No. 82-112
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1982
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
HARVEY MORSETTE and
MELVIN MORSETTE,
D e f e n d a n t s and A p p e l l a n t s .
Appeal from: D i s t r i c t C o u r t of t h e T w e l f t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f H i l l
Honorable B. W. Thomas, J u d g e p r e s i d i n q .
Counsel of Record:
For A p p e l l a n t s :
Altman & ~ i l l e t $ e d t , Havre, Montana
B r i a n L i l l e t v e d t a r g u e d , Havre, Montana
F o r Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , Helena, Montana
James S c h e i e r a r g u e d , I n t e r n , O f f i c e of A t t o r n e y G e n e r a l ,
Helena, Montana
Ronald Smith, County A t t o r n e y , Havre, Montana
Submitted: Septemher 2 0 , 1982
Decided: November 1 0 , 1 9 8 2
% UV :IJ :982
Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Defendants were convicted of burglary and theft in a
nonjury trial held in the District Court of the Twelfth
Judicial District, Hill County. Prior to trial, defendants
made a motion to suppress illegally seized evidence, which
was denied. From the judgment of conviction, defendants
appeal.
On April 1, 1981, a farm owned by John Gabriel, located
13 miles west of Box Elder, was broken into and several
items of personal property were taken. The farm is equipped
with an alarm system which is activated whenever anyone
attempts to i l l e g a l l y enter several of the buildings on the
farm. The alarm system works by sending out prerecorded
telephone messages to the local sheriff's department and to
the homes of several neighbors whenever the zlarm is activated.
At 4:15 p.m., Erma Solberg received a prerecorded
message at her home in Box Elder. After waiting 5 to 10
minutes to determine if the message was a false alarm, she
drove west to the Gabriel farm to investigate. On the road,
she noticed only one dust cloud, indicating that only one
vehicle was approaching from the west. As the vehicle
approached, Erma Solberg observed that the vehicle was
travelling quite fast. Because the vehicle was unfamiliar
to her, she noted that it was a blue and white pickup truck
with a license number of 12T-D55. Approximately 20 minutes
elapsed from the time Erma Solberg received the alarm until
she saw the pickup. After meeting the pickup, Erma Solberg
continued west toward the farm.
About 10 minutes after the alarm was activated, another
neighbor, Roy Solberg, drove 2 miles east to the Gabriel
farm to investigate. Solberg did not meet any traffic as he
approached the farm. He found tire tracks in the driveway
which entered and left from the east. Solberg remembered
that he had not seen tire tracks when he drove by the farm
in the morning. He also noticed that a door to one building
was damaged, and a window was broken out of another building.
Roy Solberg continued to drive east past the farm, and
met Peter OILaughlin, a deputy from Rig Sandy, on the road,
who was also investigating the alarm. The deputy was driving
north from Big Sandy, and he had not met any vehicles on the
road until he stopped to talk to Roy Solberg. Solberg told
the deputy that there were tire tracks going into and coming
out of the Gabriel farm, and it appeared they were headed
east toward Box Elder. Roy and the deputy then continued east
until they met Erma Solberg.
Roy stopped Erma's vehicle, spoke briefly to her, and
learned that as she had driven west from Box Elder, she had
met only the blue and white pickup which was travelling
quite fast. Erma also gave Roy the license number of the
pickup. Roy relayed all this information to the deputy, who
then turned around and drove east to find the pickup. Roy
Solberg followed the deputy in his vehicle.
About one mile west of Box Elder, the deputy met the
blue and white pickup, which was then travelling west at a
normal rate of speed. The deputy turned around, turned on
the overhead lights, and went after the pickup, which then
increased its speed. The deputy pursued the pickup for
approximately two miles. The pickup ultimately relented in
the chase, although not before attempting to negotiate a 130
degree turn on the road. The deputy stopped his patrol car
with the pickup a little ahead of and below him, but he did
not block the vehicle in. The deputy was not in uniform and
b a not carrying his service revolver.
rs Consequently, upon
leaving his car, the deputy removed a shotgun from the trunk
of the patrol car and approached the pickup. Wolding the
shotgun in the "port" position, so that it was not pointed
at the occupants of the pickup, the deputy identified himself,
and ordered the occupants out of the truck. At this time,
Roy Solberg arrived at the scene and immediately identified
the property in plain sight in the bed of the truck as
belonging to John Gabriel. The deputy then detained the
suspects until an officer from the Hill County sheriff's
department arrived to take the suspects into custody. John
Gabriel thereafter viewed the contents of the pickup, con-
sisting of various items of farm tools and equipment, and
identified them as belonging to him.
