State v. Gomez

No. 05-651

IN THE SUPREME COURT OF THE STATE OF MONTANA

2007 MT 111

THE STATE OF MONTANA,

Plaintiff and Respondent,

v.

ROBERT MICHAEL GOMEZ,

Defendant and Appellant.

APPEAL FROM: The District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DC 2004-195(A),
Honorable Ted O. Lympus, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Dean Knapton, Attorney at Law, Kalispell, Montana

For Respondent:

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

Ed Corrigan, County Attorney, Kalispell, Montana

Submitted on Briefs: October 4, 2006

Decided: May 8, 2007

Filed:

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

¶1 Appellant Robert Michael Gomez (Gomez) appeals his conviction in the District

Court for the Eleventh Judicial District, Flathead County, of operating an unlawful

clandestine laboratory, a felony. We affirm.

¶2 Gomez raises the following issues on appeal:

¶3 (1) Did the District Court err in denying Gomez’s motion to suppress evidence

based on a warrantless search of:

a. the motor home, with the landlord’s consent?

b. the padlocked duffel bag, pursuant to exigent circumstances?

¶4 (2) Did the District Court err in denying Gomez’s motion in limine made pursuant

to M. R. Evid. 404(b) regarding other crimes, wrongs, or bad acts?

¶5 (3) Did the District Court abuse its discretion by denying Gomez’s objection to a

State’s witness testifying on redirect examination by reading portions of her prior

statement?

¶6 (4) Did the District Court abuse its discretion by overruling Gomez’s objection to

the introduction of evidence on chain of custody grounds?

¶7 For the reasons discussed herein, we decline to address issues (2) through (4).

BACKGROUND

¶8 Noemi and Revard Lund (Lunds), of Kalispell, Montana, met Gomez at a local

homeless shelter and hired him to do some work for them. Shortly after beginning work

for the Lunds, Gomez told them that he could no longer stay at the shelter. The Lunds

allowed Gomez to stay in their motor home, which they used primarily for storage, while
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he worked for them. Since the motor home did not have cooking facilities or running

water, Gomez ate his meals and used the bathroom in the Lunds’ home.

¶9 Rebecca Keys (Rebecca) lives in Whitefish, Montana. Rebecca also met Gomez

at the homeless shelter, and they quickly formed an intimate relationship. After spending

the night of May 12, 2004, with Gomez at the motor home, Rebecca left town for a long

weekend. At that time, Rebecca’s sister, Angela, was visiting Rebecca. Because Angela

did not have a driver’s license, Rebecca left her car keys with Gomez and encouraged

him to entertain Angela during her absence, which he did. Gomez took Angela out on

several occasions over the next several days, and, according to Angela’s testimony, on

one particular trip they went to a feed store where Gomez bought a big bottle of what

looked like iodine, went to another store where he purchased a stack of paper matches,

and then dropped off his purchases at the motor home. Gomez told Angela not to come

into the motor home.

¶10 By May 16, 2004, Angela’s son had come to stay with Angela at Rebecca’s

apartment. Gomez continued to frequent Rebecca’s apartment, and, because Rebecca’s

apartment key was on the same keychain as her car key, Gomez would let himself into

the apartment. This was initially fine with Angela, but when Angela’s son came to visit,

she became perturbed, feeling Gomez was out-staying his welcome. Upon discovering

indications that Gomez had stolen some of Rebecca’s money, Angela called the police.

Officer Childers and Officer Peters of the Whitefish Police Department responded to

Rebecca’s apartment, and with Angela’s permission they entered the apartment. The

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officers found Gomez hiding in the attic, whereupon they arrested him for trespass and

removed him from the apartment.

¶11 Rebecca returned later that same day and gave the officers permission to search

her car, which Gomez had been using. In the trunk, the officers discovered items

commonly used in the manufacturing of methamphetamine. Consequently, the matter

was referred to the Northwest Drug Task Force. Scott Meehan (Meehan), a detective for

the task force, found lighter fluid, a duffle bag containing multi-layered liquids in bottles,

an anti-freeze jug containing a suspicious liquid, a latex medical glove duct-taped to the

end of a Coke bottle, a bottle of rubbing alcohol, Red Devil Lye, test strips for pools and

spas, and a So-Be bottle. The drug agents then followed drug lab seizure procedures to

secure and identify the items.

¶12 Meanwhile, when Gomez failed to appear for a few days, Noemi Lund (Noemi)

went to the motor home to see if Gomez’s belongings were still there and noticed that

Gomez was utilizing a two-burner electric stove, which she assumed was for food

preparation. When a couple more days passed without hearing from Gomez, the Lunds

padlocked the motor home so Gomez would have to request access from them in order to

obtain his belongings.

¶13 From his investigation, Meehan became concerned about whether Gomez may

have been manufacturing methamphetamine in the Lunds’ motor home. On May 19,

2004, Meehan met with the Lunds and received their permission to search the motor

home. The Lunds removed the padlock. Upon entering the motor home, Meehan saw

various items which appeared to have recently been used to manufacture
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methamphetamine. He immediately backed out of the motor home and called for a drug

lab team.

¶14 Due to the potential danger that can arise at a methamphetamine laboratory and

their belief that methamphetamine had recently been manufactured inside the motor

home, the officers donned “hazmat” protective suits with respirators. The officers also

exercised extraordinary caution in removing the lab materials in individual pieces,

meticulously identifying each piece, including an electric cooktop stove with a white

powdery substance spilled and crusted over the burners, jugs and jars containing

unknown liquids, propane canisters, coffee filters, rubber gloves, and a quart of lighter

fluid. Bedding in the motor home was lying adjacent to the lab materials. Observing that

the bedding was very porous and believing that it was contaminated due to its proximity

to the chemicals, the officers decided to remove the bedding to destroy it. An officer then

picked up a padlocked black duffle bag that was sitting on or with the bedding, and in

doing so, the officers heard the sounds of clanging metal or glass and sloshing liquid

within the bag. They became extremely concerned about the potential presence of

dangerous chemicals and immediately removed the bag from the motor home and placed

it on a tarp on the ground. Without obtaining a search warrant and within about one

minute after discovering it, the officers cut the lock and opened the bag, finding a jar of

gray crystals that Meehan believed to be iodine crystals, a jar with a red substance labeled

muriatic acid, pool and spa tester strips, a multi-layered liquid, and an unknown liquid.

¶15 Gomez was ultimately charged by an amended information with one count of

operation of an unlawful clandestine laboratory and one count of criminal possession of
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dangerous drugs. The possession charge was later dismissed on the State’s motion.

Gomez filed a motion to suppress the items seized from the motor home on the grounds

the search violated the United States and Montana Constitutions. A hearing scheduled on

the motion was vacated when the parties reached a plea agreement and Gomez entered a

guilty plea to the charge. However, Gomez later sought to withdraw his plea, which was

granted by the District Court. A hearing on Gomez’s suppression motion and his motion

to exclude evidence of other crimes and wrongs was then scheduled for April 8, and a

jury trial was scheduled for April 18, 2005.

¶16 At the hearing, Gomez advised the court that he was withdrawing his suppression

argument, based upon the Lunds not having authority to consent to the search of the

motor home’s bedroom, and would instead argue only that the warrantless search of the

padlocked duffle bag was unconstitutional. After hearing, the District Court, noting the

impending trial, issued a written order denying Gomez’s motions and indicated that a

fuller rationale would follow, but which apparently was never provided. A jury trial was

conducted on April 18 through April 20, 2005, during which Gomez filed two objections.

The first was to a witness reading a portion of her prior statement, which the court

overruled because defense counsel had previously cross-examined the witness from the

same statement, and, secondly, that the State had not established a sufficient chain of

custody foundation for several exhibits, which was also overruled. Gomez was found

guilty of operating an unlawful clandestine laboratory and was thereafter sentenced to

thirty years in the Montana State Prison with fifteen years suspended. He appeals.

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 STANDARD OF REVIEW

¶17 This Court reviews a district court’s denial of a motion to suppress to determine

whether the court’s findings of fact are clearly erroneous and whether its interpretation

and application of the law is correct. State v. DeWitt, 2004 MT 317, ¶ 21, 324 Mont. 39,

¶ 21, 101 P.3d 277, ¶ 21. A district court’s findings of fact are clearly erroneous if: (1)

they are not supported by substantial evidence; (2) the district court misapprehended the

effect of the evidence; or (3) the district court made a mistake. DeWitt, ¶ 21.

¶18 We review a district court’s evidentiary rulings for an abuse of discretion. State v.

McCaslin, 2004 MT 212, ¶ 15, 322 Mont. 350, ¶ 15, 96 P.3d 722, ¶ 15. A district court

abuses its discretion if it acts arbitrarily without conscientious judgment or exceeds the

bounds of reason. McCaslin, ¶ 15.

DISCUSSION

¶19 (1) Did the District Court err in denying Gomez’s motion to suppress evidence
based on a warrantless search of:

a. the motor home, with the landlord’s consent?

¶20 Gomez contends that a landlord has no authority to grant permission for a search

of a suspect’s residence. Therefore, he argues that the Lunds did not have the authority to

consent to the search of the motor home where he was staying. The State responds that

this issue has not been preserved for appeal, because Gomez withdrew this argument at

the suppression hearing and it was never ruled upon by the District Court.

¶21 The rule is well established that this Court will not address an issue raised for the

first time on appeal. State v. Peterson, 2002 MT 65, ¶ 24, 309 Mont. 199, ¶ 24, 44 P.3d

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499, ¶ 24 (citing State v. Weaselboy, 1999 MT 274, ¶ 16, 296 Mont. 503, ¶ 16, 989 P.2d

836, ¶ 16). Therefore, a party may not raise new arguments or change its legal theory on

appeal. Unified Industries, Inc. v. Easley, 1998 MT 145, ¶ 15, 289 Mont. 255, ¶ 15, 961

P.2d 100, ¶ 15. “The reason for the rule is that it is fundamentally unfair to fault the trial

court for failing to rule on an issue it was never given the opportunity to consider.” State

v. Martinez, 2003 MT 65, ¶ 17, 314 Mont. 434, ¶ 17, 67 P.3d 207, ¶ 17.

¶22 Gomez withdrew and did not make an argument in the District Court that the

search of the motor home, pursuant to the Lunds’ consent, was illegal. Therefore, we

decline to address this issue.

b. the padlocked duffel bag, pursuant to exigent circumstances?

¶23 “We have recognized that the United States and Montana Constitutions protect

persons from unreasonable searches and seizures.” State v. Saxton, 2003 MT 105, ¶ 25,

315 Mont. 315, ¶ 25, 68 P.3d 721, ¶ 25 (citing State v. Wakeford, 1998 MT 16, ¶ 21, 287

Mont. 220, ¶ 21, 953 P.2d 1065, ¶ 21). “We have also recognized the rule that

warrantless searches conducted inside a person’s home are per se unreasonable, with few

exceptions to that rule.” Saxton, ¶ 25. “There is an exception to the warrant requirement

where an officer concludes that there are ‘exigent circumstances’ and ‘probable cause’ to

justify a warrantless search.” Saxton, ¶ 26 (quoting Wakeford, ¶ 22). Here, the parties

dispute only the existence of exigent circumstances for the warrantless search of the

duffle bag, which was located within the motor home.

¶24 This Court has defined exigent circumstances as those circumstances that “would

cause a reasonable person to believe that entry (or other relevant prompt action) was
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necessary to prevent physical harm to the officers or other person, the destruction of

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

frustrating legitimate law enforcement efforts.” Cassady v. Yellowstone County Sheriff,

2006 MT 217, ¶ 33, 333 Mont. 371, ¶ 33, 143 P.3d 148, ¶ 33 (quoting State v. Anyan,

2004 MT 395, ¶ 34, 325 Mont. 245, ¶ 34, 104 P.3d 511, ¶ 34); see also State v. Bassett,

1999 MT 109, ¶ 47, 294 Mont. 327, ¶ 47, 982 P.2d 410, ¶ 47 (“In determining whether

exigent circumstances exist, the court considers factors such as the possible destruction of

evidence, the mobility of the evidence, the safety of police officers, the gravity of the

crime, and other emergency situations.”).

¶25 Gomez argues the State’s attempt to validate the search on the basis of exigent

circumstances—public and officer safety—are specious. Gomez contends the officers

had no right to even pick up the bag, because if they had suspected it contained

methamphetamine lab materials then, based on their experience and training, they should

have known that disturbing the bag could unleash the fumes and explosive chemicals,

which later formed this concern. Therefore, the officers should not have disturbed it

without a warrant.

¶26 The State contends that the officers were properly engaged in detoxifying the

property when the duffle bag was moved, and they were necessarily required to

immediately determine if dangerous chemicals were present in order to minimize any

potential danger and, thus, exigent circumstances were present. Alternatively, the State

argues that Gomez has not challenged the officers’ authority to seize all items indicative

of a methamphetamine lab, which were in plain view.
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¶27 In U. S. v. Lloyd, the Eighth Circuit Court of Appeals held “[t]he dangers created

by methamphetamine labs can justify an immediate search because of exigent

circumstances ‘[d]ue to the volatile nature of such labs.’” U. S. v. Lloyd, 396 F.3d 948,

954 (8th Cir. 2005), cert. denied, Lloyd v. U. S., 545 U.S. 1110, 125 S. Ct. 2558 (2005)

(quoting Kleinholz v. U. S., 339 F.3d 674, 677 (8th Cir. 2003); see also State v. Chapman,

813 P.2d 557, 560-61 (Or. App. 1991) (concluding that a working methamphetamine lab

provided exigent circumstances for warrantless search). We have stated that “[e]xigent

circumstances for conducting a warrantless search exist ‘where it is not practicable to

secure a warrant.’” Bassett, ¶ 47 (quoting State v. McCarthy, 258 Mont. 51, 57, 852 P.2d

111, 114 (1993).

¶28 With the Lunds’ consent, Meehan entered the motor home and, upon seeing the

materials identified herein, immediately backed out. He did not see the duffle bag on the

initial entry. He called for a drug lab team, which arrived in a lab truck within

approximately fifteen minutes. After securing the perimeter of the scene to keep the

public away from the motor home, Officers Meehan and Kevin McCarvel suited up in

protective clothing 1 and entered the motor home, while other officers worked outside.

The purpose of two officers entering the motor home was explained as “in case

somebody gets hurt, gets overcome by chemicals, you need somebody that can pull

somebody out.” During the process of removing the potentially hazardous materials from

1
According to Meehan’s testimony, the protective clothing included a Tyvek suit
with full respirator, Nomex gloves topped with rubber gloves and footwear consisting of
rubber booties. All seams in the gear, including the hoods, were sealed with duct tape.

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the motor home, they noticed a porous blanket or bedding that was lying adjacent to the

materials, specifically, a garbage can containing coffee filters on which a red substance

had been spilled. Confident that the bedding was contaminated, due to its proximity to

the lab materials, the officers believed it should be removed and destroyed. While

attempting to do so, one of the officers picked up the duffle bag sitting on or with the

bedding and the officers heard the sounds of liquid sloshing and metal or glass clanging

within the bag. The officers testified they originally did not have intentions of opening

the bag, but that this changed when they heard these noises. Of concern to the officers

was the possibility of a chemical reaction, particularly given the minimal ventilation in

the small motor home’s interior. 2 Meehan explained as follows:

Due to the circumstances, like I said, we had disturbed a bag, hearing
chemicals slosh around, I didn’t know if - there is - you know, there is
many different gasses that can be produced from these specific chemicals
involved in methamphetamine. There can – you know, there is threat of
fire and explosion with other trailers in close proximity, children around.
We had – we actually had one person coming over to try to visit the Lunds.
We had people present, we had unknown chemicals present – what we
believed to be unknown chemicals, and we felt that the hazards – needed to
get into the bag to separate the chemicals out.

The officers brought the bag out of the motor home, laid it on a tarp, and notified the

safety officer, Detective Wingert, of the presence of suspect liquids in the bag. Meehan

testified that he believed applying for a search warrant would have taken at least forty-

2
Meehan estimated that the interior area of the motor home measured “probably
six or seven feet wide by probably seven to eight feet deep” and added: “There wasn’t a
lot of room. We couldn’t pass each other. I mean it was one in, one out. And the length
of this motor home from the front door to the back, you know, couldn’t have been more
than probably ten feet, fifteen feet maximum.”
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five minutes. The bag was opened within about one minute after the officers heard the

noises, no warrant having been obtained.

