No. 05-588

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 118N

_______________________________________ TIMOTHY O’LEARY, Petitioner and Appellant,

v. STATE OF MONTANA, Respondent and Respondent.

______________________________________ APPEAL FROM: District Court of the Twelfth Judicial District, In and for the County of Hill, Cause No. DV 04-219 The Honorable David Rice, Judge presiding.

COUNSEL OF RECORD: For Appellant: Jeremy S. Yellin, Attorney at Law, Havre, Montana For Respondent: Hon. Mike McGrath, Attorney General; Joslyn Hunt, Assistant Attorney General, Helena, Montana Tamara Barkus, Havre City Attorney, Havre, Montana

____________________________________ Submitted on Briefs: May 3, 2006 Decided: May 31, 2006 Filed:

______________________________________ ClerkJustice Brian Morris delivered the Opinion of the Court. ¶1 Pursuant to Section I, Para graph 3(d)(v), Montana Supreme Court 1996 Internal Operating Rules, as amended in 2003, the following memorandum decision shall not be cited as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and its case title, Supreme Court cause number and disp osition shall be included in this Court's quarterly list of noncitable ca ses published in the Pacific Reporter and Montana Reports. ¶2 Appellant Timothy O’Leary (O’Leary) appeals from an Order of the Twelfth Judicial District Court, Hill County, denying his petition to reinstate his driver’s license based upon a lack of particularized suspicion to stop his vehicl e by the Havre City Police. O’Leary contends that the District Court erre d in concluding that Officer Ben Havron of the Havre Police Department, who stopped O’ Leary’s vehicle, possessed the requisite objective data to authorize such a stop pursuan t to § 46-5-401(1), MCA. We have held that for an investigatory stop to be reasonable, “an officer must have: 1) objective data

from which the officer can make certain inferences; and 2) a resulting suspicion that the person stopped is or has been engaged in wrongdoing.” State v. Fellers , 2004 MT 321, ¶ 21, 324 Mont. 62, ¶ 21, 101 P.3d 764, ¶ 21. ¶3 We evaluate the question of whether a particularized suspicion supports an investigatory stop in light of th e totality of the circumstances. Fellers , ¶ 21. We further have concluded that the “[o]bservation of a traffic offense is sufficient to establish a particularized suspicion.” State v. Loney , 2004 MT 204, ¶ 16, 322 Mont. 305, ¶ 16, 95 P.3d 691, ¶ 16. We also ha ve determined, however, that a particularized suspicion does

2not require an officer to be certain that an offense has been committed. State v. Britt , 2005 MT 101, ¶ 12, 327 Mont. 1, ¶ 12, 111 P.3d 217, ¶ 12. ¶4 We decide this case pursuant to Section I, paragraph 3(d) of our 1996 Internal Operating Rules, as amended in 2003, that provides for memorandum opinions. Officer Havron testified that he stopped O’Lear y’s vehicle because O’Leary had failed to illuminate his headlights. Officer Havron tes tified that the parki ng lights on O’Leary’s vehicle were illuminated, but his headlights were not. Officer Havron relied on his

observation of O’ Leary’s vehicle and his experience and familiar ity with the type of vehicle that O’Leary drove, in determini ng that O’Leary only had his parking lights

illuminated. Officer Havron further noted that the lights of the vehi cle behind O’Leary’s looked different than O’Leary’s. ¶5 O’Leary contends that he had both the parking lights and the headlights turned on as he manually had to turn on both. O’Leary further testifie d that he could not have the headlights on without also having the parking lights on due to the fact that the first notch that he manually turns is for the parking lights and the next notch he manually turns is for the headlights. Regardless of the truth of th at claim, however, O’Leary fails to recognize that the basis for Officer Havron’s stop of hi s vehicle was simple. O’Leary’s headlights, in comparison to the vehicle behind, did not appe ar to be illuminated thereby providing Officer Havron with particular ized suspicion to stop O’Lear y for failing to illuminate his headlights. It is to this fa ct that Officer Havron testifie d at the hearing on O’Leary’s petition to reinstate his driver’s license and th is fact provides a particularized suspicion necessary to satisfy the requirements of § 46-5-401(1), MCA.

3¶6 Affirmed.

/S/ BRIAN MORRIS

We Concur:

/S/ KARLA M. GRAY /S/ JAMES C. NELSON /S/ PATRICIA COTTER /S/ JIM RICE

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