State v. Driscoll ( 2013 )

March 12 2013
DA 12-0389
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 63STATE OF MONTANA,
Plaintiff and Appellant,
v.
DOMINIC PAUL DRISCOLL,
Defendant and Appellee.
APPEAL FROM: District Court of the Fifth Judicial District,
In and For the County of Beaverhead, Cause No. DC-12-3461
Honorable Loren Tucker, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
James P. Dolan, Dillon City Attorney, Dillon, Montana
For Appellee:
J. Blaine Anderson, Jr., Attorney at Law, Dillon, Montana
Submitted on Briefs: January 9, 2013
Decided: March 12, 2013
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 The State appeals the order of the Fifth Judicial District, Beaverhead County, that
suppressed statements made by Appellee Dominic Paul Driscoll (Driscoll) to two police
officers. We affirm.
¶2 The State presents the following issues on appeal:
¶3 Whether the officers possessed particularized suspicion to question Driscoll?
¶4 Whether the officers violated Driscoll’s right against self-incrimination?
PROCEDURAL AND FACTUAL BACKGROUND
¶5 Assistant Chief Don Guiberson and Officer Brad Rose of the Dillon Police
Department observed Driscoll holding a beer can in a bar during a routine sweep during the
annual Labor Day rodeo weekend in Dillon, Montana. The officers believed, based on
Driscoll’s appearance, that Driscoll was younger than 21 years old. Officer Rose approached
Driscoll to ask how old he was. Driscoll responded that he was 22 years old. Officer Rose
asked Driscoll for identification to verify Driscoll’s age. Driscoll refused. Officer Rose told
Driscoll to accompany the officers outside.
¶6 Driscoll accompanied the officers outside. Officer Rose asked Driscoll for his full
name and his birthdate. Driscoll provided Officer Rose a false first name and a false
birthdate. Officer Rose asked dispatch to verify this information. Dispatch responded that
there was no return on that name and date of birth. Officer Rose placed Driscoll under arrest.
Driscoll eventually admitted that his true first name was Dominic. Officer Rose found a
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driver’s license, through a name-search of the database, which matched Dominic Driscoll.
The birthdate on the driver’s license confirmed that Driscoll was under 21 years old.
¶7 The State charged Driscoll with minor in possession, in violation of § 45-5-624(1),
MCA, and obstructing a peace officer, in violation of § 45-7-302, MCA. Driscoll moved to
suppress his statements to the officers and to dismiss the charges. Driscoll first claimed that
the officers lacked particularized suspicion to question him. Driscoll next claimed that the
officers’ request for his name, date of birth, and identification had violated his federal and
state constitutional right against self-incrimination.
¶8 The City Court granted Driscoll’s motion to suppress. The City Court also granted
Driscoll’s motion to dismiss. The State appealed. The District Court affirmed Driscoll’s
motion to suppress after determining that the officers had violated Driscoll’s right against
self-incrimination. The District Court denied, however, Driscoll’s motion to dismiss. The
District Court determined that it was the role of the State, not the court, to decide whether to
proceed with the prosecution. The State appeals.
STANDARD OF REVIEW
¶9 We engage in a twofold review of a district court’s motion to suppress. We initially
review the court’s findings of fact to determine whether they are clearly erroneous. We
conduct a plenary review of the conclusions of law to determine whether the district court
correctly interpreted the law. State v. Jones, 2006 MT 209, ¶ 17, 333 Mont. 294, 142 P.3d
851. The parties have stipulated to the facts. We review therefore only the District Court’s
conclusions of law.
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DISCUSSION
¶10 Whether the officers possessed particularized suspicion to question Driscoll?
¶11 Section 46-5-401(1), MCA, provides that when an officer has particularized suspicion
that a person has committed, is committing, or is about to commit an offense, the officer may
stop that person. The officer may lawfully request the person’s name and present address
and an explanation of the person’s actions. Section 46-5-401(2), MCA.
¶12 The District Court determined that the officers possessed particularized suspicion to
question Driscoll. The officers saw Driscoll holding a beer can. Driscoll appeared younger
than age 21. The State argues that these facts informed the officers with sufficient
particularized suspicion to approach Driscoll and ask his age. We agree.
¶13 The existence of a particularized suspicion depends on the totality of the
circumstances. State v. Fisher, 2002 MT 335, ¶ 12, 313 Mont. 274, 60 P.3d 1004. The
totality of the circumstances includes objective observations and consideration of the modes
or patterns of operation of certain kinds of lawbreakers. Fisher, ¶ 12.
¶14 We next address whether the officers improperly expanded their investigation by
taking Driscoll outside. Section 46-5-401(2)(a), MCA, authorizes the officers to have asked
Driscoll for his name, address, and an explanation for Driscoll’s actions. The officers
approached Driscoll and asked for his age and an ID, rather than for his name, address, or an
explanation for his actions. Driscoll informed the officers that he was 22. Driscoll declined
to provide the officers with an ID. The officers never asked Driscoll for his address or an
explanation for his actions. The officers failed to articulate any reason in their report for
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continuing their questioning of Driscoll after he responded that he was 22. The officers
simply described Driscoll as acting “defensively.”
¶15 Without additional articulable facts that led the officers to believe that Driscoll was
underage, the officers should not have taken Driscoll outside. The officers could have
pursued their investigation through other means. The officers exceeded the scope of their
investigation, however, by taking Driscoll outside the bar without additional articulable facts.
We need not consider whether the officers violated Driscoll’s right against self-
incrimination because we have determined that the officers exceeded the scope of § 46-5-
401, MCA.
¶16 We also affirm the District Court’s denial of Driscoll’s motion to dismiss. We agree
that the State, rather than a court, should assess whether sufficient evidence exists to
continue the prosecution.
¶17 Affirmed.
/S/ BRIAN MORRIS
We Concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE
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