                                                                                             09/21/2017


                                          DA 15-0703
                                                                                         Case Number: DA 15-0703


              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2017 MT 236


STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

STEVEN TODD HOOVER,

               Defendant and Appellant.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DC 14-223A
                        Honorable Katherine R. Curtis, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Chief Appellate Defender, Koan Mercer, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
                        Assistant Attorney General, Helena, Montana

                        Edward J. Corrigan, Flathead County Attorney, Andrew C. Clegg,
                        Deputy County Attorney, Kalispell, Montana


                                                   Submitted on Briefs: May 24, 2017
                                                              Decided: September 21, 2017

Filed:


                        __________________________________________
                                         Clerk
Justice Dirk M. Sandefur delivered the Opinion of the Court.

¶1     Steven Todd Hoover (Hoover) appeals the order of the Montana Eleventh Judicial

District Court, Flathead County, affirming the Flathead County Justice Court’s denial of

his motion to suppress evidence obtained subsequent to an investigative law enforcement

stop. We reverse.

       Did the Justice Court erroneously deny Hoover’s motion to suppress evidence?

                                     BACKGROUND

¶2     Sometime before midnight on August 2, 2013, Defendant Hoover, accompanied by

an adult female acquaintance, drove his Ford pickup truck into a private mini-storage

complex (AAA Mini-Storage) located just off Highway 2 East on the outskirts of Kalispell,

Montana. The partially fenced complex had no gate and was open to the public 24 hours

a day, seven days a week. The couple parked with their lights off in a dark and relatively

secluded spot at the back end of the complex between two rows of storage units to engage

in consensual intimacy on a warm summer night.

¶3     Just before midnight, while patrolling through an adjacent automobile dealership

lot, Sgt. Phil Meredith, a Flathead County deputy sheriff with over 21 years of experience,

18 on patrol, noticed Hoover’s vehicle parked in the dark between two storage unit rows

on the publicly accessible lot. After stopping and turning off his lights to observe further,

Meredith saw the silhouettes of two people sitting in the front seats of the parked truck. He

later testified that he could not see what they were doing, but saw enough movement to tell

that two people were in the truck.


                                             2
¶4       Based on his experience that people do not commonly access storage units at

midnight and his general awareness that storage units “are always being broken into,” Sgt.

Meredith immediately suspected that a storage unit break-in might be in progress and

summoned other law enforcement officers in the area to assist him in contacting the

occupants of the vehicle to investigate further. Upon the arrival of two more Flathead

County sheriff’s deputies and a Montana Highway Patrol (MHP) trooper, Meredith and the

other officers gathered on foot at the entrance of the complex where they split into two

groups and set out to sneak-up behind the truck and converge on the occupants from both

sides.

¶5       Sgt. Meredith and the trooper crept up to a point about 10 to 15 yards behind the

pickup where they could look around a storage unit and see the vehicle. Upon observing

from that vantage point for “less than a minute,” Meredith saw that the passenger side

window was down and again saw the silhouettes of two people sitting in the pickup—one

in the driver’s seat and the other in the front passenger seat. He testified that he still could

not see what the occupants were doing but the driver appeared to be looking down at the

steering wheel or into his lap. Based on his experience that people often find a secluded

spot to use illegal drugs, Meredith testified that, in addition to his initial suspicion of a

possible break-in, he suspected that the driver might also be engaged in illegal drug

activity, such as “either loading up a marijuana bowl or shooting up.” However, Meredith

articulated no specific observation, fact, or circumstance particularly indicative of such

illegal drug use.


                                               3
¶6     Without any additional information, the four officers left the cover of the storage

units and walked up on the parked truck from the rear. Sgt. Meredith and the MHP trooper

walked up along the passenger side and the other two deputies walked up along the driver’s

side. As they approached from behind on both sides of the truck, the officers heard nothing

from inside the cab and saw only that the driver was still looking down towards his lap

with the passenger “just sitting there.”

¶7     When Sgt. Meredith and the trooper reached the open passenger side window,

Meredith lit up the interior of the cab with his flashlight and announced the presence of

law enforcement officers. Looking into the illuminated interior of the cab, Meredith saw

Hoover sitting in the driver’s seat with his penis exposed, masturbating while his fully

clothed female companion was calmly watching from the front passenger seat. The officers

saw no indication of a possible break-in, illegal drug use, or other illegal activity. The

officers further observed no indication that Hoover’s female companion was in distress,

not free to leave, or in any way threatened or concerned about Hoover’s conduct. Meredith

later testified that the two people “were never close together.”

¶8     Nonetheless, upon seeing what was going on, Sgt. Meredith became further

concerned that Hoover might be engaged in indecent exposure or about to subject the

woman to sexual intercourse without consent. He testified that he thought further intrusion

and investigation was necessary to determine whether “the female was comfortable being

there with a man exposing his penis.” After first questioning Hoover’s companion and

confirming that she was there of her own free will, the officers began questioning Hoover.


                                             4
Despite what he had clearly observed and confirmed, Meredith testified that he still thought

further investigation was necessary to dispel his initial suspicion of a possible storage unit

break-in. He articulated no specific factual basis for this continued suspicion.

¶9     While questioning Hoover, one or more of the officers noticed an alcoholic odor on

his breath and requested a preliminary breath test (PBT).1 Hoover consented and the PBT

indicated a 0.05% blood alcohol concentration.             Upon further inquiry, the officers

ascertained that Hoover was on probation supervised by the Montana Department of

Corrections. At the direction of an on-call probation officer, the officers arrested Hoover

on suspicion of violating the alcohol restriction of his probation. Upon searching him

incident to arrest, one of the officers found a small marijuana pipe with suspected residue

in Hoover’s pants pocket. The officers then transported him to jail and cited him into

Flathead County Justice Court on the charge of Criminal Possession of Drug Paraphernalia,

a misdemeanor in violation of § 45-10-103, MCA.

