NO. 94-368

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Respondent,

v.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Larry W. Moran, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Jeannettte Ellen Berry, Berry Law Firm, Bozeman,

Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General, Elizabeth

L. Griffing, Assistant Attorney General, Helena,

Montana; A. Michael Salvagni, Gallatin County

Attorney, Susan Swimley, Deputy Gallatin County

Attorney, Bozeman, Montana

Filed:

Submitted on Briefs: May 11, 1995

Decided: July 17, 1995
Justice James C. Nelson delivered the Opinion of the Court.

Defendant/Appellant, Martin Reynolds (Reynolds), was charged

with a third offense of driving under the influence of alcohol

(DUI) on December 22, 1991. After a hearing, the Gallatin County

Justice Court denied Reynolds' motion to dismiss, found Reynolds

guilty, and stayed sentence pending appeal. Reynolds appealed to

district court. The Eighteenth Judicial District Court, Gallatin

County, denied Reynolds' motion to dismiss and following trial,

found Reynolds guilty and stayed sentence pending appeal. Reynolds

appeals from the sentence and judgment of the District Court and

from the order denying his motion to dismiss. We reverse.

ISSUE

Reynolds raises the following issue on appeal: Did Deputy

Peterson have a particularized suspicion to justify an

investigative stop of Reynolds' vehicle?

STANDARD OF REVIEW

In this case, the District Court denied Reynolds' motion to

dismiss for an improper investigative stop, concluding that the

arresting officer had vast experience and that Reynolds committed

a traffic violation which gave rise, along with other facts, to the

officer's right to stop him. We review the record to determine

whether substantial credible evidence supports the legal conclusion

implicit in the trial court's denial of defendant's motion, that

the arresting officer had a particularized suspicion to justify the

investigatory stop, and, if, based on the evidentiary record, the

court's legal conclusion was correct. See, for example, State v.

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Stubbs (1995), 892 P.2d 547, 550, 52 St.Rep. 232, 233 (We review a

district court's ruling on a motion to suppress to determine

whether there is substantial credible evidence to support the

court's findings of fact, and whether the court correctly applied

the findings as a matter of law.)

BACKGROUND

At approximately 9:00 p.m., on December 22, 1991, Deputy

Sheriff David Peterson observed a pickup driven by Reynolds,

traveling down a dead-end street. Deputy Peterson thought the

vehicle was "bordering on traveling too fast" for the conditions

(traffic and darkness) and drove to where he thought the vehicle

would reappear. When it did not reappear, he moved to see Reynolds

make a u-turn in a city park. Deputy Peterson then met Reynolds at

an intersection where Reynolds had the right-of-way. After

approximately 7 to 10 seconds, Reynolds proceeded through the

intersection. Deputy Peterson then pulled Reynolds over to make an

investigatory stop. Other facts are referred to in our discussion

as necessary.

DISCUSSION

Reynolds argues that the District Court erred in denying his

motion to dismiss and in finding him guilty of driving under the

influence of alcohol. Reynolds claims that Deputy Peterson did not

have a particularized suspicion to justify an investigatory stop

pursuant to § 46-5-401, MCA. In 1991, the Legislature amended §

46-5-401, MCA, to be consistent with United States Supreme Court

and Montana case law: Section 46-5-401, MCA, provides:

3
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 oarticularized suspicion that

the person or occupant of the vehicle has committed, is

committinq, or is about to commit an offense. [Emphasis

added].

The Fourth Amendment right against unreasonable searches and

seizures, made applicable to the states by the Fourteenth

Amendment, "protects people, not places." Terry v. Ohio (1968), 392

U.S. 1, 8-9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889, 899 (citing Katz

v. United States (19671, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19

L.Ed.2d 576, 582). Whenever a police officer restrains a person's

freedom, such as in a brief investigatory stop of a vehicle, the

officer has seized that person. Terrv, 392 U.S. at 16; United

States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 694-95,

66 L.Ed.2d 621, 628.

A police officer may seize an individual based on less than

probable cause if the seizure is reasonable under the

circumstances. Terry, 392 U.S. at 20. 'I [Iln justifying the

particular intrusion the police officer must be able to point to

specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant that intrusion."

Terrv, 392 U.S. at 21. The Court refused to sanction intrusions

based on "nothing more substantial than inarticulate hunches. .

1, Terry, 392 U.S. at 22.

Recognizing that 'I [aln investigatory stop must be justified by

some objective manifestation that the person stopped is, or is

4
about to be, engaged in criminal activity", the United States

Supreme Court set forth a two-part test to evaluate whether the

police have sufficient cause to stop a person. Cortez, 449 U.S. at

417-18. The essence of the test is that the totality of the

circumstances must give the police a particularized and objective

basis for suspecting the person of criminal activity. Cortez, 449

U.S. at 417-18.

In State v. Gopher (1981), 193 Mont. 189, 631 P.2d 293, we

adopted the two-part test enunciated in Cortez, placing the burden

on the state to 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." Gopher, 631 P.2d

at 296. A??Plying the rules of Cortez, we held that a

particularized suspicion existed to justify stopping a vehicle that

slowly drove past the crime scene and exhibited an unusual

curiosity in the crime site. Gopher, 631 P.2d at 296.

The issue of whether or not a particularized suspicion exists

in order to justify an investigative stop is factually driven. For

example, in State v. Morsette (1982), 201 Mont. 233, 654 P.2d 503,

a farm was broken into, setting off a silent alarm that alerted the

sheriff and a neighbor. The neighbor saw an unfamiliar truck

driving very fast and wrote down its license number. Morsette, 654

P.2d at 504. The deputy followed tire tracks from the farm and saw

the truck matching the neighbor's description. In applying the

two-pronged test, we held that the totality of the facts before the

5
deputy created a particularized suspicion justifying the

investigatory stop. Morsette, 654 P.2d at 507.

In Matter of Suspension of Driver's License of Blake (1986),

220 Mont. 27, 712 P.2d 1338, the petitioner exhibited patterns

consistent with a person driving while under the influence of

alcohol. Blake, 712 P.2d at 1341. The petitioner was driving in

the vicinity of several bars at around 2:00 a.m. and swerved into

the wrong traffic lane. Therefore, we held that such

uncontradicted evidence was sufficient to support a particularized

suspicion that the petitioner may have been driving under the

influence of alcohol. Blake, 712 P.2d at 1341.

When the totality of the circumstances does support a

particularized suspicion, we have held the investigatory stop to be

unjustified. For example, in Grinde v. State (1991), 249 Mont. 77,

813 P.2d 473, the sheriff's deputies saw the defendant's car

properly execute a right hand turn and drive out of eyesight.

After the defendant's car was out of eyesight, the deputies then

heard an engine revving and the squeal of tires. Subsequently,

they stopped the defendant. Grinde, 813 P.2d at 474. We held that

the sheriff's deputies were not justified in stopping the

defendant's vehicle because they merely heard the squeal of tires

but saw no evidence of erratic driving. Grinde, 813 P.2d at 475.

Similarly, in State v. Anderson (1993), 258 Mont. 510, 853

P.2d 1245, the facts were not sufficient for us to hold that the

police officers met the particularized suspicion test. In

Anderson, an informant tipped the police that a blue pickup

6
Reynolds had been engaged in wrongdoing.

We hold the investigative stop was not justified pursuant to

§ 46-5-401, MCA; Deputy Peterson did not have facts supporting a

particularized suspicion that Reynolds had committed, WZlS

committing, or was about to commit an offense. Because the

investigatory stop was unlawful, we reverse the District Court's

decision to deny Reynolds' motion to dismiss and we remand with

instructions to enter an order of dismissal consistent with this

opinion.

We Concur: