State v. Hoover

• Decision Date: 21 September 2017
• Docket Number: DA 15-0703.
• Citation: 402 P.3d 1224,388 Mont. 533,2017 MT 236
• Parties: STATE of Montana, Plaintiff and Appellee, v. Steven Todd HOOVER, Defendant and Appellant.
• Court: Montana Supreme Court

388 Mont. 533

402 P.3d 1224

2017 MT 236

STATE of Montana, Plaintiff and Appellee,

v.Steven Todd HOOVER, Defendant and Appellant.

DA 15-0703.

Supreme Court of Montana.

Submitted on Briefs: May 24, 2017

Decided: September 21, 2017

For Appellant: Chad Wright, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana, Edward J. Corrigan, Flathead County Attorney, Andrew C. Clegg, Deputy County Attorney, Kalispell, Montana

Justice Dirk M. Sandefur delivered the Opinion of the Court.

¶ 1 Steven Todd Hoover (Hoover) appeals the order of the Montana Eleventh Judicial District Court, Flathead County, affirming the Flathead County Justice Court's denial of his motion to suppress evidence obtained subsequent to an investigative law enforcement stop. We reverse.

Did the Justice Court erroneously deny Hoover's motion to suppress evidence?

BACKGROUND

¶ 2 Sometime before midnight on August 2, 2013, Defendant Hoover, accompanied by an adult female acquaintance, drove his Ford pickup truck into a private mini-storage complex (AAA Mini-Storage) located just off Highway 2 East on the outskirts of Kalispell, Montana. The partially fenced complex had no gate and was open to the public 24 hours a day, seven days a week. The couple parked with their lights off in a dark and relatively secluded spot at the back end of the complex between two rows of storage units to engage in consensual intimacy on a warm summer night.

¶ 3 Just before midnight, while patrolling through an adjacent automobile dealership lot, Sgt. Phil Meredith, a Flathead County deputy sheriff with over 21 years of experience, 18 on patrol, noticed Hoover's vehicle parked in the dark between two storage unit rows on the publicly accessible lot. After stopping and turning off his lights to observe further, Meredith saw the silhouettes of two people sitting in the front seats of the parked truck. He later testified that he could not see what they were doing, but saw enough movement to tell that two people were in the truck.

¶ 4 Based on his experience that people do not commonly access storage units at midnight and his general awareness that storage units "are always being broken into," Sgt. Meredith immediately suspected that a storage unit break-in might be in progress and summoned other law enforcement officers in the area to assist him in contacting the occupants of the vehicle to investigate further. Upon the arrival of two more Flathead County sheriff's deputies and a Montana Highway Patrol (MHP) trooper, Meredith and the other officers gathered on foot at the entrance of the complex where they split into two groups and set out to sneak-up behind the truck and converge on the occupants from both sides.

¶ 5 Sgt. Meredith and the trooper crept up to a point about 10 to 15 yards behind the pickup where they could look around a storage unit and see the vehicle. Upon observing from that vantage point for "less than a minute," Meredith saw that the passenger side window was down and again saw the silhouettes of two people sitting in the pickup—one in the driver's seat and the other in the front passenger seat. He testified that he still could not see what the occupants were doing but the driver appeared to be looking down at the steering wheel or into his lap. Based on his experience that people often find a secluded spot to use illegal drugs, Meredith testified that, in addition to his initial suspicion of a possible break-in, he suspected that the driver might also be engaged in illegal drug activity, such as "either loading up a marijuana bowl or shooting up." However, Meredith articulated no specific observation, fact, or circumstance particularly indicative of such illegal drug use.

¶ 6 Without any additional information, the four officers left the cover of the storage units and walked up on the parked truck from the rear. Sgt. Meredith and the MHP trooper walked up along the passenger side and the other two deputies walked up along the driver's side. As they approached from behind on both sides of the truck, the officers heard nothing from inside the cab and saw only that the driver was still looking down towards his lap with the passenger "just sitting there."

¶ 7 When Sgt. Meredith and the trooper reached the open passenger side window, Meredith lit up the interior of the cab with his flashlight and announced the presence of law enforcement officers. Looking into the illuminated interior of the cab, Meredith saw Hoover sitting in the driver's seat with his penis exposed, masturbating while his fully clothed female companion was calmly watching from the front passenger seat. The officers saw no indication of a possible break-in, illegal drug use, or other illegal activity. The officers further observed no indication that Hoover's female companion was in distress, not free to leave, or in any way threatened or concerned about Hoover's conduct. Meredith later testified that the two people "were never close together."

¶ 8 Nonetheless, upon seeing what was going on, Sgt. Meredith became further concerned that Hoover might be engaged in indecent exposure or about to subject the woman to sexual intercourse without consent. He testified that he thought further intrusion and investigation was necessary to determine whether "the female was comfortable being there with a man exposing his penis." After first questioning Hoover's companion and confirming that she was there of her own free will, the officers began questioning Hoover. Despite what he had clearly observed and confirmed, Meredith testified that he still thought further investigation was necessary to dispel his initial suspicion of a possible storage unit break-in. He articulated no specific factual basis for this continued suspicion.

¶ 9 While questioning Hoover, one or more of the officers noticed an alcoholic odor on his breath and requested a preliminary breath test (PBT).¹ Hoover consented and the PBT indicated a 0.05% blood alcohol concentration. Upon further inquiry, the officers ascertained that Hoover was on probation supervised by the Montana Department of Corrections. At the direction of an on-call probation officer, the officers arrested Hoover on suspicion of violating the alcohol restriction of his probation. Upon searching him incident to arrest, one of the officers found a small marijuana pipe with suspected residue in Hoover's pants pocket. The officers then transported him to jail and cited him into Flathead County Justice Court on the charge of Criminal Possession of Drug Paraphernalia, a misdemeanor in violation of § 45-10-103, MCA.

¶ 10 In Justice Court, Hoover filed a motion to suppress all evidence gathered incident to the "investigative stop" on the asserted ground that the officers lacked sufficient particularized suspicion to detain and question him about potential criminal activity. Following a hearing, the Justice Court denied the motion on the ground that no constitutional seizure of Hoover's person occurred, thus eliminating any legal requirement for particularized suspicion to conduct further investigation. Hoover then pled "no contest" to the drug paraphernalia charge, received a six-month deferred sentence, and appealed the denial of his suppression motion under a reservation of rights to the Montana Eleventh Judicial District Court.

¶ 11 On appeal, the District Court, Hon. Ted O. Lympus presiding, concluded that, under the totality of the circumstances, four uniformed police officers converging upon Hoover's parked pickup was a constitutional seizure requiring particularized suspicion of criminal activity to temporarily detain and question him. The District Court remanded back to Justice Court for an evidentiary hearing to determine whether sufficient particularized suspicion existed to justify the investigative stop. Upon hearing on remand, the Justice Court again denied Hoover's motion to suppress, this time on the undifferentiated finding and conclusion that the officers lawfully detained and continued to question Hoover on particularized suspicion of a possible break-in, illegal drug use, and/or non-consensual sexual activity. On appeal, the District Court, Hon. Katherine Curtis presiding, affirmed the Justice Court ruling, concluding that sufficient particularized suspicion of criminal activity existed to temporarily detain Hoover for questioning prior to arrest. Hoover appeals.

STANDARD OF REVIEW

¶ 12 On appeal from a justice court of record, the district court functions as an intermediate appellate court confined to review of the record and questions of law. Sections 3-5-303 and 3-10-115, MCA ; State v. Luke , 2014 MT 22, ¶ 9, 373 Mont. 398, 321 P.3d 70.² On appeal of a district court's appellate review of a lower court ruling, we review the lower court ruling as if appealed directly to this Court without district court review. State v. Maile , 2017 MT 154, ¶ 7, 388 Mont. 33, 396 P.3d 1270. Upon independent review of the lower court record, our standard of review is whether the lower court's findings of fact are clearly erroneous, whether its conclusions of law are correct, and, as applicable, whether the lower court abused its discretion. State v. Davis , 2016 MT 206, ¶¶ 5-6, 384 Mont. 388, 378 P.3d 1192. A lower court's findings of fact are clearly erroneous only if not supported by substantial credible evidence, the lower court misapprehended the effect of the evidence, or we are nonetheless left with a firm and definite conviction that the lower court was simply mistaken. Maile , ¶ 8. Accordingly, our standard of review of a lower court's denial of a motion to suppress evidence is whether the lower court's findings of fact are clearly erroneous and whether it correctly applied the controlling law to those facts. State v. Foster , 2017 MT 118, ¶ 6, 387 Mont. 402, 394 P.3d 916 ; State v. Massey , 2016 MT 316, ¶ 7, 385 Mont. 460, 385 P.3d 544. W...