State v. Henderson

No

No. 97-631

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 233

STATE OF MONTANA,

Plaintiff and Appellant,

v.

AARON T. HENDERSON,

Defendant and Respondent.

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APPEAL FROM: District Court of the Thirteenth Judicial
District,

In and for the County of Yellowstone,

Honorable Maurice R. Colberg, Jr., Judge Presiding.

COUNSEL OF RECORD:

For Appellant:

Honorable Joseph P. Mazurek, Attorney General;

Patricia J. Jordan, Assistant Attorney General, Helena, Montana

Dennis Paxinos, County Attorney; Melanie Logan, Deputy County

Attorney, Billings, Montana

For Respondent:

William F. Hooks, Appellate Defender, Helena, Montana

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Submitted on Briefs: August 13, 1998

Decided: September 18, 1998

Filed:

__________________________________________

Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court.

¶ The Thirteenth Judicial District Court, Yellowstone County, granted a motion
suppressing all of the evidence in the State’s case against Aaron T. Henderson for
two felony counts of criminal possession of dangerous drugs, a misdemeanor count of
possession of alcohol by a minor and a misdemeanor count of DUI. The State of
Montana appeals. We reverse the decision of the District Court.

ISSUES

¶ 1. Did the District Court err in suppressing the State’s evidence on the grounds
that the arresting officer lacked a particularized suspicion to stop Henderson’s motor
vehicle?

¶ 2. Did the District Court err in suppressing the State’s evidence on the grounds
that the arresting officer exceeded the permissible scope of the investigatory stop?

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BACKGROUND

¶ On May 3, 1997, at approximately 7:40 p.m., Laurel City Police Officer Mike Guy
(Officer Guy) observed Henderson driving a motor vehicle displaying neither a front
nor rear license plate. Officer Guy turned to follow Henderson and observed what
appeared to be a twenty or sixty-day temporary tag located in the rear window. Due
to the darkness of the vehicle’s tinted windows, however, Officer Guy was unable to
determine whether the paper in the window was in fact a valid temporary tag.

¶ Officer Guy activated the overhead lights on his squad car to signal Henderson to
pull over. When Henderson failed to respond to the overhead lights, Officer Guy
activated his air horn. Henderson again failed to respond to the officer’s signal, and
Officer Guy activated his air horn a second time. Approximately two and one-half
blocks from where the officer first signaled him, Henderson finally pulled his vehicle
into a driveway and stopped. Henderson’s delay in responding to Officer Guy’s
direction to pull over raised a suspicion in the officer that the driver might be
impaired.

¶ Once the vehicle was stopped, Officer Guy observed one of the passengers
attempting to exit the vehicle, which further raised his suspicions. Also, because of
the dark tinting on the windows, he could not determine how many persons were in
the vehicle, where their hands were, or whether there were any weapons inside the
vehicle. Officer Guy grew concerned about his safety at this point and instructed
Henderson and his passengers to remain inside the vehicle as he approached.

¶ Officer Guy did not immediately verify the validity of the rear window sticker, but
instead went up to Henderson’s window, identified himself, informed Henderson of
the purpose of the stop, and asked to see Henderson’s driver’s license, proof of
insurance and registration. During this exchange, Officer Guy became aware of a
strong smell of alcohol emanating from the vehicle. The officer further observed that
Henderson’s speech was slurred and thick. Based on these observations, Officer Guy
requested that Henderson perform a series of field sobriety tests and a breath test.
When Henderson failed two out of three of the field sobriety tests and registered
a .104 blood alcohol concentration on the breath test, he was arrested for driving
under the influence of alcohol. While performing a search of the vehicle incident to
arrest, Officer Guy found alcohol, marijuana and LSD in the passenger
compartment.

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¶ Following the arrest, Officer Guy made an inspection of the temporary sticker
located in the rear window of the vehicle. Although it was still daylight, it was
necessary for Officer Guy to employ a flashlight in order to read the sticker through
the tinting on the window. Officer Guy’s inspection revealed that the sticker was
indeed a valid temporary vehicle purchase tag.

STANDARD OF REVIEW

¶ Our standard of review of a trial court's grant of a motion to suppress is whether
the court's findings of fact are clearly erroneous and whether those findings were
correctly applied as a matter of law. State v. Roberts (1997), 284 Mont. 54, 56, 943
P.2d 1249, 1250; State v. Lee (1997), 282 Mont. 391, 393, 938 P.2d 637, 639. A court’s
findings are clearly erroneous if they are not supported by substantial evidence, the
court has misapprehended the effect of the evidence, or our review of the record
convinces us that a mistake has been committed. Interstate Prod. Credit Ass’n v.
DeSaye (1981), 250 Mont. 320, 323, 820 P.2d 1285, 1287.

FIRST ISSUE

¶ Did the District Court err in suppressing the State’s evidence on the grounds that
the arresting officer lacked a particularized suspicion to stop Henderson’s motor
vehicle?

¶ The Fourth Amendment’s protection against unreasonable searches and seizures
applies to situations in which a law enforcement officer performs an investigatory
stop of a vehicle. Reid v. Georgia (1980), 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.
Ed.2d 890; Lee, 282 Mont. at 394, 938 P.2d at 639. However, there is an exception to
the general warrant requirement of the Fourth Amendment which allows a law
enforcement officer to briefly detain and question an individual without probable
cause if the officer suspects the individual has committed or is in the process of
committing an offense. Terry v. Ohio (1986), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
889. This exception has been recognized in Montana and is codified at § 46-5-401,
MCA, which reads:

Investigative stop. In order to obtain or verify an account of the

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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.

¶ A determination as to whether the "particularized suspicion" requirement of the
statute has been satisfied must be made in light of the totality of the circumstances
giving rise to the stop. State v. Gopher (1981), 193 Mont. 189, 631 P.2d 293. The
totality of the circumstances includes the evidence as evaluated by the officer in light
of the officer’s knowledge and training. Gopher, 193 Mont. at 193, 631 P.2d at 295. A
particularized suspicion does not require that the law enforcement officer be certain
that an offense has been committed. State v. Morsette (1982), 201 Mont. 233, 240, 654
P.2d 503, 507.

¶ Our review of the record convinces us that the stop of Henderson’s vehicle by
Officer Guy was a proper investigatory stop under § 46-5-401, MCA. Section 61-3-
301, MCA, requires that all vehicles operated on the public highways of Montana be
properly registered with the state and have the proper number of license plates
conspicuously displayed on the front and rear ends of the vehicle. Section 61-3-317,
MCA, provides a twenty-day grace period in which to register a recently transferred
vehicle, during which time the owner may operate the vehicle on the state’s streets
and highways provided that at all times during that period a temporary vehicle
purchase sticker is clearly displayed in the vehicle’s rear window. Failure to comply
with either of these provisions constitutes a misdemeanor under § 61-3-601, MCA,
and the law enforcement officers of the State of Montana are charged with the
mandatory duty of enforcing these provisions. Section 61-3-602, MCA.

¶ We decline to address at this time the issue of whether the placement of
Henderson’s temporary vehicle purchase sticker violated § 61-3-317, MCA, because
the vehicle’s darkly tinted window prevented the sticker from being "clearly
displayed." We do conclude, however, that the inability of the officer to plainly view
the sticker as a result of the tinted window was sufficient to give rise to a particular
suspicion that the vehicle was not properly registered in violation of § 61-3-301,
MCA. There is substantial evidence in the record that Officer Guy was unable to

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verify the validity of the sticker because the writing on the paper and the identifying
pink stripe generally found on a temporary tag were not discernible from a distance
through the darkened window. Indeed, the officer was unable to read the form even
close up without the aid of artificial illumination. There is also substantial evidence in
the record that the inability to identify the tag gave rise to a particular suspicion in
Officer Guy as to the proper registration of the vehicle.

¶ The evidence also demonstrates that Henderson’s unusual behavior in failing to
promptly respond to the officer’s signal to pull over raised some suspicion in the
officer’s mind as to whether the driver of the vehicle was impaired. This suspicion
was further bolstered by the attempt of one of the passengers to exit the vehicle
immediately upon stopping and the fact that the officer could not see into the vehicle.
The scope of the officer’s suspicion was reasonably broadened at that point to
include a particularized suspicion that the driver of the vehicle may be impaired.

¶ From this we conclude that in finding that the stop of Henderson’s vehicle was
pretextual and that Officer Guy had no reasonable grounds to suspect that an offense
was being committed, the District Court misapprehended the effect of the evidence
before it. As such, the findings of the District Court regarding the legitimacy of
Officer Guy’s investigatory stop of Henderson’s vehicle are clearly erroneous, and
we hold that the State’s evidence should not be suppressed on those grounds.

SECOND ISSUE

¶ Did the District Court err in suppressing the State’s evidence on the grounds that
the arresting officer exceeded the permissible scope of the investigatory stop?

¶ In determining that Officer Guy exceeded the scope of his investigation by
requesting to see the driver’s license, proof of insurance and registration before
inspecting what turned out to be a valid temporary tag, the District Court relied on
the reasoning set forth in State v. Farley (Or. 1989), 775 P.2d 835, and People v.
Redinger (Colo. 1995), 906 P.2d 81. These cases stand for the principle that where an
officer stops a vehicle to verify a temporary sticker and has determined that the
sticker is valid, the officer may not thereafter request to see the driver’s license or
proof of insurance, because the original purpose of the stop was satisfied upon

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verification of the temporary tag. The provisions of § 46-5-402(4), MCA, make the
District Court’s reliance on Farley and Redinger misplaced. Section 46-5-402(4),
MCA, reads:

A peace officer who has lawfully stopped a person under 46-5-401 or this
section . . . shall inform the person, as promptly as possible under the
circumstances and in any case before questioning the person, that the officer
is a peace officer, that the stop is not an arrest but rather a temporary detention
for an investigation, and that upon completion of the investigation, the person
will be released if not arrested.

¶ In approaching Henderson’s car window, Officer Guy did three things: he
identified himself; he informed Henderson of the purpose of the stop; and he asked to
see Henderson’s driver’s license, proof of insurance and registration. The District
Court’s conclusions focus on whether or not Officer Guy was acting properly in
requesting to see Henderson’s driver’s license before checking the temporary tag.
That determination, however, is not a central issue in this case because § 46-5-402(4),
MCA, expressly required Officer Guy to identify himself and communicate to the
driver the reason for the stop. It was while standing in front of Henderson’s window
that Officer Guy noted the strong smell of alcohol emanating from the vehicle and
the slurred nature of Henderson’s speech. These observations are what inevitably led
to the administration of the field sobriety and breath tests, which led to the DUI
arrest, which led to the search of the vehicle, which revealed the presence of the
alcohol, marijuana and LSD.

¶ The root of the evidentiary tree, then, is the fact that Officer Guy was standing
where he could detect signs of possible inebriation. Section 46-5-402(4), MCA, in
effect made it proper for Officer Guy to be there, and whether he should have asked
to see Henderson’s driver’s license is irrelevant because the request itself was not the
source of the evidence Henderson is seeking to suppress.

¶ The timing of the request is likewise immaterial. Section 46-5-402(4), MCA,
requires that the officer identify himself and explain the nature of the stop as
promptly as possible under the circumstances. Under the facts of this case, it was
reasonable for Officer Guy to approach Henderson before stopping to peer into the

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rear window of the vehicle, because at that point he had reason to be concerned for
his own safety. However, even if he had inspected the temporary tag before
approaching Henderson, as the District Court would require, there would have been
no alteration in the resulting stream of events, because the officer would still
subsequently have had to approach Henderson to identify himself and the purpose of
the stop, and in doing so would have been in a position to detect the smell of alcohol
and observe Henderson’s slurred speech.

¶ From the moment that the officer noted the smell of alcohol and the driver’s
slurred speech, the initial investigative stop took on the quality of an escalating
situation in which the additional information gave rise to further suspicions and
enlarged the scope of the investigation to that of a possible DUI. See State v. Hulse,
1998 MT 108, 55 St.Rep. 415.

Therefore, we hold that the District Court erred in suppressing the evidence in this case on
the grounds that the arresting officer exceeded the scope of his investigation.

¶ Reversed.

/S/ J. A. TURNAGE

We concur:

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER

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Justice William E. Hunt, Sr. dissents.

¶24 The majority is correct in setting forth the standard of review of a trial court’s granting
of a motion to suppress but incorrect in its application. The standard is whether the court’s
findings of fact are clearly erroneous and whether these findings were correctly applied as
a matter of law. The record shows that the findings of fact by the court are not clearly
erroneous. It follows that the law was correctly applied, and the court’s order suppressing
the State’s evidence on the ground the arresting officer lacked a particularized suspicion to
stop the respondent’s vehicle should be affirmed.

¶25 The respondent in this case was driving his vehicle in a perfectly legal manner and
was not in violation of any of the laws of Montana. The arresting officer was unable to
determine whether the vehicle was properly licensed and therefore made an investigatory
stop. His duty at that point was to determine if the car was properly licensed.

¶26 The majority points out that a particularized suspicion does not require that the law
enforcement officer be certain that an offense has been committed (citing State v. Morsette
(1982), 201 Mont. 233, 240, 654 P.2d 503, 507). The difference is that a particularized
suspicion did not exist in this case. Had the officer who made the investigatory stop
completed his investigation when he was required to do so, he would have found that the
vehicle was not in violation of any licensing requirement of the State of Montana and
upon that finding should have known that there was no further reason for the stop.

¶27 The majority rejects the District Court’s reliance upon State v. Farley (Or. 1989), 775
P.2d 835, and People v. Redinger (Colo. 1995), 906 P.2d 81, on the grounds that § 46-5-
402(4), MCA, make the District Court’s reliance on those cases misplaced. I disagree.

¶28 The District Court relied on Redinger. There, the Colorado Supreme Court affirmed a
suppression order on an almost identical set of facts. An officer saw a vehicle traveling on
the highway but did not see either a license plate or a temporary sticker in the rear of the
vehicle. The officer determined the driver of the vehicle was in violation of the state’s
motor vehicle laws and pulled the car over. As he walked toward the car he observed a

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valid temporary registration plate properly displayed in the rear window but he continued
on and approached the driver and asked him to produce a license, registration and proof of
insurance. As this occurred the officer observed a clear bag containing a powdery
substance and the driver was eventually charged with possession of a controlled substance.
The trial court held that when the officer realized his initial observation was erroneous, the
purpose for the investigatory stop was satisfied and he no longer had any reason to detain
and interrogate the driver. The Colorado Supreme Court agreed. Redinger, 906 P.2d. at 82.

¶29 The District Court also relied upon the Oregon case of Farley. The Oregon statute
allowed a police officer to stop and detain a person for a suspected traffic infraction, for
the purposes of investigation reasonably related to the traffic infraction, identification, and
issuance of citation. The officer stopped a vehicle which had no visible license plates. As
the officer walked toward the car he saw a valid temporary vehicle permit on the window,
making it permissible to operate the car without plates. The officer proceeded to ask the
driver for a license, and then checked the license on a computer and cited the driver for
driving while his license was suspended and driving without proof of insurance. The
Oregon Supreme Court held that the officer had no authority to proceed with the traffic
stop after he saw the temporary permit because his authority under the statute ended when
he learned there had been no traffic infraction. Farley, 775 P.2d at 836.

¶30 The majority mistakenly claims that the officer in this case was in compliance with
the Montana statute, § 45-5-401, MCA, because he did three things: he identified himself;
he informed Henderson of the purpose of the stop; and he asked to see Henderson’s
driver’s license, proof of insurance and registration. That is a misinterpretation of the
statute because that statute requires that "a peace officer may stop a 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."
No facts in this case support a particularized suspicion sufficient to make a stop.

¶31 I would affirm the District Court.

/S/ WILLIAM E. HUNT, SR.

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