JACK D. SHANSTROM, Senior District Judge.
Defendant Graden Roy Norlin ("Norlin") is charged with Conspiracy to Possess Methamphetamine with Intent to Distribute and Distribution of Methamphetamine (Count I), Possession with Intent to Distribute and Distribution of Methamphetamine (Counts II, III), and Distribution of Methamphetamine (Count IV). Norlin seeks to suppress evidence obtained in the seizure of his car. On April 19, 2013, the Court held a hearing and heard testimony from several witnesses. The hearing was continued until May 1, 2013, when the Court heard additional testimony and ordered supplemental briefing. After reviewing the briefs and exhibits the Court finds Norlin's Motion to Suppress and Dismiss Indictment unavailing.
Sometime in November of 2011, law enforcement commenced an investigation of Norlin concerning distribution of methamphetamine in Billings and Livingston, Montana.
On January 31, 2012, at approximately 11:30 a.m., law enforcement in Livingston, Montana learned that Norlin was traveling eastbound on Interstate 90 towards Billings, Montana. The Drug Enforcement Agency was contacted and surveilled Norlin while he was in Billings. While in Billings, Norlin made several stops. Of particular note was a stop at the Magic City Organic Hydroponic Supply store. According to DEA Special Agent Daniel Dunlap ("Agent Dunlap"), law enforcement witnessed a transaction between Norlin and an individual later identified as Mark Cox in the store parking lot. During that transaction, Agent Dunlap observed Norlin and Mark Cox exchanging a powdery substance. Subsequently, Cox testified that he did not know Norlin and the transaction involved elemental sulfur used for spider mites as opposed to illegal drugs.
Next, Norlin traveled to a residence in Billings which law enforcement suspected was his source of supply. After a few more stops, law enforcement followed Norlin heading west on Interstate 90 at approximately 4:10 p.m. Norlin was ultimately pulled over by the Montana Highway Patrol Trooper James McMartin ("McMartin") outside Livingston at approximately 5:30 p.m.
McMartin was on patrol on January 31, 2012, on Interstate 90, between Billings and Livingston. Earlier that day, he had been notified that if Norlin's vehicle was pulled over he was to contact a Missouri River Drug Task Force (MRDTF) detective. McMartin testified that at approximately 5:05 p.m., at mile marker 352 on Interstate 90, he saw Norlin's pickup truck, swerving in the lane. While following the pickup truck, McMartin observed the truck cross the right fog line twice and the center line once.
McMartin testified that he suspected the driver might be intoxicated and initiated a traffic stop. He was accompanied by Park County Deputy Jason Hopkin ("Hopkin"). Field sobriety tests were performed on Norlin. McMartin testified that Norlin informed him that he suffered from COPD or Chronic Obstructive Pulmonary Disease. McMartin noticed that Norlin was shaking during the tests. Norlin asked McMartin to retrieve his inhaler from his pickup. While he was getting the inhaler, both Hopkin and McMartin noticed the strong odor of marijuana coming from Norlin's truck. While at the truck, Norlin repeatedly attempted to grab for his jacket and was rebuffed by the officers. After an additional sobriety test was administered, both officers determined that Norlin was not intoxicated.
Following completion of the sobriety the tests, Norlin continued to shake uncontrollably, which McMartin believed showed signs of nervousness. McMartin allowed Norlin to sit in the front seat of his patrol car to warm up. He informed Norlin he was not under arrest and was free to leave, only he could not take his truck. Norlin used McMartin's cell phone to call his wife to come and pick him up.
While Norlin was in the patrol car, McMartin and Hopkin contacted Detective Tim Barnes ("Det. Barnes") of the MRDTF as directed and notified him of the marijuana odor, his shaking and appearing nervous, and repeated attempts to touch his jacket. Det. Barnes told McMartin he believed he had probable cause for a search warrant and not to let Norlin remove anything from the truck. McMartin testified that, when asked, Norlin denied him permission to search the truck.
Det. Barnes drafted an application for a search warrant and presented it to Park County Justice of the Peace, Judge Budeski.
The search warrant application includes the following information: 1) Det. Barnes interviewed a Confidential Source (CS) who identified Norlin's vehicles and stated that Norlin was bringing methamphetamine into Livingston, cutting it, and selling it for $100 per gram; 2) A second CS (CS-2) stated that Norlin supplied him/her with methamphetamine at least 100 times. CS-2 identified other individuals to whom Norlin had supplied methamphetamine. Those associations were corroborated by law enforcement; 3) Norlin has a criminal history which includes convictions for Criminal Distribution of Imitation Dangerous Drugs and Criminal Possession of Dangerous Drugs; 4) On January 18, 2012, Det. Barnes interviewed two recently arrested persons who reported that Norlin was their main source of methamphetamine for the past year. One of these individuals reported seeing Norlin in possession of at least a pound of meth at one time; 5) On January 31, 2012, law enforcement saw a transaction between Norlin and another individual in a parking lot in Billings, Montana. Law enforcement reported seeing Norlin approach the driver's door of another vehicle and then Norlin walked back to his truck carrying a white container which appeared similar to an ice cream bucket; 6) On January 31, 2012, at the Interstate 90 traffic stop, Hopkin reported seeing a white container similar to a one gallon ice cream bucket behind the driver's seat of Norlin's pick up truck. Hopkin reported seeing on the front seat of Norlin's truck, in plain view, a tackle box sized container with a clear top that was full of what appeared to be a white crystalline substance; and 7) McMartin reported that Norlin appeared to be extremely nervous, his voice shaky, and his body trembling uncontrollably even while sitting in a heated vehicle. See Application for Search Warrant, Defendant's Exhibit 544.
Judge Budeski found the application met the probable cause standard and issued a search warrant. A search of Norlin's truck found 31.8 grams of methamphetamine in his jacket and 136 grams of ...