                                                                                               10/04/2016


                                           DA 15-0050
                                                                                           Case Number: DA 15-0050

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2016 MT 250N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

ALISHA YVONNE MCDANAL,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twentieth Judicial District,
                        In and For the County of Lake, Cause No. DC-13-175
                        Honorable James A. Manley, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Chief Appellate Defender, Haley Connell Jackson,
                        Assistant Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
                        Attorney General, Helena, Montana

                        Steven N. Eschenbacher, Lake County Attorney, Polson, Montana



                                                    Submitted on Briefs: August 24, 2016

                                                               Decided: October 4, 2016


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), 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 noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Alisha Yvonne McDanal (McDanal) appeals from a September 24, 2014

conviction pursuant to a plea agreement in which she reserved the right to appeal the

District Court’s denial of her motions to suppress. McDanal pled guilty to the offense of

felony criminal possession of dangerous drugs in exchange for a three-year deferred

sentence. The Court stayed McDanal’s sentence until the conclusion of her appeal.

McDanal timely appealed. We affirm.

¶3     On November 14, 2013, the State charged McDanal with felony intimidation. The

State later amended the Information to felony criminal possession of dangerous drugs, in

violation of § 45-9-102, MCA. The charges arise from a November 3, 2013 arrest.

Polson police received a report that a possible domestic assault was in progress in the

apartment McDanal and her boyfriend shared. McDanal was present during the assault

but was not the victim. Police found the victim outside the apartment with a broken leg,

later determined to be a bullet wound.

¶4     To search for evidence of the assault Polson police obtained a search warrant for

McDanal’s apartment, and searched it that evening.           In the apartment, Officers


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discovered drug paraphernalia commonly associated with methamphetamine use and

several small bags containing white powder that tested positive for methamphetamine.

Detective Michelle Scott (Det. Scott) interviewed McDanal that evening at the Lake

County Detention Facility.     Det. Scott reported McDanal “had unnatural body

movements, unnatural movement of her mouth and facial expressions which are similar

to those under the influence of methamphetamine.” Based on her training and experience

Det. Scott believed McDanal was under the influence of drugs, specifically

methamphetamine.

¶5    On November 5, 2013, two days after the arrest, Det. Scott applied for a search

warrant to test McDanal’s urine for methamphetamine. In the application Det. Scott

included the following facts: Det. Scott is a credible witness as she is trained and

experienced in detection of drug use, including methamphetamine; police responded to a

possible domestic dispute at McDanal’s apartment, where police found a victim with a

gunshot wound to the leg; police obtained a search warrant for McDanal’s apartment,

which when executed resulted in the discovery of drugs and paraphernalia associated

with methamphetamine use in various places throughout the apartment; and Det. Scott

personally interviewed McDanal, observing McDanal was impaired, had unnatural body

movements, and unnatural movements of the face and mouth similar to people under the

influence of methamphetamine. McDanal’s urine was seized pursuant to the search

warrant and tested positive for methamphetamines.

¶6    On November 14, 2013, the State charged McDanal with felony intimidation.

Upon McDanal’s request, the trial was continued multiple times. On July 3, 2014, the

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District Court granted the State’s motion to amend its Information to charge McDanal

with felony criminal possession of dangerous drugs. On August 1, 2014, McDanal filed

two motions to suppress, one to suppress the drugs and paraphernalia found in the

apartment, and one to suppress the positive drug results from the urine analysis test.

¶7     The District Court initially granted the motion to suppress .08 grams of alleged

drug evidence, but denied the motion to suppress the urine analysis test. The District

Court, in its order denying McDanal’s motion to suppress the urine analysis test, excised

the evidence of the .08 grams of alleged drug evidence when it reviewed the application

for the search warrant. The District Court determined the facts stated in the application

were sufficient to show probable cause that criminal possession of dangerous drugs had

occurred, and the urine test was reasonably calculated to find evidence of that crime,

satisfying the requirements of § 46-5-221, MCA. McDanal appeals the order denying her

motion to suppress the urine analysis results.

