Pubdate: Tue, 18 Apr 2000
Source: Billings Gazette, The (MT)
Copyright: 2000 The Billings Gazette
Contact:  P.O. Box 36300, Billings, MT 59101-6300
Fax: 406-657-1208
Website: http://www.billingsgazette.com/
Author: Jennifer Mckee

STATE SUPREME COURT RULING BAN ON DRUG-SNIFFING DOGS DOESN'T EXIST

The Montana Supreme Court voted unanimously Monday against a convicted
Billings drug dealer and the American Civil Liberties Union in a case about
how Billings police can use drug-sniffing dogs to search cars.

The seven-member court voted 7-0, upholding an earlier ruling by District
Court Judge G. Todd Baugh in Billings. In that case, Baugh said the Billings
Police Department can use trained dogs to sniff out drugs during traffic
stops when officers feel such searches are reasonable.

Monday's ruling ended a long and complicated case which started as a
run-of-the-mill traffic stop two years ago.

On Aug. 5, 1998, known drug-dealer Mark Best was a passenger in a car pulled
over for not having an illuminated license plate, according to Supreme Court
files. The officer who pulled the car over recognized Best from previous
drug busts. Based on that, the officer called in the department's
drug-sniffing dog, which smelled drugs in the glove compartment. Best and a
woman in the car, Rae Trotchie, were arrested on drug charges.

But before the case could go to trial, Best's lawyer argued in a suppression
of evidence hearing that the drugs were found during an illegal search and
could not be used as evidence in court. District Court Judge Maurice Colberg
agreed, saying the fact that Best had been busted with drugs before was not
a reason to use the dog to search his car.

Without any evidence, that case never went to trial and Best was never
convicted.

The case didn't stop there, however.

Best complained that even after Colberg's ruling, Billings police twice
pulled him over and searched his car with the drug dog. Best, along with
lawyer Beth Brennemen of the ACLU, and several prominent Billings citizens,
filed a writ of mandate in December of 1998 against the Billings police and
Chief Ron Tussing. In it, Brennemen argued that Colberg's ruling essentially
barred any future use of the drug dog in traffic stops. Tussing and his
department, therefore, were breaking the law by continuing to use the drug
dog the way they had before Colberg's decision.

Lawyers for the city countered that Colberg's ruling applied only to the
particular drug case before the judge at the time. The ruling wasn't law and
wasn't meant to change the way Billings police use the drug dog forever.

Baugh agreed and ruled last May that Colberg's decision was not the law of
the land, merely one judge's decision on one particular case.

Brennemen appealed that decision to the Montana Supreme Court. The court
issued its decision Monday.

Both Brennemen and Tussing agree that the justices' ruling was very limited.
The weren't deciding the legality of the drug sniffing dogs or how Billings
police should use them, Brennemen said. In fact, she said the court agreed
with her when she argued that Billings police stepped over the line when
they brought in the drug dog just because Best had a long history of drug
use in Billings.

"They conceded that that was a tremendous mistake on the part of the chief
of police," she said.

But such a mistake wasn't the point. At issue was whether Colberg's decision
should be followed like law in other traffic stops involving drug dogs.
Monday's decision affirmed that it shouldn't.

"I'm relieved that the whole thing is over," Tussing said.

He said he felt vindicated by the decision, especially in light of
editorials in The Gazette which Tussing said painted his department as the
bad guys.

"Just because the ACLU doesn't agree with you doesn't mean you're wrong,"
Tussing said.

He also said he's disappointed at the way the whole case was handled.
Tussing said he never spoke with Brennemen personally or any of the other
plaintiffs in the case. Tussing said he would have liked to explain himself
to the plaintiffs before the case went to court, if not to change their
minds, he said, at least to sit down like "reasonable people."

The department has changed some of its procedures since the case was first
filed.

As a matter of routine, officers now will not search a car unless they have
a search warrant. Legally, Tussing said, officers can search a car without a
warrant in certain circumstances. But "just to be safe," Tussing said, his
officers won't do that.

The department recently reached an agreement with the District Court judges
in town which allows officers to phone in for a search warrant, and avoid
the lengthy process of impounding the car, typing up the warrant request and
waiting for a judge to sign it.

Brennemen said she felt the case was a victory in a way.

Tussing probably wouldn't have changed his search policy without the
pressure from the suit, she said.

"We got what we wanted, anyway," Brennemen said. "It's a gratifying thing."

Still, Brennemen said she was disappointed after spending more than a year
on the case only to lose. She said she hopes Tussing won't revert to the
department's previous search policy because of the Supreme Court's decision.

"I'm concerned that this will mean the chief of police will presume this
victory to mean that disrespect for the courts is acceptable."

According to police figures, officers search fewer than 1 percent of cars
stopped.
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