November 10 2008
DA 07-0740
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 369
STATE OF MONTANA
(CITY OF GREAT FALLS),
Plaintiff and Appellee,
v.
KIMBRLI LAVON ROSS,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. DC 06-536
Honorable Dirk M. Sandefur, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kristi Blazer, Missouri River Law Office; Craig, Montana
For Appellee:
Hon. Mike McGrath, Montana Attorney General; Jonathan M. Krauss,
Assistant Attorney General; Helena, Montana
Brant S. Light, Cascade County Attorney; Great Falls, Montana
Chad G. Parker, City Attorney; Great Falls, Montana
Submitted on Briefs: September 3, 2008
Decided: November 10, 2008
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Kimbrli Lavon Ross (“Ross”) pled guilty in Great Falls Municipal Court to a
second offense of driving under the influence of alcohol (“DUI”). Under the terms of the
plea agreement, Ross reserved the right to appeal the Municipal Court’s denial of her
motion to suppress DUI evidence on the basis that the arresting officer did not have a
particularized suspicion for an investigatory stop of Ross’s vehicle. The Eighth Judicial
District Court, Cascade County, affirmed the order of the Municipal Court. Ross appeals.
We affirm.
¶2 The restated issue on appeal is whether the District Court erred in affirming the
Municipal Court’s determination that the arresting officer had a particularized suspicion
to justify the investigatory stop of Ross’s vehicle?
STANDARD OF REVIEW
¶3 We review a district court’s denial of a motion to suppress evidence to determine
whether the district court’s finding that the officer had particularized suspicion to justify
the investigatory stop is clearly erroneous and whether its conclusions of law are correct.
State v. Loiselle, 2001 MT 174, ¶ 6, 306 Mont. 166, ¶ 6, 30 P.3d 1097, ¶ 6. A finding is
clearly erroneous if it is not supported by substantial evidence, the court has clearly
misapprehended the effect of the evidence, or this Court is left with a definite and firm
conviction that the district court made a mistake. State v. Gilder, 1999 MT 207, ¶ 7, 295
Mont. 483, ¶ 7, 985 P.2d 147, ¶ 7.
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BACKGROUND
¶4 On February 21, 2006, at approximately 7:40 p.m., Great Falls Police Officer
Steven Scheer (“Officer Scheer”) made an investigatory stop of Ross’s vehicle on First
Avenue North at the intersection of Seventeenth Street North in Great Falls, Montana.
After further investigation, Officer Scheer cited Ross for careless driving in violation of
§ 61-8-302(1), MCA, open container in violation of § 61-8-460, and DUI, second
offense, in violation of § 61-8-401, MCA. Ross appeared in Municipal Court in Great
Falls and filed a motion to suppress evidence obtained after the investigatory stop on the
basis that Officer Scheer lacked a sufficient particularized suspicion for the stop. After
the Municipal Court denied the motion, Ross pled guilty and reserved her right to appeal
the denial of her motion to suppress. All charges, except for the DUI charge, were
dropped. Ross was ordered to pay $300 in fines and was sentenced to six months in the
Cascade County Detention Center with all but 30 days suspended.
¶5 The circumstances leading up to the investigatory stop were presented during the
hearing before the Municipal Court. At the hearing, Officer Scheer testified that he
observed Ross’s vehicle, a GMC Yukon, turn out of an alley from the 1400 block of
Sixth Avenue onto Fifteenth Street. After turning onto Fifteenth Street, a two-lane, one-
way street, Officer Scheer stated that he then observed the vehicle switch from the west
lane to the east lane of travel. Officer Scheer then followed the vehicle and observed it
swerve within the lane of traffic. Officer Scheer also testified that he observed the
vehicle cross the dividing line between the lanes, but stated that it was “[p]robably
minimal inches perhaps.” He also testified that he “observed the vehicle swerve within
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its lane touching both the dividing line and the fog line at certain points which is
suspicious driving behavior.” Officer Scheer’s dash-mounted video camera recorded
these maneuvers, which were shown during the hearing in the Municipal Court.
¶6 In addition, Officer Scheer observed the vehicle travel appropriately through a
green light at Central Avenue and stop properly for a red light at the intersection of
Fifteenth Street and First Avenue North. Officer Scheer then testified that he observed
the vehicle signal and make a right turn onto First Avenue North. While making the turn,
according to Officer Scheer, the vehicle’s passenger side tires rubbed against the curb,
causing it to rock back and forth. Officer Scheer’s video camera did not capture the turn,
which he said was due to the fact that, unlike his eyes, the dash-mounted camera is
unable to see around corners. After witnessing Ross’s vehicle make the turn, Officer
Scheer activated the lights on his patrol car and proceeded to stop Ross’s vehicle.
