State v. Zietlow

06/20/2017
DA 16-0347
Case Number: DA 16-0347
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 148
STATE OF MONTANA,
Plaintiff and Appellee,
v.
GREGORY ZIETLOW,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 16-121
Honorable Karen Townsend, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Brett D. Schandelson, Tipp & Buley, P.C., Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
Attorney General, Helena, Montana
Kirsten Pabst, Missoula County Attorney, Britany Santomo, Deputy County
Attorney, Missoula, Montana
Submitted on Briefs: April 5, 2017
Decided: June 20, 2017
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Gregory Zietlow (Zietlow) appeals from an order entered in the Montana Fourth
Judicial District Court, Missoula County, finding there was particularized suspicion to
initiate an investigatory stop of Zietlow’s vehicle for driving under the influence (DUI).
We affirm.
¶2 Zietlow presents the following issue for review:
Whether a corroborated tip from an identified citizen informant based, in part, on
personal observations of a co-worker is reliable.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On June 13, 2015, at approximately 7:30 p.m., Karmen Stagl (Stagl), an employee
at the Town Pump in Bonner, called 911 to report a suspected drunk driver. Over the next
six minutes, Stagl made three separate phone calls to 911 updating dispatch concerning
Zietlow’s behavior. During the first 911 call, Stagl told dispatch that she was reporting on
behalf of her coworker, later identified as Jamie Weavers (Weavers). Stagle can be heard
in the 911 tape asking Weavers more questions, which were specifically prompted by the
dispatcher. Stagl reported to dispatch her coworker’s answers: that Weavers observed
Zietlow stumbling; that Zietlow smelled like alcohol; and that Weavers could tell Zietlow
was intoxicated. Stagl, herself, observed Zietlow walk into the building and enter the
restroom. Stagl continued to provide dispatch with a real time update of Zietlow’s
activities, relating that Zietlow was “bugging other customers,” walking around other
vehicles while customers were “just kind of watching him,” and appeared to be about to
leave. Stagl described Zietlow’s vehicle as a black Chevy Silverado LTZ with temporary
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dealer plates and provided the tag number in its entirety. She provided a physical
description of Zietlow, which included his hair color, height, the presence of facial hair,
and what he was wearing. During her last call to 911, Stagl describes Zietlow pulling out
of the parking lot and heading east on Highway 200.
¶4 Highway Patrol Trooper Andrew Novak (Trooper Novak) used the tag information
provided by Stagl and learned the vehicle was registered to Zietlow and that Zietlow lived
about 6 miles from the Bonner Town Pump. When Trooper Novak arrived at the address
he did not observe any black Chevy Silverado pickup truck. At that point, Trooper Novak
turned around and headed back towards the Town Pump. Almost immediately, however,
he observed a pickup truck matching the description given by Stagl pull into Zietlow’s
driveway. Trooper Novak initiated a traffic stop, during which he confirmed the tag
number, the vehicle’s description, and the physical description of Zietlow. Ultimately, the
stop ripened into probable cause to arrest Zietlow for driving under the influence.
¶5 On June 15, 2015, Zietlow was charged in Missoula County Justice Court with
Aggravated Driving Under the Influence, in violation of § 61-8-465, MCA, due to having
a blood alcohol content above .16. Zietlow argued in a motion to suppress that the
investigating officer did not have particularized suspicion to initiate the stop of his vehicle.
The Justice Court denied Zietlow’s motion and Zietlow subsequently entered a guilty plea
to aggravated DUI, reserving his right to appeal the Justice Court’s ruling on his motion to
suppress. Zietlow filed a notice of appeal. Following briefing by the parties and an
evidentiary hearing in which Trooper Novak testified, the District Court denied Zietlow’s
motion to suppress in a written order issued May 31, 2016. Zietlow appeals.
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STANDARD OF REVIEW
¶6 This Court reviews a district court’s denial of a motion to suppress to determine
whether the court’s findings are clearly erroneous and whether those findings were applied
correctly as a matter of law. City of Missoula v. Moore, 2011 MT 61, ¶ 10, 360 Mont. 22,
251 P.3d 679. A district court’s finding that particularized suspicion exists is a question of
fact, which this Court reviews for clear error. Moore, ¶ 10. A finding is clearly erroneous
if it is not supported by substantial evidence, if the district court has misapprehended the
effect of the evidence, or if this Court’s review of the record leaves us with the firm
conviction that a mistake has been made. Moore, ¶ 10.
