                                           No. 01-579

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2003 MT 6N


ANACONDA DEER LODGE COUNTY LAW
ENFORCEMENT DEPARTMENT,

              Petitioner and Respondent,

         v.

ONE 1994 FORD TRUCK,
STEVEN M BERRINGTON,

              Respondent and Appellant.



APPEAL FROM:         District Court of the Third Judicial District,
                     In and for the County of Deer Lodge,
                     The Honorable Ted L. Mizner, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Steven M. Berrington, Bozeman, Montana (Pro Se)

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Jennifer Anders,
                     Assistant Attorney General, Helena, Montana

                     Michael B. Grayson, Deer Lodge County Attorney,
                     Anaconda, Montana


                                                   Submitted on Briefs: December 13, 2002

                                                             Decided: January 17, 2003
Filed:


                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.



¶1    Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1996 Internal Operating Rules, the following decision shall not be

cited as precedent but shall be filed as a public document with the

Clerk of the Supreme Court and shall be reported by case title,

Supreme     Court   cause     number    and    result    to   the   State   Reporter

Publishing Company and to West Group in the quarterly table of

noncitable cases issued by this Court.

¶2    Steven M. Berrington (Berrington) appeals from the findings of

fact, conclusions of law and order entered by the Third Judicial

District Court, Deer Lodge County, granting the petition for

forfeiture filed by the Anaconda Deer Lodge County Law Enforcement

Department (Department).           We affirm.

¶3    The issue on appeal is whether the District Court erred in

granting the Department’s forfeiture petition.

                                     BACKGROUND

¶4    On the night of April 15, 2000, a Department officer on patrol
in Anaconda, Montana, observed a vehicle matching the description

of   one    owned     by    Berrington.         Aware     warrants    existed   for

Berrington’s arrest, the officer attempted to stop the vehicle.

The driver of the vehicle, later identified as Berrington, tried to

elude the officer, but eventually pulled over to the side of the

road.      Berrington then exited the vehicle and ran away on foot.

Several hours later, Department officers responded to a call that a

man matching Berrington’s description was at a private residence


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asking to use the telephone and refusing to leave the premises.

The   officers      arrived      at   the   residence,      found    Berrington    and

arrested him.        The officers then conducted a pat-down search of

Berrington for weapons, during which they discovered two small

containers containing a white powdery substance suspected--and

later established--to be methamphetamine.

¶5    Berrington was on probation at the time of his arrest.                       On

April     17,     2000,    Department       officers      contacted    Berrington’s

probation        officer   and    requested       that    the   probation   officer

authorize a search of Berrington’s vehicle.                  The search uncovered

additional methamphetamine, two firearms and drug paraphernalia.

Berrington subsequently was charged with--and pleaded guilty to--a

variety     of    offenses,      including      felony    criminal    possession   of

dangerous drugs.
¶6    The       Department    then      filed     a      petition    alleging     that

Berrington’s vehicle was a conveyance used to unlawfully transport

methamphetamine and requesting the District Court to declare the

vehicle forfeit pursuant to Title 44, Chapter 12 of the Montana

Code Annotated (MCA).            Berrington opposed the petition, arguing

that evidence of the methamphetamine found in his vehicle should be

suppressed as gained through an unlawful search and that, absent

the evidence, the Department could not establish a basis for the

forfeiture.        The District Court held a hearing and later entered

findings of fact, conclusions of law and an order granting the

Department’s petition.           Berrington appeals.

                                 STANDARD OF REVIEW



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¶7   In   reviewing   a   district   court’s   grant   of   a   forfeiture

petition, we review its findings of fact to determine whether they

are clearly erroneous and its conclusions of law to determine

whether the court correctly interpreted the law.         In the Matter of

the Seizure of $23,691.00 in U.S. Currency (1995), 273 Mont. 474,

483, 905 P.2d 148, 154.

