State v. Martinez ( 2003 )

IN 'THE SUPREME CIjUI286 Mont. 156,951 P.2d 37, as the legal basis underlying the particularized
suspicion for the vehicle stop in this case. We directed the parties to assuine, itrguerlu'u, that
I'rutt and its progeny are not appropriate authority for the vehicle stop on the facts presented
and ordered supplemental briefing on whether the stop is or is not supportable based on other
legal authority and argument.
5 Citing Alubilma v. White (1990), 496 U . S . 325, 330, 110 S.Ct. 2412, 2416, 110
L.Ed.2d 301, the State argues that particularized suspicion of criminal activity can arise from
information that is less reliable than that required to show^ probable cause and that
deficiencies in police corroboration of crin~inal
behavior may be overcome by the strength
of an informant's basis of knowledge, Moreover, the State points out that this Court
recognized in St(ztc v. E1ixor1,2000 MT 288, 7 20? 302 Mont. 228, 7 20, 14 P.3d 456, 20,
that when a tip is reliable. "corroboration of innocent behavior may be sufficient to raise a
particnlarii-ed suspicion."
716 Martinez and Utson argue in their sirpplei~~ei~ral h a t the investigative stop cif
brief
Xovember 4. 1999, constituted a warrantless arrest. The Appellants analogize the
circumstances of their stop to the facts depicted in United Siatc,s v. Beck (9th Cir. 1979), 598
F.2d 497. where nine border police acting on a custom agent's uncorroborated hunch that
three young men crossing the border from Mexico were inlporting illegal drugs, surrounded
and stopped a taxi cawing the young men to the airport. The "suspects" were separated and
questioned indi\:idually. The Ninth Circuit Court of Appeals held the investigative stop was
actually an illegal arrest executed without probable cause or warrant. The Appellants
similarly claim that their detention, handcuffing and intet~ogation separate police vehicles
in
exceeded the scope of as1 investigative stop and the police lacked probable cause for an
1
arrest.
17 The rule is well established that this Court will not address an issue raised thr the first
2002 MT 65,124, 309 Mont. 199,!124,14 P.3d 499,y
time on appeal. State v. Petelso~l,
24 (citing State v. Wel~selboy.
1999 MT 274,q 16; 296 Mont. 503,v 16, 989 P.2d 836, " 6).
A party may not raise new arguments or change its legal theory on appeal. Lhified
Irzdustries. Ittc. v. Easiey, 1998 MT 145, 15; 289 Mont. 255, 71 15. 961 P.2d 100. 'j 15
IAppellants' argument that the stop in the instant case was actually an illegal
arrest finds support in the recent drug interdictio~lcase of Stute v. Olsorz, 2003 MT 61,
-
. Mont. ___,P.3d . where this Court held that the on-the-street questioning of a
defertdant during an investigative stop constituted a custodial interrogation requiring
ittfirunila warnings against self-incriminatiort.
(where this Court declined to ibllow an exception to thc rule when the %cts are undisputed).
The reason for the rule is that it is fundanlentally unfair to fault the trial court for railii~g
C "
lo
rille on an issue it was never given the opportunity to consider.
j ' 18 The Appellants identified no exception to the above rule that would apply when they
posited a wholly new legal theory of the case in their supplemental brief. Although facts in
the record certainly raise genuine issues regarding the scope of the investigative stop, neither
Martinez nor Olson questioned the scope before the District Court and neither argued at the
suppression hearing, that the stop became ail arrest without probable cause. Although this
Court invited the par-ties to present additional argument and authority, we decline to address
an issue raised for the first time by brief before this Court. Therefore, we lirtiit our review
to the issue raised by the Appellants in the District Court and the record made thereon, which
is whether the District Court correctly concluded that particularized suspicion supported the
investigative stop.
STAEDARD OF REVIEW
719 The standard of review of a district court's denial of a motion to suppress evidence
is whether the court's findings are clearly erroneous. State v. Cur-lso~~: MT 320,7/ 14,
2000
302 bfont. 508, 1' 14, 15 P.3d 893,T 14 (citation o~ilittedj.To determine whether a finding
of fact is clearly erroneous, this Court ascertains whether the finding is supported by
substantial e\;idence, whether the district court misapprehended the effect of the evidence,
and lvhether the Court is nevertheless left wit11 a definite and firm conviction that the district
court made a mistake. State v. Jut-/nun, !998 bl-F 277, 5 8, 291 blank. 391: 8, 967 P.2d
1099, *i8 (citarion omitted). \Ve iiitthur review a district court's deniai of a motion to
suppress to determine whether the court's interpretation and application of the law are
/'
correct. Huzige v. District Courtl 2001 VLT 255, :/I ? 307 Mont. 195> 11. 36 P.3d 947, 1' 1 1
1
(citations omitted). This Court's review is plenary as to whether the district court correctly
interpreted and applied the law. State v. Griggs, 2001 MT 21 l , q 17, 301 Mont. 366,iI 17.
34 P.3d 1 0 1 , l 17 (citation omitted).
DISCUSSION
720 The Fourth Amendment to the United States Constitution and Article 11, Section 1 I
of the Montana Constitution protect persons against unreasonable searches and seizures.
Wlierrever a police officer restrains a person's freedom, such as in a brief investigatory stop
of a vehicle, the officer has seized that person. State v. Reynolds (1995), 272 Mont. 46,49,
899 P.2d 540, 542 (citing T e r ~ y;. Ohio (1968). 392 l1.S. 1, 16. 88 S.Ct. 1868, 1877, 20
1
L.Ed.2d 889, and C~rzitedSrutes Cortez (1981): 449 U.S. 41 1,417, 101 S.Ct. 690,694-95,
v.
66 L.Ed.2d 621).
'i2 1 A "stop" is defined by statute as "the temporary detention of a person that results
when a peace officer orders the person to remain in the peace officer's presence." Section
45-2-101(71!, MCA. To justify an investigative stop, an officer must be able to point to
specific and articulable facts which; taken together with rational i~ifercncess n m those facts:
fo o
reasonably warrant that intrusion. Reytrolds, 272 hlont. at 49,899 P.2d at 542 (citing Tert:l:,
"12 2in Sriiie v. C;'opher (198i), 193 3 o n i . 189, 631 P.2d 293, we adopted the rest
announced in Cot.tez and held ihat in order for the State to prokc the existence of
parttcular17ed suspicion, the State must show:
( I ) objective data from which an experienced police officer can make ceriain
inferences; and,
(2) a resulting suspicion that the occupant of the 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. When the facts support a particulari~ed
suspicion of wrong-doing, a limited and reasonable investigative stop and search by the
police are justified. Gopher, 193 blonl. at 194, 631 P.2d at 296. In 1991, the Monlana
Legislature codified the principles enunciated a decade earlier in Gopher that "stop and frisk
rules apply to persons in vehicles and that particularized suspicion for an investigative stop
may be based upon ol7jectiLe data other than a police officer's personal observations of
suspicious acti5-ity. See Ch. 800, sec. 43, L. 1991. The current statutory standard thr an
investigative stop reads:
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 lnay 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
723 NJhether particularized suspicion supports an investigative stop is a questiort of fact
that is analyzed in the context of the totality of the circumstances. Prutt, 286 Mont. at 161:
95 l 1'..2d at 40 (citing Neytzolds, 272 Mont. a1 49, 899 P.2d at 5421, in evaluating the tolalily
of the circu~nstances, cour? sltould consider the quantity, or content, and quality. or degree
a
of reliability, of the information available to the officer. Prutt, 286 at 161, 95 1 P.2d at 40
(citing Aluhumu, 496 U.S. at 330, 1 I0 S.Ct. at 2416, 110 L.Ed.2d 301).
7124 The case before us on appeal presents the question of what constitutes objective data
from which a law enforcement officer may reasonably infer that criminality is afoot to justify
the temporary seizure of a person for investigative questioning. The District Conrt found
substantial evidence to support two independent bases for particularized suspicion to justify
the investigative stop of the vehicle occupied by Martinez and Olson on Sovember 4, 1999.
