                                                                                           August 13 2013


                                          DA 12-0696

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2013 MT 225N



CITY OF HELENA,

              Plaintiff and Appellee,

         v.

SHAWN OWEN DETIENNE,

              Defendant and Appellant.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause No. BDC 2012-171
                        Honorable Jeffrey M. Sherlock, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Palmer A. Hoovestal, Hoovestal Law Firm, PLLC; Helena, Montana

                For Appellee:

                        Tinothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                        Attorney General; Helena, Montana

                        Jeffrey Hindoien, Helena City Attorney, Todd D. Baker, Deputy City
                        Attorney; Helena, Montana

                                                   Submitted on Briefs: July 17, 2013
                                                              Decided: August 13, 2013


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.

¶2     Appellant Shawn Detienne (Detienne) appeals the order of the First Judicial District

Court, Lewis and Clark County, denying his motion to suppress. We affirm.

¶3     Helena Police Officer Tim Coleman (Coleman) noticed a car in the parking lot next to

Valley Bank on September 11, 2011, at approximately 2:45 a.m. The engine was running

and the car’s lights were on. The driver, who was later identified as Detienne, was in the

driver’s side seat lying against the door.

¶4     Officer Coleman decided to conduct a welfare check due to his concern that the

“individual inside the vehicle was having medical [issues] or was highly intoxicated.”

Coleman knocked on the car several times, but was unsuccessful in awakening the person.

¶5     Coleman opened the door to turn the car off when he noticed “a really strong odor of

alcohol coming from the vehicle.” Coleman proceeded to conduct a DUI investigation.

Coleman arrested Detienne for driving under the influence.

¶6     Detienne filed a motion with the Municipal Court to suppress the evidence of his

intoxication after he was unlawfully seized. The Municipal Court denied the motion after

holding an evidentiary hearing. Detienne appealed the denial of his motion to suppress to the

District Court.

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¶7     The District Court held an oral argument on October 23, 2012. The District Court

affirmed. The District Court determined that Officer Coleman possessed sufficient objective

evidence to justify opening the door to the vehicle. The District Court further determined

that the circumstances supported the likelihood that the person inside the car could be

committing the offense of DUI. Detienne appeals.

¶8     Detienne argues on appeal that Coleman’s action of opening the car to remove the

keys after Coleman was no longer concerned about Detienne’s welfare constitutes an

unlawful seizure. Detienne further argues that his vehicle was properly parked with no

damage or evidence of foul play. We review a district court’s grant or denial of a motion to

suppress to determine whether the court’s findings are clearly erroneous and whether those

findings were applied correctly as a matter of law. State v. Gill, 2012 MT 36, ¶ 10, 364

Mont. 182, 272 P.3d 60.

¶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. It is

manifest on the face of the briefs and the record before us that substantial evidence supports

the District Court’s findings regarding Detienne’s motion to suppress and that the District

Court correctly applied well settled Montana law.

¶10    Affirmed.

                                                         /S/ BRIAN MORRIS


We concur:

/S/ MIKE McGRATH
                                              3
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ JIM RICE




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