                                                                                               August 26 2015


                                           DA 14-0153
                                                                                              Case Number: DA 14-0153

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2015 MT 254



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

TRISTA JO EMERSON,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Ninth Judicial District,
                        In and For the County of Toole, Cause No. DC-12-046
                        Honorable Robert Olson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender, Jennifer Hurley, Assistant
                        Appellate Defender; Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
                        Assistant Attorney General; Helena, Montana

                        Merle Raph, Toole County Attorney; Shelby, Montana



                                                    Submitted on Briefs: June 24, 2015
                                                               Decided: August 26, 2015


Filed:

                        __________________________________________
                                          Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     Trista Emerson appeals from the judgment of the Ninth Judicial District Court,

Toole County, finding her guilty of criminal possession of dangerous drugs and criminal

possession of drug paraphernalia. We reverse.

¶2     The issue on appeal is whether the District Court should have granted Emerson’s

motion to suppress because Emerson’s consent to a search of her purse was the fruit of an

illegal seizure. Emerson raises a second issue regarding sentencing which we do not

address because the first issue is dispositive.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶3     Emerson was charged with, and pled guilty to, one count of criminal possession of

dangerous drugs and one count of criminal possession of drug paraphernalia. Under the

plea agreement, Emerson reserved her right to appeal the District Court’s denial of her

motion to suppress. At the suppression hearing, the State called one witness, Deputy

Robins of the Toole County Sheriff’s Office. Deputy Robins’ testimony at the hearing

and the parties’ exhibits revealed the following facts.

¶4     On November 28, 2012, Deputy Robins stopped a vehicle near Shelby, Montana,

because he recognized the driver, Joseph Bentley, and knew that Bentley had a felony

warrant out for his arrest. Emerson was a passenger in the car when Deputy Robins

stopped it. Bentley was arrested, and the car was released to Emerson after Deputy

Robins spoke with the car’s registered owner on Emerson’s cell phone.

¶5      Approximately an hour later, Emerson entered the Toole County Sheriff’s Office

to request a gas card. The Sheriff’s Office sometimes keeps gas cards on hand for people

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who need assistance to travel somewhere, but did not have any at that time. After being

told the Sheriff’s Office did not have any gas cards, Emerson left the building.

¶6     A few minutes after Emerson left, the Sheriff’s Office received a teletype from the

Great Falls Police Department with an attempt to locate (ATL) on the car Emerson was

driving. The ATL identified the vehicle and stated, “Attempt to locate vehicle loaned to

Joseph Bentley on Friday [11/23/2012] to drive from Great Falls to Shelby and back.

Owner has talked to him several times but he will not return the vehicle. If located please

stop and contact this agency re CR12-40542.” Deputy Robins could see from inside the

Sheriff’s Office that the car was still parked out front with Emerson inside. Deputy

Robins went out and advised Emerson about the ATL and asked her to get out of the car,

lock the car, give him the keys, and wait while he sorted out the ATL. According to

Deputy Robins, before exiting the vehicle, Emerson “made a movement to close the top

of [her] purse,” but it remained partially open and Deputy Robins saw what he thought

was an automatic pistol in the purse. Emerson left the purse on the center console in the

vehicle.

¶7     Inside the Sheriff’s Office, Deputy Robins asked Emerson to take a seat in the

conference room while he called the Great Falls Police Department.           According to

Deputy Robins, he asked Emerson to wait because he wanted to find out if the Great Falls

Police wanted Emerson arrested in connection with the ATL, even though the ATL did

not say the car was stolen. Deputy Robins learned from the Great Falls Police that the

owner wanted the car held until she could travel to Shelby to retrieve it.



                                             3
¶8     While Deputy Robins was on the phone, Emerson went to the front desk and asked

the dispatcher if she could retrieve her purse from the car. After Deputy Robins got off

the phone, the dispatcher informed him that Emerson had requested her purse. Deputy

Robins went to the car and retrieved the purse. Looking in the top of the open purse,

Deputy Robins saw that what he initially believed may be an automatic pistol was in fact

a makeup case. According to Deputy Robins, he did not search the purse; he merely

looked into the open top.

¶9     Deputy Robins returned to the conference room and placed the purse between

himself and Emerson on the table where Emerson was sitting across from him. Deputy

Robins then turned on his digital voice recorder and stated, “We’re in the process of

ironing out an issue of a car [Emerson] was driving . . . . We’re just returning her purse to

her . . . .” The following conversation, in pertinent part, occurred:

       Robins: “I gotta ask . . . if there’s anything in this purse that shouldn’t be in
       here.”

       Emerson: “No.”

       Robins: “Anything illegal.”

       Emerson: “No.”

       Robins: “Anything at all.”

       Emerson: “I don’t believe so.”

       Robins: “You don’t believe so. Okay. Can I look?”

       Emerson: “No.”

                                           .   .   .


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       Robins: “If there’s something in it that shouldn’t be, you need to tell us.”

                                          .   .   .

       Emerson: [crying] “I just wanna get home.”

       Robins: “The registered owner, okay, can give us permission to search the
       whole car. That would include your property inside the car. Out of the
       kindness of my heart, I brought your purse in here, okay, because I know
       this is your property, right? We’re a hundred percent sure of that . . . . If
       there’s anything in the purse that shouldn’t be in there, you need to tell me.
       If there’s not, you got nothing to worry about, okay. That’s pretty clear,
       right?”

Emerson eventually admitted that Bentley had given her “something” to hold for him.

Deputy Robins testified that, based on this conversation, he believed that the purse

contained a gun.

¶10    Deputy Robins had Emerson read and sign a Miranda rights waiver and a consent

to search form. Deputy Robins informed Emerson, “Right now you are not in custody.

You need to understand that. You’re not in custody.” When he gave the consent forms

to Emerson, he stated, “This is totally voluntary.” Deputy Robins again asked Emerson

what he would find during the search of her purse, and she admitted that there were

needles in the purse that had been used for drugs. After Emerson signed the forms,

Deputy Robins searched her purse and found a small amount of cocaine and needles.

¶11    The District Court denied Emerson’s motion to suppress. Emerson appeals that

decision.

                               STANDARD OF REVIEW

¶12    “We review a denial of a motion to suppress to determine whether the lower

court’s findings of fact were clearly erroneous and whether it correctly applied the law to

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those findings.” State v. Strom, 2014 MT 234, ¶ 8, 376 Mont. 277, 333 P.3d 218 (citation

omitted).

                                     DISCUSSION

¶13    Emerson argues that she was illegally seized when she admitted she had

contraband in her purse and consented to a search and, thus, that her admission and

consent must be suppressed as the fruit of an illegal seizure. In reviewing Emerson’s

allegation of an illegal seizure, we must first determine whether a seizure of Emerson has

occurred. Both the Fourth Amendment to the United States Constitution and Article II,

Section 11 of the Montana Constitution protect citizens from unreasonable searches and

seizures.   However, we have recognized that “not all personal intercourse between

policemen and citizens involves ‘seizures’ of persons.” State v. Wilkins, 2009 MT 99,

¶ 8, 350 Mont. 96, 205 P.3d 795 (quoting Terry v. Ohio, 392 U.S. 1, 19–20 n.16,

88 S. Ct. 1868, 1879 n.16 (1968)). In determining whether a seizure has occurred, we

apply the same test under both the federal and Montana constitutions. State v. Case,

2007 MT 161, ¶ 24, 338 Mont. 87, 162 P.3d 849. “A person has been ‘seized’ within the

meaning of the Fourth Amendment only if, in view of all the circumstances surrounding

the incident, a reasonable person would have believed that [she] was not free to leave.”

State v. Roberts, 1999 MT 59, ¶ 16, 293 Mont. 476, 977 P.2d 974 (quoting United States

v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980)).

¶14    In Mendenhall, the Supreme Court provided examples of circumstances that may

indicate a person was seized, including “the threatening presence of several officers, the

display of a weapon by an officer, some physical touching of the person of the citizen, or

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the use of language or tone of voice indicating that compliance with the officer’s request

might be compelled.” Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877. We have

repeatedly relied on these factors, often referred to as the Mendenhall factors, in seizure

cases but we have also explained that the test is an objective one and “is necessarily

imprecise and will vary depending on the setting in which the conduct occurs.” State v.

Clayton, 2002 MT 67, ¶¶ 21, 23, 309 Mont. 215, 45 P.3d 30 (citation omitted). The

Mendenhall factors may be helpful in certain cases, but we have recognized that they are

not exhaustive. Wilkins, ¶ 12.

¶15    If there has been a seizure, the State must prove it was reasonable by showing

circumstances that create “a particularized suspicion that the person is or has been

engaged in wrongdoing or was a witness to criminal activity.” Case, ¶ 21 (citation

omitted).

¶16    Our review of the circumstances convinces us that Emerson was seized. Deputy

Robins asked Emerson to get out of the car, lock the car doors, give him the keys, and

come inside the Sheriff’s Office.     It was midnight in November, Emerson had no

transportation; her purse—which contained her phone and wallet—was locked inside the

car, and the deputy had the keys to the car. Deputy Robins instructed Emerson to have a

seat in the conference room while he called the Great Falls Police. When asked at the

hearing if a person is expected to do something when a police officer tells her to, Deputy

Robins responded, “Yes.” When asked if Emerson was free to leave, Deputy Robins

responded, “She was advised that she was not in custody.” However, Deputy Robins did

not tell Emerson that she was not in custody until after he had commenced a recorded

                                            7
interrogation of her, during which she admitted to having drug paraphernalia in her purse,

and he had obtained her verbal consent to search.

¶17    Both the State and the District Court treated the fact that Emerson left the

conference room to ask the dispatcher for her purse as evidence that she was free to

leave. However, the question is not whether Emerson felt free to leave a particular room,

the question is whether a reasonable person would have felt free to leave the presence of

the law enforcement officers entirely. If anything, her departure from the conference

room to ask the dispatcher for her purse is evidence that she wished to leave but was

unable to because only Deputy Robins had access to her purse.

¶18    Moreover, Deputy Robins stated at the hearing that he had particularized suspicion

to detain Emerson because the ATL did not specify whether the car was stolen or not, so

he needed to check with the Great Falls Police to determine if there was an arrest warrant

associated with it. It should be apparent that no reasonable person would feel free to

leave after an officer tells her to take a seat while he “clears up” a matter that might result

in the person’s arrest, and the officer has the keys to the locked car where the person’s

wallet and phone are stored.

¶19    Deputy Robins testified that the basis for the seizure was the ATL, specifically its

instruction to stop the car and contact the Great Falls Police Department. It is well

established that an officer can make an investigative stop in reliance on a report or

bulletin from another law enforcement agency. United States v. Hensley, 469 U.S. 221,

232, 105 S. Ct. 675, 682 (1985); State v. Hall, 2004 MT 106, ¶ 11, 321 Mont. 78,

88 P.3d 1273. However, when a seizure is made on the basis of a flyer or bulletin, the

                                              8
admissibility of any evidence uncovered as a result of the seizure turns on whether the

officers who issued the bulletin possessed the requisite suspicion.               Hensley,

469 U.S. at 231, 105 S. Ct. at 681-82; Hall, ¶ 11.

¶20    The State did not present any evidence at the suppression hearing showing that the

Great Falls Police Department possessed any facts that would justify seizing Emerson.

The only evidence presented indicated that the Great Falls Police Department told Deputy

Robins over the phone that the owner wanted the vehicle held until she could retrieve it.

Those facts justify seizing the vehicle, but they do not show a particularized suspicion

that Emerson was engaged in wrongdoing or was witness to criminal activity. Thus,

Emerson’s initial seizure was illegal.

¶21    The State contends that, once Deputy Robins brought the purse inside and placed

it on the conference room table, Emerson was free to pick up the purse and leave. On the

other hand, the State argues that Deputy Robins had information that Bentley had his

female companions carry a gun for him, and therefore Deputy Robins had to investigate

the possibility that Emerson was bringing a gun into the Sheriff’s Office to give to

Bentley, who was locked in a cell in the same building. Thus, the State simultaneously

argues that “Deputy Robins testified that Emerson could have picked up the purse and

walked out of the building,” and that, “[i]f there was anything dangerous or illegal in the

purse, it was understandable that Deputy Robins was concerned about handing the purse

back to Emerson in the Sheriff’s Office building.” Aside from contradicting each other,

the record does not support either contention.



                                             9
¶22    Once Deputy Robins spoke with the Great Falls Police Department and learned

there was no allegation that the vehicle was stolen and there was no basis to arrest

Emerson, he did not inform Emerson that the matter was finished or otherwise advise her

that she was free to leave. Instead, he retrieved her purse, set it down on the table

between them, turned on a tape recorder, and stated on the recording that he was

questioning Emerson in connection with the ATL and the vehicle. No reasonable person

would interpret an officer placing her purse on a table between them, turning on a tape

recorder, and commencing an interrogation about the contents of her purse as a sign that

she was now free to leave.

¶23    The State’s second assertion, that Deputy Robins had to investigate whether the

purse contained a gun intended for Bentley, is also not supported by the record. Deputy

Robins testified that, at the point that he returned with Emerson’s purse and began the

recorded interrogation of her, he had already ascertained that what he initially believed

was a gun in Emerson’s purse was in fact a makeup case. Furthermore, as the State

acknowledges, Emerson was in a public area. Bentley was locked in a cell in a secure

area of the building. Emerson expressed no desire to see Bentley. Rather, she came to

the Sheriff’s Office to request a gas card.

¶24    We similarly cannot reconcile Deputy Robins’ testimony that Emerson was free to

pick up her purse and leave the conference room after he placed it on the conference table

with his testimony that he had to question Emerson because of concerns that the purse

might contain a gun. Moreover, Deputy Robins’ professed concerns about a gun in

Emerson’s purse are belied by the fact that he never questioned her as to whether she had

                                              10
a gun in her purse. Rather, he asked her if there was “anything illegal” in the purse,

“anything at all.” He made no mention to Emerson of any concern about her carrying a

gun for Bentley.

¶25    At the time that Deputy Robins began his recorded interrogation of Emerson, the

only facts known to him were that Emerson had done nothing illegal, was not in

possession of anything illegal, was wanted for nothing, and had no access to Bentley.

Because Emerson’s seizure was not justified by objective facts showing a particularized

suspicion of criminal wrongdoing, the seizure violated the prohibition on unreasonable

seizures in the Fourth Amendment of the United States Constitution and Article II,

Section 11 of the Montana Constitution.

¶26    Emerson’s confession that there was contraband in her purse and consent to search

were obtained as the result of an illegal seizure. They are thus fruits of the poisonous tree

and are inadmissible. See State v. Therriault, 2000 MT 286, ¶ 57, 302 Mont. 189,

14 P.3d 444 (“The ‘fruit of the poisonous tree’ doctrine forbids the use of evidence which

comes to light as a result of the exploitation of an initial illegal act of the police.”).

                                       CONCLUSION

¶27    The District Court erred when it determined that Emerson was not seized. The

record demonstrates that Emerson was seized. No objective facts justified the seizure,

hence, it was illegal and all evidence obtained as a result of it must be suppressed. We

reverse and remand with instructions to suppress all evidence obtained as a result of the

seizure.



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                           /S/ JAMES JEREMIAH SHEA


We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE




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