97-144
No. 97-144
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and Respondent,
v.
KENT JAMES PRATT,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J. Dirk Beccari; Quane, Smith, Howard & Hull;
Missoula, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General;
John Paulson, Assistant Attorney General;
Helena, Montana
Robert L. "Dusty" Deschamps, III, Missoula County
Attorney;
Robert L. Zimmerman, Deputy County Attorney;
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Missoula, Montana
Submitted on Briefs: November 6, 1997
Decided: December 16, 1997
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
Kent James Pratt was charged by information on November 2,
1995, with the
offenses of felony driving under the influence of alcohol,
misdemeanor possession of
more than one valid Montana driver's license, and misdemeanor
violation of the
provisions of a restricted driver's license. Pratt filed a motion
to suppress evidence of
his intoxication which had been obtained following the
investigatory stop of his vehicle.
Pratt also filed a motion to dismiss the charge for lack of
jurisdiction. The Fourth
Judicial District Court, Missoula County, denied both motions.
Pratt entered into a plea
agreement with the State in which he agreed to plead guilty to
felony DUI and the State
agreed to dismiss the two misdemeanor counts and make a specified
sentencing
recommendation. The District Court sentenced Pratt to a term of
five years, with two
years suspended, with the Department of Corrections, and
recommended his placement
in the intensive supervision program. Pratt reserved the right to
appeal from the District
Court's denial of his pretrial motions. Pratt appeals from the
sentence and judgment of
the District Court, and from the orders denying his motion to
suppress and motion to
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dismiss. We affirm.
The following issues are presented on appeal:
1. Did the District Court err in denying Pratt's motion to
suppress evidence,
in which Pratt argued that Officer Pastian did not have a
particularized suspicion to justify
an investigatory stop of Pratt's vehicle?
2. Did the District Court err in denying Pratt's motion to
dismiss the felony
DUI charge for lack of jurisdiction?
FACTUAL AND PROCEDURAL BACKGROUND
The defendant's motion to suppress was submitted and decided
without an
evidentiary hearing. As a factual basis for his motion, however,
Pratt used two police
reports which he attached to the motion. The following facts are
derived from the reports
which were considered by the District Court.
At 2:09 a.m. on October 5, 1995, Officer Scott Pastian of the
Missoula City Police
Department received a police dispatcher's report of an intoxicated
driver. The report
related that the driver was operating a white Toyota Land Cruiser,
license number
resembling "GRIZZII" and traveling north on Van Buren Street from
East Broadway.
The complainant was Mike Lafournaise, the night manager of the
Short Stop convenience
store in Missoula.
Officer Pastian was traveling south on Van Buren Street when
the dispatcher
relayed the report with the description of the vehicle and license
number. Officer Pastian
saw Pratt's Toyota driving toward him on Van Buren Street and then
turn onto Elm
Street. Officer Pastian initiated a traffic stop. Subsequently,
Pastian arrested Pratt for
driving under the influence of alcohol, fourth offense; possession
of more than one valid
Montana driver's license; and violation of the provisions of a
restricted driver's license.
Officer J. Pontrelli overheard the dispatch report about the
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intoxicated driver and
proceeded toward Van Buren Street. Upon hearing Pastian inform the
dispatcher that he
had stopped Pratt, Pontrelli drove to the Short Stop and talked to
Lafournaise.
Lafournaise described Pratt's actions and intoxicated condition
while at the store.
Lafournaise related to Officer Pontrelli that he saw a white
male, now known as
the defendant, Kent Pratt, drive a 1991 white Toyota Land Cruiser
into the store's gas
pump lanes where he stopped and sat for awhile and then drove away
onto Broadway.
A short time later, Pratt returned to the Short Stop, parked again
in the pump lane, and
stayed in the vehicle for a few minutes. Pratt then exited the
vehicle and staggered into
the store to the bathroom. After coming out of the bathroom, he
went to the beer cooler
and stood in front of it as if he were going to purchase some beer.
The store attendant
then told Pratt that he could not purchase any beer since it was
after 2:00 a.m. Pratt left
the store, fumbled around in his vehicle, and finally drove away.
In reporting Pratt's actions at the Short Stop to the police,
Lafournaise described
the vehicle and its distinctive personalized license plate, and
informed the dispatcher that
Pratt was traveling north on Van Buren Street.
On November 2, 1995, Pratt was charged by information in the
Fourth Judicial
District Court, Missoula County, with violations of: (1) õ
61-8-401, MCA, DUI, a fourth
lifetime offense, a felony; (2) õ 61-5-111, MCA, possession of more
than one valid
Montana driver's license, misdemeanor; and (3) õ 61-5-113, MCA,
violation of
provisions of a restricted driver's license, a misdemeanor.
Pratt has three prior convictions for DUI which occurred on
June 10, 1985; March
7, 1989; and September 13, 1991.
On January 11, 1996, Pratt filed a motion to suppress the
evidence of his
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intoxication which had been obtained following the investigatory
stop of his vehicle. On
February 6, 1996, the District Court denied Pratt's motion to
suppress.
On March 8, 1996, Pratt filed a motion to dismiss the felony
charge for lack of
jurisdiction. In that motion, Pratt argued that two of his prior
DUI convictions should
have been expunged from his record and, therefore, could not be
used as a basis for a
felony DUI prosecution. Pratt also argued that, as applied to his
prior DUI convictions,
the 1995 amendments to the DUI sentencing statutes violated the
constitutional
prohibitions against ex post facto legislation. On June 21, 1996,
the District Court denied
Pratt's motion to dismiss.
On October 7, 1996, Pratt entered a conditional plea of
guilty, pursuant to
õ 46-12-204(3), MCA, to the offense of felony DUI. The State
agreed to dismiss the two
misdemeanor counts and make a specified sentencing recommendation.
Pratt reserved
his right to appeal from the orders denying his motions to suppress
and dismiss.
On November 22, 1996, the District Court sentenced Pratt to a
term of five years,
with two years suspended, with the Department of Corrections, and
recommended his
placement in the intensive supervision program. The District
Court's judgment was filed
on December 9, 1996.
On February 6, 1997, Pratt filed a notice of appeal, and on
February 7, 1997, the
District Court entered an order staying the sentence pending final
determination by this
Court.
Pratt appeals from the sentence and judgment of the District
Court, from the order
denying his motion to suppress evidence, and from the order denying
his motion to
dismiss. ISSUE 1
Did the District Court err in denying Pratt's motion to
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suppress evidence, in which
Pratt argued that Officer Pastian did not have a particularized
suspicion to justify an
investigatory stop of Pratt's vehicle?
The standard of review for a district court's denial of a
motion to suppress is
whether the court's findings of fact are clearly erroneous and
whether those findings were
correctly applied as a matter of law. State v. Flack (1993), 260
Mont. 181, 185-88, 860
P.2d 89, 92-94.
Pratt argues that the District Court erred in denying his
motion to suppress and in
finding him guilty of driving under the influence of alcohol.
Pratt claims that Officer
Pastian did not have enough information to form a particularized
suspicion of criminal
activity to justify an investigatory stop pursuant to õ 46-5-401,
MCA.
In Montana, the requirement of particularized suspicion was
adopted in State v.
Gopher (1981), 193 Mont. 189, 631 P.2d 293, and is codified at õ
46-5-401, MCA,
which provides:
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 particularized suspicion that the person or
occupant of the
vehicle has committed, is committing, or is about to commit an
offense.
In Gopher, this Court adopted the two-part test enunciated by
the United States
Supreme Court in United States v. Cortez (1981), 449 U.S. 411, 101
S. Ct. 690, 66 L.
Ed. 2d 621, to evaluate whether the police have sufficient cause or
a "particularized
suspicion" to stop a person. In asserting that a police officer
had the particularized
suspicion to make an investigatory stop, the State has the burden
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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, 193 Mont. at 194, 631 P.2d at 296.
Whether a particularized suspicion exists is a question of
fact which depends on
the totality of circumstances. State v. Reynolds (1995), 272 Mont.
46, 899 P.2d 540. In
evaluating the totality of the circumstances, a court should
consider the quantity, or
content, and quality, or degree of reliability, of the information
available to the officer.
Alabama v. White (1990), 496 U.S. 325, 330, 110 S. Ct. 2412, 2416,
110 L. Ed. 2d
301, 309.
In this case, both Pratt and the State appropriately focus
their arguments on the
nature of the information provided by the citizen informant and
the role it played in
forming Pastian's particularized suspicion in justifying the
investigative stop of Pratt's
vehicle. Pratt argues that the citizen informant who provided the
information to the
Missoula City Police Department was unknown to Pastian before he
initiated the stop of
his vehicle. Therefore, Pratt contends Pastian could not have
assessed the reliability of
the informant's information and rely on that information in forming
a particularized
suspicion to justify the stop. Pratt also argues that the detailed
information establishing
the foundation of Lafournaise's opinion was provided to Officer
Pontrelli after Pastian
stopped Pratt. Furthermore, Pratt asserts that Pastian made no
observation regarding his
driving before stopping him. Thus, without assessing the
reliability of the informant or
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observing any erratic driving on Pratt's part, Pastian possessed no
objective data upon
which to base his stop of Pratt's vehicle.
The State concedes that Pastian's report does not indicate
that the officer himself
observed any erratic driving prior to the investigatory stop of
Pratt's vehicle. However,
the State counters by arguing that the information provided by the
citizen informant about
Pratt to the Missoula City Police Department was sufficient in
itself to justify the stop.
This Court has held that an arresting officer may rely on
information conveyed by
a reliable third person, including an anonymous citizen informant,
in forming the basis
for a particularized suspicion to justify an investigative stop.
See Boland v. State (1990),
242 Mont. 520, 792 P.2d 1; State v. Ellinger (1986), 223 Mont. 349,
725 P.2d 1201.
For example, we have stated that a citizen report of a DUI, the
reported vehicle observed
halfway off the road, and the vehicle pulling away when an officer
approached is
sufficient to establish a particularized suspicion. State v. Sharp
(1985), 217 Mont. 40,
702 P.2d 959. Likewise, two anonymous telephone calls corroborated
by officers and
evidence of excessive speed were sufficient grounds for a
justifiable stop. State v. Shaffer
(1987), 227 Mont. 221, 738 P.2d 491. In both Sharp and Shaffer,
unlike this case, the
information provided by the citizen informant was corroborated by
independent
observation of wrongdoing or illegality by the officer in order to
meet the particularized
suspicion standard.
Not surprisingly, both parties refer to and place great
emphasis on our recent
decision in State v. Lee (Mont. 1997), 938 P.2d 637, 54 St. Rep.
401. Lee involved the
investigatory stop of a vehicle after a report from an anonymous
citizen informant was
relayed to the arresting officer. In Lee,
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the anonymous caller stated that she "believed Lee was under
the influence
of alcohol and speeding." This statement, along with a
description of the
car and the direction it was heading, was all the information
that was
provided to the dispatcher. The dispatcher relayed this
information to
Officer Collins. The caller did not provide the dispatcher
with any basis
for her belief that Lee was driving under the influence of
alcohol or
speeding. At the time of the call, the informant did not
state whether she
had personally observed Lee drinking or that he was speeding
or driving
erratically. The informant merely believed that Lee was
speeding and
under the influence of alcohol.
Before Officer Collins stopped Lee, he did not have any
contact with
the informant to assess whether the information provided was
reliable or
had any basis in fact. Officer Collins saw a car matching the
informant's
description traveling north on the Fort Peck highway and
turned around to
follow it. Collins testified that the car was not speeding,
weaving, or
swerving. When the patrol car accelerated to get behind the
vehicle driven
by Lee, Lee slowed down to 35 miles per hour. Outside of this
deceleration, Officer Collins observed no violations of the
law or driving
anomalies. Lee did not exhibit patterns consistent with a
person driving
while under the influence of alcohol; there was no evidence of
erratic
driving.
Lee, 938 P.2d at 640, 54 St. Rep. at 403 (emphasis added).
In Lee, the anonymous citizen informant provided the
dispatcher with little
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information except a statement of opinion, a description of the
vehicle, and the general
direction of travel. Upon locating Lee's vehicle, the officer
initiated an investigatory stop
before first assessing whether the information was reliable or had
any basis in fact and,
second, corroborating the information with any observation of
illegal activity or indication
of impaired or erratic driving. Based upon these facts, we held
that a citizen informant's
opinion which is not supported by either the basis for such belief
or by the officer's
personal observations cannot be sufficient to form a particularized
suspicion. Lee, 938
P.2d at 640, 54 St. Rep at 403.
