No. 05-080
IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 105

STATE OF MONTANA, Plaintiff and Respondent,

v. APRIL STOMBAUGH, Defendant and Appellant.

APPEAL FROM: The District Court of the Fifth Judici al District, In and For the County of Jefferson, Cause No. DC 04-1938, Honorable Loren Tucker, Presiding Judge

COUNSEL OF RECORD: For Appellant: Jack H. Morris, Jardine & Morris, Whitehall, Montana For Respondent: Honorable Mike McGrath, Atto rney General; Tammy K. Plubell, Assistant Attorney General, Helena, Montana Mathew J. Johnson, County Attorney, Boulder, Montana
Submitted on Briefs: May 10, 2006 Decided: May 1, 2007 Filed:

__________________________________________ ClerkJustice Jim Rice delivered the Opinion of the Court. ¶1 Appellant April Stoumbaugh (April) appeal s from the order of the Fifth Judicial District Court, Jefferson County, denyin g her motion to suppress. We affirm. ¶2 We consider the following issues on appeal: ¶3 (1) Did particularized suspicion exist to support a canine sniff of April’s vehicle? ¶4 (2) Did the District Court err by denyi ng April’s motion to suppress statements she made to law enforcement on the gr ounds that she had not been given Miranda warnings and, further, had requested an attorney? ¶5 (3) Was the search warrant issued for April’s vehicl e supported by probable
cause? BACKGROUND ¶6 On April 7, 2004, April called her aunt and uncle, Anna and Vonn Friddle, to advise that she was coming to visit them in Boulder. Vonn and Anna had prior knowledge of April’s in volvement with drugs and were concerned that she was going to be on drugs or bring drugs with her to thei r home. Vonn knew from April’s mother that April had outstanding warrants for her arrest in Montana. According to her mother, April was also facing felony charges in Washington . Vonn called April’s mother to get more information and spoke with Apri l’s stepfather. In the cour se of the conversation, the stepfather commented that he wished law enforcement would “just lock [April] up to get her the help she needs.” Vonn offered to le t law enforcement know that April was at his house so an officer could arre st her on her outstanding warrants. After April’s stepfather endorsed this suggestion, Vonn called his brother, Ronnie Hayes (Hayes), who is a
2dispatcher at the Boulder Polic e Department. In response to the call, Hayes confirmed that April had outstanding arrest warrants and arranged for an officer to arrest her. ¶7 Shortly thereafter, April arrived at the Frid dles’ house. Officer Kosola (Kosola), of the Boulder Police Department, was dispatch ed to the Friddles’ home to arrest April on the outstanding warrants. When Kosola arrived he saw a vehicle with Washington license plates parked behind Vonn’s car. Kosola knocked on the door of the residence, and Anna let him inside. He informed Apri l of the outstanding wa rrants and placed her under arrest. Kosola handcuffed April, chec ked for weapons, and informed her of her Miranda rights. 1 ¶8 After Kosola arrested April, she expresse d her concern to him that she would not be able to make a timely appearance in S pokane, Washington, to face drug charges. Kosola confirmed April’s statements by co ntacting the local aut horities in Spokane and verifying through the Criminal Justice Information Network (CJIN) that she had felony drug charges pending in Washington. 2 ¶9 Shortly after Kosola arrested April, Deputy Smoke (Smoke) of the Jefferson County Sheriff’s Office arrived at the Friddles’ residence. While Kosola was transporting April to the police station, Smoke stayed and spoke with the Friddles. Both

1 Testimony from Kosola and Anna indi cated that Kosola gave April a Miranda warning at the Friddle residence, following her arrest. April contested this testimony. In its oral findings, the District Court did no t address the conflict over this specific Miranda warning, instead finding generally that “the more credible ev idence is that the Defendant was given her Miranda rights on more than one occasi on over the course of the day.”

2 In addition to the Washingt on drug charges, the CJIN report indicated that April had seven outstanding Montana misdemeanor wa rrants, but testimony indicated that a number of these were later foun d to be expired or invalid. 3Vonn and Anna told Smoke that April had a drug problem, and they were very concerned about her. The Friddles also informed Smoke that they wanted April’s car, which was parked behind their car, rem oved from their property. Smoke radioed Kosola to inform him of this and also reported that he ha d observed that the vehicle’s ignition was “punched”—a common indicator th at the vehicle was stolen. Kosola ran a registration check and asked April about the vehicle. April explained that she bought the car from a woman in Washington State, a nd had a bill of sale in the gl ove box. April agreed to a limited search of the glove box and a door pa nel of the car to collect the ownership documentation, which Kosola conveyed to Smoke. ¶10 Kosola also advised April that the Frid dles wanted her car removed, and April responded by advising Kosola that she want ed her car towed to her mother’s house in Lewis and Clark County. Kosola found Apr il’s response “demanding” and given with an urgent sense of wanting the car towed immediat ely. He advised April that Montana City Towing could tow it to that establishment’s property much cheaper than towing it to the Lewis and Clark County location, and further suggested that the f ee for towing the car that far could well exceed the value of the vehi cle, which Kosola estimated to be $150. However, April insisted on doing so, which Kosola found to be unusual and suspicious. A tow truck was dispatched but, upon arrivi ng at the scene, the tow truck operator was advised to wait, because by then additional events had occurred and police had decided to initiate a canine sniff, as discussed below. U ltimately, April’s mother declined to pay the cost of having the car towed to her resi dence, and the vehicle was impounded.

4¶11 Smoke searched the glove bo x and obtained the bill of sale and title documents. On a first look, it appeared to Smoke that th e seller’s signatures on the bill of sale and on the registration did not match, raising a concern that di fferent people had signed the seller’s name. 3 While completing that limited search , Smoke noticed a white pill in plain view on the dashboard, which he could not identify, but which had numbers imprinted thereon. Smoke advised Kosola about the pill and relayed the imprinted numbers. Kosola asked April about the pill and, according to Kosola , April answered evasively, which Kosola thought suspicious. He te stified regarding th e pill as follows: Q. So this pill at the time, until it’s verified what it is, it would be suspicious to you?
A. Yes. Q. And why would that be? A. It could be Oxycontin; it could have been anything. I don’t know what kind of pill it was. Unknown pill. Q. And somebody who has had a drug history, right? A. Yes. They’re looking for an easy fix. ¶12 Smoke testified as follows: Q. At that time, you had background information that . . . the potential owner had some drug history; is that correct?
A. Yes. Q. So when seeing the pill, did that raise any suspicion for you?

3 April’s ownership of the vehicle was ultimately veri fied by police, and the District Court concluded it would not consid er the vehicle issues in determining the existence of particularized susp icion or probable cause herein. 5A. That did. I looked through the wi ndshield at the pill, and was able to obtain the numbers off of the side facing up . . . . Q. When seeing a pill and seeing numb ers on it, would that alleviate any suspicion that it could be illegal narcotics? A. No, it would not, because it coul d be a prescription drug belonging to somebody else, because obviously it wasn ’t in the prescription container; or it could be a controlled narcotics or something like that. ¶13 Based on what had transpired, Kosola re quested that Deputy Grimsrud (Grimsrud) of the Jefferson County Sheriff’s Office brin g his narcotics detec tion dog to conduct a canine sniff of April’s vehicle. The dog “h it” or alerted to the odor of drugs on the vehicle. Kosola informed April that the narcotics dog ha d alerted to her vehicle and again gave her a Miranda warning from a printed advisory car d. April then indicated that there was drug paraphernalia in the vehicl e, and Kosola asked her for permission to search the vehicle. Kosola testified that April was then “fidgety,” but gave a second limited consent to search the vehicle, specif ying that police search only the vehicle’s console, within which a marijuana pipe would be found in a silver box. This was found in the later search. Kosola te stified that he drew suspici ons from the limiting conditions April had placed on both the first a nd second consents to search. ¶14 Kosola then contacted his superior, the ch ief of police, and the county attorney, and followed their direction to apply for a se arch warrant and impound the vehicle. The warrant application referenced some, but not all, of the above-described events. Upon receiving the warrant, Kosola executed the search, finding mariju ana pipes and drug paraphernalia in the trunk with marijuan a and methamphetamine residue on them. ¶15 April filed a motion to suppress the eviden ce, which was denied. April appeals.
6STANDARD OF REVIEW ¶16 This Court reviews a district court’s gran t or denial of a mo tion to suppress to determine whether the district court’s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Ochadleus , 2005 MT 88, ¶ 16, 326 Mont. 441, ¶ 16, 110 P.3d 448, ¶ 16 (citation omitted). DISCUSSION ¶17 1. Did particularized suspicion exist to support a canine sniff of April’s vehicle? ¶18 April argues that the District Court’s de nial of her motion to suppress evidence should be reversed because there was in sufficient objective data to constitute the necessary particularized suspic ion for police to initiate a cani ne sniff with the narcotics detection dog. The law allows “for a carefully drawn exception to the warrant requirement, but still require[s] particularized su spicion when the area or object subject to the canine sniff is already exposed to the public.” State v. Tackitt , 2003 MT 81, ¶ 29, 315 Mont. 59, ¶ 29, 67 P.3d 295, ¶ 29. To establish particulariz ed suspicion, the State must show: (1) objective data from which an experienced po lice officer can make certain inferences; and (2) a resulting suspicion that the person is or has been engaged in wrongdoing or was a witne ss to criminal activity. State v. Gopher , 193 Mont. 189, 194, 631 P.2d 293, 296 (1981). Wh ether the State has particulari zed suspicion is a question of fact that is analyzed under the totality of the circumstances. State v. Pratt, 286 Mont. 156, 161, 951 P.2d 37, 40 (1997). In evaluating the to tality of the circumstances, a court

