DA 06-0257

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 8

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

JERRY NICK RUGGIRELLO,

 Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-First Judicial District,

In and For the County of Ravalli, Cause No. DC 2005-84

Honorable Jeffrey H. Langton, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender, Joslyn M. Hunt, Assistant Appellate

Defender, Helena, Montana

For Appellee:

Hon. Mike McGrath, Montana Attorney General, Jonathan M. Krauss, 

Assistant Attorney General, Helena, Montana

George H. Corn, Ravalli County Attorney, William Fulbright, Deputy County

Attorney, Hamilton, Montana

Submitted on Briefs: June 13, 2007

 Decided: January 15, 2008

Filed:

__________________________________________

Clerk

January 15 2008
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Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Appellant Jerry Nick Ruggirello appeals the denial of his motion to suppress by the 

District Court of the Twenty-First Judicial District, Ravalli County. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 As far back as July of 2002, the Ravalli County Sheriff’s Office (RCSO) had received 

information concerning Ruggirello’s involvement in the purchasing of illegal drugs. In 

January 2005 Detective Jase Basnaw of the RCSO received information from a reliable 

confidential informant that Ruggirello was distributing large amounts of methamphetamine 

in Spokane, Washington. Subsequently, a confidential informant, who had previously 

arranged controlled purchases of illegal drugs for the RCSO, agreed to participate in a 

controlled buy from Ruggirello in Montana. 

¶3 On April 26, 2005, Detective Basnaw received a call from Agent Mike Heaney of the 

Montana Department of Justice, Division of Criminal Information in Butte, Montana, 

indicating that Ruggirello and another suspected drug dealer, Rusty O’Connell, were going 

to transport large quantities of methamphetamine from Spokane for delivery in Missoula, 

Ravalli, and Silver Bow counties. The confidential informant who provided Agent Heaney 

this information indicated that O’Connell and Ruggirello would be traveling to Montana in 

O’Connell’s red Nissan pickup. Agent Heaney obtained the truck’s license number and 

forwarded this information to Detective Basnaw. 

¶4 On April 27, 2005, Agent Heaney informed Detective Basnaw that O’Connell and 

Ruggirello were en route to Montana and would arrive in Missoula, Montana around 9:00

p.m. From there, they would travel to Hamilton, Montana and then Butte. Agent Heaney’s 
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confidential informant indicated that Ruggirello and O’Connell were in possession of 

approximately one half-pound of methamphetamine. Detective Basnaw subsequently 

activated patrol deputies to search for O’Connell’s red pickup truck on Highway 93 during 

the time that O’Connell and Ruggirello were to arrive in Montana. However, the RCSO 

dispatch center inadvertently broadcast this information over the radio, and it was picked up 

by O’Connell’s mother who informed O’Connell that law enforcement officials were looking 

for him. As a result, O’Connell and Ruggirello were able to avoid being intercepted by law 

enforcement officials that night.

¶5 The next day Detective Basnaw learned that O’Connell had been tipped off by his 

mother the previous evening, and was in hiding with Ruggirello in the environs of Hamilton. 

 Detective Basnaw searched for Ruggirello and O’Connell, but was unable to locate them. 

Then, on Friday, April 29, 2005, Detective Basnaw received a call from a concerned citizen 

about possible drug activity at the Court Yard Circle Apartments in Corvallis, Montana. The 

concerned citizen stated that two “suspicious looking males” were visiting the apartment of a 

woman named Brandy Bay. Detective Basnaw knew that Bay had recently been evicted 

from a SAFE housing complex for drug use, and was also aware of allegations that Bay had 

used drugs in the presence of her toddler. The concerned citizen provided the license plate 

numbers of the red pickup these individuals were driving, which matched the license number 

of O’Connell’s pickup. Thus, the information available to Detective Basnaw confirmed that 

the description of the individuals from the concerned citizen matched the description of 

O’Connell and Ruggirello. 

¶6 Detective Basnaw and RCSO Detective Dave Potter immediately went to the Court 
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Yard Circle Apartments in an unmarked truck. While heading there, they had another 

conversation with the concerned citizen who had been observing the two men with Bay. 

This citizen informed Detective Basnaw that he saw Bay put something into a storage area 

outside of her apartment. Once at the apartments, Detectives Basnaw and Potter began 

surveillance of Bay’s apartment and called for backup. They observed two individuals on 

the balcony of Bay’s second-story apartment who appeared to be watching them. One of 

these individuals immediately went inside the apartment, and within approximately a minute, 

O’Connell and another woman left the apartment in O’Connell’s red pickup truck. As they 

passed by the unmarked truck, they appeared to watch Detectives Basnaw and Potter very 

closely. Detective Potter directed another officer to follow O’Connell, and he was later 

apprehended. 

¶7 While Detectives Basnaw and Potter continued to observe Bay’s apartment, Detective 

Basnaw received a call from Agent Heaney in Butte. Agent Heaney informed Basnaw that 

Ruggirello had just called one of Heaney’s confidential informants in Butte and told him that 

police officers were watching him and asked the informant to come down from Butte and 

help Ruggirello get rid of the drugs. 

¶8 The detectives soon saw Bay emerge from the apartment with her 18 month-old 

daughter. She walked over to her minivan, retrieved a bag, and returned to her apartment, all 

the while watching Detectives Basnaw and Potter. The two detectives then discussed 

whether they should have detained Bay prior to her re-entry into her apartment with her 

daughter, in the event they would have to conduct a forcible entry of the apartment. During 

this time, Detective Basnaw placed a call to the Ravalli County Attorney and discussed the 
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issue of Bay’s daughter’s safety in the event of a forcible entry of the apartment, and the 

possibility that Ruggirello could destroy evidence of illegal drugs before a valid search 

warrant could be obtained. As Detective Basnaw later testified, it was estimated that the 

procurement of a valid search warrant would have taken between four and seven hours.

¶9 When Bay came out a second time with her daughter, the detectives detained her 

along with another male neighbor. Detective Basnaw testified that he had been watching 

Bay’s apartment in the unmarked truck for approximately ten to twenty minutes before he 

detained Bay. Shortly thereafter, additional law enforcement officers arrived on the scene. 

According to Detective Basnaw, it took approximately fifteen minutes for backup to arrive 

from the time he initially called for them. After backup arrived, three law enforcement 

officers went up to Bay’s apartment, knocked on the door, and identified themselves. After 

approximately thirty seconds had passed and they had received no response, the officers 

kicked in the door of the apartment and entered. 

¶10 Upon entering, officers found Ruggirello and another woman in the apartment. 

Ruggirello was handcuffed, patted down and searched, and officers found approximately 

$1,500 in his wallet. Detective Basnaw observed that Ruggirello’s pupils were pinpointed 

and that he was sweating. Based on his experience and training as a police officer, Detective 

Basnaw surmised that Ruggirello was under the influence of methamphetamines.

¶11 Ruggirello was subsequently taken to the Ravalli County Detention Center for 

booking. Officers then taped off the apartment, and left an officer to guard it while they 

applied for a warrant to search Bay’s apartment. Upon obtaining a valid search warrant and 

conducting a search of the apartment, officers found approximately three and a half grams of 
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methamphetamine packaged for sale in half gram and one gram packets. The subsequent 

search of the red Nissan pickup pursuant to O’Connell’s arrest turned up approximately 

seven grams of methamphetamine.

¶12 Ruggirello was subsequently charged by Information with felony Conspiracy to 

Commit Criminal Distribution of Dangerous Drugs under § 45-4-102, MCA; felony Criminal 

Possession with Intent to Distribute under § 45-9-103, MCA; felony Criminal Endangerment 

under § 45-5-207, MCA; and misdemeanor Criminal Possession of Drug Paraphernalia under 

§ 45-10-103, MCA. Ruggirello plead not guilty to all charges. Subsequently, he filed a 

motion to suppress, arguing that probable cause and exigent circumstances justifying the 

warrantless entry of Bay’s apartment did not exist, and that the search violated his right to be 

free from unreasonable searches and seizures under the Fourth Amendment to the U.S. 

