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                                                               No. 98-166

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             2000 MT 148N



                                                     STATE OF MONTANA,

                                                      Plaintiff and Respondent,

                                                                      v.

                                              JOSEPH MICHAEL KILLEAGLE,

                                                     Defendant and Appellant.



                       APPEAL FROM: District Court of the Seventeenth Judicial District,

                                                In and for the County of Phillips,

                                    The Honorable John C. McKeon, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                                 James W. Spangelo, Attorney at Law, Havre, Montana

                                                            For Respondent:

                               Hon. Joseph P. Mazurek, Attorney General; John Paulson,

                                       Assistant Attorney General, Helena, Montana

                            Ed Amestoy, Phillips County Attorney; Dan O'Brien, Deputy



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                                           Phillips County Attorney, Malta, Montana



                                              Submitted on Briefs: January 6, 2000

                                                         Decided: June 6, 2000

                                                                    Filed:

                                    __________________________________________

                                                                    Clerk


Justice Karla M. Gray delivered the Opinion of the Court.


¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Joseph Michael KillEagle (KillEagle), having pled guilty to certain criminal offenses
and reserved the right to appeal certain underlying matters, appeals from the ruling of the
Seventeenth Judicial District Court, Phillips County, denying his motions to suppress and
dismiss. We affirm.

¶3 We address the following restated issues on appeal:

¶4 1. Did the District Court err in denying KillEagle's motion to suppress, which was
based on his claim that the officer lacked a particularized suspicion to justify the
investigative stop of his vehicle?

¶5 2. Did a particularized suspicion exist for conducting a horizontal gaze nystagmus
(HGN) test during the investigative stop?

¶6 3. Did the District Court err in determining that KillEagle's motion to suppress the


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HGN test results for lack of foundation was premature?

¶7 4. Did the officer have probable cause to arrest KillEagle for driving under the
influence of alcohol (DUI)?

¶8 5. Did the District Court err in denying KillEagle's motion to dismiss the charges
against him for lack of evidence?

                                                          BACKGROUND

¶9 KillEagle originally was charged in the Justice Court of Phillips County with several
offenses. The charges, which arose from a stop of KillEagle's vehicle by Montana
Highway Patrol Officer Ralph Atchley (Atchley) some miles outside of Malta, Montana,
later were amended. KillEagle moved to suppress the evidence resulting from the vehicle
stop and dismiss the charges. After denying KillEagle's motions, the Justice Court
convicted him of the offense of operation of a motor vehicle by a person with an alcohol
concentration of 0.10 or more and driving while his license was suspended or revoked.
KillEagle appealed to the District Court for a trial de novo.

¶10 KillEagle renewed his motions to suppress and dismiss in the District Court and a
hearing was held. Atchley, Phillips County Deputy Sheriff Shawn VanVleet, Les
KillEagle--KillEagle's father--and KillEagle all testified. At the close of the hearing, the
District Court made oral findings and conclusions which expressly took into account
"some confusion over the location of the particular offenses." The court concluded that
particularized suspicion existed for the investigative stop, that probable cause existed
thereafter for the issuance of citations, that the results of the HGN test conducted by
Atchley were not so inherently unreliable as to be inadmissible as a matter of law, and that
KillEagle's argument relating to the necessity of expert testimony to lay the foundation for
admissibility of the HGN test results was premature because the State of Montana (State)
had indicated it would call expert witnesses at trial. The effect of the District Court's
findings and conclusions was to deny KillEagle's motions to suppress and dismiss.

¶11 KillEagle subsequently entered guilty pleas to the charges against him, reserving the
right to appeal from the ruling on his motions. The District Court sentenced him and
entered judgment. KillEagle appeals.

                                                 STANDARD OF REVIEW

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¶12 "We review a district court's denial of a motion to suppress to determine whether its
findings are clearly erroneous and whether those findings were correctly applied as a
matter of law." State v. Lafferty, 1998 MT 247, ¶ 10, 291 Mont. 157, ¶ 10, 967 P.2d 363, ¶
10 (citation omitted).

