State v. Pierce

No. 04-444

IN THE SUPREME COURT OF THE STATE OF MONTANA

2005 MT 182

STATE OF MONTANA,

Plaintiff and Respondent,

v.

ROY DEAN PIERCE,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula, Cause No. DC 2003-67,
The Honorable John W. Larson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Kristina Guest, Appellate Defender Office, Helena, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; Jon Ellingson,
Assistant Attorney General, Helena, Montana

Fred Van Valkenberg, Missoula County Attorney; Jennifer S. Johnson,
Deputy County Attorney, Missoula, Montana

Submitted on Briefs: June 8, 2005

Decided: July 20, 2005
Filed:

__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1 Roy Dean Pierce (Pierce) appeals from the denial of his motion by the Fourth Judicial

District Court, Missoula County, to suppress drugs and drug paraphernalia found in his truck.

We affirm.

¶2 Pierce raises the following issues on appeal:

¶3 1. Whether probable cause existed to support the warrantless seizure of Pierce’s

truck.

¶4 2. Whether probable cause existed to support the issuance of a search warrant to

search Pierce’s truck.

BACKGROUND

¶5 Highway Patrol Officer Scott Hoffman (Officer Hoffman) responded to a one-car

accident site where he found Pierce sitting in his truck. Pierce got out of his truck and

provided Officer Hoffman with his driver’s license, proof of insurance, and registration

demonstrating that he owned the truck. Officer Hoffman’s call to the dispatcher revealed

that Pierce had over $8,000 in outstanding warrants. Officer Hoffman arrested Pierce and

placed him in the back of the patrol car at which time Pierce requested that Officer Hoffman

retrieve a phone book from the dashboard of his truck.

¶6 Officer Hoffman opened the truck to retrieve Pierce’s phone book and noticed a

“strong odor of burnt marijuana.” Officer Hoffman confronted Pierce about the odor and

Pierce replied that someone had been smoking marijuana earlier in the truck, but that he did

not smoke marijuana due to drug-testing requirements for his job. Pierce refused Officer

Hoffman’s request to search the truck. Officer Hoffman then asked dispatch to run a

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criminal history check on Pierce that uncovered earlier drug-related offenses.

¶7 Officer Hoffman sealed the truck with evidence tape and called a tow truck to

impound it while he sought to obtain a search warrant. The tow truck arrived and Officer

Hoffman left the scene to take Pierce to jail. An unidentified woman arrived a short time

later and asked the tow truck driver if she could retrieve items from the truck. The tow truck

driver informed the woman that Officer Hoffman had left instructions that the truck was to

remain sealed. The woman left abruptly when the tow truck driver called Officer Hoffman

to report her request. An unidentified woman also later called the highway patrol dispatch

asking to retrieve items from Pierce’s truck. The woman hung up when the dispatcher

informed her that her call would be transferred to Officer Hoffman.

¶8 Officer Hoffman contacted the Missoula Police Department for assistance after

Pierce’s arrest. In response, Officer Ken Wickman from the Missoula Police Department

brought his K-9 officer, Boaz, to sniff Pierce’s truck. Boaz “alerted” to the passenger side

of the truck.

¶9 Officer Hoffman obtained a search warrant for the truck two days after seizing and

impounding Pierce’s truck. Officer Hoffman based his application for the search warrant on

the accident, Pierce’s outstanding warrants, the smell of marijuana in the truck, Pierce’s

admission that someone recently had smoked marijuana in the truck, Pierce’s denial of

consent to search the truck, Pierce’s earlier drug-related offenses, the unknown woman’s

attempts to remove property from the truck, and the K-9 sniff and “alert.” District Court

Judge Harkin concluded from Officer Hoffman’s application that probable cause existed to

justify issuing a warrant to search Pierce’s truck. The search turned up an inventory of drugs

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and drug paraphernalia. The State charged Pierce with felony criminal possession of

dangerous drugs and two other misdemeanor drug offenses.

¶10 Pierce filed a motion to suppress the evidence obtained from the search of his truck.

