No. 84-452 INTHE SUPREME COURT OF THE STATE OF PlONTAPJA 1985

STATE OF MOZJTANA, Plaintiff and Respondent,

-vsWESLEY SHARP, Defendant and Appellant.

APPEAL FROM: DistrictCourt of theNineteenth Judicial District, In and fortheCounty of Lincoln, The Honorable Douglas Harkin, Judge presiding.

COUNSEL OF RECORD:

For Appellant: Reller & German; Ann C. German, Libby, Montana

For Respondent: Eon. Mike Greely, Attorney General, Helena, Montana William A. Douglas, County Attorney, Libby, Montana SusanLoehn, Deputy County Atty., Libby, Montana

Submitted on Briefs: Play 3, 1985 Decided: July 8, 1985

- ClerkMr. Justice 

### L. C. Gulbrandson delivered the Opinion of the Court.Defendant appeals from 

### a judgment of conviction of violating section 61-8-406,MCA. We affirm. The defendant initially appeared before the justice of the peace in Lincoln County,Montana, on a charge of driving under the influence of alcohol. At that time,he moved the justice court to suppress the results of a breathalyzer test

on the grounds that such test was the result of an illegal arrest and therefore inadmissible. The motion was denied, and the justice court, in a bench trial, found the defendant guilty. Defendant appealed this conviction to the District Court and renewed hismotion to suppress. Theparties agreed that the trial courtwould rule upon themotion based upon a set of stipulated facts. Ruling thereon,the District Court denied defendant'smotion. Defendant's motion to dismiss for lack of speedy trial

was alsodenied,and a jury trial inDistrictCourt commenced October 1, 1984. At trial the motion to suppresswas again renewed. The six-person jury found the defendant not guilty of driving while under the influence of alcohol, an offense defined by section 61-8-401, MCA, but found the defendant guilty of the offense of operation of a motor vehicle with a blood alcohol concentration of .10 or more, defined in section 61-8-406,MCA. The District Court entered an oral judgment on the jury's verdict. Defendant waived a pre-sentence report, and the District Court imposed the maximum penalty: 10 days in jail and a $500 fine, plus license revocation. The same day oral judgmentwas entered, the defendant appealed to this Court. The judgment and executionof sentencewas stayedpending the determinationof this appeal.Severaldays after filinghisnotice of appeal from the judgment, thedefendant fileda statement of record on appeal wherein he stated, pursuant to section 46-20-302, MCA, that because he was only appealing from the trial court's denial of the pre-trial motion to suppress, which was submitted to that court on stipulated facts alone, he did not intend to order a transcript for appeal. He contends that since the District Court considered the matter on a set of stipulated factsalone, thatthe same factscontrol our considerationof thedenialof themotion. The State, in response, argues that the motion was properly granted on the stipulated facts alone, hut in the alternative, that other evidence adduced at trial supports theDistrictCourt's order. The defendant renewed hismotion attrial, and thus any evidence in therecord supportingthe District Court's order should be considered. To that end, the Stateattached asan appendix a portion of thetranscript of the trialwhere other relevant evidence pertaining tothe issue of the stop and arrestof the defendant was produced. We will consider the entire record, including the appendix provided by the State, for two reasons: (1) the defendant has not moved us to strike this evidence from the record; and (2) because of the rule that a ruling denying a motion to suppress is not final and may be reversed atany time, and thus a reviewing court may consider evidence subsequently received during trial. People v. Jones (I11.App. 1983), 449 N.E.2d 547; People v. Taylor (I11.App. 1981),424 N.E.2d 1246. This ruleisrecognized in Illinois, c.f. People v. Taylor (Ill. 1971), 277 N.E.2d 878, 881; People v. Schlemm (1ll.App. 1980),402 N.E.2d 810, from where much of our criminal procedure code is derived. Discussing this rule, the Appellate Court of Illinois, in People v. Schlemm, 402 N.E.2d at816, observed:"Had the motion to suppress been denied atthe suppression hearing, and had this Court determined that the evidence produced atthathearing did not justify denial of the suppression motion, this Court could consider the evidence introduced attrial touphold denial of the suppression motion. (People v. Braden 1966, 34 I11.2d 516, 216 N.E.2d 808) In commenting upon the above doctrine, Professor LaFave has stated: 'the notion thatthetrialrecordmay be used by the appellate court touphold a search or seizure notwithstanding the fact that the lower court erred in failingtosuppresson the lesser amount of evidence produced at the pretrial hearing isan attractiveone--after all, if it now appears that the fourth amendment was not violated, then why should the defendant be entitled to a windfall reversal of his conviction?

### ' LaFave, Search and Seizure (1978)

## ,Vol. 3, S 11.7(c),p. 732." See also, People v. Hall (111.App. 1980), 414 N.E.2d 201,

The rule stated above does not alterthe rule stated in State v. Rader (1978), 177 Mont. 252, 255, 581 P.2d 437, where we noted that "the general rule

# ... is that when a motion is granted or denied, such becomes the law of the

case, and the alleged illegality of the search cannot ordinarily be relitigated." F.ader dealt with a situation where one judge had replaced another on the case. The policies supporting the "law of the case" doctrine do not apply in a situation, such as in the case atbar, where the

same judge ison thecase foritsduration, accord, People v. Taylor (Ill. 1971), 277 N.E.2d 878. Further, in Rader, we recognized exceptions to the "law of the case" rule. In recognizing these exceptions to that rule, we cited to the annotation at 20 A.L.R.Fed. 13 (1974), which lists one of them as being where new evidence previously unavailable to the court is made known. Under either the Illinois rule stated above, or the Rader rule, we may in these Icircumstancesproperly consider thewhole record and apply it toappellant's allegation of error. Here, theDistrictCourt, inconsidering themotion to suppresswas restricted by theparties' stipulations. Alone, the stipulations provide minima1 support for the court

### 's ruling. Subsequently, though, new evidence not contained in the stipulations was adduced attrial that lends support to theDistrictCourt's order. From a review of therecord, the followingappear tobe the relevant facts: At4:10 p.m., December 22, 1983, Joyce Hudson, the town clerk of Eureka, Montana, received an anonymous telephone call from a female attheFirstand Last Chance Saloon, who reported a possible DUI. The callergave the license number of the vehicle involved, a description thereof, and the direction being traveled by the motor vehicle. Officer JimWilliams of theMontana Highway Patrol

was .in the office when the call came in. He got into his patrol car and headed north on Highway 93. He soon saw the described vehicle parked halfway off the road pointing ina southerly direction. On pulling around toapproach the car frombehind, OfficerWilliams noted skidmarks leadingtothe vehicle, later determined to be 57 feet in length. As Officer Williams pulled up behind the vehicle, it slowly began to pull away. Officer Williams then stopped the vehicle. The driverwas Ron Truman. Williams gave Truman a field sobriety test and determined thatTruman was not under the influence of alcohol. When he was talking to Truman, Officer Williams noted a passenger in the vehicle, the defendant, Wesley R. Sharp. Officer Williams testified at trial that "[Sharp] was slumped down and looking likehe was about halfway passed out. He was obviously either sick or drunk." Officer Williams then asked Ron Truman whether he had been driving since he had left the bar. Truman toldOfficer Williams that he had just taken over driving when they were parked there, and that he did so "because Wes was too drunk to drive." Officer Williams then called back to the dispatcher and had her get ahold of the caller atthe First and Last Chance Saloon. The caller was identified as PattyGarris, thebartender atthe saloon. Shewas askedwho had been driving the vehicle when it left the bar and answered that it was Wesley Sharp. Officer Williams then gave the defendant Miranda warnings and a field sobriety test. Based on that test, he arrested Sharp for driving while under theinfluence and took him tothepolice station, where the breathalyzer test was conducted. The test, given approximately an hour after the arrest, showed that the defendant Sharp had a blood alcohol level of .17 percent. The defendant allegesthatOfficerWilliamswas without authority to stop the defendant's vehicle because he lacked probable cause todo so. This contention is erroneous. All that is required of an officer in making an investigatory stop is that he have a "particularized" or "reasonable" suspicion that criminal activity may be afoot. This is the applicable standard for an investigative stop of a vehicle; or in other words "some basis from which the court can determine that the detention was not arbitrary or harrassing." State v. Gopher (Mont. 1981), 631 P.2d 293, 295, 38 St.Rep. 1078, 1081, relying on United States v. Cortez (1981), 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d. 621. Here, Officer Williams had a sufficient basis for his particularized suspicion of illegal activity. A citizen had just called the police toreport a possible DUI offense and had given the police dispatcher the car's license plate number and description and the direction of travel. These facts were corroborated when Office Williams found the described vehicle going in the direction and on the highwayreported by the telephone caller. When Williams came upon the automobile, it was stopped halfway off the roadway and began to pull away when he approached. Officer Williams noticed skid marks coming from the vehicle. Hehad a right at that time, based on reasonable suspicion and logical inference, to stop the defendant's vehicle to investigate a possible crime. Appellant emphasizes the fact thatthe initialtipwas given by an anonymous informant. Aside from the fact that all of the information given by the informant was corroborated atthe scene, we alsonote thatwhen information is provided by a "citizen informant" that information is considered presumptively reliable. See Statev. Kelly (Mont. 1983), 668 P.2d 1032, 1043, 40 St.Rep. 1400, 1411; Statev. Liestiko (1978), 176Mont. 434, 439, 578 P.2d 1161, 1164; and 1 LaFave Search and Seizure Sections 3.3 and 3.4, (1978). Alternatively

### , appellant argues that once Officer Williams determined that Ron Truman, the driver of the vehicle atthetimeof the stop, was not under the influence, that the scope of the permissible investigatory stop was ended and that anything that occurred thereafter was impermissible. This contention is also not persuasive. A founded suspicion to stop for investigative detention may ripen intoprobable cause toarrestthrough theoccurrence of facts or incidents after the stop. United States v. Medina-Gasca (9th Cir. 1984), 739 F.2d 1451, 1453; United Statesv. Portillo-Reyes (9thCir. 1975), 529 F.2d 844, 850. Here, Officer Williams, after running a field sobriety test

on Ron Truman, observed the passenger Wesley Sharp in the vehicle slouched over and apparently intoxicated. Based on that observation, Officer Williams inquired further. In response to the officer's questions, Ron Truman stated that thetwo had just switchedplacesand thattheydid sobecauseSharpwas "toodrunk to drive." To further corroboratethis, Officer Williams went back to the squad car and had the dispatcher call the First and Last Chance Saloon. The informant, then identified, stated that Wesley Sharp was driving the car when it left the saloon. At that time, Officer Williams' investigation had produced facts that ripened into the probable cause to arrest Wesley Sharp. He did so, gave Sharp his Miranda warnings, and brought him to the stationhouse, where the breathalyzer test was administered. Clearly, in this case Officer Williams was simply investigating an alleged criminal activity and using all of his facilities to determinewhat had occurred. That

was his job, and his duty. We do not find appellant's argumentpersuasive. An investigation or investigatory stop is guided by principles of reasonableness. Effective law enforcement requires some latitude to be given to investigating officers to react to and follow up on their observations. Drawing artificial distinctions or "time lines" in situations such as these does not comport with reality or common sense. All that is required, as stated above, is that the officer had some articulable, or particularized suspicion that criminal activitywas afoot; in other words, that the particular investigation or stop was not solely arbitrary or for the purposes of harrassment. As long as the scope and duration of that investigation stays within these parameters, we have no difficultywith upholding such an investigation and any evidence of criminal activity adduced therefrom. Justice Sheehy, in his dissent, has raised various issues and has expressed his opinion of the handling of this case in the District Court and this Court. It is my opinion that defense counsel, both having excellent reputations, chose topresent this appeal solely on

### the issue of the validity of 

### the order refusing to suppress the breathalyzer test results. No transcriptwas submitted,

so it is not possible to determine the extent of participation by the defense in the settlement of jury instructions, submission of the special verdict form, or in the examinationofwitnesses. Therefore the opinion hasbeen restricted to the issuepresented on appeal. Based on the foregoing reasons, the order of the District Court denying the defendant'smotion to suppress the results of the breathalyzer test, and the judgment, are affirmed.

We 

### concur: H



### Justices

### Mr. Justice John C. 

### Sheehy,dissenting:

I dissent. I 

### do not understand how the Court can sustain this conviction in the face of its obvious imperfections. Sharp has been deprived of due process, subjected todouble jeopardy,and denied a speedy trial. Not

onebut three violations of the State's Constitutional rights have occurred. We should reverse the judgment of his conviction sua sponte. Due Process The defendant Sharp has been convicted of a crime for which no complaint, indictment or informationwas ever filed againsthim. This casearrived in the DistrictCourtby way of appeal from a criminal conviction in a 

### justice court. This means that there is not in the District Court file any information filedby a county attorney, nor a truebill by a grand jury. The founding papers on which the charges against Sharp are based must rest then in the papers thatwere transferred to the District Court from the justice court in which his original convictionwas obtained. In the justice court, the only charge against Sharp is that filed by highway patrolman JamesWilliams on January 3, 1984, charging that Sharp,on December 22, 

### 1983 committed the offense of "driving while under the influence of alcohol, second offense." No other chargesweremade a.gainstSharp in the justice court. His sentence in the justice court on convictionwas a fine of $500,his driver's license suspended for one year, and 173 days of jail sentence to be suspended

on the condition that he take a chemical dependency program treatment.

### Under S 

### 46-17-311, MCA, all criminal cases on appeal from justices courts must be tried anew in the District Court. In this type of case, the District Court acts under its appellate jurisdiction. Section 3-5-303,MCA. In theDistrict Court,after trial,Sharp was found "not guilty of the offense of drivingwhileunder the influenceof alcohol, a misdemeanor." His J.P. 

### conviction was reversed. However, Sharp was found "guilty of the offense of operation of a motor vehicle by a person with alcohol concentrationof 0.10 ormore." Thus, Sharpwas found guilty in theDistrict Courtof an. offense for which he was never charged by information, true bill, or complaint. UnderArt. 11,S 

### 20, 1972Montana Constitution,criminal offenses within the jurisdiction of any court inferior to the District Court "shall-"he prosecuted by complaint. The iustice court file does not contain a complaint based on alcohol concentrationof 

### 0.10. The same state constitutional provision relating to criminal actions in the District Court require either information or indictment. Neither an information nor indictment is contained.in the District Court file.With respect to justice courts, 5 

### 46-17-101, MCA, requires that all criminal prosecutions in the justice court be commencedby complaintunder oath. Under 46-11-401,MCA, all charges against a defendant in a 

### criminal prosecution must be in writing and charge the offense by stating the name of the offense, the statute invol-ved,and the facts constituting the offense in the ordinary concise language. No such charge inwriting appears

### in the District Court file rel-atingto the "operation"of a 

### motor vehicle. Sharp has been deprived of due process in 

### that he 

### has been convicted of a crime in a District Court for which he hasnever been charged. The first time that the charge of operating a motor vehicle while having a 

### blood alcohol concentration of 0.10 

### appears is in the instru-ctions

### of the District Court to the jury.The test 

### of the sufficiency of the information (and presumably of the justice court complaint) is whether the defendant is apprised of the charges brought against him and whether he will be surprised. State 

### v. Bogue (Mont. 1963), 142

### Mont. 459,384 

### P.2d 749. Double Jeopardy It is necessary to understand the state's statutes respecting driving under the influence of alcohol and of operating a motor vehicle under that influence to see that the District Court got trapped in egregious error because it did notunderstand the statutes. There are two ways in which the State may prosecute a defendant for driving or operating motor vehicles under the influence of alcohol. Under S 

### 61-8-401(1)

### (a), MCA, it is unlawful for any person who is under the influence of alcohol "todrive or be in actual physical control of a motor vehicle upon the highways of this State open to thepublic." Note,please, that under S 

