State v. Collard, 96-646

• Decision Date: 18 December 1997
• Docket Number: No. 96-646,96-646
• Parties: STATE of Montana, Plaintiff and Respondent, v. Jonathan COLLARD, Defendant and Appellant.
• Court: Montana Supreme Court

Page 56

951 P.2d 56

286 Mont. 185

STATE of Montana, Plaintiff and Respondent, v. Jonathan COLLARD, Defendant and Appellant.

No. 96-646.

Supreme Court of Montana.

Submitted on Briefs May 8, 1997.

Decided Dec. 18, 1997.

Daniel P. Buckley, Berg, Lilly, Andriolo & Tollefsen, Bozeman, for Defendant and Appellant.

Joseph P. Mazurek, Attorney General, Tammy K. Plubell, Assistant Attorney General, Marty Lambert, Gallatin County Attorney, Jane Mersen, Deputy Gallatin County Attorney, Bozeman, for Plaintiff and Respondent.

NELSON, Justice.

Jonathan Collard was charged in the District Court for the Eighteenth Judicial District, Gallatin County, with one count of robbery, a felony, and one count of criminal possession of dangerous drugs, a misdemeanor. After his pretrial motions to suppress physical evidence and his confession were denied, he pleaded guilty to both counts reserving his right to appeal the denial of his motions. We affirm.

We address the following issues on appeal:

1. Did the District Court err in concluding that Officer Megargel had a particularized suspicion to stop Collard?

2. Did the District Court err in denying Collard's motion to suppress physical evidence seized during a warrantless search?

3. Did the District Court err in denying Collard's motion to suppress his confession?

Factual and Procedural Background

In the early morning hours of November 29, 1995, the night clerk at Town Pump West in Bozeman reported a robbery. The clerk reported that the suspect was armed with a knife and that he had fled on foot. Officer Greg Megargel responded to the scene. A few blocks from the Town Pump, Officer Megargel noticed a vehicle exiting a nearby trailer park "in a hurried manner." Officer Megargel testified that he thought this suspicious as it was the only vehicle moving about at that hour. As Officer Megargel caught up to the vehicle, he noticed that it had out-of-state plates so he requested that dispatch run a vehicle registration check.

Officer Megargel flashed his high beams on the vehicle to determine the number of occupants. He contends that just after he flashed his high beams, the vehicle turned a corner and pulled over to the side of the road unexpectedly. Collard, the driver of the vehicle, contends that he pulled over because he saw the yellow lights on top of the patrol car come on and he thought that the officer was signaling him to stop. Officer Megargel maintains that he had not turned his yellow top lights on or in any other way signaled Collard to pull over.

After Collard stopped, Officer Megargel pulled in behind him, got out of his patrol car and approached the vehicle. He noticed that Collard was sweating even though it was cold out, that he had splashes of mud on his sweatpants, and that his boots were wet. Officer Megargel asked Collard to step from the vehicle and then called dispatch for a confirmation of the description of the robber. The robber was described as wearing a blue sweatshirt, blue sweatpants, a bandana, ski goggles and black and white shoes. Collard was wearing an orange parka, white t-shirt, blue sweatpants, a blue hat, and two-toned brown Sorel boots.

Officer Megargel pat searched Collard for weapons. There is a dispute as to how many pat searches were conducted prior to placing Collard under arrest. Nevertheless, during one of these pat searches, Officer Megargel felt an object in the leg of Collard's sweatpants that he determined to be a pair of ski goggles. Officer Megargel testified that he knew immediately that the object was ski goggles. He stated that he only had to touch the object for "a couple seconds" to recognize what it was. After discovering the ski goggles, Officer Megargel placed Collard under arrest.

Collard was transported to the Bozeman Police Department. During a tape recorded interview conducted by Detective Bill Dove, Collard was advised of his rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. During this taped interview, Collard indicated that he understood his rights and, after signing a waiver of those rights, he confessed to committing the robbery.

After confessing to the robbery, Collard was taken to a field near the Town Pump where he claimed that he had dropped the knife that he used in the robbery. Officers searched the field but did not find the knife. Upon returning to the police station, Collard voluntarily filled out a handwritten confession before being taken to justice court for an initial appearance.

