No. 02-243
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 335
STATE OF MONTANA,
Plaintiff and Respondent,
v.
JOHN M. FISHER,
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:
Gary E. Wilcox, Attorney at Law, Billings, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; C. Mark Fowler,
Assistant Attorney General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney, Billings, Montana
Submitted on Briefs: September 5, 2002
Decided: December 20, 2002
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 Defendant John Fisher was charged with possession of dangerous
drugs and drug paraphernalia in the District Court for the
Thirteenth Judicial District in Yellowstone County. Fisher pled
guilty to the charge and reserved the right to appeal the District
Court's order that denied Fisher's motion to suppress evidence.
The District Court gave Fisher a three year suspended sentence and
a $500 fine. Fisher appeals the District Court's order denying his
motion to suppress evidence. We reverse the order of the District
Court.
¶2 The issue on appeal is whether the District Court erred when
it found that the arresting police officer had a particularized
suspicion to stop Fisher's vehicle.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 At around 5:30 a.m. on May 5, 2001, Jordan Aguilar, a police
officer with eight years of law enforcement experience, was
patrolling the west end of Billings when he was dispatched to
South 31st Street, an area in Billings that is known to police
officers for its high crime rate. The dispatch was based on a
report from an unknown caller that three or four people had been
seen on foot in an alley and that one of them was carrying a gun.
Aguilar drove west on 5th Avenue South, and did not see anyone on
foot in the alley or nearby. However, while Aguilar's police car
was near the corner of 5th Avenue South and South 31st Street,
Aguilar saw a car approaching from approximately two blocks away,
driving eastbound on 5th Avenue South. Fisher was driving the car
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and had one passenger. When Fisher's car was about one block away
from Aguilar's police car, it turned north onto South 32nd Street.
¶4 Aguilar followed Fisher's car. After he turned onto South
32nd Street, he observed that Fisher's car had no license plates.
As Aguilar approached within two car lengths of Fisher's vehicle,
and looked for the temporary sticker, Fisher turned east onto 3rd
Avenue South. After that turn, Aguilar noticed that there was a
temporary sticker on Fisher's vehicle, but stated that he could not
read the expiration date printed on the sticker. Fisher's vehicle
then turned south onto South 31st Street and drove back to 5th
Avenue South, the street where Aguilar first noticed Fisher's
vehicle. At that point, Fisher stopped the vehicle. After the
stop, when Fisher was unable to provide identification, Aguilar
asked Fisher to exit the vehicle. During a pat-down for weapons,
Aguilar discovered drug paraphernalia, and arrested Fisher.
¶5 The State charged Fisher with criminal possession of dangerous
drugs and criminal possession of drug paraphernalia. Fisher moved
to suppress the inculpatory evidence produced from Aguilar's stop.
At the suppression hearing, Aguilar gave the following testimony
regarding his motivation for the stop:
It was a pretty dangerous type of a call. I saw this
vehicle, and when we neared each other, it turned away
from me, and I thought that possibly he was trying to
kind of like, once he could see it was a police car, I
felt he turned away from me. I wanted to see what he was
doing. I followed him. I thought that could have been
the people I was looking for and they were trying to
elude me. When I started following it, I saw it had no
plate. I wanted to see what the vehicle was doing,
because if it was the vehicle I was looking for and had a
plate, that would be some way of identifying the
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registered owner, and later if that was the person I was
looking for from the original call, I could have the
number logged into my dispatch log, to whereas if
something turned out on that call later, that could be a
way we could locate that vehicle later or help solve the
case from that.
Aguilar admitted that he did not observe Fisher violate any traffic
laws and that the lack of a rear license plate motivated his
decision to stop Fisher "to a point." He testified that "[t]he
fact that it didn't have a plate, but it had a sticker, isn't real
suspicious in itself. There are tons of vehicles that are like
that. Whether or not the sticker was valid or not makes another
difference." Aguilar confirmed that the vehicle's sticker was
valid. Furthermore, when questioned by the District Court about
the temporary sticker issue, counsel for the State told the Court
that it had abandoned the claim that Aguilar stopped Fisher on
suspicion of violating vehicle registration laws, and that the
State was "strictly relying on the suspicious driving." When
Fisher's counsel reminded the court that Aguilar had previously
testified that the license plate motivated his stop "to a point,"
the State's counsel again responded that "[t]he State is not
relying on that argument in this. We're relying strictly on his
suspicious driving."
