No. 92-298
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
THE STATE OF MONTANA,
Plaintiff and Respondent,
v.
ROBERT DUANE ANDERSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert S . Keller, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Donald L. Shaffer, Attorney at Law,
Libby, Montana
For Respondent:
Hon. Marc Racicot, Attorney General,
John Paulson, Assistant Attorney General,
Helena, Montana; Scott B. Spencer,
Lincoln County Attorney, Libby, Montana
L d kisf .i Submitted on Briefs: December 17, 1992
Decided: June 1, 1993
Justice Terry N. Trieweiler delivered the opinion of the Court.
Defendant Robert Duane Anderson was convicted in the
Nineteenth Judicial District, Lincoln County, of Criminal
Possession of Dangerous Drugs with Intent to Sell in violation of
5 45-9-103, MCA. Anderson appeals fromthe District Court's denial
of his motion to suppress evidence obtained in the warrantless
search of his vehicle. We reverse and remand.
The dispositive issue on appeal is:
Did the Lincoln County Sheriff's Department have a
particularized suspicion to justify an investigative stop of the
defendant's vehicle?
In the early afternoon on Tuesday, October 8, 1991, the
Lincoln County Sheriff's Department received a tip that Robert
Duane Anderson and another individual were leaving Libby, Montana,
and driving to Washington to retrieve a large quantity of
marijuana. The informant told Officer Don Bernall that Anderson
and his fellow passenger would be traveling in Anderson's blue
Toyota pickup and that they would be returning to Montana in the
late night on October 8, 1991.
Officer Bernall discussed the tip with County Attorney
Scott B. Spencer and they decided the tip should be confirmed
before applying for a search warrant. They devised a stakeout
strategy to verify the tip and to conduct further investigation.
By approximately 6:00 p.m. on October 8, 1991, the plan was
implemented.
The dispatcher at the Lincoln County Sheriff's Office
directed Officers Doug Johnson and Klint Gassett to drive in two
separate patrol cars to the Idaho-Montana border on U.S. Highway 2.
Two other officers were directed to the Idaho-Montana state line on
Highway 56. The officers were instructed to wait in their
positions until they received a message from Officer Bernall that
he had sighted Anderson's blue pickup, and once the pickup crossed
the Idaho border into Montana, the officers were to stop it for
further investigation.
Night fell, and in the early morning hours of October 9, 1991,
Officer Bernall traveled west into Idaho on U.S, Highway 2, in an
effort to locate Anderson's pickup. At about 1:20 a.m., Officer
Bernall sighted a blue pickup traveling eastbound toward Montana.
Officer Bernall alerted Officers Johnson and Gassett by radio that
he had sighted what he believed to be Anderson's pickup. Officer
Bernall instructed the two officers to verify the pickup's license
plate by following it. Anderson passed the two patrol cars on
Highway 2, just inside the Montana border. By following the
pickup, the officers confirmed that the license plate was
Anderson's.
Officer Gassett instructed Officer Johnson to conduct a
traffic stop on Anderson's pickup. Officer Gassett testified at
trial that although Anderson had not violated any traffic laws to
initiate a traffic stop, the officers conducted such a stop
nonetheless. Officer Johnson activated his red top lights and
signalled to Anderson to pull to the side of the road. Anderson
stopped his pickup.
Officer Johnson shined his spotlight on the pickup. Neither
of the officers approached the stopped vehicle to ask the driver or
passenger for a driver's license, proof of identification, or proof
of insurance, despite not knowing Anderson or the passenger. The
officers yelled to the men to get out of the pickup. Officer
Gassett called the passenger Michael Hathaway. Michael Romine
stepped out of the passengerts side of the pickup and walked into
the ditch beside the highway. Officer Gassett pulled his gun and
yelled at Romine to '!get his hands up," and to come over to his
patrol car. Romine complied and proceeded toward the officer as
instructed.
When Romine reached the patrol car, Officer Gassett directed
him to Lay spread eagle against the car with his hands on the hood.
The officer conducted a pat-down search on Romine (which the
officer later testified was for the purpose of looking for weapons
that could harm the officers) . During the pat-down, the officer
felt and removed a small, hard object in Rominels right shirt
pocket. The object was approximately three inches long and
three-quarters inch in diameter. I t was a single hit marijuana
pipe. Officer G a s s e t t also removed Romine9s wallet from his
pocket, told Romine he was under arrest, handcuffed him, and placed
him in the back seat of the patrol car.
Officer Johnson conducted a pat-down search on Anderson, but
did not arrest him. The officers detained Anderson in the area of
the patrol cars. Officer Bernall arrived a short time later.