He asserted that the State lacked probable cause to seize his truck and lacked probable cause

to support the issuance of the warrant to search his truck. Officer Hoffman conceded at the

suppression hearing that the information filed in his affidavit concerning the number of

Pierce’s past drug-related offenses could have been wrong. He further conceded that the two

days between impounding Pierce’s truck and the search provided “plenty of time” to confirm

Pierce’s criminal history. Officer Hoffman admitted that he had failed to confirm it. Indeed

Pierce had only one prior misdemeanor drug conviction approximately twenty-five years

before his arrest. He did have prior convictions, however, for several other offenses.

¶11 District Court Judge Larson denied the motion to suppress. Pierce pled guilty to all

three counts pursuant to a plea agreement and reserved his right to appeal the court’s denial

of his motion to suppress. The District Court sentenced Pierce to five years to the

Department of Corrections and suspended the entire sentence. Pierce now appeals the

District Court’s denial of his motion to suppress.

STANDARD OF REVIEW

¶12 We review a district court's denial of a motion to suppress to determine whether its

findings of facts prove clearly erroneous and whether its interpretation and application of the

law remains correct. State v. Dewitt, 2004 MT 317, ¶ 21, 324 Mont. 39, ¶ 21, 101 P.3d 277,

¶ 21. A court’s findings are clearly erroneous if they are not supported by substantial

evidence, the court misapprehended the effect of the evidence, or we are convinced by our

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review of the record that a mistake has been committed. Dewitt, ¶ 21.

¶13 In reviewing a motion to suppress evidence discovered as a result of a search pursuant

to a valid warrant, we normally review with deference a magistrate's determination of

probable cause in the search warrant. State v. Tackitt, 2003 MT 81, ¶ 11, 315 Mont. 59, ¶

11, 67 P.3d 295, ¶ 11 (citing State v. St. Marks, 2002 MT 285, ¶ 14, 312 Mont. 468, ¶ 14,

59 P.3d 1113, ¶ 14). When information must be excised from the application for the search

warrant, however, we review the warrant de novo for probable cause. Tackitt, ¶ 11. We

review de novo the district court's conclusion of law when denying a motion to suppress.

Dewitt, ¶ 21.

DISCUSSION

ISSUE ONE

¶14 Whether probable cause existed to support the warrantless seizure of Pierce’s truck.

¶15 Pierce contends that Officer Hoffman lacked probable cause to seize and impound his

truck and thereby violated his right to be protected against unreasonable seizure. Officer

Hoffman seized Pierce’s truck without a warrant, after arresting him based on his outstanding

warrants, when he placed evidence tape around the truck and had it towed and impounded.

Officer Hoffman did so, however, only after smelling burnt marijuana in the truck and Pierce

admitted that someone had smoked marijuana in the truck.

¶16 This matter mirrors State v. Broell (1991), 249 Mont. 117, 122, 814 P.2d 44, 47,

where Broell argued that the police unlawfully seized his car when they impounded it

without a warrant before the issuance of a search warrant. We held that a warrantless seizure

of a car fell under the “automobile exception” to illegal searches and seizures and is

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permissible “where there is probable cause to believe that such automobile’s contents ‘offend

against the law.’” Broell, 249 Mont. at 122, 814 P.2d at 47 (citing State v. Evjen (1988), 234

Mont. 516, 765 P.2d 708).

¶17 Pierce contends that Broell should not control this matter as we have since rejected

the “automobile exception” and demands that “a warrantless search of an automobile requires

the existence of probable cause as well as a generally applicable exception to the warrant

requirement such as a plain view search, a search incident to arrest, or exigent

circumstances.” State v. Elison, 2000 MT 288, ¶¶ 53-54, 302 Mont. 228, ¶¶ 53-54, 14 P.3d

456, ¶¶ 53-54. Pierce claims that he maintained a privacy interest in his truck and invites us

to apply Montana’s fundamental right to privacy under Article II, Section 10, of the Montana

Constitution to the seizure of his truck. He points to State v. Martinez, 2003 MT 65, ¶ 52,

314 Mont. 434, ¶ 52, 67 P.3d 207, ¶ 52, where we held that a traffic stop based on an

unreliable tip constituted an unconstitutional infringement on Martinez’s right to privacy.