¶7 At the hearing on the motion to suppress the evidence obtained after the stop, Ross
provided an explanation for the swerving witnessed by Officer Scheer, stating that she
was trying to avoid manhole covers because “it makes your vehicle bounce . . .” She also
stated, with regard to the manhole covers, that she typically tries to avoid them
“[b]ecause its [sic] very bumpy with my vehicle and it makes it you know kind of swerve
so I don’t like hitting them.” When asked on cross-examination whether her swerving
was possibly due to her driving under the influence of alcohol, Ross stated that it was not
and that, while she had been drinking at a friend’s house, she “did not think [she] was
intoxicated.” Officer Scheer, however, testified that he did not have to avoid any
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manhole covers and that the careless driving ticket was based upon the swerving and the
rubbing of the wheels.
¶8 After reviewing the video from Officer Scheer’s patrol camera and listening to the
testimony from Officer Scheer and Ross, the Municipal Court concluded that Officer
Scheer had a particularized suspicion to stop Ross’s vehicle and that Ross’s explanation
for the swerving (avoiding manhole covers) was not at issue in the case. Instead, the
court stated that the issue was “whether that driving behavior could be construed to be
sufficiently suspicious for an experienced officer to make the stop.” On appeal, the
District Court concluded that the Municipal Court’s findings of fact were not clearly
erroneous and that its “resulting conclusion of law that Officer Scheer conducted a lawful
investigatory stop of Ross, ultimately resulting in a DUI arrest, [was] correct.”
DISCUSSION
¶9 The Fourth Amendment of the United States Constitution and Article II, Section
11 of the Montana Constitution protect persons against unreasonable searches and
seizures, including brief investigatory stops of vehicles. Loiselle, ¶ 7 (citing State v.
Farabee, 2000 MT 265, ¶ 14, 302 Mont. 29, ¶ 14, 22 P.3d 175, ¶ 14). We have stated
that “to make an investigatory stop, an officer must have a particularized and objective
basis for suspecting the particular person of criminal activity.” Loiselle, ¶ 7. In State v.
Gopher, 193 Mont. 189, 631 P.2d 293 (1981), we adopted the two-part test articulated by
the United States Supreme Court in U.S. v. Cortez, 449 U.S. 411, 101 S. Ct. 690 (1981),
to determine whether a police officer had a particularized suspicion to make an
investigatory stop. In Gopher, we held that in order to demonstrate the existence of a
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particularized suspicion, the State must show: (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 or was a witness to
criminal activity.” 193 Mont. at 194, 631 P.2d at 296; see also § 45-5-401(1), MCA
(codifying the rule requiring particularized suspicion for investigatory stops). Finally,
“whether a particularized suspicion for an investigatory stop exists is a question of fact
which depends on the totality of the circumstances.” State v. Lafferty, 1998 MT 247,
¶ 10, 291 Mont. 157, ¶ 10, 967 P.2d 363, ¶ 10.
¶10 Ross argues that Officer Scheer did not have a sufficient particularized suspicion
to justify the investigatory stop of her vehicle on the night of February 21, 2006.
Specifically, Ross claims that “the only driving behavior supporting particularized
suspicion was weaving within a lane of traffic and crossing the line once by ‘inches
perhaps.”’ Ross also argues that the additional “driving behaviors” (the immediate lane
change and the turn onto First Avenue North that caused Ross’s tires to rub the curb)
cited by the City were not found credible by the Municipal Court, and that the resulting
swerving behavior was insufficient to establish a particularized suspicion of wrongdoing.
Finally, Ross argues that the Municipal Court erred by relying “strictly on deviations
from a straight line of travel” in finding a particularized suspicion, and that the District
Court, in affirming the Municipal Court’s determination, erred by not restricting its
review to whether the Municipal Court’s findings of fact were clearly erroneous.
¶11 The State, on the other hand, contends that the District Court correctly affirmed
the Municipal Court’s denial of Ross’s motion to suppress. According to the State, the
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totality of the circumstances in this case established objective data from which Officer
Scheer could make certain inferences and a resulting suspicion of wrongdoing sufficient
to justify an investigatory stop of Ross’s vehicle. Specifically, the State argues that
“given Officer Scheer’s undisputed experience in traffic and DUI stops, and his specific,
objective, and articulable observations, Ross’s undeniable weaving or swerving gave rise
to a reasonable suspicion of both careless driving and potential DUI.”
¶12 Ross cites this Court’s decisions in Lafferty and Morris v. State, 2001 MT 13, 304
Mont. 114, 18 P.3d 1003, for the proposition that “driving on and over traffic lines” is
insufficient particularized suspicion to justify an investigatory stop. Ross argues that
Lafferty and Morris provide “clear guidance about the level of deviation from ‘perfect’
driving which is required to justify a stop.” The State, however, distinguishes the
circumstances of this case from Lafferty and Morris by alleging that a finding of
particularized suspicion failed in those cases “not because the deviations were minor, but
because the ‘minor’ driving deviations observed did not raise suspicion of either a traffic
infraction or DUI.”
¶13 In Lafferty, the officer received an anonymous tip about a possible drunk driver.
After identifying and following the vehicle for approximately one mile, the officer
observed the vehicle “cross the fog line on the right side of the highway twice and drive
on the fog line once . . . .” On appeal, we stated that the officer, without other relevant
circumstances, “did not have facts supporting a particularized suspicion that Lafferty was
committing an offense . . . .” In Morris, the officer witnessed a “vehicle ‘drift’ across the
painted line separating the eastbound lanes of traffic, and then ‘drift’ and touch the fog
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line on the other side of the lane one or two times.” Based on this evidence alone, the
officer initiated an investigatory stop of the vehicle. On appeal, we noted that the officer
in Morris did not cite the driver of the vehicle with an offense other than DUI and held
that the circumstances were insufficient to form a sufficient particularized suspicion to
justify the stop.
¶14 However, in Ross’s case, there are additional facts which distinguish it from our
holdings in Lafferty and Morris. Officer Scheer testified that he “observed the vehicle
swerve within its lane touching both the dividing line and the fog line . . . .” Officer
Scheer also provided testimony that he observed the vehicle cross the dividing line.
Further, Officer Scheer stated that he believed Ross’s driving was “suspicious driving
behavior,” and that when Ross “made the right hand turn onto 1st Avenue North her
wheels struck the curb,” which resulted in Officer Scheer stopping the vehicle. Finally,
Officer Scheer stated that he believed “there was something distracting her driving
ability” and that he normally would have stopped someone exhibiting similar driving
behaviors. Finally, Officer Scheer testified that “[Ross] displayed common driving of
people [he has] arrested for driving under the influence.”
¶15 In its findings, the Municipal Court stated that “[a] viewing of the police car
videotape shows that the defendant’s vehicle drifted to the right and corrected itself in a
pronounced weaving maneuver on at least two occasions and weaved within the lane to a
lesser extent on two other occasions.” In addition, the Municipal Court found that
Officer Scheer had “made approximately 32 DUI arrests during the last year and that the
swerving behavior that the defendant exhibited on the video was the type of behavior that
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he had observed in previous DUI stops. The Municipal Court also found that Officer
Scheer cited Ross “for careless driving for swerving” and that “[a]fter further
investigation the officer also issued the defendant a ticket for driving under the influence
of alcohol.” Based on these findings, the Municipal Court concluded that Ross’s driving
behavior was sufficiently suspicious for an experienced officer such as Officer Scheer to
make the investigatory stop.
¶16 Despite Ross’s claim that the Municipal Court rejected evidence from Officer
Scheer that Ross’s tires hit the curb as it completed the turn onto First Avenue North,
there is no evidence to support this contention. The Municipal Court stated the following
in its findings of fact:
The officer also testified that the defendant cut the corner at 15th Street and
First Ave N. causing her tires to rub against the curb; the defendant
disputed that testimony and the videotape did not show the maneuver.
Contrary to Ross’s interpretation, the fact that the court recognized that the videotape did
not show the bumping of the curb does not mean that the court thereby rejected the
officer’s testimony that Ross’s tires rubbed the curb. Read in context, it is clear that the
court accepted Officer Scheer’s testimony on this point. We do note that it would
facilitate review of decisions if courts, in their fact finding would make declarative
findings of fact, instead of merely reciting what a witness said. Such declarations of fact
should, of course, be based upon testimony or evidence before the court.
CONCLUSION
¶17 The Municipal Court’s finding that Officer Scheer had sufficient facts to create a
particularized suspicion to justify the investigatory stop of Ross’s vehicle, which the
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District Court affirmed, was not clearly erroneous and its conclusions of law were
correct. Therefore, we affirm the order of the District Court, denying Ross’s motion to
suppress evidence arising from the investigatory stop.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ JIM RICE
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JOHN WARNER
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