We discuss each separately.
Terr~porucvWindow Sticker
1,25 Patrolman Bauni testified at the suppression hearing that the small size of the print on
the temporary window sticker adhered to the upper left-hand corner of the rear window of
the teal Marda pickup precluded him from verifying the sticker's number and expiration date
without pulling the vehicle over. Baum offered the District Court the following explanation:
I stopped the vehicle based on what Sergeant O'Connell told me. Fact that I
couldn't read the sticker, that was secondary to the stop?but once we stopped
the vehicle, I walked up to the pickup and looked at the sticker. It appeared to
be current.
Uaum infonned Martinez that he had stopped hi111because the pickup had no license plates,
and reported that Martiner laughed and pointed to the temporarj tag attached to the mlndow
behind him.
*j26 Martinez and Olson argue that 3 61-3-342(1), MCA, requires o111); rhal a valid
temporary window sticker be properly displayed "on the upper left-hand corner ofthe rear
window of a motor vehicle" and does not require that the sticker be easily readable at a
distance. They clairn that law enforcement had no reason to suspect that the pickup was not
legally registered on the basis that the sticker numbers were difficult to discern and contend
that sticker verification was a pretext for stopping them.
!I27 An investigative stop is a temporary detention that "may not last longer than is
necessary to effectuate the purpose of the stop." Section 46-5-403, MCA. See also, Terry,
392 U.S. at 29, 88 S.Ct at 1883-84, 20 L.Ed.2d 889. Ail motor vehicles operated on the
public highways of Montana must be properly registered with the State and have license
plates conspicuously displayed on the front and rear ends of the vehicle. Section 61-3-301,
MCA. New owners of hansfesred vehicles are afforded a grace period in which to complete
vehicle registration. Section 61-3-342(1), MCA, allows an owner awaiting delivery of a
certificate of ownership to operate the rtewly transferred vehicle on public roads as long as
a teo~porary
window sticker issued by a county treasurer is clearly and properly displayed.
Failure to comply with rnotor vehicle registration requirements constitutes a misdemeanor
~ ~ n d3 61 -3-601, MCA, and peace officers of all jurisdictions of the State of Montana are
er
charged with the mandatory duty of enforcing these provisions. Section 61-3-602. MCA.
yi28 lsi Sfate v. Herriler.~o~z, MT 233, 291 Mont. 77,966 P.2d 137. we acknowledged
1998
that the inability of a police officer to view a tetnporary vehicle purchase sticker behind a
darkly tinied car window was sufficient to give rise la a pan-iicuiarized suspicion that thc
vehicie was not properly registered. 1-ieridersotz;1 16. While the light tinting of the rear
1
window of the teal Mazda pickup presented minimal visual impairment, Patrolman Baum
testified that he nevertheless was unable to see the sticker's numbers while driving helzind
the vehicle. According to the District Court, the absence of license plates and Baum's
inability to read the sticker expiration date provided an objective basis for Baum to infer that
the Mazda's temporary window sticker was not valid. The court found the investigative stop
was justified because Baum's inference gave rise to a legitimate suspiciolt that the vehicle
was not legally registered.
7:29 We concl~tde District Court's finding is not clearly erroneous. However, a quick
the
check of the properly displayed temporaiy sticker in the bright mid-day sun permitted Baum
to verify the sticker as valid, pursuant to $5 61-3-342(1) and 61 -3-602, MCA. Although the
officer? inability to read the temporary sticker justified a stop to check the sticker's validity,
once that limited purpose of the stop had been accomplished, no further police irttn~sion
was
warranted, and the investigative stop related to drug possession was not justified thereby.
Corifidential I I ~ ~ ? ) I . I'.sNTipI ~
~/
1[30 ,A tip from a confidential informant stating that Martinez and Olson were on their way
to Rozeman on the afternoon of November 4: 1999. to market a substantial amount of
mari.juana provided a second rationale for an investigative stop, according to the District
Cortrt. Using the criteria set forth in Prutl the court ihund the confidential inr'or~nanl'stip
to bc reliable and poiice verification of non-criminal detaiis o f the suspects' travel
arrangements to provide sufficient corroboration.
y31 This Court adopted a three-factor test in Prutt to evaluate the reliability of an
informant's tip as a basis for particularized suspicion. I'mtt, 286 Mont. at 165, 95 1 P.2d at
42-43. In that ease, a convetlienee store clerk called the police dispaicher late at night,
identified himself, and reported that a very drunk man had just driven away from the store.
The clerk stated that the man staggered, lingered in front of the beer case and acted generally
conti~sed. fie described the make. model, color, license n~tmber direction the vehicle
and
was traveling. which the dispatcher relayed to a patrol officer. As soon as the officer
encountered the person and vehicle at the location described by the clerk, he conducted an
investigative stop. Although the officer never observed any overt illegal acts or suspicious
behaviorl such as a traffic safety violation or erratic driving, we held that the officer had the
requisite particularized suspicion to justify a stop to investigate the citizen's allegations that
the driver was operating his vehicle under the influence of alcohol. Prutt. 286 Mont. at 166,
95 1 P.2d at 43.
732 In discussing the circumstances of the Pri~lt
case, this Cotirt acknolv-ledged the useful
role that citizen inthrmants can play in law enforcement, but we also recognized the potential
for abuse iftlie informant provides unreliable infonation. Pi-utt, 286 Mont. at 164, 951 P.2d
at 32. To guard against such abuse, we adopted the following three-part analysis for
evaluating the reliability of an informant's tip:
i ) \;\;herher the citizen infornrant identifies himself to iaw enfii.ce~~ieniand
thus exposes hiinself to criminal and civil liability if the report is false.
2) Whether the report is based on the persona! observations of the int'orrnan?
3) Whether the officer's onn observatiorls corroborated the infornrant's
information.
Prczft, 286 Mont. at 165,951 P.2d at 42-43 (citing State v. Viilegus-Vareiu (Or. 1994), 887
P.2d 809, 810-1 1). We further explained that "[c]orroboration of the tip occurs when the
officer either observes illegal activity or finds the person, the vehicle, and the v-elehicle's
location subsvantially as described by the infonnant." PI-art,286 Mont. at 165,951 P.2d at
7,33 The first PI-utt factor addresses the informant's ~ d e n t ~ t y relationsh~pto lam
and
enforcement and assumes that the citizen informant who identifies himself to the police is
likely to be telling the truth. The District Court found this element \\-as satisfied when the
co~lfidential
inSol-want met in person with Detective Hirschi. We disagree.
734 This Court distinguishes the concerned citizen who reports a chance ellcounter with
crime as a civic duty from the confidential informant who works with police by reporting on
the illegal activities of others. State v. Rre.slrzn~l,2000 MT 243-7 32, 301 Mont. 408,3 32.
10 P.3d 83, 1' 32. The 91 I-caller in Prat! was a citi~cn
informant, as were the infbrniaiits in
subsequent cases that have relied upon our holding in PI-uft. See, e.g.. Stafe v. Eiisoiz, 2000
M'I' 288, 302 Mont. 228, 14 P.3d 356; Stirte ti. Kohet-rs, 1999 MT 59, 293 Mont. 476, 977
P.2d 974; State v. LajfC;riylLY98 M7' 247.291 Mont, 157,967 P.2d 363. Wc have repeatecily
stated il~ai citizen infom~ant; o is motivated by ""god ccitize~~sliip" ivilling to disclose
a vh and
the circun~stanccs which the illcrinriiiating irrfomation became kno%.tnis presumed to be
by
telling the truth. Reesrnu~z~ 34; Shurp, 217 Mont. at 46, 702 P.2d at 962; State v. Kelly
?j
(1 983j, 205 Mont. 417,436, 668 P.2d 1032, 1043; State v. Liestiko (1978)? 176 Mont. 434,
439, 578 P.2d 16 1 1, 16 14. The confidential informant, on the other hand, enjoys no such
presumption of veracity. Keesmun, 7 32.
735 According to Sergeant O'Connell's testimony, this was the SIU's first experience
working with this particular informant, who is identified in the record only as CI # 99-1020.