¶10    In Justice Court, Hoover filed a motion to suppress all evidence gathered incident

to the “investigative stop” on the asserted ground that the officers lacked sufficient

particularized suspicion to detain and question him about potential criminal activity.

Following a hearing, the Justice Court denied the motion on the ground that no


1
  Other than an alcoholic breath odor, the record is silent as to what quantum of suspicion, if any,
the officers had to request that Hoover submit to a PBT test. See Hulse v. State, 1998 MT 108,
¶¶ 30-38, 289 Mont. 1, 961 P.2d 108 (field sobriety tests infringe reasonable expectation of privacy
and constitute a search requiring particularized suspicion of DUI); § 61-8-409(1), MCA (implied
consent PBT on particularized suspicion of DUI); and Bramble v. State, 1999 MT 132, ¶ 29, 294
Mont. 501, 982 P.2d 464 (lack of particularized suspicion for field sobriety tests similarly
constitutes lack of particularized suspicion for PBT). See also, § 61-8-406(1)(a), MCA (0.08%
threshold for unlawful blood or breath alcohol concentration).
                                                 5
constitutional seizure of Hoover’s person occurred, thus eliminating any legal requirement

for particularized suspicion to conduct further investigation. Hoover then pled “no contest”

to the drug paraphernalia charge, received a six-month deferred sentence, and appealed the

denial of his suppression motion under a reservation of rights to the Montana Eleventh

Judicial District Court.

¶11    On appeal, the District Court, Hon. Ted O. Lympus presiding, concluded that, under

the totality of the circumstances, four uniformed police officers converging upon Hoover’s

parked pickup was a constitutional seizure requiring particularized suspicion of criminal

activity to temporarily detain and question him. The District Court remanded back to

Justice Court for an evidentiary hearing to determine whether sufficient particularized

suspicion existed to justify the investigative stop. Upon hearing on remand, the Justice

Court again denied Hoover’s motion to suppress, this time on the undifferentiated finding

and conclusion that the officers lawfully detained and continued to question Hoover on

particularized suspicion of a possible break-in, illegal drug use, and/or non-consensual

sexual activity. On appeal, the District Court, Hon. Katherine Curtis presiding, affirmed

the Justice Court ruling, concluding that sufficient particularized suspicion of criminal

activity existed to temporarily detain Hoover for questioning prior to arrest. Hoover

appeals.

                               STANDARD OF REVIEW

¶12    On appeal from a justice court of record, the district court functions as an

intermediate appellate court confined to review of the record and questions of law.


                                             6
Sections 3-5-303 and 3-10-115, MCA; State v. Luke, 2014 MT 22, ¶ 9, 373 Mont. 398, 321

P.3d 70.2 On appeal of a district court’s appellate review of a lower court ruling, we review

the lower court ruling as if appealed directly to this Court without district court review.

State v. Maile, 2017 MT 154, ¶ 7, 388 Mont. 33, 396 P.3d 1270. Upon independent review

of the lower court record, our standard of review is whether the lower court’s findings of

fact are clearly erroneous, whether its conclusions of law are correct, and, as applicable,

whether the lower court abused its discretion. State v. Davis, 2016 MT 206, ¶¶ 5-6, 384

Mont. 388, 378 P.3d 1192. A lower court’s findings of fact are clearly erroneous only if

not supported by substantial credible evidence, the lower court misapprehended the effect

of the evidence, or we are nonetheless left with a firm and definite conviction that the lower

court was simply mistaken. Maile, ¶ 8. Accordingly, our standard of review of a lower

court’s denial of a motion to suppress evidence is whether the lower court’s findings of

fact are clearly erroneous and whether it correctly applied the controlling law to those facts.

State v. Foster, 2017 MT 118, ¶ 6, 387 Mont. 402, 394 P.3d 916; State v. Massey, 2016

MT 316, ¶ 7, 385 Mont. 460, 385 P.3d 544. We generally defer to a lower court’s findings

of fact but review its conclusions of law and application of legal standards de novo. State

v. Kaufman, 2002 MT 294, ¶ 12, 313 Mont. 1, 59 P.3d 1166.

                                         DISCUSSION

¶13      Did the Justice Court erroneously deny Hoover’s motion to suppress evidence?




2
    The Flathead County Justice Court is a court of record as defined by § 3-10-101(5), MCA.
                                                  7
¶14    The Fourth Amendment to the United States Constitution and Article II, section 11,

of the Montana Constitution both protect individuals from unreasonable government

searches and seizures. As a procedural component of these protections, government

searches and seizures must generally occur pursuant to a judicial warrant issued on

probable cause. See U.S. Const. amend. IV (“no Warrants” for search or seizure “shall

issue, but upon probable cause, supported by Oath or affirmation, particularly describing

the place to be searched, and the person or things to be seized”) and Mont. Const. art. II,

section 11 (“No warrant to search any place, or seize any person or thing shall issue . . .

without probable cause”). Except for certain limited exceptions to the warrant requirement,

warrantless searches and seizures are per se unreasonable under the Fourth Amendment

and Montana Constitution, Article II, section 11. State v. Hardaway, 2001 MT 252, ¶ 36,

307 Mont. 139, 36 P.3d 900; State v. McCarthy, 258 Mont. 51, 55, 852 P.2d 111, 113

(1993); Katz v. United States, 389 U.S. 347, 358, 88 S. Ct. 507, 515 (1967). The

fundamental purposes of the Fourth Amendment and Article II, section 11, are “to protect

the privacy and security of individuals” from unreasonable government intrusion or

interference. State v. Clayton, 2002 MT 67, ¶ 11, 309 Mont. 215, 45 P.3d 30; accord

United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S. Ct. 1870, 1877 (1980) (purpose

of Fourth Amendment “not to eliminate all contact between the police and citizenry”—

only “to prevent arbitrary and oppressive” government interference with individual privacy

and security) (internal quotation marks omitted).




