State v. Cotterell

• Decision Date: 09 December 2008
• Docket Number: No. DA 07-0468.,DA 07-0468.
• Citation: 198 P.3d 254,347 Mont. 231,2008 MT 409
• Parties: STATE of Montana, Plaintiff and Appellee, v. Sam COTTERELL, Defendant and Appellant.
• Court: Montana Supreme Court

198 P.3d 254

2008 MT 409

347 Mont. 231

STATE of Montana, Plaintiff and Appellee, v. Sam COTTERELL, Defendant and Appellant.

No. DA 07-0468.

Supreme Court of Montana.

Submitted on Briefs May 21, 2008.

Decided December 9, 2008.

Rehearing Denied January 7, 2009.

For Appellant: KD Feeback, Jon G. Moog, Gough, Shanahan, Johnson & Waterman, Helena, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General, Barbara C. Harris, Assistant Attorney General, Helena, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Sam Cotterell was convicted by a jury of seven misdemeanor hunting violations. He now appeals the Judgment and Sentence entered against him in the District Court for the First Judicial District, Broadwater County. We affirm.

¶ 2 Cotterell raised seven issues on appeal which we have consolidated and rephrased as follows:

¶ 3 1. Whether the District Court erred in denying Cottrell's Motion to Suppress.

¶ 4 2. Whether the District Court erred in denying Cottrell's Motion to Dismiss.

¶ 5 3. Whether the District Court erred in its interpretation of the provisions of § 87-1-102(2)(b), MCA (2003), at sentencing.

Factual and Procedural Background

¶ 6 On October 1, 2004, Doug Monger, the State Parks Division Administrator for the Montana Department of Fish, Wildlife and Parks (DFWP), and Tom Reilly, the assistant administrator, were returning to Helena from a DFWP meeting in Bozeman in Monger's airplane. They were flying between 200 and 2,500 feet, at a speed of approximately 80 to 100 miles an hour, which was Monger's typical flight practice.

¶ 7 During their flight, Monger and Reilly observed a game feeder and salt-block container in the vicinity of a hunting stand on property adjacent to the Missouri River near Townsend, Montana. Monger circled the area once or twice to take another look at the hunting stand. Upon their return to their office in Helena, Monger and Reilly each independently reported what they had seen to the enforcement division of DFWP.

¶ 8 On October 7, 2004, DFWP Game Warden Chris Anderson received the report and began an investigation of the property in question. He went to the area described by Monger and Reilly to corroborate the information. Once there, he discovered that the property lies in bottom lands adjacent to the Missouri River. It is situated at the end of a dead-end road, is surrounded by thick brush, and is fenced around its entire perimeter. The property has a gate at the entrance and is posted with no trespassing signs.

¶ 9 Anderson observed the area from an adjoining property, from the Missouri River, and from a county road. The adjoining property belonged to Ward Scoffield. Although Scoffield had not granted Anderson explicit authority to enter his property on this occasion to surveil the neighboring property, Scoffield had granted Anderson permission to enter his property in the past.

¶ 10 Anderson's investigation of the property revealed an elevated hunting stand within 100 yards of a salt tray. Although Anderson was unable to see inside the tray, he speculated that it was placed for baiting of game animals. Anderson subsequently discovered that Cotterell owned the property in question and that he leases a portion of his property to the Hahn Ranch for cattle grazing.

¶ 11 Anderson returned to surveil Cotterell's property on October 24, 2004, the opening day of the general hunting season. Because it is a violation of state law to use two-way communication devices to hunt big game animals, Anderson monitored the traffic on a public, family-service radio channel. When Anderson overheard conversations that related to the property he was investigating, he recorded them. Anderson noted that the actions of the people he was watching matched the conversations of the people to whom he was listening. These conversations included discussions of the location of deer as well as hunting plans, strategies and actions. Two hand-held radios later seized during the search of Cotterell's property were set to this same frequency.

¶ 12 The following day, Anderson returned to a location near Cotterell's property. At one point during the day, he watched as Cotterell walked across the river to a dead whitetail buck lying in the water near the far shoreline. This property is owned by Scoffield, not Cotterell. Cotterell then left the deer, returned to his property and came back on an eight-wheeled off-highway vehicle. Anderson photographed Cotterell as Cotterell drove the vehicle through the river and onto Scoffield's property where Cotterell retrieved the deer and returned to his own property without tagging the deer.

¶ 13 On October 27, 2004, Anderson applied to the Broadwater County Justice of the Peace for a warrant to search Cotterell's property. Anderson, along with two other DFWP officers, executed the search warrant on November 6, 2004. Cotterell was not home when the officers arrived, but John Gray, a friend of Cotterell's who was living there at the time, admitted them. In their search, the officers found deer parts (including parts of two mule deer), photographs, and documents relating to the hunting of game animals.

¶ 14 Before the wardens left the property, Cotterell arrived and was interviewed by Anderson. During that interview, Cotterell told Anderson that he had shot a whitetail doe and a whitetail buck that year. He described taking a doe under the circumstances that Anderson had seen him retrieve the buck two weeks before. After Anderson informed Cotterell that he had watched that incident, Cotterell admitted that he shot the buck and later tagged it with a doe tag. Cotterell also admitted that, rather than shooting a doe and a buck, he shot two whitetail bucks and that the buck currently hanging in his garage was killed in violation of the overlimit law. He also said that the remaining parts of the buck he shot while Anderson was watching were at his residence in Bozeman.

¶ 15 Anderson asked Cotterell about the parts of the two mule deer the officers found during their search. Cotterell stated that they had been shot by his son and grandson on Cotterell's property. However, Cotterell's property is entirely within hunting district 391, and the hunting permits held by Cotterell's son and grandson were for hunting district 380 which is across the Missouri River from Cotterell's property. Thus, the permits were not valid for hunting mule deer on Cotterell's property.

¶ 16 Anderson also applied for and executed a search warrant on Cotterell's residence in Bozeman on November 9, 2004. There Anderson found the head of the whitetail buck that he watched Cotterell retrieve with the off-highway vehicle from Scoffield's property. The buck was tagged with a doe tag.

¶ 17 After reviewing all of the evidence (including calendars, journals, statements of witnesses, photographs, marked frozen meat and license information), Anderson learned that in 2003, Cotterell shot three bucks and a doe on his property without the proper licenses or permits and in violation of the law regarding taking an overlimit of animals. And, in 2002, Cotterell shot a mule buck, a whitetail doe and a whitetail buck in violation of the overlimit law. In addition, the mule buck was shot without a license.

¶ 18 As a result of Anderson's investigation, Cotterell was charged by Information with eight counts of hunting violations, including three misdemeanor counts of killing more than the legal limit of game animals in violation of § 87-3-103, MCA (2003); one misdemeanor count of hunting without a license in violation of § 87-2-103, MCA (2003); one misdemeanor count of possession of an unlawfully killed game animal in violation of § 87-3-112, MCA (2003); one misdemeanor count of using two-way communication devices while hunting in violation of § 87-1-125, MCA (2003); one misdemeanor count of hunting without landowner permission in violation of § 87-3-304, MCA (2003); and one felony count of possessing unlawfully taken wildlife in violation of § 87-3-118, MCA (2003).

¶ 19 Cotterell raised a variety of issues related to the suppression of evidence in three briefs filed October 11, 2005, March 15, 2006, and May 2, 2006. These issues were addressed and denied by the District Court in an order dated June 28, 2006.

¶ 20 Cotterell was tried before a jury on the above charges on January 29 and 30, 2007. He was acquitted on the charge of hunting without landowner permission and convicted of the remaining seven charges with the felony count reduced to a misdemeanor based on the value of the animals unlawfully taken.

¶ 21 The District Court sentenced Cotterell to serve six months in the county jail on each count, with all time suspended. The sentences were to run concurrently. The District Court also imposed various fines and ordered Cotterell to pay restitution for the value of the animals unlawfully killed or taken. In addition, the court suspended Cotterell's hunting, fishing and trapping privileges for a period of two years from the date of conviction. The court stayed the execution of its judgment pending appeal.

Issue 1.

¶ 22 Whether the District Court erred in denying Cottrell's Motion to Suppress.

¶ 23 We review the denial of a motion to suppress to determine whether the findings of fact supporting a district court's decision are clearly erroneous, and whether the court's interpretation and application of the law are correct. State v. Munson, 2007 MT 222, ¶ 18, 339 Mont. 68, ¶ 18, 169 P.3d 364, ¶ 18 (citing State v. Copelton, 2006 MT 182, ¶ 8, 333 Mont. 91, ¶ 8, 140 P.3d 1074, ¶ 8; State v. Bassett, 1999 MT 109, ¶ 17, 294 Mont. 327, ¶ 17, 982 P.2d 410, ¶ 17; State v. Loh, 275 Mont. 460, 475, 914 P.2d 592, 601 (1996)). A court's findings of fact are clearly erroneous if they are not supported by substantial credible evidence, if that court has misapprehended the effect of the evidence, or if our review of the record leaves this Court with a definite or firm conviction...