Pratt relies on Lee in arguing that Pastian did not have
sufficient information to
form a particularized suspicion to justify an investigatory stop of
his vehicle. Pratt
contends that the circumstances surrounding the investigatory stop
of his vehicle are
identical to the facts in Lee, in that the tip from the citizen
informant was not reliable and
that the officer did not observe any erratic or impaired driving.
The State argues that Lee is factually distinguishable and
does not control the
resolution of Pratt's case. The State contends that the citizen
informant was not
anonymous, but had identified himself to the dispatcher.
Furthermore, the citizen
informant also indicated that his report was based upon his own
observations that Pratt
was drunk and driving.
Citizen informants can provide useful information and play an
important role in
law enforcement. At the same time, however, it is imperative to
recognize the potential
for abuse if the information provided by a citizen informant is not
reliable. The United
States Supreme Court has recognized the problems associated with
tips from citizen
informants:
Informants' tips, like all other clues and evidence coming to
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a policeman
on the scene may vary greatly in their value and reliability.
One simple
rule will not cover every situation. Some tips completely
lacking in indicia
of reliability, would either warrant no police response or
require further
investigation before a forcible stop of a suspect would be
authorized.
Adams v. Williams (1972), 407 U.S. 143, 147, 92 S. Ct. 1921, 1924,
32 L. Ed. 2d 612,
617-18.
Recognizing the frequency in which we encounter issues
involving citizen
informants, it is appropriate that we provide further guidance on
the proper use of
information given by citizen informants. We find the analysis as
set forth by the Oregon
Court of Appeals in State v. Villegas-Varela (Or. 1994), 887 P.2d
809, useful in
evaluating a citizen informant's report and adopt this approach for
Montana.
In Villegas-Varela, the defendant appealed from a denial of
his motion to suppress.
The police officer at the suppression hearing testified that he
received a dispatch that an
anonymous caller reported an "intoxicated driver operating a small
red vehicle with four
subjects in it. The vehicle was driving erratically all over the
road." Although the caller
provided the license number, he did not give his location, the
location of the car, the
direction of travel or a description of any of the occupants. The
caller also did not give
his name or telephone number. More than an hour later, the
arresting officer observed
the defendant's vehicle and followed it for several blocks without
observing any traffic
infraction. After following the car into a parking lot, the
officer identified the license
plate and matched it to the one provided by the dispatcher. He
then arrested the
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defendant for driving under the influence of intoxicants, giving
false information to a
police officer, and driving with a suspended license.
On appeal, the defendant argued that the trial court erred in
denying his motion
to suppress, contending that the arresting officer lacked
reasonable suspicion to justify the
stop because the informant was anonymous and not sufficiently
reliable. In reversing the
trial court, the Oregon Court of Appeals stated when reasonable
suspicion is based solely
on a citizen informant's report, that report must contain some
indica of reliability.
Villegas-Varela, 887 P.2d at 810. The court identified three
factors that are important
in determining the reliability of a citizen informant's report.
The first factor is whether the citizen informant identifies
himself to law
enforcement and thus exposes himself to criminal and civil
liability if the report is false.
Villegas-Varela, 887 P.2d at 810. Under this factor, a tip may be
considered more
reliable if the informant provides his or her name to law
enforcement authorities or
delivers the information to the officer in person. The second
factor is whether the report
is based on the personal observations of the informant.
Villegas-Varela, 887 P.2d at 811.
The Oregon court recognized that:
An officer may infer that the information is based on the
informant's
personal observations if the information contains sufficient detail
that
"it is apparent that the informant had not been fabricating
[the] report out of whole cloth . . . [and] the report [is] of
the
sort which in common experience may be recognized as
having been obtained in a reliable way . . . ."
Villegas-Varela, 887 P.2d at 811 (quoting Spinelli v. United States
(1969), 393 U.S. 410,
417-18, 89 S. Ct. 584, 589-90, 21 L. Ed. 2d 637, 644). The third
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factor is whether the
officer's own observations corroborated the informant's
information. Villegas-Varela,
887 P.2d at 811. Corroboration of the tip occurs when the officer
either observes illegal
activity or finds the person, the vehicle, and the vehicle's
location substantially as
described by the informant.
