STATE OF MONTANA v. CRAIG ALLEN MCCREA (2025)

¶1 Pursuant to Section I, Paragraph 3(c), 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.

¶2 Craig Allen McCrea (McCrea) appeals from his conviction for criminal possession of dangerous drugs—methamphetamine—in the Twentieth Judicial District Court, Lake County. We affirm but remand for correction of the judgment to comport with the oral pronouncement of sentence.

¶3 On May 5, 2022, law enforcement officers initiated a traffic stop of the Chevy Impala vehicle driven by McCrea but owned by McCrea's father. In addition to McCrea, there were three passengers in the vehicle—Cassidy Muth, David Kallowat, and Bradley Williams. McCrea contends he did not do anything to justify being stopped by law enforcement; he did not commit any traffic infractions and was compliant with all registration requirements. The State counters the stop was made as there was an outstanding arrest warrant for Cassidy Muth who prior to the stop was identified by law enforcement to be the front passenger in McCrea's vehicle. McCrea brought a pre-trial motion to suppress asserting the traffic stop of May 5, 2022, violated his constitutional rights against search and seizure as there was no probable cause for the stop.

¶4 Following the traffic stop on May 5, 2022, McCrea was charged with Count I, felony criminal possession of dangerous drugs (fentanyl), and Count II, criminal possession of dangerous drugs (methamphetamine), also a felony. Subsequently, McCrea was indicted in federal court for conspiracy to possess with intent to distribute fentanyl and possession with intent to distribute fentanyl alleged to have occurred between December 8, 2021, and May 5, 2022. The Federal Indictment was based on two transactions and occurrences— one on January 4, 2022, and the other on May 5, 2022.

¶5 On May 19, 2023, McCrea pled guilty to Count II, possession with intent to distribute fentanyl occurring May 5, 2022. Thereafter, he filed a motion to dismiss the charges pending in state court on double jeopardy grounds.

¶6 During a hearing on July 27, 2023, the District Court discussed McCrea's pretrial motions to suppress and to dismiss based on double jeopardy. At that hearing, McCrea's counsel argued that the police reports indicated the traffic stop was made prior to officers learning of Muth's outstanding arrest warrant. Counsel explained to the court that after filing the motion to suppress, the State provided him with an audiotape of Officer Mesteth's conversation with dispatch in which the officer asked dispatch to tell him about Muth's warrants as he needed to know their status prior to stopping the vehicle. Counsel admits that dispatch then told the officer about Muth's active warrant status. Counsel admits the audiotape “clears up everything” but asserts he did not receive the audiotape until after he filed the motion to dismiss and he requests its exclusion as a sanction for its late disclosure under § 45-15-329, MCA. Upon which the following exchange occurred:

MR. BADARUDDIN: But let me be clear about what I was complaining about in my reply.

So in response, the county attorney sent me a audiotape of -- I think it's Investigator or maybe it's Detective -- I think it's Investigator Mesteth. He taped himself as he was calling dispatch. And you can -- let's just -- from the tape, it sounds like he hasn't stopped anybody yet.

And he's asking dispatch, Tell me about -- and I'm paraphrasing. Tell me about Cassidy Muth's warrants. Tell me about Cassidy Muth's warrants. I need to know before I stop this car. And they tell him.

So it's that audiotape that clears up everything. It's that audiotape that I did not receive until after I filed my motion. And that's the only item that's the subject of my request for exclusion under 46-15-329.

THE COURT: Well, I thought the whole motion to suppress was based on a claim that the -- that they had no basis for the stop.

MR. BADARUDDIN: It is, yeah.

THE COURT: And you're asking me to interpret that one person's communication with the dispatch center as to be proof that he didn't really know there was a warrant; whereas, the other police reports say they all knew there were warrants for her, and that's why they were looking at her.

And -- and I can reconcile that -- that verbiage with -- I know there's warrants. I just don't remember what they were about or how many there are or what the bail amount is. So, you know, tell me about those warrants so I have, you know, have it absolutely clear.

But, regardless, you want me to interpret these police reports based on what they say or do you want to have an evidentiary hearing?

