State v. C. Sacks ( 2021 )

09/21/2021
DA 20-0079
Case Number: DA 20-0079
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 242N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
CODY R. SACKS,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DC 19-47
Honorable Jennifer B. Lint, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Peter F. Lacny, Datsopoulos, MacDonald & Lind, P.C., Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Damon Martin, Assistant
Attorney General, Helena, Montana
William E. Fulbright, Ravalli County Attorney, William Lower, Deputy
County Attorney, Hamilton, Montana
Submitted on Briefs: August 18, 2021
Decided: September 21, 2021
Filed:
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__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Cody R. Sacks appeals from a December 24, 2019 judgment of the Twenty-First
Judicial District Court, Ravalli County, following his guilty plea to aggravated DUI and
from the court’s August 29, 2019 opinion and order denying his motion to suppress. We
affirm.
¶3 On September 2, 2018, at around 11:15 p.m., Ravalli County Sheriff’s Deputy Jason
Liechty observed Sacks leaving a bar located on U.S. Highway 93 in Victor, Montana.
Liechty observed Sacks stumbling and tripping on his way to his vehicle. Liechty then
followed Sacks as he drove north on Highway 93. After pulling into the left lane to read
Sacks’s license plate, Liechty observed Sacks signal to turn left. Dispatch informed
Liechty Sacks did not have valid insurance.
¶4 Deputy Liechty pulled Sacks over after the turn. Liechty noted Sacks’s difficulty
opening his electric window, red and bloodshot eyes, and the strong odor of alcohol.
Liechty informed Sacks the reason for the stop was driving without insurance. When
Liechty questioned Sacks about where he was going and where he had come from, Sacks
informed Liechty he was headed home from Cowboy Troy’s bar. The subsequent DUI
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investigation included a Standardized Field Sobriety Test during which Sacks
demonstrated multiple indicators of impairment and a BrAC of 0.298.
¶5 Sacks was arrested and charged with aggravated DUI under § 61-8-465, MCA, and
for failing to carry valid insurance under § 61-6-301, MCA.
¶6 On February 14, 2019, Sacks filed a motion to suppress and to dismiss the case
against him in Justice Court. Sacks claimed the evidence was obtained during an illegal
seizure in violation of his Fourth and Fourteenth Amendment rights and should be
excluded. Sacks disputed Deputy Liechty’s bases for particularized suspicion for the stop,
claiming Liechty’s sole basis was the report of no insurance obtained from the Montana
Insurance Verification System (MTIVS). In his motion before the Justice Court, Sacks
argued the stop was illegal because the MTIVS system is inherently unreliable, and Sacks
was able to prove he had valid insurance.
¶7 On March 12, 2019, the Justice Court issued an order denying Sacks’s motion to
suppress and dismiss. The Justice Court found Deputy Liechty had probable cause for the
stop, that Sacks could have corrected the error regarding his insurance coverage by carrying
a valid insurance card in his vehicle, and concluded the court was unable to verify Sacks’s
insurance coverage on the exhibits submitted due to discrepancies.
¶8 On March 22, 2019, the Justice Court held a bench trial. The court found Sacks
guilty of aggravated DUI and not guilty of driving without insurance. Deputy Liechty
testified at trial, and the Justice Court noted Sacks was pulled over after Liechty observed
him “staggering to [his] vehicle” and then driving. The State stipulated to Sacks’s
declaration of insurance.
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¶9 On March 22, 2019, Sacks filed a notice of appeal and request to stay sentencing.
The matter was transferred to the District Court.
¶10 On April 22, 2019, Sacks filed a motion to suppress, again arguing the traffic stop
was illegal as its sole basis was the report of no insurance by the MTIVS system. In support
of his motion, Sacks cited § 61-6-309(3), MCA, which prohibits law enforcement from
using the insurance verification system to stop a driver without reasonable cause for
another traffic violation.
¶11 On August 23, 2019, the District Court held an evidentiary hearing on the motion
to suppress. The District Court reviewed the body and dash cam videos submitted into
evidence by Sacks and heard testimony from Deputy Liechty and an expert witness called
by Sacks. Sacks’s expert witness, Richard Hader, was a retired state trooper with 21 years
of law enforcement experience. Hader testified he would have acted similarly to Liechty
given identical circumstances, though he stated he would have informed the driver of the
additional reasons for the stop. The District Court found both Liechty’s and Hader’s
testimony credible. The District Court also confirmed Liechty’s body cam video showed
Liechty stated lack of insurance as the reason for the stop.
¶12 In its August 29, 2019 opinion and order denying Sacks’s motion, the District Court
held Deputy Liechty had reasonable cause to believe Sacks was committing the offense of
DUI and that Liechty did not conduct the stop in violation of § 61-6-309(3), MCA. The
District Court noted the only reason for the stop Liechty stated to Sacks was Sacks’s lack
of insurance. However, the court held there was no legal requirement for Liechty to inform
Sacks of every reason for the stop and that Liechty had already formed particularized
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suspicion Sacks was driving while intoxicated before he received the report about Sacks’s
insurance.
¶13 On November 7, 2019, Sacks entered a recommended sentence plea agreement upon
which he pleaded guilty to the charge of aggravated DUI. Sacks reserved the right to appeal
the District Court’s decision on his motion to suppress and dismiss.
¶14 On December 24, 2019, the District Court accepted Sacks’s guilty plea and entered
a judgment convicting Sacks of aggravated DUI.
¶15 On appeal, Sacks argues the District Court erred in denying his motion to suppress
because its findings of particularized suspicion are unsupported by evidence in the record.
Sacks disputes the credibility of Liechty’s testimony and claims the District Court’s
findings are based on Liechty’s “post hoc rationalizations.” Sacks argues the video
evidence supports his claim that Liechty’s sole basis for the stop was the MTIVS report of
no insurance, thereby making the stop illegal. As a result, Sacks maintains all evidence
from the subsequent DUI investigation should be excluded.
¶16 We have previously articulated the applicable standards of review as follows:
We review a lower court’s denial of a motion to suppress to determine
whether the court’s findings are clearly erroneous and whether those findings
were applied correctly as a matter of law. A lower court’s finding that
particularized suspicion exists is a question of fact which we review for clear
error. A finding is clearly erroneous if it is not supported by substantial
evidence, if the lower court has misapprehended the effect of the evidence,
or if our review of the record leaves us with the firm conviction that a mistake
has been made.
City of Missoula v. Metz, 2019 MT 264, ¶ 12, 397 Mont. 467, 451 P.3d 530 (internal
citations omitted).
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¶17 Individuals are protected from unreasonable searches and seizures by both the
United States Constitution and the Montana Constitution. U.S. Const. amend. IV; Mont.
Const. art. II, § 11. “These protections apply to investigative stops of vehicles.” State v.
Cooper, 2010 MT 11, ¶ 7, 355 Mont. 80, 224 P.3d 636 (citing State v. Gopher, 193 Mont.
189, 194, 631 P.2d 293, 296 (1981)). “To justify a traffic stop, law enforcement must have
a particularized suspicion that the occupant of the vehicle is committing, has committed,
or will commit an offense.” State v. Reeves, 2019 MT 151, ¶ 7, 396 Mont. 230, 444 P.3d
394 (citing § 46-5-401(1), MCA); see also State v. Pratt, 286 Mont. 156, 161, 951 P.2d 37,
40 (1997).
¶18 “[F]or a peace officer to have particularized suspicion or reasonable grounds for an
investigatory stop, the peace officer must be possessed of: (1) objective data and articulable
facts from which he or she can make certain reasonable inferences; and (2) a resulting
suspicion that the person to be stopped has committed, is committing, or is about to commit
an offense.” Brown v. State, 2009 MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842.
¶19 Whether particularized suspicion exists is a question of fact that depends on the
totality of the circumstances. Weer v. State, 2010 MT 232, ¶ 10, 358 Mont. 130, 244 P.3d
311 (citing State v. Gilder, 1999 MT 207, ¶ 11, 295 Mont. 483, 985 P.2d 147). Objective
data must give rise to a resulting suspicion an offense has been, is being, or is about to be
committed. State v. Reynolds, 272 Mont. 46, 51, 899 P.2d 540, 543 (1995). The question
is not whether any one of a driver’s behaviors was itself illegal, but whether the officer
“could point to specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant the intrusion.” State v. Brander, 2004 MT 150, ¶ 6,
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321 Mont. 484, 92 P.3d 1173. Some of the factors this Court has previously considered
under totality of the circumstances are the time of day, the location of the stop, and the
petitioner’s driving behavior. Weer, ¶ 10 (citing Jess v. State ex rel. Records & Driver
Control, 2008 MT 422, ¶¶ 14-15, 347 Mont. 381, 198 P.3d 306; Widdicombe v. State ex rel.
Lafond, 2004 MT 49, ¶¶ 13-14, 320 Mont. 133, 85 P.3d 1271; Morris v. State, 2001 MT 13,
¶¶ 9-10, 304 Mont. 114, 18 P.3d 1003).
¶20 The District Court found Deputy Liechty’s observations of Sacks leaving a bar, the
time of night, and Sacks’s stumbling behavior on his way to his car gave rise to sufficient
particularized suspicion that Sacks was driving under the influence. The court held that
under the totality of the circumstances Liechty could reasonably infer Sacks was
committing the offense of DUI.
¶21 Sacks argues Deputy Liechty’s credibility is suspect because his testimony at the
suppression hearing identified additional reasons for his particularized suspicion beyond
those that appear on the submitted videos or in his offense report. This is similar to Cooper,
where the defendant argued evidence could not be considered if it did not appear in the
officer’s report. Cooper, ¶ 10. However, Liechty cited Sacks’s stumbling behavior coming
out of the bar in his offense report and in his testimony to both the Justice Court and District
Court. When questioned in District Court about his reasonable suspicion upon observing
Sacks then enter his vehicle and drive away, Liechty stated he “could [have] made a stop
there.”
¶22 Like the defendant in Cooper, Sacks also argues Liechty’s testimony is suspect
because he did not stop Sacks sooner. However, Sacks’s own expert testified he would
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have proceeded as Liechty did in identical circumstances. Further, Liechty testified he
didn’t believe he had time to get to Sacks in the parking lot. Though Liechty also testified
he waited to stop Sacks because he wanted to give Sacks the benefit of the doubt and to
observe additional driving behavior to be sure Sacks was an impaired driver, a peace officer
need not be certain an offense has been committed in order to justify an investigatory stop.
City of Missoula v. Sharp, 2015 MT 289, ¶ 8, 381 Mont. 225, 358 P.3d 204. “An officer in
the field [also] need not consider every possible innocent explanation . . . before concluding
that particularized suspicion exists.” State v. Flynn, 2011 MT 48, ¶ 11, 359 Mont. 376,
251 P.3d 143 (citing State v. Clark, 2009 MT 327, ¶ 13, 353 Mont. 1, 218 P.3d 483).
¶23 Liechty’s observations up to and including Sacks’s getting into and driving his
vehicle out of the bar parking lot were sufficient to support his particularized suspicion
justifying an investigatory stop. That he did not stop Sacks immediately upon reaching a
particularized suspicion does not undermine his bases for the investigatory stop.
¶24 The District Court did not err. The District Court held Liechty had the requirements
for particularized suspicion to justify an investigatory stop. The District Court did not
misapprehend the effect of the evidence and is correct in its application of the law.
¶25 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review. The District Court’s findings of fact were not clearly
erroneous nor suggestive of mistake, it did not misapprehend the evidence, and its
interpretation and application of the law were correct.
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¶26 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
/S/ JIM RICE
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