State v. Lee

• Decision Date: 06 May 1997
• Docket Number: No. 96-557,96-557
• Citation: State v. Lee, 282 Mont. 391, 938 P.2d 637, 54 St. Rep. 401 (Mont. 1997)
• Parties: STATE of Montana, Plaintiff and Respondent, v. David Rollyn Palm LEE, Defendant and Appellant.
• Court: Montana Supreme Court

Page 637

938 P.2d 637

282 Mont. 391

STATE of Montana, Plaintiff and Respondent, v. David Rollyn Palm LEE, Defendant and Appellant.

No. 96-557.

Supreme Court of Montana.

Submitted on Briefs March 20, 1997.

Decided May 6, 1997.

Francis J. McCarvel, Glasgow, for Appellant.

Joseph P. Mazurek, Attorney General; Christina Lechner Goe, Assistant Attorney General; Helena, Ken Oster, Valley County Attorney; C. David Gorton, Deputy County Attorney; Glasgow, for Respondent.

REGNIER, Justice.

David Lee was cited with driving while under the influence of alcohol pursuant to § 61-8-401, MCA, on April 30, 1995. After a hearing, the Valley County Justice Court denied Lee's motion to suppress evidence of the arresting officer's field observations and subsequent breathalyzer test result and found Lee guilty. Lee appealed this determination to the District Court. Prior to trial at the District Court, Lee again moved to suppress this evidence. The Seventeenth Judicial District Court, Valley County, denied Lee's motion to suppress evidence due to lack of probable cause for the stop, concluding that the arresting officer, acting on information from a citizen informant coupled with his own observation and experience, could infer suspicion of criminal conduct giving rise to Lee's arrest. The District Court heard the case de novo pursuant to § 25-33-301, MCA, and found Lee guilty. Lee appeals from the sentence and judgment of the District Court and from the order denying his motion to suppress evidence. We reverse.

The issue on appeal is whether Patrolman Collins had a particularized suspicion to justify an investigative stop of Lee's vehicle.

BACKGROUND

At 11:46 p.m. on April 29, 1995, Montana Highway Patrolman Arthur Collins received a report from law enforcement dispatchers that an anonymous citizen informant had called to notify the police that a purple Chevrolet Camaro with a tan convertible top, driven by David Lee, was heading toward Glasgow on the Fort Peck highway. The complainant believed Mr. Lee was under the influence of alcohol, and speeding. Collins determined that Lee lived in Glasgow, and responded by heading south on the Fort Peck highway from Glasgow.

Less than one-half hour later after receiving the report, Collins observed Lee's vehicle heading northbound on the Fort Peck Highway toward Glasgow. The officer, using radar, determined the vehicle's speed to be 52 miles per hour. At that time, the nighttime speed limit was 55 miles per hour. The officer made a U-turn in the roadway and sped up behind the vehicle. As Collins came within two or three car lengths behind Lee's vehicle, Lee slowed to approximately 35 miles per hour. There were no other vehicles on the highway. At this time, Collins activated his overhead lights and pulled Lee off the road. After stopping the vehicle, Officer Collins was able to identify the driver as Lee, the man described in the dispatch report. Subsequently, Collins arrested Lee for driving while under the influence of alcohol.

DISCUSSION

Did Patrolman Collins have a particularized suspicion to justify an investigative stop of Lee's vehicle?

The standard of review for a district court's denial of a motion to suppress is whether the court's findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Flack (1993), 260 Mont. 181, 185-88, 860 P.2d 89, 92-94.

Lee argues that the District Court erred in denying his motion to suppress and in finding him guilty of driving under the influence of alcohol. Lee claims that Officer Collins did not have a particularized suspicion to justify an investigatory stop pursuant to § 46-5-401, MCA. Section 46-5-401, MCA, provides:

Investigative stop. 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.

The Fourth Amendment applies to seizures of the person, including brief investigatory stops such as the stop of a vehicle. Reid v. Georgia (1980), 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890, 893. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in a crime. Brown v. Texas (1979), 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357, 362. For sufficient cause to stop a person, the detaining police officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. Brown, 443 U.S. at 51, 99 S.Ct. at 2640-41.

In United States v. Cortez (1981), 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621, the United States Supreme Court set forth a two-part test to evaluate whether the police have sufficient cause to stop a person. First, the assessment must be based upon all circumstances. Cortez, 449 U.S. at 418, 101 S.Ct. at 695. Second, the assessment of the whole picture must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. Cortez, 449 U.S. at 418, 101 S.Ct. at 695.

This Court adopted the test laid out in Cortez in State v. Gopher (1981), 193 Mont. 189, 631 P.2d 293. In asserting that an officer had the particularized suspicion to make an investigatory stop, the State has the burden to show:

(1) objective data from which an experienced officer can make certain inferences; and

(2) a resulting suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing or was a witness to criminal activity.

Gopher, 193 Mont. at 194, 631 P.2d at 296.

Whether a particularized suspicion exists is a question of fact which depends on the totality of circumstances. State v. Reynolds (1995), 272 Mont. 46, 899 P.2d 540. In Reynolds, the arresting officer himself observed a pickup truck driven by the defendant, which the officer testified was "bordering on traveling too fast" for conditions. A short time later the officer met the vehicle again, and testified that the defendant waited at an intersection for seven to ten seconds before proceeding. The officer observed no other violations of law or driving anomalies. The...