On December 11, 1995, Collard was charged with one count of robbery, a felony, in violation of § 45-5-401, MCA, and one count of criminal possession of dangerous drugs, a misdemeanor, in violation of § 45-9-102, MCA. He pleaded not guilty. The District Court originally set April 22, 1996, as the trial date, however, the matter was continued several times and trial was finally reset for August 14, 1996.

On August 9, 1996, Collard filed a motion to once again continue the trial date. This motion was subsequently denied by the District Court. On August 12, 1996, Collard filed combined motions to suppress physical evidence and his confession. He contended that the evidence was obtained from an illegal detention and search. He also contended that his confession was illegally obtained because prior to the taped interview in which he confessed, he was questioned without being advised of his Miranda rights.

On the day set for trial, the District Court allowed the State and Collard to voir dire and select the jury. The court then dismissed the jury for the day and conducted a hearing on Collard's motions to suppress. After considering the evidence and legal arguments presented at the hearing, the District Court entered findings of fact, conclusions of law and order denying Collard's motion to suppress physical evidence. The following day, Collard withdrew his not guilty plea and pleaded guilty to both counts, reserving his right to appeal the denial of his pre-trial motions. The jury was dismissed without being sworn in.

The District Court's August 14, 1996 order did not specifically address Collard's motion to suppress his confession. Nevertheless, the court stated at the change of plea hearing on August 15, 1996, that it was denying the motion to suppress the confession on the grounds that Collard had waived his Miranda rights after full explanation.

On September 26, 1996, the District Court sentenced Collard to three years with the Department of Corrections on the robbery conviction and an additional three years with the Department of Corrections for the use of a weapon. The sentences were to run consecutively. The court also sentenced Collard to serve six months in the county jail on the criminal possession of dangerous drugs conviction. This latter sentence was to run concurrently to the other sentences.

Collard now appeals the District Court's order denying his motions to suppress his confession and physical evidence.

Standard of Review

We review a district court's denial of a motion to suppress 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. Siegal (1997) 281 Mont. 250, ----, 934 P.2d 176, 180 (citing State v. Williams (1995), 273 Mont. 459, 462, 904 P.2d 1019, 1021; State v. Flack (1993), 260 Mont. 181, 188, 860 P.2d 89, 94).

Issue 1.

Did the District Court err in concluding that Officer Megargel had a particularized suspicion to stop Collard?

Collard contended in his motion to suppress and now on appeal that he was illegally detained and all physical evidence resulting from the search based on that illegal detention must be suppressed. The District Court denied Collard's motion to suppress on the basis that the detention and subsequent search were proper as Officer Megargel had a particularized suspicion that Collard was involved in the robbery at the Town Pump.

Although warrantless searches are considered per se unreasonable under the Fourth Amendment of the United States Constitution, both federal and state law acknowledge certain specific exceptions to the warrant requirement. State v. McCarthy (1993), 258 Mont. 51, 55, 852 P.2d 111, 113 (citing Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576; California v. Acevedo (1991), 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619). One such exception is the investigatory stop.

In 1968, the United States Supreme Court held that a law enforcement officer may stop an individual to investigate possible criminal behavior even though there is no probable cause to make an arrest. Terry v. Ohio (1968), 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889. However, such an investigatory stop is only justified when it is based upon specific, articulable facts from which the officer could reasonably infer that the individual is engaged in criminal activity. Terry, 392 U.S. at 21, 88 S.Ct. at 1880.

Thirteen years later, in United States v. Cortez (1981), 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621, the Supreme Court provided further guidance to determine when an officer has sufficient grounds to make an investigatory stop. In Cortez, the Supreme Court stated that for an officer to make an investigatory stop, the officer must have a particularized suspicion, based upon objective data and the totality of the circumstances, from which an experienced officer can infer that the detained person is, has been or is about to be, engaged in wrongdoing. Cortez, 449 U.S. at 417-18, 101 S.Ct. at 695.

We adopted this standard in State v. Gopher (1981), 193 Mont. 189, 631 P.2d 293, and set forth a two-part test to determine whether sufficient particularized suspicion exists to justify an investigatory stop. We stated in Gopher that the State's burden has two elements: (1) objective data from which an experienced officer can make certain inferences; and (2) a resulting suspicion that the person is, or has been,...