State v. Jarman, 97-696

• Decision Date: 12 November 1998
• Docket Number: No. 97-696,97-696
• Citation: 1998 MT 277,967 P.2d 1099,291 Mont. 391
• Court: Montana Supreme Court
• Parties: , 1998 MT 277 STATE of Montana, Plaintiff and Respondent, v. Chester JARMAN, Defendant and Appellant.

Page 1099

967 P.2d 1099

291 Mont. 391, 1998 MT 277

STATE of Montana, Plaintiff and Respondent, v. Chester JARMAN, Defendant and Appellant.

No. 97-696.

Supreme Court of Montana.

Submitted on Briefs May 14, 1998.

Decided Nov. 12, 1998.

Mark English, Deputy Public Defender, Billings, for Appellant.

Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Melanie Logan, Deputy Yellowstone County Attorney, Billings, for Respondent.

HUNT, Justice.

¶1 Chester Jarman pled guilty to felony possession of dangerous drugs, misdemeanor possession of drug paraphernalia, and felony possession of a concealed weapon in the Thirteenth Judicial District Court, Yellowstone County. He appeals on an issue he reserved before entering his guilty plea. We reverse.

¶2 The issue is whether the District Court erred in determining that the officer who arrested Jarman had the requisite particularized suspicion to stop his vehicle.

¶3 On December 23, 1996, at approximately 3:30 a.m., Officer Brian Korell of the Billings, Montana, Police Department responded to a domestic disturbance call. The female who had reported the domestic disturbance as a fight between herself and her boyfriend told Officer Korell and another officer who arrived at her home in response to the call that her boyfriend may be on his way to the Colonial Apartments, about three blocks away.

¶4 Officer Korell drove toward the Colonial Apartments. While doing so, he observed an individual later identified as Chester Jarman standing beside a car at an outside pay telephone. No one else was around and Officer Korell observed no other traffic. Officer Korell drove around the block and back to the pay telephone. By that time, Jarman and his automobile were no longer there. The phone receiver was off the hook.

¶5 Continuing to patrol the area, Officer Korell observed Jarman's car leaving the parking lot of an apartment complex. Officer Korell initiated a traffic stop during which he discovered a knife in plain view on the front seat of the car. Then, on Jarman's person, he found illegal drugs and a gun. Officer Korell also learned that outstanding warrants existed against Jarman.

¶6 Jarman moved to suppress all of the evidence found on his person and in his car on grounds that the stop was not supported by a reasonable articulable suspicion that he had engaged in criminal activity. After briefing and a hearing, the court denied the motion to suppress. Jarman subsequently pled guilty to the charges against him, reserving the right to appeal the denial of his motion to suppress.

DISCUSSION

¶7 Did the District Court err in determining that the officer who arrested Jarman had the requisite particularized suspicion to stop his vehicle?

¶8 This Court's standard of review of a denial of a motion to suppress is whether the district court's findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Roberts (1997), 284 Mont. 54, 56, 943 P.2d 1249, 1250. 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. State v. Doyle, 1998 MT 195, p 10, 290 Mont. 287, p 10, 963 P.2d 1255, p 10.

¶9 The Fourth Amendment to the United States Constitution and Article II, Section 11 of the Montana Constitution protect persons against unreasonable searches and seizures of their persons, including brief investigatory stops such as stops of vehicles. See United States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621, 628. An investigatory stop must be justified by some objective manifestation that the person stopped is or is about to be engaged in criminal activity. Brown v. Texas (1979), 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357, 362. To stop a person, an officer must have a particularized and objective basis for suspecting the particular person of criminal activity. Brown, 443 U.S. at 51, 99 S.Ct. at 2640-41, 61 L.Ed.2d at 362.

¶10 Montana has codified the standard for an investigatory stop of a person or vehicle at § 46-5-401, MCA:

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.

This Court has held that 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. State v. Gopher (1981), 193 Mont. 189, 194, 631 P.2d 293, 296.

¶11 In this case, the District Court stated in its findings that Officer Korell suspected that Jarman might have been the individual involved in the domestic disturbance to which he had responded. This finding is supported by substantial evidence in the form of Officer Korell's testimony. However, Officer Korell's testimony in this regard was not based upon reasonable inferences from objective data. Although, as the State points out, experienced law enforcement officers are allowed to draw conclusions which laymen could not properly draw, Gopher, 193 Mont. at 193, 631 P.2d at 295, nothing in this record connected Jarman to the domestic disturbance other than the fact that he was the only male Officer Korell observed in the area. Moreover, Officer Korell admitted that he did not mention in his police report that he stopped Jarman's car because he was a suspect in the disturbance; he voiced this rationale for the first time at the suppression hearing.

¶12 The District Court also found that "Officer Korell thought defendant was trying to elude him." This finding, while also supported by Officer Korell's testimony at the suppression hearing, is not based on reasonable inferences. Officer Korell conceded during his testimony that if Jarman had wanted to avoid him after being spotted at the pay phone, he could have been several miles away from the area by the time Officer Korell saw him driving out of the apartment complex parking lot only a few blocks away. Officer Korell could not have logically concluded that Jarman was attempting to elude him by continuing to drive around in the area in which Officer Korell had just seen him.

¶13 The District Court concluded that the only issue raised by Jarman in his motion to suppress was the legality of the stop. The court then concluded that "Officer Korell had a particularized suspicion that defendant had committed an offense to authorize a stop ..., considering the totality of the circumstances existent at the time of the stop."

¶14 Being in a high crime area by itself does not give the police a particularized suspicion to stop a person. Brown, 443 U.S. at 52, 99 S.Ct. at 2641, 61 L.Ed.2d at 362-63. In Brown, police officers in El Paso, Texas, noticed two...