State v. Gilmore

2004 MT 363, 104 P.3d 1051, 324 Mont. 488, 2004 Mont. LEXIS 632
CourtMontana Supreme Court
DecidedDecember 21, 2004
Docket03-842
StatusPublished
Cited by5 cases

This text of 2004 MT 363 (State v. Gilmore) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gilmore, 2004 MT 363, 104 P.3d 1051, 324 Mont. 488, 2004 Mont. LEXIS 632 (Mo. 2004).

Opinions

JUSTICE NELSON

delivered the Opinion of the Court.

¶1 Ross John Gilmore (Gilmore) appeals the judgment of the Tenth Judicial District Court, Fergus County, denying his motion to suppress.

¶2 We address the following issue on appeal and affirm: Did the District Court err in denying Gilmore’s motion to suppress?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On June 24, 2002, Deputy Everett Misner (Deputy Misner) and Lieutenant Bill Rash (Lieutenant Rash) approached Kathie Gilmore’s (Kathie) residence on information that they received from a confidential informant. This confidential informant stated that he had seen marijuana plants in the window of Kathie’s residence. The officers did not have a search warrant.

¶4 Upon answering the door, the officers told Kathie that it had been reported that someone had seen a marijuana plant growing in her house. After some discussion, the context of which is disputed, Kathie consented to a search of her house.

¶5 In the basement, the officers discovered a locked bedroom door, and from that bedroom they heard a beeping noise, like that of an alarm. Deputy Misner advised Lieutenant Rash to go outside to see if he could look into the windows of the bedroom. The windows, however, had been blackened out. Deputy Misner did observe several extension cords running into the locked bedroom. Again, after some discussion with the officers, which Kathie later disputed as to its context, Kathie advised the officers to kick down the door. The officers did so.

¶6 After kicking down the door, the officers found Gilmore asleep on a couch in the bedroom. They saw a bong sitting on a table in plain view. The officers arrested Gilmore, and thereafter obtained a search warrant, removing marijuana and other drug paraphernalia from the bedroom.

¶7 Gilmore was charged with two felony and two misdemeanor drug counts. Thereafter, Gilmore moved to suppress the evidence that the officers obtained as a result of their warrantless search. The District Court held a suppression hearing, the testimony from which is discussed in the following analysis. Ultimately, the District Court denied Gilmore’s motion, and Gilmore pled guilty to the charges. He received an eight year sentence.

[490]*490¶8 Gilmore now appeals the District Court’s denial of his motion to suppress.

STANDARD OF REVIEW

¶9 We review a district court’s denial of a motion to suppress to determine whether the district court’s findings of fact are clearly erroneous and whether the district court’s conclusions of law are correct. State v. Merrill, 2004 MT 169, ¶ 6, 322 Mont. 47, ¶ 6, 93 P.3d 1227, ¶ 6.

DISCUSSION

¶10 Did the District Court err in denying Gilmore’s motion to suppress?

¶11 Gilmore first argues that the District Court’s Finding of Fact Number One is clearly erroneous because it recites paragraphs contained in the Fergus County Sheriffs Office Case Supplement that were never made part of the record. As such, Gilmore claims a finding as to facts not part of the record "clearly” evidences that the District Court created those facts through ex parte solicitation.

¶12 In addition, Gilmore argues that the District Court also failed to include critical facts that were necessary for a proper determination of the case. In particular, Gilmore maintains that these critical facts included: (1) that Kathie told Deputy Misner that Gilmore was in the downstairs bedroom; (2) that Lieutenant Rash testified that before he and Deputy Misner entered the bedroom, Kathie made comments that led them to believe that Gilmore was in the bedroom; (3) that both officers knew Kathie did not have a key to the bedroom; and (4) that the officers had to kick down the bedroom door in order to gain access. Because these critical facts were not included in the District Court’s Findings of Fact, Gilmore argues that the findings are clearly erroneous.

¶13 Finally, Gilmore argues that the District Court misapplied the facts presented to it. Specifically, Gilmore argues that he had an expectation of privacy in the bedroom, as evidenced by his locking the bedroom door and darkening the windows. Although Kathie consented to the search of the bedroom, Gilmore maintains that her consent does not fall within one of the exceptions to the search warrant requirement because: (1) the bedroom door was locked; (2) Kathie did not have key to the bedroom; and (3) Kathie did not have a right to access the bedroom. “Under all three [of these] scenarios,” Gilmore argues, Kathie cannot show that she had actual authority over the bedroom in order [491]*491to give the officers consent to search. As such, Gilmore maintains that the consent exception to the search warrant requirement does not apply and all evidence seized from the illegal search of the bedroom must be suppressed.

¶14 The State of Montana (the State) argues that the officers had Kathie’s consent to enter into her residence and into the locked bedroom. Indeed, the State maintains that Kathie herself instructed the officers to enter the bedroom, because she feared her son and wanted him out of her residence. Thus, the State argues that Gilmore was a trespasser, and therefore did not have an expectation of privacy over the bedroom. In addition, the State argues that the District Court’s Finding of Fact Number One is not clearly erroneous because the report with which Gilmore takes issue was: (1) on file, before the suppression hearing, in the District Court’s pleading record as incorporated in the State’s Memorandum In Opposition to Motion to Suppress; (2) referred to during the suppression hearing; and (3) used extensively during direct and cross examination by the witnesses.

¶15 As to Gilmore’s argument regarding the District Court’s remaining Findings of Fact, the State contends that: (1) “[a] district court’s suppression order need not exhaustively resolve and discuss every minutiae of adduced evidence,” especially when the District Court deduced that Kathie’s boyfriend was using the locked bedroom and the record does not establish that Kathie in no way had access to that bedroom; (2) the doctrine of implied findings applies in that “the district court implicitly found that Appellant [Gilmore] did not possess the key, and at most, the boyfriend possessed the key,” and, as such, Gilmore had no privacy interest over the bedroom “with or without the physical possession of a key;” and (3) Gilmore is asking this Court to reweigh the evidence, which this Court should decline to do since “[t]he credibility of witnesses and the weight to be given their testimony is exclusively within the province of the finder of fact and will not be disturbed... on appeal.”

¶16 The State also argues that Gilmore’s contention regarding Kathie’s actual authority to consent to a search of the locked bedroom is “fallacious.” The evidence “credited by the district court” supports Kathie’s authority, the State maintains, in that Kathie told the officers that: (1) the bedroom was a “hideout” for Gilmore; (2) Gilmore was present in her home against her consent; and (3) the bedroom was used by her boyfriend as a storage room. Finally, the State contends that the issue of whether Kathie’s consent was free and voluntary is not an issue before this Court and this Court should decline to address it.

[492]*492¶17 The District Court determined the following:

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State v. Urziceanu
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State v. Gilmore
2004 MT 363 (Montana Supreme Court, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
2004 MT 363, 104 P.3d 1051, 324 Mont. 488, 2004 Mont. LEXIS 632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gilmore-mont-2004.