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 Attorn ey General, Joslyn M. Hunt, Assistant Attorney Gene ral, 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:

__________________________________________ ClerkJustice Patricia O. Cotter deliv ered the Opinion of the Court. ¶1 Pursuant to Section I, Para graph 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 disp osition shall be included in this Court's quarterly list of noncitable cas es published in the Pacific Reporter and Montana Reports. ¶2 Jose Marcos Gutierrez (Gutierrez) was c onvicted of misdemeanor driving under

the influence of alcohol and misdemeanor driving without required motor vehicle insurance. He appeals his conviction on th e 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 dispositiv e issue on appeal is whethe r the District Court erred in denying Gutierrez’s motion to suppress upon determination that the arresting officer had the requisite particularized suspic ion 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).

2FACTUAL AND PROCED URAL BACKGROUND ¶5 Just after midnight on May 26, 2004, Yellowst one 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 situ ation, 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, Frit z noticed the odor of al cohol 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 automo bile insurance. ¶6 A non-jury trial was scheduled in the Criminal Division of Justice Court for Yellowstone County for Nove mber 18, 2004. Gutierrez failed to appear and was adjudicated guilty of bo th offenses and sentenced. He moved to stay imposition of the sentence and appealed the d ecision to the Thirteenth Judicial District Court for Yellowstone County. ¶7 In District Court, Gutierrez moved to su ppress the arresting officer’s evidence, claiming that Fritz had no “particularized suspic ion” 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 th e warrantless search. The Distri ct Court held a suppression hearing on July 13, 2005, and on August 24, entered its Find ings of Fact, Conclusions of

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

3to stop Gutierrez and denied Gutierrez’s moti on to suppress. Gutierrez subsequently entered guilty pleas to both charges but appealed the District Court’s Order. ¶8 In holding that particulariz ed 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 experi enced officer has a duty to investigate when “confronted with circumstances which that officer believes demand investigation.”), and State v. Gopher , 193 Mont. 189, 192, 6 31 P.2d 293, 295 (1981) ( O bjective facts and circumstantial evidence su ggesting that a particular automobile is

involved in some sort of criminal activity is sufficien t 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, a nd that no vehicle occupa nt was visible, Fritz indeed had sufficient particularized suspicion to investigate further. ¶9 We have determined to deci de this case pursuant to Se ction 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 issu es are clearly controlled by

settled Montana law which the Distri ct Court correctly interpreted. ¶10 For the foregoing reasons, we affirm th e judgment of the District Court.

/S/ PATRICIA COTTER

4We Concur:

/S/ KARLA M. GRAY /S/ W. WILLIAM LEAPHART /S/ BRIAN MORRIS /S/ JAMES C. NELSON

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