June 10 2008
DA 07-0335
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 206
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MICHELLE THOMAS,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 05-582
Honorable Edward P. McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender; Shannon L. McDonald, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Hon. Mike McGrath, Attorney General; Mark W. Mattioli, Assistant
Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney; Jennifer Clark, Deputy
County Attorney, Missoula, Montana
Submitted on Briefs: April 9, 2008
Decided: June 10, 2008
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Michelle Thomas (Thomas) appeals from an order of the Fourth Judicial District,
Missoula County, denying her motion to suppress. We affirm.
¶2 Thomas presents the following issue for review:
¶3 Whether the District Court properly determined that particularized suspicion
supported the investigatory stop that led to the State’s discovery of evidence against Thomas.
FACTUAL AND PROCEDURAL BACKGROUND
¶4 Missoula County Deputy Sheriff Patrick Turner (Officer Turner) had been serving
civil papers in Missoula, Montana, on August 29, 2005, when he observed a woman sitting
in a parked truck. Officer Turner noted that the woman had parked the truck in front of the
house of Wendy Meis (Meis). Officer Turner was familiar with Meis and knew she was on
probation for dealing drugs. Officer Turner had been keeping an eye on Meis in light of his
three recent encounters with her, including an arrest for probation violations.
¶5 Officer Turner noticed that the woman in the truck looked away from him as he
passed. This behavior drew Officer Turner’s attention. He decided to run the truck’s license
plate through dispatch. Dispatch informed him that Thomas owned the vehicle, and that
Thomas also was on probation. Officer Turner testified that he could not remember whether
dispatch informed him that Thomas was on probation for a felony drug offense, but he
affirmed that dispatch customarily supplies such information.
¶6 Officer Turner drove past Meis’s house a second time, five minutes later. He noticed
that Thomas still was sitting in the parked truck in front of Meis’s house. Officer Turner
observed that Thomas engaged in “furtive movement” as he passed the second time.
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Thomas appeared to be reaching for something or trying to hide something within the truck.
Officer Turner stopped his car near Thomas’s truck. Officer Turner then attempted to
contact Thomas’s probation officer in Polson by telephone to inquire about Thomas’s status.
Officer Turner was unable to reach Thomas’s probation officer at that time.
¶7 Officer Turner then approached the parked truck and questioned Thomas. Thomas
identified herself, and confirmed that she was on probation in Lake County. Thomas
explained that she had stopped to visit her friend Meis. Thomas reported that she was
waiting in the truck because Meis was still sleeping. Officer Turner returned to his car and
successfully contacted Thomas’s probation officer. The probation officer informed Turner
that Thomas was not to have any contact with any other person on probation and that
Thomas recently had failed a urinalysis test. The probation officer requested that Officer
Turner search Thomas’s truck. Officer Turner’s search revealed a drug pipe that later tested
positive for methamphetamine.
¶8 The State charged Thomas with felony criminal possession of dangerous drugs and
misdemeanor criminal possession of drug paraphernalia. Thomas moved to suppress the
evidence on the basis that Officer Turner’s initial stop of Thomas constituted an illegal
search as it lacked particularized suspicion. The District Court denied the motion after a
hearing. Thomas pleaded guilty to the felony charge and the State dismissed the
misdemeanor charge. Thomas reserved the right to appeal the search.
STANDARD OF REVIEW
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¶9 We review a district court’s denial of a motion to suppress evidence for clear error.
State v. Martinez, 2003 MT 65, ¶ 19, 314 Mont. 434, ¶ 19, 67 P.3d 207, ¶ 19. We determine
whether a finding of fact is clearly erroneous based upon whether substantial evidence
supports the finding, whether the district court misapprehended the effect of the evidence,
and whether we are nevertheless left with a definite and firm conviction that the district court
made a mistake. Martinez, ¶ 19. We further review a district court’s denial of a motion to
suppress to determine whether the court’s interpretation and application of the law are
correct. Martinez, ¶ 19. The Court’s review is plenary as to whether the district court
correctly interpreted and applied the law. Martinez, ¶ 19.
DISCUSSION
¶10 Section 46-5-401(1), MCA, codifies the standard for such an investigatory stop in
Montana as follows:
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.
Particularized suspicion can arise from a trained law enforcement officer’s inferences and
deductions, drawn from objective facts and circumstantial evidence, that suggest some sort
of criminal activity. State v. Gopher, 193 Mont. 189, 192, 631 P.2d 293, 295 (1981) (citing
U.S. v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695 (1981). The process of inferring that
particularized suspicion supports an investigatory stop “‘does not deal with hard certainties,
but with probabilities.’” Gopher, 193 Mont. at 192, 631 P.2d at 295 (quoting Cortez, 449
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U.S. at 418, 101 S. Ct. at 695). Whether particularized suspicion supports an investigatory
stop constitutes a question of fact that we analyze in the context of the totality of the
circumstances. Martinez, ¶ 23. A court should consider the quantity or content of the
information available to the officer, as well as the quality or degree of reliability of that
information. Martinez, ¶ 23.
¶11 The parties spend much time on appeal arguing about the significance, if any, of the
alleged “furtive movements” made by Thomas as Officer Turner drove past her parked truck.
We need not analyze the implications of any alleged “furtive movements” made by Thomas.
We start, instead, with the proposition that a probationer, such as Thomas, remains subject
to search at any time for reasonable cause at the request of her probation officer. State v.
Burchett, 277 Mont. 192, 195, 921 P.2d 854, 856 (1996) (citing Admin. R. Mont.
20.7.1101(7)). Thomas’s probation officer requested that Officer Turner search Thomas
based upon the information that Officer Turner had provided. Officer Turner conducted a
valid search of Thomas at the request of Thomas’s probation officer under these
circumstances. Burchett, 277 Mont. at 195-96, 921 P.2d at 856.
¶12 Our inquiry focuses on the single issue of whether Officer Turner possessed the
requisite particularized suspicion to approach Thomas to confirm her identity as the owner of
the truck. The record reflects that Officer Turner observed a woman sitting in a parked
truck. Officer Turner knew that the truck was parked in front of the house of a person on
probation. Officer Turner further knew that the owner of the house recently had been arrested
for probation violations. Officer Turner also knew that the police and probation authorities
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continued to suspect the owner of the house of illegal activities and improper associations.
Officer Turner decided to run the truck’s license plate through dispatch.
¶13 Section 61-3-301(1), MCA, requires that all vehicles operated on Montana’s public
highways must be registered and must have the proper license plates conspicuously
displayed on the front and rear ends of the vehicle. The information contained on a license
plate constitutes public information pursuant to the statute. Section 61-3-301(1), MCA.
Thomas had no expectation of privacy in the license plate that she knowingly exposed to the
public. See State v. Bullock, 272 Mont. 361, 375, 901 P.2d 61, 70 (1995) (citing Katz v. U.S.,
389 U.S. 347, 351, 88 S. Ct. 507, 511 (1967)). Officer Turner needed no further justification
to inquire into Thomas’s license plate information.
¶14 The record further reflects that Officer Turner discovered when he ran the truck’s
license plate through dispatch that a woman named Thomas owned the truck. He learned
further that Thomas, the owner of the truck, also was on probation. Officer Turner
reasonably inferred that Thomas was the woman in the truck. Gopher, 193 Mont. at 192,
631 P.2d at 295. Officer Turner noted that the woman whom he believed to be Thomas
remained parked in front of the residence of Wendy Meis, a person on probation for selling
drugs, when Officer Turner drove past a second time. Officer Turner knew that Meis
recently had been arrested for probation violations, and that law enforcement currently
suspected Meis of conducting illegal activities from her home. Officer Turner also knew that
one condition of Meis’s probation precluded her from associating with other probationers.
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Finally, Officer Turner knew that the police continued to suspect Meis of these improper
associations with other persons on probation.
¶15 The process of inferring that particularized suspicion supports an investigatory stop
“‘does not deal with hard certainties, but with probabilities.’” Gopher, 193 Mont. at 192,
631 P.2d at 295 (quoting Cortez, 449 U.S. at 418, 101 S. Ct. at 695). We determine that
Officer Turner, an experienced law enforcement officer, reasonably could infer that Thomas
was engaged in some sort of criminal activity based upon the fact that he knew that she was
on probation, and that he had observed her in a truck parked in front of the residence of
another probationer whom the officer knew to be a drug dealer. Gopher, 193 Mont. at 192,
631 P.2d at 295.
¶16 The Dissent suggests that Officer Turner could not consider information concerning
probationer Meis in determining whether particularized suspicion existed to approach
Thomas to confirm her identity. ¶ 20. The Dissent does not explain, however, why
Thomas’s location in front of the home of a known probationer and suspected drug dealer
could not supplement the objective facts and circumstantial evidence from which Turner, a
trained law enforcement officer, could infer or deduce criminal activity. Gopher, 193 Mont.
at 192, 631 P.2d at 295. This information, together with the information Officer Turner had
gathered about Thomas, comprised the totality of the circumstances. Martinez, ¶ 23. The
totality of the circumstances, made up of this objective data and circumstantial evidence,
support the District Court’s determination that particularized suspicion existed for Officer
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Turner’s initial investigatory stop of Thomas. Martinez, ¶ 23. The District Court’s denial of
Thomas’s motion to suppress did not constitute clear error. Martinez, ¶ 19.
¶17 We affirm.
/S/ BRIAN MORRIS
We Concur:
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ JIM RICE
Chief Justice Karla M. Gray, dissenting.
¶18 I respectfully dissent from the Court’s decision that particularized suspicion supported
the investigatory stop in this case. I would reverse the District Court and remand for further
proceedings.
¶19 The Court correctly states the statutory standard for an investigatory stop in Montana
as “observ[ations] 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.”
See § 46-5-401(1), MCA. I also agree entirely with the Court that particularized suspicion
can arise from a trained law officer’s inferences and deductions, drawn from objective facts
and circumstantial evidence, that suggest some sort of criminal activity and that the required
suspicion does not deal with hard certainties, but with probabilities. See Gopher, 193 Mont.
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at 192, 631 P.2d at 295 (citation omitted).
¶20 The statute and our jurisprudence are clear that one must have particularized suspicion
of the person or vehicle subjected to the investigatory stop. Here, that person is Thomas, not
Meis. The information regarding Thomas which was available to Officer Turner at the time
he initially approached the truck and questioned the occupant—as the record reflects and the
Court states at ¶¶ 4-7—was that the vehicle was parked; the woman in the truck looked away
from him as he passed; the vehicle’s occupant was Thomas; Thomas was on probation; the
vehicle was parked for at least five minutes; and Thomas engaged in “furtive movement”—
defined by the officer as appearing to be reaching for something or trying to hide
something—when Officer Turner drove by the second time. That was the sum and substance
of the information Officer Turner possessed which related in any way to Thomas at the time
he approached the truck and questioned her. It is that information that either does, or does
not, constitute particularized suspicion to make an investigatory stop.
¶21 It is my view that this information falls far short of being sufficient to meet the
particularized suspicion standard. The Court brushes past this information and proceeds to
information the officer obtained after he made the initial investigatory stop. Relying on
post-stop information, such as the information here from the probation officer and the
probation officer’s request that the officer search the vehicle, totally overlooks the fact that
the initial contact—the investigatory stop—had already been made. In essence, it seems to
be an “ends justify the means” approach. I cannot join the Court in such a result, which
apparently is premised on an individual’s duties (whether on probation or not) to turn and
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face a passing law enforcement officer, park for less than five minutes in a lawful parking
place, and refrain from reaching for something in the vehicle or making some other
movement as an officer is passing by.
¶22 I dissent from the Court’s opinion.
/S/ KARLA M. GRAY
Justice James C. Nelson joins in the foregoing dissenting opinion of Chief Justice Karla M.
Gray.
/S/ JAMES C. NELSON
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