### 61-8-401,MCA, the offense is committed if one is driving,or is in actualphysical control of a motor vehicle upon a 

### highway while under the influence of alcohol.

### With respect to the quantum of proof to establish a violation of S 

### 61-8-401, MCA, relating to alcohol, the statutes establishes certain presumptions with respect to blood alcohol tests. If at the time of the alleged offense there is an alcohol concentration of 0.05 or less it is presumed that the person was not under the influence of al-cohol. Section 61-8-401(3)(a)

## ,MCA. If there was at the time ablood alcohol concentration in excess of 0.05 but less than 0.10, there is no presumption, 

### --- but the fact may 

### be - 

### considered with other competent evidence 

### - in determininq the guilt or innocence or the person. Section 61-8-401(3)(b)

### , - -- MCA

# . If at the time there is an alcoholic concentration of 0.10 or more, it is presumed that the person was under the influence, but the presumption is rebuttable. Section 61-8-401(3)

### (c)

## ,MCA. A different crime for operating a vehicle under the influence of alcohol is provided in S 

### 61-8-406,MCA. There it is unlawful "for any person to drive or be in actual physical control of a motor vehicle upon the ways of this State open to the public while the alcohol concentration in his blood,brea.th,orurine is 0.10 ormore." Note please under 61--8-406,the crime is defined by the status of the blood alcohol content. Nothing more than the blood alcohol concentration is required to be proved if the person is driving or in actual physical control of the motor vehicle at the time. In sum, then, under S 

### 61-8-401, MCA, a 

### person may be convicted ofdriving orbeing in actual physical controlof a motor vehicle while under the influence of alcohol if his blood alcohol concentration is in excess of 0.05 (50

### milligrams per 100 milliliters) but less than 0.10 (100 milligrams per 100 milliliters) and other competent evidence shows he was guilty; if his blood alcohol concentration is 0.10 (100milligramsper 100milliliters)ormore, there is a rebuttable presumption that he was under the influence of alcohol. Under 5 61-8-406,

### MCA, proof of the blood alcohol concentrationof 0.10 (100milligramsper 100milliliters) or

more is sufficientproof of the alcohol influence. The District Court did not so instruct the jury. Instead theDistrict Court instructed the jury erroneouslyas follows: "The crimecharged against thedefendant isdriving while under the influenceof alcohol,amisdemeanor and all six of your numbeFmust agree j.n order to return either a verdict of guilty or not guilty. "To do so, it is necessary that you consider the crime of driving while under the influence of alcohol first and that all six of you find the defendant either guilty or not guilty of that charge. "In the event you find the defendant guilty of driving while under the influence of alcohol,you need go no further as you will have reached a verdict in this case. And shall contact the bailiff to returnyou to open court. "In the event you find the defendant not guilty of driving while under the influence of alcohol-,you must then consider the lesser included offense of operationofmotor vehicle

### & - 

### a personwith alcohol concentratzn of 0.10 ormore. Youmust then find 

### ---- the defendant guilty or not guilty of that charge. When you have done so, you have reached.a verdict and need not proceed further but shall contact the bailiff toreturnyou to open court." The District Court erred in giving that instruction, first, because it divided the elements provided in both statutes "to drive or be in actual physical control of a motor vehicle" while und.erthe influence of alcohol. The court dissected the statutes and erroneouslydetermined that

one statute concerned itself with actually driving the motor

### vehicle, and the other statute concerned itself with "operation" of a motor vehicle. It committed grievous error when it instructed the jury that the "operation"of a motor vehicle was a lesser included offense of "driving" a motor vehicle. Was the jury confused? It 

### certainly was. During its deliberation, it sentout a question to the court,asking the following: "What is the definition of "driving" while under the influence of alcohol? And does this differ from "operationof amotor vehicleby apersonwith alcohol concentrationof 0.10 

### ormore?" The District Court answered the question to the effect that "the instructions that have been given contain the law that defines these offenses." Again the District Court committed an egregiouserror. Having been so erroneously instructed, and so erroneously answered,asmight be expected,the furyreturned

a baffling verdict. It found Sharp "not guilty of the offense of driving while under the influence of alcohol a misdemeanor," but "guilty of the offense of operation of a. 