Constitution, and Article II, Section 11 of the Montana Constitution. Ruggirello asked the 

District Court to suppress any evidence obtained as a result of the forcible entry and 

warrantless search of Bay’s apartment, as well as any evidence and statements1 obtained 

from Ruggirello and other individuals in the apartment which were later used in the 

application for the search warrant. 

¶13 The District Court held a hearing on Ruggirello’s motion, and ultimately denied it. 

The District Court concluded that exigent circumstances and probable cause existed to justify 

the forcible entry and initial warrantless search of Bay’s apartment. After this ruling, 

Ruggirello withdrew his not guilty pleas, and plead guilty to one count of Criminal 

 

1 Ruggirello also argued before the District Court that officers violated his Miranda rights in 

the course of his arrest. Ruggirello has not appealed the denial of his Miranda-related arguments 
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Possession with Intent to Distribute under § 45-9-103, MCA. Ruggirello was sentenced to 

fifteen years with the Department of Corrections, with ten years suspended. Ruggirello now 

timely appeals the denial of his motion to suppress by the District Court.

ISSUE

¶14 We state the sole issue on appeal as follows: Did the District Court err in concluding 

that exigent circumstances justified the forcible entry of Bay’s apartment, thus denying 

Ruggirello’s motion to suppress?

STANDARD OF REVIEW

¶15 “We review a district court’s ruling on a criminal defendant’s motion to suppress 

evidence to determine whether the court’s findings of fact are clearly erroneous and whether 

the court correctly applied those findings as a matter of law. A court’s findings of fact are 

clearly erroneous if they are not supported by substantial credible evidence, the court has 

misapprehended the effect of the evidence, or our review of the record convinces us that a 

mistake has been committed.” State v. Vaughn, 2007 MT 164, ¶ 15, 338 Mont. 97, ¶ 15, 164 

P.3d 873, ¶ 15 (quotation and citations omitted).

DISCUSSION

¶16 Did the District Court err in concluding that exigent circumstances justified the 

forcible entry of Bay’s apartment, thus denying Ruggirello’s motion to suppress?

¶17 The Fourth Amendment to the U.S. Constitution and Article II, Section 11 of the 

Montana Constitution both protect citizens against unreasonable searches and seizures, and 

require warrants issued upon probable cause prior to a search by law enforcement officials. 

 

to this Court.
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Warrantless searches are considered per se unreasonable unless an exception to the warrant 

requirement applies. State v. Case, 2007 MT 161, ¶ 19, 338 Mont. 87, ¶ 19, 162 P.3d 849, 

¶ 19. An exception justifying a warrantless search is the existence of exigent circumstances 

and probable cause. State v. Stone, 2004 MT 151, ¶ 18, 321 Mont. 489, ¶ 18, 92 P.3d 1178, 

¶ 18. In Stone, we described the circumstances under which exigent circumstances and 

probable cause permit a warrantless search:

Exigent circumstances exist if the situation at hand would cause a reasonable 

person to believe that prompt action is necessary to prevent physical harm to 

an officer or other person, the destruction of relevant evidence, the escape of 

a suspect, or some other consequence improperly frustrating law enforcement 

efforts. Probable cause exists if the facts and circumstances within the 

officer’s personal knowledge, or imparted to the officer by a reliable source, 

are sufficient to warrant a reasonable person to believe that the suspect has 

committed an offense.

Stone, ¶ 18 (citations and quotation omitted). 

¶18 “The State bears the heavy burden of showing the existence of exigent circumstances 

and can meet that burden only by demonstrating specific and articulable facts.” State v. 

Logan, 2002 MT 206, ¶ 17, 311 Mont. 239, ¶ 17, 53 P.3d 1285, ¶ 17 (quotation omitted).

