                                          No. 01-427

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2002 MT 67


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

TED WILLIAM CLAYTON,

              Defendant and Appellant.




APPEAL FROM:         District Court of the Eighteenth Judicial District,
                     In and For the County of Gallatin,
                     Honorable Thomas A. Olson, Judge Presiding

COUNSEL OF RECORD:

              For Appellant:

                     Lucas J. Foust, Foust Law Office, Bozeman, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Mark W. Mattioli,
                     Assistant Attorney General, Helena, Montana

                     Marty Lambert, County Attorney; Gary Balaz, Deputy County
                     Attorney, Bozeman, Montana


                                                    Submitted on Briefs: December 6, 2001

                                                                Decided: April 4, 2002

Filed:
                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

1¶     Ted William Clayton (Clayton) was charged by information with the offenses of

(1) Driving under the Influence of Alcohol (DUI) (fourth offense), a felony; (2)

Obstructing a Peace Officer or other Public Servant, a misdemeanor; and (3) Driving

while License Suspended or Revoked, a misdemeanor. Clayton filed a motion to

suppress all evidence derived from his stop. The motion was denied and Clayton entered

a guilty plea, reserving his right to appeal from the denial of the motion. We affirm.

2¶     The only issue on appeal is whether the District Court erred in denying Clayton’s

motion to suppress.

                      FACTS AND PROCEDURAL BACKGROUND

3¶     In the early morning hours of August 17, 2000, Officer Ed Benz of the Bozeman

Police Department observed Clayton’s vehicle leaving the Point After Bar & Grill,

turning right onto Rouse Avenue and heading northbound. Officer Benz was training

Officer Martz, who was driving the patrol vehicle.

4¶     Clayton testified that he was driving twenty-five miles per hour, but Officer Benz

testified that the vehicle was traveling at thirty miles an hour “or a little better.” The

speed limit was twenty-five miles per hour. Officer Benz also testified that Clayton’s

vehicle “accelerated hard,” after it turned onto Rouse, and “[a]s the vehicle noticed that

we were a patrol car, the nose of the vehicle actually started coming down like they were

braking. As it went past, you could see the brake lights were on.” Officer Benz then

instructed Officer Martz to turn around and follow the vehicle.
5¶    Clayton then turned onto Lamme Street, pulled to the right side of the road and

came to a stop. The patrol car started to pull in behind the vehicle and Officer Benz

shined a police spotlight into Clayton’s vehicle “to see how many people were in there.”

Before the patrol car came to a complete stop, Clayton got out of his vehicle, turned and

looked right at the patrol car and then ran. Officer Benz immediately recognized Clayton

from a prior involvement and knew that Clayton’s license had been revoked. Officer

Benz then got out of the patrol car, yelled for Clayton to stop and began chasing Clayton.

Clayton did not stop but, as he was running, he fell several times. After one such fall,

Officer Benz caught up with Clayton and handcuffed him.

6¶    Clayton was subsequently charged and filed a motion to suppress, arguing that his

vehicle was illegally stopped. Following an evidentiary hearing, the Eighteenth Judicial

District Court, Gallatin County, entered findings of fact and conclusions of law denying

the motion to suppress.

7¶    In January 2001, Clayton entered pleas of guilty to the felony DUI and two of the

misdemeanor charges, reserving his right to appeal the suppression issue. This appeal

followed.

                                     DISCUSSION

8¶    We review a district court’s order on a motion to suppress to determine whether

the court’s findings of fact are clearly erroneous and whether those findings were

correctly applied as a matter of law. State v. Roberts, 1999 MT 59, ¶11, 293 Mont. 476, ¶

11, 977 P.2d 974, ¶ 11. A trial court’s findings are clearly erroneous if not supported by

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substantial evidence, if the court has misapprehended the effect of the evidence, or if this

Court’s review of the record leaves us with the firm conviction that a mistake has been

made. Roberts, ¶11.

9¶     Clayton argues that he was seized when the officers pulled in behind his vehicle

and shined a spotlight into his vehicle, and that the seizure violated his Fourth

Amendment rights because the officers did not have a particularized suspicion to effect a

stop as required by § 46-5-401, MCA. He states in his brief that, “[i]n addition to being

unable to physically move his vehicle from the scene, the defendant in the instant case

felt restrained because the law enforcement officers were using a spotlight to look into his

vehicle.” He relies on our decision in State v. Roberts, 1999 MT 59, 293 Mont. 476, 977

P.2d 974, for the proposition that he “reasonably believed he was not free to leave,” and

that the law enforcement officers “precipitated the confrontation.”

10¶    The State argues that no seizure occurred until Officer Benz caught up with

Clayton. The State relies on the United States Supreme Court decision in California v.

Hodari D. (1991), 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690, for the proposition

that a seizure requires either a physical restraint or submission to an assertion of

authority. Alternatively, the State argues that if a stop did occur, Officer Benz had

particularized suspicion to effect the stop and that the officers’ action was reasonable in

nature and scope.