In applying these factors to the instant case, the report by
citizen informant
Lafournaise about Pratt's condition can be viewed as reliable and,
therefore, provided
Pastian with a particularized suspicion justifying his
investigatory stop of Pratt's vehicle.
First, Lafournaise identified himself during the 911 call and was
subjected to a full
interview by another officer soon after making the report.
Lafournaise, therefore, was
exposed to not only civil liability, but also criminal prosecution
pursuant to õ 45-7-205,
MCA, if the report was fabricated. Second, although we do not have
a transcript of
Lafournaise's call to the dispatcher, we can infer from the record
that Lafournaise was
reporting his personal observations of Pratt's activities that led
him to believe that Pratt
was intoxicated. He provided the dispatcher with information
indicating that he was the
night manager of the Short Stop and thus in a position to have
observed Pratt.
Furthermore, he provided information detailing the vehicle
description, the direction the
vehicle was traveling, and the vehicle's personalized license plate
number. Certainly a
report given by an on-duty manager of a retail establishment is
"of the sort which in
common experience may be recognized as having been obtained in a
reliable way."
Finally, in accordance with the third factor, the report was
sufficiently corroborated
when Pastian observed the described vehicle within a short period
of time, traveling in
the direction and on the same street indicated by Lafournaise.
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Therefore, we conclude
that Pastian had a particularized suspicion to initiate the
investigatory stop of Pratt.
Pratt also argues that Pastian, as the officer who initiated
the investigatory stop,
must have personally assessed the reliability of the informant's
tip before making the
stop. Pratt finds fault with Pastian making the stop without
having spoken with the
informant or, at least, having any information regarding the
circumstances which led to
the report, the person who made the report, the manner of Pratt's
driving, the facts
relating to Pratt's level of impairment, or the basis for the
informant's belief in making
the report.
The United States Supreme Court has held that an officer who
is unaware of the
factual basis for particularized suspicion, may make an
investigatory stop upon a directive
or request for action from another officer or law enforcement
agency. United States v.
Hensley (1985), 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d 604.
See also Whitley v.
Warden (1971), 401 U.S. 560, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (an
officer who is
unaware of the factual basis for probable cause, may make an arrest
upon a directive
from another officer with probable cause). In such a situation,
the directing officer's
knowledge of underlying facts and circumstances is imputed to the
acting officer. The
rationale for this rule is that the officer is entitled to assume
that whoever issued the
directive or request had particularized suspicion. However, in the
absence of such a
directive or request, information held by other officers but not
communicated to the
acting officer is not imputed to the acting officer. Whitley, 401
U.S. at 568-69.
The Ninth Circuit has concluded that although an officer who
issues a wanted
bulletin must have particularized suspicion sufficient to justify
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an investigatory stop, the
officer who acts in reliance on the bulletin is not required to
have personal knowledge of
the evidence creating a particularized suspicion. United States v.
Robinson (9th Cir.
1976), 536 F.2d 1298 (holding that an officer who relied on a radio
dispatch report in
making an investigatory stop of a vehicle did not have a
particularized suspicion when
the dispatcher did not have a factual foundation for a
particularized suspicion before
relaying the information to the officer). The Ninth Circuit noted
"effective law
enforcement cannot be conducted unless police can act on directions
and information
transmitted by one officer to another and that officers, who must
often act swiftly, cannot
be expected to cross-examine their fellow officers about the
foundation for the transmitted
information." Robinson, 536 F.2d at 1299.
In Gopher, we stated that facts known to one officer at the
time he directed another
officer to make an investigatory stop could appropriately form a
basis for particularized
suspicion. See Gopher, 193 Mont. at 191-93, 631 P.2d at 294-96.
Likewise, in Boland,
we held that an arresting officer may rely on information conveyed
by another officer in
determining probable cause to arrest. Boland, 242 Mont. at 525,
792 P.2d at 3.
We therefore conclude that Pratt's argument that Pastian must
personally assess
the reliability of the citizen informant's tip is unpersuasive.
Pastian, as the acting officer,
could reasonably rely on information relayed to him by the
dispatcher for particularized
suspicion justifying an investigatory stop of Pratt's vehicle.
Pastian observed Pratt's
vehicle mere moments after receiving the report from the
dispatcher. Under these
circumstances, we cannot conclude that Pastian was compelled to
corroborate the
dispatcher's report by following Pratt's vehicle and waiting for a
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traffic violation to
occur. Under the factually driven totality of the circumstances
test, Pastian appropriately
relied on the dispatcher's report. Although he did not observe any
erratic driving,
Pastian sufficiently corroborated the information relayed by the
dispatcher when he
located Pratt, within moments of the dispatch, driving a white
Toyota Land Cruiser with
the license number as reported by Lafournaise, traveling in the
direction reported by
Lafournaise--north on Van Buren Street.
In adopting Villegas-Varela, we note that our decision in Lee
would remain
unchanged under the three-factor analysis. First, in Lee, the
citizen informant was
anonymous. Therefore, the informant did not subject herself to
criminal and civil liability
for making a false report. Second, due to the limited information
that the informant
provided, the dispatcher or officer could not have known if that
report was based on the
informant's own personal observations. Third, the officer did not
corroborate the report
by observing any illegal activity or impaired or erratic driving
that formed the basis of
the report before making the investigatory stop.
As stated above, the issue of whether or not a particularized
suspicion exists is
factually driven and depends on the totality of circumstances.
Information from a tip
provided by a citizen informant, whether identified or anonymous,
may provide the basis
for an investigatory stop. The tip must be analyzed under the
three factors that we adopt
from Villegas-Varela to determine its reliability. Generally, tips
that are less reliable,
such as those provided by anonymous informants, necessarily require
more corroboration
on the part of the investigating officer in order to establish a
particularized suspicion. In
situations such as Lee, where the tip was anonymous and lacked any
foundation for the
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informant's opinion, the officer must corroborate the tip by
observing some behavior on
the part of the driver, either illegal or indicative of some
impairment, that alerts the
officer to a possible violation.
In Pratt's case, for reasons discussed above, the tip was more
reliable.
Lafournaise identified himself to the dispatcher and stated that
the tip was based on his
own personal observations of Pratt's activities that led him to
believe that Pratt was
driving while intoxicated. Corroboration of the tip occurred
almost immediately after the
dispatcher relayed the tip when Pastian came upon Pratt's vehicle
as described and
initiated the investigatory stop. Here, the quality of the
information or reliability was
high. Thus, the tip corroborated by the officer when he found the
vehicle as described
was sufficient to raise a particularized suspicion, even though the
officer did not observe
any illegal or impaired driving on Pratt's part before the
investigatory stop.
Because Officer Pastian, acting under the facts imparted to
him by the dispatcher,
had a particularized suspicion that Pratt was driving under the
influence of alcohol, we
therefore hold that the investigatory stop of Pratt's vehicle was
justified pursuant to
õ 46-5-401, MCA.
Furthermore, we adopt the analysis of Villegas-Varela and
conclude that the
District Court did not err by denying Pratt's motion to suppress
evidence obtained as a
result of Officer Pastian's investigatory stop.
ISSUE 2
Did the District Court err in denying Pratt's motion to
dismiss the charge of felony
DUI, fourth offense, for lack of jurisdiction?
A district court's grant or denial of a motion to dismiss in
a criminal case is a
question of law which we review de novo. State v. Brander (1996),
280 Mont. 148, 150-
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51, 930 P.2d 31, 33.
Pratt argues that the District Court lacked jurisdiction
because two of his prior DUI
convictions should not have been considered in enhancing the
current DUI charge from
a misdemeanor DUI to a felony DUI, fourth offense. Pratt further
argues that the 1995
amendments to õ 61-8-714, MCA, constitute an ex post facto law in
violation of Article
II, Section 31, of the Montana Constitution, and Article I, Section
10, of the United
States Constitution.
The 1995 Montana Legislature enacted revisions to Montana's
laws prohibiting
driving after having consumed intoxicating amounts of alcohol. See
1995 Mont. Session
Laws, Chs. 447, 546, and 567. Among other changes, the Legislature
created a felony
sanction for repetitive DUI offenders. A new subsection, õ
61-8-714(4), MCA (1995),
provided in part:
On the fourth or subsequent conviction, the person is
guilty of a
felony offense and shall be punished by imprisonment for a
term of not less
than 1 year or more than 10 years and by a fine of not less
than $1,000 or
more than $10,000.