DISCUSSION
¶7 Whether a corroborated tip from an identified citizen informant based, in part, on
personal observations of a co-worker is reliable.
¶8 The United States Constitution and the Montana Constitution protect individuals
from unreasonable searches and seizures. U.S. Const. amend. IV; Mont. Const. art. II,
§ 11. Law enforcement officers may stop any person or vehicle that is observed in
circumstances that create a particularized suspicion that the person or occupant of the
vehicle has committed, is committing, or is about to commit an offense. Section
46-5-401(1), MCA; State v. Peters, 2011 MT 274, ¶ 57, 362 Mont. 389, 264 P.3d 1124;
Hulse v. DOJ, Motor Vehicle Div., 1998 MT 108, ¶ 12, 289 Mont. 1, 961 P.2d 75.
¶9 Particularized suspicion exists when an officer has objective data and articulable
facts from which the officer can make certain inferences, and a resulting suspicion that the
subject is, or has been, engaged in wrongdoing. Moore, ¶ 16. Whether particularized
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suspicion exists is a question of fact, which is evaluated under the totality of the
circumstances. State v. Gill, 2012 MT 36, ¶ 15, 364 Mont. 182, 272 P.3d 60. When
evaluating the totality of the circumstances, a court considers the quantity or content of the
information available and the quality or degree of reliability of that information. Gill, ¶ 15.
¶10 We have stated that “[a] citizen informant who is motivated by good citizenship and
[is] willing to disclose the circumstances by which the incriminating information became
known is presumed to be telling the truth.” Moore, ¶ 18 (quoting State v. Martinez, 2003
MT 65, ¶ 34, 314 Mont. 434, 67 P.3d 207 (internal quotations omitted)). Thus, information
provided by a citizen informant, “such as the citizen informant’s name, address, and
telephone number, lends a ‘high indicia of reliability’ to his or her report.” Moore, ¶ 18
(quoting State v. Myhre, 2005 MT 278, ¶ 18, 329 Mont. 210, 124 P.3d 126). An arresting
officer may rely on information conveyed by a reliable third person to form the
particularized suspicion necessary to justify an investigative stop if the report contains
some indicia of reliability. State v. Pratt, 286 Mont. 156, 162, 951 P.2d 37, 41 (1997). To
determine the reliability of a third person report and thus the sufficiency of an officer’s
particularized suspicion based on that report, this Court has adopted three factors to use in
its evaluation. State v. Clawson, 2009 MT 228, ¶ 11, 351 Mont. 354, 212 P.3d 1056 (citing
Pratt, 286 Mont. at 164-65, 951 P.2d at 42-43). The factors are: (1) whether the informant
identified themselves 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.
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¶11 Zietlow does not contest that the first Pratt factor—the identity of the citizen
informant—has been satisfied. Zietlow argues, however, that the second and third factors
have not been met. Specifically, Zietlow maintains that Stagl’s report was not based on
her own personal observations of Zietlow’s intoxicated behavior and that Trooper Novak
did not corroborate any of the information provided by Stagl.
¶12 This Court has previously considered the reliability of a citizen informant’s report
when that report is based, in part, on observations made by someone other than the citizen
informant. In Clawson, we addressed the second Pratt factor and determined not only that
the citizen informant “saw and heard the unprovoked and belligerent confrontation that
Clawson initiated with her husband a short distance [away],” but that “she heard her
husband’s contemporaneous conclusion that Clawson was intoxicated, based upon his
face-to-face interaction with Clawson.” Clawson, ¶ 13. We noted that the citizen
informant “observed and relayed details about Clawson’s appearance, his vehicle type,
make, color, and license.” Clawson, ¶ 13. Further, “she observed and relayed Clawson’s
direction of travel when he left,” which was corroborated by law enforcement when they
located Clawson in the area indicated by the citizen informant. Clawson, ¶ 13. Here, as in
Clawson, Stagl heard first-hand her coworker’s conclusion that Zietlow was intoxicated,
stumbling around, and smelled like alcohol. Stagl’s own personal observations were that
Zietlow was “bugging other customers” who were “just kind of watching him.” She
provided a detailed description of his vehicle and plates; gave a detailed physical
description of Zietlow; and identified his direction of travel.
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¶13 We have rejected a rigid and mechanical approach to assessing the information
offered as justification for an investigatory stop and instead have held that whether or not
particularized suspicion exists is “factually driven and depends on the totality of the
circumstances.” Pratt, 286 Mont. at 168, 951 P.2d at 44. Although some of the information
Stagl imparted to dispatch was relayed to her by a coworker, Stagl also provided her own
personal observations which supported a finding that Stagl’s information was reliable.
Stagl called 911 because, in addition to the contemporaneous observations relayed to her
by a coworker, Stagl observed unusual behavior which supported a conclusion that Zietlow
might be intoxicated and was preparing to operate a motor vehicle. We reject the
proposition that law enforcement must be constrained in their investigation of a suspected
DUI on the basis that only Weavers’ report to dispatch is sufficient to trigger an
investigatory stop. Zietlow’s intoxicated behavior, which was sufficiently alarming to both
Stagl and Weavers to compel them to report to law enforcement, does not necessitate
separate calls by each to law enforcement. The circumstances clearly establish the conduct
was occurring as Stagl was talking to dispatch and that Stagl was relating what Weavers
was contemporaneously reporting and observing. We conclude that the report contained
sufficient personal observations from Stagl and Weaver, as reported by Stagl, to satisfy the
second Pratt factor.
¶14 When addressing the third Pratt factor, corroboration of the informant’s tip by law
enforcement, we have held it sufficient that “[a]n officer corroborates an informant’s report
by observing illegal activity or by finding ‘the person, vehicle, and the vehicle’s location
substantially as described by the informant.’” Moore, ¶ 25 (quoting Pratt, 286 Mont. at
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165, 951 P.2d at 43 (emphasis in original)). We also stated in Pratt that if the first and
second factors are met, an officer may corroborate a citizen informant’s tip “even though
the officer did not observe any illegal or impaired driving on Pratt’s part before the
investigatory stop.” Pratt, 286 Mont. at 168, 951 P.2d at 44. Here, both the first and
second Pratt factors have been met; thus, it was only necessary that Trooper Novak
corroborate Stagl’s report by observing some of the details Stagl relayed, regardless of
whether the corroboration was of innocent behavior.
¶15 Trooper Novak relied on Stagl’s description of both the vehicle and the temporary
tag number to find the address associated with the vehicle, which was not far from the
Town Pump. Knowing that he could not make it to the Town Pump until well after Zietlow
had left, Trooper Novak proceeded straight to the address. He arrived there in 12 minutes
and, upon observing the vehicle was not at the address, turned around and headed back
towards the Town Pump. Almost instantly, Trooper Novak observed a vehicle matching
Stagl’s description pull into the residence associated with the license plate. Trooper Novak
corroborated the clothes Zietlow was wearing, Zietlow’s physical description, and
observed Zietlow in control of the vehicle matching the description and plate number
relayed by Stagl.
¶16 Zietlow appears to argue that Trooper Novak was unable to corroborate Zietlow’s
route of travel as being the same as that relayed by Stagl, particularly since he was found
more than 6 miles from the Bonner Town Pump. In State v. Peters, 2011 MT 274, 362
Mont. 389, 264 P.3d 1124, however, we found the third Pratt factor satisfied where police
found an alleged drunk driver’s truck parked in his own driveway after a concerned citizen
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reported him and provided his license plate number. Peters, ¶¶ 46, 60. The law
enforcement officer in Peters went to the business where the citizen informant reported she
had last seen Peters. Not finding Peters at that location, the officer then proceeded to the
address associated with the license plate number given by the citizen informant. At the
address, the officer found a vehicle with the license plate number matching the description
given by the citizen informant and located Peters inside his home. We held the
corroboration of these innocent details sufficient to satisfy the third Pratt factor.
CONCLUSION
¶17 Based on the totality of the circumstance, we conclude that Stagl’s report satisfied
the Pratt factors and that it was sufficiently reliable to provide Trooper Novak with
particularized suspicion to stop Zietlow’s vehicle. We affirm the District court’s denial of
Zietlow’s motion to suppress.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH
/S/ DIRK M. SANDEFUR
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
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