No

No. 98-590

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 274

296 Mont. 503

989 P.2d 836

STATE OF MONTANA,

Plaintiff and Respondent,

v.

MELVIN WEASELBOY, JR.,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial 

District,

In and for the County of Yellowstone,

The Honorable Maurice R. Colberg, Judge presiding.

COUNSEL OF RECORD:

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For Appellant:

Gary E. Wilcox, Attorney at Law, Billings, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; John Paulson,

Assistant Attorney General; Helena, Montana

Dennis Paxinos, Yellowstone County Attorney; Billings, Montana

For Amicus:

Kevin Peterson, Yellowstone County Defenders Office, Billings, Montana

Submitted on Briefs: September 2, 1999

Decided: November 16, 1999

Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶ Melvin Weaselboy (Weaselboy) appeals from the judgment of the Thirteenth 

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Judicial District Court, Yellowstone County, denying his motion to suppress evidence.

¶ We affirm.

¶ We restate the issues as follows:

¶ 1. Whether Weaselboy preserved his objection to a dog's "free-sniff" of his car.

¶ 2. Whether the District Court erred in concluding that the warrantless seizure of 

drugs from Weaselboy's car met the requirements of the plain view doctrine. 

Standard of Review

¶ We review a district court's denial of a motion to suppress evidence "to determine whether the 

court's findings of fact are clearly erroneous and whether those findings were correctly applied as 

a matter of law." State v. Stucker, 1999 MT 14, ¶ 31, 293 Mont. 123, ¶ 31, 973 P.2d 835, ¶ 31.

Factual and Procedural Background

¶ Late one evening in July, 1997 two Billings police officers saw Weaselboy drive through a 

red light. The officers activated their car's flashing lights and pursued Weaselboy. 

Six blocks after the start of the chase, Weaselboy finally stopped his car in the middle 

of a road in a construction zone near a barricade. Officer Walters went to 

Weaselboy's car and asked him for proof of insurance and his driver's license. 

Weaselboy told Officer Walters that he did not have his license but gave him proof of 

insurance and registration and threw his wallet down near the car's console. Officer 

Walters returned to his car, called police dispatch, and determined that there was an 

outstanding warrant for Weaselboy's arrest on the charge of felony assault. Officer 

Walters returned to Weaselboy's car and told him that there was an outstanding 

warrant and asked Weaselboy to get out of the car. Appearing nervous, Weaselboy 

emerged from his car, left his keys in the ignition, and locked and closed the driver's 

side door. Officer Walters arrested Weaselboy and placed him in Officer Walters' 

car.

¶ Suspecting that Weaselboy's conduct meant that he was concealing drugs in his 

car, Officer Walters radioed for the assistance of a canine officer. Canine Officer 

Lamb and his partner, Tico, responded to the scene. Officer Lamb commanded Tico 

to perform a "free sniff" around the exterior of Weaselboy's car (hereafter, Tico's 

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free-sniff). Tico, trained and certified in the detection of illegal drugs, made 

"aggressive indications" by the driver's and passenger's doors that Officer Lamb 

recognized as signals for the presence of illegal drugs. Officer Lamb so advised 

Officer Walters.

¶ Because Weaselboy had locked his keys inside his car, Officer Walters assumed 

that he would have to summon a tow truck to move the car off the road. However, 

Officer Lamb discovered that the passenger side door was unlocked. Without 

Weaselboy's consent, Officer Walters opened the passenger side door to retrieve 

Weaselboy's keys from the ignition. In opening the door and retrieving the car keys, 

Officer Walters observed several plastic baggies in plain view on the floor of the car. 

Officer Walters removed the baggies; they each contained yellow rock-like 

substances that he believed to be methamphetamine. 

¶ Weaselboy moved to suppress the evidence obtained from his car. However, his 

counsel stated during the suppression hearing that he did not believe that Tico's freesniff was a search. The District Court denied Weaselboy's motion to suppress. The 

District Court determined that the police officers had a particularized suspicion to 

stop Weaselboy after he ran the red light and that Tico's free-sniff was not a search. 

The District Court further concluded that probable cause arose when Tico signaled 

the presence of drugs in the car. Finally, the District Court concluded that the 

warrantless seizure of drugs from Weaselboy's car was justified under the 

automotive and plain view exceptions to the Fourth Amendment's requirement of a 

warrant for a search. 

