State v. Loberg

418 Mont. 38

STATE OF MONTANA, Plaintiff and Appellee,

v.CHRIS LANDON LOBERG, Defendant and Appellant.

No. DA 22-0644.

Submitted on Briefs June 19, 2024.

Decided August 27, 2024.

2024 MT 188.

418 Mont. 38.

__ P.3d __.

Appeal from the District Court of Fergus County.

Tenth Judicial District Court, Cause No. DC-2021-68.

Honorable Jon A. Oldenburg, Judge.

There was insufficient particularized suspicion to conduct a canine sniff of defendant’s vehicle because the evidence at the suppression hearing consisted of otherwise perfectly legal or innocuous conduct or behavior and not indicia of illegal drug activity; defendant’s detention and canine sniff were supported by no more than a generalized suspicion or an inarticulable hunch of criminal activity.

Reversed.

For Appellant: Chad Wright, Appellate Defender, Jeff N. Wilson, Assistant Appellate Defender, Helena.

For Appellee: Austin Knudsen, Montana Attorney General, Tammy K Plubell, Asisstant Attorney General, Helena; Kent Sipe, Fergus County Attorney, Theresa Diekhans, Deputy County Attorney, Lewistown.

CHIEF JUSTICE McGRATH delivered the Opinion of the Court.

¶1 Following a guilty plea, Chris Landon Loberg was convicted of Criminal Possession of Dangerous Drugs in violation of § 45-9-102, MCA. He appeals from a May 31, 2022 order of the Tenth Judicial District Court that denied Loberg’s motion to suppress the evidence that law enforcement officers found in his vehicle. Loberg argued there was insufficient particularized suspicion to conduct a canine sniff. We agree and reverse the District Court.

¶2 We restate the issue on appeal as follows:

Was there sufficient particularized suspicion to justify a search with a canine around Loberg’s vehicle?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On August 2, 2020, Officer Connelly was driving through the parking lot of the Magic Diamond Casino in Lewistown, Montana. He noticed a parked vehicle with expired registration tags. He ran the license plate through the state motor vehicle system and learned that Loberg was the registered owner. Connelly parked so that he could see the exit from the parking lot and took time to "do some research." He ran Loberg’s name through the Zuercher database (Database), which keeps track of every contact police have with citizens—including calls that come in about others. These reports are generated whenever an individual calls the police and gives information. The Database associated Loberg with four or five "drug informational reports" dating back from 2003 to 2017 associating him with others as a "potential distributer or potential user" of drugs. The reports showed no arrests or convictions for drugs. As Connelly admitted at the suppression hearing, these specific citizen reports were unsubstantiated: "There was nothing concrete. There was nothing definite, but he was just associated with [drug users or distributors]." The reports raised Connelly’s interest in Loberg because he knows that drug users will often associate with one another, and they were the basis for Connelly’s belief that Loberg was involved in drug trafficking. Connelly then waited for Loberg to exit the casino.

¶4 After Loberg left, Connelly activated his overhead lights to pull him over. Loberg traveled for approximately two blocks before he pulled over, cresting a hill that, Connelly admitted, "could’ve been deemed an unsafe area for a traffic stop." Connelly asked where he had been coming from, to which Loberg responded that he had come from a family member’s house. Connelly also noticed that he had pinpoint pupils when he examined them with his flashlight, which he recognizes as an indicator of drug impairment. Loberg showed no other signs of drug impairment throughout the stop and Connelly did not conduct a driving under the influence (DUI) investigation.

¶5 Connelly then had Loberg get out of the vehicle and speak with his backup partner (Johnson) while Connelly wrote him a citation for the expired registration. Connelly returned with the citation, informed Loberg that they were finished and he was free to leave, and they each walked back towards their respective vehicles.

¶6 Connelly testified that he wanted to further investigate Loberg for possession of dangerous drugs based on his observation of pinpoint pupils, the Database reports, the smell of a "masking agent" coming from the car, and the time of night that he was leaving the casino.¹ So as Loberg was opening his car door to leave, Connelly asked if he could ask him some more questions. Connelly informed Loberg that he was not under arrest and Loberg said he understood. Loberg decided to answer Connelly’s additional questions. Connelly explained that the Database contained reports that Loberg may have been involved in some drug distribution from 2000 to 2017. Loberg became upset that he was associated with those reports when he was never charged or arrested with anything: "I’m in the system for something I wasn’t even doing? … That’s bullshit." Loberg said he had never had anything to do with those things and indicated that just because he hangs out with drug users does not mean he is one. Based on everything he had observed, Connelly decided to detain Loberg and conduct a canine sniff around Loberg’s vehicle with Johnson’s dog. The dog alerted on both the driver side and passenger side doors.² Connelly obtained a search warrant and found a bag containing .56 grams of methamphetamine.

