State v. Russell O. Roy

February 27 2013
DA 12-0242
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 51STATE OF MONTANA,
Plaintiff and Appellee,
v.
RUSSELL ROY,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 11-145
Honorable Ingrid G. Gustafson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender, Lisa S. Korchinski, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
Assistant Attorney General, Helena, Montana
Submitted on Briefs: February 6, 2013
Decided: February 26, 2013
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 A peace officer stopped a vehicle that Russell Roy was driving. During the stop,
the officer had Roy exit the vehicle so that the officer could detect whether the odor of
marijuana was present. A large quantity of marijuana was ultimately discovered in the
vehicle, and the State of Montana charged Roy in the Thirteenth Judicial District Court,
Yellowstone County, with one count of felony criminal possession of dangerous drugs.
Roy filed a motion to suppress the evidence, arguing that the officer had unlawfully
exceeded the scope of the stop by requiring Roy to exit the vehicle. The District Court
denied the motion. Roy then pleaded guilty to the charge, reserving the right to appeal
the denial of his motion. We affirm.
¶2 The sole issue on appeal is whether requiring Roy to exit the vehicle during the
traffic stop violated his constitutional right against unreasonable searches and seizures.
BACKGROUND
¶3 On January 8, 2010, Detective Benjamin with the Yellowstone County Sheriff’s
Department received a Crime Stoppers tip that a woman was dealing marijuana out of her
home, described as a yellow house, at 622 North 15th Street in Billings. The informant
reported that the woman’s name was Karrie and that she was tall (over six feet) with red
hair and was well dressed. The informant also stated that the woman routinely drove her
vehicle, a Jeep Cherokee, to California to pick up large quantities of marijuana and then
drove back to Montana to distribute the drugs. The informant further stated that the Jeep
Cherokee had a “YNP” (Yellowstone National Park) sticker in the back window.
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¶4 Due to the detailed nature of this report, Benjamin decided to investigate. He
learned that the home was owned by Karrie Johnson. Benjamin reviewed Johnson’s
picture on file with the Department of Motor Vehicles and determined that Johnson
matched the description of the woman implicated in the Crime Stoppers tip. Benjamin
later drove by Johnson’s house and observed her getting into a Jeep Cherokee matching
the informant’s description.
¶5 In February 2010, Special Agent Anuszczyk with the Bureau of Alcohol, Tobacco,
Firearms and Explosives provided Benjamin with information he had learned through an
informant. The informant told Anuszczyk that a very tall woman named Johnson was
selling large quantities of marijuana from her residence on the 600 block of North 15th or
16th Street. Furthermore, Johnson was planning to leave for another trip to California to
pick up marijuana on February 22. Benjamin later learned through Anuszczyk that
Johnson had delayed her trip due to illness and had ended up leaving on February 25.
Benjamin confirmed that Johnson’s vehicle was gone after February 25. He noted that a
pickup, registered to Roy, was parked at Johnson’s residence.
¶6 On March 4, 2010, Benjamin learned that Johnson would be returning home at
around 10:00 that evening. Benjamin, Anuszczyk, and another member of the Eastern
Montana High Intensity Drug Trafficking Area Task Force set up surveillance along
Interstate 90 between Park City, Montana, and Billings. At around 9:45 p.m., they
observed Johnson’s Jeep Cherokee, with the YNP sticker, traveling eastbound on the
interstate toward Billings. Benjamin placed a call to Sergeant Reid, a K-9 handler with
the Billings Police Department. Benjamin provided Reid with the information he had
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learned through his investigation, including the Jeep Cherokee’s plate number and the
fact that it possibly contained a large amount of marijuana. Benjamin requested that Reid
assist with tracking the vehicle as it entered Billings. Benjamin specifically asked that
Reid bring his K-9 dog.
¶7 Reid intercepted Johnson’s vehicle on the interstate and followed as it exited onto
Laurel Road. Reid paced the vehicle with his patrol car and determined that it was
moving at 55 miles per hour, in excess of the posted 45-mile-per-hour speed limit. Reid
initiated a traffic stop due to the vehicle’s excessive speed and the report of drug
trafficking. Immediately upon approaching the vehicle, Reid detected “a heavy odor of
vehicle deodorizer, air-freshener” coming from the vehicle. He further observed that the
vehicle had two occupants and that it appeared they had been traveling, as there was
clothing, luggage, and some garbage strewn throughout the vehicle. The driver turned
out to be Roy; Johnson was riding in the passenger seat. Reid noted that neither Roy nor
Johnson had bloodshot eyes, slurred speech, or anything else—other than the use of
deodorizer—that might further heighten his suspicion of wrongdoing. Roy’s demeanor
was pleasant, polite, and soft-spoken.
¶8 Following his initial interaction with Roy and Johnson, Reid returned to his patrol
car with the vehicle registration and Roy’s driver’s license to run them through dispatch.
Both Roy and the vehicle checked out clean, except that Roy’s address did not match up
with his driver’s license. Reid decided to give Roy warnings for the excessive speed and
the failure to update his address. Reid wrote out the warnings while still in his patrol car,
which took approximately ten minutes. Reid also contacted Benjamin and reported that
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he had stopped Johnson’s vehicle. Reid then returned to Johnson’s vehicle. Before
issuing the warnings and returning the driver’s license and vehicle registration to Roy,
Reid asked Roy to exit the vehicle and accompany him to the rear of the vehicle. At the
suppression hearing, Reid explained:
I wanted to get a better observation of him. Also, it’s not uncommon for
me on traffic stops to have somebody step out of the vehicle and talk to
them, especially if there is something not right, something going on. With
the tip that I had [from Detective Benjamin] also and the deodorizer, I
wanted to talk to him a little bit.
Reid further explained that he wanted to separate Roy from the strong deodorizer smell to
determine if he could identify any odors on Roy. When Roy exited the vehicle, Reid
smelled the odor of burnt marijuana coming from Roy or his clothes.
¶9 Reid briefly interviewed Roy, issued him the warnings, and returned his license
and the vehicle registration. Reid then spoke with Johnson. He requested permission to
search the vehicle, but she refused consent. When he asked her whether there was any
cocaine, heroin, or methamphetamine in the vehicle, Johnson giggled, smiled, and said,
“No, I’m not that way.” But when he asked her whether there was marijuana in the
vehicle, Johnson became noticeably stressed and firmly declared there was not. At
around this time, Benjamin appeared and began interviewing Roy and Johnson. When
asked where they were coming from, the two gave conflicting accounts. Reid deployed
his police dog for a sniff search of the vehicle’s exterior. The dog indicated on the open
driver’s window. After the dog search, Roy admitted there were drugs in the vehicle. He
was taken into custody at this time. The vehicle was subsequently seized and searched.
Law enforcement discovered approximately three pounds of marijuana inside.
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¶10 As noted, the State charged Roy with one count of felony criminal possession of
dangerous drugs, in violation of § 45-9-102, MCA (2009). After the District Court
denied his motion to suppress, Roy entered into a plea agreement with the State and
changed his plea to guilty. The District Court deferred imposition of sentence for three
years, with conditions, and imposed a $500 fine.
STANDARDS OF REVIEW
¶11 We review a district court’s denial of a motion to suppress to determine whether
the court’s findings of fact are clearly erroneous. State v. Hurlbert, 2009 MT 221, ¶ 16,
351 Mont. 316, 211 P.3d 869. A finding is clearly erroneous if it is not supported by
substantial evidence, if the district court misapprehended the effect of the evidence, or if
a review of the record leaves this Court with a definite and firm conviction that a mistake
has been made. Hurlbert, ¶ 16. We further review a district court’s denial of a motion to
suppress to determine whether the court’s interpretation and application of the law are
correct. State v. Bieber, 2007 MT 262, ¶ 20, 339 Mont. 309, 170 P.3d 444. Our review
is plenary as to whether the court correctly interpreted and applied the law. Bieber, ¶ 20.
DISCUSSION
¶12 Roy contends that being required to exit the vehicle during the traffic stop violated
his constitutional right against unreasonable searches and seizures. This argument is
premised on a particular understanding of the basis for the stop. In Roy’s view, Sergeant
Reid pulled him over solely for speeding. Roy does not challenge the validity of that
stop, given that he unquestionably was violating a traffic law. Rather, Roy challenges
what he perceives as an unlawful expansion of the stop from an investigation premised on
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a traffic offense into “a fishing expedition” for evidence of other unlawful activity. Roy
argues that once Reid had finished writing out the warnings he intended to give Roy,
there was no reason for Reid then to ask Roy to exit the vehicle to issue him these
warnings and return his driver’s license and the vehicle registration. Roy maintains that
the smell of a deodorizer was not a sufficient ground for prolonging an investigation
premised solely on a speeding violation. See Hurlbert, ¶ 21 (a stop may not last longer
than is necessary to effectuate the purpose of the stop, unless “additional objective data of
wrongdoing” give rise to further suspicions and enlarge the scope of the investigation).
He asserts that the stop should have concluded with the return of his paperwork and the
issuance of the warnings, without requiring him to exit the vehicle. “When Sgt. Reid
returned to the vehicle and ordered Roy to exit and walk to the rear of the vehicle, the
investigative stop turned into an unlawful detention.”
¶13 The State proffers two separate grounds for upholding Reid’s action here. First,
the State cites two decisions of the United States Supreme Court for the proposition that
an officer effecting a lawful traffic stop may order the driver or passengers out of the
vehicle pending completion of the stop, without running afoul of the Constitution. In
Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330 (1977) (per curiam), the Supreme
Court upheld a state police officer’s practice of ordering all drivers out of their vehicles
as a matter of course whenever they had been stopped for a traffic violation, even if the
officer had no reason to suspect foul play from the particular driver at the time of the
stop. In Maryland v. Wilson, 519 U.S. 408, 117 S. Ct. 882 (1997), the Supreme Court
extended this rule to passengers, holding that an officer making a traffic stop may order
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passengers to get out of the vehicle pending completion of the stop. Significantly, in both
cases, the Supreme Court specifically grounded this rule on concerns for “officer safety”
arising out of “the possibility of a violent encounter” and “[t]he hazard of accidental
injury from passing traffic.” Mimms, 434 U.S. at 110-11, 98 S. Ct. at 333; Wilson, 519
U.S. at 412-14, 117 S. Ct. at 885-86. No such concerns are implicated in the present
case, however. Reid did not ask Roy to exit the vehicle until near the end of Reid’s
investigation into the speeding offense; and Reid’s avowed purpose in doing so was not
for safety reasons, but to investigate whether Roy was engaged in additional wrongdoing.
The District Court found that “the reason [Reid] requested Roy to exit the vehicle was to
separate him from the vehicle to determine if he could identify any odors on Roy if he
was out of the vehicle.” Accordingly, this case does not present an opportunity to apply
the rule of Mimms and Wilson.
¶14 The State’s second argument is that Reid had sufficient suspicion of wrongdoing
to justify requiring Roy to exit the vehicle. The State suggests that Reid did not “expand”
his investigation at all because the traffic stop was based not only on excessive speed, but
also on reliable, corroborated reports that the vehicle was involved in drug trafficking.
This version of events finds support in the District Court’s finding that “Reid initiated a
traffic stop of the vehicle due to its excessive speed and the report of drug trafficking”
(emphasis added). Thus, as the State’s theory goes, having Roy exit the vehicle was
encompassed within one of the two purposes for the stop: to ascertain whether the
occupants were trafficking drugs. We agree with this argument.
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¶15 Stopping an automobile and detaining its occupants constitutes a “seizure” under
the Fourth and Fourteenth Amendments to the United States Constitution and Article II,
Section 11 of the Montana Constitution, even though the purpose of the stop is limited
and the resulting detention quite brief. State v. Carlson, 2000 MT 320, ¶ 18, 302 Mont.