¶ Weaselboy pled guilty to Criminal Possession of Dangerous Drugs (felony) but 

reserved his right to appeal the District Court's denial of his suppression motion. In 

June, 1998 Weaselboy was sentenced to five years prison with all five years 

suspended. Weaselboy was placed on probation concurrent with a sentence that he 

received in another criminal case. Weaselboy appeals from the District Court's order 

denying his motion to suppress. 

Discussion

¶ Weaselboy concedes that at the suppression hearing, his counsel opined that Tico's 

free-sniff was not a search. However, Weaselboy argues that his counsel's failure to 

object did not prevent the District Court from fully considering the issue. Weaselboy 

urges that this Court can hear the issue under §§ 46-20-104 and 46-20-701, MCA; 

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however, he does not explain how those statutory provisions apply in the present 

case. Weaselboy also argues that this Court can hear the issue under the doctrine of 

plain error.

¶ The State responds that Weaselboy failed to preserve this issue, that he does not 

meet the requirements under §§ 46-20-104 and 46-20-701, MCA, and that the 

doctrine of plain error should not apply because this Court's failure to review the 

alleged error would not result in a "fundamental miscarriage of justice."

¶ Section 46-20-104, MCA, provides:

Scope of appeal by defendant. (1) An appeal may be taken by the defendant only 

from a final judgment of conviction and orders after judgment which affect the 

substantial rights of the defendant.

(2) Upon appeal from a judgment, the court may review the verdict or decision and 

any alleged error objected to which involves the merits or necessarily affects the 

judgment. Failure to make a timely objection during trial constitutes a waiver of the 

objection except as provided in 46-20-701(2). 

¶ Section 46-20-701(2), MCA, provides in part that 

(2) Any error, defect, irregularity, or variance that does not affect substantial rights 

must be disregarded. A claim alleging an error affecting jurisdictional or 

constitutional rights may not be noticed on appeal if the alleged error was not 

objected to as provided in 46-20-104, unless the convicted person establishes that the 

error was prejudicial as to the convicted person's guilt or punishment and that:

(a) the right asserted in the claim did not exist at the time of the trial and has been 

determined to be retroactive in its application;

(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence 

from the convicted person or the convicted person's attorney that prevented the 

claim from being raised and disposed of; or

(c) material and controlling facts upon which the claim is predicated were not 

known to the convicted person or the convicted person's attorney and could not have 

been ascertained by the exercise of reasonable diligence.

¶ We hold that Weaselboy failed to preserve his objection to Tico's free-sniff. The 

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rule is well established that "this Court will not address either an issue raised for the 

first time on appeal or a party's change in legal theory." Unified Industries, Inc. v. 

Easley, 1998 MT 145, ¶ 15, 289 Mont. 255, ¶ 15, 961 P.2d 100, ¶ 15 (citation omitted). 

Moreover, Weaselboy has not alleged any of the grounds recognized under § 46-20-

701, MCA. 

¶ Finally, Weaselboy has made no showing that he should benefit from a "plain 

error" review of his belated objection to Tico's free-sniff. In State v. Finley (1996), 

276 Mont. 126, 915 P.2d 208, we held that 

this Court may discretionarily review claimed errors that implicate a criminal 

defendant's fundamental constitutional rights, even if no contemporaneous objection 

is made and notwithstanding the applicability of the § 46-20-701(2), MCA, criteria, 

where failing to review the claimed error at issue may result in a manifest 

miscarriage of justice, may leave unsettled the question of the fundamental fairness 

of the trial or proceedings, or may compromise the integrity of the judicial process. 

Finley, 276 Mont. at 137, 915 P.2d at 215. We conclude that Finley has no application in the 

present case. Because our holding that Weaselboy did not preserve his objection to Tico's freesniff is dispositive, we do not address Weaselboy's arguments concerning whether Tico's free-sniff 

was a search and whether the police had particularized suspicion to search his car.

¶ 2. Whether the District Court erred in concluding that the warrantless seizure of 

drugs from Weaselboy's car met the requirements of the plain view doctrine.

¶ Weaselboy argues that the District Court erred in concluding that the plain view 

doctrine applies in the present case. Weaselboy asserts that the testimonies of Officers 

Walters and Lamb "are both internally inconsistent and inherently unreliable" 

regarding the baggies found in his car. Weaselboy suggests further that it is 

"inconceivable" that an officer with a suspicion that a car has drugs would enter the 

car "merely" to retrieve the car keys. Finally, Weaselboy argues that the baggies 

were not in "plain view" and that when Officer Walters retrieved the car keys, he 

did not need to enter the car "far enough so that a view could be had of the area 

under the seat or between the seat and the console."