¶29 We conclude the District Court did not err in holding that exigent circumstances

justified the officers’ warrantless search of the duffle bag. An urgency had arisen during

the process of dismantling the methamphetamine lab, which posed a potential threat to

the safety of the officers, as well as the properties and persons in the immediate area.

¶30 Issues 2, 3, and 4.

¶31 Gomez’s briefing with regard to these issues consists of only three paragraphs

within approximately one page, and fails to cite a case in any of the arguments. Citing

M. R. App. P. 23(a)(4), the State contends that Gomez’s arguments are insufficiently

supported with authority and that this Court should decline to consider the arguments.

We agree.

¶32 The Montana Rules of Appellate Procedure govern the procedure for appeals to

this Court in civil and criminal cases. The Rules are designed to ensure that parties to an

appeal present their cases in a way that provides this Court with the necessary

information to render an informed, legally correct ruling, and to facilitate fairness and

judicial economy. In regard to a brief’s substance, M. R. App. P. 23(a)(4) provides that

the argument section “shall contain the contentions of the appellant with respect to the

issues presented, and the reasons therefor, with citations to the authorities, statutes and

pages of the record relied on.”

¶33 Moreover, a district court’s decision is presumed correct, Matter of M.J.W., 1998

MT 142, ¶ 18, 289 Mont. 232, ¶ 18, 961 P.2d 105, ¶ 18 (citations omitted), and the
12
appellant bears the burden of establishing error. M.J.W., ¶ 18; see also, Small v. Good,

284 Mont. 159, 163, 943 P.2d 1258, 1260 (1997); Rieman v. Anderson, 282 Mont. 139,

147, 935 P.2d 1122, 1127 (1997). Furthermore, “[i]t is not this Court’s job to conduct

legal research on his behalf, to guess as to his precise position, or to develop legal

analysis that may lend support to that position.” Johansen v. State, Dept. of Natural

Resources, 1998 MT 51, ¶ 24, 288 Mont. 39, ¶ 24, 955 P.2d 653, ¶ 24 (citations omitted).

¶34 Gomez’s arguments with regard to Issues 2, 3, and 4 have failed to meet the

standards under M. R. App. P. 23(a)(4) and have failed to carry the appellant’s burden to

demonstrate error in the rulings of the District Court which are challenged within these

issues.

¶35 Affirmed.

/S/ JIM RICE

We concur:

/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JOHN WARNER

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Chief Justice Karla Gray, specially concurring.

¶36 I join the Court’s opinion and the results it reaches. I write separately to state the

obvious, which is that the District Court totally ignored its duty with regard to determinations on

the motion to suppress.

¶37 As the Court properly states at ¶ 16, the District Court issued a written order denying the

various motions and “indicated that a fuller rationale would follow[.]” The District Court did not

file findings of fact and conclusions of law.

¶38 M. R. Civ. P. 52(a) requires that “[i]n all actions tried upon the facts without a jury . . . ,

the court shall find the facts specially and state separately its conclusions of law thereon[.]” The

District Court failed to satisfy this requirement. Consequently, this Court cannot apply its clearly

erroneous standard of review of trial court findings, as set forth in the Court’s Opinion at ¶ 17.

¶39 I recognize fully that some district courts in Montana are overloaded with filings and

have insufficient staff to assist them. However, this reality does not, and cannot be allowed to,

excuse trial courts from their obligations in the first instance, and foist their jobs off onto this

Court—which also is overloaded with filings and insufficiently staffed.

¶40 We should not allow district courts to avoid meeting their obligations by doing their work

for them, and I will not join in any future opinion which does so. Rather than delay this already

“whiskered” case—in which the notice of appeal was filed on August 5, 2005—any longer, I

choose in this final instance to join the Court in addressing the suppression issue on its merits

rather than remanding with instructions to the District Court to make, enter and file findings of

facts and conclusions of law.

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¶41 For these reasons, while concurring in the Court’s opinion, I specially concur with regard

to what is not stated therein.

/S/ KARLA M. GRAY

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