                                                            DISCUSSION

¶13 1. Did the District Court err in denying KillEagle's motion to suppress, which was
based on his claim that Atchley lacked a particularized suspicion sufficient to justify the
investigative stop?

¶14 "[A] peace officer may stop any . . . 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, MCA. To prove the
existence of a particularized suspicion sufficient to stop a vehicle, the State bears the
burden of showing objective data from which an experienced peace officer can make
certain inferences and a resulting suspicion that the vehicle's occupant is engaged in
wrongdoing. Lafferty, ¶ 9 (citation omitted). The existence of a particularized suspicion
sufficient to justify an investigative stop is a "question of fact which depends on the
totality of the circumstances." Lafferty, ¶ 10 (citation omitted).

¶15 Atchley testified at the suppression hearing that he followed KillEagle's vehicle in a
westbound direction on Highway 2 for a number of miles and observed that it

        was demonstrating some erratic driving behavior. It would drift off to the right side
        of the pavement, jerk back to the center line, drift towards the center line and then
        jerk back towards the center of the driving lane. Did that several times back and
        forth.

        ....

        If I recall, the actual tires didn't cross the center line, but the body of the car, the
        fenders did when it moved back to the right. . . .

        ....

        . . . . As [the vehicle] approached the bridge he was drifting off to the right side of

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        the traffic lane at that point, and at that point I thought he was going to strike the
        guardrail to the bridge. He jerked back over to the center of the traffic lane and
        crossed the bridge and drifted off to the center of the highway and then came back
        to the center of his traffic lane.

Atchley further testified that he stopped KillEagle's vehicle because "[b]ased on his erratic
driving behavior I felt he was unsafe on the road at that point. I just wanted to make sure
he, the driver, was -- was in a condition to continue down the road in a safe manner." At
the time of the stop, he believed--based on his observations, experience and DUI detection
training--that KillEagle's driving ability was impaired in some manner. The District Court,
in reviewing the totality of the circumstances, found that

        there were specific observations of erratic driving behavior, observations made by a
        trained and experienced patrol officer. Those observations together with [the
        officer's] training and experience lead [sic] the officer to believe that there was a
        possibility of impaired driving. I find that they create circumstances under which
        there is a particularized suspicion that the defendant, as the occupant of the vehicle,
        had committed, was committing or was about to commit an offense. That under
        those circumstances there is sufficient reason to make an investigatory stop, and that
        this stop was a valid stop.

¶16 KillEagle challenges the District Court's particularized suspicion finding on two
bases: 1) all of Atchley's testimony should be disregarded because his testimony about the
precise location of the events at issue is "incredible and unbelievable" and, as a result,
there is no substantial evidence that erratic driving occurred; and 2) even accepting
Atchley's testimony about KillEagle's erratic driving, that driving is insufficient to justify
the investigative stop. Neither argument has merit.

¶17 It is true that Atchley's testimony was somewhat confused and inconsistent with
regard to the exact location--by mile markers--at which the erratic driving and
investigative stop occurred. The District Court addressed that confusion, however, noting
that while the location was attacked, "[i]t was not the observation of erratic driving
behavior that was primarily attacked." The court accepted Atchley's testimony about
KillEagle's erratic driving.

¶18 Where, as here, a district court is the finder of fact, it is within that court's province to
determine witness credibility and the weight to be given evidence. We do not substitute


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our judgment for that of the factfinder on such matters. See Seyferth v. State, Dept. of
Justice (1996), 277 Mont. 377, 385, 922 P.2d 494, 499 (citation omitted). Therefore, we
reject KillEagle's contention that this Court should--or can--determine that, because part of
Atchley's testimony was confused and inconsistent, all of his testimony is inherently
unbelievable and unreliable.

¶19 Nor is KillEagle's second contention, that his erratic driving was insufficient to
establish a particularized suspicion under the totality of the circumstances in this case, of
merit. In this regard, his first argument is that where "there is no criminal violation, there
can be no particularized suspicion[.]" However, the plain language of § 46-5-401, MCA,
controverts this argument by stating that only a particularized suspicion that an "occupant
of [a] vehicle has committed, is committing, or is about to commit an offense" is necessary
to justify an investigative stop.

¶20 Moreover, while KillEagle suggests Lafferty requires the commission of an offense
before particularized suspicion can arise, nothing in Lafferty supports his characterization.
One of the issues in Lafferty was whether certain driving was "illegal"--that is, whether it
constituted a traffic violation--under § 61-8-328, MCA. We held that the traffic statute
relied on by the prosecution had not been violated. Lafferty, ¶¶ 13-14. We did not hold that
a traffic violation was required to establish particularized suspicion.

¶21 KillEagle also argues that, even accepting Atchley's description of his driving
behavior, it did not constitute "erratic driving" as set forth in Lafferty and, as a result, it
was insufficient to form the basis for a particularized suspicion to justify the investigative
stop. In Lafferty, the driving at issue was "relatively minor crossings of the fog line" and
we determined it did not constitute erratic driving or driving all over the road or crossing
the center line and the fog line. Lafferty, ¶ 16. Here, Atchley testified that KillEagle was
driving erratically, that his vehicle repeatedly drifted first to the right side of the pavement,
followed by jerking back to the center of the lane, and then toward the center line,
followed by jerking back to the center of the driving lane. Atchley also testified that the
fenders of KillEagle's vehicle crossed the center line. According to Atchley, KillEagle's
vehicle also drifted to the right at one point to an extent he thought the vehicle was going
to strike the guardrail on the bridge. This repeated drift-and-jerk driving behavior is more
erratic than the relatively minor crossings of the fog line in Lafferty.

¶22 We conclude, on this record, that the District Court's finding--under of the totality of
the circumstances--of a particularized suspicion that KillEagle's driving was impaired is


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supported by substantial evidence and is not otherwise clearly erroneous. As a result, we
hold the court did not err in denying KillEagle's motion to suppress which was based on
the lack of a particularized suspicion sufficient to justify the investigative stop.

¶23 2. Did a particularized suspicion exist to conduct the HGN test during the
investigative stop?

¶24 KillEagle contends that, even if a particularized suspicion existed for the investigative
stop, Hulse v. State, Dept. of Justice, 1998 MT 108, 289 Mont. 1, 961 P.2d 75, requires a
particularized suspicion for administration of the HGN test. He argues that such a
particularized suspicion did not exist in this case and, as a result, the results of the HGN
test must be suppressed.

¶25 We observe that Hulse had not been decided at the time of the District Court's ruling
on KillEagle's motion to suppress. KillEagle did raise an issue closely related to that now
presented, however, and, as a result, we will address this issue briefly.

¶26 The overarching issue in Hulse was whether field sobriety tests were warrantless
searches requiring both probable cause and exigent circumstances under the Montana
Constitution. Hulse, ¶ 19. We held that such tests were searches, but that they need be
based only on particularized suspicion, rather than probable cause. Hulse, ¶ 38. We went
on to indicate that the particularized suspicion necessary for the initial stop may serve as
the particularized suspicion for field sobriety tests if the basis for the initial stop was of a
nature that would lead an officer to believe the driver was intoxicated. We further
indicated that, if the stop was made for a reason unrelated to intoxication or impaired
driving and no signs of intoxication were observed during the initial stop, no particularized
suspicion of driving under the influence would exist and no field sobriety tests could be
administered. Hulse, ¶¶ 39-40.

¶27 Here, the District Court found that a particularized suspicion existed for Atchley to
believe that KillEagle's driving was impaired and we concluded above that the court did
not err in that regard. Under Hulse, the particularized suspicion necessary for the initial
stop in this case served as the particularized suspicion required for the HGN test.
Moreover, even if more were required to establish a particularized suspicion for the test,
such a requirement was met in this case by Atchley's testimony that KillEagle's eyes were
bloodshot, his speech was slurred and the smell of an alcohol-based substance was coming
from the vehicle.


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¶28 We hold that a particularized suspicion existed to conduct the HGN test during the
investigative stop.

¶29 3. Did the District Court err in determining that KillEagle's motion to suppress the
HGN test results for lack of foundation was premature?

