09/01/2020
DA 18-0201
Case Number: DA 18-0201
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 222
STATE OF MONTANA,
Plaintiff and Appellee,
v.
STEPHEN THOMAS,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DC 17-106-C
Honorable John C. Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Kristen L. Peterson, Assistant Appellate
Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Marty Lambert, Gallatin County Attorney, Bradley D. Bowen, Deputy
County Attorney, Bozeman, Montana
Submitted on Briefs: August 12, 2020
Decided: September 1, 2020
Filed:
cir-641.—if
__________________________________________
Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 Defendant and Appellant Stephen Thomas (Thomas) appeals from the Findings of
Fact, Conclusions of Law and Order Denying Defendant’s Motion to Suppress issued by
the Eighteenth Judicial District Court, Gallatin County, on December 21, 2017, along with
the accompanying Sentencing Order entered on February 16, 2018.
¶2 We restate the issue on appeal as follows:
Whether the district court erred in denying Thomas’s motion to suppress evidence
found during a probation search of the room Thomas rented from a person on
probation.
¶3 We reverse and remand for dismissal of the criminal possession of a dangerous drug
charge against Thomas.
FACTUAL AND PROCEDURAL BACKGROUND
¶4 Thomas and his wife were homeless for nearly a year around 2016. His wife was
sick and dying. While renting a room at a Super 8, Thomas learned of a potential place to
rent from one of the hotel employees. The employee’s sister, Parischere Hughes (Paris)
had a detached outbuilding in her backyard available to rent. Thomas then met Paris, who
he did not know before, and entered into a rental arrangement with her. Thomas rented the
outbuilding behind Paris’s residence for $400 per month. Paris owned the main trailer
residence where she resided and the outbuilding rented by Thomas, but leased the
underlying real property. The outbuilding rented by Thomas was located some feet away
from the main residence, inside a fence that surrounded the property. The outbuilding
lacked running water, plumbing, a bathroom, or kitchen facilities, but was wired for
electricity and had a light switch. It was large enough for a bed, desk, and end tables.
2
Thomas spent the majority of his time in the outbuilding but did use the toilet and shower,
and occasionally the kitchen, in the main trailer residence. At times, when Paris was away,
he cared for her dog and cat, which lived primarily in the main residence. Thomas and his
wife kept all their belongings in the outbuilding. Paris did not reside in or access the
outbuilding she rented to Thomas. Thomas generally kept the outbuilding locked—using
a padlock when away and an interior door wedge when at home. Thomas and his wife
resided in the outbuilding for several months in 2016, then moved out for a while, and then
returned. Shortly thereafter, Thomas’s wife died and he continued to reside in the
outbuilding by himself.
¶5 Having previously been convicted, Paris was on misdemeanor probation and subject
to probation searches. In particular, Paris’s misdemeanor sentencing order included the
following:
The defendant’s person, residence and vehicle shall be subject to warrantless
searches at any time, day or night, by a misdemeanor probation officer, police
officer, or other lawful authority acting under the direction of the probation
officer, to assess compliance with the rules of probation. If the defendant
resides with other persons, all places in the defendant’s residence where the
defendant has access are subject to search, even those private rooms of other
persons with whom the defendant resides, unless those rooms are locked and
the defendant does not have access to those rooms.
¶6 Prior to permitting Thomas and his wife to move into the outbuilding, Paris’s
probation officer Gen Stasiak did background checks on them. Thomas had a single
previous felony conviction, which was nearly 20 years old. Finding nothing precluding
them from living in the outbuilding, Stasiak approved the rental arrangement. When Paris
did not report for drug/alcohol testing on December 16 and 19, 2016, Stasiak suspected
Paris to be using drugs. On December 23, 2016, Stasiak, along with law enforcement
3
officers, went to Paris’s residence to conduct a probation search. No one answered when
they initially knocked on the trailer house door, but officers could hear dogs barking inside.
When Stasiak and the officers arrived, Thomas was in his residence in the outbuilding.
