NO. 95361

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable John W. Larson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Marcia M. Jacobson, Public Defender Office,

Missoula, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

John Paulson, Assistant Attorney General,

Helena, Montana

Robert L. Deschamps, III, Missoula County

Attorney, Karen Townsend, Deputy County

Attorney, Missoula, Montana

Submitted on Briefs: May 2, 1996

Decided: June 4, 1996

Filed:
Justice Charles E. Erdmann delivered the opinion of the Court.

Douglas Leroy New appeals from an opinion and order partially

denying his motion to suppress evidence and from the judgment

entered by the Fourth Judicial District Court, Missoula County,

convicting him of the offenses charged. We affirm.

The issue on appeal is whether the District Court erred in

denying New's motion to suppress evidence obtained during a search

of his vehicle by New's probation officer.

FACTS

Shortly before midnight on May 24, 1994, Missoula County

Sheriff's Deputy Pat Turner was on patrol in Missoula and observed

a pickup truck driving at a slow rate of speed. Turner saw the

vehicle make two turns without signaling and called his dispatcher

to run a check on the license plate number. The dispatcher

informed Turner that the vehicle belonged to New and that New was

on probation for possession of drugs with intent to sell and was

subject to "search on demand."

Turner continued to follow the vehicle as it turned into a

convenience store. As he went to stop New for the traffic

violation, Turner noticed another vehicle drive past him without

its headlights on. As he went to stop the second vehicle, Turner

saw New get out of his pickup and approach the public telephone

outside the convenience store. After dealing with the second

vehicle, Turner returned to speak with New who was still on the

telephone.

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Turner told New that he had observed him make two turns

without signaling. Turner informed New that he knew he was on

probation and was subject to search and then directed him to empty

his pockets onto the hood of his pickup. Turner also performed a

quick pat-down search of New and discovered a small metal tubular

container inside his pants pocket. Inside the container were a

number of small plastic bags containing a white powdery substance

which New claimed was cocaine obtained from a friend's house.

Turner then placed New under arrest and continued to search New's

clothing. He found an after-shave box in New's coat pocket which

contained approximately twenty-nine long white pills which were

later determined to be Lortab, a dangerous drug. New was taken to

the county jail and his vehicle was impounded.

In the early morning hours of May 25, 1994, Turner notified

New's probation officer, Tom Forsyth, of the arrest and Forsyth

requested a report of the arrest and directed that New also be

arrested for violating his probation. Later that same day, New was

interviewed on tape by Missoula County Sheriff's Detective Larry

Jacobs. During that interview, Jacobs informed New that the white

powdery substance had tested positive for methamphetamine. New

indicated that he intended to sell some of the drugs to pay his

distributor and to support his own habit. During the interview,

New gave his consent to search his pickup and admitted to the

officers that they would find drugs and drug paraphernalia in the

vehicle.
Following the interview, Jacobs discussed the matter with a

deputy county attorney who advised Jacobs not to rely on New's

consent for the search of his vehicle but to contact Forsyth to

determine if he had independent grounds to search the vehicle.

Jacobs contacted Forsyth who determined that a probationary search

of the vehicle was appropriate. Forsyth had previously received

information that New was using drugs and alcohol, he knew that New

was not in the court-ordered drug/alcohol treatment program and he

was uncertain of New's living arrangements--all of which led

Forsyth to believe he had independent grounds to search New's

vehicle and that such a search might produce evidence indicating a

probation violation. Forsyth and Jacobs subsequently searched

New's vehicle and discovered a pill bottle containing a number of

baggies with a white powdery substance which later tested positive

for methamphetamine. They also recovered drug paraphernalia from

the pickup.

On June 6, 1994, New was charged by information with felony

criminal possession of dangerous drugs (methamphetamine) with

intent to sell pursuant to § 45-g-103, MCA (Count I), felony

criminal possession of dangerous drugs (Lortab) pursuant to

§ 45-g-102, MCA (Count II), and misdemeanor criminal possession of

drug paraphernalia in violation of § 45-10-103, MCA (Count III).

New entered pleas of not guilty to the charges.

On September 2, 1994, New filed a motion to suppress the

evidence obtained during both the search of his person and the

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search of his vehicle. On November 30, 1994, the District Court

issued an opinion and order granting New's motion to suppress the

evidence seized during the search of his person but denied the

motion as to evidence seized during the search of his vehicle. The

District Court held that probationary searches are within the

discretion of the probation officer and found that in this case

Forsyth did not abuse his discretion in scheduling the search of

New's vehicle.

On January 17, 1995, the District Court allowed New to

withdraw his pleas of not guilty and to enter a conditional plea of

guilty to Counts I and III pursuant to 5 46-12-204(3), MCA,

reserving the right to appeal the suppression order as it related

to the evidence seized during the search of his vehic1e.l As it

was evident that New would appeal the suppression order relating to

the vehicle search, the State then requested that the District

Court allow it to enter testimony from Forsyth into the record

concerning the specific reasons why he conducted the search of

New's vehicle. The District Court granted the State's request and

both parties were allowed to examine Forsyth. Following Forsyth's

testimony, the court determined that its earlier ruling on New's

motion to suppress would stand.

On May 5, 1995, the District Court rendered its judgment

sentencing New to fifteen years in the Montana State Prison on each

1 Count II was no longer at issue since the District Court had

suppressed the evidence supporting that charge in its November 30,

1994, opinion and order.

5
of Counts I and II, and to a term of six months in the Missoula

County Jail on Count III.2 The sentences were to run concurrently

but the District Court suspended the entire sentence on certain

terms and conditions. This appeal followed.

STANDARD OF REVIEW

The standard of review for a district court's denial of a

motion to suppress is whether the court's findings of fact are

clearly erroneous and whether those findings were correctly applied

as a matter of law. State v. Williams (Mont. 1995), 904 P.Zd 1019,

1021, 52 St. Rep. 1085, 1086 (citing State v. Flack (1993), 260

Mont. 181, 188, 860 P.2d 89, 94). In this case and at New's

request, the District Court ruled on the motion to suppress without

conducting an evidentiary hearing or relying on a stipulation of

facts from the parties. The court based its initial ruling on the

briefs submitted by the parties and stated that the facts

concerning the two searches were not in dispute. However, after

the District Court received Forsyth's testimony concerning the

basis for the vehicle search the court made a factual determination

that its earlier ruling would stand in light of the new evidence

obtained from Forsyth. Thus, despite the fact that no formal

findings of fact were made on the matter, we must nevertheless

determine whether the District Court's findings are clearly

2 The District Court's judgment erroneously referred to Count

II and this error will be addressed later in the opinion.

6
erroneous and whether they were correctly applied as a matter of

law.

DISCUSSION

Did the District Court err in denying New's motion to suppress

evidence obtained during a search of his vehicle by New's probation

officer?

In denying New's motion to suppress the evidence obtained

during the search of his vehicle, the District Court concluded that

a probation officer is not required to have a prearranged schedule

for his or her searches. The court noted that such searches lie

within the discretion of the probation officer and in this case the

court was persuaded by the fact that Forsyth had authorized and

conducted the search himself and that the information he had at the

time constituted reasonable grounds under State v. Small (1989),

235 Mont. 309, 767 P.2d 316.

New relies on Wong Sun v. United States (1963), 371 U.S. 471,

83 s. ct. 407, 9 L. Ed. 2d 441, to argue that since the District

Court determined that the search of his person was illegal, the

evidence obtained during Forsyth's subsequent search of the vehicle

was "fruit of the poisonous tree" and should have been suppressed

as well. He claims that without the illegal search and seizure, he

would not have been arrested, booked, or interrogated, nor would he

have made incriminating statements or consented to the search of

his vehicle. New notes that after the illegal search and seizure

Jacobs contacted Forsyth to determine if he (Forsyth) had
independent grounds for the vehicle search. However, according to

NW?, such after-the-fact justification of the vehicle search does

not cleanse the evidence of the taint created by the illegal search

of his person.

The State counters New's reliance on the "fruit of the

poisonous tree" doctrine by arguing that certain conditions can

purge such derivative evidence of its primary taint and allow the

evidence to be used despite any initial illegality. The State

maintains that Forsyth had information which he acquired prior to

and independent of Turner's search of New's person and that the

evidence obtained during the probationary search of New's vehicle

was therefore "unpoisoned" and purged of any taint created by the

initial illegal search.

The State also argues that a degree of flexibility must be

accorded a probation officer in the course of supervising a

probationer. The State argues that a probation officer may search

a probationer's vehicle without a warrant as long as the officer

has a reasonable suspicion of a probation violation. The State

maintains that the operation of a probation system and its need for

supervision of a probationer's conditional liberty presents special

needs beyond normal law enforcement that justify departure from the

usual warrant and probable cause requirements.

