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State of Montana v. Russell Roy

February 26, 2013

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 In-grid G. Gustafson, Presiding Judge

The opinion of the court was delivered by: Laurie McKINNON

February 27 2013

Submitted on Briefs: February 6, 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.

¶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 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.

ΒΆ7 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 ...


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