No 

No. 97-696

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 277

STATE OF MONTANA,

Plaintiff and Respondent, 

v. 

CHESTER JARMAN,

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Maurice R. Colberg, Jr., Judge presiding.

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No 

COUNSEL OF RECORD:

For Appellant:

Mark English, Deputy Public Defender, Billings, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Assistant Attorney General, Helena, Montana; Dennis 

Paxinos, Yellowstone County Attorney, Melanie Logan, Deputy Yellowstone County Attorney, Billings, Montana

Submitted on Briefs: May 14, 1998

Decided: November 12, 1998

Filed:

__________________________________________

Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

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¶1. Chester Jarman pled guilty to felony possession of dangerous drugs, 

misdemeanor possession of drug paraphernalia, and felony possession of a concealed 

weapon in the Thirteenth Judicial District Court, Yellowstone County. He appeals on 

an issue he reserved before entering his guilty plea. We reverse.

¶2. The issue is whether the District Court erred in determining that the officer who 

arrested Jarman had the requisite particularized suspicion to stop his vehicle.

¶3. On December 23, 1996, at approximately 3:30 a.m., Officer Brian Korell of the 

Billings, Montana, Police Department responded to a domestic disturbance call. The 

female who had reported the domestic disturbance as a fight between herself and her 

boyfriend told Officer Korell and another officer who arrived at her home in 

response to the call that her boyfriend may be on his way to the Colonial 

Apartments, about three blocks away.

¶4. Officer Korell drove toward the Colonial Apartments. While doing so, he 

observed an individual later identified as Chester Jarman standing beside a car at an 

outside pay telephone. No one else was around and Officer Korell observed no other 

traffic. Officer Korell drove around the block and back to the pay telephone. By that 

time, Jarman and his automobile were no longer there. The phone receiver was off 

the hook. 

¶5. Continuing to patrol the area, Officer Korell observed Jarman's car leaving the 

parking lot of an apartment complex. Officer Korell initiated a traffic stop during 

which he discovered a knife in plain view on the front seat of the car. Then, on 

Jarman's person, he found illegal drugs and a gun. Officer Korell also learned that 

outstanding warrants existed against Jarman.

¶6. Jarman moved to suppress all of the evidence found on his person and in his car 

on grounds that the stop was not supported by a reasonable articulable suspicion 

that he had engaged in criminal activity. After briefing and a hearing, the court 

denied the motion to suppress. Jarman subsequently pled guilty to the charges 

against him, reserving the right to appeal the denial of his motion to suppress.

DISCUSSION

¶7. Did the District Court err in determining that the officer who arrested Jarman 

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had the requisite particularized suspicion to stop his vehicle?

¶8. This Court's standard of review of a denial of a motion to suppress is whether the 

district court's findings of fact are clearly erroneous and whether those findings were 

correctly applied as a matter of law. State v. Roberts (1997), 284 Mont. 54, 56, 943 

P.2d 1249, 1250. 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. Doyle, 1998 MT 195, ¶ 10,___Mont. ___, ¶ 10, ___ P.2d ___, ¶ 10. 

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

11 of the Montana Constitution protect persons against unreasonable searches and 

seizures of their persons, including brief investigatory stops such as stops of vehicles. 

See United States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 

621, 628. An investigatory stop must be justified by some objective manifestation that 

the person stopped is or is about to be engaged in criminal activity. Brown v. Texas

(1979), 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357, 362. To stop a person, an 

officer must have a particularized and objective basis for suspecting the particular 

person of criminal activity. Brown, 443 U.S. at 51, 99 S.Ct. at 2640-41, 61 L.Ed.2d at 

362. 

¶10. Montana has codified the standard for an investigatory stop of a person or 

vehicle at § 46-5-401, 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.

This Court has held that in order to show sufficient cause to stop a vehicle, the burden is 

on the State to show: (1) objective data from which an experienced police officer can 

make certain inferences; and (2) a resulting suspicion that the occupant of the vehicle is or 

has been engaged in wrongdoing or was witness to criminal activity. State v. Gopher

(1981), 193 Mont. 189, 194, 631 P.2d 293, 296. 

¶11. In this case, the District Court stated in its findings that Officer Korell suspected 

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that Jarman might have been the individual involved in the domestic disturbance to 

which he had responded. This finding is supported by substantial evidence in the 

form of Officer Korell's testimony. However, Officer Korell's testimony in this 

regard was not based upon reasonable inferences from objective data. Although, as 

the State points out, experienced law enforcement officers are allowed to draw 

conclusions which laymen could not properly draw, Gopher, 193 Mont. at 193, 631 

P.2d at 295, nothing in this record connected Jarman to the domestic disturbance 

other than the fact that he was the only male Officer Korell observed in the area. 

Moreover, Officer Korell admitted that he did not mention in his police report that 

he stopped Jarman's car because he was a suspect in the disturbance; he voiced this 

rationale for the first time at the suppression hearing. 

¶12. The District Court also found that "Officer Korell thought defendant was trying 

to elude him." This finding, while also supported by Officer Korell's testimony at the 

suppression hearing, is not based on reasonable inferences. Officer Korell conceded 

during his testimony that if Jarman had wanted to avoid him after being spotted at 

the pay phone, he could have been several miles away from the area by the time 

Officer Korell saw him driving out of the apartment complex parking lot only a few 

blocks away. Officer Korell could not have logically concluded that Jarman was 

attempting to elude him by continuing to drive around in the area in which Officer 

Korell had just seen him. 

¶13. The District Court concluded that the only issue raised by Jarman in his motion 

to suppress was the legality of the stop. The court then concluded that "Officer 

Korell had a particularized suspicion that defendant had committed an offense to 

authorize a stop . . . , considering the totality of the circumstances existent at the time 

of the stop." 

¶14. Being in a high crime area by itself does not give the police a particularized 

suspicion to stop a person. Brown, 443 U.S. at 52, 99 S.Ct. at 2641, 61 L.Ed.2d at 362-

63. In Brown, police officers in El Paso, Texas, noticed two men walking in opposite 

directions away from each other in an alley in an area with a high incidence of drug 

traffic. The officers stopped one of the men, Brown, who they had not seen in the 

area before, and asked him to identify himself. Brown refused, and was arrested for 

and convicted of violating a Texas statute making it a crime to refuse to give one's 

name and address to a police officer who requested that information after a lawful 

stop. The United States Supreme Court reversed, declaring that application of the 

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Texas criminal statute to Brown under these circumstances violated the Fourth 

Amendment. The Court held that the officers lacked any reasonable suspicion to 

believe that Brown was engaged in or had engaged in criminal conduct, stating that 

in the absence of any basis for suspecting Brown of misconduct, the balance between 

the public interest in preventing crime and Brown's right to personal security and 

privacy tilted in favor of freedom from police interference. Brown, 443 U.S. at 52-53, 

99 S.Ct. at 2641, 61 L.Ed.2d at 363. 

¶15. In the present case, after discounting the testimony to the effect that Jarman 

may have been involved in the domestic disturbance and that Jarman was trying to 

elude Officer Korell, the remaining offered justifications for stopping Jarman are the 

observation of Jarman talking on a pay phone on a cold night in a high crime area 

and then, after Officer Korell drove around the block, Jarman's absence and the 

telephone receiver hanging down off the hook. These facts do not rise to the level of a 

reasonable and articulable suspicion that Jarman was, had been, or was about to 

engage in criminal activity. Without any connection to the domestic disturbance or 

reasonable suspicion of evasion, Officer Korell had no reason to stop Jarman. We 

hold that the District Court's conclusion that Officer Korell had a particularized 

suspicion was erroneous.

¶16. Because the stop was therefore illegal, the subsequent search of Jarman's person 

and his automobile are tainted by the illegal stop. The evidence found as a result of 

the searches must be suppressed. The District Court's decision on Jarman's motion 

to suppress is reversed and this matter is remanded to the District Court for further 

proceedings consistent with this Opinion. 

/S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

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/S/ TERRY N. TRIEWEILER

Justice Jim Regnier dissenting.

¶17. I dissent from the majority's conclusion that the District Court erred in 

determining that Officer Korell, when considering the totality of the circumstances, 

had a particularized suspicion to stop Jarman. 

¶18. The majority concedes that the District Court's critical findings were supported 

by substantial evidence: first, there was substantial evidence to support Officer 

Korell's suspicion that Jarman was the person involved in the domestic disturbance 

and, second, there was substantial evidence to support Officer Korell's conclusion 

that the defendant was trying to elude him. The majority then wrongly concludes, in 

my view, that the officer's testimony was not based upon reasonable inferences from 

objective data. 

¶19. At approximately 3:00 on a Monday morning, Officer Korell was responding to 

a report of a domestic disturbance involving a woman and her boyfriend. When 

Korell arrived at the woman's home, he was informed that the suspect was heading 

toward an apartment complex about three blocks away. En route to the apartment 

complex, Officer Korell saw only one person in the area, a man standing next to a car 

by a pay telephone. It was twenty degrees below zero and indoor phones were 

available at nearby convenience stores. There was no other traffic in the area. The 

man appeared to be about the same age as the reported suspect. 

¶20. Officer Korell thought it was suspicious that someone would use an outdoor pay 

phone when it was twenty degrees below zero and there were indoor phones 

available. Officer Korell then drove around the block and returned, but the phone 

had been left dangling off the hook and Jarman's vehicle was not in the area. Korell 

testified that it was obvious to him that the man he observed had left in a hurry. As 

Korell continued to patrol the area, he observed Jarman's vehicle leaving the 

parking lot of an apartment complex. Officer Korell then initiated the stop.

¶21. The majority essentially takes issue with inferences drawn by Officer Korell 

when faced with these facts. First, the majority points out that there was nothing in 

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the record to connect Jarman to the domestic disturbance other than he was the only 

male observed in the area. The majority then focuses on Officer Korell's admission at 

the suppression hearing that if Jarman was trying to elude him after being spotted at 

the pay phone, he could have been several miles away from the area where he was 

ultimately stopped.

¶22. It is apparent from the record, however, that Officer Korell was suspicious of 

Jarman not just because he was the only male he observed on the streets. Korell was 

responding to criminal activity that had just occurred; Jarman appeared to be the 

same age as the reported suspect; and he was the only person in the vicinity where 

Officer Korell had just been told the suspect could be found. Yet, Officer Korell did 

not stop Jarman when he first saw him. He drove around the block and when he 

returned Jarman and his car were gone and the phone was dangling off the hook. 

This convinced Korell that Jarman was trying to elude him. At that point, Korell had 

a particularized suspicion to stop the defendant. The fact that Jarman traveled only a 

short distance from the pay phone to the apartment complex instead of further away 

to elude Officer Korell is immaterial. Korell already had a particularized suspicion 

to stop Jarman before he found him in the parking lot.

¶23. In summary, I believe the investigatory stop complied with the standards set 

forth in § 46-5-401, MCA and our guidelines in State v. Gopher (1981), 193 Mont. 189, 

194, 631 P.2d 293, 296. The District Court properly denied Jarman's motion to 

suppress.

/S/ JIM REGNIER 

Chief Justice J. A. Turnage and Justice James C. Nelson join in the foregoing dissenting 

opinion.

/S/ J. A. TURNAGE

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No 

/S/ JAMES C. NELSON

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