State v. M. Bennick , 2018 MT 47N ( 2018 )

03/13/2018
DA 16-0564
Case Number: DA 16-0564
IN THE SUPREME COURT OF THE STATE OF MONTANA
2018 MT 47N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MERCEDES ANN-NICOLE BENNICK,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 15-975
Honorable Michael G. Moses, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Ashley Harada, Harada Law Firm, PLLC, Billings, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General, Helena, Montana
Scott D. Twito, Yellowstone County Attorney, Billings, Montana
Submitted on Briefs: February 14, 2018
Decided: March 13, 2018
Filed:
__________________________________________
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 Mercedes Ann-Nicole Bennick (Bennick) appeals from a Thirteenth Judicial
District Court’s order denying Bennick’s motion to suppress evidence, based on her
claim that the investigating officer lacked particularized suspicion to make a traffic stop.
We affirm.
¶3 On October 4, 2015, around 10:49 p.m., Billings Police Officer Stovall (Officer
Stovall) was conducting a routine patrol when he observed a dark colored vehicle parked
in an alley in Billings. When Officer Stovall drove by between ten and thirty minutes
later, the vehicle was in the same position. By the time Officer Stovall turned his patrol
car around, the vehicle had turned onto the street and parked, partially blocking the alley.
Officer Stovall then observed the vehicle drive off down the street. He pulled the vehicle
over because the license plate light was not properly working. Bennick’s father, Aaron,
was driving the vehicle, and she was a passenger.
¶4 None of the occupants in the vehicle had a valid driver’s license. The dispatcher
advised there was an active arrest warrant for Aaron and the front-seat passenger. Aaron
gave permission to search the vehicle. Bennick was removed from the vehicle and a
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safety pat-down was conducted by Officer Stovall. Bennick gave Officer Stovall consent
to remove a hard object from her pocket, which was identified as a loker, a glass pipe
commonly used to consume methamphetamine. The officers found a baggie of marijuana
where Bennick had been sitting in the vehicle. After Bennick was arrested and
transported to the Yellowstone County Detention Facility, an officer observed a glass
pipe with white residue, a clear baggie of methamphetamine, an empty torn baggie with
white residue, two folded up pieces of paper with methamphetamine inside, and a clear
baggie of marijuana sitting in the back seat of the patrol car. A review of the in-car video
revealed Bennick removing these items from her person after being placed in the patrol
car.
¶5 Bennick was charged with felony possession of dangerous drugs, misdemeanor
possession of dangerous drugs, and misdemeanor possession of drug paraphernalia. On
February 1, 2016, Bennick moved to suppress the results of the search and dismiss the
case, alleging Officer Stovall did not have particularized suspicion to make the traffic
stop. On April 18, 2016, the District Court held a suppression hearing. The District
Court denied the motions. On May 19, 2016, Bennick pled guilty to all three charges and
reserved the right to appeal her motion to suppress and dismiss. Bennick was sentenced
on July 19, 2016, and judgment was entered on July 29, 2016. Bennick appeals.
¶6 This Court reviews factual findings of particularized suspicion for clear error and
application of those facts to the law for correctness. City of Missoula v. Sharp, 2015 MT
289, ¶ 5, 381 Mont. 225, 358 P.3d 204. A finding of fact is clearly erroneous if it is not
supported by substantial evidence, if the lower court has misapprehended the effect of the
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evidence, or if a review of the record leaves the court with a definite and firm conviction
that a mistake has been made. State v. Dupree, 2015 MT 103, ¶ 8, 378 Mont. 499, 346
P.3d 1114.
¶7 Under Montana law, a police officer is authorized to stop a vehicle “that is
observed in circumstances that create a particularized suspicion that the . . . occupant of
the vehicle has committed, is committing, or is about to commit an offense.” Section
46-5-401(1), MCA. The State must satisfy the particularized suspicion requirement by
showing that the police officer had “(1) objective data and articulable facts from which an
experienced officer can make certain inferences, and (2) a resulting suspicion that the
occupant of [the] vehicle is or has been engaged in wrongdoing . . . .” State v. Larson,
2010 MT 236, ¶ 19, 358 Mont. 156, 243 P.3d 1130. A police officer does not need to be
certain that an offense has been committed to justify an investigatory stop. Sharp, ¶ 8.
¶8 Section 61-9-204(3), MCA, requires vehicles to have a light that renders the
license plate clearly legible from a distance of fifty feet. An officer may initiate a stop if
there is particularized suspicion that a traffic offense is being committed. See State v.
Massey, 2016 MT 316, ¶ 12, 385 Mont. 460, 385 P.3d 544 (holding that an officer had
particularized suspicion of a violation of § 61-9-204(5), MCA, when a driver’s tail lights
were obscured by covers and not plainly visible from 1,000 feet); State v. Haldane, 2013
MT 32, ¶¶ 19-30, 368 Mont. 396, 300 P.3d 657 (holding that a license plate “obstructed
from plain view” and not “obviously visible” gave rise to particularized suspicion for a
valid traffic stop). Officer Stovall testified that the license plate was not clearly legible
from fifty feet away due to it being partially lit. The defense witnesses testified that the
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license plate was clearly visible. The District Court noted that the license plate appeared
to be only partially lit in Bennick’s Exhibit A, which was a photo of the vehicle taken
from Officer Stovall’s patrol car. The District Court held that Officer Stovall’s
observations warranted suspicion that § 61-9-204(3), MCA, was being violated.
¶9 The District Court’s findings of fact were not clearly erroneous and it correctly
concluded that Officer Stovall had particularized suspicion to pull over the vehicle in
which Bennick was a passenger.
¶10 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.
¶11 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
/S/ BETH BAKER
/S/ LAURIE McKINNON
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