State v. Eixenberger

No. 02-520
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 127STATE OF MONTANA,
Plaintiff and Respondent,
v.
MATTHEW DEAN EIXENBERGER,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DC 00-254C,
Honorable Stewart E. Stadler, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Mark R. Sullivan, Attorney at Law, Kalispell, Montana
Great Falls, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Jennifer Anders, Assistant
Attorney General; Ryan M. Archer, Legal Intern, Helena, Montana
Edward J. Corrigan, County Attorney, Kalispell, Montana
Submitted on Briefs: May 29, 2003
Decided: May 18, 2004
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Matthew Dean Eixenberger (Eixenberger) was charged with two felony counts of
burglary in violation of § 45-6-204, MCA, in the Eleventh Judicial District, Flathead County.
Eixenberger moved to suppress evidence gained from an investigative stop, but the District
Court denied the motion. Eixenberger then entered an Alford plea to Count I of the
information and reserved his right to appeal the District Court’s denial of his motion to
suppress. Eixenberger now appeals, and we affirm in part and reverse in part.
¶2 We restate the issues on appeal as follows:
¶3 1. Did the District Court err in denying the defendant’s motion to suppress?
¶4 2. Did the District Court err in imposing the restitution condition portion of
Eixenberger’s sentence?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 Beginning in July 2000, several casinos were burglarized in the City of Kalispell and
surrounding areas. All of the burglaries had similar characteristics. The glass front door of
each casino had been broken with small round river rocks, creating an opening through
which the burglar would then enter the casino. After entering the premises, the burglar
would pry open the cash boxes of the keno machines with the flat tip of a pry tool, large
screwdriver, or a tire iron, and exit with the cash. In almost every case, all of this was
accomplished in under a minute.
¶6 Detective Greg Burns (Burns) of the Kalispell Police Department (KPD or
department) was assigned to investigate the case. Burns had been an officer with the
2
department for twenty-four years, and a detective with special investigative training for three
to four years. While investigating the burglaries, Burns was contacted by Eixenberger’s
former parole officer, Paul Berg (Berg). After learning of the casino burglaries, Berg
decided to notify Burns that Eixenberger was in the area and had been previously convicted
of two casino burglaries. Burns himself was familiar with Eixenberger because Eixenberger
had been a suspect in another Kalispell burglary in 1997.
¶7 Burns investigated Eixenberger and discovered that Eixenberger had recently been
issued two traffic tickets while driving a red Ford Thunderbird, which was registered to an
Adrian Hertz (Hertz). In addition, he learned that Eixenberger and Hertz were good friends;
that they had been involved in various thefts as youths; and that they were probably living
together in Kalispell. After this initial investigation of Eixenberger, officers from the KPD
began monitoring Eixenberger, along with seven or eight other suspects, during late night and
early morning patrol surveillance.
¶8 Shortly after the KPD began monitoring Eixenberger, Patrolman Sean McRae
(McRae), while patrolling the casinos early one morning, identified the Thunderbird and
license plate from a list of potential suspect vehicles at about 2:00 a.m. and followed it until
about 2:10 a.m. McRae ceased trailing the Thunderbird about two hundred yards from the
Montana Grille. At 2:19 a.m., the Montana Grille Casino was burglarized. Due to the
similarity between the Montana Grille burglary and other prior burglaries, and the fact that
the Thunderbird was sighted in the vicinity shortly before the Montana Grille was
burglarized, Eixenberger became a prime suspect.
3
¶9 The police increased their early morning patrols of the casinos and their surveillance
of the Thunderbird and Eixenberger. The Thunderbird was spotted cruising the valley
several times, with either Eixenberger or Hertz driving, between two and six o’clock in the
morning, the time period in which the burglaries had occurred. Based on this evidence,
Burns applied for a search warrant, which was issued by Judge Ortley, enabling a tracking
device to be placed on the Thunderbird. However, at approximately 4:00 a.m. on September
14, 2000, before the device was installed, the Best Bet Casino was burglarized.
¶10 Burns was immediately awakened and notified of the Best Bet Casino burglary. He
alerted the KPD and the Flathead County Sheriff’s Department to patrol other casinos and
to watch particularly for the Thunderbird. KPD Patrol Officer Jim Wardinsky (Wardinsky)
was dispatched to the Hertz residence to ascertain whether Eixenberger or the Thunderbird
were there. Wardinsky discovered that neither Eixenberger nor the Thunderbird were
present at the Hertz residence. In addition, Flathead County Deputy Sheriff Art Nelson
(Nelson) was dispatched to Los Caporales in Evergreen, which had suffered a similar break-
in, to conduct surveillance.