¶ The State responds that the warrantless seizure of drugs from Weaselboy's car was 

justified under the plain view doctrine. The State notes that Weaselboy does not 

dispute that the officers were entitled to enter the vehicle to remove the keys. 

Further, the State argues that the District Court's findings regarding the motives of 

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the officers in entering the car are not clearly erroneous and that determinations 

about the credibility of testimony are within the discretion of a district court.

¶ Warrantless searches are "per se unreasonable under the Fourth Amendment--

subject only to a few specifically established and well-delineated exceptions." Katz v. 

United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585. 

Section 46-5-101, MCA, provides:

Searches and seizures--when authorized. A search of a person, object, or place 

may be made and evidence, contraband, and persons may be seized in accordance 

with Title 46 when a search is made:

(1) by the authority of a search warrant; or

(2) in accordance with judicially recognized exceptions to the warrant requirement. 

Section 46-5-101, MCA. 

¶ One exception to the warrant requirement is the plain view doctrine. Under the plain view 

doctrine, peace officers may in certain circumstances seize evidence in plain view without a 

warrant. See State v. Loh (1996), 275 Mont. 460, 468, 914 P.2d 592, 597.

¶ In Loh, this Court adopted the plain view doctrine as set forth in Horton v. California (1990), 

496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112. The Loh Court concluded:

The essential predicate to any valid warrantless seizure of incriminating evidence is 

that the officer must be lawfully at the place from which he could plainly view the 

evidence. In other words, his initial entry onto or intrusion into the place where he 

views the evidence must not have been in violation of the Fourth Amendment or in 

violation of Article II, section 11 of Montana's Constitution. In addition, there are 

two conditions that must be satisfied to justify the warrantless seizure under the 

plain view doctrine. First, the item must be in plain view and its incriminating 

character be "immediately apparent." Second, not only must the officer be lawfully 

located in a place from which the object can be plainly seen but he or she must also 

have a lawful right of access to the object itself. 

Loh, 275 Mont. at 473, 914 P.2d at 600.

¶ We consider each one of Loh's requirements in the present case. First, Weaselboy does not 

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dispute that when the police entered his car to retrieve the keys, they were lawfully in the car. 

Weaselboy suggests, however, that the real purpose of the officers was to look for drugs, not to 

retrieve the keys. We have previously concluded that "[t]he weight of evidence and the credibility 

of witnesses are exclusively within the province of the trier of fact." State v. Doyle, 1998 MT 195, ¶ 

18, 290 Mont. 287, ¶ 18, 963 P.2d 1255, ¶ 18 (citation omitted). The District Court determined that 

the officers entered the car to retrieve the keys, and we will not disturb that determination on 

appeal. 

¶ Second, Weaselboy suggests that the drugs seized were not in plain view of the officers. 

However, based on the officers' testimonies, the District Court determined that the baggies were in 

plain view, and we will not disturb that determination on appeal. Compare State v. Ahmed (1996), 

278 Mont. 200, 212, 924 P.2d 679, 686 (concluding "credibility of witnesses and the weight to be 

given to their testimony are to be determined by the trier of fact") (citations omitted). We note 

moreover that Weaselboy does not dispute that the "incriminating character" of the baggies was 

immediately apparent. Loh, 275 Mont. at 473, 914 P.2d at 600.

¶ We therefore address Loh's last requirement that "not only must the officer be lawfully located 

in a place from which the object can be plainly seen but he or she must also have a lawful right of 

access to the object itself." Loh, 275 Mont. at 473, 914 P.2d at 600. In the present case, we have 

already determined that Officer Walters was lawfully in the car. Having lawfully entered 

Weaselboy's car to retrieve the keys and move the car, Officer Walters had a lawful right of access 

to the contraband that was in plain view inside the car. 

¶ We hold that the District Court did not err in concluding that the warrantless seizure of 

contraband from Weaselboy's car was justified under the plain view doctrine. Because this 

holding is dispositive, we do not address Weaselboy's arguments regarding the automotive 

exception.

¶ Affirmed.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ WILLIAM E. HUNT, SR.

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/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER 

/S/ KARLA M. GRAY

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