                                                                                               09/06/2016


                                          DA 14-0684
                                                                                           Case Number: DA 14-0684

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2016 MT 220



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

NICHOLAS ANDREW MARINO,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Fifteenth Judicial District,
                       In and For the County of Roosevelt, Cause No. DC 13-18
                       Honorable David Cybulski, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Paul D. Sullivan, Measure, Sampsel, Sullivan & O’Brien, P.C., Kalispell,
                       Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
                       Attorney General, Helena, Montana

                       Ralph J. Patch, Roosevelt County Attorney, Jordan W. Knudsen, Deputy
                       County Attorney, Wolf Point, Montana



                                                    Submitted on Briefs: August 3, 2016

                                                                Decided: September 6, 2016


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Appellant Nicholas Andrew Marino (Marino) appeals the order of the Fifteenth

Judicial District Court, Roosevelt County, denying his motion to suppress. We affirm.

¶2     We consider the following issue on appeal:

¶3     Did the District Court err by concluding that law enforcement properly conducted
a canine sniff of Marino’s vehicle based upon particularized suspicion?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶4     At approximately 1:30 a.m. on June 2, 2013, Marino drove his vehicle out of the

Town Pump gas station in Wolf Point, Montana, without the headlights turned on.

Noticing the lack of headlights, Deputy Sheriff Corey Reum (Deputy Reum) initiated a

traffic stop of Marino’s car. As Deputy Reum pulled closer to Marino’s vehicle, he

noticed the vehicle did not have a rear license plate. When Deputy Reum exited his

vehicle and approached Marino’s car on foot, he was unable to see inside Marino’s

vehicle with his flashlight because the windows were covered in extremely dark tinting.

¶5     Deputy Reum asked to see Marino’s driver’s license, but Marino was only able to

produce a California identification card. Deputy Reum advised Marino that vehicles are

required by law to display license plates. Marino replied that his vehicle’s license plates

were in the trunk of the car because, as testified to by Deputy Reum, “his girlfriend told

him to take them off because they would attract attention to himself.” Marino, with

Deputy Reum’s permission, then exited the vehicle to retrieve the plates from the trunk.

¶6     Marino walked to the trunk of the car, opened it, and leaned into the trunk to

retrieve the plates.   When Marino bent over, Deputy Reum noticed a sheath under
                                         2
Marino’s clothing. Deputy Reum told Marino to place his hands on the trunk for a pat

down. Marino began to shake nervously as Deputy Reum began the search. Deputy

Reum removed a large knife in a sheath concealed under Marino’s shirt and handed it to

another responding officer, Officer Mehin Wehbe (Officer Wehbe), of the Wolf Point

Police Department. Deputy Reum continued his pat down and discovered a large lump in

Marino’s front pocket which he could not rule out as a weapon. Deputy Reum removed

the object, which turned out to be a large roll of cash (later determined to be $2,914)

attached to a Visa debit card. Deputy Reum then felt a strap on Marino’s body that ran

toward his armpit, and Marino informed him it was a concealed weapon. Deputy Reum

ordered Marino to the ground and handcuffed him before safely removing the pistol from

the concealed holster.

¶7     Deputy Reum had significant prior experience with narcotics investigations and

concluded that indicators for drug trafficking were present. After placing Marino under

arrest for carrying an unlicensed, concealed weapon, Deputy Reum brought his canine

unit from his vehicle to check Marino’s car for odors. The canine alerted near the rear of

the vehicle. Marino’s car was towed to the Roosevelt County Sheriff’s Office and sealed

with evidence tape. A search warrant was obtained and law enforcement discovered

methamphetamine during the search of the vehicle.

¶8     Marino was charged with Criminal Possession of Dangerous Drugs with Intent to

Distribute pursuant to § 45-9-103, MCA (2013), with a persistent felony offender

designation under § 46-18-502, MCA. Marino moved to suppress the evidence seized in

                                        3
the search of his car, arguing there was no particularized suspicion of wrongdoing

involving narcotics sufficient to justify a canine sniff. The District Court denied the

motion, concluding there were sufficient facts for Deputy Reum to reasonably believe

Marino was engaged drug trafficking. Marino entered a plea agreement, admitting to the

charge and to his status as a persistent felony offender, but reserving his right to appeal

the District Court’s denial of his motion to suppress. Marino appeals.

                              STANDARD OF REVIEW

¶9     We review a district court’s denial of a motion to suppress to determine whether

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

application of the law was correct. State v. Goetz, 2008 MT 296, ¶ 9, 345 Mont. 421, 191

P.3d 489 (citing State v. Copelton, 2006 MT 182, ¶ 8, 333 Mont. 91, 140 P.3d 1074). A

district court’s findings are clearly erroneous if they are not supported by substantial

credible evidence, if the court has misapprehended the effect of the evidence, or if our

review of the record leaves us with a definite and firm conviction that a mistake has been

made. State v. Ellis, 2009 MT 192, ¶ 20, 351 Mont. 95, 210 P.3d 144 (citing State v.

Lewis, 2007 MT 295, ¶ 17, 340 Mont. 10, 171 P.3d 731).

                                     DISCUSSION

¶10    Marino argues that the use of a canine sniff on his vehicle was a warrantless

search that must be supported by a warrant exception, and that all such exceptions,

including the canine sniff in this case, must be justified by exigent circumstances, citing

State v. Hardaway, 2001 MT 252, 307 Mont. 139, 36 P.3d 900. As such, Marino argues

                                         4
the canine sniff of his car was improper because no exigent circumstances remained after

Deputy Reum removed any potential threat by arresting and placing Marino in handcuffs.

The State argues that our reasoning in State v. Tackitt, 2003 MT 81, 315 Mont. 59, 67

P.3d 295, where we held that canine searches of constitutionally protected areas need

only be supported by particularized suspicion, controls the outcome in this case.

¶11    Marino is correct that a canine search of a container in which a person has a

reasonable expectation of privacy is a search. That is the essence of the first part of our

holding in Tackitt. Tackitt, ¶ 20. However, the State accurately explains the second part

of our holding in Tackitt, that law enforcement needs only particularized suspicion to

conduct a canine search without a warrant. Tackitt, ¶ 31.

Drug-Canine Exception to the Warrant Requirement

¶12    “The threshold question in a search case is whether there is an expectation of

privacy which society is prepared to recognize as objectively reasonable.” Tackitt, ¶ 17

(citing State v. Scheetz, 286 Mont. 41, 46, 950 P.2d 722, 724 (1997)). If there is a

reasonable expectation of privacy, the nature of the state’s intrusion must also be

reasonable. Tackitt, ¶ 17. Regarding automobiles in particular, “when a person stores

something in a concealed area of a vehicle and seeks to preserve their privacy, that

privacy has constitutional protections.” Tackitt, ¶ 20; accord State v. Elison, 2000 MT

288, ¶ 51, 302 Mont. 228, 14 P.3d 456. As such, a search—including a canine sniff—of

the concealed areas of a vehicle is subject to constitutional protections. Tackitt, ¶ 22;




                                         5
State v. Hart, 2004 MT 51, ¶¶ 20–21, 320 Mont. 154, 85 P.3d 1275; State v. Meza, 2006

MT 210, ¶ 22, 333 Mont. 305, 143 P.3d 422.

¶13    Generally, warrantless searches are per se unreasonable subject to a few, narrowly

drawn exceptions. Elison, ¶ 39; State v. Munson, 2007 MT 222, ¶ 50, 339 Mont. 68, 169

P.3d 364. One of those exceptions, as we established in Tackitt, is the use of a drug or

narcotic detecting canine where law enforcement has particularized suspicion and the

odors from the searched container are exposed in the public. Tackitt, ¶ 29; accord Hart,

¶¶ 20–21; State v. Stoumbaugh, 2007 MT 105, ¶ 18, 337 Mont. 147, 157 P.3d 1137.

¶14    As we noted in Tackitt, government has a significant interest in discouraging

illegal drug trafficking. Tackitt, ¶ 29. Discovering illegal drug trafficking is often

difficult because it involves activities that usually appear innocent and trafficking, by its

nature, is inherently transient. Tackitt, ¶ 29. Canine sniffs are far less intrusive than an

actual, physical search of a space because a sniff only examines the odors on the exterior

of the container. Tackitt, ¶ 29; Meza, ¶ 22. Further, unlike thermal scans, State v. Siegal,

281 Mont. 250, 274–75, 934 P.2d 176, 190–91 (1997) (noting thermal scans do not

differentiate between legal and illegal activities), overruled in part on other grounds,

State v. Kuneff, 1998 MT 287, ¶¶ 18–19, 291 Mont. 474, 970 P.2d 556, a canine sniff is

both selective and accurate because the canine only alerts on the presence of the

contraband it has been trained to detect. Tackitt, ¶ 29. As such, the minimally intrusive

and accurate nature of a canine sniff supported by particularized suspicion appropriately




                                          6
balances the enhanced individual privacy interests under the Montana Constitution with

governmental interests. Tackitt, ¶ 29.

¶15    Marino argues that an exigency requirement should be implied in all warrantless

searches based on our holding in Hardaway. However, Marino appears to confuse the

requirements for the drug canine warrant exception with the individual requirements for

the search incident to arrest, automobile, exigency, and plain view warrant exceptions.

Hardaway held the search incident to arrest exception implied an exigency requirement

only for § 46-5-102(4), MCA. Hardaway, ¶ 57. As our case law demonstrates, these

warrant exceptions are separate and independent, and each exception has its own

requirements. E.g., Elison, ¶ 43 (automobile); State v. Wakeford, 1998 MT 16, ¶¶ 22–24,

287 Mont. 220, 953 P.2d 1065 (exigent circumstances); State v. Bassett, 1999 MT 109,

¶¶ 52–53, 294 Mont. 327, 982 P.2d 410 (plain view). There is no uniform requirement

for all warrant exceptions that exigency must always be present. Accordingly, exigent

circumstances need not be established before law enforcement may conduct a canine sniff

search. Rather, law enforcement may conduct a canine sniff search of a container in

which a person has a reasonable expectation of privacy if (1) the officers have

particularized suspicion; and (2) the odors from that container are freely exposed to the

public. Tackitt, ¶ 31.

¶16    Marino had a reasonable expectation of privacy in the concealed contents of his

car and the canine sniff of his car was a warrantless search. However, the odors at

question were freely exposed to the public because Marino’s vehicle was on a public

                                         7
road. As such, we must examine whether Deputy Reum had particularized suspicion to

conduct the canine sniff of Marino’s car.

Particularized Suspicion to Conduct a Drug-Canine Sniff

¶17    Particularized suspicion requires “(1) objective data from which an experienced

police officer can make certain inferences; and (2) a resulting suspicion that the person is

or has been engaged in wrongdoing.” Stoumbaugh, ¶ 18. “Whether a particularized

suspicion exists represents a question of fact determined by examining the totality of

circumstances surrounding the investigation stop.”       Meza, ¶ 25.     “In evaluating the

totality of the circumstances, a court should consider the quantity, or content, and quality,

or degree of reliability, of the information available to the officer.” State v. Pratt, 286

Mont. 156, 161, 951 P.2d 37, 40 (1997) (citing Alabama v. White, 496 U.S. 325, 330, 110

S. Ct. 2412, 2416 (1990)).

¶18    In Tackitt, we determined that particularized suspicion was lacking because the

informant was anonymous and unconfirmed, and police investigation verified only

innocent public information and stale prior convictions. Tackitt, ¶¶ 34–41. However, in

Hart, we affirmed the district court’s finding of particularized suspicion for a canine

search where the officers approached the defendant’s home to serve an arrest warrant for

felony criminal sale of dangerous drugs, saw the defendant driving away, and, after

pulling him over, observed furtive movements consistent with an individual attempting to

either get a weapon or hide something. Hart, ¶ 21. Similarly, in Meza, we upheld the

finding of particularized suspicion where the defendant illegally parked in the middle of

                                            8
the street in front of a known narcotics operation, acted nervously when pulled over, and

police dispatch informed the officer the defendant had a history of narcotics use. Meza,

¶¶ 24–25. Finally, in Stoumbaugh, we upheld a determination of particularized suspicion

to use a canine search of a vehicle where the officers responded to a report of illegal drug

use, the defendant’s family disclosed the defendant’s location in their home so the

officers could arrest the defendant on pending arrest warrants, the defendant admitted to

drug charges in Washington state, the police confirmed the felony drug charges, and the

defendant urgently attempted to tow her vehicle away at a cost exceeding the value of the

vehicle itself. Stoumbaugh, ¶¶ 21–24.

¶19    Here, the District Court did not err in determining that particularized suspicion

existed to support the canine sniff of Marino’s car. Marino was pulled over by Deputy

Reum because he was driving without headlights at 1:30 a.m.             Marino’s car had

extremely dark window tinting and did not have a rear license plate. When informed that

his vehicle should have license plates, Marino told Deputy Reum that he had removed

them, on the advice of his girlfriend, so he would not attract attention, thus implying he

was attempting to avoid detection. Marino did not have a driver’s license even though he

was operating a vehicle. While Marino was retrieving the license plates, Deputy Reum

noticed a sheath concealed under Marino’s shirt.        During the ensuing pat down of

Marino, Deputy Reum discovered a concealed knife, a roll of cash in the amount of

$2,914, and an unlicensed, concealed weapon.




                                         9
¶20   As such, Deputy Reum had sufficient, objective information to suspect that

Marino was engaged in illegal narcotics trafficking. Whether particularized suspicion

exists is a question of fact determined by the totality of the circumstances. Meza, ¶ 25.

On these facts, the District Court correctly determined there was particularized suspicion

to support the canine search of Marino’s car.

¶21   Affirmed.



                                                /S/ JIM RICE


We concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ PATRICIA COTTER




                                        10
