State v. Reynolds

                            NO.     94-368
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1995


STATE OF MONTANA,
          Plaintiff and Respondent,
     v.




APPEAL FROM:   District Court of the Eighteenth Judicial District,
               In and for the County of Gallatin,
               The Honorable Larry W. Moran, Judge presiding.



COUNSEL OF RECORD:

          For Appellant:
               Jeannettte   Ellen    Berry,   Berry   Law   Firm,   Bozeman,
               Montana
          For Respondent:

               Hon. Joseph P. Mazurek, Attorney General, Elizabeth
               L. Griffing, Assistant Attorney General, Helena,
               Montana; A. Michael    Salvagni,   Gallatin  County
               Attorney,  Susan Swimley, Deputy Gallatin County
               Attorney, Bozeman, Montana



                                    Submitted on Briefs:      May 11, 1995

                                                 Decided:      July 17, 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court.


        Defendant/Appellant,      Martin Reynolds (Reynolds), was charged
with a third offense of driving under the influence of alcohol

(DUI)   on December 22, 1991. After a hearing, the Gallatin County

Justice Court denied Reynolds' motion to dismiss, found Reynolds

guilty, and stayed sentence pending appeal.               Reynolds appealed to
district court.        The Eighteenth Judicial District Court, Gallatin

County,    denied     Reynolds'   motion to dismiss and following trial,

found Reynolds guilty and stayed sentence pending appeal. Reynolds
appeals from the sentence and judgment of the District Court and

from the order denying his motion to dismiss.                We reverse.

                                       ISSUE

        Reynolds raises the following issue on appeal:              Did    Deputy

Peterson     have      a   particularized      suspicion      to   justify     an

investigative stop of Reynolds' vehicle?
                              STANDARD OF REVIEW

        In this case, the District Court denied Reynolds' motion to

dismiss    for   an   improper    investigative   stop,    concluding   that   the

arresting officer had vast experience and that Reynolds committed

a traffic violation which gave rise, along with other facts, to the

officer's right to stop him.            We review the record to determine

whether substantial credible evidence supports the legal conclusion

implicit in the trial court's denial of defendant's motion, that

the arresting officer had a particularized suspicion to justify the
investigatory stop, and, if, based on the evidentiary record, the

court's legal conclusion was correct.             See,    for example, State v.

                                         2
 Stubbs (1995),      892 P.2d 547, 550, 52 St.Rep.          232, 233 (We review a
 district court's ruling             on a motion to suppress to determine
 whether there is           substantial    credible    evidence   to support the
 court's findings of fact, and whether the court correctly applied

 the findings as a matter of law.)

                                      BACKGROUND
       At approximately 9:00 p.m., on December 22,                     1991,   Deputy
 Sheriff David Peterson observed a pickup driven by Reynolds,

 traveling   down    a    dead-end    street.      Deputy   Peterson    thought   the
 vehicle was "bordering on traveling too fast" for the conditions

  (traffic and darkness) and drove to where he thought the vehicle

 would reappear.         When it did not reappear, he moved to see Reynolds

 make a u-turn in a city park.            Deputy Peterson then met Reynolds at
 an   intersection        where    Reynolds had the right-of-way.               After

 approximately 7 to 10 seconds,                 Reynolds proceeded through the

 intersection.      Deputy Peterson then pulled Reynolds over to make an
 investigatory      stop.     Other facts are referred to in our discussion
 as necessary.

                                      DISCUSSION

       Reynolds argues that the District Court erred in denying his
 motion to dismiss and in finding him guilty of driving under the

 influence of alcohol. Reynolds claims that Deputy Peterson did not

have a particularized suspicion to justify an investigatory stop
 pursuant to § 46-5-401, MCA.             In 1991,    the Legislature amended §

 46-5-401, MCA, to be consistent with United States Supreme Court

 and Montana case law:            Section 46-5-401, MCA, provides:

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              Investigative 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 oarticularized suspicion that
         the person or occupant of the vehicle has committed, is
         committinq, or is about to commit an offense. [Emphasis
         added].


         The Fourth Amendment right against unreasonable searches and
 seizures,     made    applicable to              the     states by the         Fourteenth
Amendment,     "protects     people, not places." Terry v. Ohio (1968), 392
 U.S. 1, 8-9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889, 899 (citing Katz

 v. United States (19671, 389         U. S.       347, 351, 88        S.Ct.   507, 511, 19
 L.Ed.2d    576, 582). Whenever a police officer restrains a person's

 freedom,    such as in a brief investigatory stop of a vehicle, the

 officer has seized that person. Terrv,                       392 U.S. at 16; United

 States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 694-95,

 66 L.Ed.2d 621, 628.

         A police officer may seize an individual based on less than
 probable      cause    if      the   seizure           is     reasonable       under     the

 circumstances.        Terry,     392 U.S. at 20.                'I [Iln justifying the

particular intrusion the police officer must be able to point to

 specific and articulable facts which, taken together with rational

 inferences from those facts,          reasonably             warrant   that    intrusion."

 Terrv,    392 U.S. at 21.        The Court refused to sanction intrusions

 based on "nothing more substantial than inarticulate hunches. .
   1,   Terry, 392 U.S. at 22.

         Recognizing that 'I [aln investigatory stop must be justified by

 some     objective   manifestation    that         the      person   stopped   is,     or is


                                              4
about to be,           engaged       in   criminal    activity",    the   United    States
Supreme Court set forth a two-part test to evaluate whether the

police have sufficient cause to stop a person. Cortez, 449                         U. S.   at
417-18.       The essence of the test is that the totality of the
circumstances must give the police a particularized and objective

basis for suspecting the person of criminal activity. Cortez, 449

U.S. at 417-18.

       In State v.        Gopher (1981), 193 Mont. 189, 631 P.2d 293, we
adopted the two-part test enunciated in Cortez, placing the burden

on the state to 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 engaged in

wrongdoing or was a witness to criminal activity." Gopher, 631 P.2d
at    296.         A??Plying     the      rules of      Cortez, we        held     that     a
particularized suspicion existed to justify stopping a vehicle that

slowly drove past the crime scene and exhibited an unusual

curiosity in the crime site.                Gopher,    631 P.2d at 296.

       The issue of whether or not a particularized suspicion exists

in order to justify an investigative stop is factually driven.                             For

example,     in State v. Morsette (1982), 201 Mont. 233, 654 P.2d 503,
a farm was broken into, setting off a silent alarm that alerted the

sheriff      and   a   neighbor.          The neighbor saw an unfamiliar truck

driving very fast and wrote down its license number. Morsette, 654

P.2d at 504.        The deputy followed tire tracks from the farm and saw
the   truck    matching        the   neighbor's      description.     In applying the

two-pronged test, we held that the totality of the facts before the


                                               5
deputy   created           a     particularized      suspicion     justifying         the
investigatory       stop.        Morsette, 654 P.2d at 507.
      In Matter of Suspension of Driver's License of Blake                        (1986),
220 Mont. 27,        712 P.2d 1338,          the   petitioner    exhibited    patterns
consistent with a person driving while under                      the influence of
alcohol. Blake, 712 P.2d at 1341.                  The petitioner was driving in
the vicinity of several bars at around 2:00 a.m. and swerved into

the   wrong     traffic           lane.      Therefore, we        held     that      such
uncontradicted evidence was sufficient to support a particularized

suspicion that the petitioner may have been driving under the

influence of alcohol.              Blake,   712 P.2d at 1341.

      When    the     totality of           the circumstances does support a

particularized       suspicion, we have held the investigatory stop to be
unjustified.        For    example, in Grinde v. State (1991), 249 Mont. 77,
813 P.2d 473,         the sheriff's deputies saw the defendant's car

properly execute a right hand turn and drive out of eyesight.

After the defendant's car was out of eyesight, the deputies then

heard an engine revving and the squeal of tires.                      Subsequently,

they stopped the defendant. Grinde, 813 P.2d at 474.                      We held that

the   sheriff's deputies were not                   justified in         stopping     the

defendant's vehicle because they merely heard the squeal of tires

but saw no evidence of erratic driving.                 Grinde,    813 P.2d at 475.

      Similarly,          in State v. Anderson (1993), 258 Mont. 510, 853

P.2d 1245,     the facts were not sufficient for us to hold that the
police   officers          met    the particularized       suspicion       test.        In

Anderson, an informant               tipped the police that a blue pickup


                                              6
Reynolds had been engaged in wrongdoing.

     We hold the investigative stop was not justified pursuant to

§ 46-5-401,   MCA; Deputy Peterson did not have facts supporting a

particularized    suspicion   that   Reynolds     had   committed,   WZlS

committing,   or was about to commit      an    offense.   Because   the
investigatory stop was unlawful, we reverse the District Court's

decision to deny Reynolds' motion to dismiss and we remand with
instructions to enter an order of dismissal consistent with this

opinion.




We Concur: