Nos. 01-879 and 01-880

IN THE SUPREME COURT OF THE STATE OF MONTANA

2003 MT 120

STATE OF MONTANA,

Plaintiff and Respondent,

v.

JUDD MICHAEL WAGNER,

Defendant and Appellant.

___________________________________

JUDD M. WAGNER,

Petitioner and Appellant,

v.

STATE OF MONTANA,

Respondent and Respondent.

_______________________________________

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Broadwater, Cause Nos. DV-01-16 and DC-01-26

The Honorable Jeffrey Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Charles E. Petaja, Attorney at Law, Helena, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; Jennifer Anders,

Assistant Attorney General; Ryan M. Archer, Legal Intern, Helena, Montana

John T. Flynn, Broadwater County Attorney, Townsend, Montana

Submitted on Briefs: October 10, 2002

 Decided: April 29, 2003

Filed:

__________________________________________

Clerk
2

Justice Jim Regnier delivered the Opinion of the Court.

¶1 Following an arrest for driving under the influence of alcohol, Appellant Judd Wagner

moved the Broadwater County Justice Court to dismiss the charge based on the arresting

officer’s lack of particularized suspicion to initiate an investigative stop. Wagner asserted

that the officer failed to sufficiently corroborate a citizen informant’s report. Wagner

simultaneously filed a petition for reinstatement of his driver’s license with the First Judicial

District Court, Broadwater County, under the same theory. The Justice Court denied

Wagner’s motion and Wagner entered a guilty plea subject to his right to appeal the denial.

The District Court denied Wagner’s petition for reinstatement and dismissed his subsequent

appeal from Justice Court under the theory of res judicata. Wagner filed independent appeals

from each proceeding. We have consolidated the cases on appeal and affirm the judgment

of the District Court.

¶2 Wagner presents three issues on appeal. We rephrase the sole dispositive issue as

whether Officer Janes’ encounter with Wagner at the pay phone constituted an investigative

stop.

BACKGROUND

¶3 At approximately 11:00 a.m. on June 17, 2001, motorist Darwin Belcourt witnessed

a red Ford Probe, bearing Montana license plate number 5A30553, traveling west on

Interstate 90, near Belgrade, Montana, drive off of the road in a construction zone, return to

the road, and then proceed to travel west in an erratic manner. Belcourt followed the vehicle

for approximately twenty miles to a Town Pump at the junction of Interstate 90 and U.S. 287

near Three Forks, Montana. Belcourt noted that a lone male occupant exited the vehicle and
3

staggered into the building. Using a cell phone, Belcourt phoned 911 to report his

observations. Belcourt remained at the Town Pump until law enforcement arrived.

¶4 The 911 operator conveyed the report to Montana Highway Patrol Officers Cal Janes,

Jim Hunter, and Mike Swingley at approximately 11:18 a.m. Officer Janes arrived at the

Town Pump around 11:38 a.m. and Officers Hunter and Swingley arrived shortly thereafter.

Upon his arrival, Officer Janes identified an unoccupied vehicle matching the description and

license plate number of the vehicle reported by Belcourt. Officer Janes remained outside to

establish contact with Belcourt while Officer Hunter and Sergeant Swingley proceeded

inside. A short time later, Officer Janes joined Hunter and Swingley.

¶5 Once inside, the officers observed a lone male talking on a pay phone. The officers

also noted that the male “continually swayed” as he stood at the phone. The officers initiated

contact with the individual, later determined to be Wagner, and immediately discerned an

odor of alcohol emanating from Wagner’s person. The officers requested that Wagner speak

with them outside and Wagner complied. As the parties proceeded to the patrol cars, Officer

Janes observed Wagner’s staggering gait. Further, Wagner voluntarily apologized to Officer

Janes and admitted that he should not have proceeded to drive given his prior consumption

of alcohol.