7should consider the qu antity, or content, and quality, or degree of reliability, of the information availabl e to the officer. Pratt , 286 Mont. at 161, 951 P.2d at 40. ¶19 April challenges the particularized suspicio n determination, first, by noting that the initial concerns regarding her car’s ownership were alleviated. She argues that her family’s concerns about her drug use were un founded and uncorroborated, and that there was no evidence that the white pill was contraband. Lastly, April argues that the suspicions taken by Kosola fro m the limited consent to sear ch she gave are unfounded because such limitation “is not objective eviden ce” and she retained her constitutional right of privacy in the remain ing portions of her vehicle. ¶20 On this last point, the District Court agre ed with April, conclu ding that a limitation on permission to search cannot be considered for purposes of determining particularized suspicion. Thus, it disregarded the limita tion placed upon the search by April in analyzing particularized suspic ion, and we do likewise. ¶21 The State responds that after Kosola’s c ontact with April was lawfully initiated pursuant to her arrest on outsta nding warrants, officers properl y relied on April’s family’s concerns about her drug use b ecause Kosola knew the family was concerned enough to disclose April’s location, in their own home, so that law enforcement could arrest her there. Then, April herself a dvised Kosola of her pending drug charges in Washington and expressed her concerns about being able to timely appear to answer those charges. The District Court relied upon these factors a nd also noted Kosola’s efforts to confirm the charges.

8¶22 As for the white pill, the State contends that it was proper, in light of April’s own admission to pending drug charges, to consid er it as possible contraband even though it was not immediately identifiable as such. In its discussion about the white pill, the District Court noted that the pill was “a concer n,” but not very signifi cant. The District Court did find that April’s “evasive attitude” in response to questio ning by Kosola was a significant factor supporting particularized suspicion. ¶23 The District Court identified April’s “urgen cy” in seeking to a rrange the towing of her vehicle to Lewis and Clar k County, and her willingness to pay more than the car was worth for towing, as a consideration in its probable cause analysis, also made from the bench, but did not do so in its discussion of particularized suspicion. This may result from the mention of this urgency in Kosola’s a pplication for issuance of a search warrant. However, the testimony illustrates that Kosola’s su spicions in this regard were also raised prior to his decision to seek the canine sniff. A tow truck ha d been called out to tow the vehicle, but the towing was delayed when Ko sola, having thereafter been notified of Smoke’s discovery of the white pill and hearing April’s evasive answers with regard to the pill, determined to initiate a canine sniff of the vehicle. ¶24 On these facts—the family report a bout April’s drug use and notification of April’s location in their home, April’s admi ssion of pending drug ch arges in Washington, police confirmation of pending felony drug ch arges, April’s urgency in seeking removal of her vehicle out of the co unty and her unusual desire to pay more than the car was worth to do so, the discovery of the white pill and April’s evasiveness about the pill—we

9conclude that the District Court did not err in holding that the officers had particularized suspicion to conduct the canine sniff of April’s vehicle. ¶25 2. Did the District Court err by denyin g April’s motion to suppress statements she made to law enforcement on the grounds that she had not been given Miranda warnings and, further, had requested an attorney? ¶26 April argues that she was not given her Miranda warnings as required by law, and thus the District Court’s denial of the moti on to suppress evidence should be reversed. April contends that she made a request for an attorney that wa s unambiguous and she never waived her Miranda rights. The State argues that the District Court’s finding that Kosola read April the Miranda warnings is not clearly e rroneous and that the court correctly resolved any factual disputes in the testimony. ¶27 At the suppression hearing, April testified that she could not recall Kosola reading her Miranda rights. Kosola, however, testified he was certain that as soon as he placed April under arrest, he took a card from his pocket containing the Miranda warning, and read it to April. April’s aunt, Anna Friddl e, corroborated Kosola’s testimony that the warning had been given at he r house. The District Court resolved this conflicting evidence by finding that Apr il had been advised of her Miranda rights. ¶28 This Court recognizes that the credibility of w itnesses and the wei ght to be given their testimony are determined by the trier of fact, and disputed que stions of fact and credibility will not be disturbed on appeal. State v. Bauer , 2002 MT 7, ¶ 15, 308 Mont. 99, ¶ 15, 39 P.3d 689, ¶ 15. If evidence conflicts, it is within the province of the trier of fact to determine wh ich will prevail. Bauer , ¶ 15. Here, the Distri ct Court assessed the

10credibility of the witnesses a nd found that Kosola gave Miranda warnings to April. We conclude that this finding was not clearly erroneous. ¶29 April also testified that she asked for an attorney after being advised by Kosola that the drug dog had alerted to her car. This assertion was contested by Kosola, who testified that April did not requ est an attorney. Unfortunately, the District Court did not make a finding on this particular conflict in th e testimony. In its verbal findings on these issues, the District C ourt stated as follows: The Court finds and concludes that the more credible evid ence is that the Defendant was given her Miranda rights on more than one occasion over the course of the day. Thereafter she volunteered the admission and the existence of drug paraphernalia within the vehicle which was to be searched

. . . . ¶30 We can only conclude from the District Court’s finding that April “volunteered” the information about dr ug paraphernalia in her car, that she was not also asking for an attorney. April’s stat ement about the paraphernalia was made after Kosola advised her about the drug dog hit—th e same time which April claimed to have asked for an attorney. The District Court found that, at that time, April was volunteering information about the drug paraphernalia, which would be inconsistent with a request for legal assistance. We thus conclude that April’s Miranda claims were properly denied by the District Court. ¶31 We note, however, that this factual issue, along with other issues addressed in this opinion, demonstrates that a district court’s rendering of findings of fact and conclusions of law from the bench can quite easily be in adequate. Without careful drafting, issues can be overlooked and a decision issued wh ich is insufficient for appellate review,

11resulting in remand. We urge the district courts to resolve factual and legal issues regarding suppression by wa y of a written order. ¶32 3. Was the search warran t issued for April’s vehicl e supported by probable cause? ¶33 April argues that the search warrant obtai ned by the officers was not supported by probable cause. The United States and Mo ntana Constitutions prot ect individuals from unreasonable searches and seizures. Amend. IV, U.S. Const.; Art. II, Sec. 11, Mont. Const. For a search warrant to issue, the application must state facts sufficient to show probable cause. State v. Olson , 2003 MT 61, ¶ 24, 314 Mont . 402, ¶ 24, 66 P.3d 297, ¶ 24. ¶34 Probable cause to search ex ists “if the facts and circum stances within the officer’s personal knowledge . . . are sufficient to warra nt a reasonable person to believe that the suspect has committed an offense.” State v. Saxton , 2003 MT 105, ¶ 26, 315 Mont. 315, ¶ 26, 68 P.3d 721, ¶ 26. Probable cause is ev aluated in light of an officer’s knowledge and all relevant circumstances. State v. Van Dort , 2003 MT 104, ¶ 19, 315 Mont. 303, ¶ 19, 68 P.3d 728, ¶ 19. ¶35 April raises arguments similar to thos e she offered above against the factors considered for determining the existence of particularized su spicion, and also contends that her statements to the po lice should be excised from th e warrant application because she asked for an attorney, an issue likewise addressed above. Because we have already rejected April’s Miranda claims, we do not excise any information from the warrant application.

12¶36 In addition to the factors c onsidered for particularized suspicion, except for the white pill, which was not referenced within the warrant ap plication, Kosola’s application also described the alert of th e drug dog on April’s vehicle, he r admission thereafter that drug paraphernalia was located within the vehicle, and the officers’ experience and qualifications with regard to drug crime investigation. We have previously concluded that probable cause for a search ex isted under similar circumstances. See State v. Hart , 2004 MT 51, ¶ 27, 320 Mont. 154 , ¶ 27, 85 P.3d 1275, ¶ 27. Likewise, we hold that the District Court correctly concluded that pr obable cause existed fo r the issuance of the search warrant herein. ¶37 Affirmed.

/S/ JIM RICE

We concur: /S/ KARLA M. GRAY /S/ JAMES C. NELSON /S/ PATRICIA COTTER /S/ JOHN WARNER /S/ W. WILLIAM LEAPHART

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