is not anonymous, we next determine whether the information
provided by the informant was based on his or her own personal observation of the criminal
activity. Reesman, ¶ 29. In this case, Olson concedes that the information provided by Mike
was based on his personal observation of the garage on Nora Smith’s property. Therefore,
we proceed to the third consideration.
¶27 The final part of the Reesman test requires this Court to ascertain whether the
informant is a reliable source of information. Reesman, ¶ 31. In order for an informant to
be reliable, he or she must either: (1) be a confidential informant who has provided reliable
and accurate information in the past; (2) make an admission against his or her own interest;
or (3) be a concerned citizen, motivated by “good citizenship.” Reesman, ¶ ¶ 32-34. In this
case, the District Court found that Mike was motivated by “good citizenship,” because he
immediately reported what he had witnessed. That is, the District Court found that even if
Mike’s motives were mixed, it is undisputed that he went immediately to the police
department after he observed Nora’s garage. Consequently, the District Court concluded that
Mike was a reliable informant. The District Court further noted that a citizen informant is
presumed to be reliable, and such reliability “is generally shown by the very nature of the
circumstances under which the incriminating information became known.” Reesman, ¶ 34
(quoting State v. Valley (1992), 252 Mont. 489, 493, 830 P.2d 1255, 1258). Here, Mike
informed Detective Beecroft that he entered Nora’s garage to retrieve two camper jacks.
Mike also advised Beecroft that, while in Nora’s garage, he observed what he believed to
be a meth lab. He reported what he saw immediately. While there is evidence that Mike and
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Nora had a strained relationship, that fact, by itself, is not sufficient to overcome the
presumption that he acted as a good citizen. Accordingly, we hold that the District Court did
not err when it concluded that Mike was a reliable informant.
¶28 In addition to Mike’s report, the search warrant application also contained the
observations of Detectives Wells and Grubb, who conducted surveillance of Nora’s property.
The application stated that: “Within an hour after Detective Wells arrived with Detective
Mike Grubb, a man and a woman began transporting numerous garbage bags full of items
to a white 1989 Ford Taurus. These two individuals then left the scene in the Ford Taurus.”
Although this behavior is not, by itself, illegal, when combined with other information in the
search warrant application, it becomes significant. That is, only hours after Mike reported
that: (1) he had observed a meth lab in Nora’s garage; and (2) Curran was aware that he had
made this observation; individuals began to move items from Nora’s garage into a vehicle.
¶29 We conclude that the above combination of facts provided the Detectives with
sufficient probable cause to believe that a meth lab was relocated from Nora’s garage to
Olson’s vehicle. We further conclude that, under the totality of the circumstances, the search
warrant application contained sufficient probable cause to support the issuance of a search
warrant.
ISSUE 3
¶30 Did a particularized suspicion exist to justify the investigative traffic stop of Olson’s
vehicle?
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¶31 Olson maintains that the investigative traffic stop of her vehicle was not supported
by a particularized suspicion on the part of law enforcement. Section 46-5-401, MCA
(1999), addresses investigative stops. Section 46-5-401, MCA (1999), provides:
In order to obtain or verify an account of the person’s presence or conduct or
to determine whether to arrest the person, a peace officer may stop any person
or vehicle that is observed in circumstances that create a particularized
suspicion that the person or occupant of the vehicle has committed, is
committing, or is about to commit an offense.
¶32 This Court applies a two-part test to determine whether a law enforcement officer had
the requisite particularized suspicion to justify an investigative stop. Grindeland v. State,
2001 MT 196, ¶ 10, 306 Mont. 262, ¶ 10, 32 P.3d 767, ¶ 10. First, the State is required to
show objective data from which an experienced officer could make certain inferences.
Second, the State must show a resulting suspicion that the occupant of the vehicle in
question is, or has been, engaged in wrongdoing. Grindeland, ¶ 10.
