United States District Court, D. Montana, Billings Division
FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE
TIMOTHY J. CAVAN, UNITED STATES MAGISTRATE JUDGE.
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.)
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.)
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
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.
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
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. She stated the room was registered to
Carla Saunders (“Saunders”). She also gave
dispatch a description of the individuals.
Police Department Officers Foster, Schultz and Lehman
responded to the call. The CAD Narrative 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.
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.
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.
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. 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.
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
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.
officers went back to the front desk and the hotel clerk
pulled up video surveillance footage showing Miller with a
black backpack. 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
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.
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 ...