¶30 KillEagle's motion to suppress contended that expert testimony was required to lay the
foundation for admission of HGN evidence at trial, that the expert should be a doctor in an
optical field and that, because the State had not identified such an expert witness, it would
not be able to meet its foundational burden. Accordingly, use of the HGN test results
should not be allowed. The District Court observed that the State had indicated it would be
calling expert witnesses and, as a result, KillEagle's motion was premature and "may be an
issue for consideration during the course of trial."

¶31 KillEagle shifts his argument on appeal from that presented in the District Court by
arguing that Atchley's HGN-related testimony at the suppression hearing was inadmissible
for lack of expert witness foundation. We observe that he did not object to Atchley's
testimony on that subject during the suppression hearing and did not object, at the time of
the District Court's ruling that the issue was premature, on the basis that his foundation
issue was directed to the suppression hearing stage.

¶32 Under § 46-20-104(2), MCA, failure to make a timely objection constitutes a waiver
of the objection except as provided in § 46-20-701(2), MCA, which is inapplicable here.
Moreover, we will not put a district court in error when it was not given an opportunity to
correct itself. State v. Weeks (1995), 270 Mont. 63, 85, 891 P.2d 477, 490 (citation
omitted). Finally, we do not address a party's change in legal theory on appeal. See Day v.
Payne (1996), 280 Mont. 273, 276, 929 P.2d 864, 866 (citations omitted).

¶33 KillEagle did not object to Atchley's testimony, did not advise the District Court he
intended his HGN test foundation issue to apply to the suppression hearing, and has
changed his legal theory from that presented in the District Court. Nor does he address the
court's actual determination that the foundation issue was premature. We conclude,
therefore, that the District Court did not err in determining that KillEagle's motion to
suppress the HGN test results for lack of foundation was premature.

¶34. Did Atchley have probable cause to arrest KillEagle for DUI?


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¶35 KillEagle's argument that probable cause did not exist for his arrest is premised
primarily on his arguments, addressed and rejected above, that Atchley's testimony was
inherently unreliable and the HGN test results should have been inadmissible at the
suppression hearing. Therefore, this issue needs little additional discussion.

¶36 To justify a warrantless arrest, an officer must have probable cause to believe that a
person is committing an offense and existing circumstances require immediate arrest.
Section 46-6-311(1), MCA. The requisite probable cause is "established if the facts and
circumstances within an officer's personal knowledge . . . are sufficient to warrant a
reasonable person to believe that someone is committing . . . an offense." It is evaluated in
the light of a trained law enforcement officer's knowledge, taking into account all of the
relevant circumstances. State v. Williamson, 1998 MT 199, ¶ 12, 290 Mont. 321, ¶ 12, 965
P.2d 231, ¶ 12.

¶37 Here, Atchley, an experienced officer with substantial training in DUI detection,
personally observed KillEagle's erratic driving over a several-mile distance; noticed
slurred speech, bloodshot eyes and the odor of an alcohol-based substance after stopping
the vehicle; and conducted an HGN test on which KillEagle scored six points. On this
record, we conclude that Atchley had probable cause to arrest KillEagle for DUI.

¶38 5. Did the District Court err in denying KillEagle's motion to dismiss the charges
against him for lack of evidence?

¶39 Under this issue, KillEagle essentially repeats his above arguments that Atchley's
testimony was inherently unreliable, that his driving was not erratic and that the HGN test
results should have been suppressed. He contends that, once his arguments have been
accepted, there is little or no evidence--and certainly not sufficient evidence--upon which
the DUI charge could stand and, as a result, the District Court should have granted his
motion to dismiss for lack of evidence.

¶40 We rejected above each of the underlying arguments on which this issue is premised.
On this record, there was sufficient evidence to proceed and, accordingly, we hold that the
District Court properly denied KillEagle's motion to dismiss for lack of evidence.

¶41 Affirmed.

                                                      /S/ KARLA M. GRAY


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                                                              We concur:

                                                       /S/ J. A. TURNAGE

                                                   /S/ JAMES C. NELSON

                                                        /S/ JIM REGNIER

                                               /S/ WILLIAM E. HUNT, SR.




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