NO. 94-368
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
v.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jeannettte Ellen Berry, Berry Law Firm, Bozeman,
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Elizabeth
L. Griffing, Assistant Attorney General, Helena,
Montana; A. Michael Salvagni, Gallatin County
Attorney, Susan Swimley, Deputy Gallatin County
Attorney, Bozeman, Montana
Submitted on Briefs: May 11, 1995
Decided: July 17, 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
Defendant/Appellant, Martin Reynolds (Reynolds), was charged
with a third offense of driving under the influence of alcohol
(DUI) on December 22, 1991. After a hearing, the Gallatin County
Justice Court denied Reynolds' motion to dismiss, found Reynolds
guilty, and stayed sentence pending appeal. Reynolds appealed to
district court. The Eighteenth Judicial District Court, Gallatin
County, denied Reynolds' motion to dismiss and following trial,
found Reynolds guilty and stayed sentence pending appeal. Reynolds
appeals from the sentence and judgment of the District Court and
from the order denying his motion to dismiss. We reverse.
ISSUE
Reynolds raises the following issue on appeal: Did Deputy
Peterson have a particularized suspicion to justify an
investigative stop of Reynolds' vehicle?
STANDARD OF REVIEW
In this case, the District Court denied Reynolds' motion to
dismiss for an improper investigative stop, concluding that the
arresting officer had vast experience and that Reynolds committed
a traffic violation which gave rise, along with other facts, to the
officer's right to stop him. We review the record to determine
whether substantial credible evidence supports the legal conclusion
implicit in the trial court's denial of defendant's motion, that
the arresting officer had a particularized suspicion to justify the
investigatory stop, and, if, based on the evidentiary record, the
court's legal conclusion was correct. See, for example, State v.
2
Stubbs (1995), 892 P.2d 547, 550, 52 St.Rep. 232, 233 (We review a
district court's ruling on a motion to suppress to determine
whether there is substantial credible evidence to support the
court's findings of fact, and whether the court correctly applied
the findings as a matter of law.)
BACKGROUND
At approximately 9:00 p.m., on December 22, 1991, Deputy
Sheriff David Peterson observed a pickup driven by Reynolds,
traveling down a dead-end street. Deputy Peterson thought the
vehicle was "bordering on traveling too fast" for the conditions
(traffic and darkness) and drove to where he thought the vehicle
would reappear. When it did not reappear, he moved to see Reynolds
make a u-turn in a city park. Deputy Peterson then met Reynolds at
an intersection where Reynolds had the right-of-way. After
approximately 7 to 10 seconds, Reynolds proceeded through the
intersection. Deputy Peterson then pulled Reynolds over to make an
investigatory stop. Other facts are referred to in our discussion
as necessary.
DISCUSSION
Reynolds argues that the District Court erred in denying his
motion to dismiss and in finding him guilty of driving under the
influence of alcohol. Reynolds claims that Deputy Peterson did not
have a particularized suspicion to justify an investigatory stop
pursuant to § 46-5-401, MCA. In 1991, the Legislature amended §
46-5-401, MCA, to be consistent with United States Supreme Court
and Montana case law: Section 46-5-401, MCA, provides:
3
Investigative stop. 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 oarticularized suspicion that
the person or occupant of the vehicle has committed, is
committinq, or is about to commit an offense. [Emphasis
added].
The Fourth Amendment right against unreasonable searches and
seizures, made applicable to the states by the Fourteenth
Amendment, "protects people, not places." Terry v. Ohio (1968), 392
U.S. 1, 8-9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889, 899 (citing Katz
v. United States (19671, 389 U. S. 347, 351, 88 S.Ct. 507, 511, 19
L.Ed.2d 576, 582). Whenever a police officer restrains a person's
freedom, such as in a brief investigatory stop of a vehicle, the
officer has seized that person. Terrv, 392 U.S. at 16; United
States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 694-95,
66 L.Ed.2d 621, 628.
A police officer may seize an individual based on less than
probable cause if the seizure is reasonable under the
circumstances. Terry, 392 U.S. at 20. 'I [Iln justifying the
particular intrusion the police officer must be able to point to
specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion."
