STATE v REYNOLDS
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94-368 NO. 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 Montana Ellen Berry, Berry Law Firm, Bozeman, For Respondent: Hon. Joseph P. Mazurek, Attorney General, Elizabeth L. Griffing, Assistant Attorney General, Helena, Salvagni, Gallatin County Montana; A. Michael Susan Swimley, Deputy Gallatin County Attorney, Attorney, Bozeman, Montana Submitted on Briefs: Decided: Filed: May 11, 1995 July 17, 1995 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. district court. County, denied Reynolds appealed to The Eighteenth Judicial District Court, Gallatin 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: Peterson have a particularized suspicion to Did Deputy 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. 2 See, for example, State v. Stubbs (1995), 892 P.2d 547, 550, 52 St.Rep. district court's ruling whether there is 232, 233 (We review a on a motion to suppress to determine 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. an intersection where Deputy Peterson then met Reynolds at Reynolds had the right-of-way. approximately 7 to 10 seconds, intersection. investigatory After Reynolds proceeded through the Deputy Peterson then pulled Reynolds over to make an 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 Amendment, applicable to "protects the states by the Fourteenth 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 circumstances. if Terry, the seizure is reasonable 392 U.S. at 20. under the '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, Terrv, 392 U.S. at 21. reasonably warrant that intrusion." 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 4 the person stopped is, or is about to be, in engaged 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, 449 417-18. U. S. at 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. example, For 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 truck The deputy followed tire tracks from the farm and saw matching the neighbor's description. In applying the two-pronged test, we held that the totality of the facts before the 5 deputy created investigatory a stop. particularized suspicion justifying Morsette, 654 P.2d at 507. In Matter of Suspension of Driver's License of Blake 220 Mont. 27, the 712 P.2d 1338, the petitioner exhibited consistent with a person driving while under alcohol. Blake, 712 P.2d at 1341. (1986), patterns the influence of 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. When the totality of particularized unjustified. Blake, 712 P.2d at 1341. the circumstances does support a suspicion, we have held the investigatory stop to be For 813 P.2d 473, example, in Grinde v. State (1991), 249 Mont. 77, 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. the sheriff's deputies were not justified in We held that stopping the defendant's vehicle because they merely heard the squeal of tires but saw no evidence of erratic driving. Similarly, P.2d 1245, police Grinde, 813 P.2d at 475. in State v. Anderson (1993), 258 Mont. 510, 853 the facts were not sufficient for us to hold that the officers met the particularized Anderson, an informant suspicion test. In 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 committing, suspicion that Reynolds or was about to commit an had committed, offense. Because WZlS 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:
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