¶6 At the patrol car, Wagner performed poorly on the horizontal gaze nystagmus test,

incorrectly recited the alphabet, and admitted several times that he was intoxicated. Officer

Janes read Wagner the preliminary breath test implied consent form but Wagner declined to

submit a breath sample for analysis. Officer Janes subsequently transported Wagner to the

Broadwater County Sheriff’s Office where Wagner refused to perform any field sobriety
4

tests or provide a breath sample. Officer Janes seized Wagner’s driver’s license and cited

him for driving under the influence of alcohol, second offense.

¶7 On June 29, 2001, Wagner filed a petition with the District Court challenging the

suspension of his driver’s license. Wagner contested whether Officer Janes procured the

requisite particularized suspicion prior to conducting the alleged investigative stop. More

specifically, Wagner argued that Officer Janes did not sufficiently corroborate Belcourt’s

report of erratic driving. Simultaneously, Wagner moved the Broadwater County Justice

Court to dismiss the DUI charge for the same reasons submitted in the reinstatement

proceedings, lack of particularized suspicion. On August 28, 2001, the Justice Court denied

Wagner’s motion. The Justice Court continued the criminal proceedings pending resolution

of the reinstatement proceedings.

¶8 On October 9, 2001, the District Court denied Wagner’s petition for reinstatement of

his driver’s license. The District Court concluded that Officer Janes sufficiently

corroborated Belcourt’s report and, therefore, satisfied the particularized suspicion

requirements. On October 19, 2001, Wagner pled guilty to the offense in Justice Court under

a reservation of rights. On October 25, 2001, Wagner appealed the Justice Court’s denial

of his motion to dismiss to the District Court. On November 30, 2001, the District Court

rejected Wagner’s appeal concluding that “the District Court’s Order on Petition for Review

dated October 9, 2001, is res judicata and dispositive of Defendant’s Notice of Appeal to the

District Court” in the criminal proceeding.
5

¶9 Wagner has perfected two separate appeals, one from the reinstatement proceedings

and one from the criminal proceedings. As the separate appeals contemplate identical issues,

we hereby consolidate the cases on appeal.

STANDARD OF REVIEW

¶10 We review a district court’s denial of a petition for reinstatement of a driver’s license

to determine whether the court’s findings of fact are clearly erroneous and whether its

conclusions of law are correct. Anderson v. State Dept. of Justice (1996), 275 Mont. 259,

262, 912 P.2d 212, 214. 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. Pratt (1997), 286 Mont. 156,

169, 951 P.2d 37, 45.

DISCUSSION

¶11 Did Officer Janes’ encounter with Wagner at the pay phone constitute an investigative

stop?

¶12 Wagner contends that a reasonable person would not feel free to leave when a police

officer approaches the individual at a pay phone and requests that the individual accompany

the officer to a patrol car for questioning. Since a reasonable person would not feel free to

leave, Wagner insists that the encounter, by definition, constitutes an investigative stop.

¶13 For an officer to effect an investigative stop based on a citizen informant’s report: (1)

the citizen informant must identify himself or herself to law enforcement, (2) the report must

be based upon the informant’s personal observations, and (3) the officer must corroborate

the informant’s information by observing illegal activity or finding the person, the vehicle,

and the vehicle’s location substantially as described by the informant. See Pratt, 286 Mont.
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at 165, 951 P.2d at 42-43. Wagner concedes that the State established the first two elements

of the Pratt test. However, Wagner maintains that Officer Janes failed to sufficiently

corroborate Belcourt’s report. Therefore, according to Wagner, Officer Janes unlawfully

initiated an investigative stop precipitating suppression of the inculpatory evidence.

¶14 The State’s response is two-fold. First, the State argues that “mere police questioning

does not amount to a ‘seizure’ requiring particularized suspicion.” The State submits that

the initial encounter, encompassing the outside discussion, did not constitute an investigative

stop. The State contends that the investigative stop in this case occurred after Wagner’s

voluntary confession, a confession which provided the requisite particularized suspicion for

the ensuing stop. Alternatively, if we declare that Officer Janes effected an investigative stop

upon engaging Wagner at the pay phone, the State contends that Officer Janes obtained the

requisite particularized suspicion prior to initiating the stop.

