No. DA 06-0046 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2007 MT 67N 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

JOSE MARCOS GUTIERREZ, 

Defendant and Appellant. 

APPEAL FROM: The District Court of the Thirteenth Judicial District, 

In and For the County of Yellowstone, Cause No. DC 2004-1138, 

Honorable Gregory R. Todd, Presiding Judge 

COUNSEL OF RECORD: 

For Appellant: 

 Frank A. Piocos, Deputy Public Defender, Billings, Montana 

For Respondent: 

Hon. Mike McGrath, Montana Attorney General, Joslyn M. Hunt, 

Assistant Attorney General, Helena, Montana 

Dennis Paxinos, Yellowstone County Attorney, Mark Murphy, 

Deputy County Attorney, Billings, Montana 

Submitted on Briefs: November 1, 2006 

 Decided: March 13, 2007 

Filed: 

__________________________________________ 

Clerk 
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 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 disposition shall be included in 

this Court's quarterly list of noncitable cases published in the Pacific Reporter and 

Montana Reports. 

¶2 Jose Marcos Gutierrez (Gutierrez) was convicted of misdemeanor driving under 

the influence of alcohol and misdemeanor driving without required motor vehicle 

insurance. He appeals his conviction on the ground that the District Court erred in 

denying his motion to suppress the evidence used in his conviction. We affirm. 

ISSUE 

¶3 A restatement of the dispositive issue on appeal is whether the District Court erred 

in denying Gutierrez’s motion to suppress upon determination that the arresting officer 

had the requisite particularized suspicion to initiate an investigative stop. 

STANDARD OF REVIEW

¶4 We review a district court’s denial of a motion to suppress to determine whether 

its findings of fact are clearly erroneous and whether its application and interpretation of 

the law is correct. State v. Wrzesinski, 2006 MT 263, ¶ 9, 334 Mont. 157, ¶ 9, 145 P.3d 

985, ¶ 9 (citations omitted).

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FACTUAL AND PROCEDURAL BACKGROUND 

¶5 Just after midnight on May 26, 2004, Yellowstone County Sheriff’s Officer Frank 

Fritz was patrolling and noticed a car parked in the Burger King drive-through lane but 

saw no visible occupant. The car’s headlights were on but the restaurant’s lights and the 

parking lot lights were off, indicating that the restaurant was closed. Fritz drove a few 

more blocks, considering the situation, then returned to Burger King to investigate. As 

he approached the vehicle from behind, it left the drive-through lane and entered the main 

parking lot at which time Fritz activated the emergency lights and stopped the vehicle. 

Upon contact with the driver, Gutierrez, Fritz noticed the odor of alcohol on his breath. 

Gutierrez admitted that he had been drinking. Fritz arrested Gutierrez for driving under 

the influence of alcohol and for failing to carry proof of automobile insurance. 

¶6 A non-jury trial was scheduled in the Criminal Division of Justice Court for 

Yellowstone County for November 18, 2004. Gutierrez failed to appear and was 

adjudicated guilty of both offenses and sentenced. He moved to stay imposition of the 

sentence and appealed the decision to the Thirteenth Judicial District Court for 

Yellowstone County. 

¶7 In District Court, Gutierrez moved to suppress the arresting officer’s evidence, 

claiming that Fritz had no “particularized suspicion” to stop him, and therefore the results 

of the ensuing “search” must be suppressed. He also argued that his constitutional right 

to privacy was violated by the warrantless search. The District Court held a suppression 

hearing on July 13, 2005, and on August 24, entered its Findings of Fact, Conclusions of 

Law and Order. The court concluded that Fritz had the requisite particularized suspicion 

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to stop Gutierrez and denied Gutierrez’s motion to suppress. Gutierrez subsequently 

entered guilty pleas to both charges but appealed the District Court’s Order. 

¶8 In holding that particularized suspicion existed in this case, the District Court 

correctly relied on numerous relevant cases including, but not limited to, State v. Morris, 

230 Mont. 311, 319, 749 P.2d 1379, 1383 (1988) (An experienced officer has a duty to 

investigate when “confronted with circumstances which that officer believes demand 

investigation.”), and State v. Gopher, 193 Mont. 189, 192, 631 P.2d 293, 295 (1981) 

(Objective facts and circumstantial evidence suggesting that a particular automobile is 

involved in some sort of criminal activity is sufficient to warrant a limited investigatory 

stop.). Given that Gutierrez was parked at the drive-through window of a closed 

restaurant for a protracted period of time, and that no vehicle occupant was visible, Fritz 

indeed had sufficient particularized suspicion to investigate further. 

¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of 

our 1996 Internal Operating Rules, as amended in 2003, which provides for 

memorandum opinions. It is manifest on the record before us that the findings of fact are 

supported by substantial evidence. Additionally the legal issues are clearly controlled by 

settled Montana law which the District Court correctly interpreted. 

¶10 For the foregoing reasons, we affirm the judgment of the District Court. 

/S/ PATRICIA COTTER 

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We Concur: 

/S/ KARLA M. GRAY 

/S/ W. WILLIAM LEAPHART 

/S/ BRIAN MORRIS 

/S/ JAMES C. NELSON 

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