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    STATE of Montana, Plaintiff and Appellee, v. Timothy Craig HAITHCOX, Defendant and Appellant.
    DA 17-0529
    Supreme Court of Montana.
    Submitted on Briefs: July 17, 2019 Decided: August 20, 2019
    For Appellant: Chad Wright, Appellate Defender, Moses Okeyo, Assistant Appellate Defender, Helena, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana, Leo J. Gallagher, Lewis and Clark County Attorney, Melissa Broch, Deputy County Attorney, Helena, Montana
   Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Timothy Craig Haithcox appeals from his jury conviction for aggravated assault, aggravated kidnapping, tampering with a witness, and misdemeanor assault entered in the First Judicial District Court, Lewis and Clark County. We affirm.

¶2 Haithcox raises the following issues for review:

1. Whether evidence involving Haithcox's prior conduct was admitted in violation of the Montana Rules of Evidence.
2. Whether the introduction of racial slurs exploited racial prejudice, resulting in prosecutorial misconduct.
3. Whether the investigators' extraction of the entire contents of Haithcox's cellphone exceeded the scope of the search warrant.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In early 2016, Haithcox introduced himself, under the pseudonym Timothy Smith, to Arleen Hibbard on the dating website Plenty of Fish. At the time, Hibbard lived in East Helena, Montana, and Haithcox was living in Michigan. Their relationship intensified quickly and Haithcox expressed his desire to visit Hibbard in East Helena. Haithcox was complimentary of Hibbard, told her he loved her, and that he wanted to marry her. Haithcox told Hibbard he had worked for Georgia Pacific for twenty-eight years but that his company was relocating, and he would like to use his severance to move to East Helena. Haithcox asked Hibbard to buy him a train ticket from Michigan to Montana, expressing that he would pay her back when he received his severance. When Hibbard purchased the train ticket, he told her that his last name was Smith-Haithcox but that she should just use the name Haithcox for the ticket. Approximately one month after they met online, Hibbard picked Haithcox up in Shelby, Montana, brought him back to her home, and Haithcox began living with her.

¶4 While Hibbard worked, Haithcox would use her vehicle, explaining that he needed it in order to network and find employment. Shortly after he arrived, Haithcox told Hibbard he needed to return to Michigan to retrieve his pension and severance pay. When Haithcox assured Hibbard he would pay her back, she purchased him a plane ticket and gave him traveling money.

¶5 After Haithcox returned from Michigan, he allegedly started drinking more and became verbally aggressive towards Hibbard. His financial dependence on Hibbard also worsened. Hibbard paid for all household expenses and groceries, as well as Haithcox's phone bill and clothing. On one occasion, when Hibbard received a larger than average phone bill, she discovered that Haithcox had been communicating with a woman in Nova Scotia and numerous other women in Montana. When Hibbard confronted Haithcox about the calls, he explained that he was only networking. Another time, Haithcox told Hibbard that he was going to work an event in Lincoln, Montana, with the wife of a local casino owner. After the woman picked Haithcox up, Hibbard discovered that the woman was not the casino owner's wife. Haithcox did not return that night as promised and when Hibbard confronted him about it the next day, he was dismissive and coarse with her.

¶6 On April 7, 2016, Haithcox told Hibbard he was going to the grocery store and would be right back. Despite an alleged agreement between Haithcox and Hibbard that he would no longer drive her car while intoxicated, he drove to a nearby bar. Haithcox called Hibbard from the bar, called her names, and when he wouldn't stop, Hibbard hung up. Hibbard testified this was a reoccurring pattern in their relationship. Haithcox called back, asking for Hibbard's help because some "white boys" were threatening to beat him up. Hibbard walked to the bar, picked Haithcox up, and the two returned home. When they got home, Hibbard recorded a particularly volatile exchange between the two during which Haithcox got "in [Hibbard's] face" and called her vulgar names. In the recording, Haithcox calls Hibbard, who is of Caucasian and Native American heritage, a "police bitch," "white bitch from hell," "gump," and a "grimy ass Indian," among other names. Throughout the recording, Haithcox also yells, "[y]ou're nothing" at Hibbard approximately thirty-five times. At trial, Hibbard testified, "[h]e called me a nigger all the time, a fucking white bitch, a raggedy-ass ho bag bitch, a pink bitch, a cop police bitch, gump."

¶7 After the fight, Haithcox apologized to Hibbard and repeatedly told her he loved her and wanted to be with her. On April 11, 2016, while Hibbard was at work, they exchanged text messages and agreed that while they had issues, they loved one another and wanted to be together. Haithcox asked her to bring cash home for him, which she did. When she came home from work, Haithcox had prepared dinner for them and, according to Hibbard, "he was very attentive, very loving, huggy, kissy, supper was ready. [It was] [a]n idyllic situation." Haithcox left around 6:30 p.m. to meet someone but told Hibbard he would not be gone long. However, around 7:00 p.m., Haithcox called Hibbard from a bar, explaining he had lost the money she gave him and needed money to pay his tab. Hibbard brought him money, Haithcox told her loved her and would be home soon, and she returned home. When Haithcox did not return, Hibbard sent a text asking when he would be home. Haithcox called her from the bar, called her vulgar names, and she hung up.

¶8 Hibbard testified that around 9:30 p.m., Haithcox called again, this time asking for directions home. She responded that she would find directions online and call him back. While Hibbard was rebooting her modem to get her internet working, Haithcox arrived at the house. According to Hibbard, when he saw her rebooting the modem, he believed she was calling the police and became angry. Haithcox hit Hibbard on the side of her head, knocking her glasses off. He then followed Hibbard to her bedroom "yelling and raging." According to Hibbard's testimony, Haithcox grabbed her right ankle and began "pulling ... twisting, yanking, and jerking on it," aware that she recently had her right knee replaced. Hibbard testified that she begged him to stop but he pulled her onto the floor and kicked her so hard in between her legs that she lost control of her bladder. According to Hibbard, Haithcox threatened to kill her and bash her skull in. She then went into the bathroom and locked the door. When Haithcox realized Hibbard had her phone with her, he kicked the door in and threatened to pour bleach over her. Haithcox allegedly kicked Hibbard, causing her to fall between the toilet and the bathtub. She testified that each time she tried to get up, he would kick or shove her into the shower, and she would fall and hit her head on the bathtub. He proceeded to bash her head into the wall "over and over and over," hit her head off of the medicine cabinet, urinated on her face, and strangled her unconscious at least four times. The assault continued for several hours, with Haithcox threatening to kill Hibbard with a knife and various other objects.

¶9 Around 2:00 a.m., Haithcox made Hibbard go to bed with him. Hibbard testified that she planned to lie there only until Haithcox fell asleep, but because she had previously taken a sleeping pill, she fell asleep. According to Hibbard, she awoke around 6:00 a.m. and took pictures of her injuries and the damage done to her home. She hoped that if he saw the pictures, "maybe he would just straighten up and not be that way, stop drinking." Despite the assault, Hibbard still wished to repair the relationship.

¶10 Fearing that the gash on her head needed medical attention, Hibbard decided to go to the hospital. Hibbard went to her vehicle and, as she waited for the car to warm up, she texted Haithcox's brother, Brian, about the assault. Approximately fifteen minutes later, Haithcox came out of the house and got into the vehicle with Hibbard.

Haithcox told Hibbard he loved her, and that he wanted to take care of her and nurse her back to health. Haithcox eventually convinced her to come back into the house, but she quickly changed her mind and returned to the car. Haithcox got back into the vehicle with her and begged her not to go to the hospital. Haithcox allegedly told Hibbard that she needed to cover the marks on her neck and, if she did go to the hospital, to say she was injured at a bar. A neighbor witnessed Hibbard and Haithcox sitting in Hibbard's vehicle for several hours. The neighbor testified that throughout the day she saw Haithcox banging on the car door trying to get inside the car; Haithcox and Hibbard arguing inside of the car; and Hibbard laying her head on Haithcox's shoulder crying. Eventually, around 4:00 p.m., Hibbard went to the hospital. The hospital contacted law enforcement and two detectives arrived at the hospital to interview Hibbard.

¶11 When Hibbard left for the hospital, Haithcox called Millie Follet, a woman he met on Plenty of Fish, and asked her for a ride to a friend's house. The next day, Haithcox called Lisa Hampa, whom he had also met on Plenty of Fish, and asked Hampa if he could come to Missoula and live with her. Hampa agreed and drove from Missoula, Montana, to Helena to pick him up. Haithcox allegedly told both Follet and Hampa that he needed a ride because he had lost his longtime job with ExxonMobil and the company had taken away his company vehicle and housing. On April 14, 2016, law enforcement arrested Haithcox at Hampa's home in Missoula.

¶12 Haithcox was eventually transported back to Helena and, on March 17, 2017, a jury convicted him of aggravated assault, aggravated kidnapping, tampering with a witness, and misdemeanor assault. Haithcox appeals.

DISCUSSION

¶13 1. Whether evidence involving Haithcox's prior conduct was admitted in violation of the Montana Rules of Evidence.

Standard of Review

¶14 This Court reviews a district court's ruling regarding the admission of other crimes, wrongs, or acts for an abuse of discretion. State v. Crider , 2014 MT 139, ¶ 14, 375 Mont. 187, 328 P.3d 612. To the extent that the trial court's ruling is based on an interpretation of a rule of evidence or a statute, however, this Court's review is de novo. State v. Lotter , 2013 MT 336, ¶ 13, 372 Mont. 445, 313 P.3d 148.

¶15 Before trial, Haithcox filed a motion in limine seeking to exclude certain evidence concerning his relationships with other women, evidence showing he used a false name and repeatedly lied about his past employment, evidence of his consumption of alcohol, and evidence regarding the financial aspect of his and Hibbard's relationship. He also asserted that the introduction of explicit details of his and Hibbard's arguments, specifically the offensive names he called her, were unnecessary and unfairly prejudicial. Haithcox objected to the evidence on the ground that it was impermissible character evidence in violation of M.R. Evid. 402, 403, and 404(b). The District Court disagreed, reasoning that the evidence fell primarily under the purview of the transaction rule, and even if Rule 404(b) did apply, the risk of unfair prejudice did not substantially outweigh the evidence's probative value.

¶16 On appeal, Haithcox reasserts that evidence introduced by the prosecution concerning his prior conduct was unfairly prejudicial, violated M. R. Evid. 404(b) and 403, and was improperly admitted under the transaction rule. The Montana Rules of Evidence provide that evidence of a person's previous crimes, wrongs, or acts are "not admissible to prove the character of a person in order to show action in conformity therewith." M. R. Evid. 404(b). Evidence of prior behavior may, however, be admissible for other purposes "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." M. R. Evid. 404(b). This Court has previously explained that "the use of prior bad acts evidence to prove the commission of the crime at issue (or 'actus reus') does not necessarily run afoul of 404(b). Rather, the rule prohibits a theory of admissibility: Using propensity evidence to draw 'the inference from bad act to bad person to guilty person.' " Crider , ¶ 24 (citation omitted). In conjunction with Rule 404(b), Rule 403 sets forth a fact-specific balancing test that allows for the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." M. R. Evid. 403. Further, "[e]ven if evidence is potentially unfairly prejudicial, the Rule 403 balancing test favors admission-the risk of unfair prejudice must substantially outweigh the evidence's probative value." State v. Madplume , 2017 MT 40, ¶ 33, 386 Mont. 368, 390 P.3d 142.

¶17 The transaction rule, on the other hand, is a statutory provision distinct from Rule 404(b) and sets forth an exception to the 404(b) bar on prior conduct. The text of the transaction rule reads: "Where the declaration, act, or omission forms part of a transaction which is itself the fact in dispute or evidence of that fact, such declaration, act, or omission is evidence as part of the transaction." Section 26-1-103, MCA. In practice, the rule recognizes the "legitimacy of admitting properly limited evidence that is 'intrinsic to' or 'inextricably intertwined with' a charged crime" in order to provide "a comprehensive and complete picture of the commission of a crime." State v. Guill , 2010 MT 69, ¶¶ 28, 36, 355 Mont. 490, 228 P.3d 1152 (citations omitted). Transaction evidence is admissible because "it is theoretically difficult to subdivide a course of conduct into discrete criminal acts and 'other' conduct and ... it is difficult for a witness to testify coherently to an event if the witness is only permitted to reference the minutely defined elements of the crime." Guill , ¶ 27. While the transaction rule is separate from Rule 404(b), this Court has previously explained that the transaction rule may not be used to admit propensity evidence that would otherwise be excluded by Rule 404(b). Guill , ¶ 26 ; State v. Berosik, 2009 MT 260, ¶ 46, 352 Mont. 16, 214 P.3d 776. Further, evidence admissible under the transaction rule is similarly subject to fact-specific balancing under Rule 403. Guill , ¶ 26.

¶18 The evidence objected to was properly admitted under the transaction rule and the risk of unfair prejudice did not substantially outweigh its probative value. Similar to this Court's analysis in Guill , we conclude that the transaction at issue "is both temporally and factually broad," and therefore encompasses specific aspects of Haithcox's behavior dating back to the beginning of the relationship. Guill , ¶ 30. Evidence concerning Haithcox's contemporaneous relationships with other women, evidence showing he used a false name and repeatedly lied about his past employment, evidence of his consumption of alcohol, and evidence regarding the financial aspect of his and Hibbard's relationship were important to establish the source of tension building up to the assault. Without this information, the jury may have had difficulty comprehending Haithcox's motive behind the near deadly assault. Consistent with the foundation of the transaction rule, the prior conduct Haithcox finds objectionable is "inextricably intertwined" with the charged assault. Guill , ¶ 30.

¶19 Furthermore, the prosecution used evidence of Haithcox's prior conduct not to establish his propensity for assault, but to provide necessary context and clarify for jurors the reasoning behind Hibbard's otherwise perplexing behavior. At trial, the defense focused on undermining Hibbard's credibility by emphasizing the fact that she claimed to have been brutally assaulted, yet she spent approximately thirty minutes the next morning taking pictures, fifteen minutes warming up her car, and didn't immediately go to the police station, which was within walking distance from her home. The District Court correctly determined that the facts Haithcox wished to exclude from evidence were inextricably intertwined with the assault because it shed light on both the atmosphere of abuse and manipulation that had developed, and Hibbard's resulting behavior. "Abuse within intimate relationships often follows a pattern known as the cycle of violence, 'which consists of a tension building phase, followed by acute battering of the victim, and finally by a contrite phase where the batterer's use of promises and gifts increases the battered woman's hope that violence has occurred for the last time.' " Hernandez v. Ashcroft , 345 F.3d 824, 836 (9th Cir. 2003) (citation omitted). At trial, Detective William Pandis testified that a similar pattern had emerged in Haithcox and Hibbard's relationship. The prosecution introduced the evidence at issue to demonstrate a pattern in the relationship which left Hibbard simultaneously fearful and hopeful that Haithcox would change, which explained why Hibbard would not have immediately contacted the police. The evidence was used to illustrate the complexity of Hibbard's behavior and, in turn, maintain her credibility. Without candid insight into the nature of Haithcox and Hibbard's relationship, including Haithcox's verbal abuse and financial manipulation, the jury would have received an incomplete, and potentially misleading, narrative.

¶20 Regarding Haithcox's obscene insults specifically, although recounting the expletives verbatim before the jury had the potential to be prejudicial, they were relevant to establish motive and the risk of unfair prejudice did not substantially outweigh the evidence's probative value. Haithcox's verbal abuse had become a strain on the relationship and demonstrated his hostility towards Hibbard. The state of their relationship, and Haithcox's history of using derogatory language to demean Hibbard, exhibited his motive for the April 11, 2016 assault. Testimony concerning Haithcox's lies to Follet and Hampa following the assault were also admissible. Haithcox's efforts to quickly leave Hibbard's home and Helena and his use of lies to enlist the help of others demonstrated consciousness of guilt and reinforced Hibbard's allegations.

¶21 Finally, "[a] limiting instruction generally cures any unfair prejudice." State v. Blaz , 2017 MT 164, ¶ 20, 388 Mont. 105, 398 P.3d 247 (quoting State v. Hantz , 2013 MT 311, ¶ 44, 372 Mont. 281, 311 P.3d 800 ). At trial, the jurors were specifically instructed that evidence of Haithcox's prior conduct was not admitted in order to prove his character or to establish that he acted in conformity with his prior actions. In light of the above, the introduction of evidence concerning Haithcox's prior conduct did not amount to an abuse of discretion. The court correctly applied the transaction rule and fulfilled its gatekeeping function under Rule 403 through weighing the evidence before authorizing the jury to consider it.

¶22 2. Whether the introduction of racial slurs exploited racial prejudice, resulting in prosecutorial misconduct.

Standard of Review

¶23 This Court generally does not address issues of prosecutorial misconduct pertaining to a prosecutor's statements not objected to at trial. State v. Longfellow , 2008 MT 343, ¶ 24, 346 Mont. 286, 194 P.3d 694. This Court may, however, invoke plain error review and consider an unpreserved claim alleging prosecutorial misconduct in situations implicating a defendant's fundamental constitutional right and when failure to review the alleged error may result in a manifest miscarriage of justice, leaving unsettled the question of the fundamental fairness of the proceedings, or compromise the integrity of the judicial process. State v. Aker , 2013 MT 253, ¶ 21, 371 Mont. 491, 310 P.3d 506. The decision to invoke plain error review is a discretionary one, to be invoked "sparingly, on a case-by-case basis, according to narrow circumstances, and by considering the totality of the circumstances." Aker , ¶ 21 ; State v. Williams , 2015 MT 247, ¶ 16, 380 Mont. 445, 358 P.3d 127.

¶24 Both the Sixth Amendment to United States Constitution, and Article II, Section 24, of the Montana Constitution, guarantee criminal defendants "the right to a fair trial by a jury." State v. Hayden , 2008 MT 274, ¶ 27, 345 Mont. 252, 190 P.3d 1091. "A prosecutor's misconduct may be grounds for reversing a conviction and granting a new trial if the conduct deprives the defendant of a fair and impartial trial." State v. McDonald , 2013 MT 97, ¶ 10, 369 Mont. 483, 299 P.3d 799 (quoting Hayden , ¶ 27 ). However, this Court will not presume prejudice from the alleged prosecutorial misconduct. Rather, the "defendant must show that the argument violated his substantial rights." McDonald , ¶ 10 (quoting State v. Makarchuk , 2009 MT 82, ¶ 24, 349 Mont. 507, 204 P.3d 1213 ). Furthermore, "it is not enough that the prosecutors' remarks were undesirable or even universally condemned." Darden v. Wainwright , 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (citation omitted). Rather, the relevant question is whether the comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process."

Darden , 477 U.S. at 181, 106 S. Ct. at 2471 (quoting Donnelly v. DeChristoforo , 416 U.S. 637, 643, 94 S. Ct. 1868, 1871, 40 L.Ed.2d 431 (1974) ).

¶25 Although Haithcox failed to properly preserve this issue for appeal, he requests that this Court invoke plain error review and assess whether the prosecutor exploited racial prejudice, resulting in prosecutorial misconduct. Specifically, Haithcox maintains that the prosecutor unnecessarily repeated and emphasized racial slurs he used against Hibbard and slurs his brother used against him, in addition to evoking racial stereotypes to inflame the jury. Despite Haithcox's failure to preserve this issue on appeal, the severity of the allegations warrants plain error review.

¶26 As discussed above, the racial slurs Haithcox used against Hibbard were relevant and admissible under the transaction rule to provide necessary context for jurors. The focus of the testimony was the demeaning nature of the statements, not race. In reviewing the trial transcript, this Court does not find that the prosecution relied on the slurs to incite racial bias, but only to demonstrate the mounting tension leading up to the assault and establish motive.

¶27 The morning after the assault, Hibbard informed Haithcox's brother, Brian, of what took place. At trial, the State admitted text messages that Brian sent to Haithcox in which Brian stated, "Dumb ass nigga," "wish you would have listened," and "nigga plus jail plus Montana plus no money equals not good options." Haithcox's responses to Brian including, "yea[h], I fucked up. [Y]up, I fucking did, B.," were also admitted. Haithcox argues that, in presenting this evidence, the prosecution inappropriately repeated the slurs before the jury, and "dangerously allud[ed] that a black defendant was a 'dumbass nigga.' " We conclude that the proceedings do not support Haithcox's contention. The record demonstrates that the prosecution introduced Brian's statements because Haithcox's response to those statements constituted an admission of guilt. Thus, Brian's initial statements provided important context for Haithcox's incriminating responses. Further, the prosecutor's restatement of the exchange between Brian and Haithcox during closing argument was warranted considering Haithcox's admissions were significant indicators of his guilt.

¶28 Haithcox also takes issue with the prosecution's handling of race during voir dire. Specifically, Haithcox contends: "the prosecutor highlighted that Haithcox was a black man, Hibbard was a Caucasian woman who had a 'little bit of Indian blood in her' and they were shacking up outside of wedlock." We find this characterization of the prosecutor's remarks unsubstantiated and misleading. When questioning potential jurors, the prosecutor explained that Haithcox was African American and Hibbard was Caucasian and Native American. However, the transcript also reveals that the prosecutor pursued the sensitive topics of race and premarital cohabitation with the goal to remove biased jurors. It is apparent that the prosecution's objective was to eliminate racially prejudiced jurors considering the victim also belonged to a racial minority. After discussing Haithcox and Hibbard's race, the prosecutor asked: "[I]s there anybody that thinks that because somebody may be all or partly a minority, that they're not entitled to a full and fair trial during this week?" After examination of the record, it is evident that the prosecution's discussion of race did not invoke racial prejudice.

¶29 Finally, Haithcox asserts that the prosecution's comparison between the assault and a "slasher movie" in closing argument was improper. We find this contention similarly unpersuasive. In closing, the prosecution analogized Hibbard's behavior after the assault with the behavior of a character in a horror movie-i.e. someone who makes irrational decisions in the face of danger. The analogy in no way commented on Haithcox's race, nor did it infringe upon his right to a fair and impartial trial.

¶30 While this Court takes very seriously Haithcox's allegations that the prosecution invoked racial prejudice in order to inflame the jury and secure a conviction, we conclude that the record does not support Haithcox's claims of prosecutorial misconduct.

¶31 3. Whether the investigators' extraction of the entire contents of Haithcox's cellphone exceeded the scope of the search warrant.

Standard of Review

¶32 This Court reviews a district court's grant or denial of a motion to suppress to determine whether the court's findings are clearly erroneous and whether those findings were applied correctly as a matter of law. State v. Gill , 2012 MT 36, ¶ 10, 364 Mont. 182, 272 P.3d 60.

¶33 After interviewing Hibbard at the hospital, detectives learned she purchased a phone for Haithcox, paid the monthly bill, and had access to the account associated with the phone. At the deputies' request, Hibbard accessed the records, including Haithcox's recent calls and contact information, from the phone. From that information, detectives learned that Hampa had picked Haithcox up in Helena. Detective Dan O'Malley testified that, out of concern for Hampa's safety, he had Hampa's cellphone provider locate her phone to identify her location. On April 14, 2016, AT&T alerted detectives that Hampa's phone was in the Missoula area. Detective O'Malley enlisted the help of Missoula law enforcement to obtain Hampa's address, where Haithcox was eventually arrested.

¶34 Following Haithcox's arrest, law enforcement obtained a warrant to search his cellphone. The warrant specifically authorized law enforcement to search and seize "text messages, call detail, email, and internet searches" from Haithcox's telephone. Officers downloaded the entire contents of the cellphone. Before trial, Haithcox filed a motion to suppress the evidence seized from his cellphone, arguing that the warrant did not describe the information to be seized with sufficient particularity and the evidence seized exceeded the scope of the warrant. The District Court denied the motion on both grounds.

¶35 The Fourth Amendment to the United States Constitution, and Article II, Section 11, of the Montana Constitution, similarly protect the right of the people to be secure in their persons, papers, homes, and effects from unreasonable searches and seizures. U.S. Const. amend. IV ; Mont. Const. art. II, § 11. The unique language of the Montana Constitution, however, affords Montanans broader protection of their right to privacy than does the Fourth Amendment to the United States Constitution. State v. McLees , 2000 MT 6, ¶ 23, 298 Mont. 15, 994 P.2d 683. Both the United States and Montana Constitutions require that a search warrant particularly describe the items it authorizes to be seized. State v. Chilinski , 2014 MT 206, ¶ 22, 376 Mont. 122, 330 P.3d 1169. A warranted search is unreasonable if it exceeds in scope or intensity the terms of the warrant. Terry v. Ohio , 392 U.S. 1, 18, 88 S. Ct. 1868, 1878, 20 L.Ed.2d 889 (1968). While suppression of evidence is the proper remedy when a seizure exceeds the scope of the warrant, "[t]he exclusionary rule does not require the suppression of otherwise legal seizures merely because they were part of the same search in which an illegal seizure occurred." United States v. Daniels , 549 F.2d 665, 668 (9th Cir. 1977).

¶36 Haithcox reasserts on appeal that some of the evidence seized from his phone exceeded the scope of the warrant, therefore all evidence seized from his phone should have been suppressed. However, at trial, no evidence was admitted or relied upon by law enforcement that fell outside the scope of the items explicitly specified on the search warrant. Considering only information seized beyond the scope of the warrant was subject to suppression, and no such evidence was admitted, the District Court did not err in denying Haithcox's motion to suppress.

¶37 Haithcox further maintains that his constitutional rights were violated when law enforcement received his phone activity from Hibbard without first obtaining a warrant. However, Haithcox did not raise this issue before the District Court. This Court has long held that "[a]ppellants may not change their theories on appeal from those that they presented in district court." State v. Kuneff , 1998 MT 287, ¶ 26, 291 Mont. 474, 970 P.2d 556. For this reason, we decline to address this argument.

¶38 While Haithcox additionally argues that the cumulative error doctrine necessitates reversal, reversal of a conviction pursuant to that doctrine is proper only if accumulated errors prejudiced the defendant's right to a fair trial. State v. Cunningham , 2018 MT 56, ¶ 32, 390 Mont. 408, 414 P.3d 289. Haithcox failed to identify any errors, therefore application of the doctrine is inappropriate.

CONCLUSION

¶39 For the foregoing reasons, the denial of Haithcox's motion to suppress and his subsequent conviction are affirmed.

We Concur:

DIRK M. SANDEFUR, J.

BETH BAKER, J.

JIM RICE, J.

INGRID GUSTAFSON, J.


text:
    ALLIED WASTE SERVICES OF NORTH AMERICA, LLC and Montana Waste Systems, Inc. d/b/a North Valley Refuse, Petitioners and Appellees, v. Montana DEPARTMENT OF PUBLIC SERVICE REGULATION, Montana Public Service Commission, Respondent and Appellant, and Big Foot Dumpsters & Containers, LLC, Intervenor and Appellant.
    DA 18-0679
    Supreme Court of Montana.
    Submitted on Briefs: June 26, 2019 Decided: August 20, 2019
    For Appellants: Justin Kraske, Zachary Rogala, Jeremiah Langston, Montana Public Service Commission, Helena, Montana, Francesca diStefano, Bryan, diStefano & Mattingley, PLLP, Kalispell, Montana (for Big Foot Dumpsters & Containers, LLC)
    For Appellees: Gary M. Zadick, James Robert Zadick, Ugrin Alexander Zadick, P.C., Great Falls, Montana (for Montana Waste Systems, Inc., d/b/a North Valley Refuse and Evergreen Disposal, Inc.), Jacqueline Papez, Doney Crowley P.C., Helena, Montana (for Allied Waste Services of North America LLC)
    For Amici NorthWestern Energy: Ann B. Hill, Attorney at Law, Helena, Montana
   Justice Jim Rice delivered the Opinion of the Court.

¶1 The Montana Department of Public Service Regulation ("PSC" or "Commission") and Bigfoot Dumpsters & Containers, LLC ("Big Foot"; collectively, "Appellants") appeal a writ of prohibition and a writ of mandate issued by the First Judicial District Court, Lewis and Clark County. The District Court's order enjoined PSC from propounding discovery in the dispute between Big Foot and Petitioners Allied Waste Services of North America, LLC, d/b/a Republic Services of Montana, and Montana Waste Systems, Inc., d/b/a North Valley Refuse (collectively, "Petitioners"). The District Court's writ of mandate removed the PSC from the matter and ordered appointment of an independent hearing examiner to preside over the case. We affirm in part and reverse in part, restating the issues as follows:

1. Did the District Court err by issuing a writ of prohibition barring the PSC from propounding discovery?
2. Did the District Court err by issuing a writ of mandate requiring the PSC to appoint an independent hearing examiner?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 The PSC regulates garbage haulers in Montana by requiring haulers to obtain a Class D motor carrier certificate of public convenience or necessity before engaging in the hauling business. Section 69-12-314, MCA. The process of obtaining a Class D carrier certificate begins by filing an application with the PSC and, subject to certain requirements, any authorized Class D carrier may protest the application of a garbage hauler seeking license to operate. Section 69-12-321, MCA ; Admin. R. M. 38.3.405.

¶3 On January 8, 2018, Big Foot applied for a Class D certificate of public convenience and necessity, seeking to operate a garbage hauling business in Flathead County, Montana. On February 12, 2018, Petitioners, who are Class D carriers authorized to provide garbage hauling services within Flathead County, filed protests to Big Foot's application. The PSC issued a Procedural Order on March 6, 2018, providing a schedule for the proceeding, including dates and procedures for discovery requests, which the PSC refers to as "data requests." The PSC's order also appointed staff attorneys Jennifer Hill-Hart and Jeremiah Langston to "act as examiners for the limited purpose of disposing of discovery disputes (including objections to data requests and motions to compel) and motions for protective order in this proceeding." The order provided instructions for how the parties should serve and respond to discovery requests, but did not describe the PSC as one of the parties or indicate the PSC would submit discovery requests.

