                                          No. 03-719

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2004 MT 331


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

DONALD ROGER GRIFFIN, III,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Second Judicial District,
                     In and for the County of Silver Bow, Cause No. DC-03-39,
                     The Honorable Kurt D. Krueger, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Kenneth R. Olson, Attorney at Law, Great Falls, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Jim Wheelis, Anthony C. Johnstone,
                     Assistant Attorneys General, Helena, Montana

                     Robert M. McCarthy, Silver Bow County Attorney; Samm Cox, Deputy
                     County Attorney, Butte, Montana


                                                  Submitted on Briefs: July 14, 2004

                                                             Decided: November 23, 2004

Filed:


                     __________________________________________
                                       Clerk
Justice John Warner delivered the Opinion of the Court.

¶1     Donald Roger Griffin, III (Griffin), appeals from an order of the Second Judicial

District Court, Silver Bow County, entered June 6, 2003, denying Griffin’s motion to

suppress. We affirm.

¶2     We address the following issues on appeal:

¶3     1. Did the District Court err in not suppressing evidence of a methamphetamine pipe

found on Griffin’s person when he was arrested?

¶4     2. Did the District Court err in not suppressing evidence found in the bed of Griffin’s

pickup truck?

¶5     3. Did the District Court err in not suppressing evidence found in Griffin’s residence?

                                     BACKGROUND

¶6     On February 6, 2003, Butte-Silver Bow Police Officer Sharman Hock observed

Griffin driving his pickup. Officer Hock was aware Griffin did not have a valid license, but

confirmed this fact with dispatch. She followed Griffin to a residence where she observed

him exit his vehicle and walk towards the residence. Pursuant to a city court policy directing

that anyone stopped for driving on a revoked or suspended license should be arrested,

booked, and taken to jail, Officer Hock arrested Griffin and handcuffed him. When asked

if he had anything sharp, Griffin replied that he had a knife. Officer Hock felt and retrieved

a small hard object in a black case in Griffin’s pocket. The object was a glass pipe with

white residue on it.     Officer Hock recognized the pipe and white residue as drug

paraphernalia.

¶7     Griffin then informed Officer Hock he had a gun inside his pickup, but declined her

request to search the vehicle. Officer Hock applied for and received a search warrant


                                              2
authorizing a search for evidence of drug possession in Griffin’s pickup. When Officer

Hock approached Griffin’s pickup to search it, she saw in the open truck bed two semi-

transparent garbage bags, through which she saw boxes of matches and pseudoephedrine,

items she knew could be used to manufacture methamphetamine. Officer Hock then called

in the Southwest Montana Drug Task Force. Pursuant to another search warrant, the Task

Force searched Griffin’s residence and found booby-trapped explosives protecting a

methamphetamine lab.

¶8     Griffin was charged with four felony counts: Count I, Operation of an Unlawful

Clandestine Laboratory, in violation of § 45-9-132, MCA; Count II, Criminal Possession of

Dangerous Drugs with Intent to Sell, in violation of § 45-9-103, MCA; Count III, Criminal

Possession of Property Subject to Forfeiture, in violation of § 45-9-206, MCA; and Count

IV, Possession of Explosives in violation of § 45-8-335, MCA.

¶9     On May 1, 2003, Griffin filed a motion to suppress all evidence obtained in the

searches of his person, vehicle, and home and all statements he made. Griffin also filed a

motion to dismiss the charge of Possession of Explosives. The motions were set for hearing

and heard by the District Court on May 28, 2003. The District Court denied Griffin’s motion

to suppress June 6, 2003. Thereafter, pursuant to a plea agreement, Griffin pled guilty to

Counts I and III and to driving under the influence, a charge related to a previous incident.

He reserved his right to appeal all pre-trial rulings by the District Court.

¶10    Griffin now appeals from the District Court’s denial of his motion to suppress.

                                 STANDARD OF REVIEW

¶11    We review a district court’s denial of a motion to suppress “to determine whether the


                                               3
court’s findings of fact are clearly erroneous and whether its interpretation and application

of the law are correct.” City of Cut Bank v. Bird, 2001 MT 296, ¶ 9, 307 Mont. 460, ¶ 9, 38

P.3d 804, ¶ 9. Further, as a reviewing court, this Court’s function is to ultimately ensure

the issuing judge had a “substantial basis” to determine probable cause existed before issuing

the search warrant. State v. Reesman, 2000 MT 243, ¶ 19, 301 Mont. 408, ¶ 19, 10 P.3d 83,

¶ 19 (citation omitted). A judge’s determination of probable cause is given great deference

and every reasonable inference possible will be drawn to support that determination.

Reesman, ¶ 19.

                                         DISCUSSION

                                          ISSUE ONE

¶12    Did the District Court err in not suppressing evidence of a methamphetamine pipe

found on Griffin’s person when he was arrested?

¶13    Griffin asserts Officer Hock’s warrantless search of his person was an unlawful

invasion of his privacy not justified by a compelling state interest. Specifically, Griffin

argues the State’s retrieval of the methamphetamine pipe from his person was not a lawful

search incident to arrest, a recognized exception to the warrant requirement, because none

of the grounds listed in § 46-5-102, MCA, were present.

¶14    The State argues Officer Hock’s search of Griffin was authorized by § 46-5-102(1),

MCA, which permits a warrantless search of a person incident to an arrest in order to protect

a peace officer from attack. Specifically, the State asserts that, in order to protect herself and

other officers from an attack by Griffin, who stated he had a knife, Officer Hock was entitled

to search Griffin’s person. The State argues in the alternative, that if this Court finds the


                                                4
search illegal, then the search which discovered the methamphetamine pipe is still valid

under the inevitable discovery doctrine.

¶15    The District Court found Officer Hock’s testimony credible and believed she

effectuated a valid search incident to arrest. The Court found Officer Hock was justified in

opening the black nylon case in order to discern if the small hard object was the knife. The

Court denied Griffin’s motion to suppress on that basis.

¶16    This Court notes that Griffin was never charged with possession of drug

paraphernalia, in violation of § 45-10-103, MCA. All of the charges filed against Griffin

were supported by evidence obtained from a search of Griffin’s house, the legality of which

will be discussed later in this Opinion. Thus, the determination of this issue is irrelevant as

it has no effect on Griffin’s rights. As such, this Court will not address it.

                                        ISSUE TWO

¶17    Did the District Court err in not suppressing evidence found in the bed of Griffin’s

pickup truck?

¶18    Griffin argues that a pipe, untested for drug residue at the time of the search warrant

application, is not sufficient probable cause upon which to issue a search warrant for his

pickup. Griffin also asserts the District Court’s findings are erroneous because they did not

discuss the search of Griffin’s pickup and residence.

¶19    The State argues the pipe, smudged with what appeared to be white

methamphetamine residue, provided sufficient probable cause to believe Griffin’s pickup

might contain similar items, especially because Griffin exited his pickup immediately prior

to being arrested. The State also points out the items seized from Griffin’s pickup were in


                                               5
plain view.

¶20    Section 46-5-221, MCA, states that a judge shall issue a search warrant upon

application made under oath or affirmation, that: (1) states facts sufficient to support

probable cause to believe that an offense has been committed; (2) states facts sufficient to

support probable cause to believe that evidence, contraband, or persons connected with the

offense may be found; (3) particularly describes the place, object, or persons to be searched;

and (4) particularly describes who or what is to be seized.

¶21    In the context of issuing a search warrant, probable cause exists if the facts and

circumstances within an officer’s personal knowledge are sufficient to warrant a reasonable

person to believe that someone has committed an offense. Probable cause is evaluated in

light of a trained law enforcement officer’s knowledge, taking into account all the relevant

circumstances. State v. Frasure, 2004 MT 242, ¶ 15, 323 Mont. 1, ¶ 15, 97 P.3d 1101, ¶ 15.

¶22    In Frasure, we upheld a district court’s denial of a motion to suppress drug evidence

found in the defendant’s vehicle, stating the facts and circumstances, namely the defendant’s

nervousness, accelerated speech, the ceramic pipe found on his person, and the officers’

prior knowledge of the defendant’s methamphetamine addiction was sufficient probable

cause to support the search warrant. Frasure, ¶ 17.

