                                                                                            April 1 2015


                                          DA 13-0556
                                                                                         Case Number: DA 13-0556

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2015 MT 97N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

MOSE DAMON MOULTON,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twentieth Judicial District,
                        In and For the County of Lake, Cause No. DC 11-108
                        Honorable Deborah Kim Christopher, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender, Kristen Larson, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
                        Attorney General, Helena, Montana

                        Mitchell A. Young, Lake County Attorney, Polson, Montana



                                                   Submitted on Briefs: March 11, 2015
                                                              Decided: April 1, 2015


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia Cotter 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 noncitable cases published in the Pacific Reporter and Montana Reports.

¶2       On August 5, 2011, at approximately 10 p.m., Flathead Tribal Police Officer Casey

Couture initiated a traffic stop in Pablo, Montana, on a pickup truck with a broken tail light.

Couture recognized Mose Moulton as the driver and Dewayna Greycloud as the passenger.

As he approached the vehicle, Couture observed Moulton and Greycloud making furtive

movements and placing something into a blue backpack. Couture asked if Moulton’s license

had been reinstated and Moulton admitted that he was driving without a valid license. The

officer then informed Moulton that there was an active warrant for his arrest outstanding in

Tribal Court.

¶3       The officer asked Moulton to step out of the truck. Couture noticed that Moulton

was clenching his teeth, was fidgety, and that his pupils were dilated and did not react to

light. The officer suspected that Moulton was under the influence of stimulants. While

searching Moulton incident to the arrest, the officer found several hundred dollars in

Moulton’s pocket and a list of names with dollar amounts next to them, typical—in

Couture’s experience—of notes of drug transactions. He asked Moulton if he could search

the vehicle but Moulton refused, saying the truck was not his.

¶4       Couture called Agent Arlen Auld with the Northwest Drug Task Force (NDTF) and

asked Auld to meet him at the scene. Auld arrived and assumed responsibility for the


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investigation. Auld also observed that Moulton displayed multiple signs of stimulant use.

Moulton also refused Auld’s request to search the truck. Moulton was arrested and

transported to Tribal Law and Order.

¶5         The following day, Auld obtained a warrant and searched Moulton’s impounded

vehicle. In the blue backpack Couture had seen, Auld discovered 20 plastic packages of

white powder that he field tested and identified as methamphetamine. He also found 11

oxycodone pills in an unlabeled prescription bottle and a scale with white powder residue on

it. A cell phone found on the front seat had numerous text messages from people seeking to

purchase drugs.

¶6         The Lake County Attorney’s Office issued an Information on August 16, 2011,

charging Moulton with felony criminal possession with intent to distribute

(methamphetamine) and felony criminal possession of dangerous drugs (oxycodone).

Moulton entered a not guilty plea. On December 1, 2011, Moulton filed a motion to

suppress the search results from the pickup truck because the search warrant had been

“improvidently” granted as there was no probable cause for issuance of a warrant. The

District Court denied his motion without a hearing concluding that under the totality of the

circumstances probable cause existed for a search warrant.

¶7         A jury trial commenced on July 9, 2012, and the District Court declared a mistrial

on July 10. A second trial commenced on September 17, 2012, but was vacated when the

District Court granted both parties’ request for an order that Moulton undergo psychological

testing.




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¶8          While the District Court proceedings were underway, Moulton was charged in

Tribal Court with multiple misdemeanors arising from this traffic stop. He moved the Tribal

Court to suppress evidence obtained in the vehicle search. The Tribes opposed the motion1

but on November 7, 2012, the Tribal Court granted it, finding no particularized suspicion for

the stop.

¶9          On December 14, 2012, arguing that the Tribal Court ruling was similar to “newly

discovered evidence” and constituted “good cause,” Moulton again moved the District Court

to suppress the evidence obtained in the vehicle search. He argued that the Tribal Court’s

decision was entitled to comity. In January 2013, the District Court denied his motion. The

court recited the multiple factors constituting particularized suspicion for the stop. The court

observed that while Tribal Court has exclusive jurisdiction over misdemeanors committed by

a tribal member on the reservation, the State of Montana has jurisdiction over felonies

occurring in Lake County. The District Court concluded that the issue of comity was not

relevant because the charges against Moulton before the Tribal Court were different than the

charges in the District Court.

¶10         On March 21, 2013, Moulton entered into a conditional guilty plea for felony

criminal possession of dangerous drugs and the State agreed to dismiss the felony charge of

criminal possession with intent to distribute. Moulton preserved his right to appeal District

Court rulings on pretrial motions.           Following receipt of Moulton’s pre-sentencing

investigation, the District Court deferred imposing Moulton’s sentence for a period of three

years and granted him 185 days credit against his sentence. Moulton filed a timely appeal.

1
    The State was not a party or participant in the Tribal Court proceedings.

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¶11      Moulton argues that the District Court erred when it denied his December 1, 2011

motion to suppress because there was insufficient probable cause to obtain the search

warrant. We disagree.      In its order denying Moulton’s motion, the court expressly

considered the totality of the circumstances and set forth the specific facts contained in the

application for the search warrant that established sufficient probable cause to issue the

warrant. In State v. Deshaw, 2012 MT 284, ¶ 33, 367 Mont. 218, 291 P.3d 561, we stated

that under the totality of the circumstances test, “the issuing 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.’” The District Court correctly applied the test and

determined that probable cause existed.

¶12      Likewise, the court did not err in denying the second motion to suppress. The

finding of the Tribal Court regarding a lack of particularized suspicion is not binding on the

District Court. As we explained in Oberson v. Federated Mut. Ins. Co., 2005 MT 329, ¶ 10,

330 Mont. 1, 126 P.3d 459, “[c]omity is ‘not a rule of law’ but rather ‘an expression of one

state’s entirely voluntary decision to defer to the policy of another.’” The District Court

could have deferred to the Tribal Court’s decision on particularized suspicion, but was

clearly not obligated to do so. We find no error.

¶13      We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for noncitable memorandum opinions. The issues

in this case are legal and are controlled by settled Montana law which the District Court

correctly interpreted.


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¶14    Affirmed.

                              /S/ PATRICIA COTTER

We Concur:


/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ LAURIE McKINNON




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