¶4 On March 19, 2018, Hill-Hart served discovery requests upon Petitioners on behalf of the PSC, with instructions to "provide responses on or before April 9, 2018." Later that day, Big Foot served discovery requests upon Petitioners, who allege that the requests, "in part, mirrored" those served by the PSC. Concerned by an appearance of improper coordination or ex parte contact between Big Foot and the PSC, Petitioners filed a petition with the District Court seeking, among other things, immediate review of PSC's conduct, a temporary restraining order (TRO) and preliminary injunction, a writ of prohibition, and a writ of mandate. Petitioners argued that by "propounding discovery, and inserting itself in an advocacy role," the PSC has improperly undertaken "a dual advocate-judge role," and was thus violating Petitioners' due process rights. Petitioners asked for prompt relief from the District Court, on the ground that answering the PSC's discovery requests would irreparably harm Petitioners and unfairly strengthen Big Foot's case, and requested "relief barring the PSC from imposing deadlines or procedures" pursuant to the Procedural Order.

¶5 PSC and Big Foot opposed the petition, arguing a TRO and preliminary injunction were unwarranted because "adequate relief would be provided by judicial review of final agency action," and that the PSC is not "bound to a purely adjudicative role" and was simply carrying out its investigative duties by issuing discovery. The PSC "reject[ed] the false dichotomy presented by Petitioners that the Commission must occupy either a purely adjudicatory or advocacy role," arguing instead that "the Commission occupies a role in between in which it regulates in the public interest." After responding to the request for a TRO, the PSC "reserve[d] the opportunity to respond more fully to any other claims in this Petition at the appropriate time and as set by this Court." On May 4, 2018, the District Court granted a TRO staying all proceedings before the PSC and, having found that Petitioners established a prima facie case for a preliminary injunction, scheduled a show cause hearing for May 16, 2018. The PSC withdrew its discovery to Petitioners on May 14, 2018, but the case proceeded to hearing.

¶6 Investigation revealed that Big Foot's attorney, Francesca diStefano, and PSC staff attorney Hill-Hart engaged in email correspondence before and after the initial discovery requests were issued on March 19. By affidavit, diStefano explained that on or about February 20, she contacted Hill-Hart to obtain public information held by the PSC that had not yet been made available online. She sought and received copies of discovery requests propounded in other Class D carrier disputes and used them "as a framework" to prepare Big Foot's discovery requests in this case. Although the parties agree that diStefano did not copy the PSC's discovery requests, Petitioners were not included in the email communication between diStefano and Hill-Hart, rendering it ex parte .

¶7 The District Court found the diStefano/Hill-Hart emails "referred specifically to the conducting of discovery in this matter" and that "Hill-Hart provided Big Foot's counsel with suggested data requests to serve on Petitioners." As Petitioners point out, Hill-Hart provided discovery examples to diStefano that Hill-Hart deemed relevant to Big Foot's case. In response to diStefano's February 20, 2018 inquiry about whether Big Foot's case had been assigned a docket number, Hill-Hart replied, "Here is the Big Foot docket (T-18.2.PCN), as well as some data request and response examples from another garbage case before the Commission." On March 15, 2018, independent of an inquiry on the record as here constituted, Hill-Hart emailed diStefano a copy of a recent district court decision, which Hill-Hart described as "pertaining to garbage regulation in Montana, affirming the Commission's Order 7477." Hill-Hart's email of April 12, 2018, read in part: "Per your request I have included copies of documents related to discovery requests, objections, and Commission decisions on that type of matter," and included several documents from a related case for which she provided an explanation concerning their relevance to the pending case.

¶8 At the hearing on May 16, counsel for one of the Petitioners summed up the proceeding, stating, "[a]t this time what we're asking your Honor to do is issue a preliminary injunction during the pendency of this matter and we can submit briefings to your Honor on the ultimate issue of whether a hearing examiner is appropriate." She continued, "I think that under Supreme Court precedent we're not supposed to reach the ultimate issues today." Further discussion was had about submission of additional briefing on the merits of appointing an independent hearing examiner. The District Court later asked, "[w]hat do you folks think I have today? I just decide the preliminary injunction?," to which the parties concurred.

¶9 The District Court issued an Order on Petition for Preliminary Injunction and Writ of Mandate on July 9. The court found Hill-Hart "provid[ed] guidance to Big Foot as to how to succeed in a discovery dispute between the parties." Noting Hill-Hart had been designated by the PSC to resolve discovery disputes and to issue the PSC's discovery requests in this matter, the District Court determined the ex parte communication with diStefano was "inappropriate and violated both the Administrative Procedures Act and the Commission's rule barring ex parte communication." The District Court made two primary rulings. First, it ruled that "the Commission was without authority, either by administrative rule or its own procedural rule, to issue data requests" and had "intertwin[ed]" its roles as "adjudicator and advocate." Consequently, the court issued a writ of prohibition to bar the PSC from propounding discovery requests and relieve Petitioners from responding to the discovery.

¶10 Second, despite the apparent understanding that additional briefing would be submitted on the issue, the District Court granted Petitioners' request for issuance of a writ of mandate removing the matter from the PSC's purview and assigning it to an independent hearing examiner. The District Court found that Hill-Hart's issuance of discovery requests and ex parte communication with Big Foot's counsel had imputed bias on the part of the entire Commission and violated Petitioners' due process rights, concluding, "the procedural deficiencies discussed herein have so tainted the Commission's review of Big Foot's application and Petitioners' protests that the remedy should be the appointment of an independent hearing examiner."

¶11 The PSC and Big Foot appeal. Additional facts are discussed herein.

STANDARD OF REVIEW

¶12 A district court's decision to issue or deny a writ of prohibition is a conclusion of law regarding the application of a statute, which we review for correctness. Wright v. Mahoney , 2003 MT 141, ¶ 5, 316 Mont. 173, 71 P.3d 1195. Likewise, a district court's decision on whether to grant a writ of mandamus is also a legal conclusion that we review for correctness. Boehm v. Park Cnty. , 2018 MT 165, ¶ 7, 392 Mont. 72, 421 P.3d 789.

DISCUSSION

¶13 1. Did the District Court err by issuing a writ of prohibition barring the PSC from propounding discovery?

¶14 The PSC does not challenge the writ of prohibition on appeal, instead conceding that, "[g]iven the procedural morass of the underlying administrative contested case proceeding, the Commission agrees with the District Court that a 'procedural reset' was necessary in addressing Big Foot's Application." The PSC has withdrawn its discovery requests. Big Foot's appeal challenges the writ of prohibition, but only as part of its broader challenge to the District Court's issuance of a preliminary injunction, which Big Foot argues was improperly issued upon speculative harm, inadequate findings, and without requiring exhaustion of administrative remedies before the PSC.

¶15 The parties' arguments require clarification of the procedural posture of the case. The Petitioners made multiple requests for relief to the District Court, including for preliminary injunction, supervisory control, writ of prohibition, writ of mandate, and immediate judicial review under MAPA. While the District Court's July 9 Order was entitled "Order on Petition for Preliminary Injunction and Writ of Mandate," the order did not enter findings and conclusions relative to the standards for issuance of a preliminary injunction. Instead, the "Remedy" section of the order addressed only the writs of prohibition and mandate, and, consistently, the concluding "Order" section included two numbered paragraphs, the first prohibiting the Commission from propounding discovery, and the second requiring the Commission to appoint an independent hearings examiner. Accordingly, we undertake review of this matter only as an appeal of a writ of prohibition and a writ of mandate, and apply the standards of review appropriate thereto, rather than appeal of a preliminary injunction.

¶16 That narrows Big Foot's appellate challenge to the writ of prohibition to an administrative exhaustion argument. Big Foot emphasizes the general rule that a party must "exhaust[ ] all administrative remedies available within the agency" before seeking judicial review under MAPA, citing § 2-4-702(1), MCA, and the cases applying that provision, such as Gilpin v. State , 249 Mont. 37, 812 P.2d 1265 (1991). However, while Petitioners sought immediate judicial review under § 2-4-701, MCA, the statutory exception to the administrative exhaustion requirement, the case proceeded before the District Court, and ultimately concluded, as a writ matter that challenged the jurisdiction of the PSC to proceed on Big Foot's application, not as immediate judicial review of an agency action or ruling. As such, exhaustion of administrative remedies or, alternatively, the need for Petitioners to satisfy the exception to exhaustion to obtain immediate judicial review under § 2-4-701, MCA, including carrying the "heavy burden to demonstrate that judicial review of the final agency decision would not provide an adequate remedy," Wilson v. Dep't of Pub. Serv. Regulation , 260 Mont. 167, 172, 858 P.2d 368, 371 (1993), was not at issue here. Rather, the issue was whether the standards had been satisfied for issuance of a writ of prohibition and, as discussed below, a writ of mandate.

¶17 Because there are no remaining appropriate arguments challenging the writ of prohibition on appeal, we affirm it summarily. A writ of prohibition "arrests the proceedings of any tribunal, corporation, board, or person exercising judicial functions when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person." Section 27-27-101, MCA. It may be issued when "there is not a plain, speedy, and adequate remedy in the ordinary course of law." Section 27-27-102, MCA. Here, ex parte communication between a PSC lawyer appointed as examiner for discovery disputes and counsel for Big Foot occurred in violation of § 2-4-613, MCA, and the PSC lawyer then propounded discovery to the Petitioners. Thus, Petitioners sought the writ to prohibit the PSC from submitting discovery, for which there was no adequate appellate remedy. The PSC withdrew its discovery requests prior to the hearing on the writ and does not challenge the writ's issuance on appeal. While the PSC asserts, as an aside, that it has investigatory authority to propound discovery, that issue has not been raised or briefed on appeal, and we do not address it. It is enough that the Procedural Order entered in the case did not provide that the PSC would be propounding its own discovery, and the PSC's counsel, a designated hearing officer, entertained unlawful ex parte communications with Big Foot's counsel. We have held that the PSC is "not exempt from the constitutional restraints of due process requirements" and must ensure that all litigants receive "a fair and open hearing" as guaranteed by the Fourteenth Amendment. Mont. Power Co. v. Pub. Serv. Comm'n , 206 Mont. 359, 368-69, 671 P.2d 604, 609-10 (1983). The writ of prohibition was properly issued to ensure that.