### motor vehicle by 

### a person with alcohol concentration of 0.10



### ormore.

### " The District Court, having first erred by charging the defendant with an offense not stated in a complaint, information, or an indictment, compounded the error by determining that "operation" of a motor vehicle is a lesser included offense of "driving"amotor vehicle. This in spite of the fact that in each of the two statutes that relate to driving under the influence of alcohol, there is also included the "actualphysical operation" of amotor vehicle.

### Section 46-11-501, MCA, d-efineswhat is an 

### "included offense" under our State statutes. The offense is included. when it is establishedby proof of the same or less than all the facts required to establish a commission of the offense charged, or a lesser kind of cul-pability suffices to establish its commission. As is demonstrated above, a crime of "operation" of a motor vehicle by driving or being in actualphysical control of 

### a vehicle with a blood alcohol concentration of 100 milligrams per 100 milliliters or more cannot be 

### a. lesser included offense of the crimedescribed in 5 

### 46-11-401,MCA, driving or being in actual physical control of a motor vehicle under the influence of alcohol, because under the latter crime, a conviction may be had if the blood alcohol concentration is 50milligramsper 100milliliters. In other words, it takesa greater degreeofproof or a 

### greater degree of culpability to establish the "operation" crime than the "drivingcrime"asdescribedby the ~istrict Court. "A lesser included offense exists when all of the elements of the lesser offense are necessary elements of the greater offense. Put anotherway, if it is possible to commit the greater offense without having committed the lesser offense, the latter is not an included crime." Statev. Roybal (Wash. 1973), 512P.2d.718. It should be apparent that Sharp has been subjected to double jeopardy in this case. Section 46-11-503,MCA. The offenses under §§ 

### 61-8-401 (driving) and 61-8-406, MCA,

(operation)were known to the attorney prosecuting the case in the justice court,were consummated prior to the original charge and jurisdictionandvenue of both offenses lay in the iustice court. A judgment of conviction for driving under the influence of alcohol second offense was obtained.in the justice court. That convictionwas reversed by the jury in

### the District Court. Charging him in the District Court on the appeal with criminal operation constituted a new charge based upon the same transaction which could and should have been prosecuted in the justice court. Double jeopardy attaches to the conviction of "operation" in the District Court. Again, Sharp hasbeen deprived of a State Constitutional right, the right not to be "again put i.n jeopardy for the same offensepreviously tried inany jurisdiction." Art. 11, 5 

### 25, 1972Montana Constitution. Speedy Trial Under State 

### v. Knox (Mont. 19841, 675 P.2d 950, 41 St.Rep. 126, a misdemeanor charge must be dismissed if the defendant's trial, following appeal from the conviction in the justice court, is not brought to trial speedily. Here the appeal was filed February 23, 1984 and trial commenced October 1, 

### 1984, a lapse of 220 days. A motion wasmade to dismiss for lack of speedy trial and the trial court record does not show the disposition of that motion. The trial court record does reflect that there was a denial of the motion to suppress, based upon a purported stipulation,but the stipulation is not contained in the District Court file. I 

### thereforewould accord no respect to the order denying the motion to suppress and determine that the lapse of 220 days exceeded the permissible six months to bring this case to trial. This case is a disgrace to the administration of criminal justice. The defense attorney did not raise the objections Ihave stated here, the county prosecutor did not charge the defendant in the justice court with all of the offenses chargeable under the laws at the time, and theDistrict Court compounded the errors either by disregarding the statutes or not reading them. The defendant's conviction should be reversed as a lesson to all concerned. Otherwise this Court continues thedisgrace.

## f / Justice /Mr. JusticeWilliam E. Hunt, Sr. dissenting and concurring:

I concur in the dissenting opinion of of Mr. Justice Sheehy except that I do not find anything in the record to indicate that the defendant was not well represented by his attorney.