May 5 2009
DA 08-0294
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 154
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DARYL LEE RUTHERFORD,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. BDC-2007-122
Honorable Jeffrey M. Sherlock, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Charles E. Petaja, Attorney at Law, Helena, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General;
Matthew T. Cochenour, Assistant Attorney General, Helena, Montana
Leo Gallagher, Lewis and Clark County Attorney, Michael Menahan,
Deputy County Attorney, Helena, Montana
Submitted on Briefs: March 25, 2009
Decided: May 5, 2009
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Daryl Lee Rutherford pled guilty in the First Judicial District Court, Lewis and
Clark County, to felony driving under the influence of alcohol (DUI), driving without
liability insurance, and operating a motor vehicle without a valid driver’s license. The
District Court sentenced Rutherford and entered judgment. Rutherford appeals on an
issue he reserved when he entered his guilty plea. We affirm.
¶2 The issue is whether the District Court erred in denying Rutherford’s combined
motion to suppress and to dismiss for lack of particularized suspicion justifying an
investigative stop.
BACKGROUND
¶3 Shortly after 9 p.m. on April 14, 2007, Tyler Tobel was driving west on Highway
12 from Townsend, Montana, to East Helena, Montana, with Shari-Rochael Kelly riding
as a passenger. Near the Silos Bar, a maroon Dodge Dakota truck pulled out in front of
them, causing them to slow down. As Kelly and Tobel followed the truck toward East
Helena, they observed the driver repeatedly swerve across both the yellow center line and
the white fog line of the highway. Kelly also observed the driver speeding up and
slowing down and flashing his truck’s lights from dim to bright and back again.
¶4 Kelly called 911 to report a suspected drunk driver as she and Tobel followed the
Dodge Dakota toward East Helena. She gave the 911 dispatcher her full name and her
cell phone number and described the silver Nissan vehicle in which she was riding. She
also described the truck as a maroon 4-door Dodge Ram, which description she later
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corrected to Dodge Dakota, with a grille guard on the front. She reported that the truck’s
license plate number began with a 5 and ended with 48, but she was not able to provide
the dispatcher with the entire license plate number because a trailer hitch hid the middle
numbers on the plate. About three minutes into the phone call, she told the dispatcher
that the driver of the truck had slowed his vehicle considerably, pulled off to the side of
the road, and continued to drive on the side of the road. Tobel and Kelly passed the
vehicle, but continued to observe it, and Kelly stayed on the line with the 911 dispatcher
as they traveled into East Helena.
¶5 The dispatcher contacted East Helena police officer Brian Morgan and informed
him that a possible drunk driver was travelling west toward East Helena in a maroon
Dodge Dakota. Officer Morgan positioned his patrol vehicle just off the highway on the
east side of East Helena. Soon afterward, he observed Tobel’s and Kelly’s silver Nissan
entering East Helena, followed by a maroon Dodge Dakota. At the same time, the
dispatcher, still on the telephone with Kelly, informed Morgan that Kelly had spotted his
patrol vehicle. Morgan pulled in behind the Dodge Dakota, and Kelly confirmed to the
dispatcher that Morgan was following the correct vehicle.
¶6 Morgan followed the Dodge Dakota for three to four blocks before stopping it.
Morgan told Rutherford, the driver and sole occupant of the truck, that he had stopped
him because the truck’s rear license plate was obstructed and because of a citizen’s
complaint. Morgan noticed a strong odor of alcohol on Rutherford. Rutherford’s speech
was slurred, he had difficulty answering Morgan’s questions, and he fumbled with his
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wallet when retrieving his driver’s license. Based on his observations, Morgan arrested
Rutherford.
¶7 The State of Montana filed an Information charging Rutherford with DUI (4th or
subsequent offense), driving without liability insurance, operating a motor vehicle
without a valid driver’s license, criminal possession of dangerous drugs (marijuana), and
criminal possession of drug paraphernalia. Rutherford filed a combined motion to
suppress and dismiss, on grounds that Morgan did not have the requisite particularized
suspicion to make an investigative stop. The District Court held a hearing on that
motion, at which Morgan, Rutherford, and Kelly testified and the State introduced an
audio tape of Kelly’s 911 call into evidence. After listening to the tape and reviewing the
parties’ briefs, the District Court denied Rutherford’s motion.
¶8 Rutherford later agreed to plead guilty to DUI, driving without liability insurance,
and operating a motor vehicle without a valid driver’s license, and the State agreed to
dismiss the other two charges it had filed against him. Rutherford reserved the right to
appeal the court’s denial of his motion to dismiss and suppress evidence, and the parties
agreed his sentence would be stayed pending appeal, subject to conditions. The District
Court accepted the plea agreement, sentenced Rutherford, and entered judgment
accordingly.
STANDARDS OF REVIEW
¶9 We review the denial of a motion to suppress evidence to determine whether the
district court’s findings of fact are clearly erroneous and whether the court correctly
4
applied those findings as a matter of law. State v. Elison, 2000 MT 288, ¶ 12, 302 Mont.
228, 14 P.3d 456. We review for clear error a finding that an officer had particularized
suspicion to conduct an investigative stop. State v. Farabee, 2000 MT 265, ¶ 11, 302
Mont. 29, 22 P.3d 175.
DISCUSSION
¶10 Did the District Court err in denying Rutherford’s combined motion to suppress
and to dismiss for lack of particularized suspicion justifying an investigative stop?
¶11 Both the United States Constitution and the Montana Constitution prohibit
unreasonable searches and seizures. U.S. Const. amend. IV; Mont. Const. art. II, § 11.
These protections apply to investigative stops of vehicles. State v. Gopher, 193 Mont.
189, 194, 631 P.2d 293, 296 (1981). An investigative stop is valid if the officer
possessed particularized suspicion that the vehicle’s occupant “has committed, is
committing, or is about to commit an offense.” Section 46-5-401(1), MCA. To establish
particularized suspicion, the State must show both objective data from which an
experienced officer can make certain inferences, and a resulting suspicion that the
occupant of the vehicle is or has been engaged in wrongdoing. Elison, ¶ 15.
¶12 Whether particularized suspicion supports an investigative stop is a question of
fact which must be evaluated under the totality of the circumstances. When evaluating
the totality of the circumstances, a court considers the quantity, or content, of the
information available to the officer and the quality, or degree of reliability, of that
information. Elison, ¶ 16.
¶13 Rutherford claims the matter of the obstructed license plate was a pretext for
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stopping him. He argues the alleged obstructed license plate cannot provide a basis for
the stop because the trailer hitch was factory-installed and because he was not cited for
that offense. In relation to this argument, we note Rutherford does not deny that the
trailer hitch obstructed the license plate. Further, he has provided no authority to support
the proposition that a factory-installed trailer hitch cannot lead to an obstructed license
plate in violation of § 61-3-301, MCA.
¶14 Rutherford distinguishes this case from State v. Waite, 2006 MT 216, ¶ 14, 333
Mont. 365, 143 P.3d 116, in which we held that an officer’s failure to cite a driver for the
underlying traffic violation supporting the investigative stop did not bar the use of such
evidence in a particularized suspicion determination. In Waite, the officer observed
erratic driving including following too closely; the officer effectuated a traffic stop which
escalated into a DUI stop, and ultimately did not cite the driver for any traffic violations
other than DUI and driving while his license was suspended or revoked. It is true that
this case is distinguishable from Waite on the basis that, there, the erratic driving was
observed by the officer, not a citizen informant. However, nothing in Waite indicates that
violations observed directly by the arresting officer are the only ones which may be
considered in a particularized suspicion determination.
¶15 In State v. Pratt, 286 Mont. 156, 162, 951 P.2d 37, 41 (1997), we reiterated our
previous holding that an arresting officer may rely on information conveyed by a reliable
third party in forming the basis for a particularized suspicion to justify an investigative
stop. We adopted a three-part test for assessing the reliability of a citizen informant’s
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report: (1) whether the informant identified himself or herself to the authorities; (2)
whether the informant’s report is based on personal observations; and (3) whether the
officer’s observations corroborated the informant’s information. Pratt, 286 Mont. at 164-
65, 951 P.2d at 42-43. We apply that test here.
¶16 Rutherford concedes the first prong of the Pratt test was met. He contends,
however, that although Kelly identified herself and her cell phone number to the 911
dispatcher, she did not provide enough information to satisfy the remaining two elements
of the Pratt test. In this regard, Rutherford’s argument depends in large part on limiting
the information considered to those facts given to Morgan. In applying the Pratt test to
situations in which an officer is acting upon a tip relayed from dispatch, however, we
look beyond the information given to the investigating officer to include the information
known to the dispatching officer. See State v. Hall, 2004 MT 106, ¶ 15, 321 Mont. 78, 88
P.3d 1273.
¶17 Rutherford cites State v. Lee, 282 Mont. 391, 396, 938 P.2d 637, 640 (1997), as
authority that vague information from a citizen informant, with no other objective data,
does not support a particularized suspicion of wrongdoing. The anonymous informant in
Lee called 911 and reported that she believed Lee was speeding and under the influence
of alcohol, but the informant did not state whether she had seen Lee drinking or driving
or speeding. Lee, 282 Mont. at 395, 938 P.2d at 640. The circumstances of Lee thus
differ from those in the present case in two important respects: the degree of
identification provided by the informant, and the foundation given for the information
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provided by the informant. Here, not only did informant Kelly give her full name, cell
phone number, location, and vehicle description, but she described in detail her specific
observations of Rutherford’s driving, over the course of some 12 minutes of time.
¶18 Rutherford further contends that, because Morgan did not observe any illegal
activity by him, Kelly’s report was not sufficiently corroborated. Even discounting the
matter of the obstructed license plate, that conclusion does not follow. We have not
required that an officer personally observe illegal activity. See Elison, ¶ 20. In State v.
Roberts, 1999 MT 59, ¶ 26, 293 Mont. 476, 977 P.2d 974, quoting Pratt, 286 Mont. at
165, 951 P.2d at 43, we said “[c]orroboration occurs, under the third Pratt factor, when
the officer either observes illegal activity or finds the person, the vehicle, or the vehicle’s
occupants ‘substantially as described by the informant.’” Here, Morgan observed the
make, model, and color of truck Kelly reported, with an obstructed licensed plate, and in
the location and heading in the direction Kelly had reported.
¶19 In summary, the evidence presented to the District Court established that Kelly
identified herself to law enforcement, her report of Rutherford’s swerving, light-flashing,
slowing down and speeding up, and driving on the side of the road was based on her
personal observations, and Morgan corroborated her information about the appearance,
make, location, and direction of travel of the Dodge Dakota. The content of the
information provided by Kelly was detailed and specific, and the information she
provided had a high degree of reliability because Kelly identified herself with
particularity. All three elements of the Pratt test were satisfied. Kelly provided objective
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data from which an experienced officer could infer that the driver of the Dodge Dakota
was DUI, and Morgan had a resulting suspicion that the driver was engaged in
wrongdoing.
¶20 We hold the District Court’s finding that Morgan had particularized suspicion to
stop Rutherford was not clearly erroneous, so that the court did not err in denying
Rutherford’s combined motion to suppress and to dismiss for lack of particularized
suspicion justifying an investigative stop.
¶21 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS
Justice James C. Nelson concurs.
¶22 I concur in the Court’s Opinion. I write separately to address two points.
¶23 First, ¶ 11 of the Court’s Opinion cites correctly the test which we set out in State
v. Gopher, 193 Mont. 189, 631 P.2d 293 (1981). However, we recently refined that test
with respect to the “experienced officer” prong. In Brown v. State, 2009 MT 64, 349
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Mont. 408, 203 P.3d 842, after tracing the history of the particularized suspicion test, we
adopted the following standard:
[W]e hold that, henceforth, for a peace officer to have particularized
suspicion or reasonable grounds for an investigatory stop, the peace officer
must be possessed of: (1) objective data and articulable facts from which
he or she can make certain reasonable inferences; and (2) a resulting
suspicion that the person to be stopped has committed, is committing, or is
about to commit an offense. While a peace officer’s experience and
training may be a factor in determining what sort of reasonable inferences
he or she is entitled to make from his or her objective observations,
experience and training will not necessarily be the defining element of the
test. For example, a rookie peace officer on his or her first patrol may well
be entitled to make an investigatory stop of a vehicle at 2:00 a.m. that is
driving slowly, without lights, and is weaving across the center line and fog
lines. That same peace officer, however, might not be entitled to make
reasonable inferences resulting in particularized suspicion or reasonable
grounds to stop under circumstances which are demonstrably beyond his or
her training or experience. The courts will look to the facts and to the
totality of the circumstances of each case.
Brown, ¶ 20; accord State v. Cybulski, 2009 MT 70, ¶¶ 24-26, 349 Mont. 429, 204
P.3d 7. Applying the Brown test here, I agree that, based on the totality of circumstances
of this case, Officer Morgan had sufficient particularized suspicion to effect the stop of
Rutherford’s pickup. That said, I turn to my next point.
¶24 As part of Officer Morgan’s particularized suspicion, he testified that he relied
secondarily on the fact that Rutherford’s rear license plate was partially obscured by the
vehicle’s trailer hitch. The District Court judge referred to this justification as
“somewhat of a red herring.” Indeed, this Court has discounted this evidence as well.
Opinion, ¶ 18. I agree.
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¶25 However, and more to the point, I cannot conclude that the obscured license plate
provided any particularized suspicion whatsoever for the stop of Rutherford’s vehicle. If
we allow peace officers to stop the vehicles of Montanans for having rear license plates
partially obscured by trailer hitches—or worse, wholly obscured by snow, mud, dust and
dirt—we will be facilitating a significant abuse of drivers’ rights of individual privacy
and freedom from unreasonable searches and seizures.
¶26 In saying this, I am cognizant of the State’s arguments on brief and its citation to
§ 61-3-301, MCA,1 and to our decision in State v. Lacasella, 2002 MT 326, 313 Mont.
185, 60 P.3d 975. Section 61-3-301, MCA, requires that vehicle license plates be
“conspicuously displayed.” Section 61-3-301(1)(a), MCA. “Conspicuously displayed” is
defined by the statute to require that the vehicle license plates be “obviously visible and
firmly attached to” the bumpers or in another clearly visible location. Section
61-3-301(4), MCA. In Lacasella, we cited to the statute and concluded that this law
“simply requires that license plates be visible from both the front and the rear of a
vehicle.” Lacasella, ¶ 16. We specifically did not address the question of whether the
statute was violated if an otherwise “visible” license plate was “obscured.” Lacasella,
¶ 18.
¶27 Here, it is undisputed that Rutherford’s rear license plate was “conspicuously
displayed” and “clearly visible.” There is nothing in § 61-3-301, MCA, or in Lacasella
1
I refer to the 2005 version of the Montana Code, inasmuch as Rutherford’s offense was
committed on April 14, 2007, and before the effective date of the 2007 amendments to
§ 61-3-301, MCA. See Complier’s Comments to the 2007 version of this statute.
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that leads me to the conclusion that an otherwise “conspicuously displayed” and “clearly
visible” license plate ceases to be that if the numbers are “obscured” by a trailer hitch,
mud, snow, dust, or dirt. If that is the case, then few drivers in this State will be free
from a peace officer’s discretionary investigatory stop, given the number of vehicles with
trailer hitches and given weather, seasonal road conditions, and the number of dirt and
farm roads on which we all drive. “Obscured” license plates are a fact of life; we all have
them at one time or another. In my view, a peace officer effecting an investigatory stop
needs more particularized suspicion of criminal activity than that afforded by an
“obscured” license plate which is otherwise attached to the vehicle in accordance with
§ 61-3-301, MCA.
¶28 Since Officer Morgan had sufficient particularized suspicion, notwithstanding that
Rutherford’s license plate numbers were “partially obscured,” I agree that his stop was
conducted in accordance with the law.
¶29 I concur.
/S/ JAMES C. NELSON
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