A local judge has ruled that a man and his car were illegally searched after a traffic stop in Hill County, erasing any potential evidence found as a result.
Among the evidence allegedly found during the illegal search were 100 Oxycodone pills and more than $18,000 in cash, according to court documents.
The charges against Deondre Kenny Martin were originally filed in May 2017, but were later dropped at the request of the Hill County Attorney’s Office. Then the case got the Montana Attorney General Office’s attention and was refiled in October 2018.
Martin again was charged with felony criminal possession of dangerous drugs with intent to distribute. His attorney, Havre’s Brian Lilletvedt, again filed to have the evidence thrown out and the case with it. Lilletvedt argued the search and seizure was without justifiable suspicion and therefore illegal.
On Nov. 1, District Judge Kaydee Snipes-Ruiz issued her ruling, and sided with Martin. She ruled the search and seizure was illegal because police did not have enough evidence to justify it.
The Attorney General’s Office will move to dismiss the case, a spokesperson told the Herald Wednesday.
The facts of the matter, as described in Judge Snipes-Ruiz’s order are as follows:
On May 3, 2017, Montana Highway Patrolman Cody Smith pulled Martin over for driving 76 mph on Highway 87, a 70 mph road (a move Lilletvedt found suspicious in the first place). Martin, who had a passenger onboard, was driving northbound in a 2016 Nissan Sentra with Oregon license plates. The stop was a few miles north of Box Elder.
During the stop, the trooper learned the car was rented and Martin was not listed as a permitted driver. His aunt was the registered driver. But his aunt did give him permission to drive it.
The trooper smelled unburned marijuana and said he saw what appeared to be a cigarette with the end tied up in the center console. The officer also noticed that Martin’s hand was trembling, his eyes were bloodshot and speech slow, which he considered suspicious behavior.
Martin was ordered out of the car and searched. No weapons or illegal contraband, including marjuana, were found. Martin’s criminal background check and license came back clean.
The trooper asked permission to search the car. Martin would not grant it. The trooper then told Martin he was detaining him while he waited on the K-9 unit.
Another trooper arrived on the scene and Mirandized Martin.
Martin declined to wait on the K-9 narcotics unit. When the officer learned the K-9 was at the border, he told Martin he was going to seize the vehicle and apply for a search warrant.
Another MHP trooper gave Martin and his passenger a ride to Havre.
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For a record of what allegedly happened afterward, the court charging document filed by the Attorney General’s Office, is referenced:
The car was towed to the Hill County Detention Center where Task Force and Border Patrol agents, including the K-9 sniff dog, searched it after a warrant was approved.
The search yielded 100 30 mg Oxycodone pills, a dangerous drug, $18,960 in cash, and three .45-caliber pistols, according to charging documents.
In her order, Snipes-Ruiz dismantled the state’s argument that Martin wasn’t the permitted driver of the car so he had no reasonable expectation of privacy. Citing a U.S. Supreme Court case involving a similar matter, the judge ruled the driver had a “subjective expectation of privacy” because his aunt gave him permission to drive the car.
As for the stop, the driver didn’t challenge its validity, only the trooper’s actions afterward.
The judge agreed:
“Here, the traffic stop should have concluded when the warning for speeding was given to Martin, as there was not any particularized suspicion to support continuing beyond that.”
That kind of suspicion cannot be based on a mere odor of marijuana, Snipes-Ruiz says. Martin had no criminal history, and after the trooper asked him to get out of his vehicle, nothing that would indicate the officer’s safety was at risk was found. There was also “no other readily apparent indication that there may be illegal drug activity afoot.”
“Here, the end does not create the means for which the seizure was based,” the judge said.
“Furthermore,” she said, “a dog-sniff search is not considered a routine part of an investigatory stop.”
The judge believed Martin reasonably felt he was under arrest when he was told he was going to be “detained” and was then read his Miranda rights, even though the trooper didn’t have an arrest warrant or probable cause to arrest him. So the arrest was illegal and therefore any evidence seized as a result should be thrown out, the judge said.
The Montana Supreme Court “adopted a three-part test to determine whether an individual is under arrest: authority to arrest; assertion of authority with intention to effect an arrest; and restraint of the person arrested.”
None of those requirements were satisfied, the judge says.
The smell of marijuana and Martin’s reaction or demeanor is not enough evidence. Besides, “a reasonable person who is pulled over and swiftly asked to exit their vehicle and sit in a police cruiser could display the same signs of nervousness and sweating.
“Any evidence obtained as a result of the unlawful seizure must be suppressed.”
Snipes-Ruiz ruled the seizure of Martin’s vehicle was illegal because there was no probable cause to do so. The trooper found no evidence of pot, his tongue showed no sign of recent drug use. Martin was not even asked to undergo a field sobriety test. Citing a Montana case as an ideal model, the judge said the officer in that incident had plenty of reason for reasonable suspicion, including a failed sobriety test, a history of related charges, and the inability of the driver to confirm where she was.
Here are some arguments the state used to defend the trooper’s search and seizure, according to court documents:
After determining to seize the car, the suspicious cigarette disappeared. When he asked what happened to it, the passenger said “it might have blown out of the vehicle.”
What was believed to be marijuana “shake” was observed on the center console of the vehicle.
Martin asked what would happen with the vehicle. The trooper told him he’d apply for a search warrant and then asked Martin for a phone number to tell him if the warrant would be granted. Martin refused to give the trooper his contact information, which seemed unusual.
The narcotics were seized from a rental vehicle Martin was not authorized to drive; therefore, citing Montana precedent as support, he lacked the right to exclude others from searching the car.
The state also argued against why a traffic stop can turn into an investigation: “The justification for the stop may change as officers acquire additional information.”
In addition to the suspicious cigarette and the smell of burnt (from him) and unburnt (from car) marijuana, Martin also showed physical signs of being high on pot: bloodshot eyes and slow speech.
Judge Snipes-Ruiz has now had at least two cases in which she had to rule whether evidence was illegally obtained by law enforcement.
In a case involving a repeat drunk driver, who is also represented by Lilletvedt, she ruled the other way: The Havre police officer was legally justified in pulling over the man. Lilletvedt said he “obviously disagrees” with the judge’s ruling in that case, adding he’ll leave it up to the client to decide whether to appeal to the Montana Supreme Court.
Lilletvedt, a defense attorney, says the reason he takes these cases is to make sure officers of the law follow the rules. Otherwise, he adds, any citizen can end up stopped, questioned or searched without legal justification.
Write to Paul Dragu at firstname.lastname@example.org