We must initially address the propriety of the January 17,

1995, change of plea hearing where the District Court granted the

State's request, over New's objection, to illicit testimony from

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Forsyth concerning his reasons for authorizing the search of New's

vehicle. While New does not appeal the District Court's decision

to allow Forsyth's testimony, he states in his reply brief that,

"Mr. Forsyth's testimony was not used by the lower court in making

its suppression decision. Furthermore, the contents of that

transcript do not change anything about this appeal."

We agree that the District Court initially ruled on New's

motion to suppress prior to hearing Forsyth's testimony. However,

in deciding to allow the testimony the court stated Forsyth's

testimony might assist the court and the Supreme Court in resolving

the matter. Following the testimony, the District Court determined

that "its earlier ruling would stand." We therefore conclude that

the District Court did, in fact, use Forsyth's testimony in

reaching its final decision on the matter.

We further note that without the benefit of Forsyth's

testimony this Court would have been required to remand the case

for a factual hearing to determine Forsyth's reasons for conducting

the search of New's vehicle. We also note that in briefing the

matter before the District Court, New did not contest the State's

assertion that Forsyth had a legitimate basis for the probationary

search, stating only that the defense had no information to

indicate Turner contacted Forsyth prior to the search. Thus, we

conclude that the District Court properly allowed Forsyth's

testimony at the January 17, 1995, hearing and we consider the

transcript from that hearing to be part of the record on appeal.

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Even though Forsyth claims he had independent reasons for

searching New's vehicle, he acknowledges the fact that the

telephone call from Jacobs was an additional element supporting the

search. We must therefore determine whether the evidence obtained

during the search of the vehicle was the result of the illegal

search of New's person or if, instead, it was obtained by means

sufficiently distinguishable from the illegal search to be purged

of the primary taint.

In In re R.P.S. (1981), 191 Mont. 275, 623 P.2d 964, this

Court examined the "fruit of the poisonous tree" doctrine first

discussed by the U.S. Supreme Court in Silverthorne Lumber Co. v.

United States (1920), 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319.

The doctrine forbids the use of evidence which comes to light as a

result of the exploitation of an initial illegal act of the police.

In re R.P.S., 623 P.2d at 967 (citing Silverthorne, 251 U.S. at

392). However, we also noted that the U.S. Supreme Court has made

it clear that all evidence obtained as the result of an initial

illegality does not become forever unavailable or inaccessible and

that certain conditions can purge the evidence of its "primary

taint." In re R.P.S., 623 P.2d at 967. The U.S. Supreme Court

stated in Wona Sun that:

We need not hold that all evidence is "fruit of the

poisonous tree" simply because it would not have come to

light but for the illegal actions of the police. Rather,

the more apt question in such a case is "whether,

granting establishment of the primary illegality, the

evidence to which instant objection is made has been come

at by exploitation of that illegality or instead by means

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sufficiently distinguishable to be purged of the primary

taint."

Wont Sun, 371 U.S. at 487-88 (citation omitted).

We reviewed the exceptions to the "fruit of the poisonous

tree" doctrine in State v. Pearson (1985), 217 Mont. 363, 704 P.2d

1056, and stated that derivative evidence is admissible if it is

(1) attenuated from the constitutional violation so as to remove

its primary taint; (2) obtai ned from an independent source; or

(3) determined to be evidence which would have been inevitably

discovered apart from the constitutional violation. Pearson, 704

P.2d at 1058-59. The U.S. Supreme Court has discussed the

"independent source" exception more recently in Murray v. United

States (1988), 487 U.S. 533, 108 S. Ct. 2529, 101 L. Ed. 2d 472,

and stated that:

"[T]he interest of society in deterring unlawful police

conduct and the public interest in having juries receive

all probative evidence of a crime are properly balanced

by putting the police in the same, not a WOYX, position

that they would have been in if no police error or

misconduct had occurred. . When the challenged

evidence has an independent source, exclusion of such

evidence would put the police in a worse position than

they would have been in absent any error or violation."

Murray, 487 U.S. at 537 (quoting Nix v. Williams (1984), 467 U.S.

431, 443).

Forsyth testified that New had failed to report to him for

several months, was reported to be using drugs and alcohol, had

failed to pay his fine or enroll himself into chemical dependency

treatment, and had moved several times without approval or

notification. All of these constitute violations of New's parole

1 1
conditions. Forsyth testified that he had intended to search New's

vehicle on May 24, 1994, but New did not have his pickup with him

when Forsyth saw him. When Forsyth saw New's vehicle on May 25,

1994, it appeared that New was living out of his pickup, thus

giving Forsyth an additional reason to search the vehicle. Forsyth

testified as follows:

Q. Can you tell the Court whether you were able to make

a decision about the search independent of what was found

by Deputy Turner?