¶18 2. Did the District Court err by issuing a writ of mandate requiring the PSC to appoint an independent hearing examiner?

¶19 A writ of mandate, or mandamus, is the "counterpart" to the writ of prohibition. Awareness Grp. v. Bd. of Trs. of Sch. Dist. No. 4 , 243 Mont. 469, 475, 795 P.2d 447, 451 (1990) (citing § 27-27-101, MCA ). While the purpose of a writ of prohibition is to arrest a proceeding, the purpose of a writ of mandate is to compel performance of a duty or entitlement. Sections 27-27-101 and 27-26-102, MCA. "A writ of mandate is an extraordinary remedy available in only rare cases." Boehm , ¶ 9 (internal quotations and citation omitted). Section 27-26-102, MCA, sets forth two requirements, which this Court has summarized into two essential questions that must be answered when determining whether an action can be compelled by a writ of mandate: 1) "whether the act sought to be compelled is one which the law specially enjoins as a duty resulting from an office, trust or station" and 2) "whether there is a plain, speedy and adequate remedy in the ordinary course of law." State ex rel. Thomas v. Dist. Court , 224 Mont. 441, 443, 731 P.2d 324, 325 (1986) (internal quotations omitted); § 27-26-102, MCA. As we explained in Thomas , "A negative answer to the first question bars the issuance of the writ, and, irrespective of the answer to that question, an affirmative answer to the second, divests the court of authority to issue it." Thomas , 224 Mont. at 443, 731 P.2d at 325 (internal quotation omitted).

¶20 We simply conclude that this case did not require the "extraordinary remedy," Boehm , ¶ 9 (internal quotations omitted), of a writ of mandate disqualifying the entire PSC and ordering appointment of an independent hearing examiner to hear the case. The actions that caused Petitioners to seek relief from the District Court were taken by the PSC's counsel, Hill-Hart. The discovery propounded to Petitioners by Hill-Hart has been withdrawn and further prohibited by the writ of prohibition. Additionally, Hill-Hart no longer works for the Commission and thus, any alleged bias on her part has been removed from the case. The PSC is a unique agency, governed by five independently elected commissioners. There is no evidence in the record suggesting that any of the Commissioners themselves engaged in the improper ex parte communications or were involved in any other inappropriate actions toward the Petitioners. We find the authority cited for removal of the entire Commission, based upon the independent actions of a staff member, to be thin, and the remedy under these circumstances to be overbroad. Without any further demonstration of bias or inappropriate conduct by the Commissioners, the PSC should be permitted to continue to exercise its authority in the case.

¶21 PSC and Big Foot have argued at length that the writ of mandate was issued in error because the District Court reached the issue prematurely, prior to briefing on the merits of the request, and failed to follow the applicable administrative procedures provided by MAPA, particularly § 2-4-611(4), MCA, governing claims of "personal bias, lack of independence, [and] disqualification by law" against a "hearing examiner or agency member." However, having reversed the writ of mandate on other grounds, we do not reach the Appellants' procedural and administrative exhaustion arguments. Given the Petitioners' allegations of impropriety, we conclude they properly sought a writ of prohibition from the District Court.

¶22 The writ of prohibition is affirmed, the writ of mandate is reversed, and this matter is remanded to the PSC for further proceedings.

We concur:

MIKE McGRATH, C.J.

BETH BAKER, J.

LAURIE McKINNON, J.

INGRID GUSTAFSON, J.

      PSC's order explained, "The exchange of information among parties pursuant to data requests is the primary method of discovery in proceedings before the [C]ommission." Admin. R. M. 38.2.3301(2).

      The District Court later found that the PSC also served discovery requests upon Big Foot.

      The District Court noted that the diStefano/Hill-Hart emails referenced telephone communications between the two attorneys, but the record here contains no information about the content of these calls.

      Section 2-4-613, MCA, provides that "the person or persons who are charged with the duty of rendering a decision or to make findings of fact and conclusions of law in a contested case, after issuance of notice of hearing, may not communicate with any party or a party's representative in connection with any issue of fact or law in the case except upon notice and opportunity for all parties to participate."

      The PSC cites Admin. R. M. 38.2.601, which provides "[t]he commission staff shall have the full rights and responsibilities of parties under these rules."

      Northwestern Energy has filed an amicus curiae brief, urging the Court to determine the constitutionality of PSC's discovery procedures. Many of these arguments were not made below and we decline to reach them here.


text:
    STATE of Montana, Plaintiff and Appellee, v. Jody Jake POPE, Defendant and Appellant.
    DA 18-0047
    Supreme Court of Montana.
    Submitted on Briefs: July 10, 2019 Decided: August 20, 2019
    For Appellant: Chad Wright, Appellate Defender, Gregory Hood, Assistant Appellate Defender, Helena, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Damon Martin, Assistant Attorney General, Helena, Montana, William E. Fulbright, Ravalli County Attorney, Thorin Geist, Deputy County Attorney, Hamilton, Montana
   Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 In 2017, we decided State v. Pope , 2017 MT 12, 386 Mont. 194, 387 P.3d 870 ( Pope I ), which, in relevant part, remanded the matter to the Twenty-First Judicial District Court, Ravalli County, to determine the appropriate sanction for discovery abuse by the State. Jody Jake Pope (Pope) appeals following the District Court's July 6, 2017, Sanction Order on Remand, which issued financial sanctions against the State and denied his request for a new trial. We affirm.

¶2 We restate the issue on appeal as follows:

Did the District Court abuse its discretion by issuing only a financial sanction against the State for discovery abuse?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 The factual background regarding the underlying offense in this matter was set forth in our decision in Pope I and need not be completely repeated here. In 2013, Pope was charged with attempted deliberate homicide, assault with a weapon, and driving while license suspended or revoked after an incident in which the State alleged that Pope intentionally hit his then-girlfriend, Susan Myers (Myers), with his van on Highway 93 in Ravalli County. In January 2014, Myers wrote to the District Court and stated that Pope did not hit her with his van. Myers similarly told defense counsel that the incident was overblown and that nothing happened during interviews prior to trial.

¶4 During jury selection on the first day of trial in June 2014, the State's investigator, James Hulme (Hulme), conducted a recorded interview with Myers. During this interview, Myers told Hulme that Pope had indeed driven at her and struck her with his van. Myers stated that she had injured her ribs in the collision and that she believed she was knocked unconscious by the impact. After court proceedings ended that day, Deputy County Attorney Thorin Geist (Geist) viewed the video of Hulme's interview with Myers. Geist determined that the State would not disclose the video to Pope, and informed Pope's counsel, Jennifer Streano (Streano), that Hulme had met with Myers, but did not inform her that the interview was recorded. Streano was not able to re-interview Myers herself.

¶5 Trial resumed the next day, and Geist informed Streano shortly before Myers was set to testify that Hulme's interview with Myers the previous day was in fact recorded. Streano informed the District Court, requested the State produce the video, and asked for time to review the video before Myers testified. The State refused to produce the video. The District Court ruled that the State did not have to produce the video, and Myers ultimately testified consistently with her statements to Hulme the previous day and contradicted her other pre-trial statements regarding the incident. Myers testified that Pope "drove the van" at her and "tried to hit" her with the van. Myers further testified that her previous inconsistent statements were made to "try to help," and to her belief that Pope's counsel had "tricked" her.

¶6 After the State rested its case, Streano again argued that the State should have provided the video of Myers's interview and that she was unable to properly impeach Myers's credibility because Myers's testimony was so different than that given in her other pre-trial interviews. After the settling of jury instructions, Streano asked to view the video overnight to determine issues she should raise with the District Court to preserve for appeal. The State again refused to produce the video and the District Court sealed the video and placed it in the record.

¶7 Before trial resumed the next day, Pope moved for a mistrial as a sanction for the State's failure to provide the video of Myers's interview with Hulme. Pope asserted that he would have presented his case differently had he known that Myers was going to change her testimony from her earlier statements about the incident. The District Court denied Pope's motion for a mistrial and found that the State had no obligation to disclose the video. The jury found Pope not guilty of attempted deliberate homicide, but guilty of assault with a weapon and driving while license suspended or revoked. The District Court sentenced Pope on the assault with a weapon charge to the Department of Corrections (DOC) for 20 years, with ten years suspended, and on the driving while license suspended or revoked charge to the Ravalli County Detention Center for six months, to run consecutively to the DOC sentence.

¶8 Pope appealed to this Court, arguing that the State wrongfully withheld the video of Myers's interview with Hulme. Pope asked this Court to remand to the District Court so that the District Court could determine the appropriate sanction for the State's discovery abuse. On appeal, the State conceded that it wrongfully withheld the video, but argued that Pope suffered no prejudice and therefore the matter need not be remanded to the District Court for the imposition of a possible sanction. This Court, in Pope I , remanded to the District Court to determine the appropriate sanction.

¶9 On remand, Pope asked for either a new trial or "any other sanction the [District] Court feels is appropriate for the States' [sic] discovery abuse." The State, after conceding on appeal that it wrongfully withheld the video from Pope-and this Court's decision in Pope I clearly noting the State's duty to disclose the video-bizarrely insisted that it "was under no obligation to provide the video-recording - or even to inform the Defendant that it existed - until it was requested on the second day of trial." Pope, in his reply brief, again asked for a sanction granting a new trial, "or other sanctions[.]" The District Court held a hearing on Pope's motion for sanctions. After the hearing, the District Court issued a written order finding that Pope was not prejudiced by the State's discovery abuse in this case and therefore a new trial was not warranted, as well as issuing a financial sanction against the State. Pope appeals.

STANDARD OF REVIEW

¶10 We review a district court's decision regarding matters of discovery for an abuse of discretion. Pope I , ¶ 16 (citing State v. Golder , 2000 MT 239, ¶¶ 7, 11, 301 Mont. 368, 9 P.3d 635 ). A district court abuses its discretion if it acts arbitrarily, unreasonably, or without employing conscientious judgment, resulting in substantial injustice.

State v. Hart , 2009 MT 268, ¶ 9, 352 Mont. 92, 214 P.3d 1273.

DISCUSSION

¶11 Did the District Court abuse its discretion by issuing only a financial sanction for the State's discovery abuse?

