No. 03-116

IN THE SUPREME COURT OF THE STATE OF MONTANA

2004 MT 329

STATE OF MONTANA, 

Plaintiff and Respondent, 

v.

JAMIE RAY GOURAS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and For the County of Glacier, Cause No. DC-01-35,

Honorable Marc G. Buyske, Presiding Judge

COUNSEL OF RECORD:

For Appellant: 

Terryl T. Matt, Attorney at Law, Cut Bank, Montana 

For Respondent:

Honorable Mike McGrath, Attorney General; John Paulson, 

Assistant Attorney General, Helena, Montana 

Larry Epstein, County Attorney, Cut Bank, Montana 

 Submitted on Briefs: September 18, 2003

 Decided: November 23, 2004

Filed:

__________________________________________

Clerk
2

Justice Jim Rice delivered the Opinion of the Court. 

¶1 Jamie Ray Gouras (Gouras) appeals from the judgment, entered by the Ninth Judicial

District Court, Glacier County, finding him guilty of possession of dangerous drugs, a

felony, in violation of § 45-9-103(1), MCA, and challenges the District Court’s denial of his

suppression motion. We affirm. 

¶2 We rephrase the issues on appeal as follows:

¶3 1. Did the District Court err in denying Gouras’s motion to suppress evidence on the

grounds that officers lacked a particularized suspicion to make an investigatory stop of the

vehicle in which Gouras was a passenger?

¶4 2. Did the District Court err in denying Gouras’s motion to suppress evidence on the

grounds that the investigatory stop exceeded its scope and purpose?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 On May 24, 2001, Glacier Country Sheriff Gary Racine (Sheriff Racine) received a

telephone call from Terry Wellman (Wellman), the owner of the War Bonnet Inn (Inn) in

Browning, Montana, concerning three Inn guests, including Gouras, who had just checked

out. Wellman advised Sheriff Racine that his housekeeping staff had reported finding

remnants of dangerous drugs and drug paraphernalia in the room vacated by Gouras.

Wellman also indicated that the occupants of the room had checked out moments before and

were leaving in a small red vehicle with Washington State license plates, and further

indicated that the vehicle’s license plate had expired tags. Sheriff Racine requested Wellman

to secure the room, and stated that he was dispatching an officer to the Inn. 
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¶6 Sheriff Racine then contacted FBI Special Agent Brad Michael (Agent Michael), the

resident agent in Browning, and advised him of Wellman’s report. FBI Special Agent

Clinton Dalrymple (Agent Dalrymple), and Blackfeet Law Enforcement Criminal

Investigator Kyle Sinclair (Investigator Sinclair), who were present in Agent Michael’s office

at the time of Racine’s call, immediately left the office to attempt to locate the vehicle.

Agent Michael and another officer proceeded to the Inn, where they conducted an

investigation. Sheriff Racine also contacted Deputy Vernon Billedeaux (Deputy Billedeaux)

and directed him to Browning to assist with the investigation.

¶7 Upon Agent Michael’s arrival at the Inn, he obtained the consent of Wellman to

search the vacant room, where he discovered apparent marijuana stems and seeds on the floor

and table, as well as marijuana residue in the bathtub. He conducted field tests on the

evidence, which confirmed the presence of THC, the active ingredient in marijuana. In the

meantime, Agent Dalrymple and Investigator Sinclair located a red vehicle, with matching

Washington State plates and license number, in the vicinity of the Inn, and began to follow

the vehicle. Because he and Agent Dalrymple were in an unmarked vehicle, Investigator

Sinclair requested Montana Highway Patrol Officer Andrew Knapp (Officer Knapp) to

initiate a traffic stop of the suspect vehicle because it was believed to have expired license

plate tags. Knapp initiated the stop, and Agent Dalrymple, Investigator Sinclair, and Deputy

Billedeaux arrived at the scene moments later.

¶8 Upon Officer Knapp’s initial inquiry, he determined that Gouras was one of three

occupants in the vehicle. Upon inspection, the officers determined that the license plate on
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back had a current tag, but that the tag on the front license plate was expired. Unaware of

Washington State law, the officers contacted Washington State officials to determine whether

Washington law required current tags on both the front and rear license plates. In that

interim, Agent Michael radioed Agent Dalrymple and informed him of the drug evidence he

had obtained during the search of Gouras’s room at the Inn. Gouras and the other occupants

were then immediately arrested. The officers later learned that Washington law requires that

a registered vehicle have two license plates, but requires valid tags on the rear plate only. 

¶9 The officers secured the vehicle and conducted a drug dog sniff of the exterior, which

revealed the presence of drugs. The vehicle was then impounded and a search warrant

obtained. Pursuant thereto, the vehicle was searched and officers seized marijuana, a scale,

baggies, and evidence indicating that Gouras and his companions were removing the tobacco

from Swisher Sweet cigars and replacing the contents with marijuana. 

¶10 On June 6, 2001, Gouras was charged with criminal possession of dangerous drugs,

a felony, in violation of § 45-9-102(1), MCA; criminal possession with the intent to

distribute, a felony, in violation of § 45-9-103(1), MCA; and criminal possession of drug

paraphernalia, a misdemeanor, in violation of § 45-10-103, MCA.

¶11 On August 16, 2001, Gouras filed a motion to suppress evidence, which was denied

by the District Court after hearing. On October 9, 2002, pursuant to a plea bargain

agreement, Gouras pled guilty to criminal possession of dangerous drugs, reserving the right

to appeal the District Court’s denial of his suppression motion. He appeals. 
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STANDARD OF REVIEW

¶12 Our review of rulings on motions to suppress is twofold: first, we review the court’s

findings of fact to determine whether they are clearly erroneous, that is, whether the findings

are supported by substantial evidence, whether the district court misapprehended the effect

of the evidence, or whether the court is nevertheless left with a definite and firm conviction

that the district court made a mistake; second, we engage in a plenary review of the

conclusions of law to determine whether the district court’s interpretation of the law is

correct. State v. Martinez, 2003 MT 65, ¶ 19, 314 Mont. 434, ¶ 19, 67 P.3d 207, ¶ 19.

DISCUSSION

¶13 Gouras first argues the District Court erred by denying his motion to suppress

evidence obtained during the search of his vehicle because the investigatory stop was not

based upon a particularized suspicion. He asserts that the information provided by Wellman,

as a citizen informant, failed to satisfy the three-part test of reliability established in State

v. Pratt (1997), 286 Mont. 156, 165, 951 P.2d 37, 42-43. Alternatively, he argues that if

Officer Knapp had a particularized suspicion to initiate the investigatory stop, it was

nonetheless unlawful because officers extended the stop longer than necessary to effectuate

its original purpose. 

¶14 Did the District Court err in denying Gouras’s motion to suppress evidence on the

grounds that officers lacked a particularized suspicion to make an investigatory stop of

the vehicle in which Gouras was a passenger?

¶15 Whether a particularized suspicion exists at the time of an investigatory stop is a

question of fact that the district court determines by considering the totality of the
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circumstances confronting the officer at the time of the stop. State v. Hall, 2004 MT 106,

¶ 8, 321 Mont. 78, ¶ 8, 88 P.3d 1273, ¶ 8. Moreover, under § 46-5-401(1), MCA,

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.

¶16 Section 46-5-401(1), MCA, is a codification of this Court’s holding in State v. Gopher

(1981), 193 Mont. 189, 194, 631 P.2d 293, 296, wherein we adopted a two-part analysis set

forth in United States v. Cortez (1981), 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621. We

held that to establish a particularized suspicion, first, the State must show objective data from

which an experienced officer can make certain inferences, leading to, second, a resulting

suspicion that the occupant of the vehicle is or has been engaged in wrongdoing. Gopher,

193 Mont. at 194, 631 P.2d at 296. 

¶17 Gouras argues Officer Knapp did not have an objective basis to support his

particularized suspicion that Gouras and his companions had been or were engaged in

criminal activity in order to justify the investigatory stop. He asserts that the information

provided by Wellman, as a citizen informant, did not satisfy the requirements of the Pratt

holding, and was therefore unreliable, because Wellman did not personally observe the drug

evidence he reported. Rather, Wellman’s report of drug activity in the hotel room was based

on a second hand report from the Inn’s staff. Thus, Officer Dalrymple and Investigator

Sinclair’s observations of the suspect vehicle did not corroborate the information purported

by Wellman. 
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¶18 In Pratt, 286 Mont. at 165, 951 P.2d at 42-43, we held that when an officer receives

information from a citizen informant, the reliability of the informant’s information should

be assessed by three factors, including (1) whether the informant identifies himself, thus,

subjecting himself to criminal and civil liability if the report is false, (2) whether the report

is based upon the personal observations of the informant, and (3) whether the officer’s own

observations corroborated the informant’s information. See also State v. Elison, 2000 MT

288, ¶ 16, 302 Mont. 228, ¶ 16, 14 P.3d 456, ¶ 16 (“[w]here an investigative stop stems from

the tip of a citizen informant, this Court has adopted a three-part test to determine the

reliability of the citizen informant’s information” and setting forth the Pratt test).

¶19 We need not address Gouras’s initial contention that Officer Knapp’s stop was

improperly based on second-hand drug-related information reported by Wellman’s employee,

because the investigatory stop was not based on the possible drug activity, but on Wellman’s

report that the vehicle had expired tags. Thus, we take up Gouras’s assertion that the

investigatory stop, premised upon a reported expired license tag, fails to comply with the

three-factor Pratt analysis.

¶20 First, Wellman provided his identity and his status as the Inn’s proprietor to Sheriff

Racine, thereby subjecting himself to potential civil and criminal liability if his information

had been false, Pratt, 286 Mont. at 165, 951 P.2d at 42-43, and satisfying the first factor.

About the second and third factors, the District Court determined as follows:

Criminal Investigator Sinclair knew that a reliable citizen had told Sheriff

Racine . . . [that he] had personally observed a possible criminal act–operating

a motor vehicle with expire[d] license plates. Criminal Investigator Sinclair
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corroborated this information when he observed the vehicle traveling away

from the motel as reported by the citizen informant. The totality of these

circumstances formed the requisite particularized suspicion necessary to an

investigatory stop that Criminal Investigator Sinclair effected through the

instrumentality of Montana Highway Patrol Officer Knapp.

Wellman provided information about his exact location, and reported that he had just

personally observed Gouras and his companions exit the Inn’s parking lot in a red vehicle

with Washington plates which had expired tags. Gouras does not contest that Wellman made

this report. Further, regarding the third factor, Wellman’s report was corroborated when

Agent Dalrymple and Investigator Sinclair observed the described vehicle, including license

plate number, in the vicinity of and traveling away from the Inn. See Pratt, 286 Mont. at

166, 951 P.2d at 43 (“corroboration of a tip occurs when the officer either observes illegal

activity or finds the person, the vehicle, and the vehicle’s location substantially described by

the informant”). Therefore, the requirements for reliability were met and Wellman’s

information formed the basis for a particularized suspicion to initiate the investigatory stop.

¶21 Gouras also argues that Officer Knapp, as the officer who initiated the investigatory

stop, must have personally assessed the reliability of the informant’s tip before making the

stop. He contends that personal observation by Officer Knapp was necessary to support a

finding of particularized suspicion. We disagree.

¶22 This Court has held that an officer who is unaware of the factual basis for a

particularized suspicion may make an investigatory stop upon a directive or request for

action from another officer. State v. Olmsted, 1998 MT 301, ¶ 34, 292 Mont. 66, ¶ 34, 968

P.2d 1154, ¶ 34; see also Boland v. State (1990) 242 Mont. 520, 524, 792 P.2d 1, 3,
9

overruled on other grounds by Bush v. State, Dep’t of Justice, 1998 MT 270, 291 Mont. 359,

968 P.2d 716. In these situations, the directing officer’s knowledge of the underlying facts

and circumstances is imputed to the acting officer, with the rationale being that the officer

is entitled to assume that whoever issued the directive or request had a particularized

suspicion. Pratt, 286 Mont. at 166, 951 P.2d at 43. 

¶23 Therefore, Gouras’s argument that Officer Knapp must personally assess the

reliability of Wellman’s tip is unpersuasive. Officer Knapp, as the acting officer, could

reasonably rely on the request to stop by Investigator Sinclair, who had corroborated the

information relayed from Wellman through Sheriff Racine and Agent Michael. Based on the

information provided by Wellman, the officers had a particularized suspicion of wrongdoing.

Similar to Pratt, where the Court held that the officer making the stop had particularized

suspicion to do so, although that officer did not personally witness any criminal activity and

was only relying on information supplied by dispatch, here, Investigator Sinclair, by timely

identifying the suspect vehicle and corroborating the information relayed through Sheriff

Racine, had a particularized suspicion to initiate an investigatory stop, and properly

requested Officer Knapp to make the stop. We thus conclude that the District Court properly

denied the motion to suppress.

¶24 Did the District Court err in denying Gouras’s motion to suppress evidence on the

grounds that the investigatory stop exceeded its scope and purpose?

¶25 Gouras next challenges the duration of the investigatory stop, arguing the officers

unlawfully exceeded the scope necessary to effectuate the original purpose, pursuant to
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Section 45-5-401, 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.

Section 46-5-403, MCA, provides:

Duration of a stop. A stop authorized by 46-5-401 or 46-5-411 may not last

longer than is necessary to effectuate the purpose of the stop.

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§§ 46-5-401 and -403, MCA.1 However, Gouras failed to present this argument in his

suppression motion and the supporting brief, instead raising it for the first time in the

concluding paragraphs of his reply brief, as an alternative basis for suppressing the State’s

evidence. Further, Gouras did not make this argument in the supplemental brief he filed after

the suppression hearing. 

¶26 “The general rule is that issues not raised before the trial court and new legal theories

are not considered by this Court on appeal because it is unfair to fault the trial court on an

issue it was never given an opportunity to consider.” State v. Shook, 2002 MT 347, ¶ 19, 313

Mont. 347, ¶ 19, 67 P.3d 863, ¶ 19 (citing Unified Indus., Inc. v. Easley, 1998 MT 145, ¶ 15,

289 Mont. 255, ¶ 15, 961 P.2d 100, ¶ 15). The transcript reveals that minimal evidence was

introduced in regard to the duration of the stop, and further, that this testimony was

contradictory. The District Court did not attempt to resolve this factual question, and,

importantly, did not address the issue in its order. Thus, we conclude that the issue was not
11

sufficiently raised to bring it to the attention of the District Court, and, therefore, was not

preserved for appeal. Therefore, we decline to address it.

¶27 Affirmed.

/S/ JIM RICE

We concur:

/S/ KARLA M. GRAY

/S/ PATRICIA O. COTTER

/S/ W. WILLIAM LEAPHART

/S/ JOHN WARNER