No

No. 97-436

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 173

 

STATE OF MONTANA,

Plaintiff and Respondent,

v.

DONITA HERRERA,

Defendant and Appellant.

 APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Russell C. Fagg, Judge presiding.

COUNSEL OF RECORD:

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For Appellant:

Carrie L. Garber, Yellowstone County Public Defenders Office,

Billings, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Ass't

Attorney General, Helena, Montana

Dennis Paxinos, Yellowstone County Attorney, Billings, Montana

Submitted on Briefs: May 14, 1998

Decided: July 15, 1998

Filed:

__________________________________________

Clerk

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

¶1 Donita Herrera (Donita) appeals from the decision of the Thirteenth Judicial 

District Court, Yellowstone County, granting in part and denying in part her motion 

to suppress evidence obtained during a search of an automobile and her purse. In 

addition, Donita requests that this Court review the issue of whether the officers 

legally stopped the automobile in which Donita was a passenger. Donita asserts that 

she presented this issue to the District Court during an evidentiary hearing, but that 

the District Court failed to address the issue in its findings of fact and conclusions of 

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law. We deny Donita's request to review the issue of the legality of the automobile 

stop and affirm the decision of the District Court denying Donita's motion to 

suppress.

Factual and Procedural Background

¶2 On the evening of June 13, 1996, Donita went to Gabby's Casino where she met 

her friend Anne Ditzel (Anne). Anne was accompanied by Arnold Muhs (Arnold). 

Donita asked Anne if she would give her a ride to a friend's house. They left Gabby's 

at approximately 10:00 p.m. Anne was driving, Donita sat in the front passenger seat 

and Arnold sat in the backseat. They made one stop at the Lobby Liquor Store, then 

proceeded south on 27th Street. 

¶3 Officer Hirst was stopped at the corner of 1st Avenue and 27th Street when he 

received a call from an undercover officer. The undercover officer indicated that a 

blue Dodge hatchback was traveling two vehicles in front of Officer Hirst. The 

undercover officer further advised Officer Hirst that he "knew who the person was 

in the car" and that Officer Hirst "should pay particular attention to that person." 

Officer Hirst followed the blue vehicle until it turned down an alley. Officer Hirst 

testified that, when the car turned into the alley, the driver shut off the headlights 

then continued to travel through the alley. Officer Hirst stopped at the north end of 

the alley while he observed Anne's vehicle.

¶4 Anne testified that she drove into the alley and then into the driveway which 

belonged to John, a mutual friend of Anne and Donita. Anne parked the car, turned 

off the headlights and went to knock on the door to see if anyone was home. When no 

one answered the door, Anne returned to the vehicle, backed out of the driveway, 

proceeded down the alley and turned right onto the street.

¶5 Upon seeing Anne's vehicle pull out of the parking spot, Officer Hirst began 

following Anne's vehicle through the alley. When Anne turned onto the street, 

Officer Hirst activated his overhead lights and pulled the vehicle over. Officer Hirst 

testified at trial that he pulled the vehicle over based on his earlier observation of the 

vehicle traveling at night without its headlights. 

¶6 Officer Hirst approached the vehicle and requested Anne's driver's license. Anne 

indicated that she did not have identification, and gave the officer a false name. 

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About this time, Officer Paharik arrived on the scene. Officer Paharik recognized 

Anne and told Officer Hirst her correct identity. Anne explained that she gave a false 

name because she believed there was an outstanding warrant for her arrest. Officer 

Hirst placed Anne under arrest for the offense of obstructing a peace officer and 

based on the outstanding warrant.

¶7 While Officer Hirst placed Anne in the back of his patrol car, Officer Paharik 

went to the passenger side of the vehicle to question Donita. Donita identified herself 

and gave Officer Paharik her birth date, but explained that she did not have any 

identification with her. Officer Paharik asked Donita to exit the vehicle. He testified 

that when he shined his flashlight through the windshield, he saw, underneath the 

driver's seat, a rolled up baggie which contained a brownish powdery substance and 

a brown pouch next to the baggie. Upon seeing the suspicious items, Officer Paharik 

began searching the vehicle. Inside the pouch, Officer Paharik found syringes, a 

silver container and what he described as a "coke spoon."