At the April 14, 2000 suppression hearing, Detective i-Iirschi stated that he was the only
officer involved in the investigation to meet or speak with the informant. He testified that
CI ri 99-1020 "had been in trouble with the law before; that she had been sent to prison; and
that her boyfriend had been informed [sic] of numerous illegal activities, and she wanted to
do what she thought was right." The record contains no additional background information
on the infoimant? no other explanation of her motives for contacting the police, and no
information as to the source and circumstances under which she came by the information she
conveyed to Detective Hirschi,
136 Under Keesmcrn, Ct # 99-1020 docs not enjoy a presunlption that she is trustworthy,
even though she met with Detective Mirschi in person. Also, given the confidential manner
by which the informant conveyed data to the police, it is unclear whether she exposed herself
to criminal and civil liability if her report proved false. Accordingly, the presumption that
an idcntiiicci citizen informant is teliing the truth under the first h i i n Sactor simply does not
embrace the confidential informant in this case.
"37
i Although the State and Appellants both argue Ptzrtt as a basis for particularized
suspicion. we hold that Pt-utt does not offer the correct framework for analyzing the facts of
this case. The Prutt test is a narrowly drawn variant of the Goplzev analysis and addresses
the reliability of a citizen's tip in the context of a DU1 investigative stop. Although we also
applied the Prntt test to an investigative stop for drug possession in Stute v. Elison, the
particular circtlnrstances of that case paralleled a DUI stop. E1i.soo involved a citizen
infortllatlt who caught a glimpse of a driver smoking a brass pipe and reported to a police
officer that the driver appeared startled and tried to hide the pipe from view. Finding the
driver and vehicle as described by the citizen informant and independently observing
suspiciously evasive driving behavior constituted the objective data from which the police
ofticer inferred the presence of a stash in the vehicle, justifying the investigative stop.
7
Eli~on, 22.
e38
I; The Pvictt line of cases recognizes that a detailed tip from a concerned citizen based
on the informant's personal ohsewations is sufficient to trigger police interventictn. An
investigative stop is a particularly effective tool for Dlil investigations and to prevent
highway tragedies. iZ brief face-to-face exchange between the driver and a trained officer
often will affirm or refute an informant's allegation of drunkenness. If an officer detects the
sn~eil alcohol on the driver's breath, blood-shot and glassy eyes or slurred speech, further
of
iilvcstigation may be ivarranied, such as field sobriety sesii~~g. iiui.?e v. Srure, 1998 MT
See
108,qi 40, 289 Mont. I , ' 40, 961 P.2d 75; 40. In most cases, within minutes and with
j'
miniinal intrusion, a trained officer will be able to discern whether probable cause exists for
a DUI arrest or whether the inferences drawn from the tip were incorrect.
739 By contrastt:a vehicular stop in a drug interdiction case is less likely to yield decisive
evidence of either innocence or crin~inality. Officers might look for contraband in plain
view. ask the driver to consent to a full search of the vehicle or hope a suspect offers a
voluntary confession. The brief detainment and questioning permitted during an
investigative stop might not nraterially advance an investigation for drug possession if no
incriminating evidence is visible and no one consents to a search or confesses. In Elison, we
held the officer exceeded the scope of an in~estigatory
stop and conducted an illegal search
when the officer reached behind the driver's seat for a concealed bag of marijuana. Elison,
7 58.
li40 However, neither the scope of the investigative stop nor the legality of Martinez's
confession are the subject of this appeal. The sole issue presented to this Court is whether
the stop of the vehicle driven by Martinez and Olson on November 4. 1999, was supported
by particularized suspicion. We reiterate that $ 46-5-401. MCA, allows a peace officer to
stop any person or vehicle observed in circumstances that create a particularized suspicion
that the person has conlmittcd, is committing or 1s about to comrnlt an offense. \Vc hold that
the test outlined in (iopJzcr is the appropriate Srarnework within wnich the State must
der~lonstrate existence of particularized suspiciori in this case. The essence orthe Gol>iiei.
t'ne
tcst is that specific and articulable facts comprising the totality of the circumstances must
give the police a particularized and objective basis for suspecting a person of criminal
activity. Rcytzolds. 272 Mont. at 49-50, 800 P.2d at 542 (citing ('ortez. 449 U.S. at 417-18,
101 S.Ct. at 694-95, 66 L.Ed.2d 621).
4 I The Appellants rely upon our holding in Stute 1;. Anderson (1993), 258 Pvlont. 5 10, 853
P.2d 1245. for the proposition that information provided by a known, previously reliable
infornlant is not sufficient as a basis for an investigative stop when the police do not know
the source of the infornsanl's ktiowledge and have not corroborated any suspicious activity
through independent investigation. In Andecron, an informant telephoned the 1-incoln
County Sheriffs Department to tell them that Anderson and another individual were leaving
Libby to go to Washington to pick up a quantity of marijuana and would be driving a blue
Toyota pickup. The inhrmant stated that the men would return later the same night. The
police devised a stake out along the highway. When they caught sight of the described
vehicle after it crossed the border into Montana. they verified that the license number was
registered to Anderson, and conducted an investigative stop.
fj42 This Court held the stop in Andersorz was illegal. ..lndersotr, 258 Mont. at 516, 853
P.2d at 1249. We reasoned that tlze police must have ol?jectiv data from which to draw
inferences and make deductions that lead to a suspicion that an individual is involved in
criminal activity. Ar/u'er*.son,258 Mont. at 5 14. 853 P.2d at 1248 (citing Gopher, 193 Mont.
at iX2, 1 1Y2J at 2 5 . Objecti~e
63 9) data nlay he based on %artous objective observations9
informati013 from police reports, if such are available, and consideration of the ii~odes
or
patterns of operation of certain kinds of lawbreakers." Atzdersoiz. 258 Mont. at 5 14,853 P.2d
at 1248 (quoting Cortez, 449 U.S. at 418, 101 S.Ct. at 695,66 L.Ed.2d 621). We held that
an uncorroborated tip does not constitute objecti~e
data from mhlch a tralned officer can
infer a par'ticular indkidual is or has been engaged in TTrongdoirtg. An(lersoli, 258 Mont. at
5 16. 853 P.2d at 1249.
743 We distinguished the circumstances of the inforinant's tip in ilnde~son
fro111the tip
discussed in Adutns v. I~~~illiums
(1972), 407 U.S. 143,92 S.Ct. 1921,32 L.Ed.2d 612, where
the United States Supreme Court held that crime information offered to the police by a
known and previously reliable informant possessed sufficient indicia of reliability to justify
a brief in~estigatike
stop. In ilizdersorl, the police officers had no factual information about
how the informant came to knou about the alleged drug transport. We also dtsttnguished the
case from State v Sizurp ((1985).217 Mont. 40. 702 P.2d 959. u here pol~ce
obsewation of
skid marks and erratic driving corroborated a citizen's tip regarding an allegedly intoxicated
driver. In Andersoli, none of the observations made by the police prior to the stop suggested
illegal activity.
1;44 The State urges this Court to follow the reasoning of the United States Supreme Court
in Aiilhu~izuv. White, and affirnt the legality of an investigative stop conducted on the basis
of information that is less reliable than that requjred to show probable cause. The A/uhurrzu
Reasonable suspicion is a less demanding standard than probable cause not
only in the sense that reasonable suspicion can he established with inforntation
that is different in quantity or content that1 that required to establish probable
cause, but also in the sense that reasonable suspicion can arise from
information that is less reliable than that required to show probable cause.
Aluhurrzu. 496 U.S. at 330, 1 SO S.Ct. at 2416. 110 L.Ed.2d 3017-15 In illubu~tzrl,
police rcce~ved anonymous tip that a \%omani%ouldsoon be leav~ng
an
a particular apartment with an attache case containing a small amount of cocaine. The
informant described the woman's car and told the police that she would drive to a certain
nlotel. The police immediately uent to the named apartment building and sau a vehicle
matching the caller's description. Shortly thereafter, a woman, who was carrying nothing in
her hands, left the building and entered the described vehicle. The officers tailed as the
woman drove about four miles along the most direct route to the named motel. A short
distance from the motel, the officers conducted an inccstigative stop. White consented to a
search of the vehicle and the interior of a brown attache case, which revealed a small arnourit
of mar~juana.Aftcr White was arrested, officers found three milligranis of cocaine in her
purse.
'146 The Alcih~~mu
Cot~rt
held that thc anonymous tip, as corroborated by independent
police work. exhibited sufficient indicia of reliability to provide reasonable suspicion to make
the investigative stop. The Court noted that, standing alone, the tip provided nothing from
ivtiich one might conclude the caller was honest or the information reliable. tio\vever: the
Court rcasoncd :hat police corroboration of' sig~~ificani
aspects of the caller's infiirmation
about Vanessa White and the caller's apparent ability to predict the direction of White's
travel indicated the tipster had a special familiarity with White's affairs. On the basis that
the officers observed White getting into tlie identified car and driving in a certain direction,
the Court condoned the officers' inference that the anonymous infonnant was both truthful
and personally knowledgeable about White's criminal activities and concluded that the tip
justified an investigative stop.
147 We note, first. that the tip that initiated the investigation of Vanessa White was
urtreliable for the following reasons: the iderrlily of the tipster was unknowrt; the informant's
motivation for offering the tip was unknown; the basis for the informant's knowledge about
White's movements was unknown; and the source of the tipster's information regarding the
alleged drug possession was unknown. Second, police corroboration of the unreliable tip
consisted entirely of innocent, non-criminal information. The officers observed a woman
leave an apartment brrildirtg, get into a described car and drive in a predicted direction.
'48 This Court recognizes that the quutzt~~m information regarding suspected criminal
of
activity needed to justify an investigative stop is lower than that required for an arrest or a
search based on probable cause. However, we do not agree with the Rluhii/ncl C:ourt that
inforination of a lesser quality will suppon particularized suspicion. Regarding the use of
informant tips in the context of an investigative stop, we stated in .4tzrler:rotz--although
concededly in clictu--that a "tip that has not been shown to be reliable or trustworthy for
probable cause ro procure a search warrant is also unreiiabii: for
purposes of estabiisiri~rg
p r t ~ p x s o providing an officer with particularized suspicion." .4nde,son9 258 Mont. at 515>
f
853 P.2d at 1249.
1:49 For a tip to support a finding of probable cause, the police must know the identity of
the informant: trust from experience or presumption that the infonnant is telling the truth;
and discern that the infornlant's inforn~ationabout the alleged crime derives froin the
informant's personal observations. Reesman, 71 28-35. Similarly, when an officer receives
an infornlant's report of criminal activity. the officer must evaluate the veracity, reliability
and basis of knowledge of the illformant in older to determilie whether the report supports
reasonable suspicion. For example, in Pratt, Roherfs and Lufj'ercy, the officers involved
presumed that the tips about alleged intoxicated drivers were reliable because the 91 1-caller
in each case was a corlcerned citizen who identified himself to the police and reported his
personal observations of suspicious activity. The only corroboration needed for these reliable
tips consisted of wholly innocent information--the location of the persons and vehicles in the
places described. By contrast. as we stated in Pratt, where an informant's tip is anonymous
and lacks any indication of the basis for the informant's opinion, the officer must corroborate
the tip by observing suspicious behavior that aleits the officer to the existence of a possible
violation. P n ~ t f286 'Llont. at 168, 95 1 P.2d at 44; accord Lujj'ertj. T/ 12 (holding that any
,
anonymous informant's report of criminal conduct that did not state the basis for the
informant's belief must be corroborated by an officer's personal observation of illegal or
sitspicious activitq j.
7150 While corroboration of a tip with innocent information may lend an unknotvn or
untested tipster some credibility, suclr indicia of reliability does not obviate tlre relevance of
the tipster's basis of knowledge as a factor in the evaluation. In Andemon; although a
previously reliable informant called in the tip, the officers were not aware of how the
informant came by the reported information. As we discussed at length in Keesnzatz, when
a tip is based on hearsay or when an officer is uncertain about the informant's basis of
knowledge, the tip cannot be considered reliable without independent corroboration of the
Yilj
criminality alleged. Rees~nan: 44-45. 111 the context of particularized suspicion, because
the quantum of suspicion is less, an unreliable tip requires corroboration that supports an
inference that criminality is afoot by direct police observation of suspicious activity and
consideration of the modes of patterns of operation of certain kinds of lawbreakers. Gopher,
193 Mont. at 192, 631 P.2d at 295 (citing Cortez, 449 U.S. at 418, 101 S.Ct. at 695, 66
L.Ed.2d 621).
151 Therefore, we decline to adopt the Alabanzu Court's reasoning that the veracity.
reliability and basis of knowledge of an anonymous or othenvise unreliable informant may
be inferred wlien police corroborate wholly innocent facts about the alleged criminal actor
and no independent infonnation indicates that the suspect is involved in the alleged crime or
even that a cnme has occurred or rs occnmng. As long as me guarantee the minimum rlghts
established by the United States Constitution. we are not compelled to march lock-step wit11
pronounceinents of the Uniied Stales Suprcrnc Cuu:-t if oar ot%-n
ciitistitutional provisions cai!
for rnore il~dividiral
rights protection than that guaranteed by the United States Constitution.
State I). Sierra (1985), 214 Mont. 472,476,692 P.2d 1273, 1276 (overruled in part on other
grounds by State v. Pastos (1994), 269 Mont. 43. 887 P.2d 199). This Court has repeatedly
held that the unique language of Article 11; Section i 0 of the Montana Constitution. which
establishes privacy as a fundamental right, affords greater protections than the Fourth
Amendment in cases involving searches of persons or property. State v. HarJuway, 2001 MT
252, 1' 31,307 Mont. 139, fi 31,36 P.3d 900,131 (right to privacy disallows swabbing blood
sample from hands of an arrestee as a warrantless search incident to lawful arrest); EIisotl,
1 46 (r~ght prlvacy d~sallows
; to federal "automobile except~on" the warrant requ~rement
to
in Montana); State v. ~Velson
(1997) 283 Mont. 231, 241-42, 941 P.2d 441, 448 (right to
pri>acy disallows unauthori7ed access to personal medical records without subpoena); Strstr
v. Bullock (1995), 272 Mont. 361, 383, 901 P.2d 61, 75 (right to privacy disallows federal
"open fields" search as an exception to warrant rcquircrnent)
752 Article 11, Section 10 of Montana's Constitutiolt provides:
Right of privacy. The right of individual privacy is essential to the
well-being of a free society and shall not be infringed without the showing of
a compelling state interest.
The heightened protection of individual privacy in Montana demands our divergence from
federal jurisprudence regarding the use of tips as the basis for particularized suspicion
justifying the temporary seizure of a person for questioning. We hold that an ailegatiorr of
criminality from an unreliable iafihmnt that 1x1s 1 0 knotsri
1 basis in fact does not constitute
ol?jective data from which an officer may legitimately irrfer particularized suspicion. Even
though an investigative stop is conceived to be a brief governmental intrusion, if an
unreliable tip provides the only grounds for the detention; the stop constitutes an
unconstitutional infringen~ent an individual's right to privacy.
of
7/53 klartinez and Olson argue that the information provided by the confidential informant
was not a reliable basis for particularized suspicion. They contend that the informant's past
criminal record and prison history do not support her credibility and that the police knew
little about how she came by her information. The nature of the irrfornlant's relationship with
Daniel Olson was ambiguous and no testimony was taken on the subject. The Appellants
correctly point out that no criminal charges resulted from the stolen truck incident or the
search of Martinez's vehicle and argue that neither tip actually connected the Appellants to
criminal activity. The Appellants further assert that the SIU did not observe any illegal or
even suspicious activity indicating that Martinez was i~ivolved drug dealing during the
in
entire investigation, even after placing Martinez under sun;eilla~icefor two and one-half
days.
7154 Deducing that CI # 99-1020's role as Olson's girlfriend allowed her to be "privy to
cotrvet-sations between Martinez and Olson." the District Court found that the infom~ant
"advised the detectives of the plans for the illegal activities that occurred when she was
report was
present." On the basis of this inference, the court detennincd that the infor-ma~it's
based upon ilcr personal observatiur~s cr.imirra1 activity. The Appellants counter that the
of
infi;rrnant never observed Martinez or Olson in possession of marijuana; she did not witness
any drug iransactions; and the District Court erred in finding that the infomant's tip was
based on her personal observations.
155 In Reesrrzntz, we held that a confidential informant's unverified report is reliable for
the purpose of independently establishing probable cause--and, by incorporation,
particularized suspicion--only after the informant has established a track record of providing
the police with consistently accurate inforn~ationand only when the police know that the
informant's knowledge of the reported criminal activity is based upon personal observation.
Reesinun, 7 32 (citing Kaluzu, 272 Mont. at 410, 901 P.2d at 1 1 I , and Stute v. CVul.~toiz
(1989), 236 Mont. 218,223,768 P.2d 1387, 1390).
y56 As discussed above, because this case provided the SIU with their first experience in
working with CI i 99-1020, the confidential infonilant had not established a track record that
i
supports a finding of reliability. Regarding the confidential infornlarit's source of
knowledge. Detective Hirschi offered the followin!: testimony on cross-examination at the
suppression hearing,:
Q. At any tnne. L>etect~\eH~rschr, thrs mformant tell you she had seen,
did
arth her own eyes, the marijuana?
A. I dori't think so.
Q. In fact, she doesn't describe any tsansactrons rn regard to rnarljuana by
27
Jesus Martinez or 'LZr. Olson, does shc?
A. No.
7/57 The record does not support the District Court's finding that the confidential
infolmaut personally observed the criminal behavior that she reported to the police. Neither
Detective Hirschi nor any other officer involved in the investigation testified that CIii99-
1020 listened in on discussions of the Appellants' "plans for the illegal activities." In fact.
there was no evidence presented at the suppression hearing indicating that the SIU officers
even asked the informant how she came by her incriminating information. Because Detective
Hirschi testified that the informant did not personally observe any contraband substances or
drug dealing and, as in Aizderson, the record reveals nothing about the source of the
informant's knowledge, we conclude that the court erred by finding the confidential
informant's tip to be reliable. Consequently, the tip does not stand as an independent basis
for the investigative stop.
758 When an infomlantis source of information is hearsay, independent police
corroboration of "suspicious" activity is needed. Ree.cmurz, 7 29. We stated the principle in
Griggs as follous:
[Tlhe necessary indicia of suspitioii that results from police corroboration of
otherwise innocent information must reveal a pattern of human behavior
associated with the alleged criminal activity, or activities which, when viewed
as a whole, are consistent with the alleged criminal activity.
159 The District Court found that the SIU officer's own observations corroborated the
confidential infhrnrant's information. The police coni7rmed the ~nfbrmant's
report o f the
make and model of the vebicies PJarrincz drove; accurate licmse plate n~~mbers;
that
Martinez traveled from Oregon; and that Martinez stayed at the Townhouse Motel during two
prior visits to Billings. The informant told Detective Hirschi that Martinez would return to
Billings in late October and the police verified Martinez arrived in Billings on November 2.
1999. She predicted that Martinez would again stay at the Townliouse Motel, which he did.
The informant alerted Hirschi that Martinez would switch vehicles after the police searched
his truck. The Townhouse Motel manager confirmed the vehicle change. The tracking of
Martinez and Olson on November 4, corroborated that the Appellants set out on a road trip
in a teal Mazda pickup with a temporary sticker, as described by the motel niartagcr. The
officers followed the vehicle through Billings traffic and waited until Martinez and Olson
had driven past the Laurel exit on Interstate 90, headed in the direction of Bozeman.
Sergeant O'Connell testified that when the vehicle passed the Laurel exit, be inferred the
pickup was going to Bozeman.
760 The State also argues on appeal that the SIU found certain aspects of Martinez's
transportation history indicated a pattern of criminal behavior. For example, Martinez had
made two prior trips from Oregon to Billings within the previous month, which suggested
to the officers the possibility of a drug trafficker servicing established customers. Although
the police observed no suspicious behavior to associate Martinez with drug dealing during
the two and one-half days of surveillance. the consensual search of the borrowed vehicle
Martinez was driving revealed a marijuana bud. The State contertds that the discovery of a
s~ilallamount of contrabarrd associated tfartinez wirh the illegal substance that the
co~tfidcntialinfornlai~t
reported him to possess in larger quantity, even though questions
about the ownership of the marijuana bud precluded criminal charges. However, no police
officers at the suppression hearing actually testified that their surveillance of Martinez and
finding the 0.4 gram of marijuana lead them to this conclusion.
l[h1 Martinez and Olson point out that their travel arrangeinents were equally consistent
with innocent betiavior and that none of the corroborative data cited by the State indicated
patterned criminal behavior. We agree.
F6Z Motel en~ployees
reported that Martinez engaged in no suspicious activity during his
prior stays at the motel. When Martinez returned to Billings, the SIU detectives surveilled
him for two and one-half days and again observed no behavior associated with drug dealing
or any other criminal activity. When the police stopped Martinez's vehicle on the second day
of surveillance on a minor traffic charge, they searched his vehicle with his consent and with
the assistance of a drug-sniffing dog. They could not establish that tbe n~inuscule
marijuana
bud found in the vehicle belonged to Martinez and, as a result, they let him go without ally
charges being filed--not even the traffic charge. The informant's tip that a flatbed truck was
stolen in Great Falls and parked in Billings was never associated with Olson beyond the
informant's allegation. Sergeant O'Connell's testimony that he inferred that Martinez and
Olson \yere headed to Boze~nanafter they passed the Laurel exit on the Interstate does
nothing to verify the destination or the purpose of the Appellants' journey. especiallq-given
the fact that Bozcman is located o\-er 120 miles from Laurel. In short, the pastic~larizeii
. .
snspicion supporting the stop in this case was based on a totality of innocent conduct and
allegations of marijuana possession from an unreliable informant. While innoctious conduct
nlay be used in the calc~ilus the totality of the circumstances, that totality must lead to a
of
suspicion of criminal conduct to justify an investigative stop. That did not occur here, and,
importantly, no police officer testified that it did. Consequently, we hold that the stop ol'thc
vehicle was not legal for the purpose of obtaining an account of the Appellants' presence on
the highway on the afternoon of Uoveniber 4- 1999.
163 Justice Cotter argues in her dissenting Opinion that the confidential infornlant's report
contained enough detail to establish that it was not hbricated from whole cloth and that the
officers were correct to infer that her report was based on her personal observations. But
how could the ofticers in this case legitimately itzjkt- that the informant personally observed
a crime when the officers knew from the informant herself that she never saw the alleged
marijuana or witnessed any drug transactions?
764 In his dissent, Justice Rice contends that the informant is presumptively trustworthy
as a "concerned citizen " because she revealed her identity to the police and "wanted to do
what she thought was right." We find no factual support for this where the record depicts
a convicted felon with a prison history, protected identity, unclear motives and uncertaiil
liability for falsely reporting. CI i 99-1020's present relationship with the police as a
i
confidential informant who reports on the activities of persons with whom she associates
distinguishes her from the concerned citizen who reports a chance cncounlcs with crime.
Justice Rice further argues that the informant established a track record of reliability by
calling the police a number of times during the investigation with additional pieces of
accurate information. Pointing particularly to the tip about the truck allegedly stolen by
Olson, the dissent contends that police verification of the vehicle's stolen status established
the informant's trustworthiness. However, more than an ultiinately proven allegation of
theft--without any proven tie between the theft and the alleged thief--is needed to create a
track record. Nothing in the record corroborated a connection between Olson and the stolen
truck.
t65 It is understaildable that the dissent makes a great deal of the informant's various
reports to the police as providing the basis for her reliability. That is all there is--a number
of reports. The problem with this reasoning, however, is that the informant did not once
report any activity that any officer ever testified was suspicious. Reduced to its essentials the
informant reported at different times that the defendants were driving different vehicles. The
officers dutifully followed the defendants around Billings for two and one-half days based
on the infomlant's reports, yet observed no crirninal activity--except the minor traffic offense
for which no citation was issued. Not one offycer ever testified that he observed any
suspicious activity on the part of the defendants.