Subsequent to the stop, the removal of both Anderson and
Romine from the pickup, and the initial body pat-down searches,
Officers Bernall and Gassett conducted a search of Anderson's
pickup. On the floorboards of the pickup on the driver's side,
Officer Bernall discovered a brown paper grocery bag. The top of
the bag was rolled shut. Officer Bernall opened the bag and
observed what he believed to be marijuana. The officers arrested
Anderson for possession of dangerous drugs.
Officer Bernall drove the pickup to Libby and impounded the
vehicle. The officers then obtained a search warrant for the
pickup, At approximately 3:40 a.m., on October 9, 1991, the
officers searched the pickup and found 11 pounds of marijuana
behind the pickup seat.
On October 9, 1991, the State formally charged Anderson by
complaint with the offense of Criminal Possession of Dangerous
Drugs with Intent to Sell in violation of § 45-9-103, MCA. At a
scheduled suppression hearing, Anderson made a motion to suppress
physical evidence obtained in the search of his pickup, based on
the alleged illegality of the search. The District Court denied
Anderson s motion. Anderson then entered an A@rd pf ea, preserving
his right to appeal the refusal to suppress the evidence seized
from the vehicle. The District Court accepted Anderson's plea and
sentenced him to 13 years in prison. Anderson appeals the court's
5
denial of his motion to suppress the evidence obtained in the
search.
The issue on appeal is whether the Lincoln County Sheriff Is
Department had a particularized suspicion to justify an
investigative stop of the defendant's vehicle.
Anderson contends the State's evidence was obtained from an
illegal search of his pickup, and therefore, the District Court
erred when it denied his motion to suppress. We agree with
Anderson that the warrantless search of his pickup and subsequent
seizure of the contraband were unlawful. We conclude that the
Lincoln County Sheriffis officers conducted an unjustified
investigatory stop of Anderson's pickup and that, therefore, the
search of that vehicle was illegal.
In 1968, the United States Supreme Court recognized that a
police officer may stop an individual to investigate possible
criminal behavior even though there is no probable cause to make an
arrest. Tenyv. Ohio (1968), 3 9 2 U.S. 1, 22, 88 S. Ct. 1868, 1880,
20 L. Ed. 2d 889, 906-07. The Supreme Court also recognized,
however, that the Fourth Amendment applies to seizures of the
person, T e v , 392 U.S. at 9, and investigatory stops such as the
stop of Anderson's pickup. UnitedStatesv. Cortez (1981), 4 4 9 U . S . 411,
417, 101 S. Ct. 690, 694-95, 66 L. Ed. 2d 622, 628. In Tewy, the
Supreme Court held that an unparticularized suspicion or l'hunch1I is
not sufficient cause to stop and frisk a person, and that an
investigatory stop and frisk will be justified only when it is
based on specific, articulable facts from which the officer could
reasonably infer that the individual is engaged in criminal
activity and is armed and dangerous, Teny, 3 9 2 U.S. 1.
In Co~ez, a post-Teny decision regarding investigative stops,
the United States Supreme Court recognized that terms like
uarticulable reasons" and founded suspicions, referred to by
courts in cases such as Terry, are not self-defining, and that
further guidance was necessary to know when an officer has
sufficient cause to make an investigatory stop. Cortez, 449 U.S.
at 417.
In Cortez, the Supreme Court held that to justify an
investigative stop of a vehicle, detaining officers must have a
particularized suspicion comprised of (1) objective data and
circumstantial evidence from which an experienced officer can make
inferences, and (2) a resulting suspicion that the occupant of a
certain vehicle is or has been engaged in wrongdoing. Corfez, 449
U.S. at 418.
In State v. Gopher (1981), 193 Mont. 189, 631 P. 2d 293, we adopted
the Cortez standard required to justify a valid investigatory stop
of an individual or vehicle. We held that probable cause was no
longer necessary in Montana to make a limited and reasonable
investigatory stop of an individual or vehicle; and that the lower
particularized suspicion standard, as set forth in Cortez, was
sufficient justification f a r a permissible stop.
In 1991, the Montana Legislature amended the investigative
stop statute to reflect the particularized suspicion standard set
forth in Gopher. Section 46-5-401, MCA, provides:
~nvestigative Stop, In order to obtain or verify an
account of the person's presence or conduct or to
determine whether to arrest the person, a peace officer
may stop any person or vehicle that is observed in
circumstances that create a particularized suspicion that
the person or occupant of the vehicle has committed, is
committing, or is about to commit an offense.
Both C r e and Gopher are clear that objective data must form
otz
the basis of the officer's particularized suspicion before a stop
is valid. Objective data may be based on "various objective
observations, information from police reports, if such are
available, and consideration of the modes or patterns of operation
of certain kinds of lawbreaker^.^' C r e , 449 U.S. at 418.
otz From
objective data, a trained officer draws inferences and makes
deductions that lead the officer to a resulting suspicion that the
individual is involved in criminal activity. Gopher, 631 P.2d at
295 (citing Carter, 4 4 9 U . S . a t 418). Based on t h e evidence before
this Court, hold that the Lincoln County Sheriff s Office did
not have objective data, as required by C r e and Gopher, upon which
otz
to form a resulting suspicion that Anderson was involved in a
crime.
