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United States v. Miller

United States District Court, D. Montana, Billings Division

August 27, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
RICHARD DEAN MILLER, Defendant.

          FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

          TIMOTHY J. CAVAN, UNITED STATES MAGISTRATE JUDGE.

         Defendant Richard Dean Miller (“Miller”) is charged with Conspiracy to Possess with Intent to Distribute Methamphetamine and Possession with Intent to Distribute Methamphetamine. (Doc. 1.) He has moved to suppress evidence under the Fourth Amendment. (Doc. 33.)

         On July 26, 2018, Judge Watters referred Miller's motion to the undersigned, pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 59(a), Fed. R. Crim. P., for the purposes of conducting a hearing and issuing appropriate findings and recommendations. (Doc. 38.)

         Miller asserts that the evidence obtained as a result of a search of a backpack located in a hotel room closet should be suppressed because: (1) he had a reasonable expectation of privacy in the hotel room and backpack; (2) the search was not a lawful consent search; and (3) the backpack was not abandoned property.

         The Court held an evidentiary hearing on August 10, 2018, and the parties presented evidence on the motion. Having considered the parties' arguments and submissions, the Court RECOMMENDS that Miller's Motion to Suppress be GRANTED.

         I. BACKGROUND

         The Court heard testimony from Billings Police Department Officers Seth Foster (“Officer Foster”) and Caleb Schultz (“Officer Schultz”). The following facts are taken from the hearing testimony, the exhibits admitted into evidence at the hearing, and the exhibits attached to Miller's brief.[1]

         On December 25, 2016, staff at the Lexington Inn contacted the Billings Police Department to report “suspicious activity of three individuals.” (Doc. 34-1 at 3.) One of the individuals was a male who was asking a locksmith to unlock a vehicle in the hotel's parking lot. Id. Hotel staff was concerned the vehicle may have been stolen because the man gave the locksmith two different names, and the locksmith refused service. Id. The hotel employee told the 911 dispatcher that the man and a woman were in Room 119, and that she suspected the individuals were using drugs.[2] She stated the room was registered to Carla Saunders (“Saunders”). She also gave dispatch a description of the individuals.

         Billings Police Department Officers Foster, Schultz and Lehman responded to the call. The CAD Narrative[3] provided the officers with a physical description of the suspect individuals. The first suspect was identified as Saunders, a white female, mid-20's, slender with long dark brown hair, wearing patterned leggings and a jacket. A second suspect was identified as a white male, mid-30's, heavy, with dark gray hair and a beard, wearing a black jacket and jeans, and “carrying a backpack.” Officer Foster testified that after he arrived at the hotel, he determined the vehicle was not stolen and he did not see anyone in the parking lot. He then spoke with the front desk clerk. Officer Foster testified the clerk told him the individuals were staying in Room 119, and the room was registered to Saunders. Officer Foster determined Saunders had outstanding warrants and a history of drug involvement.

         The officers proceeded to Room 119. Saunders opened the door, and Officer Foster asked her to step into the hallway. Officer Foster advised her that she had warrants, but he was not going to arrest her because it was Christmas. He asked her if there was anything illegal in the room, and she responded “there might be.” Ultimately, Saunders consented to a search of the room.

         Saunders and another male were the only occupants of the room at that time. The male was identified as Bryan Stolzenberg (“Stolzenberg”). Officer Schultz testified that Stolzenberg stated that he was there hanging out with his friends. He did not indicate he was staying in the room. Officer Schultz also testified that Stolzenberg did not match the description of the male provided in the CAD Narratives who was carrying a backpack.

         The officers searched the room. Foster asked Saunders and Stolzenberg if any “stuff” in a closet in the room was theirs. They both indicated no. Officer Foster searched the closet and located a black backpack. Officer Foster testified that he then asked Saunders if the backpack belonged to her.[4] Officer Foster stated she denied ownership, and the audio recording of the interaction appears to confirm this. He testified that neither Saunders nor Stolzenberg indicated who the backpack belonged to.

         Officer Foster testified he considered the backpack abandoned or found property at that point because both of the occupants of the room said it was not theirs. Officer Foster further testified that he believed he had authority to search the backpack because Saunders consented to the search of the room.

         Officer Foster testified that he then searched the backpack and found marijuana, methamphetamine, and prescription bottles with the name Richard Miller. Officer Foster asked Saunders and Stolzenberg who Miller was, and they denied knowing him. Officer Foster seized the backpack, and left without arresting Saunders or Stolzenberg. Officer Foster advised Saunders that the hotel staff may ask her to leave, but that he didn't know what they would decide to do.

         The officers went back to the front desk and the hotel clerk pulled up video surveillance footage showing Miller with a black backpack.[5] Miller is seen walking down a hallway with a woman (presumably Saunders) at approximately 4:30 a.m. on December 25, 2016. Miller had a black backpack slung over his right arm. He used a key and accessed the room. Later, at approximately 9:11 a.m. and 9:27 a.m., Miller is seen in the lobby of the hotel with a black backpack on his right shoulder.

         The hotel clerk indicated she planned to ask the occupants in Room 119 to leave. The officers asked the hotel clerk to call again if the man in the surveillance video (Miller) returned to the hotel.

         After leaving the hotel, Officer Foster took the backpack to evidence for tagging. Officer Foster testified he conducted a safety sweep of the bag and found a large ...


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