At a hearing on defendants' motion to suppress all
evidence obtained in the defendants' arrest, the deputy
testified that although he did not tell the defendants that
they were under arrest, he would not have allowed them to
leave. He further testified that he did not know if the
defendants' pickup was the vehicle that had entered the
Gabriel farm, but that he had stopped it because it was the
only vehicle in the area, he had a reasonable belief that
the occupants were involved in an offense, and he thought
the vehicle was trying to get away from him. The deputy
also stated he would have stopped any vehicle, regardless
of its color, make, or style, that was on the road that
afternoon.
The District Court granted defendants' motion to suppress
on June 10, 1981, concluding that the deputy did not have
probable cause to stop the defendants' vehicle. In granting
the motion, the District Court relied on State v. Xader
(1978), 177 Wont. 252, 581 P.2d 437, and State v. Lahr
(1977), 172 Mont. 32, 560 P.2d 527.
On June 22, 1981, plaintiff filed a motion to recon-
sider the order of June 10, 1981. This motion was denied on
July 2, 1981. Plaintiff filed another motion to reconsider
on July 20, 1981, relying on State v. Gopher (1981), -
Mont. , 631 P.2d 293, 38 St.Rep. 1078, which was decided
on July 9, 1981. After a hearing on the motion, the District
Court vacated its order dated June 10, 1981, which granted
defendants' motion to suppress.
The District Court set out its reasons for vacating the
motion to suppress in the following memorandum, dated
October 7, 1981:
"The Court has reviewed the evidence submitted
at the hearing on the motion to suppress and
the subsequent testimony of Peter O'Loughlin
for the purpose of applying the criteria of
State y Gopher, 38 SR 1078. That case approved
-.
the stopping of a motor vehicle by a law enforce-
ment officer when the stop is (1) by a trained
police officer, (2) who has a particularized
suspicion that an occupant of the vehicle, is
or has been engaged in criminal activity, or
witness thereto; and (3) is limited and reasonable.
"At the time in question, Deputy Sheriff O'Loughlin
had been a law enforcement officer for over 2 1/2
years. His experience with burglary investigations
was limited, but he had worked several burglary
cases. He had taken the basic training course of
six weeks at the Montana Law Enforcement Academy,
which included instruction on investigations and
basis rules of evidence. While he might have been
a comparative beginner in the law enforcement
field, he sufficiently qualified as a trained
police officer.
"So far as the second factor is concerned,
O'Loughlin possessed the following information:
He was acquainted with the burglar alarm
installation at the Gabriel farm and knew that
neighbors were connected to it. He knew that
the alarm had been set off on April 1, 1981,
and responded to that alarm. He was aware that
the Solbergs, neighbors of Gabriels, also had
responded to the alarm as being genuine. He
was told by Roy Solberg that Roy had stopped at
the Gabriel place and Roy had observed fresh
tracks of motor vehicle tires in the Gabriel
yard and had followed those tracks east to the
point where he met O'Loughlin. Deputy O'Loughlin
was acquainted with the area, knew that notor
traffic in the area was light and could be
observed for miles; that he and the Solbergs
had responded to the alarm within minutes; that
he had met no traffic as he approached from the
south and that Roy Solberg had met no traffic as
he approached from the west. Further, he knew
that Erma Solberg, approaching from the east, had
seen no traffic except defendants' vehicle, and
that neither he nor the Solbergs had observed
any travel signs of other vehicles in the area.
