Submitted on Briefs: July 19, 2017
FROM: District Court of the Sixth Judicial District, In and
For the County of Park, Cause No. DC-15-42 Honorable Brenda
Gilbert, Presiding Judge
Appellant: Craig Shannon, Attorney at Law, Missoula, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Ryan W.
Aikin, Assistant Attorney General, Helena, Montana Bruce E.
Becker, Park County Attorney, Livingston, Montana
Michael E Wheat, Justice
David Cole Estes appeals the Sixth Judicial District
Court's order denying his motion to suppress evidence
based on a lack of particularized suspicion to seize his
vehicle. We affirm.
We restate the issue on appeal as follows:
the District Court correctly denied Estes' motion to
AND PROCEDURAL BACKGROUND
On December 7, 2014, Trooper Eric Fetterhoff stopped David
Estes (Estes) for expired North Dakota vehicle registration
near Livingston, Montana, on Interstate 90. Estes was the
driver and only occupant of the vehicle. The vehicle was
registered to a third party. Trooper Fetterhoff approached
the vehicle observing two cell phones and cash in the
console, food wrappers and energy drink bottles strewn
around, and a sleeping bag in the back seat covering a
cardboard box. At the passenger's side window, Trooper
Fetterhoff detected an overwhelming odor from multiple air
fresheners. Estes appeared nervous and he was shaking.
Trooper Fetterhoff asked Estes to come and sit in his patrol
Trooper Fetterhoff gave Estes a warning for the registration.
Trooper Fetterhoff and Estes waited in Trooper
Fetterhoff's patrol car until dispatch responded to
questions. Trooper Fetterhoff stated, "so basically, um
. . . yeah you're good to go." Trooper Fetterhoff
asked Estes if there was anything illegal in his vehicle.
Estes denied there was.
Trooper Fetterhoff then informed Estes he was "free to
go, " but that his vehicle was not. Trooper Fetterhoff
informed Estes that he had particularized suspicion of
criminal activity within the vehicle and therefore would
deploy a drug canine. Trooper Fetterhoff had a narcotics dog
with him. Trooper Fetterhoff informed Estes that if the dog
indicated on the vehicle, he would apply for a search warrant
to search the inside of the vehicle.
During their interaction, Trooper Fetterhoff informed Estes
that he was free to leave, but that his vehicle was not, five
to ten times. Trooper Fetterhoff repeatedly informed Estes he
could walk away, he could wait in Trooper Fetterhoff's
car, Trooper Fetterhoff could take him into town, or he could
wait for another officer to drive him into town. Trooper
Fetterhoff informed Estes that Montana law requires him to
make sure Estes feels he is free to leave and he will not run
the dog until Estes confirms he feels free to leave. Estes
refused to wait in Trooper Fetterhoff's car, refused a
ride to town, and decided to walk away.
Trooper Fetterhoff ran the dog around the perimeter of the
vehicle, where it alerted near the driver's side door.
Trooper Fetterhoff applied for and received a warrant to
search the vehicle. More than one hundred twenty grams of