February 23 2011

DA 09-0433

IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA,

Plaintiff and Appellee,

v.

RICHARD DEAN HOLEN,

Defendant and Appellant.

APPEAL FROM: District Court of the Fifteenth Judicial District, In and For the County of Roosevelt, Cause No. DC 08-22 Honorable David Cybulski, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Johnna K. Baffa, Van de Wetering Law Offices, Missoula, Montana

For Appellee:

Steve Bullock, Montana Attorney General; C. Mark Fowler, Assistant Attorney General, Helena, Montana

Ryan C. Rusche, Roosevelt County Attorney, Wolf Point, Montana

Submitted on Briefs: January 26, 2011

Decided: February 23, 2011

Filed:

__________________________________________ Clerk Justice Brian Morris delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

Appellant Richard Dean Holen (Holen) appeals the District Court’s order denying his motion

to suppress without conducting an evidentiary hearing. We affirm.

¶2 Robert Magnan (Magnan), the tribal livestock officer for the Fort Peck Indian

Reservation, assisted by various other tribal officers, impounded about 64 head of cattle on

September 4, 2008, near the Chelsea community in Roosevelt County, Montana. Wayne

Shipp, an investigator with the Montana Department of Livestock, helped Magnan in brand

identification. The officers observed cattle with brands that had no authorization from the

landowners, in this case, the United States and the Assiniboine and Sioux Tribes.

¶3 The State charged Holen with eight separate counts of cattle theft. Holen filed a

motion to suppress in which he contended that the officers had seized and impounded the

cattle without giving Holen five days notice pursuant to Holen’s lease agreement for grazing

on the trust lands. Holen’s suppression motion contained no request for an evidentiary

hearing and urged suppression instead based solely on the lack of notice. The State urged

the District Court summarily to dismiss Holen’s motion “without hearing.” The State

argued, in the alternative, that it intended to call witnesses to clarify Holen’s factual

misstatements should the court determine an evidentiary hearing would be needed. Holen’s 2 reply brief did not respond to the State’s argument about the lack of necessity for an

evidentiary hearing. Holen emphasized instead that his motion to suppress rested on legal

arguments.

¶4 The District Court heard legal arguments on Holen’s suppression motion. The court

narrowed the issue to whether Holen had a reasonable expectation of privacy on the property

from which the officers had seized the cattle. Holen argued that the cattle had been seized

from land for which he had entered a lease, and that under the lease, he was entitled to five

days notice before officials could enforce any cattle trespassing law. The State countered

that the cattle had been seized from Indian trust land open to the public and that Holen lacked

an expectation of privacy on the trust lands. Holen pointed out that the seizure took place

over two square miles of land with various ownership types, including leases, allotted land

and tribal land, all owned by different people and separated by fences.

¶5 The court inquired as to whether Holen was challenging the truthfulness of the

officer’s testimony as to the location of the cattle at the time of the seizure. The court further

asked whether witnesses would be needed to resolve this issue. Holen’s counsel responded

that she could call people who had written letters regarding the location of the cattle.

Holen’s counsel concluded with the following statement: “Basically, if we want to have an

evidentiary hearing, we can have an evidentiary hearing on that.” The State declined to

present any evidence on the grounds that Holen had failed to present the testimony of any

witnesses that the State needed to rebut.

3 ¶6 The District Court denied Holen’s motion to dismiss on the grounds that Holen had no

expectation of privacy on the lands from which the officers had seized the cattle. The court

issued an oral ruling outlining the specific reasons for the denial. The case proceeded to trial

and a jury convicted Holen on all eight counts. Holen appeals.

¶7 Holen argues on appeal that he had an expectation of privacy on the land where the

tribal officers saw and subsequently seized his cattle because it was leased land. The State

counters that Holen never requested an evidentiary hearing before the District Court and

failed to object to the District Court’s denial of the suppression motion on legal grounds.

¶8 We review a district court’s ruling on a defendant’s motion to suppress evidence to

determine whether the court’s findings of fact are clearly erroneous and whether the court’s

interpretation and application of the law are correct. State v. Tucker,

,

,

. The District Court did not make written findings of fact in

this case. The court nevertheless outlined the reasons for its ruling at the end of the hearing

in this matter. The court afforded Holen the chance to cross-examine the officers regarding

the location of the cattle when seized by the officers. Holen did not pursue this opportunity.

Holen did not argue to the District Court that he had a privacy expectation in the place where

the cattle were seized and cannot take that position on appeal.

¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for noncitable memorandum opinions. The

District Court’s findings of fact are supported by substantial evidence and the legal issues are

controlled by settled Montana law, which the District Court correctly interpreted. 4 ¶10 Affirmed.

/S/ BRIAN MORRIS

We Concur:

/S/ MIKE McGRATH /S/ JAMES C. NELSON /S/ BETH BAKER /S/ JIM RICE

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