State v. Broell

No. 90-464

IN THE SUPREME COURT OF THE STATE OF MONTANA
1991

STATE OF MONTANA,
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BOYD IRVIN BROELL, /U& 2 L-
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Defendant and Appellant. .
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APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Byron L. Robb, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Karl P. Seel, Attorney at Law, Bozeman, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
George Schunk, Assistant Attorney General, Helena,
Montana
Wm. Nels Swandal, Park County Attorney, Livingston,
Montana; Tara DePuy, Deputy County Attorney,
Livingston, Montana

Submitted on Briefs: May 10, 1991
Decided: June 25, 1991
Filed:
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Justice Karla M. Gray delivered the Opinion of the Court.

The appellant, Boyd Broell, was charged with criminal
possession of dangerous drugs with intent to sell, under 5 45-9-
103, MCA, and criminal possession of dangerous drugs, under 5 45-
9-102, MCA. Broell was found guilty of both offenses at an
uncontested bench trial held before the Sixth Judicial District
Court, Park County. He now appeals a denial of his motion to
suppress. We affirm.
The dispositive issue on appeal is whether the District Court
erred in denying the appellant's motion to suppress.
On January 18, 1990, Livingston police officer Sam Frederick
noticed a 1976 Chevrolet Camaro stopped on the median in the middle
of Park Street in Livingston. The vehicle's motor was still
running and an occupant was sitting behind the steering wheel in
an unconscious state with his head leaning against the window of
the driver's door. Officer Frederick circled the car, pulled up
behind it, and activated his lights and siren. The occupant drove
the car across the oncoming traffic lane and up onto the curb,
where he stopped on the sidewalk. Officer Frederick walked over
to the car, saw the appellant inside, opened the driver's door, and
shut off the ignition.
The officer detected an odor of alcohol on Broell and, after
field sobriety tests, the appellant was arrested for driving under
the influence of alcohol. Officer Frederick left Broellls car
where it was, locked it, and kept the keys.
The appellant was taken to the station where he was booked for
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DUI. When asked to empty his pockets, Broell was reluctant to
remove or give up his jacket. The police found in the appellant 's
jacket pocket a white tobacco pouch containing a small bag of what
they believed was marijuana, a mirror, razor blade, tiny spoon and
pipe, and a three inch plastic tube sniffer, all of which are items
utilized by drug users. Also found in the appellant's possession
were four small paper packets marked 1/4, 1/2 or 1, with white
powder contents, which numbers Officer Frederick believed to
signify the drug weights; a small yellow piece of paper that had
initials and amounts on it, which Officer Frederick believed was
a record of the appellant's customers who had bought drugs on
credit; cash totalling $207 in one, five, ten and twenty dollar
bills; and a small brown vial tucked into the back of the
appellant's waistband, which contained white powder. The white
powder in the paper packets and the vial were sent in for lab
analysis and proved to be methamphetamine, commonly called "speed."
During the subsequent booking for possession of drugs with
intent to sell, the appellant asked to make a telephone call.
Broell asked whoever answered the telephone to go change the right
front tire on his car and take the spare out of the trunk. This
phone call, the fact that there had been no flat tire on the car,
Broell's nervous demeanor and conduct, and the drugs found on his
person made the police suspicious, so they decided to request a
search warrant for the car. The dispatcher called a wrecker and
had the car towed to the police garage pending application for, and
issuance of, a search warrant.
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The search warrant was issued at approximately 8:00 a.m.,
about three hours after Broell had been arrested for DUI. A search
of the car disclosed nothing in the right front tire or the
interior, but in the trunk, alongside the spare tire, the officers
found a small, two-compartment knapsack. The lower compartment was
unlocked and contained a few articles of clothing, some personal
hygiene items, and a trifold wallet with $600 in cash and various
credit cards. The upper compartment had a small padlock on it,
which was opened with a key found on the ring with Broellls car
keys. This compartment contained a leather eyeglass case and a
vinyl bag.
Inside the eyeglass case police found $67 in one dollar bills
and, stuffed beneath them, a matchbox-size tin container with
eighteen pieces of blotter paper. Laboratory analysis later
determined the blotter paper to be lysergic acid diethylamide, or
IILSD".
The vinyl bag contained thirteen paper packets of drugs with
various 1/4, 1/2, 1 and 8 markings similar to those on the packets
found in Broellls possession when he was arrested, and one packet
marked "Mine." Laboratory analysis determined the contents of the
thirteen packets to be methamphetamine. The packet marked llMinell
was determined to be inositol, a non-dangerous substance used by
drug dealers as a "cutting agent."
The articles and drugs found in Broellls trunk provided the
basis for count 11, possession of dangerous drugs. Broell filed
a motion to suppress as evidence all items seized as a result of
the search warrant on the grounds that no probable cause existed
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to issue the warrant. The motion was denied and the appellant was
found guilty on both counts. He appeals the denial of his motion
to suppress.
The appellant attacks the District Court's denial of his
motion to suppress on three grounds; first, he contends that the
application for search warrant lacked sufficient probable cause to
justify issuing a search warrant; second, he argues that the search
warrant was deficient because it failed to describe with sufficient
particularity the articles to be seized; and finally, he contends
that the seizure of his vehicle prior to the issuance of a search
warrant was unlawful.
The appellant's first argument is that Officer Frederick was
on a "fishing expeditionw and had no more probable cause to believe
there were drugs in Broell's car than he had probable cause to
believe there would be drugs at his home or his place of business.
The appellant correctly points out that simply because there is
probable cause to believe someone is guilty of a crime, does not
mean there is probable cause to search that individual's home.
However, the standard for probable cause is not a prima facie
showing of criminal activity but rather a showing of the
probability of criminal activity. State v. Dess (1982), 201 Mont.
456, 465, 655 P.2d 149, 154.
The existence of a probability of criminal activity is to be
determined by an analysis of all the circumstances set forth in
the application for search warrant. State v. OINeill (1984), 208
Mont. 386, 679 P.2d 760.
The application for search warrant in question contained the
following information: the appellant had been arrested for DUI;
drug paraphernalia and methamphetamine had been discovered on his
person; a piece of paper which appeared to be a list of customers,
and $207 in small bills were found on the appellant; the appellant
told Officer Frederick he had just purchased the drugs; during the
booking procedure, the appellant made a phone call to an unknown
party requesting that he or she change the right front tire of his
car, yet upon inspection there was nothing wrong with the right
front tire.
The appellant addresses each piece of information separately,
on a stand-alone basis, and then appears to conclude that probable
cause does not exist. The appellant may be correct in his argument
that possession of illegal drugs on the person does not provide
probable cause for a search warrant of that person's vehicle.
Likewise, neither a piece of paper with initials and numbers on it,
nor $207 in small bills constitutes the necessary probable cause
to search the appellant's vehicle when considered separately. But
the factual circumstances of the entire application, including the
telephone call made by Broell, are clearly sufficient to justify
the issuance of a search warrant.
The appellant next argues that the search warrant is deficient
because it described the items to be searched for as "drugs and
drug paraphernalia.'I It is the appellant Is position that such
language is overly broad and could be interpreted to include legal
drugs such as aspirin and alcohol.
We agree that "drugs and drug paraphernalia" is not the ideal
language to use in describing particular items to be searched for

