MT: Field test of seized drugs is a reasonable search

A field test of drugs seized off defendant’s person finding them presumptively methamphetamine is reasonable under the Fourth Amendment and the state constitution. There is no enlarged reasonable expectation of privacy as to them when seized. State v. Funkhouser, 2020 MT 175, 2020 Mont. LEXIS 1991 (July 7, 2020):

[*P17] The distinction between a “seizure” and a “search” is significant to these proceedings. A “seizure” refers to the act of taking an object so as to deprive an individual of his or her property. See State v. Lewis, 2007 MT 295, ¶ 25, 340 Mont. 10, 171 P.3d 731 (citing the definition of “seizure” provided by Horton v. California, 496 U.S. 128, 133-34, 110 S. Ct. 2301, 2306 (1990)). A “search” generally refers to an act of observation that is invasive enough to intrude upon an expectation of privacy that society recognizes as reasonable. See Horton, 496 U.S. at 133; see also Carpenter v. United States, 585 U.S. _, 138 S. Ct. 2206, 2213-16 (2018) (discussing the history and evolution of what constitutes a “search”). Here, Funkhouser’s failure to challenge the lawfulness of the seizure precludes any consideration by this Court of whether the syringe was lawfully seized pursuant to Funkhouser’s arrest under § 46-5-102, MCA. Accordingly, the only issue before this Court is whether a field test of the contents of the syringe, which was lawfully seized by police, constitutes a “search” within the meaning of the Fourth Amendment and Article II, Sections 10 and 11 of the Montana Constitution.

[*P18] For purposes of our holding and analysis, we similarly must distinguish between the capabilities of a rudimentary chemical field test and the more comprehensive chemical testing conducted by the Montana State Crime Lab. The record demonstrates that the field test conducted by Larson involved mixing the syringe’s contents with a pre-prepared chemical concoction designed to turn blue upon coming into contact with methamphetamine. This test is inherently limited in that it is only able to determine the presence of methamphetamine and nothing more. On the other hand, the chemical testing conducted by the crime lab was significantly more comprehensive. According to the record, the crime lab testing was able to reveal the presence of any chemical compound that was soluble in methanol; this includes the majority of controlled substances, as well as many non-controlled substances such as insulin. It thus stands to reason that, from a privacy standpoint, the former of these two tests is significantly less invasive than the latter—a distinction that has previously been recognized by the United States Court of Appeals for the Ninth Circuit.

[*P19] With these distinctions made and based on the record before us, we now turn to the issue at hand: whether a field test for an illicit drug constitutes a search requiring law enforcement to first obtain a warrant. This Court has not previously held that a warrant is required in order for officers to conduct a rudimentary chemical field test of a substance that is already presumed to be lawfully seized—especially when that test’s sole capability involves detecting the presence or non-presence of a single illicit drug. We decline to do so here. In reaching this conclusion, we are informed by the reasoning of the United States Supreme Court in United States v. Jacobsen, 466 U.S. 109, 104 S. Ct. 1652 (1984).

. . .

[*P22] Funkhouser’s appeal raises several arguments as to why this Court should avoid applying the clear language in Jacobsen; however, none are compelling enough to dissuade this Court. Most notably, Funkhouser’s appeal identifies that this Court has held that the explicit right to privacy guaranteed by the Montana Constitution includes a right to privacy over the contents of one’s personal medical information in State v. Dolan, 283 Mont. 245, 256, 940 P.2d 436, 442-43 (1997) (citing the Montana Constitution and § 50-16-502(1), MCA (which recognizes patients’ right to privacy over their medical history) in order to suppress information unlawfully subpoenaed from the defendant’s health care provider). However, this Court declines Funkhouser’s invitation to extend this right of medical privacy to Larson’s examination of the contents of Funkhouser’s nearly empty syringe—especially when the field test in question could not have revealed any sensitive medical information. In Funkhouser’s case, the trial record is clear that Larson’s chemical field test was only capable of returning a positive or negative result for the presence of a single, specific illegal substance: methamphetamine. As liquid methamphetamine is not a legally prescribed medication in Montana, the field test in question would not have been able to identify any information about the content of Funkhouser’s lawful prescriptions. Thus, none of the “personal and sensitive” health care information that this Court contemplated as private in Dolan was revealed by Larson’s test. See Dolan, 283 Mont. at 256, 940 P.2d at 442-43. As Funkhouser had no reasonable expectation of privacy violated by a test for the presence of methamphetamine in a syringe lawfully seized from his person, he cannot assert the constitutional protections afforded to a “search.”

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