No. 03-719
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 331
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DONALD ROGER GRIFFIN, III,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow, Cause No. DC-03-39,
The Honorable Kurt D. Krueger, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kenneth R. Olson, Attorney at Law, Great Falls, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Jim Wheelis, Anthony C. Johnstone,
Assistant Attorneys General, Helena, Montana
Robert M. McCarthy, Silver Bow County Attorney; Samm Cox, Deputy
County Attorney, Butte, Montana
Submitted on Briefs: July 14, 2004
Decided: November 23, 2004
Filed:
__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 Donald Roger Griffin, III (Griffin), appeals from an order of the Second Judicial
District Court, Silver Bow County, entered June 6, 2003, denying Griffin’s motion to
suppress. We affirm.
¶2 We address the following issues on appeal:
¶3 1. Did the District Court err in not suppressing evidence of a methamphetamine pipe
found on Griffin’s person when he was arrested?
¶4 2. Did the District Court err in not suppressing evidence found in the bed of Griffin’s
pickup truck?
¶5 3. Did the District Court err in not suppressing evidence found in Griffin’s residence?
BACKGROUND
¶6 On February 6, 2003, Butte-Silver Bow Police Officer Sharman Hock observed
Griffin driving his pickup. Officer Hock was aware Griffin did not have a valid license, but
confirmed this fact with dispatch. She followed Griffin to a residence where she observed
him exit his vehicle and walk towards the residence. Pursuant to a city court policy directing
that anyone stopped for driving on a revoked or suspended license should be arrested,
booked, and taken to jail, Officer Hock arrested Griffin and handcuffed him. When asked
if he had anything sharp, Griffin replied that he had a knife. Officer Hock felt and retrieved
a small hard object in a black case in Griffin’s pocket. The object was a glass pipe with
white residue on it. Officer Hock recognized the pipe and white residue as drug
paraphernalia.
¶7 Griffin then informed Officer Hock he had a gun inside his pickup, but declined her
request to search the vehicle. Officer Hock applied for and received a search warrant
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authorizing a search for evidence of drug possession in Griffin’s pickup. When Officer
Hock approached Griffin’s pickup to search it, she saw in the open truck bed two semi-
transparent garbage bags, through which she saw boxes of matches and pseudoephedrine,
items she knew could be used to manufacture methamphetamine. Officer Hock then called
in the Southwest Montana Drug Task Force. Pursuant to another search warrant, the Task
Force searched Griffin’s residence and found booby-trapped explosives protecting a
methamphetamine lab.
¶8 Griffin was charged with four felony counts: Count I, Operation of an Unlawful
Clandestine Laboratory, in violation of § 45-9-132, MCA; Count II, Criminal Possession of
Dangerous Drugs with Intent to Sell, in violation of § 45-9-103, MCA; Count III, Criminal
Possession of Property Subject to Forfeiture, in violation of § 45-9-206, MCA; and Count
IV, Possession of Explosives in violation of § 45-8-335, MCA.
¶9 On May 1, 2003, Griffin filed a motion to suppress all evidence obtained in the
searches of his person, vehicle, and home and all statements he made. Griffin also filed a
motion to dismiss the charge of Possession of Explosives. The motions were set for hearing
and heard by the District Court on May 28, 2003. The District Court denied Griffin’s motion
to suppress June 6, 2003. Thereafter, pursuant to a plea agreement, Griffin pled guilty to
Counts I and III and to driving under the influence, a charge related to a previous incident.
He reserved his right to appeal all pre-trial rulings by the District Court.
¶10 Griffin now appeals from the District Court’s denial of his motion to suppress.
STANDARD OF REVIEW
¶11 We review a district court’s denial of a motion to suppress “to determine whether the
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court’s findings of fact are clearly erroneous and whether its interpretation and application
of the law are correct.” City of Cut Bank v. Bird, 2001 MT 296, ¶ 9, 307 Mont. 460, ¶ 9, 38
P.3d 804, ¶ 9. Further, as a reviewing court, this Court’s function is to ultimately ensure
the issuing judge had a “substantial basis” to determine probable cause existed before issuing
the search warrant. State v. Reesman, 2000 MT 243, ¶ 19, 301 Mont. 408, ¶ 19, 10 P.3d 83,
¶ 19 (citation omitted). A judge’s determination of probable cause is given great deference
and every reasonable inference possible will be drawn to support that determination.