Upon hearing the dogs, he came outside to investigate. Upon doing so, he did not lock his
residence. He encountered an officer inside the back fence who instructed Thomas to go
in Paris’s residence and open the front door. He complied.
¶7 Upon opening the front door as instructed, officers came inside the trailer and
instructed Thomas as well as Everett Bolles—who was residing in Paris’s residence and
was apparently home—to sit on the couch. Again, Thomas complied. Officers searched
the residence and found various items of contraband. Stasiak then determined as Thomas
had not locked his residence it too was subject to search. Stasiak did not ask for Thomas’s
consent to search his residence and Thomas gave no consent to search his residence. In
Thomas’s residence, officers found a very old bottle of “Ipecac and opium powder” which
Thomas testified was “sort of a family relic” from when his wife’s family owned a
pharmacy. See picture below. They also found marijuana and marijuana paraphernalia.
4
Approximately three months later, Thomas was charged with criminal possession of
dangerous drugs, a felony, for the opium bottle.
¶8 Thomas filed a motion to suppress the evidence found in his residence, asserting the
search exceeded the scope of any lawful probation search of Paris’s residence. Following
a hearing, the District Court denied Thomas’s motion. The District Court found the search
justified as there was reasonable suspicion for a probation search of Paris’s residence; Paris
and Thomas “were roommates that resided together in the same residence, albeit in separate
areas, such that [Paris’s] conditions of probation authorized a valid probationary search of
[Thomas’s] room”; and Thomas’s room was unlocked and thus accessible to Paris.
Thomas appeals.
STANDARD OF REVIEW
¶9 We review the 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 interpretation
and application of the law is correct. State v. Conley, 2018 MT 83, ¶ 9,
391 Mont. 164,
415 P.3d 473. Findings of fact are clearly erroneous if not supported by substantial
credible evidence, if the court misapprehended the effect of the evidence, or if this Court’s
review leaves a definite or firm conviction a mistake has been made. Conley, ¶ 9.
DISCUSSION
¶10 Whether the District Court erred in denying Thomas’s motion to suppress evidence
found during a probation search of the outbuilding Thomas rented from a person
on probation.
¶11 Thomas asserts the District Court erred in denying his motion to suppress as the
outbuilding he rented from Paris was his separate residence in which he had a reasonable
5
expectation of privacy that was entitled to “the full protections of the Fourth Amendment
to the United States Constitution as well as the heightened privacy protections of the
Montana Constitution.” Thomas contends the District Court erred in allocating the burden
of proving the illegality of the search to Thomas, the District Court misapplied State v.
Finley, 2011 MT 218,
362 Mont. 35,
260 P.3d 175, and erred in determining that as he did
not lock his residence to prevent Paris from potentially entering it, he forfeited his
legitimate expectation of privacy.
¶12 The State contends that based on how the hearing was conducted and the District
Court’s findings and conclusions, the court appropriately placed the burden of establishing
a legal justification for the warrantless search on the State.1 Further, the State asserts the
District Court articulated sufficient basis to support a reasonable suspicion Paris was in
violation of her probation such that a probation search was permitted. The State argues
Thomas’s “room” was not a separate dwelling apart from Paris’s residence and, particularly
as there was no lock on the room’s door, it was reasonable to conclude Paris had access to
Thomas’s room and it was thus subject to a probation search.
¶13 The Fourth Amendment to the United States Constitution and Article II, Section 11,
of the Montana Constitution protect individuals from unreasonable searches and seizures
by government officials. Article II, Section 10, of the Montana Constitution provides the
“right of individual privacy is essential to the well-being of a free society and shall not be
infringed without the showing of a compelling state interest.” Individuals shall be secure
1
We agree with the State in this regard, but given our discussion below we do not find it necessary
to further discuss this issue.
6
in their “homes and effects from unreasonable searches and seizures.” Mont. Const., art.
II, § 11. We address Article II, §§ 10 and 11 in analyzing and resolving a search or seizure
issue that specifically implicates the right to privacy. State v Goetz, 2008 MT 296, ¶ 14,
345 Mont. 421,
191 P.3d 489 (citations omitted). Further, in light of Article II, § 10’s right
to privacy, we have held the range of warrantless searches which may be conducted
pursuant to Montana’s Constitution is narrower than the corresponding range of searches
which may be lawfully conducted under the Fourth Amendment to the U.S. Constitution.
