State v. Funkhouser

400 Mont. 373

467 P.3d 574

2020 MT 175

STATE of Montana, Plaintiff and Appellee,

v.Monte Kaymen FUNKHOUSER, Defendant and Appellant.

DA 17-0697

Supreme Court of Montana.

Submitted on Briefs: May 20, 2020

Decided: July 7, 2020

For Appellant: Chad Wright, Appellate Defender, Haley Connell Jackson, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana Joshua A. Racki, Cascade County Attorney, Amanda L. Lofink, Deputy County Attorney, Great Falls, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Appellant Monte Kaymen Funkhouser (Funkhouser) appeals a June 15, 2017 order from the Eighth Judicial District Court, Cascade County, denying his motion to suppress. Funkhouser also appeals the District Court's September 29, 2017 written sentencing order.¹ We restate the dispositive issue on appeal as follows:

Does a field test of residue in a syringe lawfully seized pursuant to a search incident to arrest constitute a search requiring law enforcement to first obtain a warrant?

¶2 We affirm the District Court's denial of Funkhouser's motion to suppress.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On the night of January 23, 2017, Great Falls Police Officer Kaleb Larson (Larson) initiated a vehicle stop of a Ford Escape which had a suspended registration. Funkhouser was driving the vehicle when it was stopped. At the time of the vehicle stop, Larson knew Funkhouser was a suspect from a previous theft case. Larson also knew that Funkhouser had previously been charged with multiple drug offenses in Utah and that one of Funkhouser's relatives had recently called police voicing concerns about Funkhouser's alleged distribution of methamphetamine and heroin. During the stop, Funkhouser informed Larson that his driver's license was suspended and that he did not have vehicle insurance. After learning this information, Larson placed Funkhouser under arrest.

¶4 While searching Funkhouser incident to his arrest, Larson patted down Funkhouser and located a used syringe in his front jacket pocket. The syringe contained a small amount of clear fluid. Funkhouser told Larson that he was a diabetic and that he used syringes to inject insulin. Funkhouser also stated that there was a box of insulin inside his vehicle and asked Larson to locate it. Larson searched Funkhouser's car but did not locate any insulin ;² instead, Larson observed several additional used syringes on the vehicle's floorboard.

Larson, believing that the syringe found on Funkhouser's person contained trace amounts of methamphetamine, placed the syringe into an evidence bag and transported it to the jail along with Funkhouser.

¶5 When booking Funkhouser into jail, Larson conducted a chemical "field test" on the contents of Funkhouser's syringe to determine whether the small amount of liquid remaining in the syringe contained methamphetamine. The field test came back positive for methamphetamine. Larson then sent the syringe, which still contained a trace amount of liquid residue, to the Montana State Crime Lab, where an additional forensics test involving a gas chromatograph and mass spectrometer confirmed the field test's findings. The forensics test also revealed that no insulin was present within the syringe. The State did not obtain a search warrant prior to conducting either chemical test on the residual contents of Funkhouser's syringe.

¶6 The State ultimately charged Funkhouser with one count of felony criminal possession of dangerous drugs, one count of misdemeanor criminal possession of drug paraphernalia, and three misdemeanor traffic offenses. On May 11, 2017, Funkhouser filed a motion to suppress the evidence discovered during Officer Larson's field test of his syringe at the jail. Funkhouser conceded that the vehicle stop, his arrest, the search incident to the arrest, and the seizure of his syringe were lawful. In his motion to suppress, Funkhouser invoked the Fourth Amendment of the United States Constitution, Article II, Sections 10 and 11 of the Montana Constitution, and § 46-5-101, MCA, to argue that Larson's field test of the syringe's contents without a warrant constituted an unlawful "search" that violated his reasonable expectations of privacy. The District Court held an evidentiary hearing on June 14, 2017, and ultimately denied Funkhouser's motion to suppress, citing the Supreme Court's clear language on chemical field tests in United States v. Jacobsen , 466 U.S. 109, 122-24, 104 S. Ct. 1652, 1661-62, 80 L.Ed.2d 85 (1984) (holding that a field test does not require a warrant). The District Court's denial also relied, in part, on the inevitable discovery doctrine, ruling that the contents of Funkhouser's syringe would have eventually been discovered as part of a routine jailhouse inventory search. See State v. Hilgendorf , 2009 MT 158, ¶¶ 26-27, 350 Mont. 412, 208 P.3d 401 (holding that the naked-eye discovery of marijuana in a container found on defendant's person during a pat down was not a "search" requiring a warrant because the marijuana would have inevitably been discovered as part of a jailhouse inventory search).

