No. 05-130
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 331
STATE OF MONTANA,
Plaintiff and Respondent,
v.
SHEILA LITSCHAUER,
Defendant and Appellant.
APPEAL FROM: The District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DC 2004-25,
Honorable Holly Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Peter B. Ohman, Public Defender, Bozeman, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; John Paulson,
Assistant Attorney General, Helena, Montana
Jon M. Hesse, City Prosecutor, Belgrade, Montana
Submitted on Briefs: October 26, 2005
Decided: December 20, 2005
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 This decision arises out of a charge in Belgrade City Court of driving under the
influence of alcohol. The City Court granted Sheila Litschauer’s motion to suppress
evidence, and the State appealed. Litschauer pled guilty in the Eighteenth Judicial
District Court to operating a non-commercial motor vehicle with a blood alcohol level
greater than .08, third offense, a misdemeanor, in violation of § 61-8-406, MCA. Prior to
entering her guilty plea, Litschauer moved to suppress all evidence flowing from the stop
by the arresting officer, but the District Court denied her motion. Litschauer now appeals
the denial of her motion to suppress. We affirm.
¶2 We address the following issue on appeal: Did the District Court err when it
denied Litschauer’s motion to suppress?
BACKGROUND
¶3 On the night of August 9, 2003, an anonymous female in Belgrade, Montana,
called 911 and stated that she had seen a woman outside yelling, “You got what you
want, now get the f--- out of here.” The caller claimed that she had seen the woman enter
a maroon Chevrolet, bang her head on the headrest and the steering wheel, and then get
out of the car and go “ballistic.” While reporting the incident, the caller saw the woman
hit her head on the headrest inside the Chevrolet and then get out and bang her head on
the outside of the vehicle; the caller then viewed the woman reenter the car and drive
away. Before disconnecting, the 911 caller described the car again and stated that the
woman “was heading south on Jackrabbit [Lane].”
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¶4 The 911 dispatcher in receipt of the anonymous phone call alerted police officers
that she received a report of a “disturbance at 503 South Circle . . . [where a] female was
screaming earlier and . . . banging her head on the car”; the dispatcher also described the
car and the direction it was heading. Officer Bill Todd, who happened to be driving north
on Jackrabbit Lane, heard the dispatcher’s report; seeing a maroon Chevrolet matching
the car description from dispatch, Officer Todd turned around, activated his emergency
lights and stopped the car. He then approached the driver—Litschauer—and informed
her of the 911 call. Detecting a strong odor of an alcoholic beverage coming from
Litschauer, and noting her slurred speech and glassy eyes, Officer Todd gave Litschauer
a preliminary breath test that indicated her alcohol concentration to be over the legal
limit; the officer then took Litschauer to the police station where a breath test showed her
alcohol concentration to be .193. The State subsequently charged Litschauer with
operating a non-commercial motor vehicle with a blood alcohol level greater than .08,
third offense, a misdemeanor, in violation of § 61-8-406, MCA, and with operating a
vehicle with no liability insurance, in violation of § 61-6-301, MCA. Litschauer pled not
guilty to the charges.
¶5 Litschauer filed a motion to suppress, arguing at the suppression hearing that
Officer Todd improperly pulled her over and therefore all evidence flowing from the
arrest should be suppressed. The District Court denied the motion, concluding that under
the “community caretaker doctrine” and in accordance with the test established in State v.
Lovegren, 2002 MT 153, 310 Mont. 358, 51 P.3d 471, Officer Todd “had the right, and
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the duty, to stop the vehicle and investigate the welfare of the driver who was the subject
of the 911 call.” Litschauer eventually signed a plea agreement whereby she pled guilty
to driving under the influence of alcohol in violation of § 61-8-406, MCA, but reserved
the right to appeal the District Court’s denial of her motion to suppress. For the reasons
explained below, we affirm the court’s decision.
STANDARD OF REVIEW
¶6 “A district court’s denial of a criminal defendant’s motion to suppress is reviewed
on appeal to determine whether the court’s findings of fact are clearly erroneous, and
whether those findings were correctly applied as a matter of law.” State v. Kintli, 2004
MT 373, ¶ 8, 325 Mont. 53, ¶ 8, 103 P.3d 1056, ¶ 8.
DISCUSSION
¶7 “Police officers have a duty not only to fight crime, but also to investigate
uncertain situations in order to ensure the public safety. This community caretaker
function of the police is typically the least intrusive form of contact between a police
officer and the public.” State v. Nelson, 2004 MT 13, ¶ 6, 319 Mont. 250, ¶ 6, 84 P.3d
25, ¶ 6. This Court applies a three-part test when determining whether an officer had
justification for initiating contact with a citizen based on the “community caretaker
doctrine.” Lovegren, ¶ 25.
First, as long as there are objective, specific and articulable facts from
which an experienced officer would suspect that a citizen is in need of help
or is in peril, then that officer has the right to stop and investigate. Second,
if the citizen is in need of aid, then the officer may take appropriate action
to render assistance or mitigate the peril. Third, once, however, the officer
is assured that the citizen is not in peril or is no longer in need of assistance
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or that the peril has been mitigated, then any actions beyond that constitute
a seizure implicating not only the protections provided by the Fourth
Amendment, but more importantly, those greater guarantees afforded under
Article II, Sections 10 and 11 of the Montana Constitution as interpreted in
this Court’s decision.