¶8 Donita, believing she was free to leave the scene, began to walk away to call for a 

ride. However, when Officer Paharik found the drug paraphernalia, he requested 

that she come back and remain near the vehicle. Donita returned to the scene, set her 

purse and sack of beer on the hood of the car and waited while Officer Paharik 

conducted the search. Officer Paharik found what he described as a black checkbook 

cover sitting on the floor of the passenger side where Donita had been sitting. 

Although he testified that he did not notice anything suspicious about the checkbook 

cover, he found syringes when he looked inside. When he finished searching the 

passenger side of the vehicle, Officer Paharik indicated that he needed to check 

Donita's purse for identification. Officer Paharik testified that Donita consented to 

letting him search her purse. In addition, Officer Paharik testified that when he 

found bindles containing a yellowish white substance inside the purse, Donita asked 

if he needed a warrant to look in her purse. Donita, on the other hand, testified that 

as soon as Officer Paharik sought permission to look in her purse, she asked if he 

needed a warrant. Donita further testified that Officer Paharik responded that he 

did not need a warrant because he could search the purse as part of the search of the 

car. 

¶9 After finding the bindles in Donita's purse, Officer Paharik called a third officer 

to the scene. The third officer placed Donita under arrest for possession of dangerous 

drugs and transported her to the Yellowstone County Detention Facility for 

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processing. Donita was charged with one count of possessing dangerous drugs, a 

felony, and one count of possessing drug paraphernalia, a misdemeanor. 

¶10 Donita moved to suppress the evidence obtained by the officers, arguing that the 

search of her purse was conducted without a warrant and not pursuant to an 

exception to the warrant requirement. Donita's motion did not challenge the legality 

of the traffic stop. Although Anne and Donita were charged separately, the District 

Court held a combined evidentiary hearing for Anne and Donita. Anne, in her 

motion to suppress, had raised the issue of whether the investigatory stop by Officer 

Hirst was legal. Therefore, during the course of the hearing, the issue of whether 

Officer Hirst had grounds for initiating the stop of the vehicle was discussed. As a 

result, Donita addressed the issue in her proposed findings of fact and conclusions of 

law. The District Court, however, despite holding a combined hearing, issued 

separate findings and conclusions for Anne and Donita. In its findings of fact and 

conclusions of law on Donita's motion, the court limited its order to the suppression 

issues presented by Donita in her motion and did not discuss the issue of whether 

Officer Hirst had grounds to stop the vehicle. The District Court suppressed the drug 

paraphernalia found in the checkbook cover, but determined that Donita consented 

to the search of her purse. Thereafter, Donita pled guilty to the offense of possessing 

dangerous drugs, reserving her right to appeal the portion of the District Court's 

order denying her motion to suppress. Donita presents three issues on appeal:

¶11 1) Did the District Court err in failing to address the issue of whether Officer 

Hirst had grounds to stop the vehicle?

¶12 2) Did the District Court err in holding that Officer Hirst had grounds to stop 

the vehicle?

¶13 3) Did the District Court err in denying Donita's motion to suppress the evidence 

found in her purse?

Discussion

I

¶14 1) Did the District Court err in failing to address the issue of whether Officer 

Hirst had grounds to stop the vehicle?

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¶15 Donita argues that the District Court erred in failing to address the issue of 

whether Officer Hirst had a reasonable, articulable suspicion warranting the stop of 

Anne's vehicle. In support of her argument, Donita asserts that the record reveals 

that the validity of the traffic stop was at issue at the evidentiary hearing. In 

addition, Donita presented proposed findings of fact and conclusions of law which 

stated that the traffic stop was not supported by a reasonable, articulable suspicion 

that the occupants of the car had been or were engaged in criminal activity. 

Alternatively, Donita requests that this Court review the issue pursuant to the plain 

error doctrine.

¶16 The State of Montana (State), however, argues that Donita did not properly raise 

or preserve this issue in the District Court. The State contends that this Court should 

deny Donita's request for review of this issue for two reasons. First, Donita did not 

raise the issue in her motion to suppress. The State argues that the reason the issue 

was litigated at the hearing is that Anne raised the issue in her motion to suppress. 

The State points out that the District Court made findings and conclusions regarding 

the issue in its order denying Anne's motions to suppress, but did not address the 

issue in its findings and conclusions on Donita's motion. Second, Donita did not 

object to the alleged oversight and thereby failed to give the District Court an 

opportunity to amend its findings and conclusions. Rather, she entered her guilty 

plea and now raises the issue for the first time on appeal.

¶17 Section 46-20-104, MCA, provides that an appeal for purposes of criminal 

procedure "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." 

Moreover, that section provides that "[u]pon 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 

46-20-104(2), MCA (emphasis added). This Court has clearly established that it will 

consider for review only those issues raised in the pleadings or otherwise before the 

district court. Matter of Estate of Rogers (1986), 223 Mont. 78, 82, 725 P.2d 544, 546. 

We explained in State v. Walker (1966), 148 Mont. 216, 223, 419 P.2d 300, 304, and 

affirmed in State v. Long (1986), 223 Mont 502, 726 P.2d 1364, that "[a] District 

Court will not be put in error where it was not accorded an opportunity to correct 

itself." Long, 223 Mont. at 506, 726 P.2d at 1366. Thus, we determine that Donita's 

failure to raise the issue of the legality of the traffic stop in her motion to suppress 

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and her further failure to give the District Court an opportunity to amend its 

findings and conclusions preclude her from raising this issue on appeal.

¶18 We also reject Donita's alternative request that we review the issue pursuant to 

the plain error doctrine. As a general rule, this Court will not review an issue which 

the defendant fails to present to the district court or an issue to which the defendant 

fails to timely object. State v. Thompson (1993), 259 Mont. 62, 65, 853 P.2d 1188, 

1190. However, one exception to that general rule is the plain error doctrine set forth 

at § 46-20-701, MCA. 

¶19 Section 46-20-701(2), MCA, provides: 

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.

Donita states that her "fundamental constitutional right against unreasonable 

searches and seizures is implicated by the investigative traffic stop." Thus, she 

contends that she raised an alleged error implicating a constitutional right. However, 

we determine that Donita fails to satisfy the required elements of § 46-20-701(2), 

MCA. Specifically, the material and controlling facts regarding the traffic stop were 

known to Donita and her attorney at the time of filing her motion to suppress. Yet, 

Donita failed to assert a claim regarding the traffic stop at the time of filing that 

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motion. Second, Donita has not alleged that she was prevented from raising the claim 

due to suppression of evidence by the prosecutor, the judge or law enforcement.

¶20 Having failed to satisfy the requirements of § 46-20-701, MCA, we refuse to 

review Donita's claim pursuant to the plain error doctrine. Moreover, we reject 

Donita's request that we invoke our common law plain error review pursuant to 

State v. Finley (1996), 276 Mont. 126, 137-38, 915 P.2d 208, 215. As we explained in 

Finley, we will use our common law plain error review sparingly and only where 

failing to review a claimed error may result in a manifest miscarriage of justice, may 

leave unsettled the question of the fundamental fairness of the proceedings, or may 

compromise the integrity of the judicial process. Finley, 276 Mont. at 137, 915 P.2d at 

215. This is not such a case. 

¶21 In sum, we determine that Donita did not properly raise the issue of the legality 

of the traffic stop in her motion to suppress, nor did she object to the District Court's 

failure to address the issue in its findings and conclusions. Therefore, Donita is 

precluded from raising the issue on appeal. Furthermore, we determine that Donita 

fails to satisfy the prerequisites for obtaining a plain error review. We hold that the 

District Court did not err in failing to address the issue of whether Officer Hirst had 

grounds to stop the vehicle. Accordingly, we do not reach the merits of Donita's 

second issue. 

