State v. Zeimer

• Decision Date: 24 May 2022
• Docket Number: DA 20-0107
• Citation: 510 P.3d 100
• Parties: STATE of Montana, Plaintiff and Appellee, v. Michael Allen ZEIMER, Defendant and Appellant.
• Court: Montana Supreme Court

510 P.3d 100

STATE of Montana, Plaintiff and Appellee,

v.Michael Allen ZEIMER, Defendant and Appellant.

DA 20-0107

Supreme Court of Montana.

Submitted on Briefs: November 17, 2021

Decided: May 24, 2022

For Appellant: Samir F. Aarab, Boland Aarab PLLP, Great Falls, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Michael P. Dougherty, Assistant Attorney General, Helena, Montana, Brett Irigoin, Dawson County Attorney, Glendive, Montana

Justice Dirk Sandefurdelivered the Opinion of the Court.

¶1Michael Allen Zeimer(Zeimer) appeals from his December 24, 2020 convictions in the Montana Seventh Judicial District Court, Dawson County, on the offenses of felony criminal possession of dangerous drugs (methamphetamine) and misdemeanor criminal possession of drug paraphernalia.Zeimer asserts that the convictions are invalidly based on evidence seized as the fruit of an unlawfully-prolonged investigatory traffic stop.We address the following dispositive issue:

Whether the District Court erroneously denied Zeimer's motion for suppression of evidence discovered upon a vehicle search that resulted from an unlawfully prolonged investigative DUI stop?

We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 At approximately 9:00 a.m. on April 15, 2019, a deputy Dawson County Sheriff(Deputy 1) responded to the Town Pump Travel Center in Glendive, Montana,¹ on an employee's 911 report that a vehicle was irregularly parked in the rear parking lot of the truck stop with the driver slumped over the steering wheel.At the subsequent suppression hearing, Deputy 1 characterized the 911 dispatch as a "a welfare check."He further acknowledged on cross-examination that the report stated nothing more than that a pickup truck was parked "irregularly," perpendicular to and across several striped parking spaces in the rear parking lot, with someone "slumped over their steering wheel,""sleeping."

Initial Investigatory Stop

¶3 Deputy 1 testified that, upon his arrival at the truck stop, he saw the pickup irregularly parked as described in the 911 report.He recounted that, as he approached, he saw the driver, later identified as Zeimer, "appear[ ] to look up from the steering wheel, check his mirrors," and then notice the approaching patrol car.He testified that, though he could not tell whether the truck's engine was already running, Zeimer "proceeded to drive [forward] ... in a slow ... circle ... around to the frontside" of the store, where he properly parked in a lined parking space.The deputy's body-cam recording, admitted into evidence at the suppression hearing, did not capture his initial observations upon arrival.It first captured Zeimer as he exited his truck after parking in front of the store and then calmly walked forward to the front corner of his truck where he stopped and waited for the deputy to approach on foot.²As Zeimer exited his vehicle, the deputy pulled in and parked in the lined parking space next to Zeimer's truck and then immediately walked over and personally engaged him.

¶4 Deputy 1 testified that, based on his training and experience, the "suspicious" circumstances observed upon his arrival (i.e., the manner in which the truck was parked perpendicular across the lined parking spaces with the driver slumped over the steering wheel, the driver's decision to move and drive around to the front of the store on approach of the patrol car, and his "slow driving" around the front of the building with turns that were "rounded and slow" rather than "sharp" or "crisp") were "usually" indicative of "somebody who [was either] impaired or suffering from a medical condition."In further describing his thought process at the time, the deputy explained that, in trying to assess which, if not both, of those possible scenarios might be the case, he intended to first check on Zeimer's welfare and then attempt to ascertain whether he had been driving under the influence (DUI) of alcohol or drugs.³

Initial Questioning: Zeimer's Identity, Explanation of his Presence and Circumstance, and Attempt to Ascertain Any Indicia of Impairment

¶5 Upon engaging Zeimer at the front of his truck, Deputy 1 identified himself and inquired as follows:

[Deputy 1]: How are you doing?

[Zeimer]: Good.

[Deputy 1]: ... Alright. ...We had a welfare check asked to be done on ya. ...Were you sleeping in the pickup ...?

[Zeimer]: Ya, I just, I pulled in here.I just got done driving from, from Miles City and, uh, ... [inaudible][another sheriff's deputy (Deputy 2) then walks into frame from the left behind Zeimer's truck and begins looking into the truck bed]

[Deputy 1]: Ok, ok, you're on your way from, from Miles City, is that what you said?

[Zeimer]: Ya, I came through last night.

[Deputy 1]: Oh, ok.Do you have a driver's license on you, sir?Anything like that?

[Zeimer]: Sure.[Reaches into coat pocket]

[Deputy 1]: Where're you headed to?

[Zeimer]: Actually, I'm waiting for my sister.

[Deputy 1]: Oh, ok.[Zeimer pulls wallet from inside coat pocket and hands his driver's license to the deputy]She's going to meet up with you here?

[Zeimer]: Yep.

[Deputy 1]: Ok.[Examines driver's license]Michael Zeimer, is that right?

[Zeimer]: [Affirmatively nods head]

[Deputy 1]: Ok.

[Zeimer]: I'm from here in Glendive and I just haven't ... [inaudible]

[Deputy 1]: Ok, ok.So, ah, you were driving this morning, you said?

[Zeimer]: Yeah, ... I just pulled in there and I didn't know what, what time it was so I just thought ...

[Deputy 1]: Ok, ok, um, I did notice, and that's kind of how the, one of the things about the call was that, uh, when you parked, you parked sideways across the parking spots ...

[Zeimer]: Ok, ya I did, I did.I [inaudible] by the door, by the door [pointing towards the rear door of the casino/store] ...

[Deputy 1]: Ok, are you waiting for somebody that's in the casino ... ?

[Zeimer]: [Briefly looks away] ... I just, I just actually called her and she said she was going to be here.

[Deputy 1]: Ok, what's your sister's name, sir?

[Zeimer]: Janet Seymore.

[Deputy 1]: Janet Seymore?[Zeimer nods affirmatively] Ok and, ah, are you guys meeting up for breakfast, er, what's the ...

[Zeimer]: Actually, I'm still moving in with her. ...I'm just ... [inaudible] moving back here, and I ... [am going to be] living with her—her husband just, just passed away in January.

[Deputy 1]: Ok, ok, ya, I think I visited with her before and talked to her a bit about it.^[4] So, um, ... she's going to meet you here for, what, are you guys gonna get, coffee or what, what's going on?

[Zeimer]: She just said to meet her here and ... [inaudible], I'm supposed to go out to her house.

[Deputy 1]: Ok.Are you not allowed to go to her house by yourself, or what?

[Zeimer]: No, we had ... had a problem, but ... [inaudible]

[Deputy 1]: Ok, kind of getting things figured out?

[Zeimer]: Yeah, I think we got things worked out.

[Deputy 1]: Ok, were you living in Wibaux for a while?

[Zeimer]: [Looks back over his shoulder and watches Deputy 2 walk over from right of frame to back of Zeimer's truck and again look into his truck bed] Was I living in Wibaux?

[Deputy 1]: Ya.

[Zeimer]: Uh, [pensively looks down and pauses] a long time ago.

[Deputy 1]: A long time ago?Ok, not recently though?

[Zeimer]: No.I haven't lived in Wibaux for at least eight years.

[Deputy 1]: Eight years, oh, ok, ok.

The deputy then presumptively questioned Zeimer non-sequitur about his prior association with another individual (Rob Hammonds) who had no apparent involvement or relationship to the DUI investigation, to wit:

[Zeimer]: Spent some time up in Glendive, Miles City, Fairview.

[Deputy 1]: Oh, ok, ok.When's the last time you saw Rob Hammonds?

[Zeimer]: Rob Hammonds, [pensively pauses] about [pauses], probably two months ago.

[Deputy 1]: Two months ago?

[Zeimer]: Yep.

[Deputy 1]: Ok, ok, where was that at?

[Zeimer]: Fairview ... yeah, ... worked with him in Fairview.

[Deputy 1]: Ok, ok.

[Zeimer]: [Inaudible]

The questioning then returned to questions regarding Zeimer's presence and circumstances at the truck stop, and his motor vehicle registration and liability insurance compliance:

[Deputy 1]: Ok.Do you have a registration and insurance and everything?

[Zeimer]: Yeah.[Returns to truck door, opens it, and retrieves a piece of paper from driver's side visor, looks at it, returns to front of vehicle, hands registration to Deputy 1, and returns to truck door] ... [I'm] ... buying the truck.

[Deputy 1]: What's that?

[Zeimer]: I'm buying the truck from Scott Miller.

[Deputy 1]: ... Ok.

[Zeimer]: [Inaudible][returns other paperwork to the visor]

[Deputy 1 hands registration to Deputy 2 who walks out of frame—Zeimer walks back to driver's door and continues search for insurance card above visor]

[Zeimer]: [Closes truck door] I can't find the insurance paper ... [closes door and steps forward to Deputy 1]

[Deputy 1]: Can't find the insurance paper, ok.Does it have insurance on it, er?

[Zeimer]: As far as I know, yes.

[Deputy 1]: As far as you know?

[Zeimer]: Ya, ... [inaudible]Scott Miller.

[Deputy 1]: Ok, um, so you're buying the pickup from Scott?

[Zeimer]: [Nods affirmatively]

[Deputy 1]: Ok.

[Zeimer]: Ya, I work with him too.

[Deputy 1]: Ok, what a, do you know when Janet is supposed to be here?

[Zeimer]: She didn't say.She has a paper route here in Glendive.

[Deputy 1]: Oh, ok, ok, alright.Well, ah, so, with, with the way you parked the pickup and stuff, I guess, like I said, not sure why you did that.So, I, either you've been drinking—

[Zeimer]: Nope, I don't drink—

[Deputy 1]: Ok, you don't drink at all?

[Zeimer]: Nope.

[Deputy 1]: Oh, well that's good.So what time did ya drive this morning?

[Zeimer]: [Inaudible] three o'clock [and was] tired when I pulled in here.

[Deputy 1]: Three o'clock, ok.You might have been tired, that might have been why you parked that way?

[Zeimer]: [Inaudible] ... tired.

Transition to Investigation of Zeimer's Inconsistent Account of His Presence and Circumstances at the Truck Stop

¶6 Having, as manifest in the body-cam...