City of Missoula v. Sharp

October 6 2015
DA 14-0566
Case Number: DA 14-0566
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 289
CITY OF MISSOULA,
Plaintiff and Appellee,
v.
JUSTIN SHARP,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-14-302
Honorable Ed McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender, Haley Connell, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General, Helena, Montana
Jim Nugent, Missoula City Attorney, Angie Robertson Bakken, Deputy
City Attorney, Missoula, Montana
Submitted on Briefs: September 2, 2015
Decided: October 6, 2015
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Justin Sharp appeals from the order of the Montana Fourth Judicial District Court,
Missoula County, affirming the Missoula Municipal Court judgment denying his motion
to suppress evidence for lack of particularized suspicion. We affirm.
¶2 We address the following issue:
Did Officer Lloyd have sufficient objective data to form a particularized suspicion
of wrongdoing in order to justify the investigatory stop of Sharp?
PROCEDURAL AND FACTUAL BACKGROUND
¶3 On November 27, 2013, Officer Lloyd (“Lloyd”) of the Missoula Police
Department was on patrol in downtown Missoula. Around 10:00 p.m., Lloyd was parked
on the southbound lane of Higgins Street with a view of the Front and Higgins Street
intersection. While parked, Lloyd noticed pedestrians walking in and around the
intersection. He then observed several vehicles stop at the northbound light on Front
Street. One of those vehicles at the light was an older model pickup truck operated by
Justin Sharp (“Sharp”). The speed limit for that section of Higgins Street is 25 miles per
hour. When the light at the intersection turned green, Lloyd heard Sharp rev the engine
of his pickup truck. Lloyd then saw Sharp launch the truck into a rapid acceleration
across the block, leaving behind the other cars at the intersection. As Sharp passed the
patrol car, which was parked near the middle of the block, the other cars had just crossed
Front Street. After Sharp passed the parked patrol car, Lloyd had time to start the police
car, switch his lights on, and turn into the same traffic with which Sharp had stopped at
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the light. Lloyd considered the rapid acceleration and excessive speed of the truck to be
“aggressive” driving, especially in an area frequented by pedestrians walking to and from
restaurants and bars in the dark. Lloyd followed Sharp with his light bar activated and
Sharp stopped after a few blocks. After the stop Lloyd noticed Sharp slurring his speech
and the stop ripened into a DUI investigation.
¶4 As a result of the stop, Sharp was charged with Driving Under the Influence of
Alcohol or Drugs, in violation of § 61-8-212, MCA, Driving Without Liability Insurance,
in violation of § 61-6-301, MCA, Habitual Traffic Offender Operating Motor Vehicle, in
violation of § 61-11-213, MCA, and Refusal To Submit To Breath or Blood Alcohol
And/Or Drug Test, in violation of Missoula ordinance 10.56.020. Sharp filed a motion to
suppress the evidence that resulted from the stop for lack of particularized suspicion. The
Missoula Municipal Court denied the motion. Sharp entered into a plea agreement and
reserved his right to appeal the denial. On August 6, 2014, after a review of the record,
the District Court affirmed the Municipal Court order, and a timely appeal to this Court
followed.
STANDARD OF REVIEW
¶5 We review a district court’s factual findings of particularized suspicion for clear
error and its application of those facts to the law for correctness. State v. Larson, 2010
MT 236, ¶ 15, 358 Mont. 156, 243 P.3d 1130.
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DISCUSSION
¶6 Did Officer Lloyd have sufficient objective data to form a particularized suspicion
of wrongdoing in order to justify the investigatory stop of Sharp?
¶7 Sharp contends on appeal that the District Court erred in concluding Lloyd
possessed sufficient objective data to constitute particularized suspicion to justify the
stop. Under Montana law, a peace officer is justified 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. In order to satisfy the requirement of particularized suspicion, the State must
show that the 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.” Larson, ¶ 19 (citing
Brown v. State, 2009 MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842).
¶8 The law in Montana has never required that a peace officer be certain that an
offense has been committed in order to justify an investigatory stop. This Court adopted
the particularized suspicion standard in 1981 in State v. Gopher in the aftermath of the
United States Supreme Court case United States v. Cortez, 449 U.S. 411, 101 S. Ct. 690
(1981). State v. Gopher, 193 Mont. 189, 192, 631 P.2d 293, 295 (1981). The Court cited
the Cortez decision for the rationale behind the adoption of the requirement of
particularized suspicion.
The process does not deal with hard certainties, but with probabilities.
Long before the law of probabilities was articulated as such, practical
people formulated certain common sense conclusions about human
behavior; jurors as factfinders are permitted to do the same—and so are law
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enforcement officers. Finally, the evidence thus collected must be seen and
weighed not in terms of library analysis by scholars, but as understood by
those versed in the field of law enforcement.
Gopher, 193 Mont. at 192, 631 P.2d at 295 (quoting Cortez, 449 U.S. at 418, 101 S. Ct. at
695). The quoted language from Cortez also established that particularized suspicion
does not require certainty, but rather an analysis of the facts and circumstances as they
appear to the trained police officer who observes them. A year after Gopher, the Court
revisited the issue of particularized suspicion in State v. Morsette, 201 Mont. 233, 654
P.2d 503 (1982). The Court reaffirmed in Morsette that certainty is not “essential” and
that the police officer need only have an objective and particularized “basis for
suspecting the . . . person of criminal activity.” Morsette, 201 Mont. at 240, 654 P.2d at
506 (quoting Cortez, 449 U.S. at 418, 101 S. Ct. at 695). The particularized suspicion
standard was eventually codified by the Legislature in 1991. Section 46-5-401, MCA.
Since then, there has been a string of cases upholding the law of particularized suspicion
as first articulated in Gopher, affirmed in Morsette, and codified by the Legislature in
1991. See State v. Martinez, 2003 MT 65, ¶ 22, 314 Mont. 434, 67 P.3d 207; State v.
Brander, 2004 MT 150, ¶ 6, 321 Mont. 484, 92 P.3d 1173;1 Weer v. State, 2010 MT 232,
¶ 10, 358 Mont. 130, 244 P.3d 311.
¶9 Here, although he did not have radar confirmation, Lloyd testified that in his
opinion Sharp was speeding. Particularized suspicion does not require certainty; it
1
The Court in Brander pointed out that “the question is not whether any one of [the
petitioner’s] driving aberrations was itself ‘illegal’ but rather, whether [the officer] could point to
specific and articulable facts which, taken together with rational inferences from those facts,
reasonably warrant the intrusion.” Brander, ¶ 6.
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depends on the totality of the circumstances in which the officer is making the
determination. Larson, ¶ 19. As demonstrated above, this Court has in the past held that
a peace officer need not witness a specific offense in order to have particularized
suspicion. State v. Cameron, 2011 MT 276, ¶ 15, 362 Mont. 411, 264 P.3d 1136. Of
course, an officer observing a vehicle speeding has particularized suspicion to perform an
investigatory stop related to the speeding. See §§ 46-5-401 and 61-8-303, MCA; State v.
Hurlbert, 2009 MT 221, ¶ 21, 351 Mont. 321, 211 P.3d 874. Then, “if additional
objective data of wrongdoing exists, the additional information may give rise to further
suspicions and enlarge the scope of the investigation.” Hurlbert, ¶ 21 (internal citations
omitted).
¶10 Lloyd’s observations of Sharp’s driving behavior were sufficient to constitute
particularized suspicion. Lloyd’s suspicion was based on a combination of observable
facts and an awareness of the circumstances in which Sharp was operating the truck.
When Lloyd saw Sharp drive up to the Front and Higgins Street intersection at 10:00
p.m., it was dark. That intersection is located in downtown Missoula and is frequented
by restaurant patrons, pedestrians, and bicyclists. The posted speed limit for that part of
Higgins is 25 miles per hour. Lloyd, an experienced officer, had a direct view of the
northbound lane of Higgins and he could see several other cars stopping at the light with
Sharp. At the moment the light turned green, Sharp rapidly accelerated the truck, revving
the engine through the intersection. By the time Sharp passed the patrol car, Lloyd had
time to start the police car, switch on his light bar, and swing into the same traffic that
had stopped with Sharp. These events constitute objective data on which Lloyd visually
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estimated, based on years of monitoring vehicles on Montana’s roadways, that Sharp
likely exceeded the posted speed limit. As a result of those events, Lloyd was left with
an impression that Sharp’s handling of the car was unsafe under those circumstances.
Lloyd considered these facts and the totality of the circumstances before deciding to stop
Sharp.
¶11 In Larson we found that particularized suspicion was present under similar facts.
The defendant in Larson drove across an intersection at night in Missoula in clear view of
two patrol cars with activated light bars. The defendant revved the engine continuously
through the intersection and caught the notice of the police officers. Larson, ¶¶ 7-8.
Additionally, the police officer who ultimately conducted the stop of the defendant also
noticed a potentially citable violation on the truck, but did not confirm the violation. Nor
did the district court in that case find that the violation had actually occurred. Larson,
¶ 22. However, as we mentioned in Larson, “[t]he potential violation was merely one
observation [the police officer] relied upon in determining that a particularized suspicion
existed to conduct a traffic stop.” Larson, ¶ 22. Similarly, in this case, Lloyd did not
confirm that Sharp was actually going above the posted 25 miles per hour speed limit, but
Sharp’s acceleration and speed in the intersection were observable facts in a series of
events that would warrant further investigation.
¶12 Based on the above we are unable to conclude that the District Court’s factual
findings regarding the existence of particularized suspicion were clearly erroneous. In
view of all the circumstances, including Sharp’s speed, his rapid acceleration, the fact
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that there were pedestrians near the intersection, and the nighttime visibility, we agree
that there were sufficient objective facts to create particularized suspicion for the stop.
¶13 The judgment of the District court is affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JIM RICE
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