State v. Van Kirk

• Decision Date: 06 September 2001
• Docket Number: No. 99-413.,99-413.
• Citation: 306 Mont. 215,2001 MT 184,32 P.3d 735
• Parties: STATE of Montana, Plaintiff/Respondent, v. Marvin VAN KIRK, Defendant/Appellant.
• Court: Montana Supreme Court

32 P.3d 735

2001 MT 184

306 Mont. 215

STATE of Montana, Plaintiff/Respondent, v. Marvin VAN KIRK, Defendant/Appellant.

No. 99-413.

Supreme Court of Montana.

Submitted on Briefs February 23, 2001.

Decided September 6, 2001.

Edward Yelsa, Anaconda, MT, for Appellant.

Joseph P. Mazurek, Montana Attorney General, Tammy K. Plubell, Assistant Montana Attorney General; Michael B. Grayson, Deer Lodge County Attorney, Anaconda, MT, for Respondent.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 On January 19, 1999, a jury convicted Marvin Van Kirk (Van Kirk) of four criminal offenses: driving under the influence of alcohol, failing to carry proof of vehicle registration, operating a motor vehicle without liability insurance, and driving a vehicle with a suspended or revoked driver's license. Van Kirk appeals his convictions to this Court. We affirm.

¶ 2 Van Kirk raises three issues on appeal:

1. Did the District Court correctly conclude that the arresting officer had a particularized suspicion to initially stop Van Kirk's vehicle?

2. Did the District Court properly conclude that Van Kirk did not have a right to counsel prior to submitting to a breath test or performing field sobriety maneuvers?

3. Did the District Court commit reversible error by allowing the arresting officer to testify about Van Kirk's performance on the horizontal gaze nystagmus test?

FACTUAL BACKGROUND

¶ 3 On October 3, 1997, at approximately 8:00 p.m., Officer John Kelly (Officer Kelly) was giving a person a ride from the police station to his vehicle parked at the First Quarter Restaurant in Anaconda, Montana. While in the First Quarter Restaurant's parking lot, Officer Kelly observed a truck pull into the parking lot to his right. The driver looked in Officer Kelly's general direction, and then immediately pulled back out of the parking area. It appeared to Officer Kelly that the driver of the truck wanted to get away from him, so he decided to investigate by following the vehicle.

¶ 4 While following the truck, Officer Kelly observed that its speed was only seven to ten mph in a twenty-five mph zone. Officer Kelly also noticed that the driver was continuously watching him in the rearview mirror. Officer Kelly watched the vehicle shift from the edge of the roadway to the mid-point and across it, several times. On at least one occasion, the vehicle would have impeded any oncoming traffic. Based on his observations, Officer Kelly decided to initiate a traffic stop.

¶ 5 Officer Kelly approached the vehicle on foot after initiating the stop. When Van Kirk rolled down his window, Officer Kelly detected the moderate odor of an alcoholic beverage and noticed that Van Kirk's eyes were bloodshot. Officer Kelly also observed that there was a screwdriver, rather than a key, in the ignition of the truck. Officer Kelly asked to see Van Kirk's driver's license, but Van Kirk replied he did not have one. Officer Kelly later confirmed through the dispatcher that Van Kirk's license was revoked. Officer Kelly also asked to see the vehicle registration and proof of insurance. Van Kirk responded to this by handing him a map. Officer Kelly then requested that Van Kirk step out of his truck and perform some field sobriety tests, but Van Kirk declined because it was dark and the road surface was rough. Officer Kelly responded that Van Kirk could perform the tests at the police station under better conditions.

¶ 6 Officer Kelly decided to place Van Kirk under arrest and transport him to the police station. Upon reaching the police station, Officer Kelly read Van Kirk Montana's implied consent advisory form and asked him to submit to a breath test. Van Kirk agreed to the test and he registered a blood alcohol level of .115. Upon completion of the breath test, Officer Kelly requested that Van Kirk perform some field sobriety tests. Another officer videotaped Van Kirk's performance of the field sobriety maneuvers. Officer Kelly scored Van Kirk four points out of eight on the walk-and-turn test because Van Kirk missed touching his heel to toe twice on each direction, and took too many steps prior to and after his turn. Van Kirk performed well on the one-leg-stand test. Finally, Officer Kelly conducted the horizontal gaze nystagmus (HGN) test upon Van Kirk. Officer Kelly scored Van Kirk four points out of six on this test. ¶ 7 Upon completing the field sobriety test, Officer Kelly read Van Kirk his Miranda rights. Van Kirk informed Officer Kelly that he wanted to speak with an attorney, and Officer Kelly did not thereafter question Van Kirk. Van Kirk was charged with four offenses: (1) driving under the influence of alcohol, a misdemeanor; (2) failing to carry proof of vehicle registration, a misdemeanor; (3) operating a motor vehicle without liability insurance in effect; and (4) driving a vehicle with a suspended or revoked driver's license. On July 13, 1998, a justice court jury convicted Van Kirk of all four offenses, and he appealed to the District Court.