¶8     We review a district court’s ruling on a motion to suppress evidence to determine

whether the court’s findings of fact are clearly erroneous and whether the court’s

interpretation and application of the law is correct. State v. Minett, 2014 MT 225, ¶ 7,

376 Mont. 260, 332 P.3d 235.

¶9     McDanal argues the District Court erred when it denied her motion to suppress

evidence of the urine analysis results. She argues that at the time the search warrant was

issued, the facts asserted in the application were stale, and therefore were not sufficient to

show probable cause that methamphetamine would be found in her urine.



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¶10   The Montana Constitution states, “[n]o warrant to search any place, or seize any

person or thing shall issue without describing the place to be searched or the person or

thing to be seized, or without probable cause, supported by oath or affirmation reduced to

writing.” Mont. Const. art. II, § 11. In Montana, judges shall issue search warrants when

a law enforcement officer, under oath or affirmation, in writing, electronically, or by

telephone:

             (1) states facts sufficient to support probable cause to believe that an
      offense has been committed;
             (2) states facts sufficient to support probable cause to believe that
      evidence, contraband, or persons connected with the offense may be found;
             (3) particularly describes the place, object, or persons to be searched;
      and
             (4) particularly describes who or what is to be seized.

Section 46-5-221, MCA. The sufficiency of a warrant is assessed on a case-by-case basis

to determine whether any alleged defect in the warrant application is sufficient to affect

the substantial rights of the accused. Muir v. Bilderback, 2015 MT 180, ¶ 11, 379 Mont.

459, 353 P.3d 473 (citing State v. West, 1998 MT 282, ¶ 8, 291 Mont. 435, 968 P.2d

289). An application for a search warrant must state facts sufficient to show probable

cause for its issuance. Section 46-5-221, MCA; State v. Reesman, 2000 MT 243, ¶ 24,

301 Mont. 408, 10 P.3d 83. This Court has adopted the “totality of the circumstances

test” to evaluate the existence of probable cause in a search warrant application.

Reesman, ¶ 24 (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)).

Under the totality of circumstances test, 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

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will be found in a particular place.” State v. Kasparek, 2016 MT 163, ¶ 8, 384 Mont. 56,

375 P.3d 372. The judicial officer’s “determination that probable cause exists is entitled

to great deference and every reasonable inference possible [must] be drawn to support

that determination of probable cause.” Kasparek, ¶ 8.

¶11    McDanal concedes the facts in the warrant application may have indicated

evidence of drugs in her urine on November 3, but argues that when the warrant was

issued those same facts were too stale to show probable cause. Simply, McDanal argues

the evanescent character of methamphetamine in urine required the search warrant

application to include specifically why the drug would be in McDanal’s urine at the time

the warrant was issued.

¶12    Whether an application for a search warrant contains stale information depends on

the nature of the property sought and activity in issue. State v. Tackitt, 2003 MT 81, ¶ 39,

315 Mont. 59, 67 P.3d 295. The determination of staleness “cannot be resolved by a

mechanical reference to the number of days between the facts relied upon in the affidavit

and the time the warrant is issued.” State v. Rinehart, 262 Mont. 204, 213, 864 P.2d

1219, 1224 (1993). Because the staleness of facts in a search warrant application “cannot

be resolved by a mechanical reference,” a judicial officer must make a “practical,

common sense determination” of whether a fair probability exists that evidence of a

crime will be found in a specific place. Rinehart, 262 Mont. at 213, 864 P.2d at 1224;

Kasparek, ¶ 8. It is true the presence of drugs in a person’s body is evanescent and will

eventually dissipate. However, common sense is not so evanescent.



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¶13   In this case, the District Court made a practical, common sense determination

when it issued the search warrant. Based on the totality of the circumstances the District

Court properly concluded the warrant application stated facts sufficient to support

probable cause and those facts were not stale. This determination is entitled to great

deference. Muir, ¶ 12. We conclude the District Court did not err in denying McDanal’s

motion to suppress the evidence of methamphetamine in her urine pursuant to the search

warrant.

¶14   We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review.

¶15   Affirmed.


                                                 /S/ MIKE McGRATH


We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE




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