11¶    The Fourth Amendment to the United States Constitution provides that, “[t]he

right of the people to be secure in their persons, houses, papers, and effects, against

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unreasonable searches and seizures, shall not be violated.” The fundamental purpose of

the Fourth Amendment’s prohibition against unreasonable searches and seizures is to

protect the privacy and security of individuals. Dorwart v. Caraway, 1998 MT 191, ¶ 21,

290 Mont. 196, ¶ 21, 966 P.2d 1121, ¶ 21.

12¶       The central inquiry under the Fourth Amendment is the reasonableness under all

the circumstances of a particular governmental invasion of a citizen’s personal security.

Terry v. Ohio (1968), 392 U.S. 1, 19, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889, 904. “The

purpose of the Fourth Amendment is not to eliminate all contact between the police and

the citizenry, but ‘to prevent arbitrary and oppressive interference by enforcement

officials with the privacy and personal security of individuals.’” United States v.

Mendenhall (1980), 446 U.S. 544, 553-54, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 509.

Only when an officer, by means of physical force or show of authority, has in some way

restrained the liberty of a citizen may we conclude that a seizure has occurred.

Mendenhall, 446 U.S. at 552, 100 S.Ct. at 1876, 64 L.Ed.2d at 509 (quoting Terry, 392

U.S. at 19, 88 S.Ct. at 1879, 20 L.Ed.2d at 904). When deciding whether a person has

been seized through a show of authority, the test is an objective one: whether, in view of

all the circumstances surrounding the incident, a reasonable person would have believed

that he was not free to leave. Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877, 64 L.Ed.2d

at 509.

13¶       In Hodari D., the United States Supreme Court added a subjective element to the

traditionally objective test of whether a seizure has occurred. In Hodari D., police

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officers were patrolling in a high crime area of Oakland, California. Hodari D., 499 U.S.

at 622, 111 S.Ct. at 1549, 113 L.Ed.2d at 695. As the officers’ vehicle rounded a corner,

a group of youths standing around a car saw them and apparently panicked and took

flight. One of the officers left the car and ran after Hodari. When Hodari saw that the

officer was chasing him, he tossed away what appeared to be a small rock. The officer

then tackled Hodari, handcuffed him and radioed for assistance. The rock that Hodari

tossed was found to be crack cocaine. Hodari D., 499 U.S. at 622-23, 111 S.Ct. at 1549,

113 L.Ed.2d at 695.

14¶    The issue before the Court was whether, “at the time he dropped the drugs, Hodari

had been ‘seized’ within the meaning of the Fourth Amendment.” Hodari D., 499 U.S. at

623, 111 S.Ct. at 1549, 113 L.Ed.2d at 695. The Court held that Hodari had not been

seized and stated that, with respect to a show of authority, a seizure does not occur if the

subject does not yield. Hodari D., 499 U.S. at 626, 111 S.Ct. at 1550, 113 L.Ed.2d at

697.

15¶    The Court concluded that this holding was not in conflict with Mendenhall’s

objective test because Mendenhall

       establishes a necessary, but not a sufficient, condition for seizure–or, more
       precisely, for seizure effected through a “show of authority.” Mendenhall
       establishes that the test for existence of a “show of authority” is an
       objective one: not whether the citizen perceived that he was being ordered
       to restrict his movement, but whether the officer’s words and actions would
       have conveyed that to a reasonable person. . . . [A]ssuming that [the
       officer’s] pursuit in the present case constituted a “show of authority”
       enjoining Hodari to halt, since Hodari did not comply with that injunction
       he was not seized until he was tackled.

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Hodari D., 499 U.S. at 628-29, 111 S.Ct. at 1551-52, 113 L.Ed.2d at 698-99.

16¶   The State maintains that Hodari D. is applicable to this case. Thus, assuming that

the officers’ act of pulling in behind Clayton’s vehicle and shining a spotlight in the

vehicle constituted a show of authority, no seizure occurred until Officer Benz caught up

with Clayton because Clayton did not submit to that show of authority and chose instead

to run from the scene.

17¶   Incredibly, Clayton does not address Hodari D. He insists that this was a traffic

stop and therefore is controlled solely by § 46-5-401, MCA, and that the stop was illegal

because the State cannot point to objective data from which a particularized suspicion can

be based.

18¶   Section 46-5-401, MCA, provides:

      Investigative Stop. In order to obtain or verify an account of the person’s
      presence or conduct or to determine whether to arrest the person, 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.

19¶   The question of whether particularized suspicion of wrongdoing exists is a

factually driven inquiry dependent on the totality of circumstances giving rise to the

investigative stop. Roberts, ¶ 13. This case presents the unique question of when an

investigative stop occurred. There is no question that the officers had a particularized

suspicion of wrongdoing when Clayton got out of the car and Officer Benz recognized

him and knew that his license had recently been revoked. The question is whether the




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officers had effected a stop prior to that time and, if so, whether they had a particularized

suspicion at that time.

20¶    The District Court found that Clayton’s vehicle “stopped without the officers

actions” and that the officers stopped behind and to the left of Clayton’s car and

“scan[ned] the situation with a spotlight to determine the number of passengers and what

the driver was up to.” From these findings, the court concluded that the officers acted

reasonably, that they did not cause the stop and that, when Clayton turned and faced the

officers, giving away his identity, the officers had particularized suspicion.

21¶    When analyzing cases to determine if a seizure occurred, we have applied the

Mendenhall test of whether, in view of all the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to leave. Roberts, ¶ 16. See

also State v. Jenkins (1981), 192 Mont. 539, 543, 629 P.2d 761, 764; State v. Carlson,

2000 MT 320, ¶ 20, 302 Mont. 508, ¶ 20, 15 P.3d 893, ¶ 20. No Montana case has

discussed Hodari D. or determined whether it comports with Montana constitutional

requirements. We hold that it does not.

22¶    Several other states have rejected Hodari D. and analyzed seizure issues under

their own constitutions. See State v. Young (Wash. 1998), 957 P.2d 681, 686, n. 6.

Although we analyze most search and seizure questions under traditional Fourth

Amendment principles enunciated by the federal courts, we will not “march lock-step”

with federal courts, where the broader protections of the Montana Constitution may be

implicated. Deserly v. Department of Corrections, 2000 MT 42, ¶ 18, 298 Mont. 328, ¶

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18, 995 P.2d 972, ¶ 18; State v. Guillaume, 1999 MT 29, ¶ 15, 293 Mont. 224, ¶ 15, 975

P.2d 312, ¶ 15; State v. Bullock (1995), 272 Mont. 361, 384, 901 P.2d 61, 75. We

conclude that under Article II, Section 11 of the Montana Constitution, the test for

whether a seizure occurs is a purely objective one. We re-affirm our holding in Roberts

that no seizure occurs unless, in view of all the circumstances surrounding the incident, a

reasonable person would have felt that he was not free to leave.

23¶    This test is necessarily imprecise and will vary depending on the setting in which

the conduct occurs. Michigan v. Chesternut (1988), 486 U.S. 567, 573, 108 S.Ct. 1975,

1979, 100 L.Ed.2d 565, 572. The test’s objective standard allows the police to determine

in advance whether the conduct contemplated will implicate Article II, Section 11 of the

Montana Constitution and does not shift the focus of the inquiry to a person’s subjective

reaction to police conduct.

24¶    The seizure question here, then, becomes whether the officers’ act of pulling in

behind Clayton’s vehicle and shining a spotlight into his vehicle constituted such a show

of authority that a reasonable person would have believed he or she was not free to leave.

That Clayton did in fact leave is irrelevant to this inquiry.

25¶    The District Court found that Clayton stopped his vehicle of his own volition.

Clayton argues that, like the defendant in Roberts, the officers in this case blocked his

vehicle. We have no trouble distinguishing the facts of Roberts from the circumstances

here. In Roberts, the defendant had pulled into his driveway and the officer pulled in

behind the defendant’s pickup truck, “blocking its exit.” Roberts, ¶ 7.     We noted that

                                               9
the officer “could have merely parked his patrol car on the shoulder in front of 107 Daly

Ave.,” but instead he chose to pull into the driveway, blocking Roberts’ exit and

“physically constraining Roberts’ means and direction of travel.          Furthermore, [the

officer] was armed and in uniform, and his show of authority in immediately exiting his

patrol car and approaching Roberts added to the official nature of the encounter.”

Roberts, ¶ 16.

26¶    Here, according to a diagram drawn by Clayton at the suppression hearing, the

encounter took place on Lamme Street, which, contrary to Clayton’s argument, is not a

“one-lane driveway.” The diagram indicates that there was a car parked in front of

Clayton’s vehicle and that the police car pulled in behind his vehicle and a little to the

left. At the hearing, Clayton testified that the police car “was very close to blocking me

in to where I wouldn’t have been able to maneuver around.” Additionally, Clayton

testified that the police car, if not completely stopped, “was very, very, very slow.”

27¶    The police officers slowing down and coming to a stop behind Clayton’s vehicle

and shining a spotlight into his vehicle do not amount to such a show of authority that a

reasonable person would have believed he or she was not free to leave. The police

officers did not initiate the stop, but only pulled in behind Clayton and shined the

spotlight to determine how many people were in the vehicle. The officers did not have

their sirens or emergency lights on and the encounter took place on a public street.

Additionally, the officers did not exit their vehicle and approach Clayton. Under the facts

of this case, we conclude that no stop occurred prior to Clayton exiting his vehicle.

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When Clayton left the vehicle and Officer Benz recognized him, the officers had a

particularized suspicion to stop Clayton.

28¶    We hold that the District Court correctly denied the motion to suppress.

29¶    Affirmed.

                                                       /S/ W. WILLIAM LEAPHART

We concur:

/S/ KARLA M. GRAY

/S/ PATRICIA COTTER

/S/ TERRY N. TRIEWEILER

/S/ JIM REGNIER




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