Through Roy Solberg, he was provided with a
description of the defendants' vehicle and its
license number and with the information that it
had been traveling at a high rate of speed. When
he started pursuing defendants' vehicle, it picked
up speed. From this information, Ol~oughlinhad
reason to suspect that some criminal activity had
occurred at the Gabriel farm and that the occupants
of defendants' vehicle either were connected with
that activity or were witnesses to some circumstance
related to it. His suspicions were particularized
to a specific activity and to a specific vehicle.
"The question remains whether the stop itself was
limited and reasonable. The only argument defendants
make in this regard is that, when the stop was made,
O'Loughlin immediately produced a shotgun and ordered
defendants out of their vehicle. He did not discharge
the shotgun either in effecting the stop or afterwards.
In view of the fact that he believed the vehicle had
been accelerated when he started the pursuit, and his
knowledge of the other circumstances, it was not
unreasonable for O'Loughlin to take precautions and
use the shotgun as he did.
"Almost immediately upon making the stop, O'Loughlin
discovered that defendants' vehicle was carrying
Gabriel property. His stop was limited in time and
action to that which was necessary to detain defendants
until Hill County officers could take over.
"In the view of this Court, the stop of defendants'
vehicle in the rural area of Hill County under the
circumstances described met the criteria prescribed
by the Gopher case."
On December 1, 1981, a nonjury trial was held, and
Harvey and Xelvin 14orsette were convicted of burglary and
theft. Harvey Morsette was sentenced to a 4 year prison
term on each count. The terms were to be served concurrently
and the sentence was suspended. Melvin Morsette was sentenced
to a term of 5 years on each count. The sentences were to
run concurrently with the last two years of each sentence
suspended.
Defendants present two issues for review:
1. Was the initial stop of defendants' vehicle justified
on the basis of specific and articulable facts warranting a
particularized suspicion that defendants were or had been
engaged in criminal activity, or were witnesses thereto?
2. Was the stop of defendants' vehicle conducted in a
reasonable manner; or was it overly intrusive, amounting, in
fact to an arrest?
The test used to determine whether a stop is justified
was set forth in State v. Gopher (1981), - Mont. -, 631
P.2d 293, 38 St.Rep. 1078, wherein this Court stated, "When
a trained police officer has a particularized suspicion that
the occupant of a vehicle is or has been engaged in criminal
activity, or witness thereto, a limited and reasonable
investigatory stop and search is justified."
As stated in Gopher, an investigatory stop must be
based on a "particularized suspicion" in order to be valid.
This concept was set forth in United States v. Cortez (1981),
449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621, wherein the
Court held that objective facts and circumstantial evidence
which indicate that a particular vehicle is involved in
criminal activity will justify a brief investigatory stop.
In determining what cause is sufficient to authorize police
to stop a person, the Court indicated that "the totality of
the circumstances--tile whole picture--must be taken into
account. Eased upon that whole picture, the detaining
officer must have a particularized and objective basis for
suspecting the particular person stopped of criminal activity."
449 U.S. 417-418. The Court stressed that certainty is
not essential. It stated that the process of assessing all
of the circumstances does not deal with hard certainties,
but with probabilities, and evidence collected must be
weighed as understood by those versed in the field of law
enforcement.
Based upon these concepts, the defendants contend that
the investigatory stop was improper and unjustified because
the deputy was unqualified as a trained law enforcement
officer, and also because the stop was not based on specific,
articulable, and objective facts, but rather on the deputy's
speculations and hunches. We find no merit in these con-
tentions. Sufficient facts were set forth in the District
Court's memorandum of October 7, 1981, to justify the initial
stop of the defendants' vehicle.
First, the District Court found that the deputy was
sufficiently qualified as a trained law enforcement officer.
This finding was based on the following factors: 1) the
deputy had been a law enforcement officer for over 2 1/2
years; 2) he had worked on several burglary cases; and 3) he
had taken the basic training courses at the Montana Law
Enforcement Academy, which included instruction on investi-
gations and basic rules of evidence. These factors, along
with the fact that the deputy was familiar with the alarm
system at the Gabriel farm, and had actually investigated
an attempted burglary at the Gabriel farm on a prior occasion,
illustrate that the deputy had the necessary qualifications
as a trained law enforcement officer to make the initial
stop of defendants' vehicle.
