State v. D. Strachan

03/28/2023
DA 22-0254
Case Number: DA 22-0254
IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 54NSTATE OF MONTANA,
Plaintiff and Appellee,
v.
DAVID VINCENT STRACHAN,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. CDC-2021-127
Honorable Kathy Seeley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Palmer A. Hoovestal, Hoovestal Law Firm, PLLC, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Roy Brown, Assistant
Attorney General, Helena, Montana
Kevin Downs, Lewis and Clark County Attorney, Helena, Montana
Submitted on Briefs: March 8, 2023
Decided: March 28, 2023
Filed:
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__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, 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 David Vincent Strachan (Strachan) appeals the denial of his motion to suppress
entered in the First Judicial District Court, Lewis and Clark County.
¶3 On March 2, 2021, around 11:08 p.m., Officers Alex Nimmick and Dakota Becker
stood on a sidewalk at the corner of East Sixth Avenue and North Davis Street in Helena,
Montana, speaking with a pedestrian who stood just off the sidewalk in the street.
¶4 While speaking with the pedestrian, Officers Nimmick and Becker observed a white
Toyota pickup truck—driven by Strachan—approaching them from the east on Sixth
Avenue. The officers were in Strachan’s line of sight as the truck’s headlights were shining
on them and the pedestrian. Officer Nimmick thought that “it looked like the [truck] was
coming toward [the pedestrian].” Officer Becker believed that the truck was coming
towards the officers as well.
¶5 As the truck reached the corner of Sixth Avenue and Davis Street, a second vehicle
approached from the opposite direction on Sixth Avenue. Strachan braked, locking up the
truck’s brakes, apparently to prevent hitting the pedestrian. The truck screeched and
skidded to a stop. Officer Becker’s bodycam footage shows the truck coming to a stop
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with the front of the truck just beyond where the pedestrian stood. The second eastbound
vehicle passed the intersection.
¶6 Despite no impact occurring, Officer Becker believed Strachan began braking too
late because the truck nearly hit the pedestrian. Officer Becker testified he believed
Strachan’s untimely braking might be due to a delayed reaction time, indicating
impairment.
¶7 Strachan continued driving west on Sixth Avenue. Within a half block, the officers
observed the truck lock up its brakes again, apparently to avoid hitting a trash bin along
the side of the road. Once again, the officers heard the truck’s tires skid. The officers
watched Strachan take a sharp turn into the parking lot of an apartment complex. At this
point, the officers decided to approach Strachan. Strachan got out of the truck as the
officers approached and Officer Nimmick observed that Strachan had a “staggering
balance.” The officers confirmed Strachan’s identity using his driver’s license and began
to question him.
¶8 Before questioning Strachan, Officer Nimmick noticed the smell of alcohol on
Strachan’s breath and observed Strachan had “bloodshot, watery eyes.” Officer Becker
then asked Strachan if he was “good.” Strachan replied that he was “all right” and the
pedestrian “just stepped out in front of [him].” Strachan explained further, “I had a car
coming the other way and the lights was in my eyes and all of the sudden I seen that guy
coming out and I hit em’. . . I still got my studs on so.” Strachan refuted his brakes made
the skidding noise, and instead stated that his studs made the sounds. Next, Officer Becker
asked Strachan if he had been drinking. Strachan said, “No.”
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¶9 Officer Becker then asked Strachan where he was driving from. Strachan responded
with inconsistent stories, first stating he had visited a friend in East Helena, then declaring
he had visited his niece, her husband, and their baby. When Officer Becker asked Strachan
if the officers could look at his eyes to make sure he could drive, Strachan responded, “No!
Yeah, I do!” Strachan continued, “You know, I didn’t do anything wrong though . . . there
was a car coming the other way . . . .” Strachan told the officers he was “at home right
now,” but he actually lived on Holter Street—not near the alleyway where he stopped along
Davis Street. Officer Becker testified Strachan eventually admitted he had been drinking.
Nonetheless, Strachan allowed Officer Becker to look at Strachan’s eyes again. Officer
Becker confirmed that Strachan’s eyes were “bloodshot” and “watery.” During the
investigation, the officers specifically explained to Strachan the indicators of impairment
they noticed. Officer Becker testified that he told Strachan he braked too late and too hard,
and that this type of driving behavior may indicate someone is driving under the influence.
¶10 Following their observations of Strachan’s driving, his bloodshot and watery eyes,
and the alcoholic odor coming from his breath, the officers asked Strachan to submit to
Standardized Field Sobriety Tests (SFSTs). Strachan agreed to participate in the SFSTs
but had difficulty walking and turning. The officers testified that Strachan’s behavior
during the SFSTs showed “multiple clues of impairment.” When Officer Nimmick
attempted to read Strachan the Preliminary Alcohol Screening Test Advisory, Strachan
yelled at the officers and fled on foot. The officers pursued Strachan for about 15 minutes.
While running away, Strachan threw an item over a fence. The officers later retrieved the
item and identified it as a pill bottle containing methamphetamine. Once the officers
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reached Strachan, they detained him and also recovered a methamphetamine smoking
device on the ground under Strachan.
¶11 Over three hours later and upon obtaining a search warrant, Strachan’s blood sample
was drawn. The blood sample confirmed the presence of methamphetamine and
tetrahydrocannabinol (THC) but showed no alcohol. Officer Nimmick believed that the
three-hour delay likely “play[ed] a huge factor” in there being no alcohol in Strachan’s
blood.
¶12 On March 18, 2021, Strachan was charged by Information with five counts,
including Driving While Under the Influence (7th), a felony (Count 1); Criminal
Possession of Dangerous Drugs (methamphetamine), a felony (Count 2); Criminal
Possession of Drug Paraphernalia, a misdemeanor (Count 3); Resisting Arrest, a
misdemeanor (Count 4); Obstructing a Peace Officer, a misdemeanor (Count 5); and
Tampering with Physical Evidence, a felony (Count 6). On June 11, 2021, Strachan moved
to suppress all evidence obtained at the time of his arrest, arguing because Officers Becker
and Nimmick lacked particularized suspicion to stop.
¶13 On November 22, 2021, the District Court held an evidentiary hearing and denied
his motion in a written order entered December 7, 2021. Strachan pleaded guilty on
January 20, 2022, to Counts 1 and 6, reserving his right to appeal the District Court’s denial
of his motion. The District Court committed Strachan to the Department of Corrections
for four years on Count 1 and a consecutive four-year suspended sentence to the Montana
State Prison on Count 6. Strachan appeals the denial of his Motion to Suppress.
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¶14 We review a district court’s grant or 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. State v. Gill, 2012 MT 36, ¶ 10, 364 Mont. 182, 272 P.3d 60.
A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the
lower court misapprehended the effect of the evidence, or if this Court’s review of the
record leaves it with a definite and firm conviction that a mistake has been made. City of
Helena v. Brown, 2017 MT 248, ¶ 7, 389 Mont. 63, 403 P.3d 341 (citations omitted).
Substantial evidence is evidence that a reasonable mind might accept as adequate to support
a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat
less than a preponderance. State v. Passwater, 2015 MT 159, ¶ 9, 379 Mont. 372, 350 P.3d
382 (citing State v. Aragon, 2014 MT 89, ¶ 9, 379 Mont. 391, 321 P.3d 841).
¶15 As a threshold matter, we will not reweigh the District Court’s factual findings
regarding the officers’ testimony and its evaluation of the bodycam video footage. On
appeal, Strachan argues that we should not afford the District Court’s factual findings
deference and asks us to compare the testimony of the officers and the recorded events in
the bodycam videos in “the exact same manner as did the District Court.” This Court does
not reweigh conflicting evidence or substitute its own evaluation of the evidence for that
of the trial court. State v. Wagner, 2013 MT 159, ¶ 15, 370 Mont. 381, 303 P.3d 285. This
Court defers to the trial court in cases involving conflicting evidence because it recognizes
that the District Court had the benefit of observing the evidence and rendering a
determination of the credibility of that evidence. State v. Deines, 2009 MT 179, ¶ 20, 351
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Mont. 1, 208 P.3d 857. Additionally, we disagree with Strachan that the bodycam footage
is dispositive in that it shows clear error in the District Court’s findings.
¶16 Next, Strachan contends the officers lacked particularized suspicion to stop Strachan
for questioning and the initial stop was unlawful under the totality of the circumstances
because the investigative stop lasted longer than necessary to effectuate its purpose.1
Strachan reasons that if his driving alone did not rise to the level of particularized suspicion
to conduct SFSTs, then “it reasonably follows that his driving did not rise to the level of
erratic driving that would justify a stop in the first place.”
¶17 The State argues that the officers merely conducted a non-seizure encounter with
Strachan that implicated no Fourth Amendment protection. The State contends that the
totality of the circumstances shows that the officers here had an objective to check to see
if Strachan was “okay” and did not restrain his liberty during the initial stop or
“unreasonably invade Strachan’s personal security.” We agree.