¶33 Olson cites State v. Broken Rope (1996), 278 Mont. 427, 925 P.2d 1157, in support
of her contention that the officers lacked a particularized suspicion to perform an
investigative stop of her vehicle. The defendant in Broken Rope visited a convenience store
with a companion. An officer in the area ran a registration check on their vehicle and
learned that a warrant had been issued for the arrest of the defendant’s companion. The
officer then waited for the two men to exit the convenience store. Broken Rope, 278 Mont.
at 428-29, 925 P.2d at 1157-58. However, when the men exited the store they noticed the
officer, and began to stare at him. The men also moved around the store’s parking lot, put
their hands in their pockets, and used the telephone. The officer determined that the men did
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not intend to get into their vehicle while he was in the area, so he requested assistance. The
two officers then initiated an investigative stop of the two men. Broken Rope, 278 Mont. at
429, 925 P.2d at 1158.
¶34 The District Court in Broken Rope found that the officers possessed a particularized
suspicion to justify their investigative stop of the defendant. This Court, however, reversed
the District Court, noting that “there is nothing inherently suspicious about [the defendant]
using a pay telephone, moving around in a convenience store parking lot, putting his hands
in his pockets or staring at a sheriff’s deputy.” Broken Rope, 278 Mont. at 432, 925 P.2d at
1160. We further noted that “many law-abiding citizens may well be nervous when their
activities are being watched by law enforcement officers.” Broken Rope, 278 Mont. at 432,
925 P.2d at 1160. Therefore, we concluded that the defendant’s actions did not create a
particularized suspicion that the defendant was, or had been, engaged in criminal activity.
Broken Rope, 278 Mont. at 432, 925 P.2d at 1160.
¶35 Olson alleges that the facts of this case are similar to those in Broken Rope because,
like the officer in Broken Rope, Detectives Wells and Grubb did not observe individuals
engaged in criminal activity. Broken Rope, however, is distinguishable from the instant case.
In Broken Rope, the officer’s observation of the defendant in the parking lot was the sole
basis for the investigative stop. In this case, Wells and Grubb did not merely observe
individuals place items from Nora’s garage into the trunk of a vehicle and drive away. Wells
and Grubb were aware of the information contained in Mike’s report at the time they
performed the investigative stop of Olson’s vehicle. The existence of particularized
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suspicion is a question of fact determined by examining the totality of the circumstances
surrounding the investigative stop. Grindeland, ¶ 10. Therefore, while the behavior
observed by Wells and Grubb did not, by itself, raise a particularized suspicion of criminal
activity, that behavior may have given rise to a particularized suspicion when combined with
Mike’s report that he observed a meth lab in Nora’s garage that same day.
¶36 This Court has repeatedly held that particularized suspicion is a less stringent standard
than probable cause. See State v. Van Kirk, 2001 MT 184, ¶ 14, 306 Mont. 215, ¶ 14, 32
P.3d 735, ¶ 14, and State v. Williamson, 1998 MT 199, ¶ 12, 290 Mont. 321, ¶ 12, 965 P.2d
231, ¶ 12. Accordingly, we conclude that because probable cause existed to search Olson’s
vehicle, it is axiomatic that a particularized suspicion existed to stop that same vehicle.
Therefore, we hold that a particularized suspicion existed to justify the investigative traffic
stop of Olson’s vehicle.
¶37 For the foregoing reasons, we reverse that part of the District Court’s order which
held that Olson had not been interrogated in violation of her Fifth Amendment rights.
However, after deleting her admission from the search warrant application, we conclude that
probable cause existed to issue the search warrant for Olson’s vehicle. Therefore, the
judgment of the District Court is affirmed.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
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/S/ PATRICIA COTTER
Justice Jim Rice concurring in part and dissenting in part.
¶38 I concur with the Court’s resolution of Issues 2 and 3, and with the holding in this
matter. However, I find that the District Court correctly concluded that Olson, though in
custody, was not questioned by Officer Wells, and was not subjected to interrogation.
Therefore, I would affirm the District Court’s denial of Olson’s motion to suppress her
statement, and dissent from the Court’s contrary conclusion in Issue 1.
/S/ JIM RICE