                                                                                           June 24 2015


                                         DA 13-0461
                                                                                         Case Number: DA 13-0461

                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2015 MT 177



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

KYLE RYAN McKEEVER,

              Defendant and Appellant.



APPEAL FROM:           District Court of the Seventh Judicial District,
                       In and For the County of Dawson, Cause No. DC-12-102
                       Honorable Richard A. Simonton, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                       Wade Zolynski, Chief Appellate Defender, David G. Dennis, Koan
                       Mercer, Assistant Appellate Defenders, John M. Wolff, Intern,
                       Helena, Montana

               For Appellee:

                       Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant
                       Attorney General, Helena, Montana

                       Olivia Norlin-Rieger, Dawson County Attorney, Glendive, Montana



                                                   Submitted on Briefs: April 15, 2015
                                                              Decided: June 24, 2015


Filed:

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


¶1     Kyle McKeever appeals from the District Court’s order of March 5, 2013, denying

his motion to suppress evidence. We affirm.

¶2     The issue on appeal is whether the District Court properly denied McKeever’s

motion to suppress the contents of the prescription bottle found during the arrest.

                                    BACKGROUND

¶3     In December 2012 a Glendive Police Department officer stopped McKeever’s car

after recognizing him as a person who had a suspended driver’s license. The officer

noted that McKeever was nervous, trembling and swallowing frequently. McKeever

stated that he could not go to jail, and that he was on his way to the public library to get

driving directions to Great Falls.      After confirming that McKeever’s license was

suspended, the officer placed McKeever under arrest. McKeever consented to a search of

his vehicle, and the officer called for backup and a second officer arrived. The officer

conducted a pat-down search and discovered a prescription medication bottle in the cuff

of McKeever’s pants leg.       The prescription was for a controlled substance called

Alprazolam and the label indicated that it had been issued to a person named

Motschenbacher.

¶4     The officer asked McKeever what was in the bottle and McKeever did not

respond. One or both of the officers opened the bottle and saw that it contained tissue

paper over a few pills. McKeever told the officers he did not know where he got the

bottle and did not know why it was in his pants cuff. At some point during this process


                                             2
one of the officers handcuffed McKeever and told him he would be taken to the Dawson

County Detention Center.

¶5     At the Detention Center McKeever was cited for driving with a suspended or

revoked license. The officer subsequently confirmed that the pills in the bottle were a

controlled substance and cited McKeever for criminal possession of dangerous drugs.

¶6     In 2013 the State charged McKeever with felony criminal possession of dangerous

drugs, § 45-9-102, MCA. McKeever entered a plea agreement with the State after the

District Court denied his motion to suppress the drugs seized at the time of arrest.

McKeever pled guilty to the drug possession offense, reserving the right to appeal the

District Court’s pre-trial suppression order.     On May 24, 2013, the District Court

sentenced McKeever to a three-year deferred imposition of sentence, as specified in the

plea agreement.

¶7     McKeever filed a timely notice of appeal, but his opening brief was not filed until

July 18, 2014. The State’s response brief was filed October 15, 2014, and McKeever’s

reply brief was filed February 27, 2015.

                              STANDARDS OF REVIEW

¶8     This Court reviews a district court’s decision on a motion to suppress evidence to

determine whether the findings of fact are clearly erroneous, and whether the district

court correctly applied the law. State v. Hilgendorf, 2009 MT 158, ¶ 11, 350 Mont. 412,

208 P.3d 401. We will affirm a district court when it reaches the correct result, even if it

is for the wrong reason. In re BAM, 2008 MT 311, ¶ 24, 346 Mont. 49, 192 P.3d 1161.



                                             3
                                     DISCUSSION

¶9    Issue: Whether the District Court properly denied McKeever’s motion to suppress
      the contents of the prescription bottle found during the arrest.

¶10   The District Court’s order denying the motion to suppress determined that

McKeever did not contend that the vehicle stop was unlawful and did not contend that the

officers improperly conducted a pat-down search.        While McKeever accepted that

discovery of the pill bottle was lawful, he objected to the officers’ opening it without a

search warrant. The District Court found that the search was incident to the arrest

pursuant to § 46-5-102, MCA. The pill bottle “appeared to be contraband” because the

prescription was in the name of another person and was for a controlled substance.

Because McKeever did not provide a reasonable explanation for his possession of the

bottle, the District Court determined that the officers “would have been remiss in their

duty” to not check the contents of the bottle. While the bottle contained a controlled

substance, if it had been empty or had contained something other than a controlled

substance, there would have been no crime.