508, 15 P.3d 893. Thus, the constitutional prohibition against unreasonable searches and
seizures applies to investigatory stops of vehicles. Carlson, ¶ 18; U.S. v. Cortez, 449
U.S. 411, 417, 101 S. Ct. 690, 694-95 (1981); State v. Gopher, 193 Mont. 189, 194, 631
P.2d 293, 296 (1981).
¶16 An investigatory stop must be justified by “particularized suspicion.” Cortez, 449
U.S. at 417-18, 101 S. Ct. at 695; Gopher, 193 Mont. at 194, 631 P.2d at 296;
§ 46-5-401(1), MCA. For a peace officer to have particularized suspicion justifying an
investigatory stop, the officer must be possessed of (1) objective data from which the
officer can make certain reasonable inferences and (2) a resulting suspicion that the
person to be stopped has committed, is committing, or is about to commit an offense.
Brown v. State, 2009 MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842. Under this standard,
“the totality of the circumstances—the whole picture—must be taken into account,”
including “various objective observations, information from police reports, if such are
available, and consideration of the modes or patterns of operation of certain kinds of
lawbreakers.” Cortez, 449 U.S. at 417-18, 101 S. Ct. at 695; see also State v. Rutherford,
2009 MT 154, ¶ 12, 350 Mont. 403, 208 P.3d 389 (in evaluating the totality of the
circumstances, the quantity, or content, of the information available to the officer and the
quality, or degree of reliability, of that information must be considered). An officer may
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rely on information conveyed by a third person to formulate particularized suspicion to
stop a person. State v. Gill, 2012 MT 36, ¶ 16, 364 Mont. 182, 272 P.3d 60; State v.
Pratt, 286 Mont. 156, 164-65, 951 P.2d 37, 42-43 (1997). An investigatory stop may not
last longer than is necessary to effectuate the purpose of the stop. Hurlbert, ¶ 21;
Carlson, ¶ 21; § 46-5-403, MCA. The scope of the detention must be carefully tailored
to its underlying justification. Carlson, ¶ 21; Florida v. Royer, 460 U.S. 491, 500, 103
S. Ct. 1319, 1325 (1983).
¶17 Here, Roy was exceeding the speed limit. A statutory violation is sufficient by
itself to establish particularized suspicion for an officer to make a traffic stop. State v.
Haldane, 2013 MT 32, ¶ 26, ___ Mont. ___, ___ P.3d ___. Added to this, Detective
Benjamin had provided Sergeant Reid with corroborated information—the reliability of
which Roy has not contested—that a Jeep Cherokee with a YNP sticker was traveling to
Billings on Interstate 90, arriving at around 10:00 p.m. as reported by the informant,
carrying a large amount of marijuana. Upon stopping a vehicle matching this description,
Reid observed evidence inside the car of a long road trip, such as clothing, luggage, and
garbage strewn throughout the vehicle. Furthermore, upon approaching the vehicle, Reid
detected “a heavy odor of vehicle deodorizer” coming from the vehicle. Reid had
roughly 20 years of law enforcement experience and was a 12-year veteran of the Billings
Police Department. He had received training in drug interdiction and had conducted over
100 stops in which he investigated the presence of illegal drugs, the majority of which
involved marijuana. In Reid’s experience, an excessive deodorizer is “a little bit of a red
flag” because “it’s commonly used as a masking agent for marijuana.”
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¶18 We hold that these facts constituted a particularized and objective basis for Reid to
suspect that, in addition to the traffic violation, Roy was committing an offense involving
marijuana. Given this suspicion, Reid was justified in requiring Roy to exit the vehicle
so as to separate him from the masking effect of the vehicle deodorizer—not unlike
requiring a person suspected of driving under the influence of alcohol or drugs to exit the
vehicle for field sobriety tests to confirm or dispel the suspicion of impairment. Contrary
to Roy’s theory of the case, this was not an “expansion” of the stop beyond its underlying
purpose. Rather, it was a reasonable investigative action that fell within the scope of
Reid’s particularized suspicion that Roy was trafficking illegal drugs—which, again, was
one of the two justifications upon which the traffic stop was predicated. For these
reasons, the District Court correctly denied Roy’s motion to suppress.
¶19 Affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH
/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ JIM RICE
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