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STATE OF MONTANA,

Plaintiff and Respondent.

v.

JANE CREANT,

Defendant and Appellant.

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FACTUAL AND PROCEDURAL BACKGROUND

Alfred B. Guthrie High School is a public high school of 1800 students in the Copper City School District, Forest County, Montana. Kent Borstal is the principal. In recent years, Alfred B. Guthrie High School has been experiencing an increase in illegal drug use. The school has been unable to control its drug problem by using a variety of methods. For example, an educational outreach program for students about the effects of illegal drug use appeared to have no impact. Most of the school's more recent drug problems reflect an increase in the number students being caught in the high school using or under the influence of drugs. In the past two school years, on three different occasions, faculty members observed students in the student parking lot using drugs. Principal Borstal suspended those students from school.

In April 1999, Borstal adopted a zero-tolerance policy on illegal drugs at the high school and announced this policy in a school-wide student assembly. The following Monday, Borstal asked the Copper City Police Department to help carry out the new policy by dispatching a K-9 Unit to the high school parking lot twice a week to sniff around student cars. The student lot is an unmarked, unpaved area behind the high school on school property. The high school faces a public highway. The Copper City Police Department K-9 Unit consists of two uniformed officers and Dakota, a highly trained drug dog, whose reliability in detecting illegal substances has been proven to surpass the police canine standards set by several national law enforcement organizations. The K-9 unit arrived the same day Borstal made his request and conducted the first search of the student lot, having Dakota systematically sniff around cars. Dakota failed to detect any drugs. At the end of classes, before letting school out for the day, Borstal made a public address announcement that he had asked the Copper City police to make random searches on school premises for drugs. Borstal did not mention the use of the drug dog, when the first search would take place, or the frequency of the searches. The following Wednesday, the police officers started Dakota systematically sniffing around the cars parked in the student lot. Borstal accompanied the officers and Dakota as he had during the their first visit on Monday. Shortly before the school lunch hour, Dakota "alerted" on the front passenger door of a 1990 Blue Volkswagen Jetta.

Jane Creant, an eighteen-year-old high school senior at Alfred B. Guthrie High School, had heard Principal Borstal's announcement at the student assembly and his P.A. announcement regarding police searches. She owned the 1990 Blue Volkswagen Jetta and drove it to and from school every day. Just as Dakota "alerted" on the car, the school lunch bell rang and the parking lot began to fill with students, among whom was Jane, who had exited the high school and was walking toward her car intending to go off-campus for lunch at a fast food restaurant. Jane approached the officers and informed them that she was the car's owner. The officers told her that Dakota had "alerted" her car. Borstal informed the officers that Jane had never before been suspected of using or being under the influence of drugs on or off school grounds. She was an honor student who had been admitted to a prestigious university in the Midwest where she planned to attend upon graduating from high school. The officers had Dakota sniff around Jane's hands and pockets, which alarmed and embarrassed her. Dakota did not detect any drugs on her person. The officers then asked Jane's permission to search the inside of her vehicle and she refused. Neither the officers nor Borstal could detect any odor coming from Jane's car. The officers took Dakota around the car again, and he "alerted" again on the front passenger door. One of the officer's commented, "Well, we don't need your permission anyway. We're on school grounds." The officers then opened the unlocked front passenger door and allowed Dakota to enter the car. Dakota found a misdemeanor quantity of marijuana (46 grams) in a bag under the front passenger seat. The police officers then entered the car and found a felony amount of methamphetamine (6 grams) contained in a small packet under the driver's seat.

The State charged Jane Creant with misdemeanor and felony possession in the Twenty- Sixth Judicial District Court, Forest County. Jane, through her attorney, moved to suppress the results of the search, arguing that the search invaded her rights to be free from unlawful searches and seizures and her right of privacy under the Montana constitution. She attacked the use of the drug dog to search around her car. The State argued that its justification for searching Creant's car was based on the school's zero-tolerance drug policy and the State's belief that it can "walk drug dogs around any public high school parking area in the state and have those dogs search the exterior of the motor vehicles, noting when they alert." The district court refused to suppress the drug evidence, finding that the seizure of the illegal drugs in Creant's car was legal. The court ruled that high school students have no reasonable expectation of privacy for their cars parked on high school property and that the dog-sniff was not a search requiring either a particularized suspicion of wrongdoing or probable cause. Creant claimed the drugs belonged to a drug-addicted friend whom Creant refused to identify. After a jury trial in the Twenty-Sixth Judicial District Court, Forest County, Jane Creant was found guilty, and the court gave Creant a two year deferred sentence, community service hours, and a $500 fine. Creant appeals the conviction based on the denial of her motion to suppress.

ISSUE:

Did the use of a drug-detecting canine by law enforcement officers to sniff the Jane Creant's car violate the defendants' constitutional rights under the Montana Constitution article II, section 10 or 11?

Sub-Issue 1: Whether Jane Creant had a legitimate expectation of privacy that society is willing to recognize as objectively reasonable, and

Sub-Issue 2: Whether the State's use of a drug-detecting canine was so personally invasive as to constitute a search requiring further justification, such as a warrant or other special circumstances.

CASES AND RELATED MATERIALS

Both Sub-Issues:

State v. Scheetz, 286 Mont. 41, 950 P.2d 722 (1997)

Art. II, § 10, Montana Constitution

Art. II, § 11, Montana Constitution

Mont. Code Ann. § 46-5-101 (searches and seizures; when authorized)

Mont. Code Ann. § 45-9-102 (criminal possession of dangerous drugs)

Mont. Code Ann. § 50-32-224(3)(c) (defining methamphetamine as a dangerous drug)

State v. Cass, 709 A.2d 350 (Pa. 1998)

In the Matter of John F. Dengg, 1999 Ohio App. LEXIS 851 (Ohio App. 1999)

O'Keefe v. State, 376 S.E.2d 406 (Ga. App. 1988)

State v. Pellicci, 580 A.2d 710 (N.H. 1990)

Note: While the latter four cases help determine both sub-issues, student attorneys may find that the cases have particular usefulness in separately determining each sub-issue as follows:

Sub-Issue 1:

State v. Cass, 709 A.2d 350 (Pa. 1998)

In the Matter of John F. Dengg, 1999 Ohio App. LEXIS 851 (Ohio App. 1999)

Sub-Issue 2:

O'Keefe v. State, 376 S.E.2d 406 (Ga. App. 1988)

State v. Pellicci, 580 A.2d 710 (N.H. 1990)

NOTES ON AUTHORITIES:

Student Defense Attorneys and Student State Attorneys should rely primarily on Scheetz because it is the Montana Supreme Court's latest state constitutional search-and-seizure/right-to-privacy analysis relating to the use of drug dogs. It is the only Montana case in the materials, and is controlling authority on this topic. As a general matter, a case decision from a non-Montana court, when applicable, may be used as persuasive authority, but is never "controlling." In looking to see how other states have dealt with the topics involved here, students should remain aware that each state's constitution differs and therefore the courts in each state analyze its privacy and search and seizure rights differently. While observing this caveat, student attorneys for the State or for Creant can use the "sister state" decisions in the case materials. Effective use of those decisions depends upon how well the attorney distinguishes the facts and principles from those decisions and applies them for or against a position taken in the instant case.

In Scheetz, the Court decided that the canine sniff did not constitute a search in light of Montana's right to privacy. However, the Court adopted a rationale that appears to have equal application to vehicles and other items of property that a person exposes to the public outside the home. Student defense attorneys should distinguish Scheetz and assert that the distinctions are persuasive enough that the rationale of Scheetz fully supports reversing the district court's ruling. Student state attorneys should assert that the similarities between Scheetz and the instant case are persuasive and that the rationale of Scheetz fully supports affirming the district court's ruling. The two sub-issues here mirror the two-tiered analysis the Court employed in Scheetz.

The first sub-issue may turn on how well a student attorney can persuade the Montana Supreme Court that significant distinctions can or cannot be drawn between the privacy a person expects with respect to luggage and that of vehicles parked outside the protected confines of the home. The Dengg decision discusses the privacy expectations of public school students and appears factually on point with the instant case. While the Dengg decision obviously supports the State's argument that the dog sniff by the Copper City Police Department was not a search, the dissenting opinion in Dengg may guide attorneys for Jane Creant in how they might form an effective counter-argument. Also, the Cass decision is good support for Jane Creant's attorneys because, among several reasons, the court in Cass acknowledges and discusses at length a public school student's expectations of privacy.

The second sub-issue may turn on how well a student attorney argues that a canine sniff was or was not so intrusive as to constitute a search. On this sub-issue, students again would do well to pay attention primarily to the analysis employed by the Montana Supreme Court in Scheetz. While the O'Keefe decision on its face directly supports the State's argument that the canine sniff of Jane Creant's car was not a search, the decision arguably focuses very little attention on a canine sniff's intrusiveness, a paramount point in Scheetz. Lastly, while the New Hampshire court in Pellicci held against the defendant, the case is still helpful to Jane Creant's attorneys because that court addresses more thoroughly whether a canine sniff is intrusive.