No. 09-557
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 36
PHILLIP KLEINSASSER,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Channing Halrtelius. GI.eat Falls, Mont:ana
For Respondent:
Brant Light, Cascade County Attorney, Marvin Anderson, Deputy Cascade
County Attorney, Great Falls, Montana
Submitted on Briefs: December 28, 2001
Decided: February 28,2002
Filed:
Justice James C. Nelson delivered the Opinion of the Court
1
1 Phillip Kleinsasser appeals from the Findings of Fact, Conclusions of Law and Order
entered by the District Court for the Eighth Judicial District, Cascade County, denying his
petition to reinstate his driver's license. We reverse.
72 We address the following issue on appeal: Whether the District Court erred in
concluding that Officer Leasure had objective data from which he could form a particularized
suspicion that Kleinsasser or an occupant of his vehicle was engaged in wrongdoing thus
justifying an investigative stop.
Factual and Procedural Background
73 Many of the facts in this case are undisputed. On November 16, 1999, at
approximately 9:48 p.m., Kleinsasser's vehicle was parallel parked in a legal manner, with
its lights on, off the right side of the Vaughan Frontage Road outside Great Falls, Montana.
Cascade County Sheriffs Deputy Troy Leasure, accompanied by Reserve Sheriffs Deputy
Travis Palmer, was returning to Great Falls from Sun Prairie in his patrol car. Officers
Leasure and Palmer came upon Kleinsasser's vehicle from behind. As they passed the
vehicle, the officers observed a man standing beside the passenger door of the vehicle on the
side furthest from the road. The man appeared to be urinating. Officer Palmer later testified
that he observed a stream of fluid for a brief second, but the individual had taken steps so as
not to expose himself to passers-by.
14
1 Officer Leasure continued on for about one-half mile before deciding to turn around
to warn the individual about the impropriety of his conduct or, as Officer Leasure later
testified, "to give him a good tongue lashing." Upon reaching the vehicle, there was no
longer anyone standing near it. The officers observed that Kleinsasser was seated in the
driver's seat of the vehicle and that he was making a call on his cellular phone. They also
observed that an individual was seated in the front passenger seat of the vehicle and another
individual was lying down on the back seat.
75 When Kleinsasser rolled down his driver's side window to speak to Officer Leasure,
Officer Leasure noticed the odor of alcohol emanating from inside the vehicle. Officer
Leasure questioned Kleinsasser and the other two men in the vehicle about the identity of the
man who had been standing outside. All three denied standing by the vehicle and also denied
knowing who had been doing so.
76 After further conversation, Officer Leasure asked Kleinsasser to exit the vehicle and
observed that Kleinsasser had a hard time keeping his balance. Officer Leasure had
Kleinsasser perform field sobriety tests, which Kleinsasser failed. Officer Leasure requested
Kleinsasser take a preliminary breath test, which Kleinsasser refused. Consequently, Officer
Leasure arrested Kleinsasser for driving under the influence of alcohol. After the officers
transported Kleinsasser to the detention center, Kleinsasser once again refused to provide a
breath sample and his driver's license was seized and suspended.
117 Kleinsasscr challenged the license suspension pursuant to 3 6-8-403, MCA, asserting
that Officer Leasure illegally seized his license. Discovery ensued and the depositions of
Officers Leasure and Palmer were filed. Officers Leasure and Palmer also testified at the
June 30,2000 hearing on Kleinsasser's petition challenging the suspension. Thereafter, the
District Court entered its Findings of Fact, Conclusions of Law and Order denying
Kleinsasser's petition. Kleinsasser appeals.
Discussion
f8 Whether the District Court erred in concluding that Officer Leasure had objective
data from which he could form a particularized suspicion that Kleinsasser or an occupant
of his vehicle was engaged in wrongdoing thus justlfiing an investigative stop.
79 We review a district court's findings of fact on the denial of a petition for
reinstatement of a driver's license to determine whether those findings are clearly erroneous.
Anderson v. State, Dept. ofJustice (1996), 275 Mont. 259, 262, 912 P.2d 212,214 (citing
Bauer v. State (1996), 275 Mont. 119, 122,910 P.2d 886,888). We then review the court's
conclusions of law to determine whether they are correct. Anderson, 275 Mont. at 262,912
P.2d at 214.
710 "Bccause a presumption of correctness attaches to the State's act of suspending or
revoking a driver's license, the driver bears the burden of proving that the suspension or
revocation of a driver's license was improper." Hulse v. State, Dept. of Justice, 1998 MT
108,f 14, 289 Mont. 1 , 7 14,961 P.2d 75, f 14 (citing Jess v. State Dept. ofJustice (1992).
255 Mont. 254, 259-60, 841 P.2d 1 137, 1140 overruled on other grounds by Bush v. State.
Dcpl. of'.hc.stice, 1998 MT 270, 291 Mont. 350, 968 P.2d 716). F~~rthcrnmore,district court
a
may consider only a limited number of issues in a driver's license reinstatement proceeding.
Section 61-8-403(4)(a) & (b), MCA. Insofar as is relevant in the present case, the only issue
under consideration was whether Officer Leasure "had reasonable grounds to believe" that
Kleinsasser "had been driving or was in actual physical control of a vehicle upon ways of this
state open to the public while under the influence of alcohol, drugs, or a combination of the
two." Section 61-8-403(4)(a)(i), MCA.
11 1 The "reasonable grounds" requirement contained in § 61-8-403(4)(a)(i), MCA, is the
equivalent of "particularized suspicion" as defined in 8 46-5-401, MCA. Hulse, 7 12 (citing
Seyferth v. State, Dept. ofJzistice (1996), 277 Mont. 377, 384, 922 P.2d 494,498; Anderson,
275 Mont. at 263, 912 P.2d at 214). 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 a particularized suspicion that theperson or occupant of the vehicle
has committed, is comn~itting, is about to commit an offense. [Emphasis
or
added.]
712 This statute was amended in 1991 to reflect our holding in State v. Gopher (1981),
193 Mont. 189,631 P.2d 293, wherein we adopted the two-part test enunciated by the United
States Supreme Court in United States v. Cortez (l981), 449 U.S. 41 1, 101 S.Ct. 690, 66
L.Ed.2d 621, to evaluate whether a law enforcement officer has sufficient cause or a
"particularized suspicion" to stop a person. We held in Gopher that in asserting that a law
enforcement officer had the particularized suspicion to make an investigatory stop, the State
113s the burden to show: ( I ) ol7jective data from which an experiei~cedofficer 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, 193 Mont.
at 194, 63 1 P,2d at 296.
713 A determination of whether particularized suspicion exists is a question of fact
dependent on the totality of the circumstances. Hulse, T/ 12 (citing Anderson, 275 Mont. at
263, 912 P.2d at 214; State v. Reynolds (1995), 272 Mont. 46, SO, 899 P.2d 540, 542-43).
"In evahating the totality of the circumstances, a court should consider the quantity, or
content, and quality, or degree of reliability, of the information available to the officer." State
v. Pratt ( 1 9971,286 Mont. 156, 16 1,95 1 P.2d 37,40 (citing Alabama v. White ( 1 W O ) , 496
U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301). When the totaiity of the
circumstances does not support a particularized suspicion, the investigatory stop is not
justified. Reynolds, 272 Mont. at 50, 899 P.2d at 543.
114 Kfeinsasser asserts that an investigative stop of his vehicle was not justified in this
case because the officers lacked sufficient data from which they could conclude that the
person they observed on the side of the road was an occupant of Kleinsasser's vehicle. Both
officers testified that they did not observe anyone entering or exiting Kleinsasser's vehicle
at any time. The officers merely observed that there was an individual on the side of the road
when they originally proceeded past Kleinsasser's vehicle and that upon returning to that
location, the individual that the officers had observed earlier was no longer there. The
officers assumed that this individual was an occupant of Kleinsasser's vehicle, yet they werc
unable to determine which of the occupants of the vehicle, if any, was the individual they had
observed on the side of the road.
1/15 Kleinsasser also argues that to justify an investigative stop under § 46-5-401, MCA,
the facts must demonstrate that the observed behavior was a violation of the laws of
Montana. To that end, the State argues that the observed behavior was a violation of S 45-8-
101, MCA, the statute defining disorderly conduct. Section 45-8-101, MCA, provides, in
pertinent part, as follows:
Disorderly conduct. (1) A person commits the offense of disorderly
conduct if he knowingly disturbs the peace by:
(i) creating a hazardous or physically offensive condition by any act
that serves no legitimate purpose; . . . [Emphasis added.]
116 First, we agree with Kleinsasser's assertion that this behavior did not create a
hazardous condition. Despite the State's allegation that a driver passing by the area may have
been distracted by the activities of the individual on the roadside, any possible distraction
would be minimal given the time of night and the steps taken by the individual to conceal
himself.
