No
No. 97-724
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 247
STATE OF MONTANA,
Plaintiff and Respondent,
v.
LINDA LOU LAFFERTY,
Defendant and Appellant.
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No
APPEAL FROM: District Court of the Thirteenth Judicial
District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Brad L. Arndorfer; Arndorfer Law Firm, Billings, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General;
Micheal Wellenstein, Assistant Attorney General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney;
Shawn Cosgrove, Deputy County Attorney, Billings, Montana
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No
Submitted on Briefs: September 10, 1998
Decided: October 15, 1998
Filed:
__________________________________________
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
¶ Linda Lou Lafferty (Lafferty) was charged with, and pled guilty in the Thirteenth
Judicial District Court, Yellowstone County, to, the offense of driving under the
influence of alcohol (DUI), reserving her right to appeal the court's denial of her
motion to suppress all evidence, which was premised on the absence of the requisite
particularized suspicion to justify the investigative stop of her vehicle. She raises that
issue, and others, on appeal and we reverse and remand with instructions.
¶ The dispositive issue is whether the District Court erred in denying Lafferty's
motion to suppress on the basis that the investigative stop was based on a
particularized suspicion.
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No
BACKGROUND
¶ The relevant facts relating to Lafferty's motion to suppress all evidence in her DUI
case on the basis that the stop of her vehicle was invalid for lack of particularized
suspicion are as follows. In the afternoon hours of April 6, 1996, Montana Highway
Patrol Officer Brad Sangray (Sangray) received a dispatcher's report of a drunk
driver proceeding eastbound from Park City, Montana. The identity of the caller was
not provided and, indeed, it later was ascertained that the caller was anonymous. In
any event, the caller merely described the vehicle as a white over blue Ford pickup
with a partial license plate of "5-T." The caller provided no further particulars.
¶ Sangray traveled westbound from Billings, Montana, on U.S. Highway 90 and
observed a pickup matching the description provided by the dispatcher traveling
eastbound. He crossed the median and drove at a high rate of speed until he caught
up with the pickup, which had a "5-T" license plate; Sangray then followed the
pickup at a distance of six to ten car lengths. While following the pickup for
approximately one mile, Sangray saw it cross the fog line on the right side of the
highway twice and drive on the fog line once; the tape from the activated video
camera in his patrol vehicle confirmed his testimony. The pickup was not speeding.
Sangray activated his emergency lights and stopped the pickup, which was being
driven by Lafferty, on the basis of the dispatcher's report and the crossing of the fog
line, which Sangray testified "is not normal traffic procedure." Sangray also testified
that he would not have stopped the pickup absent his independent observations of
the pickup crossing the fog line.
¶ Lafferty testified that she noticed Sangray's vehicle as he came up behind her and
kept a close eye on it via her rearview and side mirrors. She also testified it was her
normal practice to drive close to the fog line on the right side of the road and, indeed,
that she was taught to do so in the defensive driving course required for her
employment with the government. She did not notice whether she crossed the fog line
on the afternoon in question, but testified that she could have done so since she drives
right next to it. Lafferty agreed that it would not be safe to make major "swerves"
across the fog line and back into the traffic lane, but stated that her vehicle was not
"weaving" and that any "swerve" she made over the fog line while looking in her
vehicle's mirrors would have been minor. After viewing the video, Lafferty agreed
that her pickup did cross the fog line.
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¶ Counsel for Lafferty argued that Lafferty's driving did not constitute a traffic
violation and, as a result, the circumstances--that is, the dispatcher's report and
Sangray's observation of Lafferty's driving--were insufficient to form the basis for a
particularized suspicion that Lafferty was DUI. The State of Montana (State) argued
that crossing the fog line constituted "improper lane travel" and, therefore, a
violation of the law and that Sangray had a sufficient particularized suspicion to
justify an investigative stop.
¶ At the close of the hearing on Lafferty's motion to suppress, the District Court
denied the motion, subject to the condition that crossing the fog line constitutes a
traffic violation, and requested briefs on that legal question. In doing so, the court
observed that, in this case:
[T]he driving is not something that maybe the ordinary citizen would be
particularly concerned about. . . . [B]ut there is something about the manner in
which the defendant's vehicle in this case wanders a little over that fog line
and back that doesn't look right.
I don't know, maybe the officer could explain it; to me there is something
about that that is different than somebody's momentary inattention that
wanders across the fog line. . . .
After briefing, the District Court concluded that "[t]he law requires one to stay within
one's driving lane until it is ascertained that one can leave one's lane safely." It
determined, based on Sangray's observations and its own observation of the video, that
Lafferty crossed the fog line and left her lane without first ascertaining that it was safe to
do so, thereby justifying Sangray's investigatory stop. On that basis, the District Court
denied Lafferty's motion to suppress and Lafferty appeals.
DISCUSSION
¶ Did the District Court err in denying Lafferty's motion to suppress on the basis
that the investigative stop was based on a particularized suspicion?
¶ When circumstances create a particularized suspicion that a person is committing
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an offense, a peace officer may stop the person or the vehicle containing the person to
determine whether to arrest the person. Section 46-5-401, MCA. In order to prove
the existence of a particularized suspicion sufficient to stop a vehicle, the prosecution
must show objective data from which an experienced peace officer can make certain
inferences and a resulting suspicion that the occupant of the vehicle is engaged in
wrongdoing. State v. Pratt (Mont. 1997), 951 P.2d 37, 40, 54 St.Rep. 1349, 1351
(citation omitted).
¶ Whether a particularized suspicion exists to justify an investigative stop is a
question of fact which depends on the totality of the circumstances. Pratt, 951 P.2d at
40, 54 St.Rep. at 1351. That is not to say, however, that such a determination cannot
also include conclusions of law. Indeed, in this case, it is clear that--in determining
that a particularized suspicion existed--the District Court concluded that Lafferty
committed a traffic violation by leaving her driving lane without ascertaining that it
was safe to do so. We review a district court's denial of a motion to suppress to
determine whether its findings of fact are clearly erroneous and whether those
findings were correctly applied as a matter of law. State v. Lee (1997), 282 Mont. 391,
393, 938 P.2d 637, 639 (citation omitted).
¶ We recently set forth a three-factor analysis for evaluating a citizen informant's
information with regard to a possible drunk driver: 1) whether the informant
identifies himself or herself to law enforcement; 2) whether the report is based on the
personal observation of the informant; and 3) whether the officer's own observations
corroborate the informant's information via observation of the illegal activity or
finding the person and vehicle substantially as described by the informant. Pratt, 951
P.2d at 42-43, 54 St.Rep. at 1353 (citation omitted). When the citizen informant is
anonymous and the report lacks foundation for the opinion expressed, the officer
must corroborate the tip by observing behavior by the driver--either illegal or
indicative of impairment--in order to form the particularized suspicion necessary to
justify an investigative stop under § 46-5-401, MCA. Pratt, 951 P.2d at 44-45, 54 St.
Rep. at 1354.
¶ Applying Pratt to the instant case, it is clear that the citizen informant here was
anonymous. The informant also did not state any particulars about the driving which
formed the basis for the reported opinion that the driver of the pickup was drunk or
even that his report was based on personal observation. As a result, Sangray's
observation of the described pickup driving in the direction reported did not
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constitute sufficient corroboration of the citizen informant's report to form the basis
for particularized suspicion; it was necessary for Sangray to personally observe
driving that was illegal or indicative of impairment. See Pratt, 951 P.2d at 44-45, 54
St.Rep. at 1354.
¶ We turn, then, to the driving observed by Sangray in this case--namely, Lafferty's
crossing of the fog line twice and driving on the fog line once--to determine whether
that driving was illegal or indicative of impairment. As discussed above, the District
Court concluded that crossing the fog line constituted a traffic violation. We
disagree.
¶ Section 61-8-328, MCA (1995), states in pertinent part that, when a "roadway has
been divided into two or more clearly marked lanes for traffic . . . [a] vehicle shall be
driven as nearly as practicable entirely within a single lane and shall not be moved
from such lane until the driver has first ascertained that such movement can be made
with safety." According to the State and the District Court, Lafferty violated this
statute by crossing the fog line without ascertaining that she could do so safely. In
our view, however, the statute relates to moving from a marked traffic lane to
another marked traffic lane. Here, Lafferty did not move from one of the marked
eastbound traffic lanes on Highway 90 to the other without checking to be sure she
could do so safely. She merely crossed onto and barely over the fog line on the far
right side of the right traffic lane in which she was traveling. We conclude that this
driving was not "illegal" driving under § 61-8-328, MCA (1995), and Pratt, and that
the District Court's determination to the contrary was erroneous.
¶ The State advances a number of arguments that Lafferty's crossing of the fog line
was indicative of impaired driving and, therefore, that the Pratt corroboration
requirement is met even if no actual traffic violation occurred. First, the State
suggests that this driving indicated to Sangray that Lafferty's driving was impaired.
The problem with this argument is that Sangray did not testify to that effect; he
merely stated that, in his view, her driving was "not normal traffic procedure."
While reasonable minds could differ over whether occasionally crossing the fog line
is "normal" or at least relatively common driving, not every "nonnormal" kind of
driving is necessarily indicative of driving under the influence of alcohol. Sangray
did not testify that either his training or his experience led him to infer that a driver
whose vehicle crosses the fog line likely is impaired by alcohol.
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No
¶ Nor do the cases on which the State relies support its position that Lafferty's
relatively minor crossings of the fog line were sufficient to create a particularized
suspicion. In Hulse v. State, Dept. of Justice, 1998 MT 108, ¶ 39, 961 P.2d 75, ¶ 39, 55
St.Rep. 415, ¶ 39, we properly determined that erratic driving--that is, "driving all
over the road, crossing the center line and the fog line, weaving in and out of traffic,
or braking for green lights"--can constitute the basis for a particularized suspicion to
stop the driver. Here, however, the State's repeated characterizations of Lafferty's
driving as "swerving" and "weaving" notwithstanding, Lafferty was not driving
erratically or all over the road or crossing the center line and the fog line or weaving
in and out of traffic.
¶ Matter of Suspension of Driver's License of Blake (1986), 220 Mont. 27, 712 P.2d
1338, also is distinguishable. There, the undisputed evidence was that petitioner was
driving in the vicinity of several bars around closing time and swerved into the
wrong traffic lane.
We observed that the driving of a vehicle into the wrong traffic lane may be
sufficient to constitute a traffic violation under § 61-8-321, MCA, and that the
evidence as a whole--that is, swerving into the wrong traffic lane around 2:00 a.m., in
the vicinity of several bars--was sufficient to constitute a particularized suspicion
that he may have been driving under the influence of alcohol. Blake, 220 Mont. at 31,
712 P.2d at 1341. In the present case, the time, location and driving were
substantially different. Lafferty was stopped at approximately 4:30 in the afternoon
on an interstate highway; she did not swerve into the wrong traffic lane, but merely
crossed the fog line as she observed Sangray's patrol car come up behind her at a
high rate of speed and follow her. Thus, the circumstances of this case do not rise to
the particularized suspicion we determined existed in Blake.
¶ We concluded above that the District Court erred in determining that a traffic
violation had occurred. We further conclude that, under the totality of the
circumstances, as applied to this case, Sangray did not have facts supporting a
particularized suspicion that Lafferty was committing an offense and, therefore, the
District Court erred in concluding that the investigative stop of her pickup was
justified under § 46-5-401, MCA.
¶ Reversed and remanded with instructions to enter an order of dismissal.
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No
/S/ KARLA M. GRAY
We concur:
/S/ J. A. TURNAGE
/S/ WILLIAM E. HUNT, SR.
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
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