                                            8
¶15    A constitutional seizure of a person occurs when a government officer “in some

way” restrains a person’s liberty “by means of physical force” or a “show of authority”

that, under the totality of the circumstances, would cause an objectively reasonable person

to feel not free to leave the presence of the government officer. Clayton, ¶ 12 (citing

Mendenhall, 446 U.S. at 552-54, 100 S. Ct. at 1876-77); accord State v. Roberts, 1999 MT

59, ¶ 16, 293 Mont. 476, 977 P.2d 974 (citing Mendenhall); Terry v. Ohio, 392 U.S. 1, 16,

88 S. Ct. 1868, 1877 (1968) (seizure occurs whenever police accost an individual and

restrain freedom to walk away).3 Even a brief restraint of a person’s liberty constitutes a

seizure subject to the Fourth Amendment and Montana Constitution, Article II, section 11.

Massey, ¶ 9; State v. Martinez, 2003 MT 65, ¶ 20, 314 Mont. 434, 67 P.3d 207; Kaufman,

¶ 14; State v. Reynolds, 272 Mont. 46, 49, 899 P.2d 540, 542 (1995); United States v.

Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 694-95 (1981).4 A law enforcement traffic stop

is a constitutional seizure subject to the protections of the Fourth Amendment and Montana




3
  A constitutional “search” is the “use of some means of” examining or gathering evidence “which
infringes upon a person’s reasonable expectation of privacy.” State v. Carlson, 198 Mont. 113,
119, 644 P.2d 498, 501 (1982); accord Smith v. Maryland, 442 U.S. 735, 739-40, 99 S. Ct. 2577,
2579-80 (1979). A search infringes upon an individual’s right to privacy while a seizure “deprives
the individual of dominion over his or her person or property.” State v. Loh, 275 Mont. 460, 468,
914 P.2d 592, 597 (1996) (quoting Horton v. California, 496 U.S. 128, 133, 110 S. Ct. 2301, 2306
(1990)); accord State v. Scheetz, 286 Mont. 41, 46, 950 P.2d 722, 724 (1997) (government
infringement of a reasonable expectation of privacy constitutes a search). No search or seizure
occurs absent government infringement of a reasonable expectation of privacy. Scheetz, 286 Mont.
at 46, 950 P.2d at 724.
4
  See also § 45-2-101(73), MCA (defining a “stop” as “the temporary detention of a person that
results when a peace officer orders the person to remain in the peace officer’s presence”).

                                                9
Constitution, Article II, section 11. State v. Jarman, 1998 MT 277, ¶ 9, 291 Mont. 391,

967 P.2d 1099.

¶16    In this case, the District Court concluded, and the State does not contest, that the

officers constitutionally seized Hoover at the time that they converged on foot on both sides

of his parked vehicle, shined a flashlight into the open passenger window, and announced

their presence as law enforcement officers. We thus confine our review to the initial and

continued constitutional validity of the seizure and escalating investigation that ultimately

resulted in Hoover’s arrest, which then resulted in an otherwise lawful search incident to

arrest and the discovery of his possession of illegal drug paraphernalia.

¶17    As a limited exception to the warrant requirement, a law enforcement officer may

stop and temporarily detain a person for investigative purposes without probable cause for

an arrest if, based on specific and articuable facts known to the officer, including rational

inferences therefrom based on the officer’s training and experience, the officer has an

objectively reasonable, particularized suspicion that the person is engaged, or about to

engage, in criminal activity. State v. Elison, 2000 MT 288, ¶ 15, 302 Mont. 228, 14 P.3d

456; Roberts, ¶ 12; Reynolds, 272 Mont. at 49-50, 899 P.2d at 542; State v. Gopher, 193

Mont. 189, 193-94, 631 P.2d 293, 295-96 (1981); Cortez, 449 U.S. at 417-18, 101 S. Ct. at

694-95; Terry, 392 U.S. at 16-19, 88 S. Ct. at 1877-79. Relevant considerations include

the quantity, substance, quality, and degree of reliability of information known to the

officer. State v. Pratt, 286 Mont. 156, 161, 951 P.2d 37, 40 (1997); Alabama v. White, 496




                                             10
U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990).5 In 1991, the Legislature codified the Fourth

Amendment particularized suspicion standard articulated in Terry, Cortez, and Gopher, to

wit:

       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.

Section 46-5-401(1), MCA (1991 Mont. Laws 3027). See also State v. Bar-Jonah, 2004

MT 344, ¶ 42, 324 Mont. 278, 102 P.3d 1229 (noting codification of constitutional

principles). The question of whether an officer had a particularized suspicion of criminal

activity is a question of fact under the totality of circumstances, but the related question of

whether the circumstances indicated activity that was illegal is a question of law. Kaufman,

¶ 11; Cortez, 449 U.S. at 417-18, 101 S. Ct. at 695.

¶18    The particularized suspicion standard does not require that an officer be certain, or

even ultimately correct, that a person is engaged in criminal activity. See State v. Thomas,

2008 MT 206, ¶ 10, 344 Mont. 150, 186 P.3d 864; State v. Henderson, 1998 MT 233, ¶ 12,

291 Mont. 77, 966 P.2d 137, Gopher, 193 Mont. at 192, 631 P.2d at 295; Cortez, 449 U.S.

at 418, 101 S. Ct. at 695. However, particularized suspicion requires more than mere

generalized suspicion or an undeveloped hunch of criminal activity. Illinois v. Wardlow,

528 U.S. 119, 123-24, 120 S. Ct. 673, 676 (2000); Terry, 392 U.S. at 27, 88 S. Ct. at 1883.


5
  Upon challenge in a criminal proceeding, the State has the burden of proving that an officer had
an objectively reasonable, particularized suspicion of criminal activity. State v. Waite, 2006 MT
216, ¶ 11, 333 Mont. 365, 143 P.3d 116; State v. Angeline, 1998 MT 139, ¶ 22, 289 Mont. 222,
961 P.2d 1251; Gopher, 193 Mont. at 194, 631 P.2d at 296.
                                                11
See also State v. Strom, 2014 MT 234, ¶¶ 14-17, 376 Mont. 277, 333 P.3d 218 (daytime

observation of occupied vehicle legally parked alone in public-use area near oft-vandalized

war memorial insufficient for particularized suspicion of criminal activity); Jarman,

¶¶ 14-15 (mere presence in phone booth in high crime area on cold night insufficient

particularized suspicion of criminal activity); Reynolds, 272 Mont. at 49-51, 899 P.2d at

542-43 (mere suspicion of “possible” traffic violation “combined with no other objective

data” insufficient to justify investigatory stop); Brown v. Texas, 443 U.S. 47, 50-53, 99

S. Ct. 2637, 2640-41 (1979) (generalized observation that person looked suspicious in

“neighborhood frequented by drug users” insufficient to justify investigative stop).

¶19    Here, Sgt. Meredith, a highly experienced officer on patrol in a commercial area,

reasonably took note of an occupied, unlit vehicle parked late at night in the dark in a

relatively secluded location near the back of a private mini-storage complex off of a busy

highway.    Under these circumstances and based on his extensive law enforcement

experience, Meredith certainly articulated a reasonable suspicion that an illegal break-in

might possibly be in progress, thus warranting additional investigation in the performance

of his official duty. But, without observation or knowledge of additional facts, this initial

suspicion was, as yet, no more than an undeveloped, generalized suspicion of criminal

activity.   For this undeveloped suspicion to ripen into an objectively reasonable,

particularized suspicion of criminal activity, the officers needed additional “specific and

articuable facts” indicating that the occupants of the vehicle had committed, were

committing, or were about to commit a specific criminal offense. Section 46-5-401(1),


                                             12
MCA; Elison, ¶ 15; Roberts, ¶ 12; Reynolds, 272 Mont. at 49-50, 899 P.2d at 542;

Gopher, 193 Mont. at 193-94, 631 P.2d at 295-96; Cortez, 449 U.S. at 417-18, 101 S. Ct.

at 694-95; Terry, 392 U.S. at 16-19, 88 S. Ct. at 1877-79.

¶20    The quantum or quality of information available to the officers in this case did not

significantly increase or improve as they walked up to the parked vehicle from the rear.

Prior to shining a flashlight into the cab through the open passenger window, the officers

had still observed no more than a legally parked vehicle, non-specific movement in the cab,

two people sitting apart in the front seats, the passenger side window down, and the driver

looking down toward his lap or the steering wheel. However reasonable as far as it went,

Sgt. Meredith’s general awareness that people typically engage in illegal drug use in

secluded places was not further supported by any articulation of a more specific

observation, sound, odor, or other evidence, information, or circumstance particularly

indicative of illegal drug use, much less a storage unit break-in. The officers’ initial

generalized suspicions simply did not ripen into any articuable particularized suspicion of

a break-in or illegal drug use. Despite ample opportunity for further surveillance or other

efforts to at least attempt to develop additional facts sufficient for a particularized suspicion

of criminal activity, the officers jumped the gun and prematurely set out to effect a

constitutional seizure as the investigative means to confirm or dispel their as-yet only

generalized suspicion of criminal activity.

¶21    The State attempts to favorably compare the facts of this case to those in State v.

Rodriguez, 2011 MT 36, 359 Mont. 281, 248 P.3d 850. In Rodriguez, two sheriff’s


                                               13
deputies were on patrol in a commercial area in Missoula when they noticed an unlit pickup

slowly rolling though the parking lot of a recreational vehicle dealership around midnight.

Rodriguez, ¶ 3. The dealership was not open for business and maintained “large quantities

of expensive merchandise” onsite. Rodriguez, ¶ 3. The officer specifically articulated that

he knew from experience that business burglaries typically occur at night, vehicles were

typically never present in the parking lot of that particular business at night, and the vehicle

was creeping along very slowly without lights, similar to a vehicle casing a closed business

in advance of a burglary. Rodriguez, ¶¶ 3, 13, and 19. Under those circumstances, we held

that the officers had sufficient particularized suspicion that the occupant of the vehicle was

about to commit a burglary. Rodriguez, ¶¶ 13 and 19.

¶22    Here, unlike in Rodriguez, the mini-storage complex at issue was not closed for

business. Though a business not typically frequented by renters around midnight, the

complex was nonetheless an ungated, self-service operation, open to the public around the

clock for that purpose. Moreover, in Rodriguez, the officer articulated specific conduct

that, under the totality of the circumstances based on the officer’s training and experience,

was particularly indicative of specific criminal activity, i.e., casing a closed business in

advance of a burglary. Here, though he articulated circumstances generally conducive to

the commission of a break-in or illegal drug use, Sgt. Meredith did not further articulate

any specific conduct or circumstance which, in context of his articulated generalized

suspicion, was particularly indicative of an imminent break-in or illegal drug use.

Rodriguez is not sufficiently analogous and, thus, factually distinguishable here.


                                              14
¶23    Glossing over the manifest absence of any articulation of specific facts sufficient to

further develop the officers’ initial suspicions of a possible break-in or illegal drug use

beyond mere generalized suspicion or a hunch, the State asserts that the subsequent

observation of Hoover masturbating in the presence of a female in a secluded area justified

additional intrusion to dispel a new or broadened suspicion of possible nonconsensual

sexual activity, i.e., sexual intercourse without consent or indecent exposure. We certainly

recognize that, based on additional information developed during the lawful duration and

scope of an initial investigative stop, new or broader particularized suspicion of criminal

activity may develop and thus permissibly expand the duration and scope of the stop

beyond its initial purpose. State v. Case, 2007 MT 161, ¶ 34, 338 Mont. 87, 162 P.3d 849;

State v. Carlson, 2000 MT 320, ¶ 21, 302 Mont. 508, 15 P.3d 893; Hulse v. State, 1998

MT 108, ¶¶ 40-42, 289 Mont. 1, 961 P.2d 108; State v. Sharp, 217 Mont. 40, 46, 702 P.2d

959, 963 (1985). We further recognize that, within the framework of constitutional

reasonableness, a compelling government interest in “effective law enforcement” demands

that officers in the field have “some latitude” to reach, follow up on, and confirm or dispel

initial suspicions of criminal activity. Sharp, 217 Mont. at 47, 702 P.2d at 963; see also

State v. Seaman, 2005 MT 307, ¶ 29, 329 Mont. 429, 124 P.3d 1137 (citing Sharp in

community caretaker context). However, an investigative stop simply cannot lawfully

ripen or escalate into new or broader particularized suspicion of criminal activity unless

sufficient particularized suspicion of criminal activity exists to justify a stop in the first

place and then continues to exist prior to the development of the additional information on


                                             15
which an officer relies to prolong and expand its scope. See Hulse, ¶ 40-42 (escalating

suspicion must arise from initial lawful stop); § 46-5-403, MCA (investigative stop “may

not last longer than is necessary to effectuate the purpose of the stop”).6

¶24    In State v. Graham, 2007 MT 358, 340 Mont. 366, 175 P.3d 885, a Yellowstone

County sheriff’s deputy was on patrol during daylight hours on a county road on the

outskirts of Billings when she saw a pickup legally parked on an unpaved pullout located

along and in plain view of the road. Graham, ¶ 2. Present in the pickup were two adults,

a man and a woman later determined to be common law spouses. Graham, ¶ 2. Because

the deputy did not usually see vehicles parked in that area, she decided to investigate further

to determine whether the couple had mechanical problems. Graham, ¶ 2. As she drove by

on the road, the deputy initially saw the fully clothed couple kissing passionately in the

pickup and then saw the female attempt “to mount” the male. Graham, ¶ 3. She then

circled back, activated her emergency top lights, pulled in behind the parked pickup, and

approached on foot to “discourage . . . their inappropriate behavior” and “move them

along.” Graham, ¶ 3 (internal quotation marks omitted). Though the deputy “surmised”



6
   Section 46-5-403, MCA, is a 1991 codification of Fourth Amendment principles enunciated in
United States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 1575 (1985) (police must act diligently
to quickly confirm or dispel predicate suspicion for an investigative stop); Florida v. Royer, 460
U.S. 491, 500, 103 S. Ct. 1319, 1325-26 (1983) (duration and scope of investigative stop “must be
carefully tailored to its underlying justification” and may not exceed what is reasonably “necessary
to effectuate” its initial purpose); and Terry, 392 U.S. at 17-20, 88 S. Ct. at 1878-79 (warrantless
investigative seizure and search reasonable only if based on particularized suspicion of criminal
activity and the ensuing investigative detention is “strictly tied” and “reasonably related in scope”
to the initial justification). See also Carlson, ¶ 21 (citing § 46-5-403, MCA, and Royer, 460 U.S.
at 500, 103 S. Ct. at 1325).

                                                 16
that various violations of law could possibly occur in that scenario, “she observed none”

prior to stopping and approaching the vehicle on foot. Graham, ¶ 16.

¶25     As she walked up to the vehicle, the deputy observed “a cold sweaty beer can outside

the driver’s door” and then saw through the window for the first time that the female’s

“pants were undone” and that the male’s pants “were partly pulled down his legs, with his

waistband underneath his bottom.” Graham, ¶ 4. When the deputy asked what they were

doing, the couple replied that they were “just kissing.” Graham, ¶ 4. The deputy then

asked them for identification and, while speaking with them, noticed an alcoholic odor on

the male’s breath. Graham, ¶ 4. Further questioning led to field sobriety testing and,

ultimately, the male’s arrest and conviction for driving under the influence. Graham, ¶ 4.

¶26     On appeal, the State argued that the deputy had sufficient particularized suspicion

to justify the initial stop based on the possibility of “indecent exposure, sexual assault,

sexual intercourse without consent, or sexual abuse of a child.” Graham, ¶¶ 18-19. Noting

that the deputy saw no particularized indication of any of those offenses, we affirmed the

district court’s ruling that she lacked sufficient particularized suspicion of criminal activity

to justify the stop. Graham, ¶¶ 16-19. We noted that “[a]ny particularized suspicion” arose

“only after” the deputy seized the couple and that any post-seizure observations “could not

form a basis for particularized suspicion justifying the seizure in the first place.” Graham,

¶ 20.

¶27     In Kaufman, after observing a vehicle with unequal tail light brightness at night on

Interstate 90, a sheriff’s deputy stopped the vehicle on suspicion of violation of


                                              17
§ 61-9-204(1), MCA (requirement for two properly functioning tail lights). Kaufman,

¶¶ 6-7 and 16-19. The deputy had earlier followed the vehicle for several miles after

observing a number of other suspicious circumstances.7 Kaufman, ¶¶ 6-7. However, as

the vehicle pulled over, the deputy saw that its tail and brake lights were in fact functioning

properly. Kaufman, ¶ 8. Instead of breaking off the encounter, the officer completed the

stop, approached on foot, and advised the driver that he stopped him for what appeared to

an equipment violation. Kaufman, ¶ 8. The deputy then advised that it was no “big deal”

but recommended that the driver have his brake lights checked. Kaufman, ¶ 8. The deputy

then asked for the driver’s license and vehicle registration, questioned the driver “about the

car’s ownership,” and inquired about the occupants’ “reasons for traveling on the Interstate

that night.” Kaufman, ¶ 8. The extended detention and questioning ultimately led to the

discovery of two ounces of methamphetamine and the occupants’ arrests. Kaufman, ¶ 2.

