State v. Rodriguez

March 1 2011

DA 10-0128

IN THE SUPREME COURT OF THE STATE OF MONTANA

2011 MT 36

STATE OF MONTANA,

Plaintiff and Appellee,

v.

STEVEN L. RODRIGUEZ,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-09-57
Honorable Ed McLean, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Joslyn Hunt, Chief Appellate Defender, Jennifer A. Hurley, Assistant
Appellate Defender, Helena, Montana

For Appellee:

Steve Bullock, Montana Attorney General, Matthew T. Cochenour,
Assistant Attorney General, Helena, Montana

Fred R. Van Valkenburg, Missoula County Attorney, Suzy Boylan,
Deputy County Attorney, Missoula, Montana

Submitted on Briefs: February 1, 2011
Decided: March 1, 2011

Filed:

__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Steven Rodriguez (Rodriguez) appeals a Fourth Judicial District Court order

denying his motion to dismiss, arguing that Missoula County Sheriff’s Deputy Jonathan

Stineford (Stineford) lacked particularized suspicion to conduct an investigatory stop.

Rodriguez also appeals his conviction of felony Driving Under the Influence (DUI)

arguing that the District Court erred in allowing the introduction of Horizontal Gaze

Nystagmus (HGN) evidence during trial. We affirm.

ISSUES

¶2 A restatement of the issues on appeal is:

1. Did the totality of the circumstances support a finding that Deputy Stineford

had particularized suspicion that Rodriguez was casing a business for burglary?

2. Did the District Court abuse its discretion when it qualified Deputy Stineford

to testify about the administration and results of the HGN test?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 At approximately 11:30 p.m. on January 13, 2009, Deputy Stineford and Reserve

Deputy Whitney Wiles (Wiles) were patrolling West Broadway in Missoula, Montana,

when they observed a pickup truck rolling slowly through the Kurt’s Polaris parking lot.

Deputy Stineford noted that the truck’s headlights were off and it was well after business

hours. Given these factors, as well as the fact that Kurt’s Polaris carried large quantities

of expensive merchandise, Deputy Stineford found the truck’s activity suspicious.

Therefore, he made a u-turn and returned to the parking lot, activating his on-board

camera en route and pulling in behind the truck with his overhead lights flashing. As

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Deputy Stineford arrived at Kurt’s Polaris, the driver of the truck had turned on its

headlights and Deputy Stineford observed the truck had moved approximately one car

length since he first spotted it.

¶4 Deputy Stineford made contact with the driver of the truck who was identified as

the defendant, Rodriguez. Deputy Stineford noticed Rodriguez’s breath smelled of

alcohol, his eyes were glassy and bloodshot, and his speech was slow. Based on these

observations, Deputy Stineford began a DUI investigation. Rodriguez then admitted he

had been drinking, but was unsure how much beer he drank. Rodriguez refused to

perform the three standard field sobriety tests on the roadside, saying “just take me to

jail.” Deputy Stineford then transported Rodriguez to the Missoula County Detention

Facility.

¶5 Once at the detention facility, Deputy Stineford requested Rodriguez perform the

three standard field sobriety tests: the HGN test, the walk-and-turn test, and the one-

legged stand. Deputy Stineford administered the HGN test and noted six out of six

indicators of impairment. Rodriguez began the walk-and-turn test, but could not keep his

balance and stepped off the line, failed to walk heel-to-toe, raised his arms, and refused to

continue walking after a few steps. Rodriguez declined to perform the one-legged stand

test stating “I’m drunk,” and refused to provide a breath sample.

¶6 Based on his seven prior DUI convictions, the State charged Rodriguez with

felony DUI in violation of § 61-8-401(1)(a), MCA. Rodriguez then moved the court to

dismiss the charge for lack of particularized suspicion and requested an evidentiary

hearing be held on the motion. On May 27, 2009, the District Court heard testimony

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from Rodriguez and Deputy Stineford. Rodriguez testified that: he had pulled into the

parking lot to check a text message on his phone under the lights of the Kurt’s Polaris

sign; his headlights were on the entire time; and he had not driven through the parking

lot. Deputy Stineford testified that, based on his experience in law enforcement, a truck

driving without its headlights through the parking lot of a closed building that contained

expensive merchandise was suspicious. The court concluded that Deputy Stineford had

reasonable suspicion to justify the investigatory stop and dismissed Rodriguez’s motion.

¶7 On June 10, 2009, Rodriguez requested a rehearing on his motion to dismiss on

the basis that he had not known Deputy Stineford had an on-board video of Rodriguez’s

investigatory stop. Therefore, on July 1, 2009, the court held a second evidentiary

hearing in which it heard testimony from Rodriguez, Stineford, and Wiles, and

considered the on-board video and a cell phone recording from Rodriguez’s phone. The

District Court again found particularized suspicion for the investigatory stop and denied

Rodriguez’s motion to dismiss.

¶8 At trial, the District Court heard testimony from Deputy Stineford about his

training and experience in conducting DUI investigations, as well as testimony regarding

the investigation of Rodriguez. Specifically, Deputy Stineford testified he had received

training to conduct DUI investigations, including a 40-hour class at the Montana Law

Enforcement Academy. A portion of that class specifically addressed the standard field

sobriety tests. In addition, Deputy Stineford received senior operator training, which is

specifically focused on DUI, and he had attended a seminar taught by an ophthalmologist

entitled “Understanding Gaze Nystagmus.” Deputy Stineford acknowledged the seminar

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took place some months after Rodriguez’s arrest, but confirmed he had followed the

proper techniques when he administered the HGN test to Rodriguez. Finally, Deputy

Stineford testified that he had also been qualified as an HGN expert in justice court and

that he investigated approximately two DUIs per week. Based on this testimony, the

court qualified Deputy Stineford as an HGN expert over Rodriguez’s objection.

¶9 Once qualified as an expert, Deputy Stineford testified that based on his

knowledge of the six indicators of impairment measured with the HGN test, Rodriguez’s

blood alcohol content exceeded the legal limit.

¶10 At the close of trial, the jury convicted Rodriguez of DUI. He was committed to

the Department of Corrections for five years to run consecutive with any other sentence

he was currently serving, and Rodriguez was given credit for 365 days served. Rodriguez

timely appeals.

STANDARD OF REVIEW

¶11 We review a district court’s 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 applied those findings as a matter of law. State v. Clawson, 2009 MT 228, ¶ 9,

351 Mont. 354, 212 P.3d 1056. We review a finding that an officer had particularized

suspicion to conduct an investigatory stop to determine whether the finding was clearly

erroneous. Clawson, ¶ 9 (citing State v. Farabee, 2000 MT 265, ¶ 11, 302 Mont. 29, 22

P.3d 175).

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¶12 Additionally, we review for abuse of discretion a district court’s determination on

the qualification and competency of an expert witness. State v. Harris, 2008 MT 213,

¶ 6, 344 Mont. 208, 186 P.3d 1263. Abuse of discretion occurs if a district court acts

arbitrarily without conscientious judgment or exceeds the bounds of reason, resulting in

substantial injustice. State v. Henson, 2010 MT 136, ¶ 19, 356 Mont. 458, 235 P.3d

1274. A district court has “considerable latitude when ruling on the admissibility of

expert witness testimony.” Harris, ¶ 6 (citing State v. Crawford, 2003 MT 118, ¶ 30, 315

Mont. 480, 68 P.3d 848).

DISCUSSION

¶13 Issue One: Did the totality of the circumstances support a finding that Deputy
Stineford had particularized suspicion that Rodriguez was casing a business for
burglary?

¶14 As a preliminary matter, Rodriguez argues that we cannot consider Deputy

Stineford’s testimony as to whether Rodriguez was parked or slowly rolling through the

Polaris parking lot because the District Court did not make a specific finding in its order

denying Rodriguez’s motion to dismiss that it expressly relied on that fact to determine

particularized suspicion. Relying on State v. Hilgendorf, 2009 MT 158, ¶ 11, 350 Mont.

