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.”
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)