MR. BADARUDDIN: You may interpret the reports based on what they say. That was the idea.

THE COURT: Well, I -- I believe they prove that the officers knew that she was a wanted person well before the stop, and that's -- and so, if that's the basis for your stop -- or, for your motion, it is denied.

MR. BADARUDDIN: Understood.

Thereafter, McCrea's counsel did not further assert exclusion of the audiotape as a sanction nor request an evidentiary hearing. Also at that hearing, the District Court took McCrea's motion to dismiss as to Count I—possession of fentanyl—under advisement and denied the motion as to Count II—possession of methamphetamine. In its August 28, 2023 written Order, the District Court granted McCrea's motion to dismiss as to Count I related to the fentanyl because that charge involved the very same transaction for which McCrea was convicted and sentenced in federal court.

¶7 Subsequently, pursuant to a plea agreement, McCrea pled guilty to Count II, reserving the right to appeal the denial of his motion to dismiss based on his claim of double jeopardy. The District Court followed the joint recommendation sentencing McCrea to Montana State Prison (MSP) for two years and giving him credit for time served of 629 days. At the time of sentencing, McCrea had another state criminal cause pending in DC 22-126. The court's oral pronouncement of sentence made no mention of the sentence running concurrently with or consecutive to DC 22-126. In its written order, however, the court ordered the sentence to run consecutive to any sentence later imposed in DC 22-126. McCrea asserts, and the State concurs, the written judgment does not conform to the oral pronouncement of sentence such that it must be remanded to the District Court for correction.

¶8 McCrea asserts two contested issues on appeal: (1) whether the district court erred when it denied McCrea's motion to suppress; and (2) whether the district court erred when it granted McCrea's motion to dismiss based on constitutional double jeopardy grounds only on Count I and not Count II.

¶9 We review a district court's denial of a motion to suppress evidence to determine whether the court's factual findings are clearly erroneous and whether the court correctly interpreted and applied the applicable law to those facts. State v. Noli, 2023 MT 84, ¶ 24, 412 Mont. 170, 529 P.3d 813. The district court's findings of fact are clearly erroneous if they are not supported by substantial evidence, the court misinterpreted the effect of the evidence, or upon our independent review of the record, we are firmly convinced the court was mistaken. Noli, ¶ 24. Whether the court correctly interpreted and applied the pertinent law to the facts of the case is a question of law we review de novo. Noli, ¶ 24.

¶10 We review denial of a motion to dismiss based on double jeopardy de novo to determine if it is legally correct. State v. Valenzuela, 2021 MT 244, ¶ 7, 405 Mont. 409, 495 P.3d 1061; State v. Cech, 2007 MT 184, ¶ 7, 338 Mont. 330, 167 P.3d 389; State v. Severson, 2024 MT 76, ¶ 6, 416 Mont. 201, 546 P.3d 765.

¶11 McCrea asserts he was illegally stopped and seized. As a result of the illegal traffic stop, law enforcement discovered evidence, including methamphetamine, in his vehicle which should be suppressed and excluded as fruit of the unconstitutional seizure. The State contrarily asserts officers had probable cause to initiate the traffic stop based on their knowledge that passenger Muth had an active warrant for her arrest. Under the Fourth Amendment to the U.S. Constitution and Article II, Section 11 of the Montana Constitution, government searches and seizures are generally constitutionally unreasonable unless conducted in accordance with a judicial warrant issued on probable cause. Noli, ¶ 26. “[B]rief investigative stops of persons by police, including traffic or vehicle stops, are constitutional ‘seizures’ subject to the warrant and probable cause requirements of the Fourth Amendment and Article II, Section 11.” Noli, ¶ 29. McCrea does not dispute there was an active arrest warrant for Muth or that Muth was the front passenger in McCrea's vehicle. Thus, if law enforcement knew of the warrant prior to initiating the traffic stop, they would be justified in initiating the stop of the vehicle to serve the warrant on Muth and doing such does not violate McCrea's rights under the Fourth Amendment or Article II, Section 11. From our review of the record, the District Court did not err in its findings that law enforcement learned there was an active arrest warrant for Muth prior to initiating the traffic stop and the stop was initiated to serve the active warrant on Muth. The audiotape between Officer Sciaretta ¹ and dispatch established officers did not initiate the traffic stop until after they learned Muth had an active warrant for her arrest. McCrea basically conceded this at the hearing on July 27, 2023, instead arguing that the State should be precluded from presenting the audiotape as a sanction for not timely disclosing it. The District Court, however, did not impose such a sanction, and McCrea does not appeal the court's lack of imposition of McCrea's sanction request. Further, upon review of the police reports which McCrea agreed the court could consider and interpret,² we find no error in the court's interpretation that they support the court's finding that officers knew of Muth's active warrant before initiating the traffic stop.