¶19 The District Court found the State met its heavy burden in this case and proved the 

existence of both probable cause and exigent circumstances justifying the initial warrantless 

search of Bay’s apartment. The District Court found that testimony from the suppression 

hearing clearly established the following: (1) that O’Connell and Ruggirello were identified 

as being at Bay’s apartment; (2) that Ruggirello knew officers were outside of his apartment; 

(3) that Ruggirello had called a third party to come and help him get rid of the drugs; and (4) 

that the amount of methamphetamine Ruggirello was alleged to be in possession of—one
9

half-pound—could have been destroyed by flushing it down the toilet well before Detective 

Basnaw could obtain a valid search warrant. These facts, combined with other information 

provided by confidential informants, showed that officers had probable cause to believe 

O’Connell and Ruggirello were in possession of illegal drugs. They also provided specific 

and articulable facts reasonably indicating exigent circumstances, insofar as the half-pound 

of methamphetamine Ruggirello allegedly possessed was in danger of being destroyed. In 

reaching this conclusion, the District Court distinguished the facts of this case from 

situations where exigent circumstances were found not to exist, including Logan, State v. 

Anyan, 2004 MT 395, 325 Mont. 245, 104 P.3d 511, United States v. George, 883 F.2d 1407 

(9th Cir. 1989), and United States v. Tavares, 223 F.3d 911 (8th Cir. 2000). 

¶20 On appeal, Ruggirello does not challenge the existence of probable cause, but instead 

argues only that the District Court erred in concluding exigent circumstances were present 

which justified the initial warrantless entry into Bay’s apartment. Ruggirello asserts that 

“Basnaw had no specific facts leading him to believe that individuals in the apartment where 

Ruggirello was located were in the process of destroying or concealing the half-pound bag of 

methamphetamine supposedly in the apartment.” Ruggirello acknowledges that the 

information available to Detective Basnaw could lead him to reasonably infer that Ruggirello 

had drugs in the apartment, but contends Detective Basnaw did not have any information 

indicating an imminent need for a warrantless search. Ruggirello asserts that “[c]alling 

someone who is over 120 miles away to come to the apartment to take control of the drugs is 

far from an imminent threat that the drugs will be destroyed.” While Detective Basnaw may 

have believed it was possible that Ruggirello would destroy the drugs, Ruggirello argues that 
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he did not have a reasonable belief that the destruction of drug evidence was imminent. 

Ruggirello maintains this case is analogous to State v. McBride, 1999 MT 127, 294 Mont. 

461, 982 P.2d 453, and that Detective Basnaw had ample time to obtain a search warrant; 

thus, no exigent circumstances were present.

¶21 The State urges us to affirm the District Court. The State maintains that Detective 

Basnaw had “a reasonable belief that Ruggirello would destroy, conceal, or remove the drugs 

before Basnaw could reasonably obtain a search warrant.” The State asserts that Detective 

Basnaw did not need to be certain that Ruggirello was destroying or concealing illegal drugs, 

but need only have a reasonable belief that prompt action was necessary to prevent the 

destruction of relevant evidence. The State maintains that Stone supports this assertion. 

Additionally, the State asserts that the District Court properly distinguished Logan, Anyan, 

and George, and that its order denying the motion to suppress should be affirmed.

¶22 We agree with the State and affirm the District Court. In the first instance, the State is 

correct to note that an officer does not need to be certain that evidence is being destroyed in 

order for exigent circumstances to exist. “Exigent circumstances exist if the situation at hand 

would cause a reasonable person to believe that prompt action is necessary to prevent . . . the 

destruction of relevant evidence . . . or some other consequence improperly frustrating law 

enforcement efforts.” Stone, ¶ 18. Here, Detective Basnaw had specific and articulable facts 

which would lead a reasonable person to believe that prompt action was necessary to prevent 

the destruction of the half-pound of methamphetamine Ruggirello allegedly possessed. 