¶12 In our decision in Pope I , at Pope's request, we remanded to the District Court to determine the appropriate sanction for the State's discovery abuse. Montana's criminal discovery statutes empower district courts to issue sanctions commensurate with a party's discovery abuses:

If at any time during the course of the proceeding it is brought to the attention of the court that a party has failed to comply with any of the provisions of this part or any order issued pursuant to this part, the court may impose any sanction that it finds just under the circumstances, including but not limited to:
(1) ordering disclosure of the information not previously disclosed;
(2) granting a continuance;
(3) holding a witness, party, or counsel in contempt for an intentional violation;
(4) precluding a party from calling a witness, offering evidence, or raising a defense not disclosed; or
(5) declaring a mistrial when necessary to prevent a miscarriage of justice.

Section 46-15-329, MCA. A district court is not limited to only the enumerated sanctions listed above, as the statute expressly provides that the court may impose any sanction it finds just under the circumstances. Pope I , ¶ 26 (citing § 46-15-329, MCA ).

¶13 The circumstances of the present appeal are quite unique. At Pope's trial, he asked for a mistrial based on the State's refusal to provide the recorded interview of Myers. The State argued that it had no duty to disclose the interview because it did not contain exculpatory material. The District Court agreed with the State and denied Pope's motion for a mistrial. Pope then appealed to this Court-and asked for us to remand the matter to the District Court to determine the appropriate sanction for the State's discovery abuse. On appeal, the State conceded that it wrongfully withheld the recorded interview but argued that Pope was not prejudiced. We remanded to the District Court to determine the appropriate sanction because "[i]mposition of sanctions is a matter best left to the sound discretion of the district court. Such discretion allows the court to consider the reason why disclosure was not made, whether noncompliance was willful, the amount of prejudice to the opposing party, and any other relevant circumstances." Pope I , ¶ 25 (quoting State v. Waters , 228 Mont. 490, 495, 743 P.2d 617, 621 (1987) ).

¶14 The District Court, in its written order, determined that a sanction was warranted "in light of the State's willful, irrational, unreasonable, and still unacknowledged discovery abuse." It did not grant Pope a new trial, however, because of a "lack of prejudice to Pope." While an analysis focusing solely on whether the State's error was ultimately harmless is not necessarily appropriate when determining how the State should be sanctioned for discovery abuses, the District Court did not abuse its discretion when it denied Pope a new trial due to a lack of prejudice and issued a financial sanction against the State under the unique circumstances of this case.

¶15 The District Court's written order addressed each of the factors relevant to a sanctions decision-reasons the disclosure was not made, willfulness, amount of prejudice, and other relevant circumstances-before determining that a mistrial was not warranted and a financial sanction against the State was appropriate. The State conceded that its noncompliance with its discovery obligations was willful in this case, but argued that its noncompliance was due to a reasonable, but mistaken understanding of the law. The District Court found that the State's reason for not disclosing the evidence-misunderstanding the law-was "based upon an unreasonable error rooted in extreme carelessness, not an intent to subvert the discovery process." We have previously held that the State was clearly required by §§ 46-15-322 and -327, MCA, to produce the recorded interview to Pope. Pope I , ¶¶ 21-24. The District Court therefore correctly found that the State's behavior in not disclosing the recorded interview was both wrong and willful. Even though the State's actions were blatantly wrong, the District Court ultimately declined to grant a mistrial because it found that Pope was not prejudiced.

¶16 In addressing whether Pope was prejudiced by the State's discovery abuse, the District Court first addressed the long personal history between Pope and Myers. The pair were involved in a relationship at the time of the incident and for several months after. Pope was ordered not to have any contact with Myers after his arrest, but repeatedly violated that no-contact order. Pope's violations included calling Myers from jail and, after posting bond in December 2013, living with Myers. While Pope was living with her, Myers made her statements to counsel that Pope did not strike her with his van. Myers also wrote a letter to the District Court stating Pope did not hit her with his van during this time. In March 2014, Pope was again arrested for violating conditions of his bond. At a March 13, 2014, hearing, Pope did not contest that he violated the conditions that prohibited him from contacting Myers and drinking. Pope then remained in jail until trial. At some point prior to trial, Pope and Myers broke up.

¶17 Pope argued to the District Court-and again argues here-that his ability to effectively cross-examine Myers and cast doubt on her truthfulness was so damaged by the State withholding the recorded interview that a new trial is warranted regardless of the strength of other evidence of his guilt. The District Court addressed Pope's contentions regarding cross-examination and Myers's character for truthfulness in its written order. The District Court found that, while Pope's attorney may have changed the tone of her cross-examination of Myers, Pope was not prejudiced in his cross-examination because Pope had sufficient evidence through other means that Myers was going to change her story and claim that Pope did strike her with his van. With regard to Pope's claim that he was not able to challenge Myers's character for truthfulness, the District Court again found no prejudice, because Myers herself had both changed her story before and admitted to her untruthfulness while testifying. Finally, the jury acquitted Pope of the most serious charge in this case-attempted deliberate homicide-which supports the District Court's finding that Pope was not prejudiced at trial by the State wrongfully withholding the recorded interview of Myers.

¶18 The District Court did not make its decision in this case "arbitrarily, unreasonably, or without employing conscientious judgment, resulting in substantial injustice." Hart , ¶ 9. While a new trial as a sanction for the State's discovery abuse certainly would have been within the District Court's discretion in this case, its ultimate decision to deny a new trial due to a lack of prejudice and issue financial sanctions against the State was also within its discretion. We do not substitute our decision for that of the District Court. The District Court issued a well-reasoned 24-page opinion addressing its chosen sanction, and we cannot find that its ultimate decision was arbitrary or unreasonable. Under the applicable standard of review, therefore, the District Court's decision was not an abuse of discretion. Pope I , ¶ 16.

¶19 On appeal in Pope I , Pope asked for this Court to remand to the District Court to determine the appropriate sanction. We did just that. On remand, Pope asked for a new trial "or any other sanction." The District Court did not grant Pope a new trial, but did issue "[an]other sanction," just as Pope had alternatively requested. On appeal here, Pope asks this Court to find that the District Court abused its discretion by not granting him a new trial and instead granting him an alternative sanction-as he requested at the District Court. We cannot find an abuse of discretion in this case, because the District Court both determined that Pope was not prejudiced by the State's discovery abuse and issued "[an]other sanction," as requested by Pope.

CONCLUSION

¶20 The District Court did not abuse its discretion with its chosen sanction for the State's discovery abuse.

¶21 Affirmed.

We concur:

DIRK M. SANDEFUR, J.

BETH BAKER, J.

JAMES JEREMIAH SHEA, J.

JIM RICE, J.


text:
    U.S. BANK NATIONAL ASSOCIATION, a Foreign Corporation, Appellant, v. TBES INVESTMENTS, LLC, Respondent.
    No. 75816
    Supreme Court of Nevada.
    FILED SEPTEMBER 03, 2019
    Dismissed.


text:
    Akira BOWENS, Appellant, v. CORNERSTONE CROSSING APARTMENTS, Respondent.
    No. 79283
    Supreme Court of Nevada.
    FILED AUGUST 30, 2019
    Dismissed.


text:
    Steven Christopher GAZLAY, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, Family Court IN AND FOR the COUNTY OF CLARK; and the Honorable Cheryl B. Moss, District Judge, Respondents.
    No. 79256
    Supreme Court of Nevada.
    FILED AUGUST 30, 2019
    Dismissed.


text:
    Justin D. PORTER, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK, Respondent, and The State of Nevada, Real Party in Interest.
    No. 79367
    Supreme Court of Nevada.
    FILED AUGUST 29, 2019
    DENIED.


text:
    LAS VEGAS RENTAL AND REPAIR LLC, Series 56, a Nevada Limited Liability Company, Appellant, v. BANK OF AMERICA, N.A., Respondent.
    No. 76717
    Supreme Court of Nevada.
    FILED AUGUST 30, 2019
    Dismissed.


text:
    U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF8 MASTER PARTICIPATION TRUST, Appellant, v. SANDSTONE COMMUNITY RECREATION, INC., a Nevada Non-Profit Corporation, Respondent.
    No. 78779
    Supreme Court of Nevada.
    FILED AUGUST 30, 2019
    Dismissed.


text:
    John Harold MCCULLOUGH, Appellant, v. Isidro BACA, Warden; and the State of Nevada, Respondents.
    No. 79278
    Supreme Court of Nevada.
    FILED AUGUST 30, 2019
    DISMISSED.


text:
    Donald Ray SANDERSON, Appellant, v. The STATE of Nevada, Respondent.
    No. 79302
    Supreme Court of Nevada.
    FILED AUGUST 30, 2019
    DISMISSED.


text:
    WYNN LAS VEGAS, LLC, a Nevada Limited Liability Company, Appellant, v. Ronald NICOLLI, an Individual; and F.P. Holdings, L.P., Respondents.
    No. 78510
    Supreme Court of Nevada.
    FILED SEPTEMBER 4, 2019
    Dismissed.


text:
    Billy CEPERO, Appellant, v. The STATE of Nevada, Respondent.
    No. 79312
    Supreme Court of Nevada.
    FILED AUGUST 30, 2019
    DISMISSED.


text:
    Anthony Dewane BAILEY, Appellant, v. The STATE of Nevada, Respondent.
    No. 79322
    Supreme Court of Nevada.
    FILED AUGUST 30, 2019
    DISMISSED.


text:
    Giovanni Kohler KURTZE, Appellant, v. The STATE of Nevada, Respondent.
    No. 79348
    Supreme Court of Nevada.
    FILED AUGUST 30, 2019
    DISMISSED.


text:
    Keith Arlando BURWELL, Appellant, v. The STATE of Nevada, Respondent.
    No. 78990
    Supreme Court of Nevada.
    FILED AUGUST 30, 2019
    DISMISSED.


text:
    Leonard Morgan HAIRSTON, Appellant, v. The STATE of Nevada, Respondent.
    No. 79299
    Supreme Court of Nevada.
    FILED SEPTEMBER 4, 2019
    DISMISSED.