¶7 At trial, the State moved to exclude Funkhouser from making any further argument or commentary regarding whether there was a legal search; whether the State needed a warrant to search Funkhouser or his property; and whether the State needed a warrant to search the syringe and its contents. When presented with this motion, Funkhouser's attorney replied, "In this particular case, Your Honor, I have no intention of talking about the syringe," permitting the District Court to grant the State's motion. Later, during trial, both the syringe and the report from the Montana State Crime Lab were admitted as evidence without objection from Funkhouser's counsel.

¶8 On July 31, 2017, Funkhouser was found guilty of five counts: criminal possession of dangerous drugs (Count I), failure to carry proof of liability insurance (Count II), driving while suspended/revoked (Count III), criminal possession of drug paraphernalia (Count IV), and operating a vehicle with an improper registration (Count V). On September 13, 2017, the District Court imposed a fine for Count V and ordered concurrent sentences for Counts I through IV, resulting in a total sentence of five years with two years suspended.

¶9 Funkhouser appeals.

STANDARD OF REVIEW

¶10 This Court reviews a district court's denial of a motion to suppress to determine whether its findings of fact are clearly erroneous and whether its interpretation and application of the law is correct. State v. Kenfield , 2009 MT 242, ¶ 15, 351 Mont. 409, 213 P.3d 461. We will affirm a district court when it reaches the correct result, even if it is for the wrong reason. In re B.A.M. , 2008 MT 311, ¶ 24, 346 Mont. 49, 192 P.3d 1161.

DISCUSSION

¶11 Preliminarily, we address the procedural posture of this case to assess what issue has been properly preserved and is before us. Funkhouser contends that both the initial field test conducted at the jail by Larson and the subsequent chemical test conducted by the Montana State Crime Lab were unlawful "searches" that required a warrant. Yet, Funkhouser's contention about the legality of the crime lab testing is raised for the first time on appeal.

¶12 In order to preserve an objection to the admission of evidence for appeal, the objecting party must make a timely and specific objection on the record. M. R. Evid. 103(a)(1) ; State v. Clausell , 2001 MT 62, ¶ 25, 305 Mont. 1, 22 P.3d 1111. This Court has long held that appellants may not change their theories on appeal from those presented in district court. State v. Neiss , 2019 MT 125, ¶ 48, 396 Mont. 1, 443 P.3d 435. Generally, "[F]ailure to make a timely objection during trial constitutes a waiver of the objection." Section 46-20-104(2), MCA ; Neiss , ¶ 48.

¶13 Under this precedent, Funkhouser's challenge to the testing conducted by the Montana State Crime Lab has not been preserved for appeal. In his motion to suppress before the District Court—and during the corresponding evidentiary hearing on that motion—Funkhouser only objected to the initial field test conducted by Larson. He did not raise any objection about the crime lab's testing of the contents of his syringe. Furthermore, at the outset of Funkhouser's trial, the State specifically moved to exclude any additional argument regarding whether a search warrant was required to examine the contents of Funkhouser's syringe. Funkhouser's counsel indicated that he had no objection and, consequently, the District Court granted the State's motion. The record also reflects that Funkhouser's counsel did not object to the subsequent admission of the crime lab's report. As a result, Funkhouser has not preserved for our review whether the testing conducted by the crime lab required a warrant. Instead, this Court will only consider whether Larson's initial field test required a warrant, as this argument was properly preserved for appeal in Funkhouser's motion to suppress before the District Court. We now turn to this issue.

¶14 The Fourth Amendment to the United States Constitution protects persons from unreasonable searches and seizures. Article II, Sections 10 and 11 of the Montana Constitution provide similar, but heightened, protections. See Mont. Const. art. II, § 10 (establishing Montana citizens’ general right of privacy); Mont. Const. art. II, § 11 (protecting Montana citizens from unreasonable searches and seizures). See also State v. 1993 Chevrolet Pickup , 2005 MT 180, ¶ 9, 328 Mont. 10, 116 P.3d 800 (discussing Montana's privacy protections).

¶15 Together, these constitutional provisions typically require that a "search" be conducted pursuant to a warrant based upon probable cause. State v. Dickinson , 2008 MT 159, ¶ 18, 343 Mont. 301, 184 P.3d 305. In Montana, "[a] search occurs when the government infringes upon an individual's expectation of...