On appeal, we reversed the district court’s denial of the defendants’ motions to suppress,

holding that any reasonable suspicion that the officer “may have had that the lighting

system was malfunctioning” completely evaporated “prior to the actual stop.” Kaufman,

¶ 20. We concluded that, since the officer no longer had any particularized suspicion of

criminal activity “to justify further investigation by the time” he stopped the vehicle, no



7
  The officer testified that he first became suspicious when he earlier saw that the occupants were
20-30 years old, ran a vehicle records check that indicated that the registered owner was a 74-year-
old man, and saw one of the occupants conspicuously refused to make eye contact with him when
he looked directly at her as he drove by. Kaufman, ¶ 5. While subsequently following the vehicle
for several miles, he further observed it moving at a slow rate of speed, swerve over the fog line,
and drive on the painted center line. Kaufman, ¶ 6.

                                                18
legal basis existed for further detention and questioning about its ownership or the

occupants’ reasons for being on the road that night. 8 Kaufman, ¶ 25.

¶28    The foundation of the State’s cascading theory of particularized suspicion is

similarly unsound here. Before the four uniformed officers appeared out of the dark and

seized Hoover and his companion, they had no more than an undeveloped generalized

suspicion or hunch of a possible break-in or illegal drug activity. As in Kaufman and

Graham, even that initial generalized suspicion instantly evaporated the moment they

shined a flashlight through the open passenger window and clearly saw exactly what

Hoover and his companion were doing and no particularized indication of a possible

break-in or illegal drug use. With their initial asserted justification gone, the officers

neither saw nor articulated any particularized indication of anything other than lawful

sexual activity between consenting adults. Reasonable or not, the officers’ belief that

adults generally do not engage in consensual sexual activity in vehicles falls far short of

what is necessary for an objectively reasonable, particularized suspicion of illegal sexual

activity. As in Graham and Kaufman, the officers’ post-seizure observations could not in

any event form a lawful basis for particularized suspicion justifying the stop in the first

place. Based on our independent review of the record, we hold that the Justice Court’s

ultimate finding that the officers had an objectively reasonable particularized suspicion that




8
   See similarly, Martinez, ¶ 74 (lawful duration and scope of an investigative stop based on
suspicion of expired temporary registration sticker ended when officer stopped and walk-up to
vehicle, read the sticker, and saw that temporary registration was still valid prior to contacting
occupants).
                                               19
Hoover was engaged, or about to engage in, a storage unit break-in, illegal drug use, or

nonconsensual sexual activity was clearly erroneous as a matter of fact.

                                     CONCLUSION

¶29    The Fourth Amendment “protects people, not places.” Terry, 392 U.S. at 9, 88 S. Ct.

at 1873 (quoting Katz, 389 U.S. at 351, 88 S. Ct. at 511). The right to be free from

unreasonable searches and seizures is an “inestimable right of personal security [that]

belongs as much to the citizen on the streets of our cities as to the homeowner closeted in

his study to dispose of his secret affairs.” Terry, 392 U.S. at 8-9, 88 S. Ct. at 1873. The

Fourth Amendment protects people “from unreasonable governmental intrusion” wherever

they may have a “reasonable expectation of privacy.” Terry, 392 U.S. at 9, 88 S. Ct. at

1873 (citing Katz, 389 U.S. at 351, 88 S. Ct. at 511); accord Reynolds, 272 Mont. at 49,

899 P.2d at 542-43. Montana Constitution Article II, sections 10 and 11, even more

explicitly protect Montanans from government intrusion wherever they have a reasonable

expectation of privacy. E.g. Hardaway, ¶¶ 31-34 (Mont. Const. art. II, section 10, right to

privacy “is the cornerstone” of the section 11 right to be free from unreasonable searches

and seizures). “No right is held more sacred” or should be more carefully guarded “than

the right of every individual to the possession and control of his own person, free from all

[government] restraint or interference” except as permitted by “clear and unquestionable

authority of law.” Terry, 392 U.S. at 8-9, 88 S. Ct. at 1873.

¶30    The State does not contest on appeal that Hoover had a reasonable expectation of

privacy or that the officers constitutionally seized him when they converged on his pickup


                                            20
from the dark, shined a flashlight into the open passenger side window, and began asking

questions. On the limited evidentiary record in this case, the officers had no more than a

generalized suspicion that Hoover might possibly be engaged, or about to engage, in

criminal activity. In the manifest absence of more specific and articulable facts and law

enforcement inferences, the Justice Court erroneously concluded that the officers had an

objectively reasonable particularized suspicion that Hoover had committed, was

committing, or was about to commit a criminal offense. We hold that the Justice Court

erroneously denied Hoover’s motion to suppress evidence obtained subsequent to his

seizure. Hoover’s conviction on the offense of Criminal Possession of Drug Paraphernalia,

a misdemeanor in violation of § 45-10-103, MCA, is hereby reversed.


                                                 /S/ DIRK M. SANDEFUR


We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA


Justice Laurie McKinnon, dissenting.

¶31    I dissent from the Court’s decision that there was no particularized suspicion to

approach Hoover’s vehicle and conduct an investigatory stop. In my opinion, Rodriguez

is not distinguishable from the instant case and the Court’s reliance on Graham, where

police did not suspect unlawful activity, and Kaufman, which involved an extended

detention, is misplaced. Pivotal to the analysis is Hoover’s concession that he was “seized”

                                            21
by law enforcement upon their initial contact.1 Thus, the only issue to resolve is whether

police had particularized suspicion of unlawful activity—here, breaking and entering

storage units and/or illegal drug use—at the time police announced their presence to

Hoover.

¶32    The Court does not conclude that any of the Justice Court’s findings of fact are

clearly erroneous. Those facts, which are undisputed, establish that Sgt. Meredith is a well-

seasoned police officer with 18 years of patrol duty. On August 2, 2013, at around

midnight, he was on a swing shift and patrolling area businesses and parking lots in the

vicinity of AAA Mini Storage. The storage compartments are arranged in rows and do not

have security, a gate, or a fence. Also, there are no immediate businesses or homes around

AAA Mini Storage and the storage complex is otherwise remote and has no lighting.

During the course of Sgt. Meredith’s experience and duties as a patrol officer, he is aware

that storage units in the area are frequently broken into and their contents stolen. Sgt.

