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State v. Elison11/16/2000
APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Maurice R. Colberg, Jr., Judge presiding.
Submitted on Briefs: January 20, 2000
1 Gregory Elison appeals from the Court's Findings of Fact, Conclusions of Law, Memorandum and Order issued by the Thirteenth Judicial District Court, Yellowstone County, denying his motion to suppress. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.
2 Elison's appeal raises the following issues:
3 . Whether the District Court erred in finding that Officer Conrad had a particularized suspicion sufficient to justify stopping Elison's vehicle?
4 . Whether the District Court erred in concluding that Elison was not entitled to Miranda warnings prior to preliminary questioning?
5 . Whether the District Court erred in concluding that Elison's vehicle was lawfully searched under an exception to the warrant requirement?
BACKGROUND
6 On August 1, 1998, shortly after midnight, Billings Police Officer Scott Conrad was on routine patrol eastbound on Fourth Avenue North in Billings, Montana. Jerry Gibson was riding with Officer Conrad as an authorized citizen observer. While Officer Conrad's patrol vehicle was passing through the intersection of Fourth Avenue North and North 26th Street, Gibson saw the driver of a white truck in the lane immediately to the right of Officer Conrad's vehicle hunched over the steering wheel smoking from a brass-colored pipe. Gibson made eye contact with the driver of the truck, who was later identified as Elison. Gibson testified that Elison noticed the patrol car, appeared startled, and lowered the pipe and lighter below the steering wheel.
7 As the patrol car proceeded through the intersection, Gibson informed Officer Conrad that he saw the driver of a white truck smoking from what he believed to be a marijuana pipe and that the driver noticed the patrol car, appeared startled and attempted to hide the pipe. Officer Conrad had not witnessed any of this activity. Officer Conrad located the white truck behind his patrol car and reduced his speed to allow the truck to pass his car so that he could get behind Elison's vehicle and make a traffic stop. Elison slowed his vehicle. Finally, Officer Conrad brought his vehicle to a complete stop so that Elison would pass him. He then activated his overhead lights and siren and stopped Elison's vehicle.
8 Upon stopping, Elison exited his truck. Officer Conrad instructed Elison to return to his vehicle and Elison complied. Officer Conrad testified that when he approached Elison's truck, he could immediately smell the odor of marijuana. He also testified that Elison appeared nervous, his eyes were red and glassy, and he would not sit still. Officer Conrad informed Elison of the reason for the stop-advising him of Gibson's observations and the odor of marijuana which Conrad had detected. Elison appeared to be reaching in between the seat cushions of the truck. Officer Conrad asked Elison to show him his right hand and subsequently requested that Elison exit his vehicle.
9 After Elison exited the truck, Officer Conrad directed him to the rear of the pickup, frisked him, and asked him where the pipe that Gibson had reported seeing him smoking from was located. Elison told Officer Conrad that he had thrown it out the window. Officer Conrad then asked Elison whether there was any marijuana in the truck. Elison replied that he had tucked marijuana behind the seat. Officer Conrad testified that Elison was not free to leave during this questioning. Officer Conrad returned to the
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