Goetz, ¶ 14 (citing State v. Hardaway,
2001 MT 252, ¶ 35,
307 Mont. 139,
36 P.3d 900).
¶14 Warrantless searches inside a home are per se unreasonable unless the State
establishes an exception to the warrant requirement justified the search. Finley, ¶ 15.
In analyzing the officer’s entrance of the home, however, we restated the
indelible rule that warrantless searches conducted inside a home are per se
unreasonable, ‘subject only to a few specifically established and
well-delineated exceptions.’ [State v.] Hubbel, 286 Mont. [200,] 212, 951
P.2d [971,] 978. This Court has routinely stated that the physical invasion of
the home is the chief evil to which the 4th Amendment and Montana’s Article
II, § 11, are directed. We have emphasized again and again that the entrance
to the home is where the federal and Montana constitutions draw a firm line,
and that absent an exception, that threshold may not be crossed without a
warrant. See e.g., State v. Kao[,] 215 Mont. 277, 282-83,
697 P.2d 903, 907
[(1985)] (quoting Payton v. New York[,] 445 U.S. 573, [590,]
100 S. Ct.
1371[, 1382 (1980)]); State v. Bassett,
1999 MT 109, ¶ 25,
294 Mont. 327[,
982 P.2d 410]. Further, it is well-settled that the government’s intrusion into
a home through an unlocked door is no different than if entry is gained with
a key, or the use of force. See, e.g., Sabbath v. United States[,] 391 U.S. 585,
590,
88 S. Ct. 1755, 1758-59[ (1968)] . . . Thus, our analysis of the ‘nature’
of an officer’s warrantless intrusion into a person’s home cannot escape the
necessity that the State prove that one of the exceptions provided under our
search and seizure jurisprudence applies.
State v. Therriault, 2000 MT 286, ¶ 53,
302 Mont. 189,
14 P.3d 444. Finally, unlawful
search and seizure invokes the exclusionary rule—which makes the evidence obtained
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through an unlawful search and seizure inadmissible in criminal proceedings. Therriault,
¶ 57.
¶15 We turn first to consideration of Thomas’s legitimate expectations of privacy in the
outbuilding he rented from Paris—his primary residence. From our review of the record,
the District Court misapprehended the evidence in concluding Paris and Thomas to be
“roommates” and the outbuilding rented by Thomas to be part of Paris’s residence. The
undisputed evidence established an arms-length rental arrangement between Paris and
Thomas providing Thomas exclusive control over the outbuilding as his primary residence.
While Thomas may have had access to Paris’s residence, she did not have similar access
to his residence. While Thomas’s residence did not contain some functions ordinarily
associated with a separate and distinct dwelling, it was indeed used as Thomas’s separate
and distinct dwelling. Thus, the District Court’s findings that Paris and Thomas were
roommates and his “room” was part of Paris’s residence are clearly erroneous and not
supported by substantial evidence.2
¶16 Next, we consider whether Thomas’s legitimate expectation of privacy in his
residence was diminished by Paris’s probation conditions, specifically the condition
permitting warrantless searches at any time, day or night, of all places in her residence
where she has access including private rooms of other persons with whom she resides,
unless those rooms are locked and she does not have access to those rooms. Thomas does
2
We do note, however, that even if Thomas were renting a room within Paris’s residence, he would
have a legitimate expectation of privacy with the right to be free from unreasonable search and
seizure of his room. In such an instance, the State would have the burden of establishing the
legality of the search—i.e., an exception to the warrant requirement.
8
not contest the probation search of Paris’s residence—only that the search exceeded the
scope of the authorized probationary search. We agree with Thomas. Stasiak knew of and
approved the arms-length rental relationship between Paris and Thomas and, as such, knew
Thomas to have exclusive control over the outbuilding where he resided. The
misdemeanor sentencing order and the terms and conditions of probation signed by Paris
reduced Paris’s rights of privacy in her person and residence, but did not govern Thomas.
One does not lose his or her privacy rights in his or her residence merely because he or she
rents the residence from a person on probation. Thomas was not on probation and not
subject to probationary searches. Thomas’s rights to privacy in his person and residence
were not diminished by Paris’s probationary status or the rules applicable to her probation.
¶17 Finally, we turn to consideration of whether Thomas’s legitimate expectation of
privacy in his residence was diminished by his failure to lock the residence when he left
the residence to investigate the barking dogs. Thomas asserts the District Court misapplied
Finley in this regard. We agree. When Stasiak went to Thomas’s outbuilding, it was
unlocked. She concluded that as it was unlocked, there was no indication Paris did not
have access to the unlocked outbuilding and thus, it was subject to the probationary search.
The District Court concluded Finley to be instructive on this point.
¶18 In Finley, Finley’s wife was on probation. Finley shared a bedroom with his wife.
In their bedroom was a safe. While Finley’s wife was away from their residence, her
probation officer—in response to a report she may have been involved in a theft and a drug
deal—went to her home. Upon conducting an initial safety search in which she discovered
marijuana plants in the bathroom adjacent to Finley and his wife’s bedroom, the probation
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officer conducted a more thorough probationary search which included a search of the safe
in their bedroom which was open and unlocked. Contraband was found in the safe.
Although Finley did not challenge the probationary search, he challenged that the search
of the safe exceeded the scope of the authorized probationary search, arguing he alone
possessed the safe’s combination, he had opened the safe after his wife left the residence
that morning, and he would have closed and locked it before her return. He asserted his
wife did not have access to the safe and his private possessions would not be subject to a
probationary search by his wife’s probation officer. Finley, ¶¶ 5-11. We concluded
nothing indicated Finley’s wife did not have access to the unlocked and open safe such that
the probation condition authorized the probation officer’s warrantless search of Finley’s
residence, including the unlocked and open safe. The District Court concluded, like Finley,
Stasiak “found the room open and unlocked, and she legally searched the room pursuant to
the valid probationary search.” See Finley, ¶ 12.
¶19 The District Court misapplied Finley, giving it an excessively broad interpretation.
Were we to accept this interpretation, the exception to warrantless searches would nearly
swallow the federal and state constitutional protections against such.3 This case is
completely distinguishable from Finley. Here, unlike Finley, Paris and Thomas are not
married or even in a relationship with each other. Instead they entered into an arms-length
rental arrangement providing Thomas exclusive control and possession over the
3
Arguably any unlocked structure in a probationer’s city of residence would be subject to
warrantless search on the basis that the probationer potentially had access to it. Even if not taken
to that extreme, any residence or location within the exclusive possession of anyone the
probationer knows or visits would be subject to warrantless search on the basis that the probationer
had access to it.
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outbuilding which he used as his primary residence. Unlike Finley, where Finley’s wife
shared the living space and bedroom where the safe was located—the area searched—
Thomas did not share his residence with Paris but instead Paris permitted Thomas to use
her bathroom and kitchen facilities. Thomas did not have to lock his outbuilding residence
to have a legitimate expectation of privacy in it.4
CONCLUSION
¶20 Here, Thomas had a legitimate expectation of privacy in his residence. The District
Court erred in denying Thomas’s motion to suppress evidence found during the probation
search of the outbuilding Thomas rented from Paris. Thus, it is appropriate to reverse
Thomas’s conviction for criminal possession of dangerous drugs and remand this case to
the District Court to dismiss with prejudice the criminal possession of dangerous drug
charge against Thomas.
¶21 Reversed and remanded.
/S/ INGRID GUSTAFSON
We concur:
/S/ MIKE McGRATH
/S/ DIRK M. SANDEFUR
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
4
It is noted that Thomas did, however, routinely lock his residence when he was away. It was
completely understandable and did not reasonably provide Paris access to his residence when he
went outside the residence to investigate the dogs barking and was then immediately instructed by
law enforcement to go open Paris’s residence to the officers at her front door.
11
