Preview:

No. 96-358
IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

STATE OF MONTANA,
Plaintiff and Respondent,

v.

SCOTT SCHEETZ,
Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Brad L. Arndorfer, Arndorfer Law Firm,
Great Falls, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General;
Patricia J. Jordan, Assistant Attorney General;
Helena, Montana

Dennis Paxinos, Yellowstone County Attorney;
Dale Mrkich, Deputy County Attorney;
Billings, Montana

Submitted on Briefs: September 11, 1997

Decided: December 5, 1997
Filed:

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-358%20Opinion.htm (1 of 17)4/17/2007 4:29:45 PM
__________________________________________
Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

Scott Scheetz was charged in the District Court for the Thirteenth Judicial
District
in Yellowstone County with criminal possession of dangerous drugs with intent to sell
after a drug-detecting canine led officers to search his airline luggage, in which
they
discovered eighteen pounds of marijuana. He filed a motion to suppress the seized
evidence. The District Court denied his motion. Scheetz pled guilty and now appeals
the District Court's denial of his motion to suppress. We affirm the order and
judgment
of the District Court.

The sole issue on appeal is whether the use of a drug-detecting canine to sniff
luggage which has been entrusted to an airline constitutes a search in violation of a
person's right to privacy guaranteed by Article II, Sections 10 and 11, of the
Montana
Constitution.

FACTUAL BACKGROUND

On February 9, 1995, Officer Lawrence Leighton of the Tucson Airport Authority
Police Department noticed Scott Scheetz and two other men acting nervously prior to
checking in for their flight. The individuals became cautious when they were walking
toward the check-in counter and noticed the uniformed Leighton. Rather than proceed
directly to the counter where no one else was waiting in line and where they could
have
checked in immediately, they became "quite serious" and retreated to some nearby
couches. They talked among themselves and "continued to appear nervous." Two of the
individuals walked away and left Leighton's view for a minute or two, while the third
remained at the couch with a large, new, hard-sided suitcase. All of the men
avoided eye
contact with Leighton throughout his observations of them.

Fifteen minutes prior to their flight's departure, the three men checked in at
the
counter and checked the suitcase. Leighton, who had been with the Airport Authority
Police for five years and investigated approximately two hundred narcotics cases, and
who had received advanced officer training in narcotics recognition, suspected that
the
three men were trafficking narcotics. He inspected the luggage in the baggage area
immediately after the men checked it. He found that the luggage tag listed only the
name
of John Olson and a telephone number. Leighton also investigated the men's travel
plans
and found that they had been made through a travel agent very shortly before the
flight,
and that the men had been in Tucson for approximately two days.

Based on his experience and the men's behavior, Leighton contacted the Billings
Police Department and informed them of his suspicion that the men were trafficking
narcotics. He provided descriptions of the men, their flight number, and their time
of

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-358%20Opinion.htm (2 of 17)4/17/2007 4:29:45 PM
arrival in Billings. The men, while traveling, were going by the names of John
Olson,
Chris Anderson, and Bob Jones. When Detective Steve Cwalinski of the Billings Police
traced the phone number on the luggage tag, he found that it was for a Billings
restaurant.

Officer Cwalinski, accompanied by a drug-detecting canine and its handler and a
DEA agent, met the flight when it landed at the Billings airport. Before the
luggage was
loaded onto the carousel, the canine was directed to sniff the luggage from the
flight.
The canine's reaction indicated that the suitcase matching the description given by
Leighton contained drugs.

Cwalinski identified two men matching the description given by Leighton as they
waited near the carousel for their luggage. One of the two men took the suitcase
that had
been identified by the canine and Leighton when it came off the carousel. He removed
the tags and threw them in the trash. Cwalinski retrieved the discarded tags, which
listed
John Olson and the phone number, approached the men, and identified himself as an
officer. He advised them of his investigation and escorted them to an office in the
airport.

After separating the men, the officers advised Scheetz of his Miranda rights.
Scheetz, who had removed the suitcase from the carousel, identified himself as John
Olson, and initially refused to give his consent to search his suitcase, although he
eventually admitted that he had drugs in the suitcase, and was placed under arrest.
The
officers obtained a search warrant for the suitcase and found that it contained
approximately eighteen pounds of marijuana.

On March 1, 1995, the Yellowstone County Attorney filed an information charging
Scheetz with criminal possession of dangerous drugs with intent to sell and criminal
possession of drug paraphernalia. On August 8, 1995, Scheetz filed a motion to
suppress
the evidence against him, based upon what he asserted was the State's invasion of his
privacy by the use of a drug-detecting canine. After briefing and a hearing, the
District
Court concluded that the use of a drug-detecting canine was not a search and,
accordingly, denied the motion. On March 6, 1996, Scheetz pled guilty to the
charges,
but reserved his right to appeal the denial of his motion to suppress. The District
Court
accepted the plea and sentenced Scheetz to ten years of imprisonment, with five years
suspended.

DISCUSSION

Does the use of a drug-detecting canine to sniff luggage which has been
entrusted
to an airline constitute a search in violation of a person's right to privacy
guaranteed by
Article II, Sections 10 and 11, of the Montana Constitution?

We review a district court's denial of a motion to suppress to determine whether
the court's interpretation and application of the law is correct. See State v.
Graham
(1995), 271 Mont. 510, 512, 898 P.2d 1206, 1207-08; State v. Stubbs (1995), 270 Mont.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-358%20Opinion.htm (3 of 17)4/17/2007 4:29:45 PM
364, 368, 892 P.2d 547, 550.

The use of drug-detecting canines to inspect luggage is an issue of first
impression
in Montana. Although search and seizure protections are traditionally founded on the
Fourth Amendment of the United States Constitution, we stated in State v. Sawyer
(1977),
174 Mont. 512, 515, 571 P.2d 1131, 1133, that "[w]e need not consider the Fourth
Amendment issue because we view the Montana Constitution to afford an individual
greater protection . . . than is found under the Fourth Amendment." We also
explained
in State v. Siegal (Mont. 1997), 934 P.2d 176, 184, 54 St. Rep. 158, 164, that when a
right of privacy is specially implicated as part of a traditional search and seizure
analysis,
we must address the issue pursuant to both Sections 10 and 11 of Article II of the
Montana Constitution. Article II, Section 10, states: "The right of individual
privacy is
essential to the well-being of a free society and shall not be infringed without the
showing
of a compelling state interest." Article II, Section 11, states:
The people shall be secure in their persons, papers, homes and effects from
unreasonable searches and seizures. No warrant to search any place, or
seize any person or thing shall issue without describing the place to be
searched or the person or thing to be seized, or without probable cause,
supported by oath or affirmation reduced to writing.

A threshold question in the determination of whether an unlawful search has
occurred is whether there has been government intrusion into an area where privacy is
reasonably expected. The U.S. Supreme Court stated in United States v. Jacobsen
(1984), 466 U.S. 109, 113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85, 94, that "[a]
'search' occurs when an expectation of privacy that society is prepared to consider
reasonable is infringed." We stated in State v. Loh (1995), 275 Mont. 460, 914 P.2d
592, that "[a] search compromises the individual interest in privacy." Loh, 275
Mont.
at 468, 914 P.2d at 597 (quoting Horton v. California (1990), 496 U.S. 128, 133, 110

S. Ct. 2301, 2306, 110 L. Ed. 2d 112, 120). "Where no reasonable expectation of
privacy exists, there is neither a 'search' nor a 'seizure' within the contemplation
of the
Fourth Amendment of the United States Constitution or Article II, Section 11 of the
Montana Constitution." State v. Bennett (1983), 205 Mont. 117, 121, 666 P.2d 747,

749.

In United States v. Place (1983), 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d
110, the U.S. Supreme Court held that exposing a person's luggage, which is located
in
a public place, to a drug-detecting canine is not a search within the meaning of the
Fourth
Amendment. Place involved facts similar to these. An airport officer relied on his
suspicions of drug trafficking to alert officers in the passenger's destination city
to
conduct a canine investigation of the passenger's luggage. The Supreme Court
reasoned
that the investigation was

Download 50382ef7-c6fe-4f6c-ac40-d9d1bbe6c665.pdf

Montana Law