Reesman, ¶ 19.
DISCUSSION
ISSUE ONE
¶12 Did the District Court err in not suppressing evidence of a methamphetamine pipe
found on Griffin’s person when he was arrested?
¶13 Griffin asserts Officer Hock’s warrantless search of his person was an unlawful
invasion of his privacy not justified by a compelling state interest. Specifically, Griffin
argues the State’s retrieval of the methamphetamine pipe from his person was not a lawful
search incident to arrest, a recognized exception to the warrant requirement, because none
of the grounds listed in § 46-5-102, MCA, were present.
¶14 The State argues Officer Hock’s search of Griffin was authorized by § 46-5-102(1),
MCA, which permits a warrantless search of a person incident to an arrest in order to protect
a peace officer from attack. Specifically, the State asserts that, in order to protect herself and
other officers from an attack by Griffin, who stated he had a knife, Officer Hock was entitled
to search Griffin’s person. The State argues in the alternative, that if this Court finds the
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search illegal, then the search which discovered the methamphetamine pipe is still valid
under the inevitable discovery doctrine.
¶15 The District Court found Officer Hock’s testimony credible and believed she
effectuated a valid search incident to arrest. The Court found Officer Hock was justified in
opening the black nylon case in order to discern if the small hard object was the knife. The
Court denied Griffin’s motion to suppress on that basis.
¶16 This Court notes that Griffin was never charged with possession of drug
paraphernalia, in violation of § 45-10-103, MCA. All of the charges filed against Griffin
were supported by evidence obtained from a search of Griffin’s house, the legality of which
will be discussed later in this Opinion. Thus, the determination of this issue is irrelevant as
it has no effect on Griffin’s rights. As such, this Court will not address it.
ISSUE TWO
¶17 Did the District Court err in not suppressing evidence found in the bed of Griffin’s
pickup truck?
¶18 Griffin argues that a pipe, untested for drug residue at the time of the search warrant
application, is not sufficient probable cause upon which to issue a search warrant for his
pickup. Griffin also asserts the District Court’s findings are erroneous because they did not
discuss the search of Griffin’s pickup and residence.
¶19 The State argues the pipe, smudged with what appeared to be white
methamphetamine residue, provided sufficient probable cause to believe Griffin’s pickup
might contain similar items, especially because Griffin exited his pickup immediately prior
to being arrested. The State also points out the items seized from Griffin’s pickup were in
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plain view.
¶20 Section 46-5-221, MCA, states that a judge shall issue a search warrant upon
application made under oath or affirmation, that: (1) states facts sufficient to support
probable cause to believe that an offense has been committed; (2) states facts sufficient to
support probable cause to believe that evidence, contraband, or persons connected with the
offense may be found; (3) particularly describes the place, object, or persons to be searched;
and (4) particularly describes who or what is to be seized.
¶21 In the context of issuing a search warrant, probable cause exists if the facts and
circumstances within an officer’s personal knowledge are sufficient to warrant a reasonable
person to believe that someone has committed an offense. Probable cause is evaluated in
light of a trained law enforcement officer’s knowledge, taking into account all the relevant
circumstances. State v. Frasure, 2004 MT 242, ¶ 15, 323 Mont. 1, ¶ 15, 97 P.3d 1101, ¶ 15.
¶22 In Frasure, we upheld a district court’s denial of a motion to suppress drug evidence
found in the defendant’s vehicle, stating the facts and circumstances, namely the defendant’s
nervousness, accelerated speech, the ceramic pipe found on his person, and the officers’
prior knowledge of the defendant’s methamphetamine addiction was sufficient probable
cause to support the search warrant. Frasure, ¶ 17.
¶23 No such circumstances exist here. The only evidence supporting the search warrant
for Griffin’s pickup was the existence of a pipe found on his person with untested white
residue on it and the fact Griffin had recently exited his pickup. “A mere affirmance of
belief or suspicion by a police officer, absent any underlying facts or circumstances, does
not establish probable cause for the issuance of a search warrant.” State v. Lott (1995), 272
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Mont. 195, 199, 900 P.2d 306, 309 (citation omitted).
¶24 Regardless of whether the methamphetamine pipe was properly seized, this, without
more, is not sufficient evidence to warrant a reasonable person to believe Griffin’s pickup
would contain evidence of an offense. Just because a person has a pipe in his pocket with
untested white residue on it, does not mean his vehicle will contain evidence of a drug
offense. The search warrant issued for Griffin’s pickup was not supported by probable
cause.
¶25 However, the majority of the incriminating items seized from Griffin’s pickup were
located in plain view in the pickup bed. While it is true Montana’s Constitution provides its
citizens with broad privacy protections, State v. Elison, 2000 MT 288, ¶ 46, 302 Mont. 228,
¶ 46, 14 P.3d 456, ¶ 46, what a person knowingly exposes to the public is not protected.
Elison, ¶ 49. We have consistently stated that items stored in non-concealed areas of a
vehicle are not constitutionally protected. State v. Tackitt, 2003 MT 81, ¶ 20, 315 Mont. 59,
¶ 20, 67 P.3d 295, ¶ 20; Elison, ¶ 49.
¶26 It is not disputed Griffin was lawfully arrested for driving without a license. When
Officer Hock went back to Griffin’s pickup, even though the warrant to search the cab was
invalid, she was lawfully located in a place from which she could view the evidence in
Griffin’s pickup bed–the street on which the pickup was parked. The incriminating nature
of the evidence was immediately apparent, and Griffin had no reasonable expectation of
privacy in such items. Under these circumstances, Officer Hock did not violate his rights
to be free from an unlawful search and seizure when she removed this evidence from the
open bed of his pickup.
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¶27 Griffin argues the evidence seized from his pickup could have come from another
source, namely that someone else put the evidence in the back of his pickup sometime after
his arrest but before Officer Hock located it. There is no evidence in the record to support
such an allegation. Further, the items found in the pickup bed supported a finding of
probable cause to issue a search warrant for Griffin’s house, which is different from the
proof necessary to sustain a conviction.
¶28 While this Court has concluded the search warrant issued for Griffin’s pickup was not
supported by probable cause, the District Court’s error was harmless because the items
seized from Griffin’s pickup bed did not require a search warrant before being seized.
¶29 As for the items obtained from the cab of Griffin’s pickup, these should have been
suppressed. However, all of the charges against Griffin were supported by evidence
obtained from Griffin’s residence, the legality of which is discussed below, and therefore the
failure to exclude the evidence obtained from the cab of Griffin’s pickup was not prejudicial.
Section 46-20-701(1), MCA, provides that “[a] cause may not be reversed by reason of any
error committed by the trial court against the convicted person unless the record shows that
the error was prejudicial.” State v. Berg, 1999 MT 282, ¶ 22, 296 Mont. 546, ¶ 22, 991 P.2d
428, ¶ 22 (citation omitted).
ISSUE THREE
¶30 Did the District Court err in not suppressing evidence found in Griffin’s residence?
¶31 Although the District Court did not make an explicit finding that probable cause
supported the search warrant issued for Griffin’s residence, it was implicit in its decision to
deny Griffin’s motion to suppress. Griffin’s only argument that the search warrant for his
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residence is invalid is that it was issued based on the items found in his pickup, which
Griffin asserts were illegally seized.
¶32 Since we have already determined the evidence from the bed of Griffin’s pickup was
legally seized, its existence was sufficient to support a finding of probable cause for issuance
of the search warrant for Griffin’s residence. We hold the District Court did not err in not
suppressing the evidence obtained from Griffin’s residence.
¶33 Affirmed.
/S/ JOHN WARNER
We Concur:
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART
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