¶18 Pierce seemingly again forgets, however, that Officer Hoffman smelled the burnt

marijuana, not based on a tip, but because he requested that Officer Hoffman retrieve his

phone book from the truck. Pierce apparently also has a memory lapse regarding his own

admission, and not that of an informant’s admission, that someone had committed the offense

of smoking marijuana inside of the truck. We therefore reject Pierce’s invitation to disallow

the seizure of his truck under Article II, Section 10, and conclude that, for today, Broell

controls the warrantless seizure. See Elison, ¶ 54, n. 3. As we have noted, “the seizure at

issue in Broell was lawful regardless of exigent circumstances because ‘there was sufficient

probable cause under the facts of this case to believe that illegal drugs were located in

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Broell's car.’” Elison, ¶ 54, n. 3 (quoting Broell, 249 Mont. at 123, 814 P.2d at 47).

¶19 Similar to Broell, we will base our analysis on Officer Hoffman’s probable cause to

conduct the warrantless seizure solely on the information that Officer Hoffman received

before towing and impounding the truck. Broell, 249 Mont. at 122, 814 P.2d at 47. We

agree with the State that Officer Hoffman possessed sufficient facts before towing the truck,

including the smell of burnt marijuana, Pierce’s admission that someone had smoked

marijuana in the truck, and the dispatch report that Pierce had earlier drug-related

convictions, upon which to conclude that the contents of Pierce’s truck “offended against the

law.” Broell, 249 Mont. at 122, 814 P.2d at 47.

¶20 Pierce attempts to eliminate Officer Hoffman’s reliance on Pierce’s criminal record

as justification to seize the truck because his only prior drug offense had been a 25 year-old

misdemeanor possession of drugs conviction. Pierce points to Tackitt, ¶ 6, where we

concluded that a seven-year-old misdemeanor drug citation proved insufficient to serve as

corroboration for an anonymous tip to establish particularized suspicion to order a canine

sniff. Tackitt, ¶ 41. We first note that Tackitt is not controlling given that the issue here

involves a seizure of a truck based upon the owner’s admission that an offense had taken

place inside it and not whether the required particularized suspicion existed, based on stale

information, to conduct a dog sniff. Tackitt, ¶ 41. Officer Hoffman relied on the information

that the dispatcher provided at that time, which was that Pierce had several earlier drug-

related offenses.

¶21 We agree with the State that even if Officer Hoffman improperly considered Pierce’s

earlier drug-related offenses in deciding to seize the truck, sufficient facts upon which

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Officer Hoffman could conclude that the contents of the truck “offended the law” remained.

Officer Hoffman still smelled burnt marijuana and Pierce admitted that someone had smoked

marijuana in the truck earlier that same day.

¶22 Pierce next argues that the odor of marijuana is insufficient to establish probable

cause for the warrantless seizure of his truck. State v. Schoendaller (1978), 176 Mont. 376,

382, 578 P.2d 730, 734, followed by State v. Olson (1979), 180 Mont. 151, 155, 589 P.2d

663, 665. These cases do not control here. Schoendaller concerned the issue of probable

cause to conduct a warrantless search based on the odor of marijuana alone. Olson

concerned probable cause to obtain a search warrant again relying exclusively on the odor

of marijuana. We agree with the State’s assertion that throughout his argument, Pierce

continually glosses over the fact that he admitted that a crime – marijuana smoking – had

been committed in the truck, and that this fact cannot be ignored. Officer Hoffman used the

odor in conjunction with Pierce’s admission to establish probable cause to seize the truck.

¶23 We conclude that Officer Hoffman had probable cause to support the warrantless

seizure of Pierce’s truck.

