November 8 2011
DA 10-0596
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 276
STATE OF MONTANA,
Plaintiff and Appellee,
v.
RODRICK ALLEN CAMERON,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. BDC-2010-250
Honorable Jeffrey M. Sherlock, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Palmer A. Hoovestal, Hoovestal Law Firm, PLLC, Helena, Montana
For Appellee:
Steve Bullock, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General, Joshua Van Swearingen, Legal Intern, Helena, Montana
Leo J. Gallagher, Lewis and Clark County Attorney, Melissa Broch,
Deputy County Attorney, Helena, Montana
Submitted on Briefs: October 5, 2011
Decided: November 8, 2011
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Rodrick Cameron appeals an order of the District Court for the First Judicial
District, Lewis and Clark County, affirming the Justice Court’s judgment of conviction
and sentence for DUI. We affirm.
¶2 We address the following issue on appeal: Whether the District Court erred when
it affirmed the Justice Court’s denial of Cameron’s Motion to Suppress.
Factual and Procedural Background
¶3 At approximately 1:00 a.m. on October 31, 2009, Lewis and Clark County Deputy
Sheriff Brian Robinson observed a vehicle drift onto the centerline and then return to its
own lane four separate times in the space of five miles. The vehicle never crossed over
the centerline into the oncoming lane of traffic, but at one point the vehicle drove on the
centerline for approximately 100 yards. Because it was early Saturday morning close to
the time when the bars are closing, Deputy Robinson became suspicious that the driver
was impaired. He activated his emergency lights and stopped the vehicle. A breath test
subsequently revealed that the driver, Cameron, had a blood alcohol content of 0.155.
¶4 Cameron was charged in the Lewis and Clark County Justice Court with driving
under the influence (DUI) in violation of § 61-8-401, MCA, and DUI per se in violation
of § 61-8-406, MCA. Cameron filed a Motion to Suppress claiming that Deputy
Robinson lacked particularized suspicion to stop him; hence, any evidence obtained as a
result of that stop must be suppressed. The Justice Court denied Cameron’s motion.
¶5 Cameron entered a guilty plea to DUI while reserving his right to appeal the denial
of his Motion to Suppress. Thereafter, Cameron appealed the Justice Court decision to
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the District Court, and the District Court affirmed. Cameron now appeals from the
District Court’s order.
Standard of Review
¶6 We review the denial of a motion to suppress to determine whether the lower
court’s findings were clearly erroneous and whether those findings were correctly applied
as a matter of law. State v. Flynn, 2011 MT 48, ¶ 6, 359 Mont. 376, 251 P.3d 143 (citing
State v. Larson, 2010 MT 236, ¶ 15, 358 Mont. 156, 243 P.3d 1130). Findings of fact are
clearly erroneous if they are not supported by substantial credible evidence, if they are
based upon a misapprehension of the evidence or if our review of the record convinces us
that a mistake has been made. Flynn, ¶ 6 (citing Weer v. State, 2010 MT 232, ¶ 7, 358
Mont. 130, 244 P.3d 311).
Discussion
¶7 Whether the District Court erred when it affirmed the Justice Court’s denial of
Cameron’s Motion to Suppress.
¶8 Both the United States Constitution and the Montana Constitution protect
individuals from unreasonable searches and seizures. U.S. Const. amend. IV; Mont.
Const. art II, § 11. These constitutional protections extend to investigative stops of
vehicles made by law enforcement officers. Flynn, ¶ 7; Larson, ¶ 19. Under Montana
Law, a law enforcement 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.” Section
46-5-401(1), MCA.
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¶9 To establish particularized suspicion for a stop, the State must show that the
officer possessed (1) objective data and articulable facts from which the officer 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. Brown v. State, 2009
MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842. “Whether particularized suspicion exists is
evaluated under the totality of the circumstances and requires consideration of the
quantity or content of the information available to the officer and the quality or degree of
reliability of that information.” City of Missoula v. Moore, 2011 MT 61, ¶ 16, 360 Mont.
22, 251 P.3d 679 (citing State v. Rutherford, 2009 MT 154, ¶ 12, 350 Mont. 403, 208
P.3d 389).
¶10 In the case sub judice, the District Court determined that while Cameron did not
commit a specific traffic offense, Deputy Robinson had sufficient facts to form a
particularized suspicion of wrongdoing to initiate an investigative stop. In so holding, the
court relied on our decision in Weer wherein this Court determined, based on similar
facts, that a particularized suspicion existed. Both the stop in Weer and the stop in the
instant case occurred at approximately 1:00 a.m. on a Saturday morning. Moreover, just
as Cameron’s vehicle drifted onto the center line on four separate occasions, the officer
following Weer observed Weer’s vehicle “swerve twice towards the double-yellow
centerline, and then, on the third instance, Weer drove onto the centerline.” Weer, ¶ 3.
