                                                                                         September 2 2014


                                          DA 13-0323

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2014 MT 234



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

CHELSEA LYNN STROM,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Second Judicial District,
                        In and For the County of Butte/Silver Bow, Cause No. DC 12-07
                        Honorable Kurt Krueger, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender; Nicholas Domitrovich,
                        Assistant Appellate Defender; Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Bureau
                        Chief, Appellate Services Bureau; Helena, Montana

                        Eileen Joyce, Silver Bow County Attorney; Butte, Montana



                                                    Submitted on Briefs: July 16, 2014
                                                               Decided: September 2, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Defendant Chelsea Strom (Strom) appeals the order of the Second Judicial District

Court, Silver Bow County, denying her motion to suppress evidence based upon an

unlawful seizure.

¶2     We reverse and address the following issue:

¶3     Did the District Court err by denying Defendant Strom’s motion to suppress on
the ground there had not been a seizure requiring particularized suspicion?

                    FACTUAL AND PROCEDURAL BACKGROUND

¶4     On December 26, 2011, Strom was picked up by a 16-year-old friend, S.J., to go

for a drive. S.J. was driving a van borrowed from a friend. The pair parked at Stodden

Park to visit at approximately 9:40 a.m. Shortly after they arrived at the park, Butte

Police Sgt. Ed Heard drove by on routine patrol. Sgt. Heard later explained that due to

vandalism of the Korean War Memorial in the park, he tried to patrol the park at least

once during his shift. He noticed the van, parked and not running, with two occupants

inside. It was the only vehicle in the lot and though the park was open to the public at

that time, Sgt. Heard believed it to be suspicious. He pulled up behind the van and

parked his patrol car but did not activate his emergency lights. Based on the layout of the

parking lot, and the fact that no other vehicles were in the lot, the van was not physically

prevented from leaving the lot despite Sgt. Heard being parked behind it.

¶5     After parking behind the van, Sgt. Heard left his patrol car and approached the

driver’s side of the van. Sgt. Heard testified that as he approached the van he noticed

“how young [S.J.] was” so he asked for her driver’s license. S.J. informed Sgt. Heard



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that she didn’t have a driver’s license and handed him her school ID. Sgt. Heard then

asked Strom for identification and Strom provided an identification card. Sgt. Heard

instructed S.J. and Strom to wait and took both IDs to his patrol car to check the driver’s

status and for warrants. He learned that S.J. did not have a driver’s license and Strom had

a warrant from Stillwater County for failure to appear. Sgt. Heard reapproached the

vehicle from the passenger side, instructed Strom to step out of the vehicle, and placed

her under arrest based on the outstanding warrant. He handed S.J. back her school ID

and informed her that she could not drive. S.J. informed Sgt. Heard that she had been in

touch with the vehicle’s owner and he was on his way to pick up the van.

¶6     While being held in a cell at the detention center, Strom presented a detention

officer with a baggie filled with a white substance and stated it was “crystal meth.” The

substance tested positive for methamphetamine, and Strom was charged with one count

of criminal possession of dangerous drugs, a felony, on January 26, 2012.

¶7     Strom moved to suppress the evidence and statements pursuant to §§ 46-13-301

and -302, MCA. She argued that Sgt. Heard lacked particularized suspicion to perform

an investigatory stop when he asked her and S.J. for identification, and that any evidence

or statement obtained as a result of the illegal stop must be suppressed. The State

countered that no investigatory stop had occurred and that Sgt. Heard had discovered the

warrant after a voluntary conversation with citizens who were free to leave at any time.

The District Court denied Strom’s motion, finding that there had not been a seizure for

which particularized suspicion was required. Strom subsequently pled guilty pursuant to




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a plea agreement, reserving her right to appeal the court’s denial of her motion to

suppress.

                              STANDARD OF REVIEW

¶8    We review a denial of a motion to suppress to determine whether the lower court’s

findings of fact were clearly erroneous and whether it correctly applied the law to those

findings. State v. Graham, 2007 MT 358, ¶ 10, 340 Mont. 366, 175 P.3d 885.

                                    DISCUSSION

¶9     Did the District Court err by denying Defendant Strom’s motion to suppress on
the ground there had not been a seizure requiring particularized suspicion?

¶10   In reviewing Strom’s allegation of an illegal seizure, we must first determine

whether a seizure has occurred.     Both the Fourth Amendment to the United States

Constitution and Article II, Section 11 of the Montana Constitution protect citizens from

unreasonable searches and seizures.     However, we have recognized that “‘not all

personal intercourse between policemen and citizens involves “seizures” of persons.’”

State v. Wilkins, 2009 MT 99, ¶ 8, 350 Mont. 96, 205 P.3d 795 (quoting Terry v. Ohio,

392 U.S. 1, 19-20 n. 16, 88 S. Ct. 1868, 1879 n. 16 (1968)). In determining whether a

seizure has occurred, we apply the same test under both the federal and Montana

constitutions. State v. Case, 2007 MT 161, ¶ 24, 338 Mont. 87, 162 P.3d 849. A person

has been seized if, after viewing all the circumstances surrounding the incident, a

reasonable person would not have believed that he or she was free to leave. Case, ¶ 24.

We adopted this test from the United States Supreme Court’s decision in United States v.

Mendenhall, 446 U.S. 544, 100 S. Ct. 1870 (1980). In Mendenhall, the Supreme Court



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provided examples of circumstances that may indicate a person was seized, including

“the threatening presence of several officers, the display of a weapon by an officer, some

physical touching of the person of the citizen, or the use of language or tone of voice

indicating that compliance with the officer’s request might be compelled.” Mendenhall,

446 U.S. at 554, 100 S. Ct. at 1877. We have repeatedly relied on these factors, often

referred to as the Mendenhall factors, in seizure cases but we have also explained that the

test is an objective one and “is necessarily imprecise and will vary depending on the

setting in which the conduct occurs.” State v. Clayton, 2002 MT 67, ¶¶ 22-23, 309 Mont.

215, 45 P.3d 30. The Mendenhall factors may be helpful in certain cases, but we have

recognized that they are not exhaustive. Wilkins, ¶ 12.

¶11    As a preliminary matter, Strom argues that we should overrule our past cases

utilizing the Mendenhall test. It appears that Strom advocates for a rejection of the

“reasonable person/free to leave standard” in favor of a more subjective test based on the

age and knowledge of the citizen claiming to have been seized. The State counters that

Strom’s request to reject decades of case law in favor of a vague and poorly defined rule

has scant legal support and “no record facts to support her position.” We agree that

rejection of the Mendenhall test is not warranted in this case.

¶12    The District Court agreed with the State’s argument that, under the facts of this

case, no seizure had occurred. The State argues that our holding in Wilkins is controlling.

In Wilkins, an officer was on routine patrol at 1:30 a.m. when he noticed a vehicle with its

lights on parked halfway down a side street next to a salvage yard. The location where

the vehicle was parked was a dark, remote area occupied by mostly industrial businesses


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that were closed at that time. The officer drove past the vehicle and noticed that it was

running. Wilkins, ¶ 2. The officer found the vehicle to be suspicious because it was

unusual for a vehicle to be in the area, running and with its lights on, at that time of night,

and that there had been recent burglaries in the area. The officer was also concerned

about the welfare of the driver because it was a cold night, near or below freezing, and

the vehicle was in an isolated location. The officer approached the vehicle and spoke to

the driver. While speaking with her, the officer noticed the smell of alcohol and that

Wilkins’ speech was slurred.       The officer then conducted a DUI investigation and

arrested Wilkins for DUI. Wilkins, ¶ 3. We upheld the district court’s denial of Wilkins’

motion to suppress, concluding that no seizure had occurred where the officer did not

initiate the stop of the vehicle and did nothing to impede the driver’s liberty by means of

physical force or show of authority, such as activating his emergency lights or shining a

spotlight in the vehicle. The initial contact with Wilkins was a voluntary exchange, and

the later DUI investigation was supported by particularized suspicion gained through this

exchange. Wilkins, ¶¶ 14-15.

