No 

No. 98-121

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 138N

STATE OF MONTANA, 

Plaintiff and Respondent, 

v.

RICHARD JAMES ALMANZA, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade,

Honorable Marge Johnson, Judge Presiding.

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COUNSEL OF RECORD:

For Appellant:

John Keith, Attorney at Law, Great Falls, Montana

For Respondent:

Honorable Joseph P. Mazurek, Attorney General; Carol Schmidt, 

Assistant Attorney General, Helena, Montana 

David Gliko, City Attorney, Great Falls, Montana 

Submitted on Briefs: May 13, 1999

Decided: June 14, 1999

Filed:

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No 

__________________________________________

Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court. 

¶1. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal 

Operating Rules, the following decision shall not be cited as precedent but shall be 

filed as a public document with the Clerk of the Supreme Court and shall be 

reported by case title, Supreme Court cause number, and result to the State Reporter 

Publishing Company and to West Group in the quarterly table of noncitable cases 

issued by this Court. 

¶2. Richard James Almanza appeals the ruling of the Eighth Judicial District Court, 

Cascade County, denying his motion to suppress the State's evidence against him on 

charges of driving under the influence of alcohol, in violation of § 61-8-401, MCA. 

We affirm the ruling of the District Court.

ISSUE

¶3. Did the District Court err in denying Almanza's motion to suppress the State's 

evidence on the grounds that the arresting officer lacked a particularized suspicion 

justifying the stop? 

BACKGROUND

¶4. On June 16, 1996, at approximately 2:25 a.m., Officers Paul Smith and Kathy 

Carson of the Great Falls Police Department both responded to a disturbance call in 

a quiet residential neighborhood on 19th Street South in Great Falls, Montana. The 

officers did not have any particular description of the individual purportedly causing 

the disturbance. Both officers mistakenly turned on 18th Street instead of 19th 

Street. The officers parked their vehicles on 18th Street and proceeded on foot to 

locate the source of the disturbance. 

¶5. Officer Smith first saw Almanza's vehicle as it pulled out of an alley onto 18th 

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Street heading south. Officer Carson also noticed Almanza's vehicle traveling south 

down 18th Street and observed that the vehicle was driving in the middle of the street 

rather than on the right side of the road. Officer Carson observed that the vehicle 

was traveling at such an excessively slow speed that she was able to walk alongside 

the vehicle as it moved. 

¶6. Almanza's car windows were open and extremely loud music was being played 

inside the car. Given the time of day and the volume of the music, Officer Carson 

believed the driver was causing a disturbance in the neighborhood. She approached 

the vehicle and requested that the driver turn his radio down. Almanza did not hear 

Officer Carson's request and continued driving. Officer Carson then yelled for 

Almanza to turn his radio down. Almanza looked over at Officer Carson, but did not 

otherwise respond to her and continued driving slowly down 18th Street. 

¶7. Officer Carson observed that Almanza's eyes were glazed and concluded that 

something was wrong with him, so she reached into the vehicle, shifted it into park 

and turned the vehicle's radio down. While reaching into the vehicle, Officer Carson 

noticed a lit cigarette burning the seat between Almanza's legs and detected the odor 

of alcohol on Almanza. 

¶8. Officer Carson asked Almanza to step out of the vehicle. Outside the vehicle, both 

Officer Carson and Officer Smith observed that Almanza was staggering. He 

appeared to be intoxicated. Almanza refused to produce his driver's license or car 

registration and would not tell the officers his name. The officers ran a check on the 

vehicle tags and determined that the vehicle was owned by Almanza. 

¶9. Almanza was charged with and convicted of driving under the influence of 

alcohol, in violation of § 61-8-401, MCA, second offense, in a bench trial before the 

Great Falls City Court. Almanza appealed his conviction to the Eighth Judicial 

District Court, Cascade County, and filed a motion to suppress the State's evidence 

against him on the grounds that the arresting officers had no particularized suspicion 

justifying the stop of his vehicle. The District Court held a hearing and denied the 

motion to suppress. Almanza then pled guilty as charged, reserving his right to 

appeal the District Court's denial of his motion to suppress. This appeal followed. 

STANDARD OF REVIEW

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¶10. We review a trial court's grant of a motion to suppress evidence to determine 

whether the 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. Factual findings are clearly erroneous if they are not supported 

by substantial evidence, the court has misapprehended the effect of the evidence, or 

our review of the record convinces us that a mistake has been committed. Interstate 

Prod. Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. 

DISCUSSION

¶11. The guidelines for executing an investigative stop of a motor vehicle are codified 

in Montana as follows: 

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 46-5-401, MCA.

¶12. Whether a particularized suspicion existed at the time of the stop depends upon 

the totality of the circumstances giving rise to the stop. State v. Reynolds (1995), 272 

Mont. 46, 49-50, 899 P.2d 540, 542. The totality of the circumstances includes the 

evidence as evaluated by the officer in light of the officer's knowledge and training. 

State v. Gopher (1981), 193 Mont. 189, 193, 631 P.2d 293, 295. 

¶13. Almanza argues that no particularized suspicion justified the investigative stop 

in this case because the testimony of Officers Carson and Smith was contradictory 

with regard to their individual observations of the movements of his vehicle. 

Almanza also contends there was no particularized suspicion because the State failed 

to demonstrate that the stop of Almanza's vehicle was in any way related to the 

initial disturbance call for which the officers had been summoned to the area.

¶14. We find these arguments unpersuasive. Although Officers Carson and Smith 

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testified differently with regard to what they observed of Almanza's vehicle, the 

testimony of the two officers is not contradictory as Almanza asserts. Officer Smith 

testified that he first observed Almanza's vehicle as it entered onto 18th Street from 

an alley, and that he did not observe the vehicle driving in the middle of the road. 

¶15. Officer Carson testified that she did not observe the vehicle until it was already 

driving down 18th Street and that, at that time, the vehicle was traveling down the 

center of the roadway. The District Court apparently found no inconsistencies 

between the testimony of the two officers, notwithstanding the fact that their 

testimony was not wholly identical. It is the exclusive province of the trier of fact to 

determine the weight and credibility of the evidence before it, and such a 

determination will not be disturbed on appeal. State v. Collard (1997), 286 Mont. 185, 

193, 951 P.2d 56, 61. 

¶16. We likewise reject Almanza's contention that the stop was unjustified because it 

was not related to the initial disturbance call. It is wholly irrelevant why the officers 

were in that neighborhood at that particular time, so long as there was sufficient 

objective data available to the officers to form a particularized suspicion that 

Almanza was committing an offense. 

¶17. Officer Carson testified that the music from Almanza's vehicle was loud enough 

to constitute a disturbance given the hour and the neighborhood. For this reason, she 

approached the vehicle and asked the driver to turn down his radio. Even after the 

driver noticed the officer, he continued driving forward, and Officer Carson could 

tell that his eyes appeared glazed. From this she determined that something was 

wrong and initiated the stop by reaching into the vehicle and placing it in park. 

¶18. We conclude that the stop of Almanza's vehicle was justified under § 46-5-401, 

MCA, because the music blaring from the vehicle in a quiet residential neighborhood 

at 2:30 a.m. constituted a disturbance justifying an investigative stop. Additionally, 

Officer Carson's observation that the vehicle was driving in the middle of the road at 

an excessively slow rate of speed, that the driver of the vehicle was unresponsive, and 

that his eyes appeared glazed were sufficient for the formation of a particularized 

suspicion that Almanza was driving under the influence of alcohol. 

¶19. For the foregoing reasons, we hold that the District Court did not err in denying 

Almanza's motion to suppress. Affirmed. 

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/S/ J. A. TURNAGE

We concur:

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART

/S/ TERRY N. TRIEWEILER

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