March 31 2009
DA 08-0362
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 99
STATE OF MONTANA,
Plaintiff and Appellee,
v.
TAMMY WILKINS,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 07-771
Honorable Russell C. Fagg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jeffrey G. Michael, Attorney at Law; Billings, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Mardell Ployhar,
Assistant Attorney General; Helena, Montana
Dennis Paxinos, Yellowstone County Attorney; Billings, Montana
Submitted on Briefs: March 18, 2009
Decided: March 31, 2009
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Tammy Mason Wilkins (“Wilkins”) appeals from a conviction in Justice Court of
driving under the influence. Wilkins appealed her conviction to the District Court for a
trial de novo. She filed a motion to dismiss (later deemed a motion to suppress), arguing
that the officer who stopped her did not have a particularized suspicion to justify the stop.
The District Court denied her motion, concluding that the stop was justified both on the
basis of particularized suspicion and under the community caretaker doctrine. Wilkins
pleaded nolo contendere reserving the right to appeal the denial of the motion to
suppress. We affirm.
FACTUAL BACKGROUND
¶2 At approximately 1:30 a.m. on February 24, 2007, Deputy Sheriff John Smith
(“Officer Smith”) was on patrol on North Frontage Road in Billings. Officer Smith
noticed Wilkins’s vehicle with its lights on parked halfway down a side street next to a
salvage yard. The street on which Wilkins was parked, Scott Street, is a dark, remote
street occupied mostly by industrial businesses, which were closed at that time. There
are, however, a few houses in the area. Officer Smith drove past Wilkins’s vehicle, and
noticed that it was running. There were other vehicles parked on the street but none of
them had lights on or were running.
¶3 Officer Smith, who has 12 years of experience as a law enforcement officer,
believed that Wilkins’s vehicle was suspicious because it was unusual for a vehicle to be
parked there with its lights on at that time of night, and burglaries had recently been
2
committed in the area. Officer Smith was also concerned about the driver of the vehicle
because it was a cold night, near or below freezing, and the vehicle was in a remote
location. As a result of these concerns, Officer Smith stopped to investigate. Officer
Smith approached Wilkins in her vehicle. While speaking to Wilkins, he smelled the
odor of an alcoholic beverage and noticed that her speech was slurred. Officer Smith
conducted a DUI investigation and arrested Wilkins for DUI.
STANDARD OF REVIEW
¶4 We review the denial of a motion to suppress to determine whether the court’s
findings of fact were clearly erroneous and whether it correctly applied the law to those
findings. State v. Graham, 2007 MT 358, ¶ 10, 340 Mont. 366, 175 P.3d 885.
DISCUSSION
¶5 Although the District Court concluded that the officer’s encounter with Wilkins
was justified due to the existence of particularized suspicion or justified under the
community caretaker doctrine, we conclude that the Court reached the right result for the
wrong reason.
¶6 Wilkins contends that there was no basis for particularized suspicion and that the
community caretaker doctrine was not applicable. The State, on the other hand, contends
that there is no need to analyze particularized suspicion or the caretaker doctrine since the
District Court erred in the first instance in concluding that Wilkins was seized or stopped.
We agree with the State.
3
¶7 The Fourth Amendment to the United States Constitution and Article II, Section
11 of the Montana Constitution protect persons from unreasonable searches and seizures.
State v. Hall, 2004 MT 106, ¶ 8, 321 Mont. 78, 88 P.3d 1273. The inquiry into whether a
“seizure” has occurred is the same under the federal and the Montana Constitutions.
State v. Case, 2007 MT 161, ¶ 24, 338 Mont. 87, 162 P.3d 849.
¶8 The United States Supreme Court explained in Terry v. Ohio, that “not all personal
intercourse between policemen and citizens involves ‘seizures’ of persons. Only when
the officer, by means of physical force or show of authority, has in some way restrained
the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” 392 U.S. 1,
¶¶ 19-20 n. 16, 88 S. Ct. 1868, 1879 n. 16 (1968). “The central inquiry under the Fourth
Amendment is the reasonableness under all the circumstances of a particular
governmental invasion of a citizen’s personal security.” State v. Clayton, 2002 MT 67,
¶ 12, 309 Mont. 215, 45 P.3d 30 (citing Terry, 392 U.S. at 19, 88 S. Ct. at 1878-79).
¶9 To determine whether a “seizure” has occurred, this Court has followed the test set
out by the United States Supreme Court in United States v. Mendenhall, 446 U.S. 544,
553-54, 100 S. Ct. 1870 (1980). Clayton, ¶ 21. In Mendenhall, the Court concluded that
“a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view
of all of the circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave.” 446 U.S. at 554, 100 S. Ct. at 1877. The Court
provided examples of circumstances that might indicate that a person was seized: “the
threatening presence of several officers, the display of a weapon by an officer, some
4
physical touching of the person of the citizen, or the use of language or tone of voice
indicating that compliance with the officer’s request might be compelled.” 446 U.S. at
554, 100 S. Ct. at 1877.
¶10 In his search and seizure treatise, Professor LaFave notes that, “if an officer
merely walks up to a person standing or sitting in a public place (or, indeed, who is
seated in a vehicle located in a public place) and puts a question to him, this alone does
not constitute a seizure. Wayne LaFave, Search and Seizure vol. 4 § 9.4(a) 419-21 (4th
ed. West 2004). Professor LaFave explains that, in order to make a basic inquiry, an
officer may tap on the window of a car to get the person’s attention or request that the
person open the door or roll down the window without transforming the encounter into a
seizure.
¶11 The Montana Supreme Court has not confronted the question of whether a person
in a parked vehicle is necessarily seized when an officer stops behind the parked vehicle
without activating the emergency lights on the patrol car and contacts the person in the
vehicle. We did, however, hold in Clayton that a driver was not seized when an officer
pulled up behind the driver’s parked vehicle and shined a spotlight into his vehicle.
Clayton, ¶ 27. On the other hand, where an officer stops his or her patrol car behind a
parked vehicle, activates the car’s emergency lights, and then contacts the occupant of the
parked vehicle, that person is seized because he would not feel free to leave. Graham,
¶ 16; State v. Reiner, 2003 MT 243, ¶¶ 5, 19, 317 Mont. 304, 77 P.3d 210.
5
¶12 In the present case, the District Court concluded that a “stop” occurred because
Wilkins “had a reasonable belief that she was not free to leave Scott Street when
[Officer] Smith approached her.” In Mendenhall, the United States Supreme Court
referenced certain factors as being indicative of a “stop.” Although the Mendenhall,
factors are not exhaustive, we note that the District Court does not point to these factors
or any other specific factors that support a finding of a seizure. Rather, our review of the
record shows that officer Smith was the sole officer during the initial contact; he did not
activate his emergency light, display a weapon or employ threatening tones. He simply
approached Wilkins to find out why she was parked on a dark remote street late at night
in cold weather.
¶13 In State v. Merrill, 2004 MT 169, ¶ 3, 322 Mont. 47, 93 P.3d 1227 (2004), officers
pulled over Merrill for making an improper lane change. Although Officer Hight was
aware that the owner of the vehicle (not Merrill) was suspected of involvement with
drugs, he gave Merrill a verbal warning and told her she was free to leave. As he stepped
away from the car, Officer Hight noticed that Merrill was acting unusually nervous.
Hight then asked Merrill if he could talk to her for a minute. She agreed. He then asked
if he could search her car and her person. Again she agreed, and Hight discovered drugs.
Merrill contended that Hight’s questioning of her following his verbal warning about the
traffic violation constituted an unlawful seizure of her person; that no reasonable person
would have felt free to leave with the patrol car’s lights flashing and an armed officer on
either side of her car. We agreed with Merrill that Hight had completed his investigation
6
of the traffic offense. At that point, the investigatory stop had concluded. “What
followed, however, was neither a subsequent investigatory stop nor an extension of the
first one. Rather, the subsequent encounter was a voluntary exchange, and no precept of
law prevents an officer from engaging a citizen in such voluntary conversations.”
Merrill, ¶ 17.
¶14 Here, the facts are less intimidating than those in Merrill and Clayton wherein we
concluded that there was no seizure. Officer Smith did not initiate the stop of Wilkins’s
vehicle. She was already parked on a public road. He did nothing to impede her liberty
by means of physical force or show of authority—he did not have his emergency lights or
sirens on, nor did he shine a spotlight into her car. As in Merrill, he engaged Wilkins in a
voluntary exchange. A reasonable person in Wilkins’s situation would not have
concluded that she was not free to leave.
¶15 We conclude, based upon a review of the record, that Officer Smith’s contact with
Wilkins, who was already stopped in a public place, did not amount to a seizure.
Accordingly, Officer Smith did not have to have a particularized suspicion to justify the
contact. In speaking to Wilkins, her slurred speech and the odor of alcohol led him to
initiate a DUI investigation.
¶16 Affirmed.
/S/ W. WILLIAM LEAPHART
7
We concur:
/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ PATRICIA COTTER
8