February 10 2015
DA 14-0127
Case Number: DA 14-0127
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 36N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
BENJAMIN DAVID MERCER,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 2013-238
Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Peter F. Lacny, Brian M. Lebsock, Datsopoulos, MacDonald & Lind, P.C.;
Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General; Helena, Montana
Kirsten H. Pabst, Missoula County Attorney, Andrew Paul, Deputy County
Attorney; Missoula, Montana
Submitted on Briefs: December 24, 2014
Decided: February 10, 2015
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not serve
as precedent. Its case title, cause number, and disposition shall be included in this Court’s
quarterly list of nonciteable cases published in the Pacific Reporter and Montana Reports.
¶2 Benjamin David Mercer appeals from the order of the Fourth Judicial District Court,
Missoula County, denying his motion to suppress evidence. We affirm.
¶3 On December 8, 2012, Missoula County Deputies responded to a report that Mercer
was exhibiting odd behavior at the Crossroads Truck Plaza in Missoula. Mercer was
speaking rapidly and appeared to be under the influence of a stimulant. Mercer agreed to
talk to Deputy Jared Cochran in the back of a patrol car. After reading him his Miranda
rights, Cochran questioned Mercer. Mercer explained that he was travelling from California.
He admitted that he had used methamphetamine in California four days earlier. Cochran
later testified that Mercer stated he believed the FBI was chasing him because he had been
trying to impress a girl he met in California “by telling her about some drug and gang stuff.”
¶4 Mercer’s Lexus, parked in the Truck Plaza lot, was registered to an address in Victor,
Montana. Cochran contacted Ravalli County Sheriff Deputy Todd Wofford to see if he had
any information about Mercer. Wofford reported that in June 2012, Mercer had been driving
a car that was stopped by law enforcement. The stop resulted in a passenger charged with a
felony drug crime. In fact, charges against the passenger had been dismissed, but Wofford
did not report that information to Cochran.
¶5 Wofford also told Cochran that a confidential source (CS) had contacted Stevensville
Police Officer Sam Faycet with information about Mercer. Cochran contacted Faycet, and
2
learned that the CS had admitted to distributing marijuana on behalf of Mercer. The CS
further stated that Mercer regularly travelled to and from California, bringing illegal drugs
back to Montana using hidden compartments in his Lexus.
¶6 Cochran looked through the windows of Mercer’s Lexus and observed that a piece of
interior door paneling had been removed, along with a portion of the dashboard. Cochran
also observed a large bottle of cologne and a large bottle of breath mints. Cochran testified
that in his experience cologne and breath mints may be used to cover up the odor of an
illegal substance. Cochran also observed a bag of what appeared to be clothes, indicative of
someone travelling.
¶7 Cochran then arranged for a K-9 Unit to conduct a dog sniff of the vehicle. The K-9
dog gave five positive alerts for illegal drugs on the vehicle. Cochran then contacted an
officer with the Missoula Drug Task Force, who reviewed Cochran’s report and applied for a
search warrant for the Lexus. The search warrant application included information about
Mercer’s passenger’s arrest for a drug offense but not the fact that the charges against the
passenger had been dismissed.
¶8 Missoula County District Court Judge Karen Townsend granted the search warrant on
December 10, 2012. A search of the vehicle revealed approximately six pounds of marijuana
hidden around the car, primarily in the speaker box and engine compartment. On May 10,
2013, Mercer was charged with criminal possession of dangerous drugs with intent to
distribute.
¶9 On August 2, 2013, Mercer moved the District Court to suppress the marijuana
evidence. Following a hearing held on October 15, 2013, the District Court denied Mercer’s
motion to suppress. Reserving his right to appeal the District Court’s denial, Mercer pleaded
3
guilty to the lesser offense of felony criminal possession of dangerous drugs and received a
three year deferred imposition of sentence. Mercer now appeals.
¶10 “We review a district court’s denial of a motion to suppress to determine whether the
court’s findings of fact are clearly erroneous. A finding is clearly erroneous if it is not
supported by substantial evidence, if the district court misapprehended the effect of the
evidence, or if a review of the record leaves this Court with a definite and firm conviction
that a mistake has been made. We further review a district court’s denial of a motion to
suppress to determine whether the court’s interpretation and application of the law are
correct. Our review is plenary as to whether the court correctly interpreted and applied the
law.” State v. Roy, 2013 MT 51, ¶ 11,
369 Mont. 173,
296 P.3d 1169 (citations omitted). A
magistrate’s determination that probable cause exists should be paid great deference by
reviewing courts and every reasonable inference possible should be drawn to support that
determination. State v. Rinehart,
262 Mont. 204, 211,
864 P.2d 1219, 1223 (1993). When
information must be excised from an application for a search warrant, we review the warrant
de novo for probable cause. State v. St. Marks,
2002 MT 285, ¶ 14,
312 Mont. 468,
59 P.3d 1113.
¶11 Mercer asks us to reverse the District Court for three reasons. First, because the
canine sniff was not supported by particularized suspicion. Second, because the search
warrant application contained information about Mercer’s passenger’s arrest for a drug crime
but did not include the fact that the charge was never prosecuted. Third, because if the
results of the canine sniff and the information about the passenger’s arrest were excised from
the application, probable cause did not exist to grant a search warrant for Mercer’s vehicle.
We address each argument in turn.
4
¶12 In Montana “a carefully drawn exception to the warrant requirement” allows law
enforcement officers to conduct a canine sniff on an object or area already exposed to the
public provided particularized suspicion exists. State v. Stoumbaugh, 2007 MT 105, ¶ 18,
337 Mont. 147,
157 P.3d 1137. Particularized suspicion requires: 1) objective data and
articulable facts from which an officer can make certain reasonable inferences; and 2) a
resulting suspicion that the person is committing, has committed, or is about to commit an
offense. Brown v. State,
2009 MT 64, ¶ 20,
349 Mont. 408,
203 P.3d 842.
¶13 Mercer argues that not enough objective data existed to create particularized
suspicion. Specifically, Mercer argues that “[a]cting paranoid and under the influence does
not give rise to a particularized suspicion that drugs will be found in a particular location.”
The District Court disagreed that not enough data existed to create particularized suspicion.
The court found:
Credible testimony provided by Deputy Cochran at the suppression hearing
shows that Defendant was speaking in a rapid and agitated manner when he
encountered the deputies, Defendant appeared under the influence of a
stimulant, Defendant acted paranoid when he stated that FBI agents were
following him from California to Montana, and Defendant admitted to recent
methamphetamine use.
Based on these observations, the District Court found that Officer Cochran had an objective
basis to believe that the Defendant had been engaged in wrongdoing and to conduct a canine
sniff of the exterior of the vehicle.
¶14 Officer Cochran’s personal observations of Mercer’s actions and demeanor led him to
suspect that Mercer may have been involved in wrongdoing. The fact that a CS provided
information indicating Mercer had been trafficking drugs from California as recently as six
months prior using hidden compartments in his Lexus, combined with Mercer’s admission
5
that he had travelled from California and Cochran’s observation of modifications consistent
with creating hidden compartments in the vehicle, supported Cochran’s suspicion that
Mercer may have been violating the law.
¶15 It should also be noted that in upholding the canine sniff, the District Court did not
rely on the information regarding Mercer’s passenger’s arrest. We agree that particularized
suspicion existed even without considering Mercer’s association with a person charged with
a drug crime. We find no reversible error in the District Court’s determination that
particularized suspicion supported the canine sniff.
¶16 Mercer contends that the search warrant application was defective because the State
failed to mention that Mercer’s passenger’s drug charge had been dismissed. According to
Mercer, this omission materially affected the issuing judge’s determination that probable
cause existed to grant the warrant. Mercer argues that we should adopt the Ninth Circuit’s
position that a material omission in a search warrant application may be grounds for
overturning the search warrant. We need not reach that issue here.
¶17 We can resolve Mercer’s question by reviewing the facts supporting probable cause
without considering the passenger arrest. To establish probable cause, a judicial officer must
make a practical, common sense determination, given all the evidence contained in the
application for a search warrant, whether a fair probability exists that contraband or evidence
of a crime will be found in a particular place. State v. Barnaby, 2006 MT 203, ¶ 29,
333 Mont. 220,
142 P.3d 809.
6
¶18 The facts supporting probable cause are those discussed above,1 with the additional
fact that the K-9 dog alerted five times to the vehicle during an exterior canine sniff.
Considering these facts together, we conclude that a fair probability existed that contraband
or evidence of a crime would be found in Mercer’s Lexus.
¶19 Furthermore, we give great deference to the decision of a magistrate granting a search
warrant. Rinehart, 262 Mont. at 211,
864 P.2d at 1223. The District Court afforded such
deference to the issuing judge, finding that information gleaned from the passenger arrest
was just one factor of many supporting probable cause. The District Court did not err in
upholding the validity of the search warrant.
¶20 Because we have concluded that the canine sniff was supported by particularized
suspicion and that probable cause existed to grant a search warrant even without evidence of
the passenger arrest, we need not address whether the warrant application was defective
because it omitted the fact that the passenger’s drug charge was dismissed.
¶21 The objective data available to Officer Cochran (without information related to the
passenger arrest) was sufficient to create particularized suspicion to perform a canine sniff.
That data, when coupled with the fact that the K-9 dog alerted five times to the vehicle,
amounted to probable cause sufficient for a search warrant. The District Court did not err
when it denied Mercer’s motion to suppress the evidence gathered from the search of his
vehicle.
¶22 Affirmed.
¶23 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
Internal Operating Rules, which provides for nonciteable memorandum opinions. The
1
See supra ¶¶ 13-14. 7
District Court’s findings of fact are supported by substantial evidence and the legal issues are
controlled by settled Montana law, which the District Court correctly interpreted.
/S/ MICHAEL E WHEAT
We Concur:
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE
8