A. Absolutely. Yes.

. . . .

Q. You wouldn't have searched his vehicle on May 25th

unless you would have gotten a call from that officer; is

that true?

A. A search of Mr. New was imminent regardless. I

think that was just one more, ah, factor that -- that

factored into my decision. He hadn't been reporting like

I said.

When asked about his conversation with Jacobs, Forsyth stated: " I

think he asked me if I had any plans to do a search. I indicated

that I did . . .'I

In Small we stated that "[tlhe probation officer must be able

to supervise the probationer, and upon his judgment and expertise,

search the probationer's residence or cause it to be searched."

Small, 767 P.2d at 318 (quoting State v. Burke and Roth (19881, 235

Mont. 165, 171, 766 P.2d 254, 257). The terms of New's probation

included the requirement that New would submit to the search of his

person, vehicle, and/or residence upon the reasonable request of

his probation officer. Forsyth had independent grounds for

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searching New's vehicle, his request was reasonable based on the

information he had at the time, and the timing of the search was

within his discretion as New's probation officer.

A criminal defendant who seeks to suppress evidence has the

burden of proving that the search was illegal. State v. McCarthy

(1993), 258 Mont. 51, 55, 852 P.2d 111, 113. We conclude that New

failed to establish that Forsyth's probationary search of his

vehicle was not based on reasonable cause arising from information

Forsyth had acquired from independent sources. The evidence

obtained during the search of the vehicle was not the result of the

exploitation of the illegal search but rather was based on

information known to Forsyth which was independent of the fact that

New had been arrested and illegally searched the previous day. We

therefore hold that the District Court's findings are not clearly

erroneous and that those findings were correctly applied as a

matter of law to deny New's motion to suppress the evidence

obtained from the search of his vehicle.

Finally, the State did not appeal the District Court's order

suppressing the evidence obtained during the search of New's person

which supported Count II. However, the District Court's judgment

states as follows:

IT IS THE JUDGMENT OF THE COURT that DOUGLAS LEROY NEW be

and DOUGLAS LEROY NEW is hereby sentenced to a term of

fifteen (15) years each on Count I and II in the Montana

State Prison in Deer Lodge, Montana, and to a term of six

(6) months on Count III in the Missoula County Jail in

Missoula, Montana. Said sentences shall run concurrently

with each other.

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During the January 17, 1995, change-of-plea hearing the following

exchange took place which conflicts with the court's judgment:

THE COURT: Mr. Beccari, do you know of any facts [that]

should be made known to [the1 Court prior to the

acceptance of a plea of guilty in this matter?

MR. BECCARI: No, sir, and I believe it's a plea of guilty

to Counts I and III; is that correct? I guess we should

clarify that beforehand. It's Count II that the Court

has ordered suppressed.

THE COURT: That's the State's understanding?

MS. TOWNSEND: Yes.

THE COURT: Okay. So as to I and III of the Information

filed June 6, 1994, you desire to change your plea --

NEW: Yes.

. . .

THE COURT: You stand convicted of the offenses of

criminal possession of dangerous drugs with intent to

sell, a felony, [Count 11 and criminal possession of drug

paraphernalia, a misdemeanor [Count 1111.

We therefore note the clerical error in the District Court's

judgment convicting New of Count II and sentencing him to fifteen

years in the Montana State Prison for that offense. The evidence

supporting the charge was suppressed and Count II should have

therefore been dismissed. Thus, pursuant to this Court's authority

under § 46-20-703(l), MCA, we modify the District Court's judgment

and sentence removing the reference to Count II, felony criminal

possession of dangerous drugs (Lortab) pursuant to 5 45-p-102, MCA.

Affirmed.

Justice

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we concur:

Justices

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Justice W. William Leaphart, dissenting.

I dissent from the majority's holding that "[t]he evidence

obtained during the search of the vehicle was not the result of the

exploitation of the illegal search but rather was based on

information known to Forsyth which was independent of the fact that

New had been arrested and illegally searched the previous day."

The District Court and the majority recognize that the search of

New's person was illegal. Nonetheless, the majority holds that the

subsequent search of New's vehicle was obtained by means

sufficiently distinguishable from the illegal search to be purged

of the primary taint. I disagree that the vehicle search was not

derived by exploitation of the illegal search. I also disagree

that the vehicle search was arrived at by means sufficiently

distinguishable to be purged of the primary taint. Wong Sun v.