¶15 The State presented its same two-fold analysis to the District Court in the

reinstatement proceedings. The District Court entered judgment in favor of the State based

on the State’s alternative position. However, the District Court’s order contains no reference

to the State’s threshold challenge, i.e., “whether the [initial] encounter [was] merely a

‘voluntary encounter’ or an ‘investigative stop.’”

¶16 Section 46-5-401, MCA, 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.
7

As the statute indicates, a peace officer must have a particularized suspicion of wrongdoing

to conduct an investigative stop. Therefore, if we conclude that the pay phone encounter

constituted an investigative stop, we must examine the factors articulated in Pratt to ascertain

whether Officer Janes obtained the requisite particularized suspicion. If we conclude that

the pay phone encounter did not constitute a stop, then we must determine whether Officer

Janes obtained the requisite particularized suspicion after initiating contact but prior to

conducting a stop. Therefore, the critical inquiry in this case is whether Officer Janes seized

or stopped Wagner, and, if so, at what juncture?

¶17 In United States v. Mendenhall (1980), 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497,

two agents from the Drug Enforcement Administration (“DEA”) approached Mendenhall as

she disembarked from a plane at the Detroit Metropolitan Airport to investigate a drug

trafficking suspicion. The agents identified themselves as federal narcotics agents and

requested to see Mendenhall’s identification and airline ticket. The agents discovered a

discrepancy between the identities contained in the driver’s license and airline ticket. The

agents returned the information to Mendenhall and asked if she would accompany them to

the airport DEA office for further questioning. Mendenhall complied.

¶18 At the office, the agents requested Mendenhall’s consent to search her person and

handbag. The agents informed her that she had the right to decline the search but

Mendenhall acquiesced. Following the consent, a female officer searched Mendenhall’s

person and discovered heroin. The agents arrested Mendenhall for possession of heroin with

the intent to distribute it. Mendenhall moved the trial court to suppress the evidence on the

grounds that the agents acquired it through an unconstitutional search and seizure. The trial
8

court denied Mendenhall’s motion and a jury subsequently convicted her of the offense. The

Sixth Circuit Court of Appeals reversed the conviction and the United States Supreme Court

granted certiorari to consider whether the agents violated Mendenhall’s Fourth Amendment

rights.

¶19 The Supreme Court first analyzed the threshold “seizure” question, similar to the one

presented sub judice. The Supreme Court noted, “if the respondent was ‘seized’ when the

DEA agents approached her on the concourse and asked questions of her, the agents’ conduct

in doing so was constitutional only if they reasonably suspected the respondent of

wrongdoing.” Mendenhall, 446 U.S. at 551-52, 100 S.Ct. at 1875-76. The Supreme Court

next observed that “not all personal intercourse between policemen and citizens involves

‘seizures’ of persons. Only when the officer, by means of physical force or show of

authority, has in some way restrained the liberty of a citizen may we conclude that a

‘seizure’ has occurred.” Mendenhall, 446 U.S. at 552, 100 S.Ct. at 1876. Additionally, the

Supreme Court stated “[a]s long as the person to whom questions are put remains free to

disregard the questions and walk away, there has been no intrusion upon that person’s liberty

or privacy as would under the Constitution require some particularized and objective

justification.” Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877.

¶20 Based on the foregoing, the Supreme Court concluded that “a person has been ‘seized’

within the meaning of the Fourth Amendment only if, in view of all of the circumstances

surrounding the incident, a reasonable person would have believed that he was not free to

leave.” Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877. The Court determined that no

“seizure” of Mendenhall occurred. The Court found the following facts determinative: the
9

events took place in a public concourse, the agents wore no uniforms and displayed no

weapons, the agents did not summon Mendenhall to their presence, the agents requested

rather than demanded to see Mendenhall’s identification, the agents requested rather than

demanded that Mendenhall accompany them to the office, and the agents did not utilize

threats or any show of force to compel Mendenhall’s compliance.

¶21 Based on the above facts, the Supreme Court concluded that “nothing in the record

suggests that the respondent had any objective reason to believe that she was not free to end

the conversation in the concourse and proceed on her way, and for that reason we conclude

that the agents’ initial approach to her was not a seizure.” Mendenhall, 446 U.S. at 555, 100

S.Ct. at 1878. Following this initial approach, the agents obtained the inculpatory evidence

through consensual means. Accordingly, the Supreme Court reversed the Sixth Circuit Court

of Appeals. Mendenhall, 446 U.S. at 560, 100 S.Ct. at 1880.

¶22 This Court first referenced Mendenhall in State v. Jenkins (1981), 192 Mont. 539, 629

P.2d 761. In Jenkins, two officers approached Jenkins in a bar and told him that he fit the

description of a robbery suspect. After patting him down, the officers asked if Jenkins would

accompany them to a meeting with one of the witnesses to the robbery. Jenkins voluntarily

traveled with the officers to the rendevous point in an unmarked police car. At that point,

Jenkins was not restrained or placed under arrest. At the meeting, the witness identified

Jenkins as the perpetrator and the officers arrested him for attempted robbery.

¶23 Jenkins pled not guilty to the offense and moved to suppress the identification.

Jenkins argued, in part, that “his journey with the officers was involuntary because, in view

of all the circumstances surrounding the incident, a reasonable person would have believed
10

that he was not free to leave.” Jenkins, 192 Mont. at 543, 629 P.2d at 764. The district court

denied Jenkins’ motion and a jury subsequently convicted him of attempted robbery. Jenkins

appealed the denial and conviction to this Court.

¶24 This Court concluded that police officers “must be allowed to approach and question

persons who fairly resemble descriptions of perpetrators of criminal acts.” Jenkins, 192

Mont. at 544, 629 P.2d at 764. Therefore, based on the facts presented, we held the initial

encounter to be lawful. As for the officers’ subsequent request that Jenkins accompany them

to the meeting, we concluded:

[Officer] Warrington testified that after the pat down, he asked Jenkins if he

would “mind going” with the officers. Warrington further testified that

Jenkins replied that he did not mind because they had the wrong man. The rest

of the detectives’ testimony indicated that Jenkins was not handcuffed, further

searched, or otherwise coerced until after Rains made her identification.

When Jenkins asked the detectives if he was under arrest, they replied that he

was not. Jenkins argues that his placement in the backseat of a two-door

police vehicle was a restriction amounting to a seizure. However, the point is

whether his presence there was voluntary. The fact that he was there is little

or no evidence that he was in any way coerced. We find that the record

supports the District Court’s conclusion that Jenkins agreed to accompany the

officers and had not been “arrested” prior to his formal arrest upon

identification by Rains. Jenkins was not illegally seized, and the identification

testimony was not suppressible because obtained in violation of his Fourth

Amendment rights.

Jenkins, 192 Mont. at 544-45, 629 P.2d at 764 (citation omitted).

¶25 Several years later, we again referenced Mendenhall in State v. Clayton, 2002 MT 67,

309 Mont. 215, 45 P.3d 30. In Clayton, officers observed a vehicle leaving a bar in the early

morning hours and decided to follow it. Shortly thereafter, the vehicle turned onto a side

street, pulled to the right side of the road, and came to a complete stop. The officers pulled

in behind the vehicle and shined a spotlight into it to ascertain the number of occupants in
11

the vehicle. The driver immediately exited the vehicle and fled. Officers ultimately

apprehended the driver, Clayton, and charged him with driving under the influence of

alcohol, fourth offense, obstructing a peace officer, and driving with a suspended or revoked

license. Clayton moved to suppress the inculpatory evidence acquired subsequent to the

allegedly illegal stop. The district court denied Clayton’s motion and Clayton pled guilty to

the offenses subject to his right to appeal the denial.