Terrv, 392 U.S. at 21. The Court refused to sanction intrusions
based on "nothing more substantial than inarticulate hunches. .
1, Terry, 392 U.S. at 22.
Recognizing that 'I [aln investigatory stop must be justified by
some objective manifestation that the person stopped is, or is
4
about to be, engaged in criminal activity", the United States
Supreme Court set forth a two-part test to evaluate whether the
police have sufficient cause to stop a person. Cortez, 449 U. S. at
417-18. The essence of the test is that the totality of the
circumstances must give the police a particularized and objective
basis for suspecting the person of criminal activity. Cortez, 449
U.S. at 417-18.
In State v. Gopher (1981), 193 Mont. 189, 631 P.2d 293, we
adopted the two-part test enunciated in Cortez, placing the burden
on the state to show: "1) objective data from which an experienced
officer can make certain inferences; and (2) a resulting suspicion
that the occupant of a certain vehicle is or has been engaged in
wrongdoing or was a witness to criminal activity." Gopher, 631 P.2d
at 296. A??Plying the rules of Cortez, we held that a
particularized suspicion existed to justify stopping a vehicle that
slowly drove past the crime scene and exhibited an unusual
curiosity in the crime site. Gopher, 631 P.2d at 296.
The issue of whether or not a particularized suspicion exists
in order to justify an investigative stop is factually driven. For
example, in State v. Morsette (1982), 201 Mont. 233, 654 P.2d 503,
a farm was broken into, setting off a silent alarm that alerted the
sheriff and a neighbor. The neighbor saw an unfamiliar truck
driving very fast and wrote down its license number. Morsette, 654
P.2d at 504. The deputy followed tire tracks from the farm and saw
the truck matching the neighbor's description. In applying the
two-pronged test, we held that the totality of the facts before the
5
deputy created a particularized suspicion justifying the
investigatory stop. Morsette, 654 P.2d at 507.
In Matter of Suspension of Driver's License of Blake (1986),
220 Mont. 27, 712 P.2d 1338, the petitioner exhibited patterns
consistent with a person driving while under the influence of
alcohol. Blake, 712 P.2d at 1341. The petitioner was driving in
the vicinity of several bars at around 2:00 a.m. and swerved into
the wrong traffic lane. Therefore, we held that such
uncontradicted evidence was sufficient to support a particularized
suspicion that the petitioner may have been driving under the
influence of alcohol. Blake, 712 P.2d at 1341.
When the totality of the circumstances does support a
particularized suspicion, we have held the investigatory stop to be
unjustified. For example, in Grinde v. State (1991), 249 Mont. 77,
813 P.2d 473, the sheriff's deputies saw the defendant's car
properly execute a right hand turn and drive out of eyesight.
After the defendant's car was out of eyesight, the deputies then
heard an engine revving and the squeal of tires. Subsequently,
they stopped the defendant. Grinde, 813 P.2d at 474. We held that
the sheriff's deputies were not justified in stopping the
defendant's vehicle because they merely heard the squeal of tires
but saw no evidence of erratic driving. Grinde, 813 P.2d at 475.
Similarly, in State v. Anderson (1993), 258 Mont. 510, 853
P.2d 1245, the facts were not sufficient for us to hold that the
police officers met the particularized suspicion test. In
Anderson, an informant tipped the police that a blue pickup
6
Reynolds had been engaged in wrongdoing.
We hold the investigative stop was not justified pursuant to
§ 46-5-401, MCA; Deputy Peterson did not have facts supporting a
particularized suspicion that Reynolds had committed, WZlS
committing, or was about to commit an offense. Because the
investigatory stop was unlawful, we reverse the District Court's
decision to deny Reynolds' motion to dismiss and we remand with
instructions to enter an order of dismissal consistent with this
opinion.
We Concur: