                                                                                            February 27 2013


                                           DA 12-0242

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2013 MT 51



STATE 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


                                             9
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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