412, 208 P.3d 401 and State v. Broken Rope, 278 Mont. 427, 432, 925 P.2d 1157, 1160

(1996), Rodriguez further argues that we may only review undisputed facts and the

district court’s findings of fact. The State counters that our review is of the entire district

court record and Rodriguez misapprehends the holdings of Hilgendorf and Broken Rope.

We agree with the State.

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¶15 It is well-settled law in Montana that we review the entire district court record to

determine if a district court’s findings are clearly erroneous. A finding is clearly

erroneous if it is not supported by substantial evidence, if the trial court misapprehends

the effect of the evidence, or if our review of the record convinces us that a mistake has

been committed. LeFeber v. Johnson, 2009 MT 188, ¶ 18, 351 Mont. 75, 209 P.3d 254

(emphasis added). Hilgendorf does not support Rodriguez’s argument, see Hilgendorf,

¶ 11, and Broken Rope is inapposite as there we were limited to agreed-upon facts

because the appeal was confined by the parties to an agreed statement of facts. Broken

Rope, 278 Mont. at 428, 925 P.2d at 1157. Such is not the case here. Therefore, we

review the entire record.

¶16 Turning to the first issue, both the Fourth Amendment to the United States

Constitution and Article II, Section 11 of the Montana Constitution prohibit unreasonable

searches and seizures; these protections apply to investigative stops of vehicles. State v.

McMaster, 2008 MT 294, ¶ 13, 345 Mont. 408, 191 P.3d 443 (citing U.S. v. Cortez, 449

U.S. 411, 417, 101 S. Ct. 690, 694-95 (1981); State v. Gopher, 193 Mont. 189, 194, 631

P.2d 293, 296 (1981)). Section 46-5-401(1), MCA, states:

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.

¶17 To justify an investigatory stop, the State has the burden to show the officer

possessed: (1) objective data from which an experienced officer can make certain

inferences; and (2) a resulting particularized suspicion that the occupant of the motor

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vehicle is or has been engaged in wrongdoing or was a witness to criminal activity. State

v. Gilder, 1999 MT 207, ¶ 10, 295 Mont. 483, 985 P.2d 147; see Brown v. State, 2009

MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842. Whether particularized suspicion exists is a

question of fact that depends on the totality of the circumstances including, but not

limited to, “the quantity, or content, and quality, or degree of reliability, of the

information available to the officer.” Gilder, ¶ 11 (quoting State v. Pratt, 286 Mont. 156,

161, 951 P.2d 37, 40 (1997)); see also State v. Gouras, 2004 MT 329, ¶ 15, 324 Mont.

130, 102 P.3d 27. In evaluating the totality of the circumstances, some factors we have

previously considered are the time of day, whether nearby businesses are closed, a

vehicle’s location, and the occupant’s behaviors. See e.g. Gopher, 193 Mont. at 194, 631

P.2d at 296; Hilgendorf, ¶ 18; Brown, ¶ 23.

¶18 Rodriguez argues that the totality of circumstances here was not similar enough to

the circumstances of Gopher and Hilgendorf to support a finding of particularized

suspicion. However, we do not require a checklist of factors be satisfied before an officer

may justify an investigative stop; rather, the question is whether the officer can point to

“specific and articulable facts which, taken together with reasonable inferences from

those facts, reasonably warrant the intrusion.” Brown, ¶ 22 (quoting Clark v. State, ex

rel., Driver Imp. Bureau, 2005 MT 65, ¶ 9, 326 Mont. 278, 109 P.3d 244). Given this

well-settled law, it is irrelevant if the facts of this case are not exactly in line with the

facts of Gopher and Hilgendorf. We conclude Deputy Stineford’s specific and

articulable facts and inferences gathered while observing Rodriguez support a finding of

particularized suspicion to justify an investigative stop.

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¶19 Deputy Stineford observed Rodriguez’s vehicle located outside Kurt’s Polaris at

11:30 p.m., well after the business had closed. He testified that he observed Rodriguez’s

vehicle, with its headlights off, rolling slowly through the parking lot of a business that

contained a significant amount of expensive inventory. Deputy Stineford testified that

his experience taught him that burglaries of businesses occur at night and that no vehicles

were typically present in the business’s parking lot at night. These objective and

articulable observations reasonably led Deputy Stineford to possess the requisite

particularized suspicion that Rodriguez was casing Kurt’s Polaris to commit burglary.

