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State v. Estes

Supreme Court of Montana

September 12, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
DAVID COLE ESTES, Defendant and Appellant,

          Submitted on Briefs: July 19, 2017

         APPEAL 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

          For Appellant: Craig Shannon, Attorney at Law, Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Ryan W. Aikin, Assistant Attorney General, Helena, Montana Bruce E. Becker, Park County Attorney, Livingston, Montana

          OPINION

          Michael E Wheat, Justice

         ¶1 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.

         ¶2 We restate the issue on appeal as follows:

         Whether the District Court correctly denied Estes' motion to suppress evidence.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 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 car.

         ¶4 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.

         ¶5 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.

         ¶6 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.

         ¶7 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 ...


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