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State v. Lizee9/26/2001
ENTRY ORDER
In the above-entitled cause, the Clerk will enter:
The State appeals from a decision of the district court granting defendant's motion to suppress evidence obtained from a search of his impounded vehicle. The State contends that the court erred in failing to uphold the seizure and subsequent search of the vehicle under the "community caretaking" doctrine. We affirm.
As found by the trial court, the facts were as follows: On the evening of December 10, 1999, a police officer with the Winhall Police Department stopped defendant's vehicle for having a non-functioning rear plate light.
The stop occurred in a rural area. Although defendant's vehicle was pulled as far onto the shoulder as possible, part of the vehicle remained in the traveled portion of the road. The officer parked his cruiser behind defendant's car, approached the vehicle, and encountered defendant and another person sitting in the passenger seat. The officer informed defendant of the reason for the stop and asked for his registration, license, and insurance material. Defendant presented his license and an expired insurance card, and failed to produce a registration. The officer asked defendant to accompany him to his cruiser, where a DMV check revealed that the registration had expired and there was a pending suspension for lack of insurance, although it had not gone into effect. Despite the DMV information, defendant's vehicle had valid registration stickers on the license plates; defendant explained that he had personally registered the vehicle within the last two days. He also told the officer that he had recently failed to pay his insurance premium for lack of funds.
The officer indicated that he planned to issue defendant a warning for the plate-light violation, and citations for the insurance and registration violations. The officer then returned to defendant's car and questioned the passenger. Believing that he detected the odor of marijuana, the officer asked the passenger whether he was in possession of marijuana, which the passenger denied. The officer then returned to the cruiser, asked defendant if there was marijuana in the vehicle - which defendant also denied - and requested consent to search the vehicle. Defendant refused to give consent, stating that there was nothing to find and that he was in a hurry to leave. Undeterred, the officer pressed defendant, asking if a canine would react to a search of the vehicle.
Defendant again insisted that there was nothing in the vehicle, and requested permission to leave. The officer told him to wait, and radioed in to inquire about obtaining a canine search. Learning that there was no canine within an hour of their location, the officer again asked for permission to search the vehicle, and again was denied. He then had defendant and the passenger empty their pockets, which revealed nothing illegal, and informed them that they were being "detained," not arrested. The passenger was eventually handcuffed and searched, again revealing nothing illegal. By this time, a backup unit had arrived, and both officers peered closely into defendant's vehicle with flashlights. The investigating officer also unsuccessfully tried calling an 800 number for defendant's insurance company.
Failing to obtain consent to search, the officer then informed defendant that he could not drive the vehicle away without proof of insurance, and that it would have to be towed. The issue of towing the vehicle due to the insurance issue had not come up at all during the prior portion of the stop and processing. The officer called a local operator, Stuart Coleman, who often towed for the police. Coleman appeared with his tow truck
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