May 7 2009
DA 07-0763
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 158
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MARK PATRICK HILGENDORF,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 07-0236
Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender; Roberta R. Zenker, Assistant
Appellate Defender; Helena, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Micheal S. Wellenstein;
Assistant Attorney General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney; Victoria Callender,
Deputy County Attorney, Billings, Montana
Submitted on Briefs: November 6, 2008
Decided: May 7, 2009
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Mark Hilgendorf pled guilty to criminal possession of dangerous drugs and drug
paraphernalia. Pursuant to the terms of the plea agreement, Hilgendorf reserved the right
to appeal the District Court’s denial of his motion to suppress evidence of drugs, drug
paraphernalia, and any statements made by him or his passenger on the ground that the
arresting officer did not have particularized suspicion to stop his vehicle or a warrant to
search a closed container seized at the scene. Hilgendorf appeals.
¶2 We affirm and state the issues on appeal as follows:
¶3 1. Did the District Court err by concluding the arresting officer had particularized
suspicion to stop Hilgendorf’s vehicle?
¶4 2. Did the District Court err by concluding that law enforcement would have
inevitably discovered the drugs in the closed container?
BACKGROUND
¶5 On March 16, 2007, at approximately 2:00 a.m., while patrolling in Billings in a
marked Yellowstone County Sheriff’s patrol car, Deputy Chris Romero observed a
vehicle parked next to a business on South 23rd Street with its engine running and its
lights on. The businesses in this area, which at that late hour were closed, had
experienced a high rate of theft and burglary. Romero proceeded past the parked vehicle
and circled around the block. The moment Romero’s headlights illuminated the rear of
the parked vehicle a second time, the car immediately pulled out and quickly drove away.
Wondering whether the occupants of the vehicle were engaged in a criminal activity,
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Romero followed the vehicle. The vehicle stopped at a stop sign and made a right turn
onto First Avenue South. Romero noticed that, while the vehicle was driving, the
occupants were moving around inside as if they were trying to conceal something.
Romero then initiated a stop.
¶6 After stopping his patrol car, Romero saw the driver duck his head down to where
he could only see the top of it. Romero demanded the occupants of the vehicle put their
hands up. He identified himself and explained why he stopped their vehicle. The driver,
later identified as Hilgendorf, told Romero that he had parked near the closed business in
order to sign his timecard. Romero noticed the hands of both Hilgendorf and his
passenger were shaking and they were acting extremely nervous, which he surmised to be
an effect of amphetamine use. Romero returned to his patrol car to check for any
outstanding warrants on the occupants, during which time a second officer arrived to
provide assistance.
¶7 While in his patrol car, Romero noticed both occupants were moving around
inside the vehicle, and the passenger was opening and closing the door on his side as if
attempting to discard something. These actions also caused Romero concern for his
safety. Interrupting the warrant check, Romero re-approached the vehicle, asked the
passenger to exit, and began to frisk the passenger. The passenger resisted and Romero
and the second officer restrained him with handcuffs. During the subsequent pat-down
search, Romero found an orange container which the passenger promptly admitted
contained drugs. After placing the passenger in custody, Romero asked Hilgendorf to
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exit the vehicle. While patting down Hilgendorf, Romero discovered a drug pipe and
arrested him for possession of drug paraphernalia. After handcuffing Hilgendorf,
Romero searched him for any additional contraband and found an orange container
identical to the one found on the passenger. Romero opened this container and found
crystal powder, a razor blade, and a smaller container containing marijuana.
¶8 On March 20, 2007, the State charged Hilgendorf with two counts of Criminal
Possession of Dangerous Drugs and Criminal Possession of Drug Paraphernalia. On May
22, Hilgendorf moved to suppress the drugs and paraphernalia found during the
investigatory stop, as well as any statements made by him or his passenger. He claimed
the investigatory stop was not supported by particularized suspicion, and that Romero
had unlawfully examined the contents of the orange container found on his person
without a search warrant.