Meredith is also aware that illegal drug activity takes place in vehicles parked in remote

areas, at night.

¶33    On the night in question, Sgt. Meredith observed a truck parked between rows of

the storage units at AAA Mini Storage with the vehicle’s lights off. Based on the truck’s

location in relation to the storage units, the time of night, and his knowledge of criminal

activity occurring at storage units, Sgt. Meredith called for backup in order to investigate



1
  Hence, the District Court, the Honorable Katherine R. Curtis presiding, did not review any facts
following Sgt. Meredith announcing his presence and shining his flashlight into the cab of the
truck.
                                               22
his suspicions that unlawful criminal activity might be taking place, i.e. breaking and

entering of the storage units. Sgt. Meredith and other officers approached Hoover’s truck

on foot. Approximately 15 yards away from the vehicle, Sgt. Meredith discerned that there

were two occupants in the truck who were seated apart: one in the driver’s seat and the

other in the passenger’s seat. The driver was moving his hands and was “concentrating”

on something in his lap or in the area of the steering wheel. Sgt. Meredith testified he was

now concerned the driver was “loading up” a marijuana bowl or a syringe to inject meth or

another illegal drug. Sgt. Meredith announced his presence and shined his flashlight into

the cab of the vehicle. Hoover was in the driver’s seat and a female was in the passenger’s

seat. This is the point police made initial contact with Hoover’s truck. Accordingly, due

to Hoover’s concession, any other information gathered by police following this initial

contact is irrelevant and not appropriate for our analysis.

¶34    The above facts are not in dispute and the analysis is straightforward. Sgt. Meredith

is authorized to conduct an investigatory stop if he has (1) objective data from which an

experienced officer can make certain inferences; and (2) a resulting particularized

suspicion that the occupant of the vehicle is engaged in wrongdoing. Rodriguez, ¶ 17; State

v. Hilgendorf, 2009 MT 158, ¶ 13, 350 Mont. 412, 208 P.3d 401. “Whether particularized

suspicion exists is evaluated under the totality of the circumstances confronting the officer

at the time of the stop, and requires consideration of the quantity or content of the

information available to the officer and the quality or degree of reliability of that

information.” City of Missoula v. Moore, 2011 MT 61, ¶ 16, 360 Mont. 22, 251 P.3d 679.


                                             23
From this data, “a trained officer draws inferences and makes deductions--inferences and

deductions that might well elude an untrained person.” Cortez, 449 U.S. at 418, 101 S. Ct.

at 695.

¶35       In Rodriguez, the following facts were set forth by this Court and found to establish

particularized suspicion:

                 Deputy Stineford observed Rodriguez’s vehicle located outside
          Kurt’s Polaris at 11:30 p.m., well after the business had closed. He testified
          that he observed Rodriguez’s vehicle, with its headlights off, rolling slowly
          through the parking lot of a business that contained a significant amount of
          expensive inventory. Deputy Stineford testified that his experience taught
          him that burglaries of businesses occur at night and that no vehicles were
          typically present in the business’s parking lot at night. These objective and
          articulable observations reasonably led Deputy Stineford to possess the
          requisite particularized suspicion that Rodriguez was casing Kurt’s Polaris
          to commit burglary. The District Court did not err in concluding that Deputy
          Stineford was justified in conducting an investigative stop of Rodriguez.

Rodriguez, ¶ 19.        The Court attempts to distinguish Rodriguez by observing that

Rodriguez’s vehicle was “creeping” along and casing a business. Opinion, ¶ 21. The Court

states that, here, “the couple” parked in a secluded spot to “engage in consensual intimacy

on a warm summer night.” Opinion, ¶ 2. The Court’s attempt to distinguish Rodriguez,

however, cannot be supported by either the facts here or in Rodriguez.

¶36       In the instant proceeding, the objective data consists of the following: Hoover

purposely secluded and isolated his vehicle; he turned off his headlights and any other

vehicle illumination in order to avoid detection; he parked between rows of the storage

units to further seclude himself and avoid detection; it was dark and late at night; Hoover

chose to isolate himself in a private business area where people pay to store their


                                               24
belongings; and Sgt. Meredith testified that, in his experience, breaking into storage units

is a frequent occurrence in the area. In addition, Sgt. Meredith testified that as he

approached Hoover’s vehicle he observed movement consistent with the ingestion of

illegal drugs, either loading a pipe or filling a syringe. Based on this objective data, an

experienced officer such as Sgt. Meredith could reasonably infer that Hoover was involved

in breaking into a storage unit or ingesting illegal drugs. I respectfully disagree with the

Court’s conclusion that Rodriguez is “not sufficiently analogous” and is “factually

distinguishable here.” Opinion, ¶ 22. The Court appears to distinguish Rodriguez because

the vehicle was “creeping” along. The Court fails, however, to consider the totality of the

circumstances and the reasonable inferences that Sgt. Meredith, a trained police officer,

may draw.

¶37    In Hilgendorf we found the following facts were sufficient to establish

particularized suspicion:

               Hilgendorf does not contest that his car was parked near a business at
       2:00 a.m., when all of the area businesses were closed, that the area was
       known for its thefts from and burglaries of the businesses, or that he quickly
       left upon the second approach of the police vehicle. . . . Romero also
       observed that both Hilgendorf and his passenger were moving around inside
       the vehicle as if trying to conceal something in the vehicle. Denying that he
       initiated the stop for a traffic violation, Romero testified the stop was made
       because the occupants “were busy moving around inside the vehicle” and
       that “the actions they were taking, a normal person wouldn’t be doing,”
       leading to his conclusion that “I felt there could be something going on, like
       somebody committing a theft” and his decision to initiate a stop. These
       observations, combined with what Romero had initially observed, were
       objective data from which Romero could make inferences about the
       possibility of a crime and come to a resulting suspicion that a theft could be
       in progress.