¶11 Approximately an hour after the Best Bet Casino was burglarized, the Gold Bar
Casino was burglarized. Wardinsky responded to the break-in and found that it was similar
to the break-in at the Best Bet Casino, but that the interior door had not been breached and
that no money had been taken. Meanwhile, as Nelson was patrolling the Evergreen area, he
encountered the Thunderbird and stopped it. The stop occurred within minutes of the Gold
Bar burglary and within a quarter-mile from the Gold Bar. Nelson testified that he stopped
4
the Thunderbird because it was the precise car he was looking for at the request of the KPD.
Nelson called in the stop and Burns was notified. When Burns arrived at the scene of the
stop, he identified two people in the car. Eixenberger was the driver and an unknown
person, who gave his name as Eric but was later determined to be Aaron Diaz, was in the
passenger seat. Burns also observed, in the front passenger area of the car, six round river
rocks and two screwdrivers. Burns further noted that Eixenberger’s clothing matched the
clothing description which KPD Sergeant Brian Fulford (Fulford) had radioed to Burns after
Fulford had viewed the surveillance tapes from the Best Bet Casino burglary earlier that
night.
¶12 Eixenberger consented to a search of the vehicle and officers recovered a screwdriver
with paint on it, glass fragments, and a tire iron. The officers arrested Eixenberger, and he
was charged with two felony counts of burglary in violation of § 45-6-204, MCA. He was
arraigned and pled not guilty to both counts. The State filed a notice of intent to seek
persistent felony offender designation. Eixenberger filed a motion to suppress evidence from
the stop, alleging that the stop was illegal. The District Court denied his motion. The State
then filed a Just notice concerning Eixenberger’s previous crimes, to which Eixenberger
objected by filing a motion in limine to exclude the evidence. The District Court granted his
motion in limine. In March of 2002, Eixenberger entered an Alford plea to Count I of the
information, reserving his right to appeal the District Court’s denial of his motion to
suppress. The State dismissed Count II and withdrew the persistent felony offender notice.
In May, the District Court sentenced Eixenberger to twenty years at Montana State Prison
5
with eight years suspended, and ordered restitution in a sum to be determined. Eixenberger
appeals from the denial of his motion to suppress.
STANDARD OF REVIEW
¶13 We will not “overturn a District Court’s findings of fact regarding suppression hearing
evidence unless those findings are clearly erroneous.” State v. Hermes (1995), 273 Mont.
446, 449, 904 P.2d 587, 589. Findings of fact are clearly erroneous “if they are not
supported by substantial evidence, the court has misapprehended the effect of the evidence,
or our review of the record convinces us that a mistake has been committed.” State v.
Lacasella, 2002 MT 326, ¶ 10, 313 Mont. 185, ¶ 10, 60 P.3d 975, ¶ 10.
DISCUSSION
ISSUE ONE
¶14 Did the District Court err in denying the defendant’s motion to suppress?
¶15 Although Eixenberger argues that the stop was unlawful because there was
insufficient probable cause, his authorities and argument indicate he is actually asserting the
lack of particularized suspicion for the investigative stop made by the officers. Eixenberger
analogizes his situation with that in State v. Lafferty, 1998 MT 247, 291 Mont. 157, 967 P.2d
363, where an officer stopped the defendant based on an anonymous informant’s tip that the
defendant was drunk but the officer did not observe any illegal driving or any indication of
impairment to corroborate the informant’s tip before stopping the defendant. Lafferty, ¶ 4.
Eixenberger maintains that the officer who stopped him needed to observe illegal driving or
some indication of impairment before Eixenberger could be stopped. However, we disagree.
6
Lafferty addressed the necessary police corroboration of an anonymous informant’s tip.
Lafferty, ¶ 12. Here, the issue is whether the police had the requisite particularized suspicion
from their own investigation to initiate an investigative stop of the Thunderbird Eixenberger
was driving.
