                                                                                           December 9 2008




                                         DA 07-0634

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2008 MT 414N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

RYAN CHRISTOPHER NETTLETON,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Fourth Judicial District,
                      In and For the County of Missoula, Cause No. DC 07-68
                      Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Jeffrey T. Renz, Attorney at Law, Clinical Professor of Law, University of
                      Montana; Nathan Kosted, Intern; Missoula, Montana

               For Appellee:

                      Hon. Mike McGrath, Montana Attorney General; C. Mark Fowler,
                      Assistant Attorney General; Helena, Montana



                                                   Submitted on Briefs: September 24, 2008

                                                               Decided: December 9, 2008


Filed:

                      __________________________________________
                                        Clerk
Justice Jim Rice 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 shall be reported by case title, Supreme Court cause number and result to the

State Reporter Publishing Company and West Group in the quarterly table of noncitable

cases issued by this Court.

¶2     On October 8, 2006, Officer Tillman observed Defendant Nettleton’s vehicle

parked in the roadway, directed southbound on River Pines Road, Missoula County, with

its lights on, at 3:45 a.m. Tillman stopped approximately 300 yards away to observe the

vehicle, which remained stopped for several minutes. Tillman then approached the

vehicle, which began moving when Tillman’s patrol car came within 50 yards. The

vehicle stopped again when it reached the intersection of River Pines Road and Blue

Mountain Road. The vehicle remained motionless for about a minute, partially within the

intersection, with its headlights illuminated. The vehicle then suddenly made a u-turn

and proceeded in the opposite direction on River Pines Road. Officer Tillman then

executed a traffic stop for further investigation. Ultimately, Officer Tillman processed

Nettleton for a DUI, whereupon Nettleton admitted he was intoxicated and should not

have been operating a vehicle.

¶3     Nettleton was charged with a DUI, and he filed a motion to dismiss in Justice

Court, arguing Officer Tillman did not have particularized suspicion to justify the traffic

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stop and requesting suppression of all evidence. The Justice Court denied his motion,

and Nettleton entered a conditional guilty plea reserving his right to appeal. In the

District Court, Nettleton moved to suppress the evidence upon the same theory. An

evidentiary hearing was conducted on April 18 at which time Officer Tillman testified.

The District Court denied Nettleton’s motion and pursuant to his conditional plea of

guilty, entered judgment against him on August 30, 2007. Nettleton appeals his

conviction and the District Court’s order denying his motion.

¶4     Nettleton presents three issues on appeal but we restate the dispositive issue as

follows:

¶5     Did the District Court err in determining that Officer Tillman had particularized

suspicion to execute a traffic stop?

                               STANDARD OF REVIEW

¶6     We review a district court’s finding that an officer had particularized suspicion to

justify an investigatory stop for error, and whether the court correctly applied that finding

as a matter of law. State v. Luckett, 2007 MT 47, ¶ 6, 336 Mont. 140, ¶ 6, 152 P.3d 1279,

¶ 6.

                                       DISCUSSION

¶7     A peace officer may stop a vehicle for which he has a particularized suspicion,

based on the circumstances, that the occupant of the vehicle has committed, is

committing, or is about to commit an offense. Section 46-5-401, MCA. “To determine

whether such particularized suspicion exists, the State must show: (1) objective data from


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which an experienced officer could make certain inferences, and (2) a resulting suspicion

that the occupant of the vehicle in question is or has been engaged in some wrongdoing.”

Luckett, ¶ 8. The determination of whether particularized suspicion exists is a question of

fact based on the totality of the circumstances, which include the quantity, or content and

quality, or degree of reliability of the information available to the officer. Luckett, ¶ 8.

¶8     At the evidentiary hearing, Officer Tillman testified to the facts contained in his

original report, as well as his experience and training. Tillman testified that he had been

an active member of law enforcement for thirty-three years, of which thirty-one years

included DUI detection work. He also attended ongoing training programs related to

DUI detection. He testified that, based on his training and experience, indicators of a

potentially impaired driver included driving either too fast or too slow, stopping

inappropriately, and making wide turns.

¶9     When asked what indicators led him to stop Nettleton, Tillman noted the place,

time of day, and Tillman’s driving behavior. The incident occurred at about four in the

morning in an area known for high criminal activity. Tillman observed the Defendant

stop his vehicle on the road more than once for a prolonged period of time, perform a

wide turn, make contact with the centerline, and veer back over the fog line. The District

Court found sufficient particularized suspicion existed based upon Officer Tillman’s

observation of a vehicle stopped in the roadway for a prolonged period of time, the

resumption of driving, and stopping again partially within an intersection, the location of




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the incident, the time of day, the length of the stop at the intersection, and Nettleton’s

touching of the centerline.

¶10    Nettleton argues the District Court erred in failing to grant his motion to suppress

because his behavior was not illegal and any prolonged stopping by him resulted from his

text-messaging his girlfriend. The State counters with its assertion that an officer need

not observe illegal behavior. The State argues that the District Court correctly found,

based on the totality of the circumstances, that Officer Tillman made an appropriate

inference from objective data that resulted in a suspicion of wrongdoing justifying his

stop of Nettleton’s vehicle.

¶11    Nettleton attempts to pick apart each of the factors Officer Tillman relied upon in

determining to stop him and claims he was doing nothing illegal. However,

particularized suspicion is based on the totality of the circumstances; whether a particular

piece of information an officer observes is illegal is not decisive. An officer need not

observe a traffic violation to establish particularized suspicion to justify a traffic stop.

State v. Brander, 2004 MT 150, ¶ 6, 321 Mont. 484, ¶ 6, 92 P.3d 1173, ¶ 6. “Even if a

defendant does not violate a specific traffic law, the officer still may form a particularized

suspicion, under the totality of the circumstances, sufficient to make an investigatory

stop.” State v. Shulke, 2005 MT 77, ¶ 17, 326 Mont. 390, ¶ 17, 109 P.3d 744, ¶ 17.

¶12    Nettleton explains his driving behavior appeared unusual because he was text-

messaging. However, despite Nettleton’s justification, an officer need not eliminate all

possible legal reasons for a driver’s conduct before initiating a stop. State v. Hatler, 2001

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MT 38, ¶ 11, 304 Mont. 211, ¶ 11, 19 P.3d 822, ¶ 11. On the contrary, the goal of an

investigative stop is to further an officer’s investigation into whether illegal behavior has

been or is being committed. Section 46-5-401, MCA.

¶13    It is appropriate to decide this case pursuant to our Order of February 11, 2003,

amending Section I.3 of our 1996 Internal Operating Rules and providing for

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

that the appeal is without merit because the findings of fact are supported by substantial

evidence, the legal issues are clearly controlled by settled Montana law, which the

District Court correctly interpreted, and there was clearly no abuse of discretion by the

District Court.

¶14    Affirmed.

                                                          /S/ JIM RICE

We concur:

/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS




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