¶13    Although there are similarities between this case and Wilkins, distinctions justify a

different result here. Unlike the casual conversation with the driver initiated by the

officer in Wilkins to check on her welfare and the unusual circumstances of the running

and lighted vehicle’s presence in the area at that time of day, Sgt. Heard’s first

communication with both S.J. and Strom, properly parked in a public-use area in broad

daylight, was a demand of them to produce identification. After first obtaining a student

ID from S.J., Sgt. Heard asked Strom if she “had any type of driver’s license or


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identification.” He then took both women’s IDs to his patrol car, instructing them to wait

there, to check driver’s status and warrants. Based on these facts, we conclude that a

reasonable person would not have felt free to leave despite the fact that more compelling

actions were not taken, such as the use of emergency lights, drawing of a weapon, or

parking in such a way as to physically prevent the van from departing, and, therefore,

both women were seized at that time.1

¶14    A peace officer may stop an individual to conduct a brief investigation if the

person or vehicle 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. A peace officer who has lawfully stopped a

person may “request the person’s name and present address and an explanation of the

person’s actions and, if the person is the driver of a vehicle, demand the person’s driver’s

license and the vehicle’s registration and proof of insurance.” Section 46-5-401(2)(a),

MCA.

¶15    To have particularized suspicion for an investigative stop, “the peace officer must

be possessed of: (1) objective data and articulable facts from which he or she 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 offense.” Brown v. State, 2009

       1
          In his testimony, Sgt. Heard briefly mentioned that his intention when first approaching
the van included checking on the welfare of the occupants due to the fact that it was a cold
morning and the vehicle was not running. However, he first testified that he approached the
vehicle because “it was—just looked suspicious to me,” and the dispatch notes indicate that Sgt.
Heard reported that he was checking on “suspicious activity.” The State affirmatively states in
its appellate briefing that it is not relying on the community caretaker doctrine as an alternative
theory.


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MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842. Whether or not particularized suspicion

exists is a question of fact determined by looking at the totality of the circumstances.

Moore v. State, 2002 MT 315, ¶ 10, 313 Mont. 126, 61 P.3d 746. In evaluating the

totality of the circumstances, a court must consider the quality and quantity of the

information available to the officer. State v. Flemings, 2008 MT 229, ¶ 16, 344 Mont.

360, 188 P.3d 1020.

¶16    Sgt. Heard testified that the only reason he asked Strom for her identification was

because S.J. had just informed him that she did not have a driver’s license and he needed

to “see if we could have a licensed driver drive the vehicle.” However, neither an inquiry

from Sgt. Heard nor a statement from the women had been made establishing that Strom

would drive the vehicle, or that she was licensed to drive. To the contrary, it was S.J.’s

intention to contact the van’s owner about retrieving it, which is what she did while Sgt.

Heard was checking the women’s identifications in his car.            Based on the scant

information available to Sgt. Heard at the time, we see no objective data or resulting

suspicion that justified an investigation of Strom.

¶17    Although S.J. is not a defendant, neither was there particularized suspicion to stop

or seize her that could support or properly lead to the subsequent investigation of Strom.

The initial reason for requesting S.J.’s driver’s license was that, on his approach to the

vehicle, Sgt. Heard “noticed how the age—how young [S.J.] was.” This statement is the

only evidence in the record supporting an investigation into the identity and driving status

of S.J. In Montana, a person at least 15 years of age may obtain a license if he or she has

passed a driver’s education course, and a person at least 13 years of age may obtain a


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restricted license in cases of individual hardship. Section 61-5-105(1), MCA. While the

apparent youthfulness of a driver may well constitute particularized suspicion for an

officer to stop and check the driver’s status, that concern was not the reason that Sgt.

Heard stopped and approached the vehicle here. Rather, the stop and the request for

identification was premised on Sgt. Heard’s assessment of suspicious activity, for which

there was no objective data to support.

¶18    We reverse and remand for further proceedings consistent with this Opinion.



                                               /S/ JIM RICE

We Concur:

/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA




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