II

¶22 3) Did the District Court err in denying Donita's motion to suppress the evidence 

found in her purse?

¶23 The Fourth Amendment of the United States Constitution and Article II, Section 

11 of the Montana Constitution prohibit searches and seizures by law enforcement 

without a valid warrant. In addition, Montana statutory law at § 46-5-101, MCA, 

provides that "[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." Consent to a search is a 

judicially recognized exception to the warrant requirement. State v. Kim (1989), 239 

Mont. 189, 779 P.2d 512. The State has the burden of showing that the defendant's 

consent was given voluntarily. Kim, 239 Mont. at 196, 779 P.2d at 517. 

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"Voluntariness is a factual issue and is determined from the totality of the 

circumstances." Kim, 239 Mont. at 196, 779 P.2d at 517 (citing Schneckloth v. 

Bustamonte (1973), 412 U.S. 218, 248-49, 93 S.Ct. 2041, 2058-59, 36 L.Ed.2d 854).

¶24 The parties agree that Officer Paharik searched Donita's purse without a 

warrant. Donita argues that the search was not conducted pursuant to a judicially 

recognized exception to the warrant requirement and therefore the search was 

illegal. In support of her argument, Donita contends that when Officer Paharik 

requested to look in her purse, she asked Officer Paharik if he needed a warrant and 

he responded that he did not. Donita also contends that she did not consent to Officer 

Paharik's search of her purse. Officer Paharik, on the other hand, testified that after 

finding the drugs and drug paraphernalia in the vehicle, he asked to look in Donita's 

purse. Officer Paharik further testified that Donita consented to the search and it 

was not until after he found the bindles in Donita's purse that she asked him if he 

needed a warrant.

¶25 The District Court, based on the evidence presented at the hearing, concluded 

that Donita voluntarily permitted the officer to search her purse and thus the 

evidence was admissible. When considering a court's ruling on a motion to suppress, 

this Court considers whether the record contains substantial credible evidence to 

support the district court's findings, and whether those findings were applied 

correctly as a matter of law. Kim, 239 Mont at 196, 779 P.2d at 517 (citing State v. 

Beach (1985), 217 Mont. 132, 147, 705 P.2d 94, 103). The trial court is the finder of 

fact at a suppression hearing and the credibility of the witnesses is properly 

determined by the trial court that heard the testimony and observed the witnesses. 

Kim, 239 Mont. at 196, 779 P.2d at 517. 

¶26 Donita contends that the District Court's conclusions regarding the voluntariness 

of her consent are not supported by her testimony at the hearing. Specifically, she 

argues that, while she may not have felt compelled to remain at the scene initially, 

after Officer Paharik asked her to return and stand by the car, she did not feel free 

to leave. Additionally, Donita maintains that Officer Paharik attempted to 

manipulate her into consenting to his search of the purse by telling her that he did 

not need a warrant.

¶27 The State argues that the District Court properly concluded that, based on the 

totality of the circumstances, Donita's consent was given voluntarily. The State points 

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to Officer Paharik's testimony that he did not order Donita to give him the purse, nor 

did he coerce her. It was his testimony that Donita consented to the search of the 

purse. Furthermore, Officer Paharik recalled that it was not until after he found the 

bindles in Donita's purse that she asked him if he needed a warrant.

¶28 The issue before the District Court was one of credibility. The District Court 

found Officer Paharik's recollection of the events more credible than Donita's. We 

determine that the record contains substantial credible evidence to support the 

District Court's findings. Since the District Court is in a better position to determine 

the credibility of the witnesses, this Court will not disturb the District Court's 

findings if they are supported by substantial credible evidence. We determine that 

the District Court did not err in finding that, based on the totality of the 

circumstances, Donita voluntarily consented to the search of her purse. Accordingly, 

we hold that the District Court did not err in denying Donita's motion to suppress. 

Affirmed.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER

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