¶ 8 Van Kirk filed several pretrial motions and supporting briefs in District Court, including a motion to suppress evidence and a motion to dismiss the charges against him. Van Kirk contended that Officer Kelly lacked particularized suspicion to initiate an investigative stop. In addition, Van Kirk asserted that when Officer Kelly did not allow him to speak to an attorney prior to giving a breath sample or performing field sobriety maneuvers, Van Kirk was denied his right to counsel. The District Court denied these motions.

¶ 9 On January 19, 1999, the District Court held a jury trial on this matter. During trial, when the State asked Officer Kelly how Van Kirk scored on the HGN test, Van Kirk objected on the grounds that the State had not laid sufficient foundation for the testimony. Officer Kelly testified that he was certified to administer the HGN test, and that he properly administered the test. Officer Kelly also testified that he has a bachelor's degree in medical technology and had worked as a lab supervisor and technician at Montana State Hospital. The District Court overruled Van Kirk's objection, and allowed Officer Kelly to testify from his training and experience that there is a correlation between alcohol consumption and nystagmus. Officer Kelly then explained how Van Kirk scored on the HGN test. The jury convicted Van Kirk of all four offenses. He now appeals.

STANDARD OF REVIEW

¶ 10 We review a district court's denial of a motion to suppress to determine whether its findings of fact are clearly erroneous and whether its conclusions of law are correct. State v. Hatler, 2001 MT 38, ¶ 5, 304 Mont. 211, ¶ 5, 19 P.3d 822, ¶ 5. We review a district court's evidentiary rulings for an abuse of discretion. State v. Gustafson, 2000 MT 364, ¶ 14, 303 Mont. 386, ¶ 14, 15 P.3d 944, ¶ 14.

ISSUE 1

¶ 11 Did the District Court correctly conclude the arresting officer had a particularized suspicion to initially stop Van Kirk's vehicle?

¶ 12 Van Kirk argues the arresting officer did not have adequate particularized suspicion to initially stop his truck, that all the resulting evidence against him should be suppressed as fruit of an illegal seizure, and therefore the charges against him must be dismissed. The State counters that Van Kirk's apparent attempts to avoid the arresting officer, coupled with his driving at a slow rate of speed and crossing from the edge of the road across the middle of the road multiple times, combined to provide sufficient particularized suspicion to make an investigative stop of Van Kirk's vehicle. We agree.

¶ 13 The Fourth Amendment to the United States Constitution and Article II, Section 11, of the Montana State Constitution protect against unreasonable searches and seizures, including brief investigatory stops of vehicles. State v. Elison, 2000 MT 323, ¶ 15, 302 Mont. 228, ¶ 15, 14 P.3d 456, ¶ 15. Montana peace officers, however, are authorized to initiate an investigatory stop of any vehicle observed in circumstances that create a particularized suspicion that an occupant of the vehicle has committed or is committing a criminal offense. State v. Halvorson, 2000 MT 56, ¶ 8, 299 Mont. 1, ¶ 8, 997 P.2d 751, ¶ 8. The requirement that a particularized suspicion be found in order to justify an investigatory stop of a vehicle is codified in a Montana statute:

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.

Section 46-5-401, MCA.

¶ 14 Particularized suspicion does not require that an officer possess proof beyond a reasonable doubt that a crime has been, is, or is about to be committed before initiating an investigative stop. Hatler, ¶ 11. Particularized suspicion is quantitatively different and less stringent than probable cause to arrest or conduct a search. State v. Williamson, 1998 MT 199, ¶ 12, 290 Mont. 321, ¶ 12, 965 P.2d 231, ¶ 12. 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 an occupant of a vehicle is or has been engaged in wrongdoing or was a witness to criminal activity. State v. Gilder, 1999 MT 207, ¶ 10, 295 Mont. 483, ¶ 10, 985 P.2d 147, ¶ 10.

¶ 15 The gravamen of the particularized suspicion standard is that the totality of the circumstances confronting the officer at the time of the investigative stop must give rise to a particularized and objective basis for suspecting criminal activity. Halvorson, ¶ 9. In evaluating the totality of the circumstances, this Court considers the quantity, or content, and quality, or degree of reliability, of the...