Submitted on Briefs: October 19, 2016
Court of the Ninth Judicial District, In and For the County
of Toole, Cause No. DC 14-01 Honorable Robert G. Olson,
Appellant: Chad Wright, Chief Appellate Defender, Danny
Tenenbaum, Assistant Appellate Defender
Appellee: Timothy C. Fox, Montana Attorney General, Madison
L. Mattioli, Merle Raph, Toole County Attorney
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
Shay Nicole McFee (McFee) appeals her conviction from the
Ninth Judicial District Court, Toole County, entered on
February 12, 2015. The State charged McFee with four counts
of drug possession, in violation of § 45-9-102, MCA, and
one misdemeanor count of possession of drug paraphernalia, in
violation of § 45-10-103, MCA. McFee filed a motion to
suppress arguing her encounter with law enforcement was an
illegal seizure and that evidence recovered from her vehicle
should be suppressed. Following briefing and a hearing, the
District Court denied the defense's motion to suppress.
The State amended the Information to include additional
misdemeanors of driving under the influence, in violation of
§ 61-8-401, MCA, and another criminal possession of
drugs, in violation of § 45-9-102, MCA. The parties
entered into a plea agreement, reserving McFee's right to
appeal the denial of her motion to suppress. McFee pleaded
guilty to all of the offenses and was sentenced following
completion of a presentence investigation report. We affirm.
The issue on appeal is whether the District Court erred when
it failed to find that law enforcement had seized McFee.
On December 17, 2013, at approximately 1:00 p.m. Deputy
Anderson and Deputy Donahue were on regular patrol in Shelby,
Montana, in a marked patrol car. Deputy Anderson observed a
car parked in an isolated area east of town. The area could
only be accessed by a single two-track path off the end of a
street. Deputies Anderson and Donahue drove up the path
towards the area. Upon reaching the area Deputy Anderson
parked the patrol vehicle towards the side, about half of a
car length behind the parked vehicle. The Deputies did not
activate their patrol vehicle's emergency lights.
Deputy Anderson then exited the patrol vehicle and approached
the parked car. He did not lay his hand on his weapon while
he approached. The driver, McFee, rolled down her window as
Deputy Anderson approached. Deputy Anderson testified that he
immediately smelled burnt marijuana and noticed that
McFee's eyes appeared glassy and red. Less than a minute
after Deputy Anderson exited the patrol vehicle, Deputy
Donahue got out and approached the rear of McFee's
vehicle on the passenger side where McFee's passenger was
sitting in the front seat. Deputy Anderson proceeded to
question McFee asking her what they were doing in the area
and if they were smoking marijuana. McFee eventually admitted
to smoking marijuana.
During the discussion with McFee and the passenger, Deputy
Anderson observed a plastic baggie tucked under McFee's
left leg and an open gym bag in the backseat with a container
of marijuana. Deputy Anderson requested permission to search
the vehicle. When McFee refused, her vehicle was secured and
Deputy Anderson placed McFee under arrest. The car was towed
to the Toole County Sheriff's Department. After obtaining
a search warrant, multiple types of drugs in various amounts
and drug paraphernalia were recovered from the vehicle.
"We review the grant or denial of a motion to suppress
to determine whether the district court's findings of
fact are clearly erroneous and whether the court correctly
interpreted and applied the law to those facts."
State v. Ballinger, 2016 MT 30, ¶ 12, 382 Mont.
193, 366 P.3d 668. "A finding of fact is clearly
erroneous if it is not supported by substantial
evidence[.]" State v. Wagner, 2013 MT 159,
¶ 9, 370 Mont. 381, 303 P.3d 285.
We have often stated that not every interaction between a
citizen and the police constitutes a seizure. State v.
Strom, 2014 MT 234, ¶ 10, 376 Mont. 277, 333 P.3d.
218. To determine whether a seizure has occurred, we assess
whether a reasonable person would, when considering all the
circumstances, feel free to leave the interaction.
Strom, ¶ 10. If a reasonable person would feel
free to leave then a seizure has not occurred.
Strom, ¶ 10. Some of the factors indicating a
seizure are "the threatening presence of several
officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the use of
language or tone of voice indicating that compliance with the
officer's request might be compelled."
Strom, ¶ 10 (citing Mendenhall, 446
U.S. at 554, 100 S.Ct. ...