State v. Richard Clawson , 351 Mont. 354 ( 2009 )

July 7 2009
DA 07-0351
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 228
STATE OF MONTANA,
Plaintiff and Appellee,
v.
RICHARD CLAWSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC-06-0812
Honorable G. Todd Baugh, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender, Helena, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Matthew T.
Cochenour Assistant Attorney General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney, Billings, Montana
Submitted on Briefs: June 10, 2009
Decided: July 7, 2009
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Richard Clawson appeals his conviction after a jury trial for the offenses of
driving under the influence (§ 61-8-401, MCA); criminal possession of dangerous drugs
(§ 45-9-102(2), MCA); and criminal possession of drug paraphernalia (§ 45-10-103,
MCA).
¶2 Clawson presents the following issue for review:
¶3 Whether the District Court properly held that the arresting officer had
particularized suspicion to make the investigatory stop that led to Clawson’s arrest.
PROCEDURAL AND FACTUAL BACKGROUND
¶4 At 10:00 a.m. on October 7, 2007, Keri Perez, her husband and her 11-year-old
son stopped to get gas at a convenience store in the Heights area of Billings, Montana.
Keri pumped the gas while her husband and son waited in the car. Clawson and an
acquaintance were also at the store buying beer. Clawson’s vehicle was parked parallel
to the Perez vehicle, oriented in the same direction. While Keri Perez was pumping the
gas, she heard Clawson confront her husband with an obscenity, asking what he was
looking at. Richard Perez was sitting in his car with the window up. Clawson continued
confronting Richard who got out of his car, telling Clawson that he was only looking at
Clawson’s black lab dog and that Clawson should leave. Clawson was confrontational
and belligerent and, according to Keri, was flailing his arms and coming toward the
passenger door of their car. Her first impression was that Clawson was intoxicated.
Richard could smell alcohol on Clawson’s breath and saw him stumble. Keri was startled
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and afraid of Clawson’s behavior, and Richard was concerned that Keri’s son was being
frightened. Richard got back into their car and told Keri that Clawson was “really drunk
and he shouldn’t be driving” and that they should call the cops. Clawson left driving his
vehicle.
¶5 Keri used her cell phone to call the Billings Police Department dispatch to report a
possible drunk driver. She told the dispatcher about the incident, that Clawson started
yelling at her husband for looking at the dog, and that she thought Clawson was
intoxicated. Keri described Clawson’s vehicle as a maroon Chevy Blazer or Ford
Explorer, and provided the number of the Iowa license plate. Keri described Clawson in
detail, along with the fact that he was traveling with a passenger and had a black lab in
the vehicle. She gave the street location of the incident and the direction of Clawson’s
travel when he left. She provided dispatch with her full name, address, and home phone
and cell phone numbers. She stated that she would file a complaint if Clawson were
located.
¶6 Dispatch broadcast to officers that there was a possible DUI driver in the Heights
area and relayed Keri’s description of Clawson and his vehicle. Billings Police officers
were dispatched to the convenience store to make contact with Keri and Richard Perez.
Chris Romero was a deputy with the Yellowstone County Sheriff’s Department and a 12-
year law enforcement veteran who had made hundreds of DUI arrests. He heard the
information from dispatch of an altercation at a gas station and a request that officers
attempt to locate Clawson’s vehicle. He heard that a witness had called in a report of the
incident, that the suspect involved had driven off, and that the witness believed that the
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driver was intoxicated. Romero received a description of the vehicle as a maroon SUV
with Iowa plates, a male driver and a black lab. Romero soon saw Clawson’s vehicle on
Five Mile Road, a rural gravel road in the area described by dispatch. Clawson’s vehicle
was stopped in the travel lane with the door open. The black lab was running down the
road.
¶7 When Romero arrived at Clawson’s vehicle, Clawson retrieved the dog and started
to drive away. Romero turned around, stopped the vehicle, talked to Clawson, and asked
for his driver’s license. Romero observed that Clawson’s speech was slurred, his eyes
were bloodshot and that his breath smelled of alcohol. Clawson stated that he had
consumed “a beer” and Romero proceeded to investigate to determine whether Clawson
was able to drive safely. During a consensual pat-down search Romero found marijuana
and a pipe in Clawson’s pockets. Romero gave Clawson a warning ticket for parking on
the traveled way of the road. Clawson failed initial field sobriety tests conducted at the
scene, as well as others conducted later at the station.
¶8 Clawson was charged with DUI and possession of drugs and paraphernalia.
Clawson moved to dismiss the charges on the ground that the evidence obtained at the
scene of the stop should be suppressed because Romero lacked particularized suspicion to
stop and conduct an investigation. The District Court held an evidentiary hearing on the
motion to dismiss and concluded that Romero had sufficient information to stop Clawson
and investigate. Clawson was subsequently convicted of all three offenses after a jury
trial and was sentenced. He appeals.
STANDARD OF REVIEW
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¶9 We review denial of a motion to suppress evidence to determine whether the
district court’s findings of fact are clearly erroneous and whether the court correctly
applied those findings as a matter of law. State v. Elison, 2000 MT 288, ¶ 12, 302 Mont.
228, 14 P.3d 456. We review a finding that an officer had particularized suspicion to
conduct an investigatory stop to determine whether the finding was clearly erroneous.