¶8 In Lovegren, an officer stopped to investigate after coming upon a vehicle parked
on the side of a highway with the motor running and the headlights off. Lovegren, ¶ 3.
Upon approaching the vehicle and looking in the window, the officer saw the
defendant—apparently asleep—and knocked on the window. Lovegren, ¶ 4. Lovegren
suddenly awoke and stated: “I was drinking.” Lovegren, ¶ 4. Smelling alcohol and
seeing other signs of inebriation, the officer performed various field sobriety tests, which
Lovegren failed. Lovegren, ¶ 4. The officer cited Lovegren for driving under the
influence of alcohol after Lovegren failed another breath test at the police station.
Lovegren, ¶ 4. Lovegren moved to suppress all evidence obtained by the arresting
officer, claiming it was an illegal search and seizure. Lovegren, ¶ 5. The State argued in
response that the officer appropriately stopped Lovegren under the “community caretaker
doctrine” and that “Lovegren’s subsequent actions that created a particularized suspicion
of criminal activity, [did] not negate the validity of [the officer’s] initial stop to see if
Lovegren needed assistance.” Lovegren, ¶ 12. Applying the community caretaker
doctrine and its three-part test, we agreed with the State, concluding that “[u]nder these
circumstances, [the officer] had the right to check on Lovegren’s welfare and to open the
door of Lovegren’s vehicle when Lovegren failed to respond to a knock on the window
of his vehicle.” Lovegren, ¶ 26. We noted that once the officer observed signs of
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intoxication, he had “particularized suspicion to make a further investigatory stop—i.e.,
the field sobriety tests—which eventually developed into probable cause for an arrest.
This escalation of events leading to Lovegren’s arrest is proper under our decisions . . . .”
Lovegren, ¶ 27 (citations omitted).
¶9 We applied the Lovegren test in Nelson, ¶ 4, ¶ 8, where an officer approached the
driver of a pickup truck after noticing the vehicle pulled off to the side of a rural highway
with the engine running on an extremely cold New Year’s Day. When the officer
reached the truck door, Nelson woke up and stared ahead, failing to acknowledge the
officer’s presence until she opened the door. Nelson, ¶ 4. Nelson filed a motion to
suppress, arguing that the officer had no particularized suspicion to stop his vehicle.
Nelson, ¶ 1. We concluded that “[u]nder these circumstances, [the officer] was correct to
approach Nelson’s vehicle to check on his welfare.” Nelson, ¶ 9. We further noted that
the officer had “more than enough justification” to undertake further investigation after
smelling alcohol and observing Nelson’s blood-shot eyes. Nelson, ¶ 9.
¶10 The case at hand presents similar circumstances to those in Lovegren and Nelson.
Officer Todd stopped Litschauer to check on her welfare after hearing a report from
dispatch of a “disturbance at 503 South Circle . . . [where a] female was screaming earlier
and . . . banging her head on the car.” In accordance with his duty, Officer Todd
appropriately inquired as to whether Litschauer needed assistance. Officer Todd’s
subsequent observation of Litschauer’s intoxication justified his further investigation.
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¶11 Litschauer contends that the District Court should have granted her motion to
suppress because Officer Todd did not have “specific and articulable facts” for
concluding that Litschauer was “in need of help or [was] in peril”—thereby failing to
satisfy the first prong of the Lovegren three-part test. Specifically, Litschauer contends
that Officer Todd only knew of a “disturbance” at 503 South Circle—that he was
unaware of any further details before stopping Litschauer. In other words, Litschauer
asserts that although the anonymous caller provided specific and articulable facts to the
911 dispatcher, these facts were not relayed to the officer. The thrust of Litschauer’s
appeal is that information known only to a 911 dispatcher may not be imputed to police
officers.
¶12 Officer Todd stated during the suppression hearing that he knew of “an
anonymous phone call” and a “disturbance” at 503 South Circle. Based on this very
limited statement, Litschauer contends “that Officer Todd did not have specific,
articulable facts indicating [that she] was in need of help or in peril.” Litschauer’s
argument, however, fails to recognize that the 911 tape has the dispatcher providing more
significant information than that of a mere “disturbance” occurring at 503 South Circle.
The recording reveals that the dispatcher advised Officer Todd and his partner that there
was a “disturbance at 503 South Circle . . . [where a] female was screaming earlier and
. . . banging her head on the car.” This information was provided to Officer Todd prior to
his stopping Litschauer. Thus, while Litschauer correctly notes that during the
suppression hearing Officer Todd generally described the 911 dispatcher’s information as
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“some type of disturbance at the residence,” the 911 tape clearly indicates that Officer
Todd stopped Litschauer based on more detailed information—that is, that she was
screaming and banging her head on the car. Because these specific and articulable facts
were directly relayed to Officer Todd, there is no need to discuss the theory of imputed
knowledge.
¶13 Under the community caretaker doctrine, law enforcement appropriately stopped
Litschauer, and justifiably proceeded with further investigation after observing signs of
intoxication.
¶14 Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER
/S/ BRIAN MORRIS
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