The District Court did not err in concluding that Deputy Stineford was justified in

conducting an investigative stop of Rodriguez.

¶20 Issue Two: Did the District Court abuse its discretion when it qualified Deputy
Stineford to testify about the administration and results of the HGN test?

¶21 A witness must be qualified as an expert to testify about HGN testing because the

relationship between alcohol consumption and nystagmus, while not novel scientific

evidence, is nonetheless scientific evidence beyond the range of ordinary training and

intelligence. Hulse v. DOJ, Motor Vehicle Div., 1998 MT 108, ¶ 69, 289 Mont. 1, 961

P.2d 75. Thus, before an officer may testify about the results of an HGN test, the State

must provide foundation to show the officer was “properly trained to administer the HGN

test and that he administered the test in accordance with this training,” id. at ¶ 70, and a

district court must conduct a conventional M. R. Evid. 702 analysis to determine

admissibility of the testimony. Id. at ¶ 70. Notably, an officer may be qualified to testify

as to the HGN test administration and results, but may not be qualified to testify as to the

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scientific basis of the HGN test results without additional foundation laid. Id. at ¶ 70.

These are two separate analyses.

¶22 Here, Rodriguez argues that the District Court abused its discretion when it

qualified Deputy Stineford as an expert on HGN and allowed him to testify about the

administration and results of the HGN test. Rodriguez argues that, to qualify Deputy

Stineford as an expert, the State relied entirely on the four-hour seminar “Understanding

Nystagmus Gaze” that Deputy Stineford attended in April 2009, four months after he

administered the HGN test to Rodriguez. However, Rodriguez’s argument fails for two

reasons. First, it overlooks the rest of Deputy Stineford’s testimony that was presented

by the State to qualify Stineford as an expert. Second, the April 2009 training goes to

Deputy Stineford’s training and qualifications to testify about the scientific basis

underlying the HGN test, not his training and qualifications on the proper administration

of the test; as Rodriguez expressly states in his brief, he does not raise on appeal the issue

of whether Deputy Stineford was qualified to explain the scientific basis of the HGN test

results.

¶23 Based on the record before us, we conclude the District Court did not err in

finding that Deputy Stineford was an expert witness qualified to testify about the

administration of the HGN test. Similar to the foundational testimony we found

sufficient in Hulse, Deputy Stineford testified at length about his training at the Law

Enforcement Academy and the advanced operator training, both of which had

components that specifically addressed DUI investigations and field sobriety tests,

including administration of the HGN test. See Hulse, ¶¶ 71-72. All of this training

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occurred prior to January 2009. Deputy Stineford also testified he had previously been

qualified as a DUI expert in justice court and investigated roughly two DUIs per week.

He further testified that he followed proper procedure when he administered the HGN

test to Rodriguez and the record demonstrates that he explained this procedure in great

detail to the court. That Deputy Stineford received subsequent additional training from

an ophthalmologist about the scientific basis underlying the correlation between

nystagmus and alcohol does not mean his prior DUI training and experience was

inadequate. Given the considerable latitude a district court has when ruling on

admissibility of expert testimony, and given that nothing in the record indicates the

District Court arbitrarily exceeded the bounds of reason in qualifying Deputy Stineford as

an expert, we conclude the District Court did not abuse its discretion when it qualified

Deputy Stineford as an expert and allowed him to testify as to the administration of the

HGN test.

CONCLUSION

¶24 For the forgoing reasons, we hold that the District Court did not err when it found

that Deputy Stineford had particularized suspicion to conduct an investigatory stop of

Rodriguez, and it did not err in concluding Deputy Stineford was qualified to testify

about the administration and results of the HGN test.

¶25 Affirmed.

/S/ PATRICIA COTTER

We concur:

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/S/ JAMES C. NELSON
/S/ BETH BAKER
/S/ BRIAN MORRIS
/S/ JIM RICE

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