No. 02-152 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 282 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

MATTHEW NILES, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Ted O. Lympus, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Daniel R. Wilson, Measure & Wilson, P.C., Kalispell, Montana 

For Respondent: 

Hon. Mike McGrath, Attorney General; Carol E. Schmidt, 

Assistant Attorney General, Helena, Montana 

Sean Frampton, City Attorney, Whitefish, Montana 

Submitted on Briefs: July 25, 2002 

 Decided: December 10, 2002 

Filed: 

__________________________________________ 

Clerk
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Justice Terry N. Trieweiler delivered the Opinion of the Court. 

¶1 The Defendant, Matthew Niles, was charged in Whitefish City 

Court with obstructing a police officer and being a minor in 

possession of alcohol. Niles moved to suppress evidence gathered 

following his detention and arrest on grounds that the arresting 

officer had insufficient particularized suspicion to detain him. 

The City Court denied Niles' motion to suppress. Niles appealed 

the City Court's decision to the District Court where the City 

Court's decision was affirmed. Niles appeals the order of the 

District Court. We affirm the District Court. 

¶2 The sole issue on appeal is whether the District Court erred 

when it concluded that the arresting police officer had a 

particularized suspicion to detain Niles. 

FACTUAL AND PROCEDURAL BACKGROUND 

¶3 On January 30, 2001, a convenience store clerk called 

Whitefish police to report that two young men had walked out of the 

store and that one of the young men had something hidden under his 

coat–possibly alcoholic beverages. The clerk described the men as 

18 or 19 years old, and wearing snowboarding gear and beanie-type 

hats. Niles was 18 years old but not wearing the described 

clothing. Police Officer Geno Cook drove to the store and 

identified three young men in an alley near the store, two of whom 

matched the clerk's description. Cook pulled his patrol car near 

one of the men described by the clerk and "cornered" him with his 

patrol car. After he did so, the other two males began walking 

away from Cook. Cook told Niles and the other male to stop, at 
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which point Niles and the other male began to run away. Niles was 

soon apprehended. During his interrogation of Niles, Cook learned 

that Niles had consumed alcohol earlier in the day. Cook obtained 

a breath sample from Niles, which tested positive for alcohol. 

Niles was charged with obstructing a peace officer in violation of 

§ 45-7-302(1), MCA, and possession of alcohol by a minor pursuant 

to § 45-5-624(1), MCA. Niles was not charged with theft. 

¶4 During these criminal proceedings, Niles moved to suppress 

evidence gathered following his detention based on his contention 

that the officer lacked a particularized suspicion sufficient to 

detain him. The City Court denied his motion. Niles entered 

conditional pleas of guilty on July 13, 2001, and appealed the 

order denying his motion to suppress to the District Court, which 

also denied the motion to suppress on December 7, 2001. 

STANDARD OF REVIEW 

¶5 Where the facts in the case are stipulated, we review denial 

of a motion to suppress evidence to determine whether the 

district court's conclusions of law are correct. State v. 

Devlin, 1999 MT 90, ¶ 7, 294 Mont. 215, ¶ 7, 980 P.2d 1037, ¶ 7. 

DISCUSSION 

¶6 Did the District Court err when it concluded that the 

arresting police officer had a particularized suspicion to detain 

Niles? 

¶7 The District Court denied Niles' motion to dismiss, based on 

its conclusion that Cook had sufficient particularized suspicion to 

detain Niles. The court concluded that Cook was responding to a 

reported crime of shoplifting, observed Niles in the company of two 
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males who matched the clerk's description of the alleged 

shoplifters, the three were in close proximity to the store, and 

Niles walked away when Cook "cornered" one of his companions. 

¶8 Niles contends that the District Court erred because there was 

a lack of objective data for Cook to assume that Niles had engaged 

in criminal activity, as required by § 46-5-401, MCA. Niles 

contends that Cook had no objective grounds to detain him since he 

did not fit the description of the suspects and was only in the 

presence of the suspects. Niles admits that he ran from Cook but 

points out that he did so only after Cook asked him to stop, and 

that that behavior cannot be considered to determine whether Cook 

had a particularized suspicion to detain him in the first place. 

¶9 The State contends that Cook did have enough objective 

information to detain Niles. The State notes that Cook was 

investigating a recently-reported crime in close proximity to the 

scene of the crime, that Niles was in the company of the two 

suspects when Cook spotted them, and that Niles and one of the 

suspects began walking away after Cook detained the other suspect. 

 The State asserts that Niles' attempt to avoid Cook during the 

detention of the first suspect was additional objective information 

which led to Cook's particularized suspicion and contends that 

State v. Bauer, 2001 MT 248, 307 Mont. 105, 36 P.3d 892, supports 

that conclusion. 

¶10 We have previously recognized that the Fourth Amendment of the 

United States Constitution and Article II, Section 11 of the 

Montana Constitution protect persons from unreasonable searches and 

seizures, including investigatory stops by police officers. State 
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v. Jarman, 1998 MT 277, ¶ 9, 291 Mont. 391, ¶ 9, 967 P.2d 1099, ¶ 

9. The requirement for particularized suspicion to conduct an 

investigatory stop is codified by statute. "Montana requires that 

a peace officer have 'a particularized suspicion that the person 

. . . has committed, is committing, or is about to commit an 

offense' before stopping that person." Bauer, ¶ 13 (quoting § 46-

5-401, MCA). To prove sufficient cause for a stop, the State must 

show: "(1) objective data from which an experienced officer can 

make certain inferences; and (2) a resulting suspicion that the 

person stopped is or has been engaged in wrongdoing." Bauer, ¶ 14. 

 Whether a particularized suspicion exists depends on the totality 

of the circumstances. Anderson v. State Dept. of Justice (1996), 

275 Mont. 259, 263, 912 P.2d 212, 214. 

¶11 With the objective data available to Cook, we conclude that an 

experienced officer could form a particularized suspicion that 

Niles was engaged in criminal activity. Cook was dispatched to 

investigate a shoplifting report from an identified store clerk, 

the store clerk provided descriptions of approximate age and 

clothing of the two suspects, and within minutes of the store 

clerk's report to the police, Cook discovered Niles with two young 

males matching the store clerk's description of the suspects in 

close proximity to the convenience store. There is little doubt or 

dispute that Cook had a particularized suspicion sufficient to 

detain the suspect matching the store clerk's description. As Cook 

did so, he observed that Niles walked away from his police vehicle 

in the company of the other suspect who matched the clerk's 

description. All of this data permitted Cook, an experienced 
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officer, to make reasonable inferences and form a particularized 

suspicion that Niles was or had engaged in criminal activity with 

the other two suspects. 

¶12 Niles' reliance on State v. Broken Rope (1996), 278 Mont. 427, 

925 P.2d 1157, to suggest that Cook could not have formed a 

particularized suspicion as a matter of law is unpersuasive. In 

Broken Rope, the defendant was a passenger in a vehicle which 

police learned was owned by a person who was the subject of an 

outstanding arrest warrant. Police followed the suspect (the 

driver of the vehicle) and Broken Rope to a convenience store. The 

police observed that after the suspect and Broken Rope noticed the 

police officers, the two would not get back into their car, used a 

pay telephone, stared at the officers, and repeatedly put their 

hands in their pockets. No crime was being investigated. Nor was 

one committed in the officers' presence. When the officers 

approached and detained the suspect, they also detained and 

arrested Broken Rope. We concluded that Broken Rope's conduct 

prior to the detention (e.g. using a phone, entering a store, and 

placing hands in his pockets) was lawful and did not establish a 

particularized suspicion. Broken Rope, 278 Mont. at 432, 925 P.2d 

at 1160. Unlike the situation in Broken Rope, Niles was in the 

company of individuals matching the descriptions of two people who 

were reported to have committed a crime. They were all in close 

proximity to the crime scene shortly after the crime was reported 

and Cook was actively investigating the crime report. When Cook 

detained one of the suspects, Niles walked away from him in the 

company of a second suspect. 
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¶13 In Bauer, we concluded that a particularized suspicion was 

justified where, early in the morning with few people walking 

around, police located the defendant in close proximity to a report 

of two people "messing with cars," and upon seeing the officers in 

their clearly-marked vehicle, the defendant ran away from police. 

Bauer, ¶ 16. While the facts of Bauer are also distinguishable 

from those in this case, certain similarities are important. For 

example, the fact that the police report did not provide a physical 

description of the defendant did not preclude the formation of a 

particularized suspicion when the defendant openly fled from the 

police. Bauer, ¶ 15. Here, Niles, while not physically described 

in the police report, was clearly associated with the two described 

suspects near the area of the crime, and while he did not run from 

Cook, he did walk away from Cook in the presence of a suspect and 

in such a manner that, under the totality of the circumstances, 

Cook could form a particularized suspicion that Niles was engaged 

in or had been engaged in criminal wrongdoing. 

¶14 For the foregoing reasons, the order of the District Court is 

affirmed. 

/S/ TERRY N. TRIEWEILER 

We Concur: 

/S/ KARLA M. GRAY 

/S/ JIM REGNIER 

/S/ PATRICIA COTTER 

/S/ W. WILLIAM LEAPHART