ISSUE TWO

¶24 Whether probable cause existed to support the issuance of a search warrant to search

Pierce’s truck.

¶25 Pierce argues that much of the information reported in Officer Hoffman’s affidavit

and upon which Judge Harkin relied on to issue the search warrant must be thrown out. He

contends that when the Court disregards certain elements such as the K-9 alert, Officer

Hoffman’s erroneous belief that Pierce had several past drug convictions, and the unknown

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woman’s attempts to enter the truck and retrieve items, the remaining facts are inadequate

to establish probable cause to justify the issuance of a search warrant.

¶26 A search warrant may be issued upon an 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. Section 46-5-221, MCA; State v. Griffin, 2004 MT 331, ¶ 20, 324 Mont. 143,

¶ 20, 102 P.3d 1206, ¶ 20.

¶27 We have adopted the totality of the circumstances tests set forth in Illinois v. Gates

(1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, to determine whether probable cause

existed to issue a search warrant. State v. Kuneff, 1998 MT 287, ¶ 22, 291 Mont. 474, ¶ 22,

970 P.2d 556, ¶ 22. Probable cause exists if all of the relevant facts and circumstances

within a trained law enforcement officer’s knowledge are sufficient to warrant a reasonable

person to believe that someone has committed an offense. Griffin, ¶ 21 (citing State v.

Frasure, 2004 MT 242, ¶ 15, 323 Mont. 1, ¶ 15, 97 P.3d 1101, ¶ 15). We review the

issuance of a search warrant to ensure that the issuing judge had a “substantial basis” to

determine probable cause existed. State v. Reesman, 2000 MT 243, ¶ 19, 301 Mont. 408,

¶ 19, 10 P.3d 83, ¶ 19 (citation omitted). We give a judge’s determination of probable cause

great deference and we will draw every reasonable inference possible to support that

determination. Reesman, ¶ 19.

¶28 Pierce asserts that “a mere affirmance or belief or suspicion by a police officer, absent

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any underlying facts or circumstances, does not establish probable cause for the issuance of

a search warrant.” Griffin, ¶ 23 (citation omitted). In Griffin, we concluded that “[j]ust

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.” Griffin, ¶ 24. Pierce argues that similar

to Griffin, in this case, just because somebody earlier in the day had smoked marijuana inside

Pierce’s truck did not mean his truck would contain evidence of a drug offense.

¶29 Throughout this appeal, Pierce attempts to separate out each bit of information from

the totality of the circumstances surrounding Officer Hoffman’s application for a warrant.

We agree that each bit of information presented by itself may not produce sufficient probable

cause for the issuance of a warrant, but Officer Hoffman’s application for a warrant included

several pertinent pieces of information which, taken as a whole, constitute sufficient probable

cause to issue the search warrant.

¶30 We look solely to the information given to the impartial magistrate and to the four

corners of the application when reviewing the sufficiency of the application for the search

warrant. State v. Crowder (1991), 248 Mont. 169, 173, 810 P.2d 299, 302. Officer Hoffman

smelled the marijuana only because Pierce requested that Officer Hoffman retrieve a phone

book from the dashboard of the truck. Pierce then admitted that someone had smoked

marijuana inside of the truck earlier in the day. The smell of marijuana and Pierce’s

admission alone are sufficient evidence to warrant a reasonable person to believe Pierce’s

truck would contain evidence of an offense. Officer Hoffman additionally knew shortly after

impounding the truck that an unidentified woman twice had attempted to retrieve items from

the truck. As such, we safely may set aside the questionable K-9 search and Officer

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Hoffman’s erroneous belief that Pierce had several past drug convictions. We still may

conclude that Officer Hoffman’s affidavit contained sufficient information to support a

reasonable person’s belief that the offense of possession of dangerous drugs had been

committed and that evidence or contraband may be found within the truck. The District

Court therefore properly denied Pierce’s motion to suppress evidence.

¶31 Affirmed.

/S/ BRIAN MORRIS

We Concur:

/S/ JOHN WARNER
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE

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