No. 88-010
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JOHN E. LEE,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District
In and For the County of Missoula
The Honorable John S. Henson, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
J. Dirk Beccari, Missoula, MT
Doug Anderson, Legal Intern, Missoula, MT
For Respondent:
Honorable Mike Greely, Attorney General, Helena, MT
Betsy Brandborg, Assistant Attorney General
Robert L. Deschamps, 111, County Attorney, Missoula, MT
Betty Wing, Deputy County Attorney
Submitted on Briefs: April 7, 1988
Decided: May 17, 1988
Filed: 1 7 18
98
-
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
John Lee appeals from the judgment of the District
Court, Fourth Judicial District, Missoula County, finding Lee
guilty of driving under the influence of alcohol. We affirm.
The following issue is presented for our review: Did
the District Court err in ruling that there was sufficient
probable cause to arrest the defendant for driving under the
influence of alcohol?
The record discloses the following pertinent facts. On
the evening of September 1, 1986, Montana Highway Patrol
Officer Henry Devereaux was traveling south on Orange Street
in Missoula. As Devereaux approached the intersection of
Orange and Third Street North, he saw the defendant's blue
pickup truck turn in front of him. After the defendant's
vehicle passed, Devereaux attempted to continue on but was
forced to stop abruptly when a sedan that was following the
defendant's blue pickup turned in front of Devereaux. When
Devereaux pulled the sedan over, the defendant stopped his
blue pickup as well. Devereaux then used his public address
loudspeaker to instruct the white sedan to pull over to a
safer stopping point. At that point, Devereaux noticed the
defendant get out of his vehicle and stumble onto the street.
The defendant appeared to be confused as to whom Devereaux
had intended to stop. Noting the defendant's confusion,
Devereaux told the defendant to leave.
However, the defendant did not leave but instead pulled
onto Grant Street (following the white sedan) and stopped his
vehicle in the middle of the road. After getting out of his
vehicle, the defendant headed toward the stopped sedan and
the police car. As the defendant walked toward the stopped
vehicles, Devereaux determined that the defendant appeared
intoxicated and radioed for assistance, explaining that there
was a possible DUI interfering with a vehicle stop.
Devereaux then got out of his vehicle and instructed the
defendant to pull his car to the curb. Devereaux noted that
the defendant had difficulty understanding the instructions
but eventually complied. Devereaul: returned to his car and
awaited assistance.
Montana Highway Patrolman Paul Grimstad arrived on the
scene and was directed to the defendant by Devereaux. Upon
observing the defendant's slurred speech and unsteady bal-
ance, Grimstad decided the defendant was probably intoxicat-
ed. Consequently, Grimstad informed the defendant that he
was recording the conversation. Grimstad then initiated
field sobriety tests which the defendant failed. As a re-
sult, Grimstad arrested the defendant for DUI. Upon the
defendant's arrival at the police station, the defendant was
subjected to several sobriety exercises as well as a breath
test. The defendant was found to have a blood alcohol level
of .219 milligram percent.
The defendant filed a motion to suppress the State's
evidence maintaining that the State lacked probable cause to
make an investigatory stop of defendant's vehicle and fur-
ther, that there was no evidence supporting Devereaux's
suspicion that the defendant was drunk. The District Court
denied the defendant's motion stating that there was probable
cause to support the defendant's arrest. On June 8, 1987,
the defendant was convicted of driving under the influence in
spite of the defendant's renewed motion to suppress the
evidence. The defendant appeals.
The defendant maintains that the District Court erred in
denying the defendant's motion to suppress. However, the
dispositive issue in the case at bar is whether Officer
Grimstad had sufficient probable cause to arrest the defen-
dant for driving under the influence of alcohol. We find
that there was sufficient probable cause upon which to base
the defendant's arrest.
Initially, we must determine whether Officer Devereaux's
investigatory stop of the defendant was proper. We hold that
it was. In Matter of Suspension of Driver's License of Blake
(Mont. 1986), 712 P.2d 1338, 43 St.Rep. 143, this Court held:
The proper test for determining whether an officer
was justified in making an investigatory stop is
.. . "a particularized suspicion of some kind of
wrongdoing." State v. Gopher (Mont. 19811, 631
P.2d 293, 38 St.Rep. 1078. In order to prove the
existence of a "particularized suspicion", the
State must show: " (1) objective data from which
an experienced officer can make certain inferences;
and, (2) a resulting suspicion that the occupant
of a certain vehicle is or has been enqaqed in
wrongdoing ... " Gopher, 631 P.2d at -296, 38
St.Rep. at 1081.
Blake, 712 P.2d at 1340, 43 St.Rep. at 145.
In the immediate case, the petitioner voluntarily
stopped his car twice and it was only then that Officer
Devereaux requested the petitioner to pull over. By the time
Devereaux instructed the defendant to stop, Devereaux had
observed the defendant act in what appeared to be a confused
and possibly intoxicated manner. Not only did the defendant
ignore Devereaux's instructions to leave after the first stop
but during the second voluntary stop he left his pickup
parked in the middle of the road impeding traffic. Based on
this objective data, Officer Devereaux had probable cause to
infer that the defendant was a possible DUI who would inter-
fere with the investigations stop of the white sedan and so
called for assistance.
Subsequent to requesting assistance, the defendant's
actions further confirmed Devereaux's suspicions. Devereaux
observed that the defendant had difficulty walking, trouble
understanding instructions, and breath that smelled of
alcohol. Devereaux then instructed the defendant to move his
vehicle out of the middle of the road and to await further
instructions.
In light of Officer Devereaux ' s three years experience
as a Montana Highway Patrol officer, there were clearly
sufficient objective circumstances from which he could prop-
erly infer that the defendant was under the influence of
alcohol at the time he requested the defendant to pull his
car over to the curb. As a result of observations which
Devereaux made regarding the defendant's condition, Devereaux
suspected that the defendant, whom Devereaux had observed
driving his pickup, was under the influence of alcohol.
There can be no question but that the facts in this case were
sufficient to demonstrate a particularized suspicion under
the two step test, announced by this Court in Gopher, 631
P.2d at 296, 38 St.Rep. at 1081, and Blake, 712 P.2d at 1340,
43 St.Rep. at 145. As such, Officer Devereaux's stop was a
proper investigatory stop.
The defendant next contends that the arresting officer,
Montana Highway Patrol Officer Paul Grimstad did not have
probable cause to arrest the defendant for driving under the
influence of alcohol. We disagree.
By the time Grimstad had arrived on the scene, the
defendant had already been properly stopped by Devereaux.
Grimstad's subsequent observations clearly demonstrate objec-
tive manifestations establishing probable cause to arrest the
defendant. Under similar circumstances, we have held that:
A founded suspicion to stop for investigative
detention may ripen into probable cause to arrest
through the occurrence of facts or incidents after
the stop.
State v. Sharp (Mont. 1985), 702 P.2d 959, 963, 42 St.Rep.
1009, 1013; citing, United States v. Modina-Gasca (9th Cir.
1984), 739 F.2d 1451, 1453; and, United States v. Portillo-
Reyes (9th Cir. 1975), 529 F.2d 844, 850.
In the instant case, Grimstad was directed to the defen-
dant by Devereaux when he arrived on the scene. After
speaking to the defendant, Grimstad found the defendant's
intoxication manifested itself as follows: very slurred
speech, strong odor of alcohol on defendant's breath, blood-
shot eyes, inappropriate behavior, staggering and unsteadi-
ness, and, general confusion as to what was occurring. After
observing the defendant's apparently intoxicated state,
Grimstad performed two sobriety tests on the defendant. The
defendant failed both tests. As a result of his own observa-
tions of the defendant and the defendant's failure of the
sobriety tests, Grimstad concluded that the defendant was
under the influence of alcohol.
Although Grimstad did not actually witness the defendant
driving the pickup truck while under the influence of alco-
hol, he was supplied with information to that effect by a
reliable source, Officer Devereaux. Further, the defendant
himself admitted to Grimstad that he had been operating a
vehicle. Based on the information that Grimstad acquired
through his conversations with Officer Devereaux and the
defendant, his observations of the defendant and the defen-
dant's poor performance on the sobriety tests, we find that
Grimstad properly placed the defendant under arrest for
driving under the influence of alcohol.
The threshold issue for the validity of an arrest is
probable cause. The probable cause requirement is satisfied
at the time of arrest if the facts and circumstances within
the officer's personal knowledge, or upon information impart-
ed to him by a reliable source, are sufficient to warrant a
reasonable person to believe that the suspect has committed
an offense. State v. Ellinger (Mont. 1986), 725 P.2d 1201,
1202, 43 St.Rep. 1778, 1780, citing State v. Hamilton (1980),
185 Mont. 522, 528, 605 P.2d 1121, 1125; State v. Hill
(1976), 170 Mont. 71, 74, 550 P.2d 390, 392. There can be no
question but that Officer Grimstad had sufficient probable
cause to arrest the defendant on the charge of driving under
the influence in violation of § 61-8-401, MCA. As such, the
District Court correctly refused the defendant's motion
seeking to suppress the evidence gathered as a result of the
arrest.
We affirm.
/
e m"G.
Justice
We concur: