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State v. Fowler

Supreme Court of Montana

August 6, 2019

STATE OF MONTANA, Plaintiff and Appellee,
TAMMY SUE FOWLER, Defendant and Appellant.

          Submitted on Briefs: June 19, 2019

          District Court of the Third Judicial District, In and For the County of Powell, Cause No. DC 16-64 Honorable Ray Dayton, Presiding Judge.

          For Appellant: Shannon Sweeney, Sweeny Law, PLLC, Anaconda, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Christopher D. Abbott, Assistant Attorney General, Helena, Montana

          Kathryn McEnery, Powell County Attorney, Patrick Moody, Deputy County Attorney, Deer Lodge, Montana


          Dirk M. Sandefur, Justice.

         ¶1 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 Montana Reports.

         ¶2 On or about June 23, 2016, the Butte-Silver Bow County Sheriff's Department notified the City of Deer Lodge Police Department of a tip that an unidentified male and female companion may soon be transporting illegal drugs to or through the City of Deer Lodge in a red Chevrolet Camaro with a specified license plate number. A subsequent records check revealed that the registered owner of the vehicle was Dusty Cooper, an individual previously known to Deer Lodge police as involved in illegal drug activity. Additional checking revealed an outstanding felony warrant for Cooper's arrest.

         ¶3 On June 25, 2016, Deer Lodge police officer Randy Cavalea encountered the red Camaro in Deer Lodge with three occupants-an unknown male driver, an unknown female passenger in the front seat, and another male in the back. Upon circling around and relocating the vehicle after it was briefly out of sight, Cavalea recognized the male in the backseat as Cooper. Intent first on arresting Cooper pursuant to the outstanding warrant and then further investigating the drug activity tip, Cavalea stopped the Camaro on Main Street in Deer Lodge. After approaching on foot, he ordered the male in the backseat out of the car, confirmed he was Cooper, and placed him under arrest.

         ¶4 Also familiar with Cooper and similarly aware of the tip and related information, Montana Highway Patrol Trooper James Handy arrived at the scene and, seeing Cavalea standing outside the Camaro with Cooper, stopped to assist. After Cavalea secured Cooper in his patrol car, the officers walked up on either side of the Camaro where they separately spoke with the driver and female passenger. On the driver's side, Officer Cavalea identified the driver as Kurt Rouser who advised that they were returning from a youth wrestling camp in Townsend and were giving Cooper a ride home. Rouser identified the female passenger (Tammy Sue Fowler) to Cavalea as Tammy Fowler Pacuiran. After Rouser was unable to produce proof of registration and insurance, Cavalea left him to continue searching for those documents and walked away to communicate with his dispatcher regarding Cooper's warrant and to run driver's license and warrants checks on Rouser.

         ¶5 On the passenger side, Trooper Handy approached to speak with the woman and immediately observed a soft-side cooler near her in the car. When Handy asked what was in the cooler, Fowler displayed a mixed drink in her hand, answered that the cooler contained a bottle of whiskey, and opened the cooler to reveal a partially empty whiskey bottle. When Handy requested proof of identification, he observed Fowler retrieve her purse from a large handbag and begin searching for her identification. In the process, Handy observed two pink cases in the open purse-one similar to a reading glasses case. He later testified that the glasses case caught his attention based on his training and experience that people commonly conceal illegal drugs and paraphernalia in eyeglass cases. After observing Rouser unable to locate proof of registration and insurance and Fowler unable to locate proof of identification, Handy took down Fowler's name and date of birth and walked back to confer with Officer Cavalea. After they briefly discussed the apparent no-insurance and open container violations, Handy walked back to his patrol car to run identification and warrants checks on Fowler.

         ¶6 In the meantime, Officer Cavalea returned to the driver's side of the Camaro, advised Rouser of the reason for Cooper's arrest, advised Fowler of the open container violation, and confirmed Rouser's inability to locate proof of vehicle insurance or registration. Rouser explained that he was driving the car in advance of buying it from Cooper and did not know where Cooper kept the proof of registration. While waiting for Trooper Handy to complete his checks on Fowler, Cavalea asked Rouser to again explain what was going on that day before the stop. After Rouser repeated his earlier account, Cavalea told him to stand by while he consulted with Handy on how to "address this issue."

         ¶7 At Handy's patrol car, Officer Cavalea advised that he was intent on further investigating the drug activity tip but that the stories given by Cooper and Rouser seemed to be consistent, he didn't "see any indicators," "they're not acting funny," and thus didn't believe that sufficient cause existed to search the Camaro for drugs.

         ¶8 At Handy's suggestion, the officers returned to the Camaro where Cavalea asked Fowler to step out of the car with her purse to speak with the officers alone. Behind the car, Handy advised Fowler they had no issue with her suspended driver's license because she wasn't driving but that she would be cited for the open container violation. As captured on Cavalea's body camera, Handy then asked, "the pink container in your purse, what's in that?" In response, Fowler removed a zippered pouch from her purse, said "dice," for "a mean dice game," and unzipped the pouch to ...

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