DA 07-0740

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 369

STATE OF MONTANA

(CITY OF GREAT FALLS),

 Plaintiff and Appellee,

 v.

KIMBRLI LAVON ROSS,

 Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. DC 06-536

Honorable Dirk M. Sandefur, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Kristi Blazer, Missouri River Law Office; Craig, Montana

For Appellee:

Hon. Mike McGrath, Montana Attorney General; Jonathan M. Krauss,

Assistant Attorney General; Helena, Montana

Brant S. Light, Cascade County Attorney; Great Falls, Montana

Chad G. Parker, City Attorney; Great Falls, Montana

Submitted on Briefs: September 3, 2008

 Decided: November 10, 2008 

Filed:

__________________________________________

Clerk

November 10 2008
2

Justice W. William Leaphart delivered the Opinion of the Court. 

¶1 Kimbrli Lavon Ross (“Ross”) pled guilty in Great Falls Municipal Court to a 

second offense of driving under the influence of alcohol (“DUI”). Under the terms of the 

plea agreement, Ross reserved the right to appeal the Municipal Court’s denial of her 

motion to suppress DUI evidence on the basis that the arresting officer did not have a 

particularized suspicion for an investigatory stop of Ross’s vehicle. The Eighth Judicial 

District Court, Cascade County, affirmed the order of the Municipal Court. Ross appeals. 

We affirm. 

¶2 The restated issue on appeal is whether the District Court erred in affirming the 

Municipal Court’s determination that the arresting officer had a particularized suspicion 

to justify the investigatory stop of Ross’s vehicle? 

STANDARD OF REVIEW 

¶3 We review a district court’s denial of a motion to suppress evidence to determine 

whether the district court’s finding that the officer had particularized suspicion to justify 

the investigatory stop is clearly erroneous and whether its conclusions of law are correct. 

State v. Loiselle, 2001 MT 174, ¶ 6, 306 Mont. 166, ¶ 6, 30 P.3d 1097, ¶ 6. A finding is 

clearly erroneous if it is not supported by substantial evidence, the court has clearly 

misapprehended the effect of the evidence, or this Court is left with a definite and firm 

conviction that the district court made a mistake. State v. Gilder, 1999 MT 207, ¶ 7, 295 

Mont. 483, ¶ 7, 985 P.2d 147, ¶ 7. 
3

BACKGROUND

¶4 On February 21, 2006, at approximately 7:40 p.m., Great Falls Police Officer 

Steven Scheer (“Officer Scheer”) made an investigatory stop of Ross’s vehicle on First

Avenue North at the intersection of Seventeenth Street North in Great Falls, Montana. 

After further investigation, Officer Scheer cited Ross for careless driving in violation of 

§ 61-8-302(1), MCA, open container in violation of § 61-8-460, and DUI, second 

offense, in violation of § 61-8-401, MCA. Ross appeared in Municipal Court in Great 

Falls and filed a motion to suppress evidence obtained after the investigatory stop on the 

basis that Officer Scheer lacked a sufficient particularized suspicion for the stop. After 

the Municipal Court denied the motion, Ross pled guilty and reserved her right to appeal 

the denial of her motion to suppress. All charges, except for the DUI charge, were 

dropped. Ross was ordered to pay $300 in fines and was sentenced to six months in the 

Cascade County Detention Center with all but 30 days suspended. 

¶5 The circumstances leading up to the investigatory stop were presented during the 

hearing before the Municipal Court. At the hearing, Officer Scheer testified that he 

observed Ross’s vehicle, a GMC Yukon, turn out of an alley from the 1400 block of 

Sixth Avenue onto Fifteenth Street. After turning onto Fifteenth Street, a two-lane, oneway street, Officer Scheer stated that he then observed the vehicle switch from the west 

lane to the east lane of travel. Officer Scheer then followed the vehicle and observed it 

swerve within the lane of traffic. Officer Scheer also testified that he observed the 

vehicle cross the dividing line between the lanes, but stated that it was “[p]robably 

minimal inches perhaps.” He also testified that he “observed the vehicle swerve within 
4

its lane touching both the dividing line and the fog line at certain points which is 

suspicious driving behavior.” Officer Scheer’s dash-mounted video camera recorded 

these maneuvers, which were shown during the hearing in the Municipal Court. 

¶6 In addition, Officer Scheer observed the vehicle travel appropriately through a 

green light at Central Avenue and stop properly for a red light at the intersection of 

Fifteenth Street and First Avenue North. Officer Scheer then testified that he observed 

the vehicle signal and make a right turn onto First Avenue North. While making the turn, 

according to Officer Scheer, the vehicle’s passenger side tires rubbed against the curb, 

causing it to rock back and forth. Officer Scheer’s video camera did not capture the turn, 

which he said was due to the fact that, unlike his eyes, the dash-mounted camera is 

unable to see around corners. After witnessing Ross’s vehicle make the turn, Officer 

Scheer activated the lights on his patrol car and proceeded to stop Ross’s vehicle. 

¶7 At the hearing on the motion to suppress the evidence obtained after the stop, Ross 

provided an explanation for the swerving witnessed by Officer Scheer, stating that she 

was trying to avoid manhole covers because “it makes your vehicle bounce . . .” She also 

stated, with regard to the manhole covers, that she typically tries to avoid them 

“[b]ecause its [sic] very bumpy with my vehicle and it makes it you know kind of swerve 

so I don’t like hitting them.” When asked on cross-examination whether her swerving 

was possibly due to her driving under the influence of alcohol, Ross stated that it was not 

and that, while she had been drinking at a friend’s house, she “did not think [she] was 

intoxicated.” Officer Scheer, however, testified that he did not have to avoid any 
5

manhole covers and that the careless driving ticket was based upon the swerving and the 

rubbing of the wheels. 

¶8 After reviewing the video from Officer Scheer’s patrol camera and listening to the 

testimony from Officer Scheer and Ross, the Municipal Court concluded that Officer 

Scheer had a particularized suspicion to stop Ross’s vehicle and that Ross’s explanation 

for the swerving (avoiding manhole covers) was not at issue in the case. Instead, the 

court stated that the issue was “whether that driving behavior could be construed to be 

sufficiently suspicious for an experienced officer to make the stop.” On appeal, the 

District Court concluded that the Municipal Court’s findings of fact were not clearly 

erroneous and that its “resulting conclusion of law that Officer Scheer conducted a lawful 

investigatory stop of Ross, ultimately resulting in a DUI arrest, [was] correct.” 

DISCUSSION

¶9 The Fourth Amendment of the United States Constitution and Article II, Section 

11 of the Montana Constitution protect persons against unreasonable searches and 

seizures, including brief investigatory stops of vehicles. Loiselle, ¶ 7 (citing State v.

Farabee, 2000 MT 265, ¶ 14, 302 Mont. 29, ¶ 14, 22 P.3d 175, ¶ 14). We have stated 

that “to make an investigatory stop, an officer must have a particularized and objective 

basis for suspecting the particular person of criminal activity.” Loiselle, ¶ 7. In State v. 

Gopher, 193 Mont. 189, 631 P.2d 293 (1981), we adopted the two-part test articulated by 

the United States Supreme Court in U.S. v. Cortez, 449 U.S. 411, 101 S. Ct. 690 (1981), 

to determine whether a police officer had a particularized suspicion to make an 

investigatory stop. In Gopher, we held that in order to demonstrate the existence of a 
6

particularized suspicion, the State must 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.” 193 Mont. at 194, 631 P.2d at 296; see also § 45-5-401(1), MCA 

(codifying the rule requiring particularized suspicion for investigatory stops). Finally, 

“whether a particularized suspicion for an investigatory stop exists is a question of fact 

which depends on the totality of the circumstances.” State v. Lafferty, 1998 MT 247, 

¶ 10, 291 Mont. 157, ¶ 10, 967 P.2d 363, ¶ 10.

¶10 Ross argues that Officer Scheer did not have a sufficient particularized suspicion 

to justify the investigatory stop of her vehicle on the night of February 21, 2006. 

Specifically, Ross claims that “the only driving behavior supporting particularized 

suspicion was weaving within a lane of traffic and crossing the line once by ‘inches 

perhaps.”’ Ross also argues that the additional “driving behaviors” (the immediate lane 

change and the turn onto First Avenue North that caused Ross’s tires to rub the curb) 

cited by the City were not found credible by the Municipal Court, and that the resulting 

swerving behavior was insufficient to establish a particularized suspicion of wrongdoing. 

Finally, Ross argues that the Municipal Court erred by relying “strictly on deviations 

from a straight line of travel” in finding a particularized suspicion, and that the District 

Court, in affirming the Municipal Court’s determination, erred by not restricting its 

review to whether the Municipal Court’s findings of fact were clearly erroneous. 

¶11 The State, on the other hand, contends that the District Court correctly affirmed 

the Municipal Court’s denial of Ross’s motion to suppress. According to the State, the 
7

totality of the circumstances in this case established objective data from which Officer 

Scheer could make certain inferences and a resulting suspicion of wrongdoing sufficient 

to justify an investigatory stop of Ross’s vehicle. Specifically, the State argues that 

“given Officer Scheer’s undisputed experience in traffic and DUI stops, and his specific, 

objective, and articulable observations, Ross’s undeniable weaving or swerving gave rise 

to a reasonable suspicion of both careless driving and potential DUI.” 

¶12 Ross cites this Court’s decisions in Lafferty and Morris v. State, 2001 MT 13, 304 

Mont. 114, 18 P.3d 1003, for the proposition that “driving on and over traffic lines” is 

insufficient particularized suspicion to justify an investigatory stop. Ross argues that 

Lafferty and Morris provide “clear guidance about the level of deviation from ‘perfect’ 

driving which is required to justify a stop.” The State, however, distinguishes the 

circumstances of this case from Lafferty and Morris by alleging that a finding of 

particularized suspicion failed in those cases “not because the deviations were minor, but 

because the ‘minor’ driving deviations observed did not raise suspicion of either a traffic 

infraction or DUI.” 

¶13 In Lafferty, the officer received an anonymous tip about a possible drunk driver. 

After identifying and following the vehicle for approximately one mile, the officer 

observed the vehicle “cross the fog line on the right side of the highway twice and drive 

on the fog line once . . . .” On appeal, we stated that the officer, without other relevant 

circumstances, “did not have facts supporting a particularized suspicion that Lafferty was 

committing an offense . . . .” In Morris, the officer witnessed a “vehicle ‘drift’ across the 

painted line separating the eastbound lanes of traffic, and then ‘drift’ and touch the fog 
8

line on the other side of the lane one or two times.” Based on this evidence alone, the 

officer initiated an investigatory stop of the vehicle. On appeal, we noted that the officer 

in Morris did not cite the driver of the vehicle with an offense other than DUI and held 

that the circumstances were insufficient to form a sufficient particularized suspicion to 

justify the stop. 

¶14 However, in Ross’s case, there are additional facts which distinguish it from our 

holdings in Lafferty and Morris. Officer Scheer testified that he “observed the vehicle 

swerve within its lane touching both the dividing line and the fog line . . . .” Officer 

Scheer also provided testimony that he observed the vehicle cross the dividing line. 

Further, Officer Scheer stated that he believed Ross’s driving was “suspicious driving 

behavior,” and that when Ross “made the right hand turn onto 1st Avenue North her 

wheels struck the curb,” which resulted in Officer Scheer stopping the vehicle. Finally, 

Officer Scheer stated that he believed “there was something distracting her driving 

ability” and that he normally would have stopped someone exhibiting similar driving 

behaviors. Finally, Officer Scheer testified that “[Ross] displayed common driving of 

people [he has] arrested for driving under the influence.” 

¶15 In its findings, the Municipal Court stated that “[a] viewing of the police car 

videotape shows that the defendant’s vehicle drifted to the right and corrected itself in a 

pronounced weaving maneuver on at least two occasions and weaved within the lane to a 

lesser extent on two other occasions.” In addition, the Municipal Court found that 

Officer Scheer had “made approximately 32 DUI arrests during the last year and that the 

swerving behavior that the defendant exhibited on the video was the type of behavior that 
9

he had observed in previous DUI stops. The Municipal Court also found that Officer 

Scheer cited Ross “for careless driving for swerving” and that “[a]fter further 

investigation the officer also issued the defendant a ticket for driving under the influence 

of alcohol.” Based on these findings, the Municipal Court concluded that Ross’s driving 

behavior was sufficiently suspicious for an experienced officer such as Officer Scheer to 

make the investigatory stop. 

¶16 Despite Ross’s claim that the Municipal Court rejected evidence from Officer 

Scheer that Ross’s tires hit the curb as it completed the turn onto First Avenue North, 

there is no evidence to support this contention. The Municipal Court stated the following 

in its findings of fact: 

The officer also testified that the defendant cut the corner at 15th Street and 

First Ave N. causing her tires to rub against the curb; the defendant 

disputed that testimony and the videotape did not show the maneuver. 

Contrary to Ross’s interpretation, the fact that the court recognized that the videotape did 

not show the bumping of the curb does not mean that the court thereby rejected the 

officer’s testimony that Ross’s tires rubbed the curb. Read in context, it is clear that the 

court accepted Officer Scheer’s testimony on this point. We do note that it would 

facilitate review of decisions if courts, in their fact finding would make declarative 

findings of fact, instead of merely reciting what a witness said. Such declarations of fact 

should, of course, be based upon testimony or evidence before the court. 

CONCLUSION

¶17 The Municipal Court’s finding that Officer Scheer had sufficient facts to create a 

particularized suspicion to justify the investigatory stop of Ross’s vehicle, which the 
10

District Court affirmed, was not clearly erroneous and its conclusions of law were 

correct. Therefore, we affirm the order of the District Court, denying Ross’s motion to 

suppress evidence arising from the investigatory stop.

/S/ W. WILLIAM LEAPHART

We concur: 

/S/ JIM RICE

/S/ JAMES C. NELSON

/S/ PATRICIA COTTER

/S/ JOHN WARNER