State v. Hart

2004 MT 51, 85 P.3d 1275, 320 Mont. 154, 2004 Mont. LEXIS 56
CourtMontana Supreme Court
DecidedMarch 2, 2004
Docket02-545
StatusPublished
Cited by6 cases

This text of 2004 MT 51 (State v. Hart) 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. Hart, 2004 MT 51, 85 P.3d 1275, 320 Mont. 154, 2004 Mont. LEXIS 56 (Mo. 2004).

Opinions

JUSTICE NELSON

delivered the Opinion of the Court.

¶1 Robert Donald Hart (Hart) appeals the judgment of the Thirteenth Judicial District Court, Yellowstone County, denying his motion to suppress.

¶2 We addi’ess the following issues on appeal and affirm:

¶3 1. Did the canine sniff around the exterior of Hart’s vehicle constitute a search?

¶4 2. Was the search warrant issued for searching Hart’s vehicle supported by probable cause?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 On February 7, 2001, Deputy Shane Skillen (Skillen) and K-9 Officer, Sergeant Vince Wallis (Wallis) separately approached Hart’s residence. The officers had an arrest warrant for Hart for felony [156]*156criminal sale of dangerous drugs.

¶6 As they approached Hart’s residence in an attempt to serve the arrest warrant on Hart, they observed Hart driving in the opposite direction. Skillen initiated a traffic stop and Wallis pulled his patrol car alongside of Hart’s van.

¶7 At this point, both officers observed Hart make furtive movements, namely Hart turned his body quickly, dropping his body toward the floorboard of the van. The officers and the District Court characterized this movement as a “dive.”

¶8 The officers feared that Hart was attempting to retrieve a weapon or to hide or throw something into the back of the van, so Skillen ordered that Hart place his hands on the vehicle. Hart did so and Skillen then removed Hart from the van, advised him of the arrest warrant, and placed him under arrest.

¶9 The officers then asked Hart for his consent to search the van. Hart refused consent. Wallis then walked his drug-detecting canine, Trooper, around Hart’s van. Trooper alerted, indicating the presence of the odor of dangerous drugs.

¶10 The officers requested a telephonic search warrant, which District Court Judge Diane Barz issued. The subsequent search of Hart’s van resulted in confiscation of a digital scale box, a baggy of methamphetamine, and two “bricks” of marijuana weighing approximately two pounds.

¶11 Hart moved to suppress the evidence seized from the van. After a hearing, Hart’s motion was denied.

¶12 Subsequently, Hart pled guilty to the charges contained in the information, reserving his right to appeal the denial of his motion to suppress. Hart was sentenced to a five-year suspended sentence.

¶13 Hart now appeals the District Court’s denial of his motion to suppress.

STANDARD OF REVIEW

¶14 We review a district court’s findings of fact to determine whether they are clearly erroneous. State v. Logan, 2002 MT 206, ¶ 12, 311 Mont. 239, ¶ 12, 53 P.3d 1285, ¶ 12. We review a district court’s conclusions of law for correctness. Logan, ¶ 12. Because the facts here are undisputed, our review is limited to whether the District Court’s application and interpretation of the law was correct.

DISCUSSION

¶15 1. Did. the canine sniff around the exterior of Hart’s [157]*157vehicle constitute a search?

¶16 Hart argues that the canine sniff around the exterior of his private vehicle, without his consent and before a search warrant was issued, constituted an unlawful search. In support of his argument, Hart contends that as this Court held in State v. Elison, 2000 MT 288, 302 Mont. 228, 14 P.3d 456, it is reasonable for him to expect the contents of his vehicle to remain private, especially under Montana’s constitutional right to privacy provision. Hart likens the canine sniff to the invasion this Court struck down in State v. Siegal (1977), 281 Mont. 250, 934 P.2d 176, overruled on other grounds by State v. Kuneff, 1998 MT 287, ¶ 19, 291 Mont. 474, ¶ 19, 970 P.2d 556, ¶ 19, regarding the use of thermal imaging. He argues that there exists no distinction between “molecules in the air surrounding an enclosure [such as his van] and collecting infrared radiation emitted from a building [the issue presented in Siegal].” Hart also insists that the canine sniff of his van is not similar to the canine sniff of luggage, insofar as the contents of his van are not as knowingly exposed to the public as a person’s luggage is.

¶17 The State of Montana (the State) contends that Hart does not have the same degree of privacy in the contents of his van as he does in the contents of his home because the odors emanating from his van are knowingly exposed to the public, much as they were from the luggage in State v. Scheetz (1997), 286 Mont. 41, 950 P.2d 722. In addition, the State contends that Hart’s reliance on Siegal is inapposite, as this Court in Siegal distinguished between the use of thermal imaging devices and the use of drag-detecting canines. Specifically, the State argues that because thermal imagers provide both legal and illegal information, whereas canine sniffs only provide information regarding the presence of illegal substances, the canine sniff of Hart’s van was “much less intrusive and more limited than a typical search.” Further, the State contends that Hart cites no authority for his proposition that furtive movements do not provide sufficient particularized suspicion for additional investigation, including a canine sniff.

¶18 We recently addressed an issue similar to the one presented here in State v. Tackitt, 2003 MT 81, 315 Mont. 59, 67 P.3d 295. Specifically, in Tackitt, we were asked to decide whether “the use of a drug-detecting canine to sniff for drags in a vehicle parked in an area accessible to the public” was a search. Tackitt, ¶ 12.

¶19 The defendant’s car in Tackitt was parked at his residence. Acting on an anonymous tip, an officer used a drug-detecting canine to [158]*158conduct a sniff survey of the defendant’s car while it was parked at his residence. The canine alerted, indicating the presence of the odor of dangerous drugs. The subsequent search of the defendant’s vehicle did not reveal any evidence, although the search of his home did. This evidence was used in charging the defendant with criminal possession of dangerous drugs, a chai’ge to which the defendant pled guilty after the district court denied his motion to suppress the evidence seized. Tackitt, ¶¶ 5-10.

¶20 As we discussed in Tackitt, substantial case law exists on the legality of canine sniffs with regard to search and seizure law. See Tackitt, ¶¶ 26-28. However, upon review of these cases, we determined that “the better reasoned cases allow for a carefully drawn exception to the warrant requirement, but still require particularized suspicion when the area or object subject to the canine sniff is already exposed to the public.” Tackitt, ¶ 29. We held that “given the greater protection afforded individual privacy under Montana’s Constitution, the balance between governmental interests [in discouraging illegal drug trafficking] and individual [privacy] interests ... can best be struck by requiring particularized suspicion as a prerequisite for the use of a drug-detecting canine.” Tackitt, ¶ 29.

¶21 Here, the officers initially approached Hart’s residence in order to serve an arrest warrant on him for felony criminal sale of dangerous drugs.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Marino
2016 MT 220 (Montana Supreme Court, 2016)
State v. Hamper
2008 MT 296 (Montana Supreme Court, 2008)
State v. Goetz
2008 MT 296 (Montana Supreme Court, 2008)
State v. Stoumbaugh
2007 MT 105 (Montana Supreme Court, 2007)
State v. Hart
2004 MT 51 (Montana Supreme Court, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
2004 MT 51, 85 P.3d 1275, 320 Mont. 154, 2004 Mont. LEXIS 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hart-mont-2004.