In accordance with this new subsection, the Legislature
amended õ 61-8-714(6),
MCA (formerly subsection (5)), as follows:
For the purpose of determining the number of convictions
under this
section, "conviction" means a final conviction, as defined in
45-2-101, in
this state, conviction for a violation of a similar statute in
another state, or
a forfeiture of bail or collateral deposited to secure the
defendant's
appearance in court in this state or another state, which
forfeiture has not
been vacated. An offender is considered to have been
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previously convicted
for purposes of sentencing if less than 5 years have elapsed
between the
commission of the present offense and a previous conviction,
unless the
offense is the offender's fourth or subsequent offense, in
which case all
previous convictions must be used for sentencing purposes. If
there has not
been an additional conviction for an offense under this
section for a period
of 5 years after a prior conviction under this section, then
all records and
data relating to the prior convictions are confidential
criminal justice
information, as defined in 44-5-103, and public access to the
information
may only be obtained by district court order upon good cause
shown.
First, we address Pratt's argument that the 1995 amendments to
õ 61-8-714, MCA,
increase the punishment for his prior convictions and thus
constitute an ex post facto law
in violation of Article II, Section 31, of the Montana
Constitution, and Article I, Section
10, of the United States Constitution.
In Brander, we addressed the very same ex post facto argument
concerning the
1995 amendments to õ 61-8-714, MCA. We held that the application
of the 1995
amendments did not violate the ex post facto clauses of the Montana
and United States
Constitutions. Brander, 280 Mont. 148, 930 P.2d 31. The 1995
amendments neither
punish Pratt for his previous convictions nor increase the penalty
for any prior conviction
of DUI. See Brander, 280 Mont. at 154, 930 P.2d at 35. The
enhancement of Pratt's
present DUI to felony status is the punishment for a fourth DUI.
In making a fourth DUI
a felony, the Legislature chose to punish repetitive behavior more
severely and does not
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act to impose a new penalty for a prior conviction.
Next, Pratt contends that the convictions of June 10, 1985,
and March 7, 1989,
no longer exist based upon a repealed expungement provision which
was in effect as part
of the DUI penalty statute from 1981 to 1989. He argues that 1985
and 1989 convictions
have either been removed from Pratt's record for purposes of
determining the number of
convictions or have been expunged completely.
At the time of Pratt's first two convictions, õ 61-8-714(5),
MCA (1985), provided
in part:
An offender is considered to have been previously convicted
for the
purposes of this section if less than 5 years have elapsed
between the
commission of the present offense and a previous conviction.
If there has
been no additional conviction for an offense under this
section for a period
of 5 years after a prior conviction hereunder, then such prior
offense shall
be expunged from the defendant's record.
In 1989, the Montana Legislature amended õ 61-8-714(5), MCA, to
provide that if, after
five years, a defendant had no additional DUI convictions, the
defendant's earlier DUI
conviction would no longer be expunged from his record, but rather
the information
relating to the prior DUI conviction would become confidential
criminal justice
information. Brander, 280 Mont. at 152, 930 P.2d at 33-34.
In Brander, we held that under the expungement provision any
DUI conviction that
occurred before October 1, 1989, and was followed by at least five
years without a
subsequent conviction, was expunged from a defendant's record and
could not be counted
as a prior conviction for felony DUI. See Brander, 280 Mont. at
155-57, 930 P.2d at
35-37. Furthermore, in reaffirming Brander, this Court held that
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any pre-1989 DUI
convictions which are followed by additional DUI convictions within
five years are never
eligible for expungement. State v. Beckman (Mont. 1997), 944 P.2d
756, 54 St. Rep 77.
Thus, under Brander and Beckman, Pratt's 1985 DUI conviction
was not eligible
for expungement from his record because less than five years had
passed before his next
DUI conviction in 1989. Likewise, Pratt's 1989 DUI conviction
could not be expunged
from his record because he was subsequently convicted for DUI in
1991, less than the
five years required for expungement under the statute.
We conclude that the District Court did not err in denying
Pratt's motion to
dismiss based on ex post facto grounds. Also, we conclude that the
District Court
correctly considered all of Pratt's prior convictions as the basis
for felony DUI
prosecution.
Affirmed.
/S/ JIM REGNIER
We Concur:
/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ KARLA M. GRAY
/S/ WILLIAM E. HUNT, SR.
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