¶16 “[W]arrantless searches are per se unreasonable, subject to a few carefully drawn
exceptions. One of those exceptions is the investigatory stop.” State v. Tackitt, 2003 MT
81, ¶ 24, 315 Mont. 59, ¶ 24, 69 P.3d 295, ¶ 24 (citation omitted). Under § 46-5-401, MCA,
“a peace officer 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.” To determine whether an officer had the
requisite “particularized suspicion,” we utilize a two-part test. Anderson v. State Dept. of
Justice (1996), 275 Mont. 259, 263, 912 P.2d 212, 214; State v. Gopher (1981), 193 Mont.
189, 192, 631 P.2d 293, 295. There must have been “(1) objective data from which an
experienced officer can make certain inferences; and (2) a resulting suspicion that the
occupant of a certain vehicle is or has been engaged in wrongdoing.” State v. Fisher, 2002
MT 335, ¶ 12, 313 Mont. 274, ¶ 12, 60 P.3d 1004, ¶ 12 (citing Gopher, 193 Mont. at 194,
631 P.2d at 296). Whether particularized suspicion exists to justify an investigative stop is
a question of fact which depends on the totality of the circumstances. State v. Reynolds
(1995), 272 Mont. 46, 49, 899 P.2d 540, 542.
¶17 We have noted that “objective data may be based on ‘various objective observations,
information from police reports, if such are available, and consideration of the modes or
7
patterns of operation of certain kinds of lawbreakers.’” State v. Anderson (1993), 258 Mont.
510, 514, 853 P.2d 1245, 1248 (quoting United States v. Cortez (1981), 449 U.S. 411, 418,
101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629). Though Eixenberger maintains that the only
reason he was stopped was because of his previous burglary convictions, the record reveals
other factors which led to the stop.
¶18 First, police conducted a background investigation of Eixenberger which prompted
police to add him to a list of potential suspects. The background investigation revealed that
Eixenberger had been issued two traffic citations while driving a red Ford Thunderbird,
which was registered to Hertz; that Eixenberger and Hertz were good friends; that they had
been involved in various thefts as youths; and that they were possibly living together in
Kalispell.
¶19 Eixenberger become a primary suspect after the Montana Grille Casino was
burglarized and the Thunderbird was seen about two hundred yards away from the Montana
Grille some nine minutes before the burglary occurred. Subsequently, the Thunderbird was
spotted several times, with either Eixenberger or Hertz driving, between two and six o’clock
in the morning. During the early morning hours of September 14, 2000, following the
burglary at the Best Bet Casino, police checked the Hertz residence, finding that neither
Eixenberger nor the Thunderbird were there. About an hour later, the Gold Bar Casino was
burglarized, and Eixenberger was stopped in the Thunderbird within minutes of that burglary
and about a quarter-mile from the Gold Bar.
8
¶20 We conclude that sufficient objective data existed to support a police suspicion that
Eixenberger was engaged in wrongdoing, or had engaged in wrongdoing, and that the
investigative stop of Eixenberger’s vehicle was appropriate. Therefore, the District Court
did not err in denying Eixenberger’s motion to suppress.
ISSUE TWO
¶21 Did the District Court err in imposing the restitution condition of the sentence?
¶22 Eixenberger challenges the amount the District Court awarded in restitution. The
District Court held that Eixenberger “must pay restitution in a sum to be determined, with
interest accruing at the legal rate of 10% per annum, for losses and damages sustained by
Best Bet Casino . . . and Gold Bar Casino . . . .” (Underlining in original.) The State
concedes that the District Court did not follow the statutory guidelines for imposing
restitution. Section 46-18-244(1), MCA, reads that “[t]he court shall specify the total amount
of restitution that the offender shall pay.” The District Court did not specify the total amount
of restitution, instead it held that Eixenberger would pay restitution “in a sum to be
determined.” We have held that district courts must comply with § 46-18-244, MCA, and,
here, the District Court did not comply. See State v. Flanagan, 2003 MT 123, ¶ 35, 316
Mont. 1, ¶ 35, 68 P.3d 796, ¶ 35. State v. Pritchett, 2000 MT 261, 302 Mont. 1, 11 P.3d
539; State v. Brown (1994), 263 Mont. 223, 867 P.2d 1098. Further, the State also notes that
the presentence investigation report failed to document the victim’s pecuniary loss and
Eixenberger’s financial resources and ability to pay, as required by § 46-18-242, MCA
9
(1999). Therefore, we reverse and remand this matter for further sentencing proceedings
consistent herewith.
¶23 Affirmed in part, reversed in part and remanded.
/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ JOHN WARNER
/S/ PATRICIA O. COTTER
10