¶18 Regardless of whether a seizure occurred when the officers approached Strachan
and engaged him in conversation, we conclude the officers had particularized suspicion to
detain Strachan after observing him nearly hit a pedestrian and garbage dumpster, make a
sharp turn into the parking lot, and lose his balance when he got out of his truck. Law
enforcement may constitutionally “stop a person or vehicle that is observed in
circumstances that created a particularized suspicion that the person or the occupant of the
1
In the trial court, Strachan only challenged the particularized suspicion for the administration of
SFSTs. Here, and in addition, he challenges the particularized suspicion arising from the officers’
observations of Strachan’s driving behavior.
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vehicle has committed, is committing, or is about to commit an offense.” Section
46-5-401(1), MCA. However, an investigative stop “may not last longer than is necessary
to effectuate the purpose of the stop.” Section 46-5-403, MCA.
¶19 Whether particularized suspicion exists must be evaluated under the totality of
circumstances, including the “quantity, or content, and quality, or degree of reliability of
the information available to the officer.” State v. Pratt, 286 Mont. 156, 161, 951 P.2d 37,
40 (1997); City of Missoula v. Moore, 2011 MT 61, ¶ 16, 360 Mont. 22, 251 P.3d 679. An
inquiry into the subjective motivations of law enforcement for initiating a stop is
inappropriate in assessing the validity of an arrest. Brown, ¶ 9. Rather, the focus is on
objective data, such as “the time of day, the location of the stop, and the [person’s] driving
behavior.” Weer v. State, 2010 MT 232, ¶ 10, 358 Mont. 130, 244 P.3d 311; Brown, ¶ 9.
¶20 In Hulse v. DOJ, Motor Vehicle Div., 1998 MT 108, 289 Mont. 1, 961 P.2d 75, we
held that a delayed reaction to pulling over after an officer has activated their headlights
and sirens coupled with a failure to turn on the vehicle’s headlights after dark resulted in
particularized suspicion that the defendant committed an offense. Hulse, ¶ 38. We have
also held that a delayed reaction of 25 seconds before proceeding from a flashing red light
when there is not traffic on a Sunday morning supported particularized suspicion under the
totality of the circumstances. City of Missoula v. Cook, 2001 MT 237, ¶¶ 13-15, 307 Mont.
39, 36 P.3d 414.
¶21 Also, in State v. Trombley, 2005 MT 174, 327 Mont. 507, 116 P.3d 771, we held
that a vehicle making a legal U-turn combined with unsafe driving maneuvers, such as
straddling the center line, drifting over the fog line, and failing to signal when changing
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lanes, supported particularized suspicion for a traffic stop because these activities
established sufficient “objective data from which the officer could make inferences” that
the defendant “was engaged in some sort of wrongdoing.” Trombley, ¶¶ 3, 4, 8, 10.
¶22 Here, the officers had particularized suspicion because of Strachan’s “delayed
response to seeing the pedestrian” and his sudden braking to avoid hitting a trash bin.
Officer Becker explained Strachan slammed on his brakes and could have hit the
pedestrian. Officer Becker explained further that Strachan’s driving behavior is
consistent—based on his training and experience—with an impaired driver with delayed
reaction time. Officer Nimmick testified that “due to the time of night and observing that
kind of driving behavior [was] concerning.” The officers also observed Strachan make a
“sharp turn” into the parking lot and that his balance was staggered as he exited his truck.
This constitutes sufficient particularized suspicion for police to further investigate.
¶23 As the officers continued their investigation, they smelled alcohol on Strachan’s
breath and observed he had bloodshot and watery eyes. Strachan also gave inconsistent
stories to the officers. Based on the totality of circumstances and our precedent, we
conclude the District Court did not err when it determined there was particularized
suspicion for the stop and to conduct SFSTs.
¶24 We also conclude that the officers did not unconstitutionally prolong their initial
investigation. The officers had particularized suspicion Strachan was driving under the
influence when they approached after two near traffic incidents and erratic driving
behavior. As the officers here continued to investigate, they found objective data which
provided sufficient cause to conduct SFSTs on Strachan. The objective data included:
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(1) Strachan’s delayed reaction time while driving, (2) the smell of alcohol on Strachan’s
breath, (3) Strachan’s bloodshot and watery eyes, (4) Strachan’s inconsistent statements
about his travel, and (5) the time of night. The investigation here was a reasonable amount
of time.
¶25 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶26 Affirmed.
/S/ LAURIE McKINNON
We concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
/S/ JIM RICE
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