¶6 On October 31, 2001, the District Court issued Findings of
Fact, Conclusions of Law and an Order that denied Fisher's motion
to suppress. Fisher pled guilty to both counts, reserving the
right to appeal the District Court's denial of his motion to
suppress.
STANDARD OF REVIEW
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¶7 We review the District Court's denial of a motion to suppress to determine
whether the District Court's findings of fact are clearly erroneous and whether its
conclusions of law are correct. State v. Jarman, 1998 MT 277, ¶ 8, 292 Mont. 391, ¶ 8,
967 P.2d 1099, ¶ 8. The District Court's findings of fact are clearly erroneous where not
supported by substantial evidence, where the court misapprehends the effect of the
evidence, or where this Court's consideration of the record results in a firm conviction
that a mistake has been made. Jarman, ¶ 8.
DISCUSSION
¶8 Did the District Court err when it found that the arresting police officer had a
particularized suspicion to stop Fisher's vehicle?
¶9 The District Court found that based on the totality of the
circumstances, Aguilar had a particularized suspicion sufficient to
stop Fisher's vehicle. The District Court found that the following
objective data supported a particularized suspicion that Fisher had
engaged in or was engaged in criminal conduct:
[Aguilar] was specifically looking for suspicious males;
he was in one of the highest-crime areas in Billings; he
searched the area he was supposed to and found no one; he
observed no one else nearby until he saw only one vehicle
approaching his police car; this lone vehicle turned away
from his when the two vehicles were close enough that
Officer Aguilar's identity as a police officer was
apparent; the vehicle made several turns and appeared to
be attempting to elude or avoid him, but not in a
reckless fashion; and after Officer Aguilar followed the
vehicle on its circuitous route, he observed it return to
the area it first approached his patrol car. Also, the
temporary sticker, which the officer couldn't see
clearly, supports the particularized suspicion.
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The District Court concluded that, following the reasoning in
Illinois v. Wardlow (2000), 528 U.S. 119, 120 S.Ct. 673, 145
L.Ed.2d 570, Fisher's driving suggested "nervous and evasive
behavior" which the court could consider in determining whether a
particularized suspicion existed. In addition, the District Court
concluded that this case was factually similar to our decision in
State v. Henderson, 1998 MT 233, 291 Mont. 77, 966 P.2d 137, and
that Aguilar's "inability to plainly view the sticker was
sufficient to give rise to a particularized suspicion the vehicle
was not properly registered."
¶10 Fisher contends that the District Court erroneously applied
Wardlow and that under the totality of the circumstances there was
insufficient information for Aguilar to form a particularized
suspicion that Fisher was, had been, or planned to be, involved in
criminal activity. Fisher contends that his driving was not
"unprovoked avoidance" or "headlong flight" as discussed in Wardlow
and that Wardlow is not on point. Similarly, Fisher contends that
the District Court misapplied our decision in Henderson to this
matter because, unlike Henderson, Aguilar had not formed an actual
suspicion that Fisher's vehicle violated any vehicle registration
laws. Fisher further points out that the State disclaimed that the
vehicle sticker contributed to Aguilar's particularized suspicion,
and therefore waived that justification, and that the District
Court erred by later considering it.
¶11 The State, however, contends that there was sufficient
objective data to support a particularized suspicion that Fisher
was involved in criminal activity. The State contends that the
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District Court did not rely upon Fisher's "unprovoked evasion" as
conclusive evidence that a particularized suspicion existed, but
when considered in the context of the other available information,
it could be considered to form a particularized suspicion. The
State also contends that the District Court did not err when it
considered this Court's decision in Henderson and found that
Aguilar's inability to read Fisher's temporary sticker could cause
a particularized suspicion that Fisher's vehicle was not properly
registered.
¶12 The parties do not dispute that Aguilar's investigative stop
constituted a "search" or "seizure" of Fisher's person such that
the Constitutional protections provided in our State and U.S.
Constitutions against unreasonable searches and seizures apply.
State v. Bauer, 2001 MT 248, ¶ 13, 307 Mont. 105, ¶ 13, 36 P.3d
892, ¶ 13; Art. II, Sec. 11, Mont. Const.; U.S. Const., amend. IV.
