State v. Pratt

• Citation: 286 Mont. 156,54 St.Rep. 1349,951 P.2d 37
• Decision Date: 16 December 1997
• Docket Number: No. 97-144,97-144
• Parties: STATE of Montana, Plaintiff and Respondent, v. Kent James PRATT, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 37

951 P.2d 37

286 Mont. 156

STATE of Montana, Plaintiff and Respondent, v. Kent James PRATT, Defendant and Appellant.

No. 97-144.

Supreme Court of Montana.

Submitted on Briefs Nov. 6, 1997.

Decided Dec. 16, 1997.

J. Dirk Beccari, Quane, Smith, Howard & Hull, Missoula, for Defendant and Appellant.

Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena, Robert L. "Dusty" Deschamps, III, Missoula County Attorney, Robert L. Zimmerman, Deputy County Attorney, Missoula, for Plaintiff and Respondent.

REGNIER, Justice.

Kent James Pratt was charged by information on November 2, 1995, with the offenses of felony driving under the influence of alcohol, misdemeanor possession of more than one valid Montana driver's license, and misdemeanor violation of the provisions of a restricted driver's license. Pratt filed a motion to suppress evidence of his intoxication which had been obtained following the investigatory stop of his vehicle. Pratt also filed a motion to dismiss the charge for lack of jurisdiction. The Fourth Judicial District Court, Missoula County, denied both motions. Pratt entered into a plea agreement with the State in which he agreed to plead guilty to felony DUI and the State agreed to dismiss the two misdemeanor counts and make a specified sentencing recommendation. The District Court sentenced Pratt to a term of five years, with two years suspended, with the Department of Corrections, and recommended his placement in the intensive supervision program. Pratt reserved the right to appeal from the District Court's denial of his pretrial motions. Pratt appeals from the sentence and judgment of the District Court, and from the orders denying his motion to suppress and motion to dismiss. We affirm.

The following issues are presented on appeal:

1. Did the District Court err in denying Pratt's motion to suppress evidence, in which Pratt argued that Officer Pastian did not have a particularized suspicion to justify an investigatory stop of Pratt's vehicle?

2. Did the District Court err in denying Pratt's motion to dismiss the felony DUI charge for lack of jurisdiction?

FACTUAL AND PROCEDURAL BACKGROUND

The defendant's motion to suppress was submitted and decided without an evidentiary hearing. As a factual basis for his motion, however, Pratt used two police reports which he attached to the motion. The following facts are derived from the reports which were considered by the District Court.

At 2:09 a.m. on October 5, 1995, Officer Scott Pastian of the Missoula City Police Department received a police dispatcher's report of an intoxicated driver. The report related that the driver was operating a white Toyota Land Cruiser, license number resembling "GRIZZII" and traveling north on Van Buren Street from East Broadway. The complainant was Mike Lafournaise, the night manager of the Short Stop convenience store in Missoula.

Officer Pastian was traveling south on Van Buren Street when the dispatcher relayed the report with the description of the vehicle and license number. Officer Pastian saw Pratt's Toyota driving toward him on Van Buren Street and then turn onto Elm Street. Officer Pastian initiated a traffic stop. Subsequently, Pastian arrested Pratt for driving under the influence of alcohol, fourth offense; possession of more than one valid Montana driver's license; and violation of the provisions of a restricted driver's license.

Officer J. Pontrelli overheard the dispatch report about the intoxicated driver and proceeded toward Van Buren Street. Upon hearing Pastian inform the dispatcher that he had stopped Pratt, Pontrelli drove to the Short Stop and talked to Lafournaise. Lafournaise described Pratt's actions and intoxicated condition while at the store.

Lafournaise related to Officer Pontrelli that he saw a white male, now known as the defendant, Kent Pratt, drive a 1991 white Toyota Land Cruiser into the store's gas pump lanes where he stopped and sat for awhile and then drove away onto Broadway. A short time later, Pratt returned to the Short Stop, parked again in the pump lane, and stayed in the vehicle for a few minutes. Pratt then exited the vehicle and staggered into the store to the bathroom. After coming out of the bathroom, he went to the beer cooler and stood in front of it as if he were going to purchase some beer. The store attendant then told Pratt that he could not purchase any beer since it was after 2:00 a.m. Pratt left the store, fumbled around in his vehicle, and finally drove away.

In reporting Pratt's actions at the Short Stop to the police, Lafournaise described the vehicle and its distinctive personalized license plate, and informed the dispatcher that Pratt was traveling north on Van Buren Street.

On November 2, 1995, Pratt was charged by information in the Fourth Judicial District Court, Missoula County, with violations of: (1) § 61-8-401, MCA, DUI, a fourth lifetime offense, a felony; (2) § 61-5-111, MCA, possession of more than one valid Montana driver's license, misdemeanor; and (3) § 61-5-113, MCA, violation of provisions of a restricted driver's license, a misdemeanor.

Pratt has three prior convictions for DUI which occurred on June 10, 1985; March 7, 1989; and September 13, 1991.

On January 11, 1996, Pratt filed a motion to suppress the evidence of his intoxication which had been obtained following the investigatory stop of his vehicle. On February 6, 1996, the District Court denied Pratt's motion to suppress.

On March 8, 1996, Pratt filed a motion to dismiss the felony charge for lack of jurisdiction. In that motion, Pratt argued that two of his prior DUI convictions should have been expunged from his record and, therefore, could not be used as a basis for a felony DUI prosecution. Pratt also argued that, as applied to his prior DUI convictions, the 1995 amendments to the DUI sentencing statutes violated the constitutional prohibitions against ex post facto legislation. On June 21, 1996, the District Court denied Pratt's motion to dismiss.

On October 7, 1996, Pratt entered a conditional plea of guilty, pursuant to § 46-12-204(3), MCA, to the offense of felony DUI. The State agreed to dismiss the two misdemeanor counts and make a specified sentencing recommendation. Pratt reserved his right to appeal from the orders denying his motions to suppress and dismiss.

On November 22, 1996, the District Court sentenced Pratt to a term of five years, with two years suspended, with the Department of Corrections, and recommended his placement in the intensive supervision program. The District Court's judgment was filed on December 9, 1996.

On February 6, 1997, Pratt filed a notice of appeal, and on February 7, 1997, the District Court entered an order staying the sentence pending final determination by this Court.

Pratt appeals from the sentence and judgment of the District Court, from the order denying his motion to suppress evidence, and from the order denying his motion to dismiss.

ISSUE 1

Did the District Court err in denying Pratt's motion to suppress evidence, in which Pratt argued that Officer Pastian did not have a particularized suspicion to justify an investigatory stop of Pratt'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.

Pratt argues that the District Court erred in denying his motion to suppress and in finding him guilty of driving under the influence of alcohol. Pratt claims that Officer Pastian did not have enough information to form a particularized suspicion of criminal activity to justify an investigatory stop pursuant to § 46-5-401, MCA.

In Montana, the requirement of particularized suspicion was adopted in State v. Gopher (1981), 193 Mont. 189, 631 P.2d 293, and is codified at § 46-5-401, MCA, which 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.

In Gopher, this Court adopted the two-part test enunciated by the United States Supreme Court in United States v. Cortez (1981), 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621, to evaluate whether the police have sufficient cause or a "particularized suspicion" to stop a person. In asserting that a police 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 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. Alabama v. White (1990), 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 309.

In this case, both Pratt and the State appropriately focus their arguments on the nature of the information provided by the citizen informant and the role it played informing Pastian's particularized suspicion in justifying the investigative stop of Pratt's vehicle. Pratt argues that the citizen informant who provided the information to the Missoula City Police Department was unknown to Pastian before he initiated the stop of his vehicle. Therefore, Pratt contends Pastian could not have assessed the...