No. 96-054
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v.
JOSEPH BROKENROPE, JR.,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell C. Fagg, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John I. Petak, III, Deputy Yellowstone County Public
Defender, Billings, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Carol Schmidt, Ass't Attorney General,
Helena, Montana
Dennis Paxinos, Yellowstone County Attorney,
Daniel L. Schwarz, Deputy Yellowstone County
Attorney, Billings, Montana
Submitted on Briefs: August 15, 1996
Decided: October 18, 1996
Filed:
Clgrk
Justice Karla M. Gray delivered the Opinion of the Court.
Joseph Broken Rope, Jr. (Broken Rope) appeals from the
judgment entered by the Thirteenth Judicial District Court,
Yellowstone County, on his guilty pleas to charges of carrying a
concealed weapon, criminal possession of dangerous drugs and
criminal possession of drug paraphernalia, having reserved the
right to appeal the court's denial of his motion to suppress. We
reverse and remand.
The dispositive issue on appeal is whether the District Court
erred in finding that a particularized suspicion existed to justify
an investigative stop of Broken Rope under § 46-5-401, MCA.
The following facts are undisputed. On March 21, 1995, at
approximately l:oo a.m., Deputy Kevin Evans (Evans) of the
Yellowstone County Sheriff's office was on patrol near the Lockwood
Kwik Way convenience store in Billings, Montana. He observed a
vehicle occupied by two individuals, later identified as Elton
Belgarde (Belgarde) and Broken Rope, traveling west on Highway 87
East. Evans ran the vehicle's license number through a records
check which revealed that the vehicle was registered to Belgarde
and that a warrant had been issued for his arrest for fish and game
violations.
When Belgarde and Broken Rope arrived at the Kwik Way, they
left the vehicle and went inside the store. Evans watched the two
men from his patrol car, planning to wait until they were back in
their vehicle before approaching them. Belgarde and Broken Rope
exited the store after a short time. When they noticed Evans, they
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began using the telephone, moving around in the store's parking
lot, and staring at Evans. Evans decided that Belgarde and Broken
Rope were not going to get back into Belgarde's vehicle while he
was present, so he radioed his backup, Deputy M. J. Mullikin
(Mullikin) , for assistance.
When Belgarde and Broken Rope saw Evans and Mullikin drive
into the immediate area, they began putting their hands into their
pockets. The deputies told them to keep their hands out of their
pockets and, when Broken Rope attempted a second time to put his
hands into his pockets, the deputies told him again to keep his
hands out of his pockets. Evans then arrested Belgarde on the
outstanding fish and game warrant.
Mullikin frisked Broken Rope and asked him if he had any
weapons, knives or needles on his person. Broken Rope said that he
had a knife in his belt. In addition to the knife, Mullikin found
a ,323 caliber Smith & Wesson handgun in Broken Rope's waistband
under his shirt. When asked about additional weapons or drugs,
Broken Rope said that he had some marijuana in his pants pocket.
Mullikin searched Broken Rope a second time and felt a hard object
in Broken Rope's pants pocket which Broken Rope identified as a
marijuana pipe. Evans also searched Broken Rope and, in addition
to the marijuana pipe containing suspected marijuana residue, he
found a black canister containing a white powdery substance in
Broken Rope's other pants pocket. Broken Rope was taken to the
Yellowstone County detention facility and booked. Evans then
removed the back seat of his patrol car and found a baggie
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containing a rock-like substance under where Broken Rope had been
sitting
The State of Montana (State) charged Broken Rope by
information with the felony offenses of carrying a concealed weapon
and criminal possession of dangerous drugs, and the misdemeanor
offense of criminal possession of drug paraphernalia. After
pleading not guilty, Broken Rope moved to suppress the evidence
seized by the deputies. The parties agreed that the District Court
could decide the issue without a hearing, and the court
subsequently denied Broken Rope's motion.
Broken Rope later pled guilty to the charged offenses,
reserving the right to appeal the court's denial of his motion to
suppress. The District Court entered judgment and sentence and
Broken Rope appealed. The court and the parties filed an "Agreed
Statement of Facts for Record on Appeal" pursuant to Rule 9(e),
M.R.App.P.
Did the District Court err in finding that a
particularized suspicion existed to justify an
investigative stop of Broken Rope under § 46-5-401, MCA?
In denying Broken Rope's motion to suppress, the District
Court found that Evans had a particularized suspicion, based on his
training and experience as a peace officer and Broken Rope's
actions, that Broken Rope had been or was engaged in criminal
activity. On that basis, the District Court concluded that the
investigative stop and search of Broken Rope was justified and
denied the motion to suppress.
Broken Rope contends that the District court ' s finding
regarding Evans' particularized suspicion to justify the
investigative stop pursuant to § 46-5-401, MCA, is clearly
erroneous and, therefore, that the court erred as a matter of law
in applying the statute and denying his motion to suppress. We
review such findings of fact by a district court to determine
whether they are clearly erroneous; we review a district court's
conclusions of law to determine whether they are correct. &
Bauer v. State (1996), 275 Mont. 119, 122, 910 P.2d 886, 888; State
v. Williams (1995), 273 Mont. 459, 462, 904 P.2d 1019, 1021 (citing
State v. Flack (1993), 260 Mont. 181, 188, 860 P.2d 89, 94).
When a law enforcement officer seizes a person, such as in an
investigative stop, the right against unreasonable searches and
seizures guaranteed by the Fourth Amendment to the United States
Constitution applies. Bauer , 910 P.2d at 889. As a result, the
Montana legislature amended Montana's investigative stop statute in
1991 to conform with both United States Supreme Court and Montana
Supreme Court case law on that subject. State v. Reynolds (1995),
212 Mont. 46, 49, 899 P.2d 540, 542. Section 46-5-401, MCA,
provides:
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 anarticularized susoicionthat
the oerson or occuoant of the vehicle has committed, is
committina, or is about to commit an offense.
(Emphasis added.)
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In light of the requirement that some objective manifestation
must exist to support a particularized suspicion that a person is
engaged in criminal activity before a stop can be made, we have
adopted a two-part test to determine whether an officer had
sufficient cause to stop a person. Anderson v. State Dept. of
Justice (1996), 275 Mont. 259, 263, 912 P.2d 212, 214 (citing State
v. Gopher (1981), 193 Mont. 189, 631 P.2d 293). First, the State
must establish objective data from which an experienced officer can
make certain inferences. Second, the State must show a resulting
suspicion that the person is, or has been, engaged in wrongdoing or
was a witness to criminal activity. Anderson, 912 P.2d at 214.
Whether a particularized suspicion exists is a question of fact
which is dependent on the totality of the circumstances. Anderson,
912 P.2d at 214 (citing Revnolds, 899 P.2d at 542-43).
The initial, and primary, thrust of the analysis is whether
objective data existed from which an experienced officer could
conclude that the person stopped is, or has been, engaged in
criminal activity. In m, for example, the deputy observed
Bauer driving well over the speed limit, crossing the center line
more than once and braking hard around curves. Bauer, 910 P.2d at
887, 890. We concluded that, under the totality of the
circumstances, the evidence supported the deputy's particularized
suspicion that Bauer had committed an offense. Bauer, 910 P.2d at
890.
Similarly, in Anderson, the officer testified that she saw
Anderson shuffle and stumble toward his car between 1:00 a.m. and
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2:0o a.m. and fail to use his vehicle's turn signals at every turn
for several blocks; in addition, he did not stop when she asked him
to. Anderson, 912 P.2d at 213. The officer also testified that,
even from ten to fifteen feet away, she could smell a very strong
odor of intoxicants emanating from Anderson. Anderson, 912 P.2d at
213. Those facts were sufficient, under the totality of the
circumstances, to support the officer's particularized suspicion
that Anderson had committed the offense of driving under the
influence of alcohol. Anderson, 912 P.2d at 215.
In other cases, however, this Court has held, under the
totality of the circumstances, that the evidence did not support a
particularized suspicion that the person stopped had committed, or
was committing, an offense. In Revnolds, the deputy sheriff
testified that he observed a pickup moving through an intersection
"bordering on traveling too fast I' for the conditions and hesitating
seven to ten seconds at the intersection where the deputy was
waiting, but that the driver had not necessarily violated the law.
Revnolds, 899 P.2d at 542-43. Other than those observations, the
deputy did not see any violations of the law and Reynolds did not
exhibit behavior consistent with a person driving while under the
influence of alcohol. Revnolds, 899 P.2d at 543. We concluded
that, under the totality of the circumstances, a possible traffic
violation--in the absence of any other objective evidence of
criminal activity--did not support a particularized suspicion that
Reynolds had been engaged in wrongdoing. Revnolds, 899 P.2d at
543. On that basis, we held that the investigative stop was not
justified under § 46-5-401, MCA. Revnolds, 899 P.2d at 543.
In the present case, the objective data Evans observed was
Broken Rope entering and leaving the Kwik Way at approximately 1:00
a.m., using the telephone, moving around in the Kwik Way parking
lot, putting his hands in his pockets, and staring at Evans. These
actions do not support a particularized suspicion that Broken Rope
was, or had been, engaged in criminal activity.
The State contends that Evans and Mullikin also relied on the
existence of an outstanding warrant for "one of the men" as
objective data supporting their investigative stop and search of
Broken Rope. However, the undisputed fact is that the warrant for
fish and game violations was for Belgarde, not for Broken Rope.
The State cites to no authority under which a person merely being
in the company of someone for whom an arrest warrant has been
issued is sufficient--on either a stand-alone basis or in
conjunction with objective data of the type that existed in this
case--to create a particularized suspicion that that person had
committed, or was committing, an offense so as to justify an
investigative stop.
The State also contends that the deputies could draw upon
their training and experience as peace officers to conclude that
Belgarde and Broken Rope were acting in a suspicious and nervous
manner, thereby justifying an investigative stop. At the outset,
we observe that the agreed facts before us contain no information
about the deputies' training and experience or how such training
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and experience could lead them to conclude that Belgarde and Broken
Rope's activities were "suspicious" and "nervous." Indeed, no
agreed fact states that the deputies reached such a conclusion.
Moreover, there is nothing inherently suspicious about Broken
Rope using a pay telephone, moving around in a convenience store
parking lot, putting his hands in his pockets or staring at a
sheriff's deputy. As to whether these activities were "nervous,"
many law-abiding citizens may well be nervous when their activities
are being watched by law enforcement officers. On this record,
Broken Rope's actions did not form the basis for inferences
resulting in a particularized suspicion that Broken Rope was, or
had been, engaged in criminal activity.
We conclude that, under the totality of the circumstances, the
record is insufficient to support the District Court's finding that
Evans had a particularized suspicion that Broken Rope was engaged
in criminal activity; therefore, the court's finding is clearly
erroneous. On that basis, we further conclude that the District
Court erred in determining that the investigative stop of Broken
Rope was justified pursuant to § 46-5-401, MCA.
The remainder of the State's arguments relate to the officers'
entitlement to "frisk" a person and seize certain objects pursuant
to § 46-5-402, MCA. According to the State, however, § 46-5-402,
MCA, applies "[olnce a peace officer has lawfully stopped a person
under § 46-5-401 .'I Based on our conclusions that no
particularized suspicion existed and that the investigative stop of
Broken Rope was not justified under § 46-5-401, MCA, we need not
address the remainder of the State's arguments.
We hold that the District Court erred in denying Broken Rope's
motion to suppress.
Reversed and remanded for further proceedings consistent with
this opinion.
We concur:
Chief Justice
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Chief Justice J. A. Turnage, dissenting:
I respectfully dissent.
The District Court found that Deputy Sheriff Kevin Evans had
particularized suspicion for a reasonable investigative stop of the
defendant and subsequent search for weapons as reasonable police
procedure for officer protection. This finding and the order
denying suppression of the criminal contraband found on the person
of defendant is supported by the record in this case.
The majority's review of the objective data in this case is
notable for its brevity. Now the rest of the story.
At approximately 1:00 a.m. on March 21, 1995, Deputy Evans was
patrolling a rural area of Yellowstone County near the Lockwood
Kwik Way convenience store when he observed a vehicle with two
occupants traveling west on Highway 87. After running a license
plate record check, the deputy was notified that the vehicle was
registered to Elton Belgarde and that a warrant for Belgarde's
arrest was outstanding.
The Belgarde vehicle stopped at the Kwik Way convenience
store, and the two occupants entered the store. The two individu-
als, one of whom was Elton Belgarde and the other the defendant
herein, Joseph Broken Rope, exited the store, noticed Deputy Evans'
car, began using the telephone and stared at the deputy. Deputy
Evans called for Deputy Sheriff Mullikin to assist him.
Upon seeing the deputies pull into the immediate area,
Belgarde and Broken Rope began putting their hands into their
pockets. The officers told them to take their hands out of their
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pockets. Defendant Broken Rope again reached to put his hands into
his pockets and was told not to do so.
Deputy Evans placed Belgarde under arrest on the outstanding
warrant. Deputy Mullikin, in preparing to frisk defendant Broken
Rope, asked him if he had any weapons. Broken Rope told the deputy
he had a knife on the back of his belt concealed under his shirt.
Deputy Mullikin proceeded with a frisk of the defendant and in
addition to the concealed knife found, also concealed in his
waistband under his shirt, a five-round, fully loaded Smith &
Wesson revolver. In addition, he found on defendant's person
certain contraband drugs and a marijuana pipe.
Notwithstanding the unjustified reversal of the District
Court's denial of a motion to suppress based on a claim of
unconstitutional search and statutory violation, the rational and
reasonable officer's protection procedure in finding the concealed
.38 may not only have saved the deputies from harm, but may have
prevented one more dead convenience store clerk.
The District Court carefully and correctly articulated its
reasoning in holding that the stop and search of the defendant
complied with applicable constitutional, statutory and case law.
The District Court's order states in relevant part:
Regarding the Defendant, upon his exiting of the
Kwik Way store, the Deputy believed that he and Mr.
Belgarde were acting in a nervous and suspicious manner.
The two men were closely watching the Deputy. They
walked around the parking lot, made some telephone calls,
and evidenced an intention not to return to their
automobile. In addition, because the Deputy knew about
the warrant for Mr. Belgarde, their nervous actions were
all the more suspicious.
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As a result, the Deputy stopped, frisked and
arrested Mr. Belgarde on the warrant. In addition,
pursuant to State v. Gopher and sections 46-5-401 and 46-
5-402, MCA, the Defendant was stopped and frisked. The
stopping and frisking of the Defendant was proper because
the Deputy had "particularized suspicion" that the
Defendant had been engaged in wrongdoing. See Gouher,
631 P.2d at 296. The "particularized suspicion" was
based on the previously mentioned suspicious actions of
the Defendant and Mr. Belgarde upon leaving the Kwik Way
store. In addition, it was appropriate to pat down the
Defendant for safety purposes in order to secure the
situation for the arrest of Mr. Belgarde based on the
warrant. Section 46-S-402(1), MCA.
Additionally, it was appropriate for the Deputy to
ask the Defendant if he possessed any weapons, knives or
needles prior to the pat down for officer safety purpos-
es. a.
The Defendant admitted possessing a concealed knife
on the back of his belt under his shirt. (Defendant's
brief in support of motion to suppress, p. 2, line 16 &
17) However, the Deputy found not only a concealed
knife, but also a fully loaded .38 caliber handgun hidden
in the waistband of the Defendant's belt under his shirt.
(a. at line 18 & 19) Based on these discoveries, three
conclusions are inescapable.
First, upon uncovering the concealed weapons, the
Deputy had probable cause to arrest the Defendant for
carrying concealed weapons. As the Court in State v.
Sharp, 217 Mont. 40, 702 P.Zd 959 (1985) stated, "A
founded suspicion to stop for investigative detention may
ripen into probable cause to arrest through the occur-
rence of facts or incidents after the stop." Share, 217
Mont. at 46.
Second, the discovery of the concealed weapons
verified the Deputy's reasonable belief that a pat down
was reasonably necessary for officer protection. And
third, the discovery of concealed weapons demonstrated
the necessity to search further. The Defendant had
stated that he was carrying a knife, but made no mention
of the handgun. As a result, the Defendant's comments as
to the contents in his front pants pockets, i.e.,
marijuana and a marijuana pipe, did not render the
subsequent officer safety search unreasonable. On the
contrary, it was entirely reasonable to believe the
Defendant possessed other weapons even though the Deputy
specifically asked him if he had any drugs.
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Therefore, because the Deputy had particularized
suspicion that an offense had been, was being, or was
about to be committed! based on the actions of the
Defendant and the training and experience of the Deputy,
a reasonable investigative stop and search of the
Defendant was appropriate. An arrest of Mr. Belyarde was
appropriate based on the issued warrant for his arrest.
After stopping the Defendant and frisking him for officer
protection, concealed weapons were found. Further
officer protection search, demonstrated to be reasonable
based on the previously uncovered weapons, resulted in
discovery of controlled substance possession by the
Defendant. The Court believes that all the uncovered
evidence can properly be used against the Defendant in a
criminal trial. As a result, the Court is persuaded that
the Defendant's constitutional rights against unreason-
able search and seizure have not been violated.
I agree with the District Court and therefor dissent
' Chief Justice
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