                                                                                          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




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