                                                                                       July 23 2010




                                         DA 09-0437

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2010 MT 162N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

MELVIN MATSON,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Fifth Judicial District,
                      In and For the County of Jefferson, Cause No. DC 08-2169
                      Honorable Loren Tucker, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Joslyn Hunt, Chief Appellate Defender; Lisa S. Korchinski,
                      Assistant Appellate Defender, Helena, Montana

               For Appellee:

                      Steve Bullock, Montana Attorney General; Mardell Ployhar,
                      Assistant Attorney General, Helena, Montana

                      Matthew Johnson, Jefferson County Attorney; Tiffany Heaton,
                      Deputy County Attorney, Boulder, Montana


                                                   Submitted on Briefs: May 12, 2010

                                                              Decided: July 23, 2010


Filed:
                      __________________________________________
                                        Clerk
Chief Justice Mike McGrath 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 2006, 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     Melvin Matson (Matson) appeals from the denial of his motion to suppress

evidence and conviction for operating a motor vehicle with a BAC of .08 or greater (DUI

per se), by the Fifth Judicial District Court, Jefferson County. We affirm.

¶3     The issue on appeal is whether the police officer had particularized suspicion to

stop Matson.

¶4     At approximately 7:25 p.m. on Friday, August 29, 2008, Jefferson County

Sheriff’s Department Detective Bob Gleich (Detective Gleich) noticed a dust cloud

coming from Gruber Excavating’s storage yard in Clancy.             Detective Gleich saw

Matson’s blue pickup truck exiting the yard. Aware that it was after hours and that the

truck did not belong to an employee, Gleich observed that Matson’s truck lurched

forward in a jerking motion. Detective Gleich initiated a traffic stop “to make sure the

driver was not involved in any criminal activity on the property belonging to Gruber

Excavating.” During the stop, Detective Gleich determined that Matson was intoxicated



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and arrested him for operating a vehicle while under the influence of alcohol and

operating a vehicle with a blood alcohol content above .08.

¶5     Matson moved to suppress evidence of his intoxication for lack of particularized

suspicion to stop his vehicle. The justice court granted Matson’s motion to suppress and

the State appealed dismissal of the case to the District Court. Following a hearing, the

District Court denied Matson’s motion to suppress. Matson subsequently pled guilty to

DUI per se, reserving the right to appeal the denial of his motion to suppress.

¶6     We review a district court’s denial of a motion to suppress to determine whether

the court’s findings of fact are clearly erroneous and whether the court correctly applied

the law to those findings. State v. Cooper, 2010 MT 11, ¶ 5, 355 Mont. 80, 224 P.3d 636.

A finding is clearly erroneous if it is not supported by substantial credible evidence, the

court has clearly misapprehended the effect of the evidence, or if our review of the record

leaves us with a definite and firm conviction that a mistake has been made. Cooper, ¶ 5.

We review for clear error a finding that an officer had particularized suspicion to conduct

an investigative stop. Cooper, ¶ 5.

¶7     Montana law provides that “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.”

Section 46-5-401(1), MCA. The State must prove that an officer had particularized

suspicion to stop a vehicle by showing: (1) objective data and articulable facts from

which an officer can make certain reasonable inferences; and (2) a resulting suspicion

that the person to be stopped has committed, is committing, or is about to commit an

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offense. Brown v. State, 2009 MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842; State v.

Gopher, 193 Mont. 189, 194, 631 P.2d 293, 296 (1981).              Whether particularized

suspicion exists is a question of fact that depends on the totality of the circumstances.

Cooper, ¶ 7.

¶8     Matson argues that Detective Gleich lacked particularized suspicion that he was

engaged in any wrongdoing or criminal activity based on his driving behavior or location

on a business property open to the public. However, the District Court examined the

totality of the circumstances, and listed the following articulable facts as justifying the

stop: Detective Gleich observed dust and unusual jerky driving; Gruber Excavating yard

was closed for the evening and weekend and contained the same type of materials

recently stolen from other locations; the yard was not a sale location and was closed to

the public; and Gleich generally knew the employees of Gruber Excavating and knew

that Matson was not authorized to be there. The court noted that these facts taken

together could lead to an inference that “a person who is there under all those

circumstances was not there for a valid purpose, and instead he might be there for

wrongdoing.”

¶9     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our 1996 Internal Operating Rules, as amended in 2006, which provides for

memorandum opinions. It is manifest on the face of the briefs and the record that the

appeal is without merit because the issues are factual and there clearly is sufficient

evidence to support the findings of fact below.



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¶10   Affirmed.


                          /S/ MIKE McGRATH


We concur:


/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS




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