166 Justice Rice states that the confidential informant derived her inforniation from being
in "strategic proximity to the planning of criminal activity" wiih the result tirat her
infomiation, thus, ti-as based on "personal observation." Again, the record does not support
this depiction. In fact, the record is absolutely devoid of any i~idicationas to lrow tlie
informant obtained her information. And; as we have already noted, that is the problem.
There is iio testimony in the transcript of the suppression hearing that the confidential
informant overheard conversations planning any crime. in fact, there is no evidence in the
record whatsoever as to bow, when or under what circumstances the informant came by her
information.
1/67 Indeed, the testimony on record is that the informant never actually saw any marijuana
xior did she observe, much less describe, any transactions with regard to marijuana
between either Martinez or Olson. The record is clear on this point. If the informant had a
basis for her reports, we will never know because no one--neither the police nor the
prosecution--ever bothered to ask her. Or, if they did, that evidence never made it into the
record of the suppression hearing.
768 The dissent takes six reports of perfectly innocent conduct regarding Appellants--the
driving different vehicles around town; undisputed police testimony that they never observed
the Appellants engage in any suspicious, much less criminal. conduct, despite two and one-
half days of surveillance; and a record totally devoid of any evidentiary basis for the
inforniant's state~nents the Appellants were engaged in transporting marijuana--and then
that
transforms all of this into a conclusion that a reliable citizen informant has repeatedly
rcpo~ted
personal observations of a crime and that her reports are repeatedly corroborated.
$69 'cl-hi'ie Justice Rice finds it "troubling" that n~orcis ilat made of the 0.4 grarz
marijuana bud found on the seat of Martinez's vehicle; we can only note that the investigating
officers did not put any significance on their discovery either. No officer testified at the
suppression hearing that the bud was "highly relevant in confirming the informant's report
that Martinez was transporting larger quantities of marijuana" as claimed by the dissent. The
dissent would find the bud confirms the suspicions aroused by the confidential informant's
t~nreliable tip and characterizes the majority's reliance upon the testimony of the
investigating officers regarding the significance of the marijuana bud as "extreme hair
splitting." Again, if the officers put as much weight on the marijuana bud "from a stem" and
"not ground up" as does the dissent, we will never know, as there is not one iota of testimony
in the record to that effect. The totality of the circumstances is the standard for assessing the
inferences drawn by experienced police officers and the fact that the officers placed no
importance on Martinez's unsubstantiated association with a marijuana bud is relevant to our
inyuiry on appeal.
Ti70 Contrary to the dissent, we are not adopting any new rules nor are we changing those
already adopted. The totality of the eircumstances test is applicable. What the dissent fails
to acknowledge is that the totality cannot be greater than the sum of its parts. No evidentiary
underpinning for the inforn~ant's
reports, or lier reliability, two and one-half days of observed
innocent conduct, no suspicious activity and no criminal conduct, still adds up to zero, no
rnatter how you finesse the nuinbers.
aj7l Justice Rice accuses rile ntajoriiy oi' "tieiilg prtrn[ing], si~ippjirrg]
and rrin~mlir~g]
pieces of the police investigation." Quite to the contrav, the majority Opinion is grounded
in the evidence adduced at the suppression hearing--or more co:-rectly, in the lack of
evidence. It is, rather, the dissent which takes liberties with the record. Indeed, the dissent
creates evidence that is not there.
q72 Finally, we note that the drug stop and interdiction in State v. Olson, 2003 MT 61, -
Mont. - . P.3d -
, - , presents an informative contrast to the one at bar. In Ol.soti, a
person who was unquestionably acting as a citizen informant reported to the police his
personal observations of an operatio~ral
methanipheta~nil~e in the garage of his ex-wife
lab
when he entered the garage to retrieve two camper jacks. The inforniant immediately
reported his observations to Great Falls authorities. Olson, 1 6. While they did not need to
'
corroborate this presumptively reliable report (see K e e ~ ~ n n3 ,34), the two investigating
n
detectives went the extra mile and placed the garage under surveillance. Within an hour after
their sunreillance began, the detectives personally observed garbage bags being transferred
from the garage into a vehicle and then the vehicle leaving the property driven by the
defendant and accompanied by other individuals. Olson, 51 7.
1 28. A m e d with this
information--information which included presumptively reliable observations of criminal
activity and corroborating observations of activity that, while innocent, nonetheless
evidenced a pattern of activity consistent with criminal conduct (see C2r-igg.7,? ! the
l
46-50),
detectives executed 2 successfuirl investigative stop. iiitorz, 74, 35-35, and obtained a search
war-rant illat \vitbsiood ihe defendant's rliotion to suppress. Oiio!?. 29.
',73 Perhaps if the prosecution here had made for itself as good a case as does Justice Rice
the result would be different. The majority shares the State's and Justice Kice's concerns
for law and order and public safety, but the fact remains: it is not our function to make a
case for either the State or the defendants. Our sole obligation is to apply the law in the
context of the constitutional protections afforded to those accused.
CONCLUSION
774 When the police decided to stop Martinez's vehicle on the interstate as he and Olson
were leaving Billings; neither had co~nniittedany traffic offense lior violated any other
criminal law of whiclt the police were aware. Ostensibly the stop was made to check the
temporary sticker, but when the police approached, they could readily see that the sticker was
current and correctly displayed. The grounds for the stop ended when that limited purpose
was fulfilled outside the vehicle and that, thereafter, no further police intrusion was
warranted under 5 46-5-403, MCA, and under the rationale of our decision in Stute v.
Therefore; we hold that the District Court erred when it denied the Appellants'
ffetzdc.~-so~~.
motion to suppress all evidence gathered as a result of the interrogation subsequent to the
stop. Reversed and remanded for further procee
/"
/
i*.
8
36
C5'c Concur:
*
Justices
Justice Jim Rice dissenting.
75 I dissellt from the Court's rctersal oiehc District Court. 1 disagrci- strongiy with ihc
Court's conclusion that "the particularized suspicion supporting the stop in this case was
based oil a totality of innocent conduct" and infortnation from "an i in reliable infonnant." Scc
7 62. The record and standards enunciated by this Court, including those adopted herein
regarding the reliability of an informant in the context of particular-ixed suspicion, co~npel
the opposite result.
(176 Although 1 do not dissent from the Court's application of our infonnant reliability
stai~dards stops which are pre~nised
to upon particularized suspicion; the Court's rejection
of the reasoning of the United States Supreme Courl in Al(lhii~rta M%lirc(1890), 390 U.S.
v.
325, 110 S.Ct. 3412, 110 LJ.Ed.2d 301. is of little consequence ctnder the facts lterc. The
Court criticizes Alnhantc~'~
holding that "the veracity, reliability and basis of knowledge of
an anonymous or otherwise unreliable informant may be inferred when policc corroborate
wholly innocent facts about the alleged criminal actor and no independent information
indicates that the suspect is involved in an alleged crime." See 7 5 1 . flowevert as discussed
below, the two fundamental conclusions which undergird the Court's decision here, and its
distinguishment of Alcihiri~ziz,those being ( 1 ) the infom~antwas unreliable, and (2) the
officers' corroboration of the informant's infortnation was insufficicnt, arc both faulty. 1 find
the second couclusictn to be profoundly so. The informant in this case was neitlicr
anonymous nor othervciise ttnreliable. Further, the police's corroboration was not limited to
independent information that ihc iiefendants iverc in\ oivcci in
\viiolly innocent Facts ~ v i t l i o ~ t t
a crime. ?iiius,regardieis ofthe necessity o f corroboration, ihc police corrobori:tion hrrc ivas
more than sufficient to support the investigative stop.
1177 it cannot bc overemphasized that this is a case involving particularized suspicion, and
not probable cause. Because this was an invcstigati.re stop: our law requires only that there
be "objective data from which an experienced officer can make certain inferences" and a
"resulting suspicion" that criminal activity is afoot. State v. Gopher (lO8l), 103 Mont. 189,
194, 631 P.2d 293, 296. The Court here is requiring much more. The conclusions of the
Court are discussed in turn.
RELIABILITY OF THE INFORMAXT
1178 i~~formu~if'ssrut~rs. the Court repeats our long-established rulcthat "acitizen
In1 33,
informant who is motivated by 'good citizenship' and willing to disclose the circumstatlccs
by which the incriminating information became known is presumcd to bc telling the truth,"
but then tosses tlie rule away and concludes that thc informant here is no: entitled to a
pres~iniptionof tr~istworthiness.
7 9 The informant meets our criteria. above-stated, for a "good citizen" infor~want."[IIf
the informant is motivated by 'good citizenship' and the information provided demonstrates
a sufficient degree of the nature of the circumstances under which the i~lcriminating
information became known, then tlie informant's disclosures arc deemed a reliable basis
2000 MT 243. 11 301 Uont. 408, a 34; 10 P.3d 83, fl 34. The
. . . ." ,Stuinrc v. Ree.s.smrlr~, 34,
i~~ibrnlant was not anonymous, but identified herselt; disclosed her piloii~ address
herc and
.
information, rcveaied that s11c ,.v~ts a glritr~end a defendant, re!:iy:d
to a si~i>srai~iial
amount
of information to policei and personally appeared at police offices to do so. Why did shc do
this' The evidence in regard to her motivation was tliat "she .wanted to do what shc thought
was right." The defense offered no alternative motivations for her conduct. Further, it was
obvious from the wide range of details she provided, which u-erecorroborarcd by police, that
her involvement as a girlfriend to a defendant had indeed given her access to the defendants'
plans. Given this record, tlie Court has no basis to conclude that the informant wits acting
for any reason but gooci citizenship. As such, she should be considered reliable, yet the Court
concludes that "[wlc find no factual support" for the Ilearing testimony tlrat tile informant
was doing what she thought was right. Why does the Court deem the hearing tesiirnony of
the informant's good motive to be without "factual support"'? Because the Court does not
like the informant's background.
7180 Instead of ackno\vledging that the requirements of Neesn~nnwere fulfilled here, the
Co~trt
holds that the infomniant here cannot be considered a good citizen bccause she is "a
convicted felon" and has "a prison history . . . unclear motives [or] uncertain liability for
falsely reporting." See'; 64. Nel-er have we held that informants with a criminal background
could not be motivated by good citizenship, but tlie C.:ourt does so iierc. Apparently. unless
the informant has a "lily white" background. she need not call; as this Court will deem her
dark past to outweigli her desire to do good. The error here is painf~fillly
obvious, and cannot
be cienicd. as the Coin? has given no otl-ier rcason to conclude that thc hearing testimony of
good motive cannot bc bciieved, and therc is no other reason fron? thc record
tiic irifon?~ani's
to so conclude.
"1 The irrfor~sant's"track record." The Court also finds that because this was the
police's '"first experience" in working with the informant, "the confidential informant had
not established a track record that supports a finding of reliability," pursuant to Reesrnnt~.
In rnechanieally applying our informant reliability standards, the Court misses the big picture
here. The absence of a "track record" is an appropriate consideration when an informant
makes a first call to police about suspected criminal activity. Howec-er, that is not the
situation here.
1182 Prior to the informant's call about the Bozcn~an which led to the stop, she made
trip
multiple other calls over a several week period about different activitiesi including other
crimes, which were investigated by police and found to be accurate. The Court references
some of the infonnation derived from those previous calls, and the corroboration thereof.'
Notable among those calls was the informant's report that Olson had stolen a truck from
Great Falls. which police located in the area desertbed by the infomlant and confim~cd
had
been stolen. These calls represent successful pollee experiences wit11 t h ~ s
informant, and
unclemines the Court's finding that this information suffered "indeterruirtable rcliability."
Indeed, thc rcliability was established ~vhcrlthe inforlnatioli was confirmed by police.
'In its discussion in these refcrcnccd paragraphs, the ('our1 ovc.rlooked other critical rnibrmation
provided by the infiirn-rant,which is discussed helow.
Neither does the State's failure to tile chargcs on all of thesc rcports serw to dirnirrisii ihe
vaiidity of the inibrrnation pro-:iiicd, Quite to tirc cciiltiar,- encl; of the many calk nndc by
i, ,
the informant sened to create a track record and enhaiice her crcdibi!ity. By the time the
informant informed police about the defendants' trip to transport drugs to B o ~ e m a n ~
the
informant was far beyond a "first experience," and should have been eonsidered reliable on
this basis as well.
783 I11 response, the Cot~rtriljects this dissent's reliarrce on the intbrmant's niultiple
accurate reports by asserting that police verification of the informant's stolen vehicle report
did nothing to enhance her trustworthiness, and by dismissing her successive reports of the
defendants' aetiviries as "perfectly innocent conduct.'' The Court fails to explain how an
accurate and corroborated report about a stolen vehicle \vould not serve to enhance an
informant's credibility. Further, as discussed herein. the informant's other reports provided
infonnalion that was mnch more that^ "perfcctly innocent."
184 The informant here provided no less than six reports to police over a several week
time period which were all corroborated, and I would conclude that the last report, in
response to which police initiated the stop, was based upon a successf~tl
track record.
'85 Ifzformant'spersonulohservatiorzs. The f ourt finds that becsltlse "the informant did
not personally observe any contraband substances or drug dealing and. . . the recorci reveals
nothing about thc source of the iriforniant's knowledge; . . . the court erred by finding the
confidential infonnanr's tip to he reliable." 57. Hoivever, ti~is not ihc proper icst for
is
assessing an infomiant's pcrsonai in\:oivcrr~ent.
T86 First, \vc analyze particularized suspicion in tl-ic context of "tihc totality of ti?c
circumstances." Srnte v. h'q.tlold~s(1005), 272 Mont. 36, 49, 890 P.2d 540, 542; Ut~ifccl
States v. Cortez (l981), 349 I1.S. 41 1,417-18. 101 S.Ct. 690,694-115,66 L.Ed.2d 621,628-
29. Within that context, we ascertain an informant's personal in\:oivement as follows:
At1 officer may infer that thc iufonnation is based on the info~mant's
personal
observations if the inforniation contains sufficient detail that
"it is apparent that the informant had not been fabricating [the] report out of
whole cloth . . . [and] the report [is] of the sort which in common experience
may be recognized as liaving been obtained in a reliable way . . . .3,
Strite 1.. I'ratf (l907), 286 Mont. 156, 165, 951 P.2d 37, 42-43, quoting Stcue v L7il1cg(z~>-
(Or. 1994), 887 P.2d 809, 8 1 1 (quoting,S~~~riellr
Furelc~ (1969). 393 U.S. 3 0.
1 . Ciz~reclStittes 1
\%ithoutquestton that the informant was not fabr ~cating reports fro111 "\+hole cloth." but
her
rather, that she was in strategic proximity to the planning of the criminal activity. Therefore,
we should conclude that the officer properly iilfened that the substantial information
provided by this informant was based upon her personal observation. The Court criticizes
this dissent's conclusion that police could infer that the info~mant's
reports were based upon
personal obsenatton, but it whollj Fails to deal mith the fact that our case la\\ in regard to
particular~/edsuspleion allous for exactl~
that.
q8
j7 For these multiple reasons, the inihrllranr should be considcrrd a good citiicn and
should be deenied to hake previous1)-PI-ovided
acciiraie iaihi-rriaion, Co:-roboration skoiild
not be necessary. However, the officers notictheless obtained it.
POLICE CORROBOKATIQX OF THE INFORM.IIUT'S INFORMATIOX
7/88 The Court improperly focuses its discussion on what the police did izot obse~ve.S'ec
7: 6, 53, 57. The proper focus is what police did observe, arrd whether "an experienced
police officer cat1 make certain inferences" therefrom. Gopirev, 193 blotlt. at 194.63 i P.2d
at 296.
1 ] 8 W l z emal-ijuanu bud. In a conclusion ivhicli I find very troubliiig, the Court concludes
that thc bud obtained by police in the first stop of defendant Martincr bears no relevance
whatsoever to the question of particularized suspicio~iof drug trafficking. The Court
acknowledges the State's argument that the bud was indicative of possession of a larger
quantity of marijuana, but concludes that, because police "could not establish that the
minuscule marijuana bud found in the vehicle belongcd to Martinez and, as a result. they let
him go without any charges being filed--not even the traffic charge," the bud did not indicate
"patterned criminal behavior," and thus; cannot be considered.
9 Contrary to the Court's aiialysis, the relevance olthe bud is not limited by the failure
to establish Martinez' ownership of it, or the failure to charge hirn with its possession. As
noted, the bud was highly relevant in confirming the informant's report that Martinez was
transporting larger quantities of marijuana iti his vehiclc, an inference that \vould be
particulariy signilicarlt in the cycs of "an experienced poiicc offker," which our analysis is
supposcii to consicier. The failure to charge ii1arti;ler with possession ofrlx bud is no:!-iiiig
more than a "red hcrring3 issue, and tlie Court should not consider it. Curiously, thc C:oi!rt
is fixated on the police's failure to charge the defendants for violations observed prior to the
stop at issue here. That t l ~ e
police elected not to further investigate or charge the defendants
with theft of the truck or with possession of the bud could very well have reflected police
interest in furthering rheir in\-estigation of the reported transport of a large arnouut of drugs,
but, n-hatever the reason, takes nothing away from the significance of this evidence in
relatio~ishipto particularized suspicion. This one small piece of evidence, with its large
attendant rncani~lg regard to drug trafficking, sliould require a different result here.
in
791 The Court attempts to dismiss t l ~ eseizure of the marijuana bud because "the
investigating officers didnot put ally significance on their discovery." The Court ignores that
the officers testified that the bud appeared to come from a stem, and that it was not ground
up marijuana, but. in any event, that testimony apparently docs not satisfy the Court. The
Court will not be deterred, suppressing this evidence because "[n]o officer testified at the
suppression hearing that the bud was 'highly releuant."'
1102 In so holding, the Court misses the point of tlie entire case. This case was about
stopping a suspected drug trafficker who was reported to be transporting a large aniount of
marijuana. Yet. because the officers didn't specifically testify that "we think this marijuana
bud came from a bigger pile ofmarijuana,"'thc Court finds that the bud offers no signi ficancc
as objective data for purposes of particularized suspicicn. f h i s conciusion is nothing more
than cxtrcrnc hair splitting a i d is itreconciiabic with riic rcyuircn-ien! that a?iaiyzc
Y V ~
particularized suspicion in tl-te context ofthc "'iotality of thc circiimstances." Rq.17oliis, 272
703 Switching ofvehi~Ies/(fUtureplans. Court overlooks critical facts in its analysis
The
of the informant's reliabilitq, the police's conoborition efforts, and ultimately, the
determination of particularized suspicion: the conspirators' switching of vehicles, and the
predictive nature of the defendants' plans. Following the police stop and the discovery of
the bud in the Chevrolet pickup driven by Martinez on November 3, the informant told police
that the defendants were leav~ng ~ l l ~ n the next day, and that because of the pol~ce
B gs stop,
they had switched vehicles and were going to drive a teal-colored Malda truck with a
temporary sttcker. The s~vitch r chtcles was confirmed by independent pol~ce
in survclllancc.
About this information. the State offers in its brief:
The reliability of the information and its use as thc basis for the detectives'
partict1la1-ized suspicion is buttressed not only by the detail she provided, but
also relating things that were going to occur. including Martinez's arrival in
Billings on Sovcmber 2, his switching to a different truck aftcr the Novcrnber
3 stop, and his and Olson's driving together in the teal truck toward Bozeman
on Noveriber 4, [Emphasis in original.]
Despite the significance of this inforumtion, which was not lost to experienced police
officers, the Court concludes that th1.i is "perfcctlq innocent conduct" ~111ch
added notli~ng
to the police's inbestigatton and d e c ~ s ~ o nstop the t ehicle. Seee168. Tlie Court appatcntly
to
bclicvcs that it is ''pcrfectly innocent'' for a visitor to BiIlirtgs to change vehiclcs For Iiis
. .. 7 '
'
r-turn trip after hc is stopped by police and ciispossesscd ofihe illegal drugs in iiis car.. I 111s
activity may appcar to be "'perfectly irmocent" to judges in tlelcna, hut it is anything but
Innocent to trained police officers on the street, and it is the officers' \ie\x~pornlthmugh
M Goplzer, 193 Mont. at 194,63 1 P.2d at 296. Further,
hlch u e are to assess the ~nfom~atlon.
this Court has previously acknowledged that such '+innocent" travel infortnation is highly
relevant, and can form the basis of confirming an informant's report, as \veil as a subsequent
stop or arrest. See State v. Griggs, 2001 MT 21 1 , l 43, 301 Mont. 366,q 43, 34 P.3d 101.
13. The Court should so conclude here.
9 1 In his presentation at oral argument, Ationley General Mikc McCrath ciffcred these
comments:
The officers involved in this case did what we told them to do when we do
training. They've done what this court asked tfleni to do . . . . They did riot
wake a stop until they determined that they had a particularized suspicion to
do that. . . . I mean, they did this right. They spent time developing the
corroboratio~i this court requires them to do. And I think if you look at
that
all the facts, you say that the police officers in this case did what we asked
them to do. They did the right thing and I don't think they should be
penalized. Clearly, Judge Fagg made the right decision.
1n stark contrast to the Attorney General's assertion that the police "did this right" by
collecting the necessary evidence to justify the stop, the Court eo~rclc~dcs the police had
that
no leg~tin~atc
e.v~dence all. The Court has cleftlq prixncd, snipped and trlmlned all the
at
picccs ofthe police's invcstigaliu~l that nothing rerr~ains their work cxcept "innocent
so of
conduct" and "untrustuorthq ~nformation." The Court has abandoned the total~ty the
of
circumstances lcst for a narrow and rigid application of standards w:hicn bcars no
rescnlbiancc to practical reality. N-liiii: i do not rnininiic ihe Attorney Gcncralis conccrn
that we not penalizc the officers, the larger problem is that his decision wiil eventually
penali~e citizens by diminishing the officers' ability to protect their public safety.
all
9 5 1 dissent.
Justice Patricia 0. Cotter dissents.
g9b
ti
~ 1 too dissent ~ O I P il:e
T rcvelsai ofthe District Cntirr. Like Justice Rice. i agree wit11
rhc Goun's application of our informant reliability standards to stops which a n premised on
particularized si~spicion.1 fusther agree that there was sul'ftcient particularized s~~spicion
to
justify the stop of the defendants. I \vould affirm based upon our holding in Prutt, to the
effect that an officer may infer that information provided by an informant is based on an
informant's personal observations if the information contains enough detail to establish that
it has not been fabricated. See 7 86 of Justice Rice's dissent. I \vould further note in
response to the Court's conclusion that the informant had "uncertain liability for falsely
reporting'' (f 64j, that this informant vvus at risk for providing false inforn~ation, that she
in
was on probation at the time she gave her information to authorities, and presumably was
therefore subject to probation revocation if she violated the law.
7i97 With Pmtt as legal backdrop, and given the considerable and unique set of facts with
which the District Court \;vas faced, 1 would simply conclude that the District Court's
findings that the officers had information from a reliable source that the defendants were
transporting dmgs and that the police sufficiently corroborated the informant's tip were not
clearly erroneous, While we all wish the record was better--and I agree with the Court that
we should not have to read between the lines to find a sufficient indicia of reliability--no
clear error was committed by the District Court. There is ample legal support in Prutt for the
, -
- ,
District Court's findings. I would therefore affirm. ~ .~ - .
i 1
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