United States (1963), 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9

L.Ed.2d 441, 455. Additionally, I disagree that the vehicle search

was: (1) attenuated from the constitutional violation so as to

remove its primary taint; (2) obtained from an independent source;

or (3) determined to be evidence which would have been inevitably

discovered apart from the constitutional violation. State v.

Pearson (19851, 217 Mont. 363, 366, 704 P.2d 1056, 1058-59.

On May 25, 1995, the day after New's arrest, upon the

recommendation of a Deputy County Attorney, Detective Jacobs

contacted New's parole officer, Tom Forsyth. Subsequently, on the

same day, Forsyth conducted a search of New's pickup truck and

found drugs and drug paraphernalia. The State argues that even if

the initial search of New's person were illegal, the drugs in New's

16
vehicle arose from an independent source based on the information

Forsyth had prior to New's arrest. However, Forsyth admitted that

he would not have been in a position to search New's truck if he

had not received a call from the officers involved in its seizure.

New's vehicle was impounded and available to search because of the

initial illegal search.

According to the State, a probationary search was imminent at

the time of New's arrest. However, Forsyth testified that he had

seen New in his office the day before New's arrest and that, at

that time, Forsyth did not search New's pickup. Forsyth testified

that he could not recall clearly whether New had the truck with him

that day or not. Clearly, a search of the truck had not been

foremost on Forsyth's mind if he could not recall if it were

available for searching on May 24, 1995. Forsyth's notes from the

May 24 meeting make no indication that Forsyth intended to search

New's home or truck at any future time. It is very unlikely that

Forsyth would have searched New's vehicle the morning of May 25 had

the police not illegally seized the truck and contacted Forsyth.

Additionally, the reasons that Forsyth offered in support of

his alleged intent to search New's truck, i.e., that New failed to

report to him for several months (although he had seen New the day

before, May 24), was reported to be using drugs and alcohol, failed

to pay his fine or enroll himself into chemical dependency

treatment, and had moved several times without approval or

notification, do not lead to the conclusion that a search of New's

truck would have been inevitable or a priority. The fact that New

was living out of his truck was not revealed until after New's

17
arrest and the truck's seizure. His living in the truck was

clearly an after-the-fact rationalization for searching the truck.

The District Court's conclusion that probation officers are not

required to have prearranged schedules for searches of

probationers' persons or possessions does not adequately excuse the

obvious causal relationship between the illegal search of New's

person, the notification of Forsyth, and Forsyth's search of the

truck.

The District Court noted that:

Here the Probation Officer also received information

interviewed [sic] by Missoula County Sheriff's Detective

indicating the presence of small amounts of drugs and

illegal drug paraphernalia in the Defendant's vehicle

which are prohibited under Defendant's probation.

The information mentioned by the District Court was obtained by

Detective Jacobs during his interview of New after the illegal

search of New's person. Thus, Forsyth relied on tainted custodial

admissions in ascertaining that there was adequate "reasonable

suspicion" to search New's vehicle.

This Court examined the doctrine of the "fruit of the

poisonous tree" as part of the exclusionary rule in Matter of

R.P.S. (1981), 191Mont. 275, 623 P.2d 964. First discussed by the

United States Supreme Court in Silverthorne Lumber Co. v. United

States (1920), 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, the

doctrine forbids the use of derivative evidence which comes to

light as a result of the exploitation of an initial illegal act.

The search of New and the seizure of New's pickup truck were the

initial illegal acts. The notification to Forsyth and his

subsequent search of the truck were derivative in nature. That is,

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the search of the truck by Forsyth was an exploitation of the

illegal search and seizure by Officer Turner.

This Court reviewed the exception to the "fruit of the

poisonous tree" rule in Pearson, 704 P.2d at 1058-59. We noted

that derivative evidence is admissible if it is: (1) attenuated

from the constitutional violation so as to remove its primary

taint; (2) obtained from an independent source; or (3) determined

to be evidence which would have been inevitably discovered apart

from the constitutional violation. Given the consumable and

vendable nature of the drugs, it was far from inevitable that they

would have remained in the truck to be discovered when, and if, the

truck were to be searched at a later time.

The State's reliance on both independent grounds and

inevitable discovery seem too convenient as after-the-fact

justifications for searching the truck. I would hold that

Forsyth's probationary search of New's truck was an exploitation of

the illegal search of New's person and seizure of his truck, and

was not based on information known to Forsyth independently of the

fact that New had been arrested and illegally searched the previous

night.

Justices William E. Hunt, Sr., and Terry N. Trieweiler join in the

foregoing dissenting opinion.

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