Based on information from confidential informants, Detective Basnaw knew that Ruggirello

was coming to Montana with methamphetamine, that Ruggirello was aware that police 
11

officers were watching him, and that he had asked a third party to help him get rid of the 

drugs. Detective Basnaw was also given information that the amount of the 

methamphetamine was one half-pound, and knew that such an amount could be flushed 

down the toilet in a short period of time. Moreover, Basnaw had witnessed O’Connell and 

another occupant of the apartment already leave the scene, and their behavior indicated they 

were aware that police were watching them. 

¶23 These facts, taken together, would lead a reasonable person in Detective Basnaw’s 

position “to believe that prompt action [was] necessary” to prevent Ruggirello from 

destroying the methamphetamine he allegedly possessed. Stone, ¶ 18. The fact that officers 

never recovered a full half-pound of methamphetamine, or never witnessed Ruggirello

actually destroying drugs, does not alter our conclusion that Basnaw reasonably believed 

exigent circumstances existed. The question is not whether Basnaw was certain that 

Ruggirello had a half-pound of methamphetamine and that he was destroying it, but rather 

whether it was reasonable under the circumstances for Detective Basnaw to believe that 

Ruggirello had illegal drugs and that prompt action was necessary to prevent him from 

destroying them. Ruggirello does not challenge on appeal the reliability of the information 

provided by the confidential informants; therefore, it was indisputably proper for Detective 

Basnaw to take account of this information in formulating his belief that prompt action was 

necessary and that exigent circumstances existed.

¶24 Additionally, the District Court correctly distinguished the facts of this case from 

Logan, Anyan, George, and Tavares. In Logan, we found no exigent circumstances justified 

a warrantless search pursuant to a traffic stop, because the officer in that case actually 
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testified that nothing prevented him from obtaining a search warrant prior to conducting a 

search of the vehicle. Logan, ¶¶ 19-20. Here, on the contrary, Detective Basnaw’s 

testimony indicated that Ruggirello was aware of his presence, had indicated to a 

confidential informant that he needed to get rid of the drugs, and could have done so in a 

relatively short time. Similarly, the District Court properly distinguished Anyan and Tavares

where exigent circumstances justifying a no-knock entry did not exist, because officers in 

those cases could not have reasonably believed that evidence of illegal drugs could be 

quickly destroyed. Anyan, ¶¶ 60, 62 (meth lab could not be destroyed in a matter of five to 

ten seconds, thus officers had to comply with knock and announce rule); Tavares, 223 F.3d 

at 916-17 (no exigent circumstances were present justifying a no-knock entry because five 

pounds of methamphetamine could not be destroyed quickly). Additionally, the District 

Court correctly distinguished George because the record in that case gave no indication that 

the officers reasonably believed the suspects were aware of their presence, or of their 

imminent capture by law enforcement officials; thus, no exigent circumstances existed 

justifying a warrantless arrest of the suspect in his apartment. George, 883 F.2d at 1413-15. 

Here, to the contrary, “officers watching Bay’s apartment knew that the suspects inside were 

aware of police presence outside and concerned about being apprehended with illegal drugs.”

¶25 Furthermore, we agree with the State that Detective Basnaw did not have adequate 

time to secure a search warrant. In McBride, we found that no exigent circumstances 

justifying a warrantless search of a house were present, because officers had time to secure a 

search warrant and there was no indication that anyone inside the house was in danger or 

about to flee. McBride, ¶¶ 16-18. Here, however, Detective Basnaw had already witnessed 
13

O’Connell flee the scene, knew that Ruggirello was aware of his presence, and knew that he 

had contacted a third party to help him get rid of the drugs. This, combined with the fact that 

the procurement of a search warrant would take from four to seven hours, reasonably 

indicated the presence of exigent circumstances.

CONCLUSION

¶26 For these reasons, we affirm the denial of Ruggirello’s motion to suppress by the 

District Court.

/S/ PATRICIA COTTER

We Concur:

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ BRIAN MORRIS