O Leary v. State

No. 05-588
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 118N
_______________________________________
TIMOTHY O’LEARY,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
______________________________________
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill, Cause No. DV 04-219
The Honorable David Rice, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jeremy S. Yellin, Attorney at Law, Havre, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Joslyn Hunt, Assistant Attorney
General, Helena, Montana
Tamara Barkus, Havre City Attorney, Havre, Montana
____________________________________
Submitted on Briefs: May 3, 2006
Decided: May 31, 2006
Filed:
______________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court 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 Appellant Timothy O’Leary (O’Leary) appeals from an Order of the Twelfth
Judicial District Court, Hill County, denying his petition to reinstate his driver’s license
based upon a lack of particularized suspicion to stop his vehicle by the Havre City Police.
O’Leary contends that the District Court erred in concluding that Officer Ben Havron of
the Havre Police Department, who stopped O’Leary’s vehicle, possessed the requisite
objective data to authorize such a stop pursuant to § 46-5-401(1), MCA. We have held
that for an investigatory stop to be reasonable, “an officer must have: 1) objective data
from which the officer can make certain inferences; and 2) a resulting suspicion that the
person stopped is or has been engaged in wrongdoing.” State v. Fellers, 2004 MT 321, ¶
21, 324 Mont. 62, ¶ 21, 101 P.3d 764, ¶ 21.
¶3 We evaluate the question of whether a particularized suspicion supports an
investigatory stop in light of the totality of the circumstances. Fellers, ¶ 21. We further
have concluded that the “[o]bservation of a traffic offense is sufficient to establish a
particularized suspicion.” State v. Loney, 2004 MT 204, ¶ 16, 322 Mont. 305, ¶ 16, 95
P.3d 691, ¶ 16. We also have determined, however, that a particularized suspicion does
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not require an officer to be certain that an offense has been committed. State v. Britt,
2005 MT 101, ¶ 12, 327 Mont. 1, ¶ 12, 111 P.3d 217, ¶ 12.
¶4 We decide this case pursuant to Section I, paragraph 3(d) of our 1996 Internal
Operating Rules, as amended in 2003, that provides for memorandum opinions. Officer
Havron testified that he stopped O’Leary’s vehicle because O’Leary had failed to
illuminate his headlights. Officer Havron testified that the parking lights on O’Leary’s
vehicle were illuminated, but his headlights were not. Officer Havron relied on his
observation of O’Leary’s vehicle and his experience and familiarity with the type of
vehicle that O’Leary drove, in determining that O’Leary only had his parking lights
illuminated. Officer Havron further noted that the lights of the vehicle behind O’Leary’s
looked different than O’Leary’s.
¶5 O’Leary contends that he had both the parking lights and the headlights turned on
as he manually had to turn on both. O’Leary further testified that he could not have the
headlights on without also having the parking lights on due to the fact that the first notch
that he manually turns is for the parking lights and the next notch he manually turns is for
the headlights. Regardless of the truth of that claim, however, O’Leary fails to recognize
that the basis for Officer Havron’s stop of his vehicle was simple. O’Leary’s headlights,
in comparison to the vehicle behind, did not appear to be illuminated thereby providing
Officer Havron with particularized suspicion to stop O’Leary for failing to illuminate his
headlights. It is to this fact that Officer Havron testified at the hearing on O’Leary’s
petition to reinstate his driver’s license and this fact provides a particularized suspicion
necessary to satisfy the requirements of § 46-5-401(1), MCA.
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¶6 Affirmed.
/S/ BRIAN MORRIS
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM RICE
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