DA 08-0531

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 255N

STATE OF MONTANA,

Plaintiff and Appellee,

v.

SARAH RUTH RICE,

Defendant and Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District,

In and For the County of Hill, Cause No. DC 08-025

Honorable John C. McKeon, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender; Koan Mercer, Assistant Appellate

Defender, Helena, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; Matthew T. Cochenour,

Assistant Attorney General, Helena, Montana

Submitted on Briefs: June 25, 2009

Decided: August 3, 2009

Filed:

__________________________________________

Clerk

August 3 2009
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Chief Justice Mike McGrath 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 Sarah Ruth Rice (Rice) appeals from the denial of her motion to suppress evidence

and final judgment convicting her of driving under the influence of alcohol (DUI), fourth

offense, felony, by the Twelfth Judicial District Court, Hill County. We affirm.

¶3 The issue on appeal is whether the police officer had particularized suspicion to

stop Rice.

¶4 Slightly after 4:00 in the morning of Friday, February 29, 2008, Havre Police

Officer Allen Koch (Koch) and Lieutenant William Wilkinson (Wilkinson) observed

Rice’s vehicle slowly pull away from the curb and drive down the street. Officer Koch

observed that Rice was driving “unusually slowly,” and he began following her down

residential streets. Koch noted that although the posted speed limit was 15-25 MPH, Rice

drove no faster than 10 MPH. Both officers observed Rice’s vehicle drift toward the left

side or center of residential streets unmarked with center lines. The officers further

observed that Rice had to pull her vehicle back into her lane when another police vehicle

approached in the oncoming lane. Based on his observations, Officer Koch stopped
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Rice’s vehicle. The patrol car’s onboard video camera recorded Rice’s driving before she

was stopped.

¶5 Officer Koch’s resulting investigation produced evidence that led the State to

charge Rice with felony DUI, driving while the privilege to do so is suspended or

revoked, and driving while a habitual traffic offender. Rice moved to suppress the

evidence against her, arguing that Officer Koch lacked particularized suspicion to stop

her vehicle. The District Court held an evidentiary hearing on the motion on June 12,

2008. The court heard testimony from Officer Koch and Lieutenant Wilkinson and

viewed the patrol car video. The District Court denied Rice’s motion to suppress. Rice

pled guilty to DUI under a plea agreement, expressly reserving her right to appeal the

court’s denial of her motion to suppress. The State dismissed the two misdemeanor

charges and the District Court sentenced Rice to a 13-month commitment to the

Department of Corrections followed by a suspended two-year commitment. Rice now

appeals the denial of her motion to suppress.

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

the court’s underlying findings of fact are clearly erroneous and whether the court

correctly interpreted and applied the law to those findings. State v. Gilder, 1999 MT 207,

¶ 7, 295 Mont. 483, 985 P.2d 147. “A finding is clearly erroneous if it is not supported

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

or this Court is left with a definite and firm conviction that the district court made a

mistake.” Gilder, ¶ 7.
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¶7 Montana law provides that “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(1), MCA. The State must prove that an officer had particularized

suspicion to stop a vehicle by showing: (1) objective data and articulable facts from

which an officer can make certain reasonable inferences; and (2) a resulting suspicion

that the person to be stopped has committed, is committing, or is about to commit an

offense. Brown v. State, 2009 MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842; State v.

Gopher, 193 Mont. 189, 194, 631 P.2d 293, 296 (1981). Whether particularized

suspicion exists is a question of fact that depends on the totality of the circumstances.

State v. Lafferty, 1998 MT 247, ¶ 10, 291 Mont. 157, 967 P.2d 363.

¶8 Rice argues that review of the onboard videotape shows that the District Court’s

particularized suspicion findings were clearly erroneous. However, Rice misconceives

the scope of our review on appeal. In determining whether the District Court’s

particularized suspicion findings were clearly erroneous, this Court reviews all of the

evidence presented at the suppression hearing, not exclusively one piece of evidence such

as the patrol car videotape. The District Court heard testimony from both Officer Koch

and Lieutenant Wilkinson, and viewed the videotape of Rice’s driving prior to the traffic

stop. The court listed the following objective data that provided Officer Koch with

particularized suspicion for the stop: unusually slow operation of the vehicle, drifting

several times toward the center of the roadway, and the maneuver to avoid on-coming

traffic. Thus, the District Court’s finding of particularized suspicion was supported by
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substantial evidence. We conclude that the District Court’s denial of Rice’s motion to

suppress was not clearly erroneous based on the totality of the circumstances.

¶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 face of the briefs and the record that the

appeal is without merit because the issues are factual and there clearly is sufficient

evidence to support the findings of fact below.

¶10 Affirmed.

/S/ MIKE McGRATH

We concur:

/S/ JOHN WARNER

/S/ W. WILLIAM LEAPHART

/S/ BRIAN MORRIS

/S/ JIM RICE