1/17 Second, we disagree with the State's assertion that the act served no legitimate
purpose. It is hard to imagine any act which serves a more legitimate purpose than to have
to answer nature's call. Unfortunately, it sometimes happens that that call comes at a time
when we are far removed from the proper facilities. Officer Leasure himself testified that
lie had, on occasion, becn placcd in the same position and that he was forced to act in the
same manner as the individual here.
8 Third, while the act may be physically offensive to many, Officer Leasure testified
that where the act is performed would play a large part in whether or not it was illegal. The
State points to two cases wherein the individuals involved were cited for disorderly conduct
for urinating in public. In the first case, the individual was cited for urinating in the 1800
block of Tenth Avenue South within the Great Falls city limits, near a busy, well-lighted
street. In the second case, the individual was cited for urinating on a bench in the Cascade
County Adult Detention Center.
1/19 The Criminal Law Commission (CLC) comments to 5 45-8-101, MCA, provide the
following analysis of the conduct comprising a violation of this statute:
The crime of disorderly conduct appears to be directed at curtailing that kind
of behavior which disrupts and disturbs the peace and quiet of the community
by various kinds of annoyances. These acts standing alone may not be
criminal under other categories such as theft, or assault and battery, or libel,
etc. The difficulty is in defining the conduct which falls within these
objectives, for a given act under some circumstances is not objectionable,
while under others it is. Thus sounding a horn at a carnival is not
objectionable. But sounding it at midnight in a residential section might be.
The intent of the provision is to use somewhat broad, general terms to establish
a foundation for the offense and leave the application to the facts of a
particular case. Two important qualifications are specified in making the
application, however. First, the offender must knowingly make a disturbance
of the enumerated kind, and second, the behavior must disturb "others. " It is
not sufficient that a single person or a very few persons have grounds for
complaint. [Emphasis added.]
Unlike the facts in the case before 11son appeal, in both of the cases relied upon by the State
the behavior was done in very publ~cplaces and could conceivably be considered to have
disturbed "others."
720 Indeed, our review of the CLC comments to § 45-8-101, MCA, leads us to conclude
that when a Big Sky motorist is faced with the burning question: "To pee, or not to pee," the
answer must depend upon the place, time of day, traffic, and other circumstances. The wrong
answer--dictated though it may be by a need subordinate only to drawing one's next breath--
may turn a legitimate act into a criminal one.
72 1 In the present case, the incident occurred in the dark of the night, in a rural location
where, as Officer Palmer testified, there were no overhead lights of any kind and there was
no other traffic around at the time. Moreover, there was no evidence that the behavior
disturbed anyone other than Officers Leasure and Palmer, and neither officer was so
disturbed by the behavior that they considered giving the individual a citation. In fact,
Officer Palmer testified that he observed nothing of an illegal nature that required immediate
attention and Officer Leasure testified that, even though he turned his patrol car around to
return to the scene, he had no intention to investigate any illegal activity.
722 Therefore, we conclude that the District Court's determination that the initial stop of
Kleinsasser's vehicle was justified by particular suspicion is not supported by substantial
evidence and is clearly erroneous. Because Officer Leasure did not have particularized
suspicion to justify an investigative stop of Kleinsasser's vehicle, the subsequent seizure of
Klcinsasser's driver's license was invalid. Thus, we hold that the District Court erred in
denying Kleinsasser's petition to reinstate his driver's license.
123 Reversed.
-
We Concur:
Chief Justice
Chicf Justicc Karla M. Gray, dissenting.
1/24 1 respectfully dissent from the Court's opinion which, in my view, turns "particularized
suspicion" on its head by requiring law enforcement officers to know,both in fact and under
the law, that an offense has been committed prior to making an investigative stop. I cannot
agree, and I would affirm the District Court.
725 Notwithstanding that the ultimate issue in the District Court was whether Officer
Leasure had particularized suspicion or reasonable grounds to believe Kleinsasser had been
driving or was in physical control of a vehicle upon a public way while under the influence
of alcohol, the dispositive question in both that court and on appeal is whether Officer
Leasure had a particularized suspicion to make an investigatory stop of Kleinsasser's vehicle
in the first instance. The trial court found that he did and that, having properly returned to
the vehicle, subsequent events properly gave rise to Kleinsasser's arrest for DUI and the
State's revocation of his driver's license. Under the applicable statute and our case law, it is
my view that the District Court was correct.
726 I join the Court in focusing first on the portion of $46-5-401, MCA, which authorizes
an officer to stop a person or vehicle observed in circumstances creating a particularized
suspicion that the person or occupant of the vehicle has committed or is committing an
offense. I also join in the Court's statement of our two-part test for particularized suspicion,
which requires the State to show objective data from which an experienced officer can make
certain inferences and a resulting suspicion that the occupant of a vehicle is or has been
cngagcd in wrongdoing. See Gopher, 193 Mont. at 194, 63 1 P.2d at 296. Moreover, it is
11
important to rccogni~c tlic particularized suspicion ncccssary for an invcstigativc stop
that
is a lcss stringent standard to meet than the probable cause standard (see State v. Williar~~son,
1998 MT 199, 'fi 12,290 Mont. 32 1 , y 12,965 P.2d 23 1,'fi 12 (citation omitted)). In turn, of
course, probable cause is a lesser standard than the State's beyond a reasonable doubt burden
in proving that a criminal offense was committed. Unfortunately, the Court fails to properly
apply these principles in the present case.
127 Instead, the Court begins by suggesting, but not concluding, that the officers lacked
sufficient objective data from which to conclude that the person they observed on the side
of the road was an occupant of Kleinsasser's vehicle. To the extent this section of the Court's
opinion is intended to buttress the Court's later discussion and conclusions, I submit it is
incorrect.
128 First, it is undisputed that the person the officers observed was urinating behind or
beside the door of Kleinsasser's vehicle. Second, there is no suggestion that other persons
were in the vicinity on foot at approximately 9:30 in the evening; nor does the record reflect
the existence of another parked vehicle nearby from which the person at issue could have
exited and re-entered after urinating beside Kleinsasser's vehicle. Third, the time lapse
between the officers' observations and their return to the vehicle was minimal. The fact that
the person was no longer outside the vehicle in the location where the urinating occurred
does not negate the objective data that a man was observed urinating immediately next to the
Kleinsasser vehicle, especially in light of the fact that there were three males in the vehicle
upon the officers' arrival there. Finally, in this regard, the Court's reliance on the fact that
the officers were unable to identify one of the occupants of thc vehiclc as the urinater, after
the "stop" occurred and because the occupants simply denied having committed that act, is
totally improper. The question is whether objective data existcdpriorto the stop upon which
the officers reasonably relied in making contact with the occupants of the vehicle. Under the
circumstances here, it clearly did.
129 More important, however, and far more dangerous for the future of law enforcement's
ability to protect Montanans, is the Court's implicit adoption of Kleinsasser's argument that
the "facts" must "demonstrate" that the observed behavior was a violation of the law before
an investigative stop can be justified. The question of whether an offense occurred is not for
this Court or the District Court to resolve in the context of a proceeding over a driver's
license suspension. If an offense is charged, that question is for the finder of fact.
130 The question before us here is whether urinating beside a road or in any other public
place can constitute the criminal offense of disorderly conduct. The Court determines that
it can, and I agree. Having so concluded, it is my opinion that the particularized suspicion
issue is largely resolved. Based on their personal observations and the inferences properly
drawn therefrom, the officers had a particularized suspicion that an occupant of Kleinsasser's
vehicle had committed the offense of disorderly conduct. Nothing more was required to
make the stop of the vehicle.
731 Particularized suspicion does not turn on whether a charge is subsequently filed or on
whether the State could prove beyond a reasonable doubt in a criminal trial that, given the
time, place and circumstances, the offense had been committed. In that regard, the Court's
rcliaricc on the comrncnts of the Criminal Law Commission to thc. statutc defining thc
offense of disorderly conduct have no relevance hcre; those comments go to nlatters
concerning charging and proving the offense. Thus, the questions on which the Court
focuses--whether an occupant of the Kleinsasser vehicle actually created a physically
offensive condition that served no legitimate purpose--have no place in our consideration of
the present case.
132 We all agree that urinating in a public place can constitute the criminal offense of
disorderly conduct. Because the officers observed such conduct in this case, I would
conclude that the District Court properly determined the officers had a particularized
suspicion to stop the Kleinsasser vehicle on the basis that an occupant had committed a
criminal offense. While it is easy to be amused over the "to pee or not to pee" language used
by the Court and, as a result, to underestimate the consequences of the Court's decision here,
I am greatly concerned about where the Court's holding in this case will lead us, that is, what
effect it will have on law enforcement's ability to make investigatory stops in future cases
involving particularized suspicion that other offenses are being or have been committed. If
a law enforcement officer must be able toprove that an offense has been committed before
making an investigative stop, the applicable statute has been judicially repealed and Gopher
has been effectively overruled. I simply cannot agree.
1/33 I dissent.