State v. Bateman

No. 03-851

IN THE SUPREME COURT OF THE STATE OF MONTANA

2004 MT 281

STATE OF MONTANA,

Plaintiff and Respondent,

v.

THOMAS LEE BATEMAN,

Defendant and Appellant.

APPEAL FROM: The District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone, Cause No. DC 2003-0069,
Honorable Susan P. Watters, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, Helena, Montana

For Respondent:

Honorable Mike McGrath, Attorney General; Tammy K. Plubell,
Assistant Attorney General, Helena, Montana

Dennis Paxinos, County Attorney, Billings, Montana

Submitted on Briefs: September 9, 2004

Decided: October 14, 2004

Filed:

__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Thomas Bateman appeals from his conviction and sentence in the Thirteenth Judicial

District Court, Yellowstone County. We affirm.

¶2 We restate the issues on appeal as:

¶3 1. Was Bateman’s arrest based on a reasonable mistake?

¶4 2. Was Bateman’s right to privacy violated?

¶5 3. Did Bateman receive ineffective assistance of counsel?

FACTUAL AND PROCEDURAL BACKGROUND

¶6 On January 16, 2003, the Billings Police Department dispatched Officer Korell to a

building in Billings. The building housed two apartments, one where the owner lived, and

one where her tenant, Bateman, lived. It appears that the owner had asked the police to come

talk to her regarding Bateman. Korell asked the owner if she noticed anything strange about

Bateman and his apartment and she said that the blinds were always drawn, the windows

were always closed, the air conditioning was on at odd times, and there was an unusual

smell. Korell learned that the tenant of the apartment was one “Thomas Bateman,” and the

owner provided the officer with his physical description and approximate age.

¶7 Korell immediately radioed in for an outstanding warrant check on “Thomas

Bateman.” The dispatcher found that “Thomas Bateman” had an outstanding warrant for

misdemeanor possession of drugs. The dispatcher provided Korell with the age and physical

description of the person in the warrant, and it matched what the apartment owner had told

him. Korell did not inquire what the person’s middle name was, but later testified that the

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warrant probably did include a middle name. After knocking on Bateman’s door and not

receiving an answer, Korell, accompanied by another officer, returned to Bateman’s

residence the next day. After the officer knocked, Bateman opened the door and Korell

asked him if he was “Thomas Bateman,” to which Bateman replied “yes.”

¶8 At this point Korell noticed that Bateman was trying to conceal something behind his

back. To ensure the officers’ safety, and in keeping with standard police procedure, Korell

told Bateman they had a warrant for his arrest and attempted to handcuff him. Bateman

dropped a bag of Gummy Bears and what appeared to be a marijuana pipe. He then told the

officers that there was another “Thomas Bateman” and that there had been police confusion

regarding them in the past. The officers checked Bateman’s I.D., radioed to dispatch, and

determined that Defendant indeed was a different “Thomas Bateman.” Although their age

and physical description were quite similar, they had different social security numbers and

dates of birth.

¶9 However, at this point the officers had probable cause to arrest Bateman. They had

seen him drop the marijuana pipe and, while standing with him in his doorway, had seen

other drug paraphernalia in his living room. One officer also detected a strong odor of

smoke. The officers asked Bateman if anyone else was in the apartment and he responded

that he did not think there was. The officers also heard a voice coming from the kitchen, so

one officer walked into the kitchen, which was covered in smoke and soot, and found another

man who, it turns out, did have an outstanding arrest warrant. The officers then administered

a security check and sought permission from Bateman to search the apartment. Bateman at

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first refused and then changed his mind. Nonetheless, the officers applied for, and received,

a search warrant. They subsequently found a methamphetamine lab in the apartment crawl

space.

¶10 Bateman was charged with eight different offenses, including Criminal Production or

Manufacture of Dangerous Drugs, and Operation of an Unlawful Laboratory. Four of the

charges were felonies and four were misdemeanors. After pleading not guilty to all charges,

Bateman moved that the charges be dismissed, arguing that the evidence against him resulted

from an illegal arrest. His motion was denied, and he subsequently entered into a plea

agreement whereby he pled guilty to all charges in exchange for a ten-year prison sentence.

The agreement preserved his right to appeal any pretrial rulings.

¶11 Bateman now challenges that sentence, arguing the evidence should be excluded due

to an arrest that was illegal under the Fourth Amendment of the United States Constitution

and Article II, Section 11, of the Montana Constitution. In the alternative, Bateman argues

that he received ineffective assistance of counsel.

STANDARD OF REVIEW

¶12 When considering a motion to dismiss in a criminal case our standard of review is de

novo. State v. Wolfe, 2003 MT 222, ¶ 4, 317 Mont. 173, ¶ 4, 75 P.3d 1271, ¶ 4. Our

standard is plenary, and we review to determine whether the district court’s conclusion is

correct. State v. Adgerson, 2003 MT 284, ¶ 24, 318 Mont. 22, ¶ 24, 78 P.3d 850, ¶ 24.

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 DISCUSSION

ISSUE ONE

¶13 Was Bateman’s arrest based on a reasonable mistake?

¶14 Bateman argues that his arrest was illegal as he was not actually the “Thomas

Bateman” specified in the arrest warrant. Therefore, he continues, the evidence obtained in

the subsequent search cannot be proffered against him, and the charges against him must be

dismissed. When arresting a person in his own home, the government is required to obtain

a warrant specific to that person. U.S. Const. amend. IV (“[N]o warrants shall issue, but

upon probable cause, supported by oath or affirmation, particularly describing the place to

be searched, and the persons or things to be seized.”) (emphasis added); Payton v. New York

(1980), 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639, 651 (“It is a ‘basic

principle of Fourth Amendment law’ that searches and seizures inside a home without a

warrant are presumptively unreasonable.”). In this case, because the authorities had not

issued a warrant for the “Thomas Bateman” whom they arrested, they arrested him without

a valid warrant. However, because there are exceptions to the warrant requirement, this does

not necessarily mean that Bateman’s arrest was illegal.

¶15 A very similar issue arose in Hill v. California (1971), 401 U.S. 797, 91 S.Ct. 1106,

28 L.Ed.2d 484. In Hill the police had probable cause to arrest the defendant, and therefore

lawfully entered his residence hoping to make the arrest. Hill, 401 U.S. at 802-03, 91 S.Ct.

at 1110, 28 L.Ed.2d at 489. There they found a man, Miller, who matched Hill’s physical

description, and therefore arrested him. Hill, 401 U.S. at 803-04, 91 S.Ct. at 1110, 28

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L.Ed.2d at 489. In arresting him they found evidence in plain view incriminating Hill. Hill,

401 U.S. at 803, 91 S.Ct. at 1110, 28 L.Ed.2d at 489. The Court stated that because the

police reasonably believed that Miller was Hill, their arrest was reasonable and so was the

accompanying search. Hill, 401 U.S. at 804, 91 S.Ct. at 1111, 28 L.Ed.2d at 490

(“[S]ufficient probability, not certainty, is the touchstone of reasonableness under the Fourth

Amendment and on the record before us the officers’ mistake was understandable and the

arrest a reasonable response to the situation facing them at the time.”).

¶16 Hill did not involve a warrant. However, the case did involve an arrest based on a

reasonable mistake of identity that led to an otherwise unquestionably legal acquisition of

evidence. This Court has not examined a Hill question before, but several other courts have

found Hill applicable when the police mistakenly arrest a person because his name and other

characteristics are the same as those on the arrest warrant. Hill v. Scott (8th Cir. 2003), 349

F.3d 1068, 1073-74; Rodriguez v. Farrell (11th Cir. 2002), 280 F.3d 1341,1347-48 (stating

that similarities in name and physical description were close enough to make for a reasonable

mistake); Blackwell v. Barton (5th Cir. 1994), 34 F.3d 298, 304 (“The person he arrested was

of the same height and weight, sex, race, age, nickname, and at the location where [the

officer] expected to find” the person in the warrant); Patton v. Przybylski (7th Cir. 1987),

822 F.2d 697, 698-700 (holding as reasonable the arrest of a person with the same name,

race, and age as that on an outstanding arrest warrant). Courts have ruled against the

authorities in mistaken identity cases where there has been deliberate warrant tampering or

where there was no correlation other than the persons’ names. Brown v. Byer (5th Cir.

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1989), 870 F.2d 975, 978-79 (sustaining a jury finding that an officer altered identifying

information on the warrant); Simons v. Marin County (N.D. Cal. 1987), 682 F.Supp. 1463.

In Simons, the authorities had evidence that the arrestee and the person on the warrant had

different middle names, different ages, and residences in different areas of California.

Simons, 682 F.Supp. at 1466-67. Because the authorities went ahead with the arrest even in

the face of this evidence, the court ruled that the arrest was not based on a reasonable

mistake.

¶17 In this case, however, the officers had evidence that Bateman and the “Bateman” on

the outstanding warrant had similar ages, lived in the same area, and had similar physical

characteristics. Unlike in Simons, the officers quickly sought to verify whether Bateman’s

protests regarding mistaken identity were true. It appears that the two Batemans had

different middle names, but the officers were not aware of that fact ahead of time. In such

circumstances, where all other indications point toward a congruence of the arrestee and the

person described in the warrant, we cannot expect police officers to verify every detail that

might reveal mistaken identity prior to confronting the suspect. The Eighth Circuit recently

reached the same conclusion in Hill v. Scott, 349 F.3d 1068. In that case, an officer radioed

a dispatcher and asked if there were any warrants for a “Brian Hill.” Hill v. Scott, 349 F.3d

at 1070. The dispatcher said there was one for a “Brian Walter Hill” and the physical

description and age of the “Brian Walter Hill” matched that of the “Brian Hill” the officer

was investigating. The officer did not know the middle name of the “Brian Hill” whom he

wanted to arrest, but the court ruled that investigation of such a level of detail was not

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constitutionally necessary before the arrest. Hill v. Scott, 349 F.3d at 1074 (“The question

is, how much investigation does the Constitution require? In light of all the circumstances,

we hold [the officer] had sufficient consistent identifying information to reasonably conclude

the warrant was for appellant Hill . . . .”).

¶18 Therefore, in light of Hill v. California (1971), 401 U.S. 797, 91 S.Ct. 1106, 28

L.Ed.2d 484, and its progeny, we hold that the officers in the instant case acted reasonably,

albeit mistakenly, in arresting Bateman. Because the arrest was reasonable, the subsequent

discovery of incriminating evidence was legal and the evidence is thus admissible.

ISSUE TWO

¶19 Was Bateman’s right to privacy violated?

¶20 Bateman also argues that the search of his residence was a violation of his right to

privacy, guaranteed by Article II, Section 10, of the Montana Constitution. However,

Bateman failed to raise this claim in the District Court. Therefore, as is the rule in this

Court, he may not raise the claim on appeal. State v. Weaselboy, 1999 MT 274, ¶ 16, 296

Mont. 503, ¶ 16, 989 P.2d 836, ¶ 16. Bateman implicitly asks that we apply the “plain error”

exception to this rule, namely that we may review a claim notwithstanding it being raised for

the first time on appeal if “failing to review the claimed error may result in a manifest

miscarriage of justice, may leave unsettled the question of the fundamental fairness of the

trial or proceedings, or may compromise the integrity of the judicial process.” State v.

Godfrey, 2004 MT 197, ¶ 22, 322 Mont. 254, ¶ 22, 95 P.3d 166, ¶ 22 (citing State v. Finley

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(1996), 276 Mont. 126, 137, 915 P.2d 208, 215). Bateman’s state right to privacy claim does

not rise to this level. Therefore, we decline to address the privacy issue.

ISSUE THREE

¶21 Did Bateman receive ineffective assistance of counsel?

¶22 Bateman claims that his trial counsel provided ineffective assistance of counsel when

he advised Bateman to plead guilty and accept a ten-year prison sentence. The right to

effective assistance of counsel is guaranteed by the Sixth Amendment of the United States

Constitution and by Article II, Section 24, of the Montana Constitution.

¶23 When addressing an ineffective assistance of counsel claim on appeal, this Court

makes a distinction between claims that are record-based and those that are non-record-

based. “If the record does not supply the reason for counsel’s act or omission, the claim

must be raised by petition for post-conviction relief.” State v. Turnsplenty, 2003 MT 159,

¶ 17, 316 Mont. 275, ¶ 17, 70 P.3d 1234, ¶ 17 (quoting State v. Harris, 2001 MT 231, ¶ 21,

306 Mont. 525, ¶ 21, 36 P.3d 372, ¶ 21). We will not hold that an attorney’s actions were

ineffective if they were tactical. If we cannot ascertain from the record whether or not

counsel’s actions were tactical, our standard procedure is to dismiss an appellant’s claim

without prejudice and allow him to file a petition for postconviction relief in the District

Court. Turnsplenty, ¶ 16 (citing State v. Herrman, 2003 MT 149, ¶ 33, 316 Mont. 198, ¶ 33,

70 P.3d 738, ¶ 33).

¶24 Bateman acknowledges that the record does not discuss why his trial counsel advised

him to enter into his plea agreement. However, he asks that we conclude that his trial

counsel’s decision was one that has no possible justification, and therefore falls within an

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exception to the record/non-record distinction. See, e.g., State v. Jefferson, 2003 MT 90,

¶ 50, 315 Mont. 146, ¶ 50, 69 P.3d 641, ¶ 50 (determining there was no plausible

justification for trial counsel to concede to the jury that defendant was guilty of a lesser

charge); State v. Rose, 1998 MT 342, ¶ 20, 292 Mont. 350, ¶ 20, 972 P.2d 321, ¶ 20. This

argument fails. Bateman was charged with eight counts, four of which were felonies. If a

jury had found him guilty of Criminal Production or Manufacture of Dangerous Drugs, his

maximum penalty would have been a life sentence. Another charge, Operation of an

Unlawful Laboratory, carries a maximum twenty-five-year sentence. With these possible

sentences in mind, and without further evidence drawn from outside the record, we cannot

conclude that there was no plausible justification for his trial counsel to recommend plea-

bargaining for a ten year sentence. Therefore we dismiss this claim without prejudice.

CONCLUSION

¶25 For the foregoing reasons Bateman’s conviction and sentence are affirmed.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ JOHN WARNER
/S/ PATRICIA O. COTTER
/S/ JAMES C. NELSON
/S/ JIM RICE

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