                              DISCUSSION

¶8   Did the District Court err in granting the Department’s

forfeiture petition?
¶9   As   stated   above,   the   Department   brought   its    forfeiture

petition pursuant to Montana’s forfeiture statutes.         Section 44-12-

102(1)(d), MCA, provides that any vehicle used or intended to be

used to facilitate the commission of a drug offense is subject to

forfeiture.    Moreover, § 44-12-103(1), MCA, provides that

     [a] peace officer who has probable cause to make an
     arrest for a violation of Title 45, chapter 9 [a drug
     offense], probable cause to believe that a conveyance has
     been used or is intended to be used to unlawfully
     transport a controlled substance, or probable cause to
     believe that a conveyance has been used to keep, deposit,
     or conceal a controlled substance shall seize the
     conveyance so used or intended to be used or any
     conveyance in which a controlled substance is unlawfully
     possessed by an occupant. He shall immediately deliver a
     conveyance that he seizes to the offices of his law
     enforcement agency, to be held as evidence until
     forfeiture is declared or release ordered.

A presumption of forfeiture exists regarding most property eligible

for forfeiture under § 44-12-102, MCA, including vehicles; the

presumption may be rebutted by the property owner proving the

property was not used for the purpose charged or was used without

his consent.    Sections 44-12-203(1) and 44-12-204, MCA.



                                     4
¶10   The Department’s petition alleged that Berrington’s vehicle

was subject to forfeiture pursuant to these statutes because it was

used, and intended to be used, by Berrington for the transportation

and possession of dangerous drugs in violation of § 45-9-102, MCA.

 The District Court concluded, following a hearing, that the

Department had proven by clear and convincing evidence the vehicle

was used to transport methamphetamine, Berrington had not          offered

proof to overcome the presumption of forfeiture and, as a result,

the vehicle was subject to forfeiture.
¶11   Berrington argues that the District Court’s conclusion the

vehicle was used to transport methamphetamine is erroneous and,

consequently, its further conclusion that the vehicle was subject

to forfeiture also is erroneous.         Specifically, he asserts that the

Department’s petition was based on the discovery of methamphetamine

in his vehicle as a result of the search authorized by his

probation officer and that the search was illegal because it was

conducted for the purposes of a criminal investigation rather than

for legitimate probation purposes.            On that basis, Berrington

contends   that   the   District   Court    should   have   suppressed   the

evidence of the methamphetamine found in his vehicle and, had the

court done so, there would be no basis for the forfeiture.         We need

not address the legality of the search of Berrington’s vehicle.

¶12   In its findings of fact, the District Court determined that,

at the time Berrington was arrested, there was

      [f]ound on his person . . . two small containers that
      contained a white powdery substance suspected to be
      Methamphetamine. During the time of this man-hunt Mr.
      Berrington did not have the opportunity to acquire the


                                     5
      dangerous drug elsewhere thereby leading to the
      conclusion that he possessed the dangerous drug while
      eluding police officers while driving and while on foot.

Berrington offered no evidence at the hearing on the petition to

dispute these facts and does not challenge the finding on appeal.

Consequently, according to the District Court’s finding, Berrington

was in possession of the two small containers of methamphetamine in

violation of § 45-9-102, MCA, at the time he was driving his

vehicle and the vehicle was used to transport those containers.             As

a result, and on that basis, his vehicle was subject to seizure and

forfeiture pursuant to §§ 44-12-102 and 44-12-103, MCA, regardless

of the discovery of the additional methamphetamine in the vehicle

during the subsequent search.
¶13   We conclude that the District Court’s conclusions of law that

Berrington’s vehicle was used to transport methamphetamine and was

subject to forfeiture are not erroneous.           We hold, therefore, that

the   District    Court   did   not   err   in   granting   the   Department’s

forfeiture petition.

¶14   Affirmed.

                                                  /S/ KARLA M. GRAY


We concur:


/S/   JAMES C. NELSON
/S/   PATRICIA COTTER
/S/   W. WILLIAM LEAPHART
/S/   TERRY N. TRIEWEILER




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