The State asserts, on appeal, that the informant's tip served
as a sufficient basis to justify the stop of Andersonls vehicle.
The State relies on the precedent set forth in Adam v. m i u r n s
(1972), 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612, and Statev.
Sharp (1985), 217 Mont. 40, 702 P.2d 959--two cases in which an
informant's tip served as the initial basis for an investigative
stop. We conclude that the facts of both Adams and Slzarp are
distinguishable from the facts in the present case and that the
informant's tip in the present case did not give rise to a
particularized suspicion of criminal activity.
In Adams, the police officer was acting on a tip supplied
moments earlier by an informant, and the United States Supreme
Court held that the informant's tip had sufficient indicia of
reliability to justify the officer's stop. Adams, 407 U.S. at 147.
By contrast, the officer in the present case relied on an
informant's tip which included no factual basis to indicate its
reliability. The State concedes that it had no information
regarding the basis of the informant's knowledge.
In Sharp, a citizen informer had just called the police to
report a possible DUI offense and the informant provided the police
with information to find the vehicle. The police officer
corroborated the informant's tip with his own observations at the
scene. He noticed the defendant's vehicle stopped halfway in the
road, saw attendant skid marks near the car, and observed the
vehicle pulling away from him when he arrived. We held that based
on the informant's tip and the officer's observations at the scene
which corroborated the tip, the officer had a particularized
suspicion sufficient to stop the vehicle to investigate a possible
crime. Sharp, 702 P.2d at 962.
In contrast to Sharp, none of the observations made in this
case prior to the stop of Anderson's vehicle suggested illegal
activity. The only investigation made by the officers prior to the
stop involved observation of Anderson as he lawfully drove across
the Idaho border into Montana. In State v. Valky (1992), 252 Mont.
489, 494, 830 P.2d 1255, 1258, w e held a simple drive-by of a house
was not probative of the probability of illegal activity within the
house. Similarly, a simple observation of a motor vehicle lawfully
crossing a state line was not probative of the probability that
Anderson was transporting drugs in his vehicle.
Instead of conducting independent investigation to corroborate
the tip, the officers relied on the tip to stop the pickup and
gather information to justify the stop in the first place, Officer
Bernall testified that the very purpose of stopping and searching
Anderson's pickup was to investigate whether Anderson was
transporting drugs and to confirm that the tip was reliable so that
a search warrant could be obtained. To condone a search of the
defendant under these circumstances would render the right to be
free from unreasonable searches and seizures meaningless.
A tip that has not been shown to be reliable or trustworthy
for purposes of establishing probable cause to procure a search
warrant is also unreliable for purposes of providing an officer
with a particularized suspicion. An uncorroborated, unreliable tip
is not objective data as contemplated by Cortez and Gopher.
We conclude that when the officers in this case stopped
Anderson's pickup to investigate and confirm the reliability of
their informant's tip, the officers did not have objective data and
did not meet the particularized suspicion standard required by
Gopher. Therefore, the stop was illegal.
The Fourth Amendment protection against unreasonable searches
and seizures applies to the seizures of the person, including brief
investigatory stops such as the stop of a vehicle. Cortez, 449 U.S.
at 417. When the Lincoln County Sheriff's officers stopped
Anderson in his pickup, they violated Anderson's right to be free
from unreasonable searches and seizures as guaranteed by the Fourth
Amendment of the United States Constitution and Article 11,
Section 11, of the Montana Constitution.
We hold that because the initial stop was unlawful, all of the
evidence obtained by the officers in this case is inadmissible at
trial. Mupp v. Ohio (196l), 367 U.S. 643, 81 S. Ct. 1684,
6 L. Ed. 2d 1081.
We reverse and remand this case to the District Court and
direct the lower court to suppress and exclude from evidence all
items seized as a result of the unlawful stop and search of
Anderson's pickup.
W e concur:
Chief Justice
Justice Fred J. Weber dissents as follows:
I dissent from the conclusion of the majority which holds that
when the officers in this case stopped Anderson's vehicle, the
officers did not have objective data and did not meet the
particularized suspicion standard required by State v. Gopher
(l98l), 193 Mont. 189, 631 P.2d 293. Police are authorized to stop
a vehicle when they have a particularized or reasonable suspicion
that criminal activity may be afoot. This is the controlling rule
as clearly stated in State v. Sharp (1985), 217 Mont. 40, 702 P.2d
The defendant alleges that Officer Williams was without
authority to stop the defendant's vehicle because he
lacked probable cause to do so. This contention is
erroneous. All that is required of an officer in making
an investigatory stop is that he have a "particularized"
or "reasonable" suspicion that criminal activity may be
afoot. This is the applicable standard for an
investigative stop of a vehicle; or in other words "some
basis from which the court can determine that the
detention was not arbitrary or harassing." State v.
Gopher (Mont. 1981), 631 P.2d 293, 295, 38 St.Rep. 1078,
1081, relying on United States v. Cortez (1981), 449 U.S.
411, 101 S.Ct. 690, 66 L.Ed.2d 621.
Sharp, 217 Mont. at 45.
As pointed out in the majority opinion, on October 8, 1991,
the Lincoln County Sheriff's Department received a tip that
defendant and another individual were leaving Libby, Montana, and
driving to Washington to retrieve a large quantity of marijuana.
That informant told Officer Burnell that defendant and his fellow
passenger would be traveling in defendant's blue Toyota pickup and
would be returning to Montana in the late night of October 8, 1991.
We emphasize that here the police had a particularized suspicion
based upon the tip of a previously accurate confidential informant.
We have held that information supplied by a previously accurate
informant is sufficient to establish the probability of criminal
activity. State v. Walston (l989), 236 Mont. 218, 223, 768 P.2d
In Sharp this Court concluded that Officer Williams did have
sufficient basis for his particularized suspicion, stating:
Here, Officer Williams had a sufficient basis for his
particularized suspicion of illeyal activity. A citizen
had just called the police to report a possible DUI
offense and had given the police dispatcher the car's
license plate number and description and the direction of
travel. These facts were corroborated when Officer
Williams found the described vehicle qoinq in the
direction and on the hishway reported by the telephone
caller. When Williams came upon the automobile, it was
stopped halfway off the roadway and began to pull away
when he approached. Officer Williams noticed skid marks
coming from the vehicle. He had right at that time,
based on reasonable suspicion and logical inference, to
stop the defendant's vehicle to investigate a possible
crime. (Emphasis added.)
Sharp, 217 Mont. at 45-46. In Sharp an anonymous informant had
called to report a possible DUI, giving a description of the car's
license plate number, automobile description and direction of
travel. Sharp concluded those facts were corroborated when the
officer found the described vehicle going in the direction and on
the highway reported by the caller. 1 3 our case, we have directly
comparable facts, but facts which are somewhat stronger as a basis
for an investigatory stop than in Sham. Here the initial tip was
by the previously accurate confidential informant who advised that
the defendant and another individual were going to be driving into
Libby, Montana in the late night of October 8, and that they would
be traveling in the defendant's blue Toyota pickup. A significant
portion of these facts was corroborated when the officers observed
the defendant's blue Toyota pickup, whose license number they
verified, returning to Montana on the late night of October 8, as
described by the informant. These facts are directly comparable to
Sharp plus the additional corroboration of a tip by a previously
accurate confidential informant.
Following the confirmation of the defendant's vehicle going in
the right direction, on the highway, and at the time of day
described by the informant, I conclude that the officers had
properly obtained sufficient corroboration so they had a
particularized and reasonable suspicion that criminal activity may
have been afoot, entitling them to make an investigatory stop. The
majority refers to Sharp and suggests that this case is to be
distinguished because there was nothing to suggest that the
defendant's vehicle here suggested illegal activity. I do not find
any such indication of illegal activity in SharlJ. The majority
refers to State v. Valley (1992), 252 Mont. 489, 830 P.2d 1255, for
the proposition that a simple "drive by" of the premises is not
observation probative of illegal activity. That analysis is not
applicable here. The informant in Valley was an anonymous citizen
informant, the police did not have a way of knowing whether the
information was correct without specific corroboration which was
not obtainable in a drive by situation. The present case should be
distinguished from Valley because we have the previously accurate
confidential informant.
I suggest t h a t p o l i c e corroboration of t h e e x a c t make, model
and c o l o r of c a r , going i n the s p e c i f i e d direction a t t h e s p e c i f i e d
time was enough to constitute a l l p a r t i c u l a r i z e d suspicionn when
p r e s e n t e d by a p r e v i o u s l y accurate confidential informant.
I would therefore a f f i r m t h e D i s t r i c t Court.
Chief Justice J. Turnage concurs in the f-
og dissent.
June 1, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by U i e States mail, prepaid, to the following
ntd
named:
DONALD L. SHAFFER
Attorney at Law
502 Main St.
Libby, MT 59923
HON. MARC RACICOT, Attorney General
John Paulson, Assistant
Justice Bldg.
Helena, MT 59620
SCOTT B. SPENCER
Lincoln County Attorney
512 California Ave.
Libby, MT 59923
ED SMITH
CLERK OF THE SUPREME COURT
STATE 9F
MPNTANA