                                                                                            March 15 2016


                                          DA 15-0288
                                                                                        Case Number: DA 15-0288

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2016 MT 65N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

DANIEL BANKS,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fifth Judicial District,
                        In and For the County of Beaverhead, Cause No. DC 13-3557
                        Honorable Loren Tucker, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Paul Sullivan, Measure, Sampsel, Sullivan & O’Brien, P.C., Kalispell,
                        Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
                        Attorney General, Helena, Montana

                        Jed C. Fitch, Beaverhead County Attorney, Mike Gee, Deputy County
                        Attorney, Dillon, Montana


                                                   Submitted on Briefs: February 24, 2016

                                                              Decided: March 15, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), 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 noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Daniel Banks (Banks) appeals from an order denying his motion to suppress,

issued by the Fifth Judicial District Court, Beaverhead County. Banks challenges the

sufficiency of probable cause underlying a search warrant authorizing a search of his

vehicle. We affirm the District Court’s denial of his motion.

¶3     Banks had his first of two encounters with law enforcement on November 26,

2013, when an Idaho state trooper stopped his vehicle while traveling on Interstate 15.

After stopping Banks for expired registration and no front license plate, and allowing

Banks to continue to his destination, the patrolman contacted Beaverhead County

Undersheriff Bill Knox (Knox). The patrolman passed on to Knox that he had stopped

Banks in a blue Chevrolet truck, and that the truck was not registered in Banks’ name.

The patrolman further stated that Banks had admitted to smoking marijuana the day

before, that Banks had been evasive when questioned, and that the patrolman suspected

that Banks was transporting drugs, based on his training and experience.             Knox

encountered Banks driving a blue truck on I-15, and followed him for approximately

eight miles. During that time, Knox confirmed with dispatch that the license plate on the

truck was expired, and also observed Banks driving erratically, crossing traffic lines on


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both sides of the road and varying his speed. Knox pulled Banks over and asked Banks if

he was under the influence of drugs or alcohol. Banks stated he was not. Another officer

at the scene asked Banks if there were drugs in the car, and Banks initially denied that

there were. Upon being asked a second time, Banks admitted that he had a prescription

for Oxycodone in the driver’s side door pocket, and opened the door to show the pill

bottle to the officers. The other officer also observed two loose yellow capsules that

appeared to be prescription drug capsules. Banks was arrested for suspicion of Driving

Under the Influence, and Knox applied for a warrant to conduct a search of Banks’ truck.

¶4     Knox’s affidavit in support of the search warrant application reiterated the above

mentioned facts, but also included Knox’s statement that dispatch had run a criminal

background check on Banks while Knox was following him, revealing that Banks had

“criminal convictions for Possession of Dangerous Drugs without a Prescription.” The

search warrant was granted, and the search revealed 273 grams of marijuana stored in

individual sandwich bags, a digital scale, pawn shop receipts, and numerous Western

Union wire transfer receipts in the truck. Banks was charged with felony Criminal

Possession with Intent to Distribute and Criminal Possession of Drug Paraphernalia, a

misdemeanor. He filed a motion to suppress, arguing that the search warrant lacked

sufficient probable cause.

¶5     At the evidentiary hearing on the motion, Knox testified that he had been mistaken

when stating in his affidavit that Banks had previous drug possession convictions, as later

investigation revealed that Banks had only been arrested on those charges, with no formal

disposition. The District Court orally denied Banks’ motion to suppress, reasoning that,


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even after excising the false information regarding the previous convictions, the

application still demonstrated probable cause. Banks pled guilty to an amended charge,

Criminal Possession of Dangerous Drugs, but reserved his right to appeal the denial of

the motion to suppress, and subsequently filed an appeal to this Court.

¶6     “This Court assesses the totality of the circumstances to determine whether a

search warrant is based upon probable cause.” Muir v. Bilderback, 2015 MT 180, ¶ 12,

379 Mont. 459, 353 P.3d 473 (citing State v. Barnaby, 2006 MT 203, ¶ 29, 333 Mont.

220, 142 P.3d 809). “Under the totality of the circumstances test, the issuing 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.” Barnaby, ¶ 29

(citation omitted). “A determination of probable cause does not require facts sufficient to

make a showing of criminal activity, rather, the issuing judicial officer must only

determine that there exists a probability of criminal activity. Probable cause must be

determined solely from the information contained within the four corners of the search

warrant application.” Barnaby, ¶ 30 (citing State v. Rinehart, 262 Mont. 204, 210, 864

P.2d 1219, 1222 (1993)).

¶7     This Court has held that “when the issuance of a search warrant is based in part on

illegal information, the reviewing court shall excise the illegally obtained information

from the application for search warrant and review the remaining information de novo to

determine whether probable cause supported the issuance of a search warrant.” State v.

Kuneff, 1998 MT 287, ¶ 19, 291 Mont. 474, 970 P.2d 556. Because the statement of


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Banks’ previous convictions for criminal possession of dangerous drugs was later found

to be untrue, the District Court properly excised that particular statement and reviewed

only the remaining information contained in the application and accompanying affidavit.

¶8     In State v. Frasure, 2004 MT 242, ¶ 17, 323 Mont. 1, 97 P.3d 1101, we affirmed a

district court’s finding of sufficient probable cause to search a vehicle. We specifically

cited facts that supported a finding of adequate probable cause:             the defendant’s

nervousness and accelerated speech, evidence of drug use found on the defendant’s

person, and the officers’ prior knowledge of the defendant’s history with illegal drugs. In

the present case, several similar factors exist: Banks had been evasive while interacting

with the Idaho patrolman and gave inconsistent answers to Montana law enforcement

concerning drugs in the truck, and both Knox and the other officer observed the

prescription bottle and pill capsules in the truck. Further, the District Court pointed out

that Banks had admitted to smoking marijuana the previous day, and that Banks’ erratic

driving behaviors were “consistent with and reasonably authorize an inference that the

person had consumed drugs of one sort or another . . . .” The District Court, after

excising the false information regarding Banks’ convictions, properly determined that the

remaining facts contained in the application for the search warrant supported probable

cause. See Kuneff, ¶ 19; Frasure, ¶ 17.

¶9     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by settled law. We find no clear

error in the District Court’s findings, and it correctly applied the applicable law.


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¶10   Affirmed.

                              /S/ JIM RICE


We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER




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