State v. Romero

730 P.2d 1157, 224 Mont. 431, 1986 Mont. LEXIS 1132
Montana Supreme Court·Decided December 30, 1986·No. 86-024·Published·Cited by 16 cases

Opinions

MR. JUSTICE WEBER

delivered the Opinion of the Court.

Defendant was convicted of criminal possession with intent to sell dangerous drugs, in a jury trial in Park County. We affirm.

The issues are:

1. Did the District Court err in denying the motion to suppress admission of the marijuana seized from the truck?

2. Was the evidence of other acts properly admitted?

On December 11, 1984, defendant Mr. Romero rented a motel room in Columbus, Montana. While in Columbus, he drank at several bars and was involved in a couple of altercations, resulting in his coming into contact with the police.

In the early morning hours of December 12, 1984, Highway Patrolman Jay Dixon was notified that a vehicle was in the median of the interstate near Livingston, Montana. The vehicle was Mr. Romero’s truck. The roads were icy, as it had snowed earlier. Patrolman Dixon reached the truck at approximately 5:30 a.m. and called in the Colorado license plate number to the Livingston Police Department. Mr. Romero called out from the truck that he wanted a wrecker, not the officer’s services. At approximately the same time, Patrolman Dixon received a radio report from the Big Timber sheriff’s office that the driver of the truck had been in an altercation in Columbus the night before and might be intoxicated and/or armed. Patrolman Dixon informed Mr. Romero he would call a wrecker. He went into Livingston, called Gray’s Road Rescue, and also picked up a Livingston police officer before returning to the scene of the accident.

[434]*434When the officers returned to the truck, Mr. Romero was asleep or passed out on the seat. Patrolman Dixon rapped on the window and opened the door to waken Mr. Romero, who immediately became combative. The officers detected an odor of alcoholic beverage and arrested Mr. Romero for driving under the influence of drugs or alcohol (DUI). They handcuffed him, placed him under arrest, and put him in the patrol car. As Patrolman Dixon secured the truck, he noticed 3 or 4 beer bottles on the floor of the cab. He did not seize the bottles as evidence of DUI at that time.

When Mr. Romero was booked into the Park County jail, he had $1,500 in 50-dollar bills in his possession. After the booking, shortly before 7:00 a.m., Patrolman Dixon and the other officer went to Gray’s Road Rescue to get the beer bottles from the truck. It was being held inside a building. As Patrolman Dixon retrieved the beer bottles, he noticed a small amount of green, leafy substance on the floor. He seized that also. The substance field tested positive for marijuana.

Based upon the marijuana found on the floor of the pickup, Mr. Romero’s substantial pocket cash, and reports from Columbus that Mr. Romero was suspected of attempting to sell marijuana, Patrolman Dixon obtained a search warrant for the truck. He found three large bundles of marijuana in a tool box located under the locked hood of the pickup. Mr. Romero was then charged with intent to sell more than a kilogram of marijuana and criminal possession of dangerous drugs, both felonies. Mr. Romero remained incarcerated and the pickup remained impounded.

One month later, the owner of Gray’s called Patrolman Dixon to inform him that the pickup, which was then sitting out on the impound lot, had been tampered with. When Patrolman Dixon arrived, he saw that a piece of metal was hanging from the right rear wheel well. He looked in the wheel well and saw a wrapped bundle, similar to those seized earlier. A piece of metal had also been removed from the left wheel well and was lying on the ground. Patrolman Dixon phoned another officer for assistance. They searched the truck, finding 20 bundles of what proved to be marijuana in the wheel wells and behind the seat. This search was conducted without a warrant.

Mr. Romero was later released on bail while awaiting trial. During July and August of 1985, he met in Billings with an undercover drug enforcement officer several times to effect drug sales. These meetings resulted in three separate marijuana sales by Mr. Romero to the undercover officer.

[435]*435Prior to trial, defense counsel filed a motion to suppress concerning all marijuana seized from the truck. He argued that a search warrant should have been obtained before the initial search because the truck was impounded and no exigent circumstances existed. Additionally, defense counsel argued the fruit of the poisonous tree doctrine barred introduction of the marijuana seized later. The motion was denied. The trial judge found the initial seizure of beer bottles and the trace amount of marijuana was justified under the plain view doctrine, the second seizure of three bundles was valid pursuant to a search warrant, and the final seizure of 20 bundles was valid under the plain view doctrine.

The State filed notice of intent to introduce evidence of other acts at trial, including testimony concerning Mr. Romero’s activities in Columbus, the recovery of one pound of marijuana from his Columbus motel room, and the July and August transactions with the undercover officer. Following briefing and argument on these matters the trial judge allowed the evidence to be presented at trial.

The other acts testimony was presented the first day of Mr. Romero’s trial. Both counsel and the trial judge forgot to present a cautionary instruction to the jury prior to the testimony. The second morning of trial, defense counsel argued in chambers that failure to deliver the cautionary instruction had caused irreparable damage to his client and a mistrial should be granted. The trial judge denied the motion for mistrial, determining that no marijuana had yet actually been introduced into evidence and the jury had been instructed previously not to conclude that testimony about bags or bundles of green, leafy substance proved that it was marijuana. The trial judge further determined that if any prejudice had occurred, a curative instruction the second morning of trial would correct it. Such an instruction was given prior to any testimony on the second day of trial.

The jury found Mr. Romero guilty of criminal possession with intent to sell dangerous drugs. He was sentenced to 16 years in the Montana State Prison.

I

Did the District Court err in denying the motion to suppress admission of the marijuana seized from the truck?

Mr. Romero argues that there were three separate violations of his right to be free from unreasonable searches and seizures under the [436]*436Fourth Amendment to the United States Constitution and Mont. Const. Article II, Section 11. The first violation occurred, he says, when the beer bottles were retrieved from the truck and the small amount of marijuana was found on the floor. Mr. Romero states that this search of his truck does not fit any of the four recognized exceptions to the general prohibition against automobile searches without warrants: the automobile exception, the exception for searches incident to arrest, inventory searches, and the plain view exception. Mr. Romero contends that a warrant should have been obtained before the officers retrieved the beer bottles.

The parties’ briefs contain lengthy arguments under several theories on whether the warrantless seizure of the beer bottles was constitutional. Because we conclude that this was a reasonably delayed plain view seizure, we will not discuss the other theories raised.

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State v. Romero, 730 P.2d 1157, 224 Mont. 431, 1986 Mont. LEXIS 1132 (Mo. 1986).

730 P.2d 1157 (State v. Romero) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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