text:
    Johnnie C. CAMPBELL, Appellant, v. Trina Renee OFFUTT-OSBORNE, Respondent.
    No. 79435
    Supreme Court of Nevada.
    FILED SEPTEMBER 4, 2019
    DISMISSED.


text:
    In the MATTER OF Resignation of Virgil BUCCHIANERI, Bar No. 1715.
    No. 79097
    Supreme Court of Nevada.
    FILED SEPTEMBER 04, 2019
    Approved.


text:
    Rahim MUHAMMAD, Appellant, v. The STATE of Nevada, Respondent.
    No. 79223
    Supreme Court of Nevada.
    FILED SEPTEMBER 04, 2019
    DISMISSED.


text:
    Sammie NUNN, Appellant, v. The STATE of Nevada, Respondent.
    No. 79219
    Supreme Court of Nevada.
    FILED SEPTEMBER 04, 2019
    DISMISSED.


text:
    Anthony Jacob MONAHAN, Appellant, v. Amanda Kaitlyn HOGAN, f/k/a Amanda Kaitlyn King, Respondent.
    No. 78489
    Supreme Court of Nevada.
    FILED SEPTEMBER 4, 2019
    Dismissed.


text:
    Giovanni Kohler KURTZE, Appellant, v. The STATE of Nevada, Respondent.
    Giovanni Kohler Kurtze, Appellant, v. The State of Nevada, Respondent.
    Giovanni Kohler Kurtze, Appellant, v. The State of Nevada, Respondent.
    Giovanni Kohler Kurtze, Appellant, v. The State of Nevada, Respondent.
    No. 79257 No. 79259 No. 79260 No. 79261
    Supreme Court of Nevada.
    FILED SEPTEMBER 4, 2019
    DISMISSED.


text:
    In the MATTER OF the Resignation of Attorney Ellen M. TIPPING, Bar No. 9209.
    No. 79105
    Supreme Court of Nevada.
    FILED SEPTEMBER 04, 2019
    Granted.


text:
    Christopher DELORGE, Appellant, v. Lisa M. DELORGE, Respondent
    No. 79277
    Supreme Court of Nevada.
    FILED SEPTEMBER 04, 2019
    DISMISSED.


text:
    Kelvin Lee WILLIAMS, Appellant, v. The STATE of Nevada, Respondent.
    No. 79390
    Supreme Court of Nevada.
    FILED AUGUST 30, 2019
    DISMISSED.


text:
    Leonard Morgan HAIRSTON, Appellant, v. The STATE of Nevada, Respondent.
    No. 79415
    Supreme Court of Nevada.
    FILED SEPTEMBER 06, 2019
    DISMISSED.


text:
    Freddy MARTINEZ, a/k/a Fredys A. Martinez, Appellant, v. The STATE of Nevada, Respondent.
    No. 79405
    Supreme Court of Nevada.
    FILED SEPTEMBER 06, 2019
    DISMISSED.


text:
    Ramon Agustin MORGA, Appellant, v. The STATE of Nevada, Respondent.
    Ramon Agustin Morga, Appellant, v. The State of Nevada, Respondent.
    No. 76887 No. 79474
    Supreme Court of Nevada.
    FILED SEPTEMBER 05, 2019
    Administratively close. Transfer.


text:
    CRISWELL RADOVAN, LLC, a Nevada Limited Liability Company; CR Cal Neva, LLC, a Nevada Limited Liability Company; Robert Radovan; William Criswell; and Powell Coleman and Arnold LLP, Appellants, v. George Stuart YOUNT, Individually and in His Capacity as Owner of George Stuart Yount Ira, Respondent.
    No. 77987
    Supreme Court of Nevada.
    FILED SEPTEMBER 04, 2019
    DISMISSED.


text:
    Dan BARCHENGER, Appellant, v. The STATE of Nevada, Respondent.
    No. 79369
    Supreme Court of Nevada.
    FILED SEPTEMBER 06, 2019
    DISMISSED.


text:
    John Francis ARPINO, Appellant, v. Isidro BACA, Warden; and James Dzurenda, NDOC Director Respondents.
    No. 79347
    Supreme Court of Nevada.
    FILED SEPTEMBER 06, 2019
    DISMISSED.


text:
    Bakari Maurice CURRY, Appellant, v. The STATE of Nevada, Respondent.
    No. 79329
    Supreme Court of Nevada.
    FILED SEPTEMBER 06, 2019
    DISMISSED.


text:
    LN MANAGEMENT LLC SERIES 1909 BADGER CANYON, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, a Government-Sponsored Entity, Respondent.
    No. 77533
    Supreme Court of Nevada.
    FILED SEPTEMBER 6, 2019
    DISMISSED.


text:
    Hamest Vivian ABKARIAN, Appellant, v. DITECH FINANCIAL LLC, f/k/a Green Tree Servicing LLC, Respondent.
    No. 77157
    Supreme Court of Nevada.
    FILED SEPTEMBER 06, 2019
    Dismissed.


author: ROWLAND, JUDGE:

text:
    The STATE of Oklahoma, Appellant, v. William Lee COUSAN, Appellee.
    Case No. S-2018-978
    Court of Criminal Appeals of Oklahoma.
    FILED August 15, 2019
   ROWLAND, JUDGE:

¶1 The State of Oklahoma charged Appellee William Lee Cousan by Amended Information in the District Court of Comanche County, Case No. CF-2016-635, with Illegal Drug Trafficking (Count 1), in violation of 63 O.S.Supp.2015, § 2-415, Unlawful Possession of Drug Paraphernalia (Count 2) (misdemeanor), in violation of 63 O.S.2011, § 2-405, and Unlawful Possession of a Firearm by a Convicted Felon (Count 3), in violation of 21 O.S.Supp.2014, § 1283. The State filed a Supplemental Information alleging two prior drug-related felony convictions for sentence enhancement of the alleged felonies. The magistrate bound Cousan over at preliminary hearing and thereafter he filed a motion to suppress all evidence seized from his person by the arresting officers as well as all statements he made to police. He claimed that the police exceeded the scope of the search warrant by detaining him blocks away from the premises authorized to be searched and by searching his person during an investigative stop. The detention and search, he maintained, were neither incident to arrest nor incident to the search warrant issued for his motel room. Cousan argued that, under the totality of the circumstances, his detention and the resulting search of his person were unreasonable and unlawful. The Honorable Irma J. Newburn, District Judge, sustained Cousan's motion to suppress evidence taken from his person in open court, and the State announced its intent to appeal. Judge Newburn filed a written order one week later, sustaining the motion to suppress and dismissing the charge of Illegal Drug Trafficking. The State of Oklahoma filed the instant appeal of the district court's order, seeking review of two issues:

(1) whether the district court erred in ruling the search of Cousan was unreasonable; and (2) whether the district court erred in ruling the search of Cousan was not a lawful search incident to a valid search warrant.

¶2 We reverse the district court's order for the reasons discussed below and remand this matter for further proceedings.

BACKGROUND

¶3 The Lawton Police Department received an anonymous tip, on October 26, 2016, that Cousan was selling crack cocaine out of a motel room at a local Motel 6. Detective Kimberly Morton set up a surveillance of the room and observed numerous people coming and going from Cousan's motel room. Lawton police officers stopped three people after they left the motel room, garnering more information about the activities going on inside the room. Det. Morton obtained a search warrant for the motel room based on all of this information. She notified the other special operations officers, including the officers who had stayed behind to continue surveillance of the motel room, of the issuance of the search warrant and went about making preparations for executing it.

¶4 Lieutenant John Mull was one of the officers watching the motel room while Det. Morton secured the search warrant. Before Det. Morton returned to the motel with the search team, Lt. Mull observed Cousan exit the motel room and get into the passenger side of a brown pickup. There was no indication that Cousan was aware of the officers' presence or had any knowledge of the impending search. Lt. Mull watched the pickup leave the motel from his unmarked police car and enlisted the aid of Sergeant Christopher Adamson, who was driving a marked patrol car, to stop the pickup. Lt. Mull followed Sgt. Adamson and observed him stop the pickup approximately eight blocks from the motel. It is unclear how many officers, who were also watching the motel, participated in the traffic stop in addition to Lt. Mull and Sgt. Adamson. According to Lt. Mull, Cousan exited the pickup, acting suspiciously as well as aggressively towards the officers, threatening to come after them. Cousan attempted to reach back into the truck and they feared he might have a gun based on information they had already obtained. Sgt. Adamson moved Cousan away from the pickup and searched his person. Sgt. Adamson pulled a Mentos container out of Cousan's pocket, containing "very large chunks of crack cocaine" weighing in excess of ten grams, and placed him under arrest. Meanwhile, Det. Morton and her team executed the search warrant on the empty motel room, finding a backpack containing a digital scale, the room receipt in Cousan's name, a gun, and a Mentos container with crack cocaine residue inside it. The district court found Cousan was unlawfully detained and searched prior to the execution of the search warrant on his motel room.

DISCUSSION

¶5 The State challenges the district court's order granting Cousan's suppression motion. We exercise jurisdiction under 22 O.S.2011, § 1053(5) because the State's ability to prosecute Cousan on the felony drug trafficking charge is substantially impaired absent the suppressed evidence, making review appropriate. See State v. Strawn, 2018 OK CR 2, ¶ 18, 419 P.3d 249, 253. In reviewing a district court's ruling on a motion to suppress evidence based on an allegation the search or seizure was illegal, we credit the district court's findings of fact unless they are clearly erroneous. State v. Alba, 2015 OK CR 2, ¶ 4, 341 P.3d 91, 92. "However, we review de novo the magistrate's legal conclusions drawn from those facts."

State v. Nelson , 2015 OK CR 10, ¶ 11, 356 P.3d 1113, 1117.

¶6 In Michigan v. Summers , 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), the Supreme Court held that officers executing a search warrant may detain the occupants of the premises while the warrant is served even without individualized reasonable suspicion or probable cause. The district court held that the search of Cousan's person could not be upheld as a search incident to the execution of a valid search warrant because the Summers rule only applies when the occupant is detained in the immediate vicinity of the premises to be searched. The State all but concedes this point on appeal and acknowledges the holding in Bailey v. United States, 568 U.S. 186, 202, 133 S.Ct. 1031, 1042-43, 185 L.Ed.2d 19 (2013) that a detention incident to the execution of a search warrant is spatially constrained and limited to the immediate vicinity of the premises to be searched.