¶26 On appeal, Clayton argued that the officers “seized” him when they pulled in behind

his vehicle and shined a light into the interior. Clayton contended that the seizure was

unlawful as the officers did not have a particularized suspicion of wrongdoing to conduct the

stop.

¶27 We observed that “[t]his case presents the unique question of when an investigative

stop occurred. . . . The question is whether the officers had effected a stop prior to . . . [when

Clayton fled] and, if so, whether they had a particularized suspicion at that time.” Clayton,

¶ 19. We then noted this Court’s adoption and application of the Mendenhall test. See

Jenkins, 192 Mont. at 543, 629 P.2d at 764; State v. Roberts, 1999 MT 59, ¶ 16, 293 Mont.

476, ¶ 16, 977 P.2d 974, ¶ 16; State v. Carlson, 2000 MT 320, ¶ 20, 302 Mont. 508, ¶ 20,

15 P.3d 893, ¶ 20. We stated that the “test is necessarily imprecise and will vary depending

on the setting in which the conduct occurs.” Clayton, ¶ 23. Nevertheless, we reaffirmed the

prior rulings that “no seizure occurs unless, in view of all the circumstances surrounding the

incident, a reasonable person would have felt that he was not free to leave.” Clayton, ¶ 22.
12

¶28 Based on the circumstances presented, we concluded that no stop occurred prior to

Clayton exiting his vehicle. Clayton, ¶ 27. We arrived at this conclusion based on the

following facts:

The police officers slowing down and coming to a stop behind

Clayton’s vehicle and shining a spotlight into his vehicle do not amount to

such a show of authority that a reasonable person would have believed he or

she was not free to leave. The police officers did not initiate the stop, but only

pulled in behind Clayton and shined the spotlight to determine how many

people were in the vehicle. The officers did not have their sirens or

emergency lights on and the encounter took place on a public street.

Additionally, the officers did not exit their vehicle and approach Clayton.

Clayton, ¶ 27.

¶29 On appeal, Wagner attempts to distinguish the above cases and analogize the facts at

bar to those present in Roberts. In Roberts, following a citizen report regarding a potential

drunk driver, a police officer identified and trailed the subject vehicle. The officer observed

no erratic driving or traffic law infractions. The officer followed the vehicle to the driver’s

home and pulled in behind the vehicle on the home’s single-lane driveway. The officer

immediately engaged the driver and, following an investigation, arrested the driver for

driving under the influence of alcohol.

¶30 Analogizing the facts presented in Roberts to United States v. Kerr (9th Cir. 1987), 817

F.2d 1384, we stated:

In this case, as in Kerr, while Officer Oster could have merely parked his

patrol car on the shoulder in front of 107 Daly Ave., he chose to instead pull

into the one-lane driveway and block Roberts’ exit, thereby physically

constraining Roberts’ means and direction of travel. Furthermore, Officer

Oster was armed and in uniform, and his show of authority in immediately

exiting his patrol car and approaching Roberts added to the official nature of

the encounter.
13

Roberts, ¶ 16. We held that when the officer pulled into the single-lane driveway, blocking

Roberts’ exit, “he precipitated an investigative stop–amounting to a Fourth Amendment

'seizure' of the person–during which a reasonable person would not have felt free to simply

leave.” Roberts, ¶ 16.

¶31 As Wagner was not subjected to the constraints present in Roberts, we believe that

the facts at bar are more analogous to Mendenhall, Jenkins, and Clayton. Here, the officers

did not initiate a stop of Wagner’s vehicle. Instead, Wagner exited the Interstate, parked at

the Town Pump, and entered the building on his own volition. As in Mendenhall, Officer

Janes did not summon Wagner to his presence–the encounter took place at a public venue

of the defendant’s choosing. Officer Janes subsequently requested that Wagner accompany

him outside for further questioning. The evidence in the record does not indicate that Officer

Janes compelled compliance with the request through demand, coercion, threat, or show of

force. In short, there is no evidence in the record which indicates that the officers restrained

Wagner’s liberty, by means of physical force or show of authority. To the contrary, the

evidence suggests that Wagner was free to disregard Officer Janes’ request and walk away

at any time during the initial encounter. In view of all of the circumstances surrounding the

incident, we hold that the officers’ initial actions did not amount to such a show of authority

that a reasonable person would have believed he or she was not free to leave. Therefore, the

encounter at the pay phone did not constitute an investigative stop.

¶32 Following the initial encounter, Officer Janes’ personal observations, coupled with

Wagner’s admissions, provided the requisite particularized suspicion to conduct the ensuing

investigative stop. As indicated above, the District Court did not address the threshold
14

“seizure” issue. The District Court analyzed the issues presented pursuant to Pratt.

Nevertheless, we have on several occasions reiterated that we will affirm a district court’s

decision when it reaches the correct result for the wrong reasons. See State v. Francis, 2001

MT 233, ¶ 16, 307 Mont. 12, ¶ 16, 36 P.3d 390, ¶ 16. Based on our answer to the threshold

“seizure” question, we need not consider the issues presented by the parties with respect to

Pratt.

¶33 Affirmed.

/S/ JIM REGNIER

We Concur:

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART
15

Justice Terry N. Trieweiler specially concurring.

¶34 I concur with the result of the majority Opinion. However, I would arrive at that result for

different reasons. 

¶35 I agree that the correct test for whether a person has been "seized" within the meaning of the

Fourth Amendment or Montana's independent right to be free from unreasonable searches and

seizures found at Article II, Section 11 of the Montana Constitution depends on whether "in view of

all the circumstances surrounding the incident, a reasonable person would have believed that he was

not free to leave." Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877. However, I disagree with the

majority's conclusion that no seizure occurred in this case when two armed and uniformed law

enforcement officers approached the Defendant in a convenience store while he was talking on the

phone and, after determining his identity, asked that he come with them. To suggest that any

reasonable person would have felt free to ignore the officers' "request" under those circumstances is

to ignore the coercive reality of the circumstances. How was that request any different than when

a patrol car pulls up behind a vehicle on the highway with its flashing light activated? Surely the latter

example is just a "request" to pull over. Yet for years this Court has held that particularized suspicion

is required for such a "request." In fact, to suggest that people are free to ignore what Wagner was

requested to do and proceed on their way under the circumstances would not be in the best interests

of law enforcement. 

¶36 The U.S. Supreme Court's decision in Mendenhall, which is relied on by the majority, is

distinguishable on its facts. (Neither of the law enforcement officers in that case were uniformed or

displaying weapons and the encounter occurred in a large airport which was very public.) If this

result could be justified under Mendenhall, then I would apply a more realistic test for what

constitutes a seizure for purposes of applying Article II, Section 11 of the Montana Constitution.
16

Perhaps people in Montana are just more reasonable and when told by two armed and uniformed

highway patrolmen to accompany them and would not think of just walking away or ignoring them.

¶37 As far as the prior Montana case law cited in the majority Opinion, it is certainly hard to find

a consistent thread for the meaning of an investigative stop when considering this case together with

our prior decision in Roberts. In that case, without any directive from law enforcement officers, we

held that the mere manner in which they parked their car constituted a seizure. I think most

reasonable people would be more concerned with what they were told by police officers than where

they happen to park their car. 

¶38 Having said all that, I would arrive at the same result as the majority because I would

conclude that by the time the officers in this case received a report from an identified citizen informant

which was based on that informant's personal observation and then observed the Defendant's car

where they were told it would be, and observed the Defendant on the phone in the small convenience

store where the informant said he would be, "continually swaying" with an odor of alcohol, they had

all the particularized suspicion that was necessary in order to make an investigative stop.

¶39 For these reasons, which are different than those set forth in the majority Opinion, I would

affirm the judgments in the District Court.

/S/ TERRY N. TRIEWEILER