State v. Gilder, 99-052.

• Decision Date: 09 September 1999
• Docket Number: No. 99-052.,99-052.
• Citation: 1999 MT 207,985 P.2d 147
• Parties: STATE of Montana, Plaintiff and Respondent, v. Jay Samuel GILDER, Defendant and Appellant.
• Court: Montana Supreme Court

985 P.2d 147

1999 MT 207

STATE of Montana, Plaintiff and Respondent, v. Jay Samuel GILDER, Defendant and Appellant.

No. 99-052.

Supreme Court of Montana.

Submitted on Briefs June 10, 1999.

Decided September 9, 1999.

Larry D. Mansch, Office of Public Defender; Missoula, Montana, For Appellant.

Hon. Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General; Helena, Montana, Fred R. Van Valkenburg, Missoula County Attorney; Scott M. Stearns, Deputy County Attorney; Missoula, Montana, For Respondent.

Justice TERRY N. TRIEWEILER delivered the Opinion of the Court.

¶ 1 By information filed in the District Court for the Fourth Judicial District in Missoula County, the defendant, Jay Samuel Gilder, was charged with operating a motor vehicle while under the influence of alcohol or drugs, in violation of §§ 61-8-401 and -714, MCA; driving while his license was suspended or revoked, in violation of § 61-5-212, MCA; and obstructing a peace officer, in violation of § 45-7-302, MCA. Gilder filed a motion to suppress all evidence stemming from the stop of his vehicle. The motion was denied, and Gilder entered an Alford plea, reserving his right to appeal from the denial of the motion. We reverse.

¶ 2 The issue on appeal is whether the district court erred when it denied Gilder's motion to suppress.

FACTUAL BACKGROUND

¶ 3 The District Court did not conduct an evidentiary hearing in this case. However, the following facts, taken from the Missoula County Sheriff's incident report, were considered by the District Court without objection. At approximately 1:30 a.m. on June 26, 1998, Missoula County Sheriff's Deputy Pat Estill observed a vehicle waiting at a traffic light at the intersection of South Avenue and Reserve Street in Missoula. When the light turned green, the vehicle proceeded through the intersection at a slow rate of speed. While Deputy Estill followed the vehicle driven by Gilder, it turned at four intersections within a residential neighborhood. Gilder did not exceed 15 mph, although it was permissable to drive 25 mph on the roads on which he was observed. Deputy Estill decided to talk to Gilder "because he appeared to be casing the neighborhood."

¶ 4 Deputy Estill initiated a traffic stop, following which he noticed the odor of alcohol emanating from the vehicle. Gilder initially provided Deputy Estill with a false name. After determining Gilder's true name, Deputy Estill discovered that Gilder's driver's license was revoked and that he was on parole. Deputy Estill arrested Gilder for driving under the influence of alcohol, obstructing a law enforcement officer, and driving with a revoked license.

¶ 5 Gilder moved to suppress all evidence collected as a result of the stop, based on his contention that Deputy Estill lacked a particularized suspicion to initiate the stop. The District Court issued an opinion and order in which it denied the motion to suppress. Gilder entered an Alford plea of guilty to the DUI charge and reserved his right to appeal.

¶ 6 Did the district court err when it denied Gilder's motion to suppress?

¶ 7 We review a district court's denial of a motion to suppress for clearly erroneous findings of fact and to determine whether those findings were correctly applied as a matter of law. 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. See State v. Jarman, 1998 MT 277, ¶ 8, 291 Mont. 391, ¶ 8, 967 P.2d 1099, ¶ 8.

¶ 8 The United States Supreme Court has recognized an exception to the general warrant requirement of the Fourth Amendment, pursuant to which a law enforcement officer can make an investigatory stop of a motor vehicle without probable cause when the State can establish: (1) objective data from which an experienced officer can make certain inferences; and (2) a resulting "particularized suspicion" that the occupant of the vehicle is or has been engaged in wrongdoing or was a witness to criminal activity. See United States v. Cortez (1981), 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621; Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. This Court adopted the Cortez articulation of the Terry stop in State v. Gopher (1981), 193 Mont. 189, 194, 631 P.2d 293, 296.

¶ 9 The legislature subsequently codified particularized suspicion at § 46-5-401, MCA, which states:

In order to obtain or verify an account of the person's presence or conduct or to determine whether to arrest the person, 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.

¶ 10 In order to show sufficient cause to stop a vehicle, the burden is on the State to show: (1) objective data from which an experienced police officer can make certain inferences; and (2) a resulting suspicion that the occupant of the vehicle is or has been engaged in wrongdoing or was witness to criminal activity. See Jarman, ¶ 10.

¶ 11 The essence of this test is that the totality of the circumstances must give law enforcement a particularized and objective basis for suspecting the person of criminal activity. See State v. Reynolds (1995), 272 Mont. 46, 50, 899 P.2d 540, 544-43. "In evaluating the totality of the circumstances, a court should consider the quantity, or content, and quality, or degree of reliability, of the information available to the officer." State v. Pratt (1997), 286 Mont. 156, 161, 951 P.2d 37 (citing Alabama v. White (1990), 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 309).

¶ 12 The only record before the District Court in this case was Deputy Estill's written incident report. Gilder contends that because there was no testimony offered to establish the foundation for Deputy Estill's conclusion in the report that Gilder was "casing" the neighborhood, the State has not met its burden to show a particularized and objective basis for suspecting him of criminal activity.

¶ 13 The incident report states:

At about 0130 hrs on 6-26-98 I did observe (a) Jay Gilder headed east bound on South Avenue. He was stopped at the traffic light at Reserve on South. Gilder proceeded through the intersection when the light turned green at a slow rate of speed. I decided to follow Gilder as he drove east bound.

Gilder turned south onto Clark and drove to Mary Street. His driving appeared okay except he continued to drive slowly. About 15 mph. He then turned east onto May and drove to Eaton. Gilder turned north onto Eaton and then east onto Livingston[.] Because he appeared to be casing the neighborhood[] I stopped Gilder on Livingston near Eaton.

¶ 14 The State contends that Gilder's slow rate of speed and "pointless meandering" through the neighborhood formed an objective basis from which an experienced officer could draw the reasonable inference that the driver was "casing" the neighborhood. It asserts that because the officer's basis for the stop was adequately articulated in the incident report, the court did not need to hear testimony from the officer in order to make a finding that particularized suspicion existed.

¶ 15 In State v. Angeline, 1998 MT 139, 289 Mont. 222, 961 P.2d 1251, we addressed the issue of whether the testimony of the arresting officer is required to prove a particularized suspicion...