We presume that all warrantless investigative stops are
unreasonable searches, unless the State can prove "(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." State v. Gopher
(1981), 193 Mont. 189, 194, 631 P.2d 293, 296. The existence of a
particularized suspicion depends upon the totality of the
circumstances. Anderson v. State Dept. of Justice (1996), 275
Mont. 259, 263, 912 P.2d 212, 214. When evaluating the totality of
the circumstances, "this Court considers the quantity, or content,
and quality, or degree of reliability, of the information available
to the officer at the time of the investigatory stop." State v.
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Van Kirk, 2001 MT 184, ¶ 15, 306 Mont. 215, ¶ 15, 32 P.3d 735, ¶ 15
(citing State v. Gilder, 1999 MT 207, ¶ 11, 295 Mont. 483, ¶ 11,
985 P.2d 147, ¶ 11). We noted that "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 lawbreakers.'" State v. Anderson
(1993), 258 Mont. 510, 514, 853 P.2d 1245, 1248 (quoting U.S. v.
Cortez (1981), 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d
621). Montana's statutory provision regarding particularized
suspicion 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 a particularized suspicion that
the person or occupant of the vehicle has committed, is
committing, or is about to commit an offense.
Section 46-5-401, MCA.
¶13 We first address the State's claim that Aguilar had a
particularized suspicion that Fisher was in violation of vehicle
registration laws set forth in §§ 61-3-301, -317, MCA. Section 61-
3-301(1), MCA, makes it a misdemeanor to operate a motor vehicle
without a "conspicuously displayed" license plate. Section 61-3-
317, MCA, provides a twenty-day grace period from that requirement
so long as the vehicle has a temporary registration sticker
"clearly displayed." Here, there is no dispute that while Fisher's
vehicle did not have a license plate, it did have a temporary
sticker "clearly displayed" on the vehicle. Aguilar could see it
from at least one block away. There was no evidence to the
contrary. Although Aguilar testified that he could not clearly
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read the date printed on the sticker, he did not testify that he
had any suspicion, particularized or not, that Fisher's vehicle
violated any vehicle registration laws. This is presumably why the
State waived this argument in the District Court. Accordingly, we
conclude that the District Court erred when it found that Aguilar
had a particularized suspicion to stop Fisher's vehicle based on
non-compliance with vehicle registration laws.
¶14 This case is distinguishable from Henderson, which the
District Court relied upon to justify the stop and which the State
suggests is instructive in this case. In Henderson, a police
officer observed Henderson driving a vehicle without front or rear
license plates. Henderson, ¶ 4. The officer followed Henderson
and observed what appeared to be a temporary sticker in Henderson's
rear window, however, the windows in Henderson's vehicle were
darkly tinted and the officer could not tell whether the sticker
was valid. Henderson, ¶ 4. We noted that the officer "was unable
to 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" and that the officer could not even read the form
up close through the window without the aid of a flashlight.
Henderson, ¶ 14. We concluded from these facts that the officer
had a particularized suspicion to conclude that Henderson was in
violation of § 61-3-317, MCA, even though the sticker was later
found to be valid, because it was not clearly displayed under those
circumstances. Henderson, ¶ 14. Here, that was not the case.
Accordingly, the District Court misapplied Henderson when it found
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that Aguilar's inability to read the temporary sticker was
sufficient objective data to form a particularized suspicion.
¶15 The remaining objective data that Aguilar observed before
stopping Fisher's vehicle included (1) an initial anonymous report
that three or four people were in an alley with a gun; (2) the fact
that Aguilar's investigation and observation of Fisher occurred in
a "high-crime area;" and (3) Aguilar's observations of Fisher's
driving.
¶16 With respect to the police report, we conclude that none of
the information in the report was connected to Fisher. Nothing
suggests that the description of the persons in the report matched
Fisher or his passenger. Aguilar merely testified that he wanted
to obtain the identity of the people in Fisher's vehicle for his
later investigation of the tip.
¶17 In State v. Anderson, however, we rejected the State's claim
that a stop is justified in order to corroborate a tip. In
Anderson, an informant told police that Anderson was planning to
leave Libby, Montana, in a blue Toyota pickup to go to Washington
to pick up a large quantity of marijuana and planned to return to
Montana in that pickup that evening. Police dispatched two patrol
cars to separate highways near the Idaho-Montana border. Officers
located the described pickup, confirmed it matched the informant's
description, and pulled over the pickup. We held that the
informant's tip was insufficient objective data to form a
particularized suspicion. Anderson, 258 Mont. at 515, 853 P.2d at
1248. We stated:
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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.
Anderson, 258 Mont. at 516, 853 P.2d at 1249. We concluded:
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.
Anderson, 258 Mont. at 516, 853 P.2d at 1249. Here, there was even
less information to justify a stop of Fisher's vehicle: neither
Fisher, his passenger, nor his vehicle matched any description of
persons or vehicles in any report and the report itself did not
suggest a crime had been committed; Aguilar testified that he
wanted to know who was in the vehicle; and Aguilar admitted that
when he stopped Fisher, he did not discuss the suspicious activity
reported, despite his earlier testimony that the activity was
"dangerous." The tip was anonymous, uncorroborated, unconnected to
Fisher and we hold that it did not establish a particularized
suspicion sufficient to stop Fisher.
¶18 We next consider whether the fact that this stop occurred in a
"high-crime area" combined with Fisher's alleged "nervous and
evasive" driving created a particularized suspicion that Fisher was
engaged in criminal activity. The State suggests that the United
States Supreme Court's decision in Wardlow is instructive. In
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Wardlow, police officers entered an area known for heavy drug
trafficking in a four car caravan, and observed Wardlow standing
next to a building carrying an opaque bag. Wardlow, 528 U.S. at
121-22, 120 S.Ct. at 674-75. The officers observed Wardlow look in
the officers' direction and immediately flee on foot. The officers
followed Wardlow, stopped him, and arrested him after a pat-down
search revealed a handgun. 528 U.S. at 122, 120 S.Ct. at 675.
Under those circumstances, the Supreme Court found that the stop
was justified. The Court found that the fact that a stop occurred
in a "high crime area" is a "relevant contextual consideration" for
determining whether there is a particularized suspicion. Wardlow,
528 U.S. at 124, 120 S.Ct. at 676. In addition, the Supreme Court
held that "nervous, evasive behavior is a pertinent factor in
determining reasonable suspicion." Wardlow, 528 U.S. at 124, 120
S.Ct. at 676 (citations omitted). The Supreme Court reasoned:
Headlong flight--wherever it occurs--is the consummate
act of evasion: It is not necessarily indicative of
wrongdoing, but it is certainly suggestive of such. In
reviewing the propriety of an officer's conduct, courts
do not have available empirical studies dealing with
inferences drawn from suspicious behavior, and we cannot
reasonably demand scientific certainty from judges or law
enforcement officers where none exists. Thus, the
determination of reasonable suspicion must be based on
commonsense judgments and inferences about human
behavior.
Wardlow, 528 U.S. at 124-25, 120 S.Ct. at 676 (citation omitted).
¶19 Unlike Wardlow, Fisher's driving was not "headlong flight" nor
"the consummate act of evasion." Fisher made an entirely legal and
ordinary turn on a public street. In addition, nothing in the
record suggests that Aguilar sufficiently observed Fisher himself
to describe him as nervous and evasive. Unlike Wardlow, where the
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pedestrian sprinted away upon seeing a patrol of police cars, i.e.
"the consummate act of evasion," the only suggestion that Fisher's
ordinary maneuver was evasive was Aguilar's inference. Without
more objective data, there was insufficient objective data from
which Aguilar could form a particularized suspicion that Fisher was
engaged in criminal activity based on the operation of his motor
vehicle.
¶20 Nor do we agree with the State's contention that Fisher's
subsequent turns leading back to the street he originally left is
sufficient objective data from which Aguilar could form a
particularized suspicion.
¶21 Aguilar admitted that he had no difficulty following Fisher,
that he remained within one block and two car lengths from Fisher's
car, that Fisher violated no traffic laws and made no unusual turns
nor movements, and that Fisher maintained an appropriate speed.
The only additional objective data that Aguilar observed while
following Fisher was that Fisher drove to the original street where
Aguilar first observed him. Without more objective data, we
conclude that under these circumstances Fisher's operation of his
motor vehicle did not provide sufficient objective data from which
an officer could form a particularized suspicion that the driver
was engaged in criminal activity, and that Aguilar's stop violated
Fisher's right to be free from unreasonable searches and seizures.
¶22 For the foregoing reasons, the District Court's order denying
Fisher's motion to suppress evidence is reversed.
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/S/ TERRY N. TRIEWEILER
We Concur:
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
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