¶9 On July 27, 2007, the court held an evidentiary hearing, at which Romero testified
to the foregoing events. After considering the briefs and oral arguments of both parties
and Romero’s testimony, the District Court denied Hilgendorf’s motion. The court found
Romero had particularized suspicion to conduct the investigatory stop, and the contents
of the orange container found on Hilgendorf would have inevitably been discovered.
¶10 On August 28, 2007, Hilgendorf pled guilty to all the charges against him pursuant
to a plea agreement, wherein he reserved his right to appeal the District Court’s denial of
his motion to suppress. The court deferred imposition of sentence for the felony
possession of dangerous drugs for three years, and imposed two six-month suspended
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sentences for the remaining charges, all of which to run concurrently with each other.
Hilgendorf appeals.
STANDARD OF REVIEW
¶11 We review a district court’s denial of a motion to suppress to determine whether
the findings of fact are clearly erroneous, and whether the court correctly applied those
facts as a matter of law. State v. Jarman, 1998 MT 277, ¶ 8, 291 Mont. 391, 967 P.2d
1099.
DISCUSSION
¶12 1. Did the District Court err by concluding the arresting officer had
particularized suspicion to stop Hilgendorf’s vehicle?
¶13 A police officer may stop any person or vehicle that is observed in circumstances
that create a particularized suspicion that the person or occupant of the vehicle has
committed, is committing, or is about to commit an offense. Section 46-5-401(1), MCA.
To justify the stop, the State must demonstrate objective data available to the officer at
the time of the stop resulting in a suspicion that the person has been, is, or will be
involved in illegal activity or was a witness thereto. State v. Gopher, 193 Mont. 189,
194, 631 P.2d 293, 296 (1981) (citing U.S. v. Cortez, 449 U.S. 411, 101 S. Ct. 690, 695
(1981)); see also Brown v. State, 2009 MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842.
¶14 In determining whether these requirements have been satisfied, “[t]he courts will
look to the facts and to the totality of the circumstances of each case.” Brown, ¶ 20. “In
evaluating the totality of the circumstances, a court should consider the quantity, or
content, and quality, or degree of reliability, of the information available to the officer.”
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State v. Gilder, 1999 MT 207, ¶ 11, 295 Mont. 483, 985 P.2d 147 (citing State v. Pratt,
286 Mont. 156, 161, 951 P.2d 37, 40 (1997)). “From this data, a trained officer draws
inferences and makes deductions—inferences and deductions that might well elude an
untrained person.” Cortez, 449 U.S. at 418, 101 S. Ct. at 695; see also Brown, ¶ 20 (“a
peace officer’s experience and training may be a factor in determining what sort of
reasonable inferences he or she is entitled to make from his or her objective
observations”).
¶15 Hilgendorf contends the facts of this case are similar to previous cases,
particularly State v. Reynolds, 272 Mont. 46, 899 P.2d 540 (1995), and Jarman, wherein
we concluded that the respective officers lacked particularized suspicion, and that we
should reach the same conclusion here. The State responds by distinguishing the facts
here from Reynolds, and arguing that the totality of circumstances show “sufficient
objective data was available to Deputy Romero for him to draw certain inferences that
resulted in his suspicion that Hilgendorf had committed or was about to commit a
criminal activity, namely stealing from or burglarizing a closed business.”
¶16 We explained in Reynolds that, in Gopher, “we held that a particularized suspicion
existed to justify stopping a vehicle that slowly drove past the crime scene and exhibited
an unusual curiosity in the crime site.” Reynolds, 272 Mont. at 50, 899 P.2d at 542
(citing Gopher, 193 Mont. at 194, 631 P.2d at 296). In contrast, we concluded in
Reynolds that the facts were insufficient to support a particularized suspicion, where the
officer observed a car “bordering on traveling a little too fast” and pausing for less than
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ten seconds before turning at an intersection. Reynolds, 272 Mont. at 51, 899 P.2d at 543.
We noted that, apart from driving at the higher end of the speed limit and pausing at an
intersection while a patrol car was present, the officer failed to state any other
information that might have given rise to a particularized suspicion. Reynolds, 272 Mont.
at 51, 899 P.2d at 543.
¶17 In Jarman, an officer responding to a report of domestic disturbance saw Jarman
using a public telephone in the area where the caller alleged her boyfriend would be
walking. Jarman, ¶¶ 3-4. The area around the phone booth was known for above
average criminal activity. Jarman, ¶ 15. The officer circled the block, and when he
returned Jarman was gone and the phone hung down off the receiver. Jarman, ¶ 4. We
concluded that “nothing in th[e] record connected Jarman to the domestic disturbance
other than the fact that he was the only male Officer Korell observed in the area” and that
“[b]eing in a high crime area by itself” could not establish particularized suspicion.
Jarman, ¶¶ 11, 14. Absent additional facts connecting Jarman to the domestic
disturbance or showing Jarman was evading the officer, we concluded that “a reasonable
and articulable suspicion” had not been demonstrated. Jarman, ¶ 15.
¶18 Hilgendorf does not contest that his car was parked near a business at 2:00 a.m.,
when all of the area businesses were closed, that the area was known for its thefts from
and burglaries of the businesses, or that he quickly left upon the second approach of the
police vehicle. However, Hilgendorf’s argument that the facts of this case are similar to
those of Reynolds and Jarman, requiring the same conclusion, fails to consider at least
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one critical fact: that Romero also observed that both Hilgendorf and his passenger were
moving around inside the vehicle as if trying to conceal something in the vehicle.
Denying that he initiated the stop for a traffic violation, Romero testified the stop was
made because the occupants “were busy moving around inside the vehicle” and that “the
actions they were taking, a normal person wouldn’t be doing,” leading to his conclusion
that “I felt there could be something going on, like somebody committing a theft” and his
decision to initiate a stop. These observations, combined with what Romero had initially
observed, were objective data from which Romero could make inferences about the
possibility of a crime and come to a resulting suspicion that a theft could be in progress.
These facts distinguish this case from the holdings in Jarman and Reynolds. Romero did
not base the stop solely on Hilgendorf’s presence in a high crime area or the lack of other
drivers in the area, but upon various additional facts, including the abrupt takeoff upon
his second approach and the peculiar actions of the people inside the car while it was
moving.
¶19 Hilgendorf also argues that because the stop was improper, the frisk which
followed and revealed the drug evidence was also improper and, further, that the frisk
was not justified by a concern for weapons. However, because we conclude the stop was
proper, we do not address these alternative arguments.
¶20 2. Did the District Court err by concluding that law enforcement would have
inevitably discovered the drugs in the closed container?
¶21 Hilgendorf contends that, even if Romero had particularized suspicion to make the
investigative stop and seize the container found on Hilgendorf’s person, Romero was not
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justified in opening the closed container without obtaining a warrant. Hilgendorf
concedes that police could have opened the container without a warrant if exigent
circumstances had existed, but argues an exigency did not exist here. Hilgendorf notes
Romero had placed him in handcuffs, a second officer was there to assist him, and
Hilgendorf was not resistant. The State responds that the drug evidence found in the
container would have been inevitably discovered during the inventory search at the
detention facility, following Hilgendorf’s arrest.
¶22 The District Court agreed with the State’s inevitable discovery theory, orally
denying the motion to suppress:
The one question I have is opening the containers, the orange container and
the film container without a warrant . . . there’s a discussion on inevitable
discovery. It appears that both people—well, the passenger was under
arrest as soon as—I believe from what I heard there was a pipe also found
in the defendant’s pants. So there was an arrest of both parties there. And
while better practice may have been to obtain a warrant if both were
arrested, there were going to go down, all of that stuff would have been
inventoried, and I think it’s inevitable.
¶23 Under the Montana and United States Constitutions, warrantless searches are per
se unreasonable unless an exception applies. State v. Hamilton, 2003 MT 71, ¶ 34, 314
Mont. 507, 67 P.3d 871. If an exception to the warrant requirement is not established, the
evidence obtained as a result of an unreasonable search or seizure is excluded. Wong Sun
v. U.S., 371 U.S. 471, 484-85, 83 S. Ct. 407, 416 (1963). The exclusionary rule ensures
protection against the government’s intrusion on an individual’s constitutional right to be
free from such unreasonable searches and seizures. Wong Sun, 371 U.S. at 485, 83 S. Ct.
at 416.
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¶24 The exclusionary rule is not without exception. As we recently explained:
[W]e have long accepted three general exceptions to exclusion of this type
of tainted evidence. In State v. Allies, 186 Mont. 99, 117, 606 P.2d 1043,
1052-53 (1979), we noted that “fruit of the poisonous tree” is admissible:
(1) if it is attenuated from the constitutional violation so as to remove its
primary taint (Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct.
407, 417 (1963)); (2) if it is obtained from a source independent of the
defendant’s confession (Silverthorne Lumber Co. v. United States, 251 U.S.
385, 392, 40 S. Ct. 182, 183 (1920)); or (3) if it is inevitable that the
evidence would have been discovered apart from the defendant’s
confession. Government of Virgin Islands v. Gereau, 502 F.2d 914, 927-38
(3d Cir. 1974).
State v. Dickinson, 2008 MT 159, ¶ 19, 343 Mont. 301, 184 P.3d 305. The State argues
that we apply the third exception, inevitable discovery.
¶25 In applying the inevitable discovery doctrine, it must appear “as certainly as night
follows day, the evidence would have been discovered without reference to the violation
of the defendant’s rights.” Dickinson, ¶ 25 (quoting State v. Allies, 186 Mont. at 118, 606
P.2d at 1053). The State argues that the container found on Hilgendorf’s person would
have been opened and examined during a standard inventory search in the booking
process, and therefore qualifies for application of the doctrine. Hilgendorf responds that
the doctrine cannot be applied because no evidence was presented in the District Court to
establish that an inventory search is a standard procedure.1
¶26 Regarding station house inventory searches we have explained, “it is both
unrealistic and unsafe for the police to fail to take routine, administrative steps to protect
1
Hilgendorf did not address the District Court’s inevitable discovery rationale in his opening
brief, and did not offer an analysis in response to the State’s argument for application of the
doctrine in the District Court.
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themselves, the arrestee and others in the station house from the actual or potential
danger such persons pose,” State v. Pastos, 269 Mont. 43, 49, 887 P.2d 199, 203 (1994),
and inventory searches are “not subject to the probable cause strictures of § 46-5-402(2),
MCA.” State v. Heath, 2000 MT 94, ¶ 18, 299 Mont. 230, 999 P.2d 324. The purpose of
an inventory search “is not to discover and preserve evidence, but rather, is to protect
police and other prisoners from potential danger and to protect police and the arrestee by
creating an accounting of personal items.” State v. Hardaway, 2001 MT 252, ¶ 53, 307
Mont. 139, 36 P.3d 900. The legitimate and compelling interest of the State to protect
persons in and around the police station justifies the routine, administrative inventory
search of property on the arrestee at the station following the arrestee’s arrest. Pastos,
269 Mont. at 48-49, 887 P.2d 202-03.
¶27 It is undisputed that Hilgendorf was going to be arrested for possession of drug
paraphernalia and taken to jail, and Hilgendorf made no challenge in the District Court or
in his opening brief that the State failed to demonstrate that he would have been subjected
to a standard inventory search. We therefore conclude that the contents of the container
would have been inevitably discovered, and we need not address Hilgendorf’s arguments
that the warrantless search was improper. Dickinson, ¶ 28.
¶28 The District Court properly denied the motion to suppress.
¶29 Affirmed.
/S/ JIM RICE
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We concur:
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
Justice W. William Leaphart, dissenting.
¶30 I dissent as to issue one and would not reach issue two.
¶31 I disagree with the Court’s conclusion that Officer Romero had a particularized
suspicion to stop Hilgendorf’s vehicle. The officer saw Hilgendorf’s vehicle at 2 a.m.
legally parked on South 23rd Street with its engine running and lights on. Because
businesses in this area had experienced a high rate of theft and burglary, Officer Romero
drove past the vehicle and circled around a second time. Upon the officer’s second
approach, Hilgendorf pulled out and drove away. Officer Romero noted that, as they
pulled away, the occupants were moving around as if they were trying to conceal
something. Based upon this scant information, the officer initiated a stop.
¶32 The gravamen of particularized suspicion is missing. That is, the totality of the
circumstances confronting Officer Romero at the time of the stop did not create an
objective basis for suspecting criminal activity. State v. Van Kirk, 2001 MT 184, ¶ 15,
306 Mont. 215, 32 P.3d 735. The facts of the present case are no more compelling than
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those in State v. Reynolds, 272 Mont. 46, 899 P.2d 540 (1995), where the officer
observed the defendant driving “bordering on traveling too fast” and waiting at an
intersection for seven to ten seconds. The officer in Reynolds conceded that “the
presence of a police car . . . could have an unnerving effect on a driver’s normal driving
routine.” Reynolds, 272 Mont. at 56, 899 P.2d at 543. On appeal, we concluded that,
“under the totality of the circumstances and facts in this case, the possible traffic
violation combined with no other objective data does not support a particularized
suspicion that Reynolds had been engaged in wrongdoing.” Reynolds, 272 Mont. at 56,
899 P.2d at 543. As in Reynolds, Hilgendorf became unnerved at the officer’s presence
and drove away quickly. Unlike Reynolds, he did not commit or “border” on committing
any traffic offense.
¶33 Our decision in State v. Jarman, 1998 MT 277, 291 Mont. 391, 967 P.2d 1099 is
also instructive. In Jarman, Officer Korell was responding to a domestic disturbance call
at approximately 3 a.m. As he drove, he observed an individual later identified as Jarman
standing beside a car at an outside pay telephone. No one else was in the area. The
officer drove around the block and back to the phone. By that time Jarman and his car
were no longer there. The phone was off the hook. Continuing to patrol the area, the
officer observed Jarman’s car leaving a parking lot. The officer initiated a traffic stop
during which he discovered a knife, illegal drugs, and a gun. The district court denied
Jarman’s motion to suppress for lack of particularized suspicion. On appeal, we reversed
and noted first that, “[b]eing in a high crime area by itself does not give the police a
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particularized suspicion to stop a person.” Jarman, ¶ 14. The justifications offered for
the stop were that Jarman was talking on a pay phone on a cold night in a high crime area
and that after Officer Korell drove around the block, Jarman was gone and the telephone
receiver was hanging down off the hook. We concluded the following:
These facts do not rise to the level of a reasonable and articulable suspicion
that Jarman was, had been, or was about to engage in criminal activity.
Without any connection to the domestic disturbance or reasonable
suspicion of evasion, Officer Korell had no reason to stop Jarman. We hold
that the District Court’s conclusion that Officer Korell had a particularized
suspicion was erroneous.
Jarman, ¶ 15 (emphasis omitted).
¶34 Like Jarman, Hilgendorf was in a high crime area late at night. That fact
combined with a quick departure when the officer circled around the block did not,
however, give rise to a particularized suspicion. It is noteworthy that we found no
particularized suspicion in Jarman even though the officer was patrolling in the context
of a reported crime (domestic abuse). Here, the situation was even less “particularized”
since Officer Romero was not responding to any specific crime report.
¶35 Officer Romero may have had a general suspicion of criminal activity, but there
was certainly nothing “particularized” about his concerns.
/S/ W. WILLIAM LEAPHART
Justice James C. Nelson joins the dissenting opinion of Justice W. William Leaphart.
/S/ JAMES C. NELSON
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