State v. Marcial

August 27 2013
DA 12-0436
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 242STATE OF MONTANA,
Plaintiff and Appellee,
v.
MARCO ANTONIO MARCIAL,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DC 10-361A
Honorable Holly Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender; Koan Mercer, Assistant
Appellate Defender; Jesse Kodadek, Law Student; Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; Tammy A. Hinderman,
Assistant Attorney General; Helena, Montana
Greg Sullivan, Bozeman City Attorney; Susan Wordal, Assistant City
Attorney; Bozeman, Montana
Submitted on Briefs: June 26, 2013
Decided: August 27, 2013
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Marco Marcial (Marcial) pled guilty to driving under the influence (DUI)
following the Bozeman Municipal Court’s denial of his motion to suppress. Marcial
appealed to the Eighteenth Judicial District Court, Gallatin County, which affirmed the
Municipal Court’s denial of Marcial’s motion. We affirm the District Court’s decision to
deny Marcial’s motion to suppress, but rely on alternate grounds.
¶2 We restate and consider the following issue:
¶3 Whether the District Court erred by affirming the Municipal Court’s denial of
Marcial’s motion to suppress based on the Community Caretaker Doctrine?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 On May 8, 2010, at around 1:15 a.m., Bozeman Police Department Sergeant
Travis Munter (Sgt. Munter) was traveling south on North Rouse Avenue in Bozeman.
Sgt. Munter observed Marcial, who was driving northbound, execute a hard left turn in an
area where Sgt. Munter knew there were no cross streets. Marcial drove up on the
sidewalk and onto the grass before coming to an abrupt stop, nearly perpendicular to the
street. Sgt. Munter then observed Marcial’s vehicle back away from the curb area, where
he saw a fire hydrant immediately next to the sidewalk. Concerned that Marcial had
collided with the fire hydrant, Sgt. Munter turned his vehicle around and stopped behind
Marcial’s car just as Marcial was parking parallel to the street. Sgt. Munter activated his
rear warning lights, but not his top lights.
¶5 Sgt. Munter exited his car and approached Marcial’s vehicle, knocking on the side
of the car. Sgt. Munter testified that he did not observe any damage to Marcial’s vehicle
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at that time and could see that the fire hydrant did not appear to be damaged. Marcial
opened the door, and Sgt. Munter asked, “everything okay?” Marcial responded
affirmatively. While speaking to Marcial, Sgt. Munter noticed the smell of an alcoholic
beverage and other indicators that Marcial was driving under the influence of alcohol.
Sgt. Munter then asked Marcial for his license and vehicle registration and proceeded
with a DUI investigation. Sgt. Munter administered several standard field sobriety tests,
ultimately arresting Marcial and citing him for driving under the influence in violation of
§ 61-8-401, MCA. Marcial was not issued any other traffic citations.
¶6 Marcial filed a motion to suppress the evidence from the stop, arguing that the
community caretaker doctrine was not applicable and Sgt. Munter did not have the
requisite particularized suspicion to make a traffic stop. A suppression hearing was held
in Bozeman Municipal Court on November 1, 2010, with Judge Karl Seel presiding. At
the hearing, Sgt. Munter said he thought Marcial “might have collided with the fire
hydrant,” but that he had no intent to make a traffic stop. Sgt. Munter testified that his
primary concern was to “check his welfare” after seeing Marcial make the abrupt turn
and sudden stop, and after observing the nearby fire hydrant. On cross examination, Sgt.
Munter confirmed that he did not cite Marcial for any other traffic offense and stated “my
initial contact was merely for welfare and to ascertain if there was a crash.” Sgt. Munter
added, “a lot of times when cars hit fire hydrants there is enough damage to report a
crash.” Sgt. Munter explained that while he was walking up to Marcial’s vehicle, he said
he didn’t “see any damage on the fire hydrant” adding “those things are pretty hearty.
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So, you want to check the vehicle, and it was a low enough vehicle, like I said, once I
made sure he was okay, I could look up and see that there didn’t appear to be any damage
on the front of the car.”
¶7 Judge Seel ruled from the bench, denying Marcial’s motion to suppress. The
Municipal Court orally found that the “officer turned around believing there may have
been an accident,” “there was a fire hydrant close to that,” “the vehicle was already off
the roadway at that point,” and “the officer turned around . . . to see if there had been an
accident to bring it within the caretaking doctrine.” The Municipal Court found further
that Sgt. Munter’s “first statements to the defendant were asking if he was ‘okay’ and he
got an affirmative response that he was.” The Municipal Court concluded that Sgt.
Munter could have made “a pretty good determination” that there had not been a
collision, but he “could not know with certainty until he had . . . a good look and some
conversation with defendant as to whether he had been injured because it was an abrupt
stop.” Denying Marcial’s motion to suppress, the Municipal Court stated, “the caretaker
doctrine started the stop and it ripened into a proper DUI investigation.” On
November 24, 2010, Marcial pled guilty to the amended charge of DUI per se subject to a
plea agreement, reserving his right to appeal the denial of his motion to suppress.
¶8 Marcial appealed to the Eighteenth Judicial District Court. Judge Holly Brown
reviewed the Municipal Court’s decision and affirmed the denial of Marcial’s motion to
suppress. The District Court’s Order stated:
Sgt. Munter personally observed erratic driving behavior that caused him
concern, both of a potential accident with property damage, and of a
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possible welfare issue with the driver. Sgt. Munter was well within the
parameters under State v. Lovegren to have “objective, specific and
articulable facts from which an experienced officer would suspect that a
citizen is in need of help.” [State v. Lovegren, 2002 MT 153, ¶ 25, 310
Mont. 358, 51 P.3d 471.] Upon contact with Defendant, the objective
observations made by Sgt. Munter supported the shift to an investigation to
determine if Defendant was operating a motor vehicle while under the
influence of alcohol.
The Order continued: “[t]he contact shifted to an investigation of DUI only after
additional information became available to Sgt. Munter which shifted the focus from the
welfare of Defendant to an investigation of Defendant.”
¶9 Marcial appeals the District Court’s denial of his motion to suppress.
STANDARD OF REVIEW
¶10 We review a district court’s rulings on a motion to suppress to determine whether
the court’s findings of fact are clearly erroneous and whether the court’s interpretation
and application of the law are correct. State v. Spaulding, 2011 MT 204, ¶ 13, 361 Mont.
445, 259 P.3d 793; State v. Seaman, 2005 MT 307, ¶ 10, 329 Mont. 429, 124 P.3d 1137.
“We review cases that originate in justice court and are appealed to district court ‘as if the
appeal originally had been filed in this Court.’” State v. Gai, 2012 MT 235, ¶ 11, 366
Mont. 408, 288 P.3d 164 (citing State v. Ellison, 2012 MT 50, ¶ 8, 364 Mont. 276, 272
P.3d 646). “We examine the record independently of the district court’s decision” to
review the trial court’s findings, conclusions, and ruling. Ellison, ¶ 8. “We will affirm
the district court when it reaches the right result, even if it reaches the right result for the
wrong reason.” Ellison, ¶ 8.
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DISCUSSION
¶11 Whether the District Court erred by affirming the Municipal Court’s denial of
Marcial’s motion to suppress based on the Community Caretaker Doctrine?
¶12 We adopted the community caretaker doctrine in State v. Lovegren, 2002 MT 153,
310 Mont. 358, 51 P.3d 471. We quoted Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.
Ct. 2523, 2528 (1973), in which the United States Supreme Court stated:
Local police officers, unlike federal officers, frequently investigate vehicle
accidents in which there is no claim of criminal liability and engage in
what, for want of a better term, may be described as community caretaking
functions, totally divorced from the detection, investigation, or acquisition
of evidence relating to the violation of a criminal statute.
Lovegren, ¶ 17. After conducting an extensive review of the authority governing the
community caretaker function and the approaches used in other jurisdictions, we adopted
the following test:
First, as long as there are objective, specific and articulable facts from
which an experienced officer would suspect that a citizen is in need of help
or is in peril, then that officer has the right to stop and investigate. Second,
if the citizen is in need of aid, then the officer may take appropriate action
to render assistance or mitigate the peril. Third, once, however, the officer
is assured that the citizen is not in peril or is no longer in need of assistance
or that the peril has been mitigated, then any actions beyond that constitute
a seizure implicating not only the protections provided by the Fourth
Amendment, but more importantly, those greater guarantees afforded under
Article II, Sections 10 and 11 of the Montana Constitution as interpreted in
this Court’s decisions.
Lovegren, ¶ 25.
¶13 The community caretaker doctrine encapsulates certain police-citizen encounters
that are “unrelated to the detection and investigation of crime.” Seaman, ¶ 15; see also
Lovegren, ¶ 16; State v. Graham, 2007 MT 358, ¶ 25, 340 Mont. 366, 175 P.3d 885;
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Spaulding, ¶ 18. Community caretaker functions exercised by police officers may
include “assisting motorists who are stranded, involved in accidents, or otherwise in need
of assistance.” Seaman, ¶ 15 (citing Lovegren, ¶ 17). We have explained that “the
community caretaker doctrine cannot be used as a pretext for an illegal search and
seizure,” Spaulding, ¶ 24 (citing Lovegren, ¶ 23), and the stop must actually involve a
“welfare” check. Compare i.e. Seaman, ¶ 23 (officer conducted a “welfare” check to
determine whether Seaman’s car was disabled or if Seaman was experiencing medical or
physical problems), with Graham, ¶ 30 (officer “did not stop and question Graham in
order to assist them, but instead to ‘move them along.’”). Providing assistance to a
motorist in peril or helping a person in need of aid is commonly viewed as an affirmative
duty of a police officer. Seaman, ¶ 15; Lovegren, ¶ 26.
¶14 The doctrine recognizes that not all contact between law enforcement officers and
citizens involves a “seizure” implicating the Fourth Amendment. Seaman, ¶ 13 (citing
Lovegren, ¶ 13); Graham, ¶ 26. Although we stated in Spaulding that “[i]n the usual
case, a welfare check by its very nature necessarily involves a brief seizure—but a
seizure nonetheless—in order for the officer to ascertain whether the citizen needs
assistance or is in peril,” we nonetheless recognized that “[t]here may be fact-specific
situations in which a welfare check does not involve a seizure.” Spaulding, ¶¶ 18, 19.
“Each community caretaker case turns on its discrete facts.” Spaulding, ¶ 29.
¶15 It is our observation that the caretaker doctrine is increasingly being offered by the
State as an alternate justification for police contact in addition to particularized suspicion
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of criminal activity. We underscore the doctrine’s intended application to situations
where a citizen “is in need of help or is in peril,” thus authorizing an officer “to render
assistance or mitigate the peril,” Lovegren, ¶ 25, in cases “unrelated to the detection and
investigation of crime.” Seaman, ¶ 15. A caretaker inquiry should not typically require a
seizure. This caretaker premise is important, given Montana’s express right to privacy
and protection against unreasonable searches and seizures. Mont. Const. art. II, §§ 10,
11. As one commentator cautions, “[t]he restraint of a person’s liberty under the public
servant exception cannot exceed the purpose of that exception—to determine if aid is
necessary. The officer cannot constitutionally take any action that extends beyond the
public servant role without another justification.” Mary Elisabeth Naumann, The
Community Caretaker Doctrine: Yet Another Fourth Amendment Exception, 26 Am. J.
Crim. L. 325, 341 (Spring 1999).
¶16 Marcial and the State both advance arguments urging us to modify the test we
adopted in Lovegren. Marcial argues that a community caretaker check, like an
investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), is a seizure that
is constitutionally permissible only if the officer can identify objective, specific, and
articulable facts justifying a warrantless intrusion throughout the entire course of the
procedure. In contrast, the State argues that “[w]elfare checks are not by their very
nature seizures” and “if a defendant can show he was seized—for whatever reason—the
State may nonetheless demonstrate the seizure was reasonable under the Fourth
Amendment pursuant to the community caretaker doctrine if it can show objective,
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specific and articulable facts existed from which an experienced officer would have
suspected a citizen was in need of help or was in peril.”1 We reject these entreaties to
modify the Lovegren test. Rather, its application must be limited to proper cases.
¶17 Police officers are “vested by law with a duty to maintain public order and make
arrests for offenses while acting within the scope of the person’s authority.” Section 46-
1-202(17), MCA. Law enforcement officers have an affirmative statutory duty to
investigate motor vehicle accidents pursuant to § 61-7-109(3), MCA, which reads:
A law enforcement officer who in the regular course of duty investigates a
motor vehicle accident in which a person is killed or injured or in which
damage to the property of a person exceeds $1,000, either at the time of and
at the scene of the accident or after the accident by interviewing
participants or witnesses, shall within 10 days after completing the
investigation forward a written report of the accident to the department.
Section 61-7-109(3), MCA (emphasis added). There is no requirement that police
officers wait until an accident is reported to determine whether an incident they have
observed first-hand requires an accident investigation. Further, officers have authority to
investigate and cite motorists for traffic code violations.
¶18 “To have particularized suspicion for an investigative stop, the peace officer must
be possessed of (1) objective data and articulable facts from which he or she can make
certain reasonable inferences and (2) a resulting suspicion that the person to be stopped
has committed, is committing, or is about to commit an offense.” State v. Wagner, 2013
MT 159, ¶ 10, 370 Mont. 381, 303 P.3d 285. We conclude that Sgt. Munter’s testimony
1
We refined the “experienced officer” consideration of the particularized suspicion inquiry in
Brown v. State, 2009 MT 64, ¶¶ 19, 20, 349 Mont. 408, 203 P.3d 842.
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demonstrates that he had a particularized suspicion upon objective, articulable facts that
Marcial had been involved in a property damage accident that would require an accident
investigation and possible citation of Marcial under the traffic code. See Wagner, ¶ 16
(vehicle straddling two lanes for 500-600 feet was particularized suspicion for violation
of § 61-8-328(1), MCA, which requires motorists to operate a vehicle “as nearly as
practicable entirely within a single lane.”); Brown v. State, 2009 MT 64, ¶ 23, 349 Mont.
408, 203 P.3d 842 (a “barely moving” vehicle along a public roadway at 2:51 a.m.
suddenly pulling over, coming to a stop, and shutting off its lights constituted
particularized suspicion of DUI); State v. Luckett, 2007 MT 47, ¶ 11, 336 Mont. 140, 152
P.3d 1279 (slow driving and weaving was particularized suspicion of careless driving or
DUI); State v. Brander, 2004 MT 150, ¶ 9, 321 Mont. 484, 92 P.3d 1173 (vehicle going
35 mph in a 70 mph zone, weaving, and crossing fog line was particularized suspicion of
careless driving and DUI). Sgt. Munter witnessed Marcial’s vehicle make an unexpected
hard left turn into an area with no cross streets, drive up on the sidewalk and onto the
grass, and come to an abrupt stop nearly perpendicular to the street at 1:15 a.m. Sgt.
Munter then observed a fire hydrant that was in a position indicating it could have been
hit by Marcial’s vehicle, thus explaining the abrupt stop. His subjective feelings
notwithstanding, Sgt. Munter’s observation of objective data and facts gave rise to a
particularized suspicion to approach Marcial’s vehicle to inquire and investigate whether
an accident requiring further police investigation and citation had occurred.
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¶19 After making contact with Marcial, Sgt. Munter observed definite signs of
intoxication, giving him particularized suspicion to expand the investigation into a
possible DUI, ultimately leading, after Marcial failed several standard field sobriety tests,
to Marcial’s arrest for DUI. This escalation of events leading to Marcial’s arrest is
appropriate under our decision in Hulse v. DOJ, Motor Vehicle Dev., 1998 MT 108, 289
Mont. 1, 961 P.2d 75. See also i.e. State v. Larson, 2010 MT 236, ¶ 25, 358 Mont. 156,
243 P.3d 1130; Brander, ¶ 8.
¶20 The District Court did not err by denying Marcial’s motion to suppress. Though
the District Court based its reasoning on the community caretaker doctrine, the motion
was appropriately denied on the ground that there was particularized suspicion for the
stop. “We will affirm the district court when it reaches the right result, even if it reaches
the right result for the wrong reason.” Ellison, ¶ 8.
¶21 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
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