United States District Court, D. Montana, Billings Division
OPINION AND ORDER
SUSAN P. WAITERS, District Judge.
Defendant Christopher Michael Emter ("Emter") is charged with Felon in Possession of a Firearm and Possession of a Stolen Firearm. (Doc. 1). He has moved to suppress evidence found during the search of his residence on February 14, 2013. (Doc. 30). He has also moved to dismiss under the Speedy Trial Act for the second time. (Does. 15, 30).
On January 16, 2014, the Court held an evidentiary hearing. The Court heard testimony from former Stillwater County Sheriff's Office Undersheriff Woody Claunch, Sergeant Charles Kern, Deputy Moses Richardson, Deputy Randy Smith, Montana Department of Corrections Probation and Parole Officer Katie Weston, Federal Task Force Officer Steve Feurstein, and former Stillwater County Chief Deputy County Attorney Nancy Rohde. Having read and reviewed the parties' submissions and having heard the testimony of the witnesses noted above, the Court DENIES Emter's motion.
On the evening of February 8, 2013, Stillwater County Sheriffs Deputy Randy Smith went to the Rocking J gas station south of Absarokee, Montana, to follow up on complaints of theft and criminal mischief Stillwater mine employees used the Rocking J parking lot to park their vehicles so they could ride the bus to the mine site. Several people complained that someone had broken into their vehicles and stolen their things. Deputy Smith determined that ski gear, a battery jump pack, binoculars, an iPod, music CDs, a wallet and check book, IDs, and transmission fluid had been stolen. Follow up investigation revealed that someone driving a Ford Explorer had tried to use the stolen credit cards to buy gas at Beartooth Corner Convenience Store the same night of the break-ins.
The next day, an Absarokee resident who was concerned about the recent criminal activity called the Stillwater County Sheriffs Office. She reported to Stillwater County Sheriff Cliff Brophy that she had seen two males unloading items from a red SUV into the garage of someone named "Misty, " the night of the break-ins. She also reported that two SUVs, a red one and a beige one, and a small pickup, had been at "Misty's" house lately. Sheriff Brophy shared this information with Deputy Smith, Sgt. Charles Kem, and Undersheriff Woody Claunch. Two days later, Stillwater County law enforcement located a red Ford Explorer in Absarokee that matched the description of the one captured in Beartooth Corner's video surveillance. It was registered to "Misty."
Sgt. Kem looked up "Misty" online and discovered through her Facebook account that she was romantically linked to Emter. Sgt. Kern also checked Emter's criminal history and determined that Emter was on probation and parole with the State of Montana. Sgt. Kern contacted Emter's Montana Department of Corrections Probation and Parole officer, Katie Weston, who told him that Emter was moving to Absarokee to live with his girlfriend, first name "Misty." Sgt. Kem also spoke with Emter's employer at the time who confirmed that Emter's girlfriend lived in Absarokee.
Based on the above information, Undersheriff Claunch prepared a search warrant application. On February 14, 2013, the warrant was issued and specified that "evidence of the crimes of Theft, Criminal Mischief and Criminal Trespass to Vehicles" was to be seized, including cash, burglary tools, personal information, etc. (Doc. 31-3 at USA() 0237). During the search, Deputy Moses Richardson found a Sig Sauer.40 caliber semi-automatic pistol in the closet of the master bedroom where Emter had been sleeping. Emter was arrested for violating his probation based on possession of a firearm.
On February 19, 2013, Weston filed a Report of Violation in Montana State District Court, Yellowstone County. Weston recommended that the State Court revoke Emter's suspended sentence because he violated his probation conditions. On February 21, 2013, a formal Petition to Revoke was filed in Yellowstone County and Stillwater County Chief Deputy Attorney Nancy Rohde filed charges against Emter for the vehicle break-ins and thefts that occurred on February 8. That matter was pending until August 29, 2014, when the State Court approved a Deferred Prosecution Agreement and formally dismissed the charges. Emter was indicted on federal charges five days later, on September 4, 2014.
A. Law Enforcement Lawfully Seized the Pistol found in Emter's bedroom.
With respect to a search warrant, a neutral and detached magistrate may issue one only "upon probable cause, supported by Oath or affirmation and particularly describing the Place to be searched, and the person or things to be seized." U.S. Const. amend. IV. Therefore, as a general rule, "things" not specifically mentioned in a search warrant may not be seized.
Once the police are lawfully searching in a place for one thing, however, they may seize another that is in plain view, if its incriminating nature is immediately apparent. United States v. Ewain, 88 F.3d 689, 693 (9th Cir. 1996) (citing Horton v. California, 496 U.S. 128, 135 (1990). "The [plain view] doctrine serves to supplement the prior justification - whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused - and permits the warrantless seizure." Horton, 496 U.S. at 136.
In Horton, a police officer obtained a search warrant from a magistrate judge. Id. at 131. The warrant permitted the officer to search the defendant's home for robbery proceeds, including certain stolen rings. Id. at 130-31. Although the officer's affidavit referred to weapons used during the robbery, the magistrate judge did ...