State v. Farabee, 2000 MT 265, ¶ 11, 302 Mont. 29, 22 P.3d 175.
DISCUSSION
¶10 Both the United States and Montana Constitutions require that searches and
seizures be reasonable. U.S. Const. amend. IV; Mont. Const. art. II, § 11. These
protections apply to investigative stops. State v. Gopher, 193 Mont. 189, 194, 631 P.2d
293, 296 (1981). An investigative stop is valid if the officer possessed a particularized
suspicion that the subject has committed or is about to commit an offense. Section 46-5-
401(1), MCA. Particularized suspicion requires a showing of objective data from which
an officer can make certain inferences, and a resulting suspicion that the subject is or has
been engaged in wrongdoing. Elison, ¶ 15.
¶11 Whether an investigative stop is founded upon particularized suspicion is a
question of fact that must be evaluated under the totality of the circumstances. When
evaluating the totality of the circumstances a court considers the quantity or content of
the information available to the officer and the quality or degree of reliability of that
information. Elison, ¶ 16. An arresting officer may rely on information conveyed by a
reliable third party to form particularized suspicion sufficient to justify an investigative
stop. State v. Pratt, 286 Mont. 156, 162, 951 P.2d 37, 41 (1997). In Pratt this Court
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recognized that “[c]itizen informants can provide useful information and play an
important role in law enforcement.” Pratt, 286 Mont. at 164, 951 P.2d at 42. We
adopted three factors to use to evaluate the reliability of the report of a citizen informer in
the context of whether the totality of the circumstances warranted an investigative stop:
(1) whether the informant identified herself to the authorities; (2) whether the informant’s
report is based on personal observation; and (3) whether the officer’s observations
corroborate the informant’s information. Pratt, 286 Mont. at 164-65, 951 P.2d at 42-43.
¶12 All information that the citizen informant gives to the dispatcher is relevant when
evaluating the justification for an investigative stop, whether or not it is specifically
relayed to the officer in the field. State v. Hall, 2004 MT 106, ¶ 15, 321 Mont. 78, 88
P.3d 1273. An officer in the field does not have to personally assess the reliability of the
tip given to dispatch. Hall, ¶ 11. Effective law enforcement often depends upon officers
acting on the directions and information transmitted swiftly from one to another and
“officers cannot be expected to cross-examine their fellow officers about the foundation
for the transmitted information.” Hall, ¶ 11, quoting, United States v. Robinson, 536 F.2d
1298, 1299 (9th Cir. 1976). In the present case, the District Court found that while
Clawson’s stopping on the roadway likely did not provide sufficient particularized
suspicion, Romero’s investigative stop was justified by the information supplied by Keri
Perez.
¶13 Considering the Pratt factors, first it is clear that Perez adequately identified
herself. She provided her name, her address, her home phone number, her cell phone
number, and the location she was calling from. Second, the information was based upon
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her personal observations and experience. She saw and heard the unprovoked and
belligerent confrontation that Clawson initiated with her husband a short distance from
where she was standing pumping gas. She heard her husband’s contemporaneous
conclusion that Clawson was intoxicated, based upon his face-to-face interaction with
Clawson. She observed and relayed details about Clawson’s appearance, his vehicle
type, make, color and license. She observed and relayed Clawson’s direction of travel
when he left. Third, the officer corroborated Keri’s information. Within five to ten
minutes of hearing the information over his radio, Romero found Clawson’s vehicle in
the area indicated by dispatch, based upon information supplied by Perez. The
description of a maroon SUV with Iowa plates and a dog, based upon information
supplied by Perez, matched what Romero found when he located Clawson. Clawson fit
the physical description given by Perez. Clearly the three-prong test of Pratt has been
satisfied.
¶14 Romero saw Clawson’s vehicle stopped in the travel lane of the road with the door
open, a traffic offense for which Romero issued a warning ticket. Even though Romero
did not observe other DUI-related behavior by Clawson prior to initiating his
investigative stop, direct observation of the specific illegal activity is not required as long
as other salient facts are corroborated.
In applying the Pratt test, it is important to remember that the standard of
“particularized suspicion does not require that the law enforcement officer
be certain that an offense has been committed.”
State v. Roberts, 1999 MT 59, ¶ 26, 293 Mont. 476, 977 P.2d 974.
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The District Court observed in the present case that neither the informant nor the
investigating officer can normally know whether the subject driver is intoxicated until
“tests have been done [or] field sobriety maneuvers have been done.” That is usually the
point of an investigative stop: to allow the officer to make a determination as to whether
further investigation is warranted. A “trained and experienced law enforcement officer is
entitled to draw inferences and make deductions that might well elude a layperson in
determining whether a particular stop is justified.” Roberts, ¶ 26. As the District Court
explained, the officer gets information about “the layman’s observations” and attempts to
verify them if the officer happens to find the subject vehicle:
And if the officer has no further probable cause to believe that the person is
intoxicated, nothing further happens with all of that. But if the officer
further corroborates that the person that is stopped seems to be under the
influence of alcohol, then it proceeds on, as it did in this case.
Under the totality of the circumstances of this case, we find that the stop was justified and
that the District Court’s findings were not clearly erroneous. We affirm.
/S/ MIKE McGRATH
We concur:
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ JIM RICE
/S/ BRIAN MORRIS
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