Second, the District Court cited the many facts which
the deputy possessed which made his suspicions particularized
to a specific activity and to a specific vehicle. We
comment with favor upon the manner in which the District
Court set out the facts it relied upon to determine that
the deputy possessed a particularized suspicion that the
defendants were involved in criminal activity or were
witnesses thereto. All these factors, which the denuty
had knowledge of, gave him reason to believe that some type
of criminal activity had occurred at the Gabriel farm, and
that the defendants' vehicle may have been involved. Deputy
OILaughlin was not absolutely certain that the defendants'
vehicle had been involved in the burglary, but a "particularized
suspicion" does not require certainty on the part of the law
enforcement officer. United States v. Cortez (1981), 449
U.S. 411, 418.
The defendants next contend that the conduct of the
deputy in making the initial stop was not limited and
reasonable, but was so intrusive that it amounted to an
arrest. Defendants point particularly to the deputy's
display of the shotgun when he stopped the defendants'
vehicle. They also point to the fact that the deputy
testified the defendants were not free to leave, and that
he would have stopped them if they attempted to leave.
The United States Supreme Court has decided many cases
which address the issue of the permissibility and scope of
the investigatory stops. In Delaware v. Prouse (1979), 440
u.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660, the Court
stated, "Stopping an automobile and detaining the occupants
constitute a 'seizure' within the meaning of [the Fourth
and Fourteenth] Amendments, even though the purpose of the
stop is limited and the resulting detention [is] quite
brief." However, "what the constitution forbids is not all
searches and seizures, but unreasonable searches and
seizures." Elkins v. United States (1960), 364 U.S. 206,
In Terry v. Ohio (1968), 392 U.S. 1, 58 S.Ct. 1868,
20 L.Ed.2d 889, the Court noted that "there is no ready test
for determining reasonableness other than by balancing the
need to search [or seize] against the invasion which the
search [or seizure] entails. " (Quoting Camera v. Plunicipal
Court (1967), 387 U.S. 523, 534-535, 536-537.) The Court
went on to note that the balancing test turns largely on the
governmental interest which is claimed to justify the need
for the search:
"One [governmental interest] involved is of
course that of effective crime prevention
and detention; it is this interest which
underlies the recognition that a police
officer may in appropriate circumstances
and in an appropriate manner approach a
person for the purposes of investigating
possibly criminal behavior even though there
is no probable cause to make an arrest." 392
U.S. at 22.
We hold that the manner in which the deputy stopped the
defendants' vehicle was justified and appropriate, and met
the criteria of Terry.
The deputy's testimony that he would have attempted to
prevent defendants from leaving if they had tried to do so
does not constitute unreasonable behavior on his part.
Although a stop which is lawful at the outset can become
unlawful if it becomes overly intrusive, Kremen v. United
States (1957), 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876,
we do not find that to be the case here. The deputy's
suspicions were founded on an apparently genuine burglar
alarm, the information supplied by Roy and Erma Solberg, the
elusive behavior of defendants' pickup while he was pursuing
it, and the fact that the deputy saw farm equipment and
tools in the back of defendants' pickup when he made the
stop. With these facts in mind, the deputy approached the
vehicle and ordered the defendants to get out. At the
time he did so, he had a reasonable suspicion that a crime
had been committed and that the defendants may have been
involved.
Defendants place too much emphasis on the deputy's use
of the shotgun when he effectuated the stop. The deputy was
not in uniform and was not carrying his service revolver.
He approached the defendants' pickup holding the shotgun in
the port position. He never pointed the shotgun at the
defendants, and did not discharge the shotgun either in
effecting the stop or afterwards. In addition, the deputy
did not recognize two of the passengers in the pickup, and
considered this to be a potentially dangerous situation. In
light of these facts, Deputy O'Laughlin was fully justified
in carrying a shotgun during the execution of the investigatory
stop, for his own protection.
We hold that the initial stop of the defendants' vehicle
was justified under the limitations established in Gopher.
The stop itself was conducted in a reasonable manner and was
limited to that which was necessary to effectuate the investi-
gatory purposes of the stop.
The judgment of the District Court is affirmed.
I
Justice
We Concur: