August 25 2009
DA 08-0646
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 288N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
NATHAN JOSEPH SMITH,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 08-091
Honorable Russell C. Fagg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender; Joslyn Hunt, Assistant Appellate
Defender, Helena, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Mardell Ployhar, Assistant
Attorney General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney; Victoria Callender, Deputy
County Attorney, Billings, Montana
Submitted on Briefs: July 29, 2009
Decided: August 25, 2009
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be cited
as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court cause number, and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Appellant Nathan Joseph Smith (Smith) appeals the District Court’s order denying his
motion to suppress a stop based upon an alleged lack of particularized suspicion. We affirm.
¶3 The State charged Smith in the Thirteenth Judicial District Court, Yellowstone
County, with driving a motor vehicle while under the influence of alcohol or drugs, a felony,
and operating a motor vehicle by a person with alcohol concentration of .08% or more, a
felony. Smith moved to suppress the evidence obtained after he was stopped on the grounds
that the officer lacked particularized suspicion to justify the stop. The District Court denied
the motion. Smith appeals.
¶4 Smith argues that the officer’s onboard video camera demonstrates that he did not
violate any traffic laws. He argues that he did not cross the center line. He further contends
he did not swerve toward the fog line. He contends rather that he slowly maneuvered his car
from a pronounced dip in the road where his tire did not cross the center line, back to the
middle of the road. The State counters that the officer saw Smith drive over the center line
and therefore was authorized to stop Smith based upon that traffic infraction. The State
further contends that the officer believed that Smith was under the influence of alcohol or
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drugs based upon the totality of the circumstances. The officer testified that he believed
Smith might be the same man he had seen fifteen minutes earlier outside a parked car and
seemingly visibly intoxicated. The officer also noted that Smith stopped abruptly at an
intersection and that Smith drove into a parking lot of a gas station that was obviously
closed. The State contends that these facts provided the officer with particularized suspicion
that Smith was under the influence.
¶5 We review the denial of a motion to suppress to determine whether a district court’s
findings of facts were clearly erroneous and whether the court correctly applied the law to
those findings. State v. Graham, 2007 MT 358, ¶ 10, 340 Mont. 366, 175 P.3d 885. We
have determined to decide this case pursuant to Section I, Paragraph 3(d), of our 1996
Internal Operating Rules, as amended in 2003, that provide for memorandum opinions. It is
manifest on the face of the briefs and the record before us that substantial evidence supports
the District Court’s findings of fact and that the District Court’s legal conclusions were
correct.
¶6 We affirm.
/S/ BRIAN MORRIS
We Concur:
/S/ MIKE McGRATH
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER
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