¶11   The District Court determined that because the officers “obviously had probable

cause” to obtain a search warrant for the pill bottle, they would have inevitably

discovered its contents. Alternatively, because McKeever was in custody, the District

Court determined that a “standard inventory search” at the Detention Center would have

discovered the contents of the pill bottle, citing Hilgendorf, ¶ 26. The District Court

determined that the officers therefore would have inevitably discovered the pills and

denied the motion to suppress.


                                             4
¶12   On appeal McKeever contends that opening the pill bottle was an illegal search

because he was under arrest and handcuffed, and opening the bottle did not serve to

protect the officers, did not prevent him from escaping, did not relate to the driving

offense, and was not justified by exigent circumstances.      McKeever disagrees with

application of the concept of inevitable discovery because it would “eviscerate”

constitutional protections against unreasonable searches.       He also contends that

concluding the pills would have been discovered upon booking at the detention center is

speculation, and that the State presented no evidence as to the “standard protocol for

inventory searches.”

¶13   On appeal the State contends that there was no “search” of the contents of the

prescription bottle because McKeever by his words and actions disclaimed any personal

privacy interest in the prescription bottle. A search is not illegal if the defendant has

disclaimed an interest in the object seized, § 46-5-103, MCA. He therefore lacked a

reasonable expectation of privacy in the prescription bottle, and without a violation of

privacy there can be no unreasonable search and the search was not illegal.          The

prescription was issued to another person who was not present; it was for a controlled

substance, § 50-32-229(2)(a), MCA; and the bottle was therefore contraband that could

be used in a prosecution, § 46-5-103(2), MCA.

¶14   The Fourth Amendment to the United States Constitution protects persons from

unreasonable searches and seizures, and Article II, Sections 10 and 11 of the Montana

Constitution provide similar but heightened protections. State v. A Blue 1993 Chevrolet

Pickup, 2005 MT 180, ¶ 9, 328 Mont. 10, 116 P.3d 800. These provisions generally

                                           5
require that a search be conducted pursuant to a warrant based upon probable cause.

State v. Dickinson, 2008 MT 159, ¶ 18, 343 Mont. 301, 184 P.3d 305. Under the

Montana Constitution a “search” occurs if governmental action breaches a person’s

reasonable expectation of privacy. State v. Goetz, 2008 MT 296, ¶ 25, 345 Mont. 421,

191 P.3d 489. Whether a “search” occurred in a particular case requires determining that

the person challenging the state’s action had an actual expectation of privacy that society

is willing to recognize as reasonable. Goetz, ¶ 27.

¶15    The theory of inevitable discovery relied upon by the District Court is an

exception to the requirement for a search warrant and can allow the use of evidence that

might otherwise be excluded. Dickinson, ¶ 18. The inevitable discovery rule posits that

evidence obtained without a search warrant may nonetheless be used against the

defendant if law enforcement officers would clearly have been entitled to a warrant or

would have inevitably discovered the evidence in a manner that did not require a warrant.

State v. Ellis, 2009 MT 192, ¶¶ 48-49, 351 Mont. 95, 210 P.3d 144. Implied within the

application of the rule is a conclusion that a search warrant was required, and that the

evidence was seized in violation of the warrant requirement. We do not resolve this case

through application of the inevitable discovery rule, but conclude that there was no search

in the constitutional sense because the evidence does not demonstrate that McKeever had

a reasonable privacy interest in the contents of the prescription bottle.

¶16    The initial search in this case discovered the prescription bottle in the cuff of

McKeever’s trousers.      That search was lawful as a search incident to arrest and

McKeever does not contend otherwise. Section 46-5-102, MCA; Dickinson, ¶ 18; State

                                              6
v. Lanegan, 2004 MT 134, ¶ 13, 321 Mont. 349, 91 P.3d 578. McKeever contends that

there was a second search when one or both of the officers opened the bottle to determine

its contents. However, if McKeever had no reasonable expectation of privacy, there was

no constitutional “search.” State v. Hill, 2004 MT 184, ¶ 24, 322 Mont. 165, 94 P.3d

752.   Our inquiry is whether under the facts of this case, the Court can conclude

McKeever had an actual expectation of privacy and, if so, whether that is an expectation

that society is willing to recognize as objectively reasonable. Hill, ¶ 24.