                                            25
Hilgendorf, ¶ 18. Our analysis in Rodriguez is consistent with Hilgendorf and stands in

stark contrast to the Court’s conclusion here that there was only “an undeveloped,

generalized suspicion of criminal activity.” Opinion, ¶ 19. Our analysis fails particularly

when we draw such a conclusion after we have noted that “[u]nder these circumstances

and based on his extensive law enforcement experience, Meredith certainly articulated a

reasonable suspicion that an illegal break-in might possibly be in progress, thus warranting

additional investigation in the performance of his duty.” Opinion, ¶ 19. By approaching

the parked vehicle, Sgt. Meredith was, in fact, conducting that additional investigation.

That Sgt. Meredith’s initial suspicions were subsequently dispelled through further

investigation does not affect the objective data and reasonable inferences existing

immediately prior to Sgt. Meredith’s contact with Hoover. The Court appears to have

difficulty with these important distinctions.

¶38    As another example, in Brown v. State this Court found there was particularized

suspicion to justify an investigatory stop based on the following:

              At approximately 2:51 a.m. on June 10, 2007, Hill County Deputy
       Sheriff Stephen Martin observed a white Ford pickup “barely moving” along
       a public roadway with its lights on. As Deputy Martin watched, the pickup
       suddenly pulled over, came to a stop and shut off its lights. Concerned that
       the occupants of the pickup were experiencing problems, Martin pulled in
       behind it, exited his vehicle and approached the driver’s side of the pickup.
              Brown, who was in the drivers’ seat, was the only person in the
       pickup. Deputy Martin noted that no structures or other persons were in the
       immediate vicinity. When Brown rolled down his window, Deputy Martin
       immediately detected the odor of alcohol.

2009 MT 64, ¶¶ 3-4, 349 Mont. 408, 203 P.3d 842 (footnote omitted). We explained in

Brown that “[t]he question is not whether any one of [defendant’s] driving aberrations was

                                                26
itself ‘illegal’ but rather, whether [the officer] could point to specific and articulable fact

which, taken together with reasonable inferences from those facts, reasonably warrant the

intrusion.” Brown, ¶ 22 (citing Clark v. State ex rel. Driver Improvement Bureau, 2005

MT 65, ¶ 9, 326 Mont. 278, 103 P.3d 244). Further, “a peace officer’s experience and

training may be a factor in determining what sort of reasonable inferences he or she is

entitled to make from his or her objective observations . . . .” Brown, ¶ 20. Here, although

no single fact standing by itself established particularized suspicion of wrongdoing, Sgt.

Meredith’s considerable experience in patrol and awareness of burglaries of area storage

units—in conjunction with Hoover’s efforts to seclude himself late at night in a storage

unit area—established particularized suspicion for further investigation.

¶39    Lastly, the Court attempts to draw support from Graham and Kaufman. In Graham,

however, our decision turned on the deputy’s failure to articulate any criminal activity for

which the deputy was suspicious. In fact, we explained “it bears repeating that Officer Juhl

herself did not approach the vehicle because she believed a crime was being committed, as

§ 46-5-401(1), MCA requires; she did so because she thought their behavior was

‘inappropriate’ and she wanted to ‘move them along.’” Graham, ¶ 22. Noting that “the

Legislature has not yet outlawed the type of conduct in which Graham and Strauser were

engaging[,]” we held that “[i]t is not this Court’s role to inject particularized suspicion

when the officer, by her own admission, did not have it.” Graham, ¶¶ 21-22. In contrast

to Graham, Sgt. Meredith believed that breaking and entering storage units and/or illegal

drug use—both unlawful activities—were potentially occurring. The Court confuses the


                                              27
Graham extended detention analysis with the events occurring here. See Opinion, ¶ 28.

Our statement that “[w]ith their initial asserted justification gone, the officers neither saw

nor articulated any particularized indication of anything other than lawful sexual activity

between consenting adults[]” demonstrates the confusion in our analysis, in light of

Hoover’s concession that he was seized once police initiated contact with his vehicle.

Opinion, ¶ 28. What the officers learned after their initial contact with Hoover’s vehicle is

irrelevant to the analysis.

¶40    Similarly, in Kaufman, one tail lamp on Kaufman’s vehicle emitted a significantly

brighter light than the other. Initially, the deputy investigating believed the driver either

might be applying the brakes and gas simultaneously or experiencing a lighting

malfunction. However, after the officer signaled the driver to pull over, the officer noticed

that the turn signals of the Kaufman’s vehicle were, in fact, operating properly and both

stop lamps were fully functional. We held that “any suspicion [the officer] may have had

that the lighting system was malfunctioning was quelled completely prior to the actual

stop.” Kaufman, ¶ 20. Thus, law enforcement in Kaufman no longer suspected Kaufman

of violating any traffic safety laws by the time Kaufman was pulled over on the highway.

In the instant proceeding, however, Sgt. Meredith had not dispelled his suspicions of

Hoover’s involvement in wrongdoing prior to his contact with Hoover. Police did not

dispel their suspicions of criminal activity—breaking and entering and/or using drugs—

until after they had initiated contact. Hoover’s concession that a seizure occurred at the




                                             28
point of initial contact with police rendered any subsequent de-escalation of suspicious

circumstances inappropriate for consideration by the Court.

¶41    In my opinion, the Court’s description of the objective data Sgt. Meredith relied

upon to draw reasonable inferences of criminal activity as “only” a “generalized” suspicion

of wrongdoing does the citizens of this State a disservice, let alone being inconsistent with

this Court’s precedent. Citizens rely on the expertise of police to follow up on their

particularized suspicions with investigations which dispel their suspicions and maintain the

security of their communities. I disagree with the Court’s conclusion that these facts and

the inferences drawn therefrom did not warrant further investigation by police; that is,

approaching the vehicle to inquire of Hoover what he was doing. This is exactly what Sgt.

Meredith did.

¶42    I respectfully dissent from the Court’s decision concluding otherwise.



                                                  /S/ LAURIE McKINNON




                                             29
