January 15 2008
DA 06-0287
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 7
STATE OF MONTANA,
Plaintiff and Appellee,
v.
KARSTEN K. SMITH,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-02-133
Honorable John S. Henson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Mathew M. Stevenson, Attorney at Law, Missoula, Montana
For Appellee:
Hon. Mike McGrath, Attorney General; John Paulson,
Assistant Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney; Andrew W.
Paul, Deputy County Attorney, Missoula, Montana
Submitted on Briefs: September 12, 2007
Decided: January 15, 2008
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Karsten Karl Smith (Smith) appeals from the judgment entered by the Fourth
Judicial District Court, Missoula County, on his convictions for felony criminal
possession of dangerous drugs and misdemeanor criminal possession of drug
paraphernalia. We affirm in part and remand.
¶2 Smith raises the following issues on appeal:
¶3 1. Did the District Court err in denying Smith’s motion to suppress evidence?
¶4 2. Did the District Court err in denying Smith’s motion to dismiss the charges
based on a violation of his right to a speedy trial?
BACKGROUND
¶5 On March 11, 2002, probation and parole officer Kathleen Beccari (Beccari) met
with probationer Mark Dornan (Dornan). At the time, Dornan was living in Missoula,
Montana, with his girlfriend Delores Shepherd (Shepherd). Shepherd’s sister, Darlene
Garcia (Garcia), who also was on probation, was supposed to be living at the same
residence with Dornan and Shepherd. Dornan informed Beccari that Garcia had not lived
with them for several months and, instead, had been living with her boyfriend Smith in a
trailer on the Pruyn Ranch. Beccari reported this information to Garcia’s probation
officer, Tom Forsyth (Forsyth). Forsyth contacted Shepherd, who confirmed that Garcia
had not lived with Dornan and Shepherd for several months and was living with Smith.
Forsyth met with Garcia the following day and Garcia admitted that, although she
previously reported she lived with Dornan and Shepherd, she actually was living with
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Smith on the Pruyn Ranch. Garcia then submitted to a drug test, which tested positive for
methamphetamine, and she was arrested for violating the conditions of her probation.
Based on the unreported change in residence and the positive drug test, Forsyth also
determined a probation search of Garcia’s residence at the Pruyn Ranch was justified.
¶6 Later that day, Forsyth, Beccari, a third probation officer, and officers from the
Missoula County Sheriff’s Office accompanied Garcia to the Pruyn Ranch. Garcia
indicated she was fearful of Smith’s reaction to a search of the trailer and stated she did
not have a key to the trailer. The officers gained entry by prying open the trailer’s back
door. Upon searching, the officers found weapons, drug paraphernalia, and items used to
manufacture and distribute drugs. They also found Garcia’s purse and located some of
her clothing in a closet.
¶7 After searching the trailer, the officers decided to apply for a search warrant to
search a bus parked near the trailer. While they waited for the search warrant to arrive,
Smith drove up to the trailer in a pickup truck. Based on the drug-related items found in
the trailer, as well as one officer’s knowledge that Smith’s driver’s license was
suspended, Smith was arrested. In a search of his person incident to the arrest, officers
discovered a large amount of cash, a marijuana pipe and a vial which Smith admitted
contained methamphetamine. The officers later obtained a search warrant for Smith’s
truck and discovered a leather pouch containing nine bindles of methamphetamine. The
search of the bus revealed chemical precursors to methamphetamine.
¶8 On April 16, 2002, the State of Montana (State) charged Smith by information
with felony criminal possession of dangerous drugs and misdemeanor criminal
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possession of drug paraphernalia. The State amended the information on June 10, 2002,
to add a third charge of felony criminal possession of dangerous drugs with intent to
distribute. Smith moved to suppress all evidence obtained in the searches. The District
Court denied Smith’s motion to suppress on February 3, 2003.