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in a warrant. Nonetheless, under the circumstances of this case,
we find such language to be an adequate description of the items
to be seized. Section 46-5-201, MCA, requires that a search
warrant particularly describe "the thing, place, or person to be
searched and the instruments, articles, or things to be seized.I1
The search warrant in question describes the place to be searched
as Broellls 1976 green Camaro, and the things to be seized as
Itcertain items which are contraband/evidence/fruits of the crime
. . . and are particularly described as being drugs and drug
paraphernalia." Moreover, the application for the search warrant
reinforces the intended meaning of "drugs and drug paraphernalia"
as used in the search warrant. The application states that
[TIhe offense of felony possession of dangerous drugs has
been committed and . . . in the defendant's car . .
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there are now located certain items which are contraband/
evidence/f ruits of the crime/instrumental ities and
articles used in the commission of a crime and are
particularly described as being drugs and drug
paraphernalia.
We stated in State v. Peterson (1987), 227 Mont. 503, 741 P.2d
392, that when the application is signed by the officer who is
named in the search warrant and it is that officer who personally
serves such warrant, the documents are construed together to
determine whether the requirement of particularly describing the
thing to be seized has been met.
Upon reviewing the search warrant and the application
together, the fact that Officer Frederick was to search for and
seize illesal drugs is inescapable. The appellant's contention,
that in order to constitute probable cause to search, an officer
ought to be able to identify what type or types of illegal
contraband the officer expects to find, is unsound. As the state
points out, no police officer can anticipate what specific wares
a suspected drug dealer will possess at any given time.
The search warrant in this case could have been drafted more
carefully. When it is read together with the application, however,
it sufficiently describes the place to be searched and the things
to be seized.
The appellantvsfinal argument is that his car was unlawfully
seized when the police impounded it prior to the issuance of the
search warrant. The appellant apparently argues that seizing the
car for DUI-related reasons would have been acceptable, but seizing
the car in order to search it was unacceptable. The appellant
contends that the police officers needed a warrant to seize the car
as well as to search the car.
The appellant is incorrect for two reasons. First, the
warrantless seizure of the car falls under the vvautomobile
exceptionvvto illegal searches and seizures. We adopted this
exception in State v. Spielmann (1973), 163 Mont. 199, 516 P.2d
617, where we distinguished between automobiles and nonmovable
premises. An automobile may be seized or searched by police
without a warrant where there is probable cause to believe such
automobile s contents "offend against the law." State v. Evjen
(1988), 234 Mont. 516, 765 P.2d 708. As we have already stated,
there was sufficient probable cause under the facts of this case
to believe that illegal drugs were located in Broellvs car.
Finally, even if we were to conclude that Broellvs car was
unlawfully seized, we still would not find error in the denial of
the motion to suppress. Evidence secured from an impounded
automobile will not be suppressed when such automobile is searched
pursuant to a warrant that is based on information wholly
independent of the seizure:
The items were secured during a search conducted pursuant
to a warrant. Towing the automobile to the police
storage lot for safekeeping in no way contributed to the
subsequent search. The search warrant was based on
information wholly independent ofthe automobile seizure.
The exclusionary rule is therefore inapplicable to the
items secured from the automobile. (Citation omitted.)
United States v. Bagley (9th Cir. 1985), 772 F.2d 482, 491. All
the information contained in the application for the search warrant
was obtained from sources totally independent of the seizing of
Broell's car.
For the foregoing reasons, we hold that the District Court
properly denied the appellant's motion to suppress. Affirmed.

We concur: J
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Chief Justice

Justices