¶17    When the person claiming an unconstitutional search does not articulate any

reason other than his mere presence to support an expectation of privacy, the argument

“is not compelling,” and has the effect of a voluntary relinquishment of interest in the

object. Hill, ¶¶ 26, 28. A voluntary relinquishment of interest in an item is akin to

abandonment for assessing whether the person has a protectable expectation of privacy.

1993 Chevrolet, ¶ 14. The overriding inquiry in this context is intent, which may be

inferred from both statements and acts of the person. 1993 Chevrolet, ¶ 15.

¶18    In this case the totality of the circumstances demonstrates that McKeever had no

reasonable expectation of privacy in the pill bottle. When the prescription bottle was

found during the initial search, McKeever did not remain silent but expressly disclaimed

knowledge of where the bottle came from or how it got into his cuff. He claimed no

ownership of the bottle or its contents. The name on the prescription was not his, and the

prescription was for a controlled substance. These circumstances completely undermine

McKeever’s argument that he had a reasonable expectation of personal privacy in the

prescription bottle. To the contrary, he virtually abandoned it once it was discovered. In

                                              7
Hill the defendant was stopped for a speeding violation, which led ultimately to the

discovery of a large quantity of drugs in the trunk of the car he was driving. In response

to the officer’s questions, Hill stated that there was nothing in the trunk of the car, and,

when duffle bags were found, said that they were not his. This Court held that Hill had

“voluntarily relinquished any interest in the vehicle’s trunk and its contents.” Hill, ¶ 28.

Therefore, any claimed expectation of privacy was “not objectively reasonable.”

McKeever did much the same here, relinquishing any interest in the pill bottle.

¶19    In the absence of an articulable and supportable right of privacy in the prescription

bottle, there was no search in the constitutional sense.

¶20    The District Court therefore achieved the correct result by denying McKeever’s

motion to suppress.

¶21    Affirmed.


                                                  /S/ MIKE McGRATH

We Concur:

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


Justice Laurie McKinnon, specially concurring.

¶22    The Court resolves this case by finding that McKeever did not have an expectation

of privacy in the contents of a pill bottle secreted within his clothing because he was

silent when asked by police whether the pill bottle was his, and because the pill bottle had

another person’s name on it. The District Court found that the contents of the pill bottle

                                              8
would have inevitably been discovered pursuant to the inventory search exception to the

warrant requirement. I would affirm on this basis, relying on our decision in State v.

Hilgendorf, 2009 MT 158, ¶ 27, 350 Mont. 412, 208 P.3d 401, reaffirmed in State v.

Demontiney, 2014 MT 66, ¶ 17, 374 Mont. 211, 324 P.3d 344.

¶23   The Court’s analysis is flawed for several reasons. First, the Court ignores that the

pill bottle was actually found on McKeever’s person, secreted in the cuff of his clothing.

To determine if a search has occurred, the court considers (1) “whether the person

challenging the state’s action has an actual subjective expectation of privacy” and (2)

“whether society is willing to recognize that subjective expectation as objectively

reasonable . . . .” State v. Goetz, 2008 MT 296, ¶ 27, 345 Mont. 421, 191 P.3d 489. We

stated in State v. Elison, 2000 MT 288, ¶ 49, 302 Mont. 228, 14 P.3d 456, that “[p]lacing

an object beyond the purview of the public in a place from which the person has the right

to exclude others evidences an actual or subjective expectation of privacy.” By placing

the pill bottle within the folds of his pants, and thus beyond the purview of the public,

McKeever manifested an expectation of privacy in the pill bottle—just as one who places

a wallet in a pocket manifests an expectation of privacy in both the pocket and the wallet.

In considering the second factor, this Court has recognized that expectations of privacy in

the contents of closed containers are objectively reasonable. State v. Hamilton, 2003 MT

71, ¶ 23, 314 Mont. 507, 67 P.3d 871 (recognizing objectively reasonable expectation of

privacy in a lost wallet); State v. Lanegan, 2004 MT 134, ¶ 19, 321 Mont. 349, 91 P.3d

578 (affirming suppression of a search of a fanny pack); State v. Graham, 271 Mont. 510,

513, 898 P.2d 1206, 1208 (1995) (suppressing search of purse). Moreover, the Fourth

                                            9
Amendment does not distinguish between containers worthy of protection. United States

v. Ross, 456 U.S. 798, 822, 102 S. Ct. 2157, 2171 (1982).

¶24    We conclude that McKeever does not have a reasonable expectation of privacy in

the contents of bottle because the name on the prescription was not his. Opinion, ¶ 18.