¶7 We agree that Bailey controls here and thus the district court was correct in holding the detention and search of Cousan eight blocks from the motel could not be justified as incident to the execution of the search warrant. Because there was probable cause to arrest Cousan at the time of his detention, however, the search of his person was lawful as a search incident to arrest. Alternatively, even were probable cause not present, there was clearly reasonable suspicion to conduct an investigative detention while the warrant was executed, and thus his arrest and the search of his person fall within the inevitable discovery doctrine.

¶8 In Bailey , the Court noted that the "detention incident to search" is a categorical rule which allows the detention of persons without regard to individualized suspicion or probable cause to arrest.

In Summers , the Court defined an important category of cases in which detention is allowed without probable cause to arrest for a crime. It permitted officers executing a search warrant "to detain the occupants of the premises while a proper search is conducted." 452 U.S., at 705, 101 S.Ct. 2587. The rule in Summers extends farther than some earlier exceptions because it does not require law enforcement to have particular suspicion that an individual is involved in criminal activity or poses a specific danger to the officers. Muehler v. Mena , 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005). In Muehler , applying the rule in Summers , the Court stated: "An officer's authority to detain incident to a search is categorical; it does not depend on the 'quantum of proof justifying detention or the extent of the intrusion to be imposed by the seizure.' " 544 U.S., at 98, 125 S.Ct. 1465 (quoting Summers , supra , at 705, n. 19, 101 S.Ct. 2587 ).

Bailey, 568 U.S. at 193, 133 S.Ct. at 1037-38. Thus, Summers categorically allows detaining one leaving a premises where a search warrant is about to be served, regardless of probable cause or reasonable suspicion, and Bailey limits the reach of that rule to the immediate vicinity of the premises.

¶9 The Bailey Court, however, went on to note that "[i]f officers elect to defer the detention until the suspect or departing occupant leaves the immediate vicinity, the lawfulness of detention is controlled by other standards, including, of course, a brief stop for questioning based on reasonable suspicion under Terry or an arrest based on probable cause." Id. , 568 U.S. at 202, 133 S.Ct. at 1042. Indeed, upon remand the Second Circuit held that officers were justified in making an investigative stop of that suspect, independent of Bailey / Summers and its categorical rule. United States v. Bailey , 743 F.3d 322, 337 (2d Cir. 2014). Such is the situation here. The officers not only had reasonable suspicion to detain Cousan just prior to the execution of the search warrant, but also probable cause to arrest him. When Lt. Mull directed Sgt. Adamson to stop the pickup occupied by Cousan, he was aware of the information that Cousan was selling crack cocaine from his motel room. Lt. Mull had personally participated in the surveillance of Cousan's motel room that day and was aware of the considerable number of people coming and going, a circumstance often associated with drug dealing. He was aware that Det. Morton had obtained a search warrant for the motel room based on the information gathered from the stakeout, including that Cousan possibly had a gun. Furthermore, Lt. Mull was familiar with Cousan from past dealings and recognized him getting into the pickup.

¶10 Perhaps most importantly, Det. Morton's affidavit for the search warrant named a woman arrested as she departed Cousan's motel room, and who told police she bought the crack cocaine discovered in her pocket from Cousan. "A named perpetrator who makes a statement against his own penal interest and identifies his accomplice is sufficient to establish probable cause." Matthews v. State, 2002 OK CR 16, ¶ 20, 45 P.3d 907, 916. Even Judge Newburn's Order suppressing the evidence noted that officers had amassed "evidence showing probable cause that the defendant was engaged in illegal activity...." Therefore, this is not a situation where officers, preparing to execute a search warrant, followed and detained a person leaving the target premises whom they did not know or whose connection to the crimes was unknown. On the contrary, these officers saw the named target of their investigation leave his rented motel room shortly before the execution of a valid search warrant, and the totality of the information in their possession amounted to probable cause to arrest him for the drug offenses. United States v. Anchondo , 156 F.3d 1043, 1045-46 (10th Cir. 1998) (finding search of suspect was valid as incident to arrest, where probable cause existed, even though officer did not intend to arrest but was conducting a Terry frisk).

¶11 The fact that the officers involved were proceeding under the belief that the search warrant also authorized the search of Cousan's person is of no moment since there was probable cause to arrest him at the time of the search and detention. A police officer's "[s]ubjective intentions play no role in ordinary probable-cause Fourth Amendment analysis." Dufries v. State , 2006 OK CR 13, ¶ 9, 133 P.3d 887, 889, (quoting Whren v. United States , 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996) ). "If the police action could have been taken against an individual even absent the underlying intent or motivation, there is no conduct which ought to have been deterred and thus no reason to bring the Fourth Amendment exclusionary rule into play for purposes of deterrence." Johnson v. State, 2012 OK CR 5, ¶ 12, 272 P.3d 720, 726 (quoting 1 Wayne R. LaFave, Search and Seizure § 1.4(e) (4th ed. 2004)) (internal quotation marks omitted).

¶12 In the alternative, even if the totality of the circumstances known to the officers did not amount to probable cause to arrest him, there was certainly reasonable suspicion to detain him pending the execution of the warrant. See Terry v. Ohio, 392 U.S. 1, 21, 27, 88 S.Ct. 1868, 1880, 1883, 20 L.Ed.2d 889 (1968) ; Alba , 2015 OK CR 2, ¶ 5, 341 P.3d at 92. Even assuming the search of his person was unwarranted during this detention, in short order upon the execution of the search warrant and the finding of the drugs and gun in his motel room, Cousan would have then been arrested, searched incident to that arrest, and the evidence on his person would have inevitably been discovered. This was a point made in Bailey upon remand. "[W]e can conclude with a high level of confidence that, even without retention of Bailey's keys, police would have detained Bailey himself for the brief time it took to learn the results of the search of 103 Lake Drive; would have arrested Bailey upon discovery of drugs and a firearm in that premises; [and] would have searched him incident to that arrest...." Bailey , 743 F.3d at 339. See also Nix v. Williams , 467 U.S. 431, 444, 449-50, 104 S.Ct. 2501, 2509, 2512, 81 L.Ed.2d 377 (1984) (finding suspect's statement about location of victim's body was obtained in violation of his rights, but inevitable discovery doctrine applied where a search team had already been organized and was searching the same location as that identified by the suspect); Pennington v. State , 1995 OK CR 79, ¶ 42, 913 P.2d 1356, 1367 (holding even if suspect's statement identifying the location of a shotgun were suppressed, officers had probable cause to obtain a search warrant and would have inevitably discovered it).

¶13 The purpose of the exclusionary rule is to deter police misconduct. Its application should be reserved for instances "where its remedial objectives are thought most efficaciously served" ... that is, "where its deterrence benefits outweigh its 'substantial social costs.' " Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 2163, 165 L.Ed.2d 56 (2006) (internal citations omitted). Here, after receiving an anonymous tip of drug dealing at a local motel, officers corroborated the information sufficiently to develop probable cause that Cousan was selling cocaine from the motel room and to obtain a search warrant for the room. When Cousan left the motel room just prior to execution of the warrant, they had a marked police car effectuate a stop. Based in part upon their belief that the search warrant authorized searching him coupled with his aggressive behavior during the stop and information he might be armed, they took him into custody. All of these actions were reasonable, which is all the Fourth Amendment demands of police conduct.

¶14 Based upon the facts and circumstances known at the time of the stop, we find that the warrantless stop and detention of Cousan was reasonable, and that the search of his person was based upon probable cause to believe he was engaged in criminal activity. Exclusion of the drug evidence found in Cousan's pocket and statements made by him is not required.

DECISION

¶15 The ruling of the district court sustaining Cousan's Motion to Suppress is REVERSED and this case is REMANDED for further proceedings not inconsistent with this Opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision.

LEWIS, P.J.: Concur in Results

KUEHN, V.P.J.: Concur

LUMPKIN, J.: Concur

HUDSON, J.: Concur

LEWIS, PRESIDING JUDGE, CONCURRING IN RESULTS:

¶1 I concur in the result reached in this case. The resolution of this case rests on the officer's probable cause to arrest Cousan at the time of his detention making the search proper as a search incident to arrest. A review of the trial court's ruling reveals that the trial court erred in failing to find that the officers had probable cause to arrest Cousan for distribution of a controlled dangerous substance.

¶2 Any remaining language in the opinion is unnecessary to the resolution of this case. In fact, the record does not support a conclusion that the good faith exception might apply. The good faith exception only applies where the officers have an objectively reasonable belief that their conduct is lawful. See United States v. Leon , 468 U.S. 897, 920-21, 104 S.Ct. 3405, 3419, 82 L.Ed. 2d 677 (1984) ; State v. Thomas , 2014 OK CR 12, ¶ 11, 334 P.3d 941, 945. The clear language of the warrant belies any reasonable belief that the search warrant allowed a search of Cousan outside the curtilage of the motel room.

      Although the magistrate bound Cousan over on a charge of Unlawful Possession of a Firearm During the Commission of a Felony, the prosecution dropped that charge in the Amended Information.

      Det. Morton requested permission to search the motel room and Cousan, but the warrant was directed at the motel room only.

      There was no evidence any officer observed any traffic violation that might have provided probable cause for the traffic stop. When asked the purpose of the traffic stop, Lt. Mull stated, "[b]ecause it was named in the warrant. We were conducting the search warrant and he was the subject part of the search warrant."

      Under Section 1053(5), the State may appeal "[u]pon a pretrial order, decision, or judgment suppressing or excluding evidence where appellate review of the issue would be in the best interests of justice[.]"

      Although ruling that the stop of Bailey was justified by reasonable suspicion regardless of his distance from the search warrant location, the court went on to hold that handcuffing him exceeded the lawful bounds of the Terry detention. Thus physical evidence obtained prior to handcuffing him was admissible, but statements made by him after he was handcuffed were erroneously admitted. Nevertheless, the court found the error harmless. Bailey, 743 F.3d at 339.