State v. Harning

408 Mont. 140

507 P.3d 145

STATE of Montana, Plaintiff and Appellee,

v.William James HARNING, Defendant and Appellant.

DA 20-0343

Supreme Court of Montana.

Submitted on Briefs: January 19, 2022

Decided: March 29, 2022

For Appellant: Chad Wright, Appellate Defender, Jeavon Lang, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Bree Gee, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Sarah L. Hyde, Deputy County Attorney, Billings, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 William James Harning ("Harning") appeals from a May 4, 2020, order in the Thirteenth Judicial District Court, Yellowstone County, affirming the Yellowstone County Justice Court's denial of his motion to suppress. We reverse and restate the issue on appeal as follows:

Whether particularized suspicion existed to support extending Harning's traffic stop into a drug investigation.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Harning was transporting a truck full of ceramics to an art show in Colorado on March 1, 2018, when Montana Highway Patrol ("MHP") Trooper Tyler DiGiovanna ("Trooper DiGiovanna") pulled him over for going 74 miles per hour in a 65 mile per hour zone near Billings at approximately 10:18 in the morning. On his approach to Harning's vehicle, Trooper DiGiovanna noticed several sealed cardboard boxes in the bed of the truck.

¶3 As Trooper DiGiovanna approached, Harning rolled his window down approximately three or four inches. Trooper DiGiovanna asked Harning to roll the window down farther. Harning said he did not feel comfortable doing so and declined. Trooper DiGiovanna later testified that he immediately noticed the odor of marijuana when Harning rolled his window down. Trooper DiGiovanna testified that Harning "hemmed and hawed" when asked why he felt uncomfortable and that Harning's refusal to roll the window down first led Trooper DiGiovanna to believe Harning was hiding something. He testified that he preferred a rolled-down window for better communication and that he "immediately" deemed Harning's behavior "evasive" because not rolling the window down was atypical of most traffic stops. Trooper DiGiovanna did not testify to any communication issues related to the distance Harning's window was rolled down.¹

¶4 On cross-examination, Trooper DiGiovanna conceded people might sometimes be nervous during traffic stops, but that he had "pulled people over that are nervous, and they don't act like that." Harning's behavior struck him as different and "not nervous." Trooper DiGiovanna defined his meaning of "evasive" as "when asked a question, [Harning] would not answer it immediately. He hesitated, appeared nervous. He appeared as though he was trying to pick his words carefully, which is not normal of someone being honest." On redirect, Trooper DiGiovanna explained the difference between nervous and evasive behavior was "just subtle kind of things." When asked whether he had experience differentiating the two, Trooper DiGiovanna responded, without elaboration, that he did.

¶5 Harning provided his license, registration, and insurance upon Trooper DiGiovanna's request. Due to the smell of marijuana, Trooper DiGiovanna asked Harning whether he had a medical marijuana card. Harning did not have a medical marijuana card, but admitted to smoking marijuana in Big Timber, approximately 80 miles from where Harning was stopped. Trooper DiGiovanna testified that he asked Harning whether there was marijuana in the vehicle and that Harning briefly hesitated and answered, "I have no marijuana on me," furthering Trooper DiGiovanna's determination that Harning was hiding something. Trooper DiGiovanna later testified that, at this point, he suspected drugs were in Harning's vehicle. He cited "the odor, [Harning's] behavior, and just [Harning's] interactions" as the basis for his suspicion. He did not testify that Harning's travel plans factored into his determination.

¶6 Trooper DiGiovanna returned to his vehicle with Harning's documents, verified Harning had no outstanding warrants, and called for backup, a standard procedure for investigations involving field sobriety tests to determine whether an individual is driving under the influence ("DUI"). The record additionally indicates Harning had no prior drug charges. Trooper DiGiovanna returned to Harning's vehicle and gave Harning a warning for speeding. He testified that, upon his return to Harning's vehicle, he made the decision to conduct a drug investigation upon completion of the DUI field sobriety tests. He again cited Harning's behavior and noted the "new" smell of marijuana "wafting" from Harning's vehicle as contributing to this decision. Trooper DiGiovanna initiated the DUI investigation first to mitigate the possibility of waning impairment.

¶7 Trooper DiGiovanna asked Harning to exit the vehicle and, pursuant to the DUI investigation, patted down Harning. The patdown revealed no drugs on Harning's person. During the DUI investigation, Harning informed Trooper DiGiovanna that the boxes in his truck bed contained pottery. Trooper DiGiovanna later testified that he misheard Harning and believed Harning said the boxes contained "pot." Another MHP trooper clarified the misunderstanding. Nonetheless, after completing all the field sobriety tests pursuant to the DUI investigation, Trooper DiGiovanna determined Harning was not impaired.

¶8 Although Harning had received his traffic warning and was cleared of any impaired driving, Trooper DiGiovanna again asked Harning about the marijuana smell. Harning responded that there was no marijuana in the car, denied Trooper DiGiovanna's request for consent to search his vehicle, and asked whether he could leave. Trooper DiGiovanna told Harning he was not free to leave, but neither was he under arrest. Trooper DiGiovanna did not ask Harning any additional questions regarding the drug investigation and testified that the denial of consent did not factor into his preexisting suspicion of Harning.

¶9 At that point, Trooper DiGiovanna informed Harning he was beginning the drug investigation and "would be requesting a canine come and not search the vehicle, but be deployed." He informed Harning that he could either get a ride elsewhere or stay and wait for the results of the canine sniff; Harning elected to wait. After approximately 17 minutes, the canine arrived and signaled for drugs in Harning's vehicle. The total time between the initiation of the stop and the conclusion of the canine search was approximately 43 minutes. As a result of the canine search, Trooper DiGiovanna obtained a search warrant and located a glass marijuana pipe and grinder in Harning's vehicle. Harning was charged in Yellowstone County Justice Court with criminal possession of drug paraphernalia, in violation of § 45-10-103, MCA, and criminal possession of marijuana, in violation of § 45-9-102(2), MCA.²

¶10 Harning moved to suppress the State's evidence as the product of an illegal extension of the stop. After holding a hearing, the Justice Court denied Harning's motion to suppress. In addition to the above testimony, Trooper DiGiovanna explained his training specifically related to drug interdiction, which included two eight-hour days of drug training during the MHP academy. Trooper DiGiovanna estimated he had been involved in approximately 50 cases involving drugs during his time with MHP. At the time he pulled Harning over, Trooper DiGiovanna had been an MHP Trooper for approximately one year.

¶11 The Justice Court concluded Harning had not been seized within the meaning of the Fourth Amendment and deemed the following facts sufficient to create a particularized suspicion: Harning's out-of-state license plates³ and speeding, Harning's evasive answers, Harning's failure to roll down his window more than a few inches, the odor of marijuana, Harning's admission to smoking marijuana in Big Timber, and Harning's denial of having marijuana on his "person" when asked if there was marijuana in the vehicle. The Justice Court further concluded that Trooper DiGiovanna's initial stop was justified by Harning speeding, and Trooper DiGiovanna "learned that [Harning] had smoked marijuana while on his route to Colorado thereby justifying the DUI investigation. This information, coupled with the fact that the Trooper could smell marijuana emanating from inside the vehicle, justified the canine search."

¶12 Harning pleaded guilty to both counts and reserved his right to appeal to the District Court. On appeal to the District Court, the District Court found the Justice Court erred in determining Harning had not been seized within the meaning of the Fourth Amendment, but concluded the seizure was constitutionally sound. The District Court affirmed the denial of Harning's motion to suppress. Harning appeals.

STANDARD OF REVIEW

¶13 On appeal from a district court's review of a lower court ruling, we review the lower court ruling as if appealed directly to this Court without district court review. State v. Hoover , 2017 MT 236, ¶ 12, 388 Mont. 533, 402 P.3d 1224. Our review of a lower court's denial of a motion to suppress is whether the lower court's findings of fact are clearly erroneous and whether it correctly applied the controlling law to those facts. Hoover , ¶ 12. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the trial court misapprehended the effect of the evidence, or if this Court has a firm or definite conviction that the trial court committed a mistake. State v. Maile , 2017 MT 154, ¶ 8, 388 Mont. 33, 396 P.3d 1270. We review the lower court's conclusions of law and application of legal standards de novo. Hoover , ¶ 12.

DISCUSSION

¶14 Whether particularized suspicion existed to support extending Harning's traffic stop into a drug investigation.

¶15 Both the Fourth Amendment to the United States Constitution and Article II, Section 11, of...