However, we recognized in State v. Bullock, 272 Mont. 361, 372-73, 901 P.2d 61, 68-69

(1995), that a person may contest the legality of a search when the crime involves an

allegation of a possessory interest in the property seized. In Bullock, we allowed a Fourth

Amendment challenge where Bullock was charged with illegally possessing a game

animal found on Bullock’s co-defendant’s property.

¶25    The Court’s analysis is also flawed in finding that McKeever “expressly

disclaimed knowledge of where the bottle came from or how it got into his cuff.”

Opinion, ¶ 18.    The officer’s testimony on this point is far from precise.        At the

suppression hearing, when asked how McKeever responded to questions about the pill

bottle, the officer testified, “Basically, he indicated I don’t know,” “His reply was

essentially I don’t know,” and “[H]e was evasive in his answers: I don’t know or didn’t

answer.”   Testimony that McKeever “basically” or “essentially” “indicated”—likely

nonverbally—that he would not or could not answer the officer’s questions does not

establish that he “expressly disclaimed knowledge” regarding the pill bottle.

Preliminarily, the State has presented no authority that mere silence proves intent to

abandon, nor has the Court based its conclusion that silence evidences abandonment upon

any authority. Cf. State v. 1993 Chevrolet Pickup, 2005 MT 180, ¶ 15, 328 Mont. 10,

116 P.3d 800 (leaving trash for third party to pick up evidences abandonment). In

                                            10
contrast, however, there is well-established authority that a defendant does not have to

incriminate himself in order to preserve and assert a Fourth Amendment violation. See

Simmons v. United States, 390 U.S. 377, 394, 88 S. Ct. 967, 976 (1968); State v. Isom,

196 Mont. 330, 339, 641 P.2d 417, 422 (1982). The Court’s conclusion that a defendant

must relinquish his right to remain silent in order to raise a Fourth Amendment challenge

to an item removed from his clothing is at odds with well-established jurisprudence that a

mere disclaimer of ownership in an effort to avoid making an incriminating statement in

response to police questioning should not alone be deemed to constitute abandonment.

See 2 Wayne R. LaFave et al., Criminal Procedure § 3.2(h), 93-94 (3d ed. 2007). Given

the position that a defendant does not otherwise have to incriminate himself to preserve

his Fourth Amendment rights, Simmons, 390 U.S. at 394, 88 S. Ct. at 976, it is difficult to

understand how a refusal to make incriminating admissions in response to police

interrogation can be held to deprive a person of Fourth Amendment standing.

¶26    In denying McKeever’s motion to suppress, the District Court concluded that

“since [McKeever] was under arrest at the station and placed in custody, a standard

inventory search would have revealed the contents of the bottle.” The District Court

relied upon our decision in Hilgendorf to conclude that the contents of the pill bottle

would have been inevitably discovered. As here, Hilgendorf involved a container hidden

upon the defendant’s person. Hilgendorf, ¶ 7. The container held powder, a razor blade,

and marijuana, which were discovered pursuant to a search incident to arrest. Hilgendorf,

¶ 7. We held that “[i]t [was] undisputed that Hilgendorf was going to be arrested for

possession of drug paraphernalia and taken to jail [and] would have been subjected to a

                                            11
standard inventory search.” Hilgendorf, ¶ 27. Pursuant to a search incident to arrest,

police may take routine administrative steps to protect themselves, the arrestee, and

others in the station house from potential dangers. Hilgendorf, ¶ 26. The legitimate and

compelling interest of the State in protecting persons in and around the police station

justifies the routine, administrative inventory search of property on the arrestee at the

station following an arrestee’s arrest. Hilgendorf, ¶ 26. Inventory searches are not

subject to the probable cause strictures of § 46-5-401(2), MCA. See Demontiney, ¶ 17;

Hilgendorf, ¶ 26; State v. Heath, 2000 MT 94, ¶ 18, 299 Mont. 230, 999 P.2d 324.

¶27      I would therefore hold, consistent with our case law, that McKeever had a

reasonable expectation of privacy in the contents of the pill bottle removed from his

clothing, but that the search was not unreasonable as a search incident to arrest.1 Since

McKeever was under arrest at the station and placed in custody, a standard inventory

search would have revealed the contents of the bottle. I would affirm on this basis.


                                                      /S/ LAURIE McKINNON




1
    McKeever did not challenge his arrest or the search conducted incident to his arrest.
                                                 12