¶23    No such circumstances exist here. The only evidence supporting the search warrant

for Griffin’s pickup was the existence of a pipe found on his person with untested white

residue on it and the fact Griffin had recently exited his pickup. “A mere affirmance of

belief or suspicion by a police officer, absent any underlying facts or circumstances, does

not establish probable cause for the issuance of a search warrant.” State v. Lott (1995), 272


                                              6
Mont. 195, 199, 900 P.2d 306, 309 (citation omitted).

¶24      Regardless of whether the methamphetamine pipe was properly seized, this, without

more, is not sufficient evidence to warrant a reasonable person to believe Griffin’s pickup

would contain evidence of an offense. Just because a person has a pipe in his pocket with

untested white residue on it, does not mean his vehicle will contain evidence of a drug

offense. The search warrant issued for Griffin’s pickup was not supported by probable

cause.

¶25      However, the majority of the incriminating items seized from Griffin’s pickup were

located in plain view in the pickup bed. While it is true Montana’s Constitution provides its

citizens with broad privacy protections, State v. Elison, 2000 MT 288, ¶ 46, 302 Mont. 228,

¶ 46, 14 P.3d 456, ¶ 46, what a person knowingly exposes to the public is not protected.

Elison, ¶ 49. We have consistently stated that items stored in non-concealed areas of a

vehicle are not constitutionally protected. State v. Tackitt, 2003 MT 81, ¶ 20, 315 Mont. 59,

¶ 20, 67 P.3d 295, ¶ 20; Elison, ¶ 49.

¶26      It is not disputed Griffin was lawfully arrested for driving without a license. When

Officer Hock went back to Griffin’s pickup, even though the warrant to search the cab was

invalid, she was lawfully located in a place from which she could view the evidence in

Griffin’s pickup bed–the street on which the pickup was parked. The incriminating nature

of the evidence was immediately apparent, and Griffin had no reasonable expectation of

privacy in such items. Under these circumstances, Officer Hock did not violate his rights

to be free from an unlawful search and seizure when she removed this evidence from the

open bed of his pickup.


                                              7
¶27    Griffin argues the evidence seized from his pickup could have come from another

source, namely that someone else put the evidence in the back of his pickup sometime after

his arrest but before Officer Hock located it. There is no evidence in the record to support

such an allegation. Further, the items found in the pickup bed supported a finding of

probable cause to issue a search warrant for Griffin’s house, which is different from the

proof necessary to sustain a conviction.

¶28    While this Court has concluded the search warrant issued for Griffin’s pickup was not

supported by probable cause, the District Court’s error was harmless because the items

seized from Griffin’s pickup bed did not require a search warrant before being seized.

¶29    As for the items obtained from the cab of Griffin’s pickup, these should have been

suppressed. However, all of the charges against Griffin were supported by evidence

obtained from Griffin’s residence, the legality of which is discussed below, and therefore the

failure to exclude the evidence obtained from the cab of Griffin’s pickup was not prejudicial.

Section 46-20-701(1), MCA, provides that “[a] cause may not be reversed by reason of any

error committed by the trial court against the convicted person unless the record shows that

the error was prejudicial.” State v. Berg, 1999 MT 282, ¶ 22, 296 Mont. 546, ¶ 22, 991 P.2d

428, ¶ 22 (citation omitted).

                                       ISSUE THREE

¶30    Did the District Court err in not suppressing evidence found in Griffin’s residence?

¶31    Although the District Court did not make an explicit finding that probable cause

supported the search warrant issued for Griffin’s residence, it was implicit in its decision to

deny Griffin’s motion to suppress. Griffin’s only argument that the search warrant for his


                                              8
residence is invalid is that it was issued based on the items found in his pickup, which

Griffin asserts were illegally seized.

¶32    Since we have already determined the evidence from the bed of Griffin’s pickup was

legally seized, its existence was sufficient to support a finding of probable cause for issuance

of the search warrant for Griffin’s residence. We hold the District Court did not err in not

suppressing the evidence obtained from Griffin’s residence.

¶33    Affirmed.


                                                                  /S/ JOHN WARNER

We Concur:

/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART




                                               9