¶11 Cameron argues that the District Court erred as a matter of law when it applied
Weer to this case because, according to Cameron, Weer is both procedurally and factually
distinguishable. Cameron contends that Weer is procedurally distinguishable because
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Weer involved a civil action to reinstate driving privileges, thus the burden of proof is
different from the instant case. Cameron also contends that Weer is factually
distinguishable because Weer twice “swerved” toward the centerline while in this case
Cameron only “drifted” toward the center line.
¶12 Rather than relying on Weer, Cameron maintains that the court should have relied
on State v. Lafferty, 1998 MT 247, 291 Mont. 157, 967 P.2d 363, and Morris v State,
2001 MT 13, 304 Mont. 114, 18 P.3d 1003, because, according to Cameron, they are both
factually similar to his case. However, Cameron ignores the fact that this Court recently
declined to rely on Lafferty and Morris as precedent because those cases utilized flawed
approaches to particularized suspicion. Flynn, ¶¶ 10, 12.
¶13 In Lafferty, an officer stopped the defendant’s vehicle after observing the vehicle
cross the fog line on the right side of the highway twice and drive on the fog line once.
Lafferty, ¶ 4. We concluded in Lafferty that the officer lacked particularized suspicion
based in part on the defendant’s testimony that she merely crossed the fog line as she
observed the officer’s patrol car come up behind her. Lafferty, ¶ 17. In Morris, an
officer stopped the defendant’s vehicle after observing the vehicle drift across the line
separating the eastbound lanes of traffic. The officer then observed the vehicle drift and
touch the fog line on the other side of the lane. Morris, ¶ 2. We concluded in Morris that
the officer lacked particularized suspicion based in part on the defendant’s testimony that
the road was rutted, and that his usual practice was to attempt to avoid potholes on the
road. Morris ¶ 10.
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¶14 In declining to rely on Lafferty and Morris, we pointed out in Flynn that when we
first adopted the particularized suspicion standard for vehicular stops, we recognized that
the inquiry turned on what the officer knew, observed, inferred, and ultimately suspected,
not what the defendant later testified to. Flynn, ¶ 12 (citing State v. Gopher, 193 Mont.
189, 193-94, 631 P.2d 293, 296 (1981)). To that end, we stated in Flynn that
[a] defendant’s subsequent, valid explanation for conduct that objectively
appeared suspicious may affect his or her ultimate liability for a charged
offense, but it cannot affect the validity of a stop properly based on
particularized suspicion. The particularized suspicion inquiry is a fact
based assessment of the objective quantity, content and reliability of
information available to the officer. An officer in the field need not
consider every possible innocent explanation or legal exception before
concluding that particularized suspicion exists.
Flynn, ¶ 11 (internal citations and quotation marks omitted). Thus, contrary to
Cameron’s contentions, we conclude that Lafferty and Morris cannot be applied here, and
the District Court was correct not to rely on those cases, but to rely on Weer instead.
¶15 We held in Weer, that the time of day, the location of the stop, and the petitioner’s
driving behavior are permissible factors in ascertaining the totality of the circumstances.
Weer, ¶¶ 10, 19. We further held that a law enforcement officer need not witness illegal
driving or a violation of the traffic code in order to have a particularized suspicion.
“[T]he question is not whether any one of [the petitioner’s] driving aberrations was itself
‘illegal’ but rather, whether [the officer] could point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably warrant the
intrusion.” Weer, ¶ 10 (quoting State v. Brander, 2004 MT 150, ¶ 6, 321 Mont. 484, 92
P.3d 1173).
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¶16 In the instant case, Deputy Robinson testified at the hearing on Cameron’s motion
to suppress that in his ten years as a deputy sheriff, he has investigated around 175 DUIs.
He also testified that the majority of the DUIs that he has investigated occurred on Friday
and Saturday nights between the hours of 10:00 p.m. and 3:00 a.m. “which are high times
for driving while under the influence of alcohol.” Deputy Robinson stated that when he
saw Cameron’s vehicle touch the centerline the first time, he did not think it suspicious,
but when the vehicle drifted towards the center line a second and third time and stayed on
the centerline for 100 yards, he considered the actions dangerous since there were other
cars on the road at the time.
¶17 We conclude that based on the totality of the circumstances, Deputy Robinson had
sufficient facts to form a particularized suspicion of wrongdoing to initiate an
investigative stop. Accordingly, we hold that the District Court did not err when it
affirmed the Justice Court’s denial of Cameron’s Motion to Suppress.
¶18 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ JIM RICE
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