¶9 The District Court eventually scheduled a jury trial for August 11, 2004. In late
June of 2004, Smith moved to dismiss the charges against him on the basis that his
constitutional right to a speedy trial had been violated. The District Court denied this
motion. The court then vacated the trial setting without rescheduling the trial, and
nothing further happened in this matter until the District Court ordered the parties to
appear for a status conference on April 5, 2005. After several continuances of the status
conference, the court scheduled the trial for November 9, 2005. On June 28, 2005, Smith
again moved to dismiss the charges against him based on lack of a speedy trial. The
District Court held a hearing and denied Smith’s motion. Subsequently, in February of
2006, Smith appeared in the District Court and pled guilty to the offenses of criminal
possession of dangerous drugs and criminal possession of drug paraphernalia pursuant to
a plea agreement with the State, reserving his right to appeal the court’s denial of his
pretrial motions. The District Court accepted Smith’s guilty pleas, sentenced him, and
entered judgment on the convictions and sentences. Smith appeals.
DISCUSSION
¶10 1. Did the District Court err in denying Smith’s motion to suppress evidence?
¶11 Smith’s motion to suppress all the evidence seized during the searches in this case
asserted that the initial warrantless search of his trailer was unlawful because it was not
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justified as a probation search or by any other exception to the search warrant
requirement. As a result, according to Smith, the subsequent searches of his person, bus
and pickup truck also were unlawful as emanating from the initial unlawful search of the
trailer.
¶12 The District Court determined that Garcia’s unreported change in residence and
positive drug test gave her probation officer, Forsyth, reasonable cause to conduct a
probationary search of Garcia’s new residence, which was Smith’s trailer. The court
further determined that Smith’s subsequent arrest, the search of his person pursuant to
that arrest, and the searches of his vehicles pursuant to warrants all were lawful.
Consequently, the District Court denied Smith’s motion to suppress evidence. Smith
asserts error.
¶13 We review a district court’s ruling on a motion to suppress evidence to determine
whether its findings of fact are clearly erroneous and its interpretation and application of
the law correct. State v. Fritz, 2006 MT 202, ¶ 8, 333 Mont. 215, ¶ 8, 142 P.3d 806, ¶ 8.
¶14 The Fourth Amendment to the United States Constitution and Article II, Section
11 of the Montana Constitution guarantee an individual’s right to be free from
unreasonable searches and seizures. It is well-established that a search conducted in the
absence of a properly issued warrant based on probable cause is per se unreasonable
absent a recognized exception to the warrant requirement. See e.g. State v. Copelton,
2006 MT 182, ¶ 10, 333 Mont. 91, ¶ 10, 140 P.3d 1074, ¶ 10 (citation omitted).
¶15 A search of a probationer’s residence or effects, however, may be conducted
without a search warrant and pursuant to the lesser standard of “reasonable cause,” rather
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than probable cause. Fritz, ¶ 10; State v. Kriesel, 2000 MT 144, ¶ 12, 300 Mont. 44, ¶
12, 2 P.3d 831, ¶ 12. The rationale for applying the lesser standard is that a probationer
has a diminished expectation of privacy and a supervising probation officer is in a better
position to determine the level of supervision necessary to provide rehabilitation to the
probationer and safety to the community. Fritz, ¶ 10; Kriesel, ¶ 13. Determining the
existence of reasonable cause to conduct a probationary search involves a factual inquiry
based on the totality of the circumstances. Fritz, ¶ 10; Kriesel, ¶ 13.
¶16 Smith argues that the District Court’s finding that Forsyth had sufficient
information on which to determine Garcia was living at Smith’s trailer on the Pruyn
Ranch is clearly erroneous and cannot support the court’s further finding that Forsyth had
reasonable cause to conduct a probationary search of the trailer. We disagree.
¶17 Garcia had been reporting to Forsyth that she resided with Shepherd and Dornan.
On March 11, 2002, however, Dornan’s probation officer informed Forsyth that Dornan
had stated Garcia was currently living with Smith at the trailer on the Pruyn Ranch.