¶7 The State charged Loberg with Operating with Expired Registration, a misdemeanor, in violation of § 61-3-312, MCA, Criminal Possession of Dangerous Drugs, a felony, in violation of § 45-9-102(1), MCA, and Criminal Possession of Drug Paraphernalia, a misdemeanor, in violation of § 45-10-103, MCA. Loberg filed a motion to suppress arguing, among other things, that Connelly did not have particularized suspicion for the canine sniff. The District Court denied the motion to suppress and Loberg agreed to plead guilty to Criminal Possession of Dangerous Drugs, reserving his right to appeal the denial of the motion to suppress.

STANDARD OF REVIEW

¶8 [1] We review factual findings in a denial of a motion to suppress for clear error, and we review de novo whether the District Court correctly interpreted and applied the applicable law to those facts. State v. Noli, 2023 MT 84, ¶ 24, 412 Mont. 170, 529 P.3d 813. Factual findings are clearly erroneous if not supported by substantial evidence, the court misapprehended the effect of the evidence, or our independent review firmly convinces us that the court was mistaken. Noli, ¶ 24. The State has the burden of showing that the subject search or seizure was conducted in accordance with a recognized exception to the warrant and probable cause requirements of the United States and Montana Constitutions. Noli, ¶¶ 29, 31.

DISCUSSION

¶9 Was there sufficient particularized suspicion to justify a search with a canine around Loberg’s vehicle?

¶10 [2] Generally, government searches and seizures are unlawful under the Fourth Amendment to the United States Constitution and Article II, Section 11, of the Montana Constitution unless conducted in accordance with a judicial warrant issued on probable cause. Noli, ¶ 26. A Terry stop is a recognized exception to the warrant requirement. A Terry stop allows a law enforcement officer to stop and temporarily detain a person for investigative purposes if they have specific and articulable objective facts, based on the totality of the circumstances and including reasonable inferences, that lead to an objectively reasonable particularized suspicion that the person is or is about to be engaged in criminal activity. Noli, ¶¶ 30-31; see also §§ 46-5-401, -403, MCA. This inquiry demands specific articulable information including relevant considerations such as the quantity, substance, quality, and degree of reliability of information known to the officer at the time. Noli, ¶ 30. A canine sniff constitutes a search and thus requires particularized suspicion of unlawful activity before an officer can conduct one. State v. McElroy, 2024 MT 133, ¶ 13, 417 Mont. 68, 551 P.3d 282.

¶11 [3] Although we review the officer’s asserted justification based on common sense probabilities from the perspective of those versed in the field of law enforcement rather than in terms of a library analysis by scholars, law enforcement-specific inferences must still be objectively reasonable under the totality of the circumstances. Noli, ¶ 31. Thus, although an officer need not be certain that the subject is engaged in criminal activity, the officer must still articulate more than a mere generalized suspicion or undeveloped hunch of criminal activity to amount to particularized suspicion. Noli, ¶ 31.

¶12 [4, 5] When an officer’s only bases for suspecting criminal activity are inferences that could be drawn from the conduct of virtually any law-abiding person, the resulting suspicion, by definition, cannot be particularized and is more akin to mere generalized suspicion or an inarticulable hunch of criminal activity. Noli, ¶ 32. While this conduct may be a contributing factor in giving rise to particularized suspicion, these observations must be in conjunction with other specific indicia of criminal activity. Noli, ¶ 32. We have concluded that certain facts or inferences drawn by officers could be drawn about virtually any law- abiding citizen, such as:

merely inconsistent accounts of a person’s conduct, presence, or plans[;] unusually nervous or defensive behavior when monitored, stopped, confronted, or questioned by police[;] failure to make or maintain eye contact with police[;] use of a borrowed or rented vehicle[;] a messy, cluttered, or disheveled vehicle interior[;] presence at the scene of a crime[;] use of a highway commonly used for drug trafficking or other illegal activity[;] traveling to or from a city or area generally known as a source, destination, or situs of/for illegal drugs or other illegal contraband or activity[;] the desire to

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