¶12 Next, McCrea asserts the District Court erred in not also dismissing Count II— possession of methamphetamine—based on double jeopardy. Article II, Section 25 of the Montana Constitution provides, “[n]o person shall be again put in jeopardy for the same offense previously tried in any jurisdiction.” Article II, Section 25 also prohibits sentencing a defendant to multiple punishments for the same offense. McCrea asserts his conviction for Count II possession of methamphetamine “results in his suffering twice for the single act allegedly committed on May 5, 2022, possession of dangerous drugs (fentanyl and methamphetamine).” He asserts Count II was part and parcel of the same transaction upon which his federal conviction and sentence was based. The State responds that the District Court properly determined McCrea's federal conviction for possession with intent to distribute fentanyl involved a different drug and that possession of each distinct dangerous drug constitutes a separate offense. McCrea basically asserts that the conduct for which he was convicted and punished federally was possession of dangerous drugs on May 5, 2022, rather than possession with intent to distribute the particular drug of fentanyl. We are not persuaded by this argument. In State v. Meader, 184 Mont. 32, 35, 601 P.2d 386, 388 (1979), Meader argued it was error to charge him with three counts of possessing dangerous drugs contending that possession of different types of prohibited drugs constituted only one violation of § 45-9-102, MCA—“a person commits the offense of criminal possession of dangerous drugs [if the person] possesses any dangerous drug”— and thus he could only be charged with one count. We rejected this argument determining a defendant may be charged with separate counts of possession for different dangerous drugs because the legislature intended to provide a distinct crime for possessing each dangerous drug. Meader, 184 Mont. at 38, 601 P.2d at 389. From the record before us, although there is tangential reference in the federal presentence report that McCrea had methamphetamine while he was possessing with intent to distribute fentanyl, there is nothing to suggest that McCrea was convicted or punished federally for his separate possession of methamphetamine. He was convicted and punished only for his possession with intent to distribute the completely different dangerous drug fentanyl. Thus, the District Court did not err in denying McCrea's motion to dismiss Count II.

¶13 Lastly, McCrea asserts and the State concedes the District Court's written judgment and sentence conflicted with the orally pronounced sentence. At sentencing, the District Court imposed a two-year sentence to MSP and credited McCrea with 629 days for time served. At the time of sentencing, McCrea had a pending criminal matter, DC 22-126. The District Court's written judgment erroneously included McCrea's sentence to run consecutively to any future sentence imposed in DC 22-126—a provision the court did not impose orally and which it did not have the authority to impose. As such, it is appropriate to remand to the District Court to strike this inappropriate provision from the judgment.

¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review.

¶15 We affirm but remand for correction of the judgment to comport with the oral pronouncement of sentence.

We Concur:

CORY J. SWANSON

JAMES JEREMIAH SHEA

LAURIE McKINNON

KATHERINE M BIDEGARAY

FOOTNOTES

1.   In the prior quoted discussion between McCrea's counsel and the District Court in ¶ 6 above, McCrea's counsel mistakenly refers to Officer Sciaretta as Investigator Mesteth.

2.   McCrea further waived an evidentiary hearing and his opportunity to present additional or clarifying evidence even after the District Court expressed it had reviewed the police reports and interpreted them as providing evidence that law enforcement knew of Muth's outstanding active warrant prior to initiating the traffic stop.

INGRID GUSTAFSON