Forsyth then spoke directly with Shepherd, who confirmed that Garcia was no longer
living with her and Dornan, but was living with Smith. Furthermore, Garcia met with
Forsyth on March 12, 2002, and admitted she was living with Smith and had failed to
inform Forsyth of her change in residence. Thus, Forsyth had first-hand information—
including Garcia’s own admission—that Garcia was living with Smith and had changed
her residence in violation of the conditions of her probation. We conclude the District
Court’s finding of fact in this regard is not clearly erroneous.
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¶18 In addition, Garcia provided a urine sample for drug testing at Forsyth’s request
during their March 12 meeting. The drug test showed a positive result for
methamphetamine use. Thus, Forsyth had the additional information that Garcia was
using drugs in violation of her probation conditions, and reason to believe evidence of
drugs and drug use might be found at her residence. We agree with the District Court
that, under the totality of the circumstances—including Garcia’s unreported change of
residence and positive drug test—Forsyth had reasonable cause to search Smith’s trailer
on the Pruyn Ranch where Garcia currently was living. Thus, we further conclude that
the search of Smith’s trailer was justified as a probationary search.
¶19 Smith also argues, however, that Forsyth’s probationary search of his trailer was
unlawful because Forsyth failed to follow policies and procedures set by the Montana
Department of Corrections Probation and Parole Bureau, in that Forsyth “failed to verify
[Garcia] lived at the trailer, that she had Smith’s permission to live at the trailer and that
Smith understood the implications of allowing [Garcia] to live in the trailer.” However,
Smith fails to cite the specific policies and procedures he asserts were violated and fails
to provide legal authority in support of his contention that a violation of such policies or
procedures would render a probationary search unlawful. We do not address arguments
which are not supported by citation to legal authority. See e.g. State v. Hicks, 2006 MT
71, ¶ 22, 331 Mont. 471, ¶ 22, 133 P.3d 206, ¶ 22; M. R. App. P. 12(1)(f).
¶20 Having determined that the search of Smith’s trailer was legally justified as a
probationary search of Garcia’s residence, and absent any other challenge by Smith to the
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legality of the searches of his person and vehicles, we conclude the District Court did not
err in determining these searches were lawful.
¶21 We hold that the District Court did not err in denying Smith’s motion to suppress
evidence.
¶22 2. Did the District Court err in denying Smith’s motion to dismiss the charges
based on a violation of his right to a speedy trial?
¶23 Smith moved the District Court to dismiss the charges against him on two
occasions, asserting the State had violated his right to a speedy trial. The District Court
denied both motions. In its second order denying Smith’s motion, the court observed
that, although it found the length of delay in bringing the case to trial troubling, the State
had met its burden of establishing the delay had not prejudiced Smith. Thus, the court
determined Smith’s right to a speedy trial was not violated. Smith contends the District
Court’s conclusion in this regard is erroneous.
¶24 On appeal, both Smith and the State analyze this speedy trial issue pursuant to the
standards we originally set forth in City of Billings v. Bruce, 1998 MT 186, 290 Mont.
148, 965 P.2d 866. However, after the parties briefed this appeal, we rendered our
decision in State v. Ariegwe, 2007 MT 204, 338 Mont. 442, 167 P.3d 815, in which we
established a new framework for analyzing speedy trial claims. Thus, neither the District
Court nor the parties had the opportunity to analyze the speedy trial issue under this new
framework. We deem it appropriate that the District Court apply the Ariegwe analysis in
the first instance. For that reason, we decline to resolve this issue and, instead, remand it
to the District Court without prejudice to a timely appeal thereafter by either party.
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¶25 Affirmed in part and remanded for further proceedings consistent with this
opinion.
/S/ KARLA M. GRAY
We concur:
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ BRIAN MORRIS
Justice James C. Nelson concurs and dissents.
¶26 I concur in our Opinion as to Issue 1. I dissent from our Opinion as to Issue 2 for
the same reasons that I dissented from our remand order in State v. Billman, No. DA 06-
0753, issued November 7, 2007.
/S/ JAMES C. NELSON
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