                                                                                           February 9 2016


                                          DA 14-0544
                                                                                          Case Number: DA 14-0544

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2016 MT 30



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

DEAN JASON BALLINGER,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DC 13-0816
                        Honorable Russell C. Fagg, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Haley Connell, Assistant Appellate Defender; Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
                        Assistant Attorney General; Helena, Montana

                        Scott Twito, Yellowstone County Attorney, Juli Pierce, Deputy County
                        Attorney; Billings, Montana




                                                    Submitted on Briefs: December 29, 2015
                                                               Decided: February 9, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1    Dean Jason Ballinger appeals the order of the Thirteenth Judicial District Court,

Yellowstone County, which denied his motions to suppress evidence and to dismiss the

charge of felony criminal possession of dangerous drugs. Ballinger later was convicted

of the charge and sentenced to five years at Montana State Prison. We affirm the District

Court’s denial of Ballinger’s motions.

¶2    The issue on appeal is:

      Whether the District Court correctly found that the police officer had
      particularized suspicion to conduct an investigatory stop of Ballinger.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3    On September 28, 2013, at approximately 9:30 p.m., Cindy Trumbo called the

Billings Police Department’s dispatch to report that the front door of a house across the

street was open. She believed the address was 211 South 33rd Street. Trumbo reported

that she saw people moving out of the house earlier in the day, but no one had been

around the house for some time.

¶4    Billings Police Officer Grant Morrison responded to the call at 10:13 p.m. When

Officer Morrison arrived at 211 South 33rd Street, he found the front door open, the

lights on, and no one around. Officer Morrison parked his patrol vehicle on the north

side of the house. He then saw a man and a woman, later identified as Ballinger and Julie

Ramirez, get out of a vehicle across the street. Officer Morrison testified that “[t]hey

were walking straight towards” 211 South 33rd Street.




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¶5     As the man and the woman stepped on the curb, Officer Morrison testified that he

“intercepted” them. Using his flashlight to see better, Officer Morrison stated that he was

responding to a call regarding a vacant residence with a door open. He asked them where

they were going, and Ramirez stated that they were going to meet people hanging out on

the sidewalk. Officer Morrison did not see anyone else on the sidewalk in the area.

Ramirez then said they were going from 622 South 31st Street (later identified as

Ballinger’s home) to 522 South 33rd Street (Ramirez’s mother’s home).              Officer

Morrison testified that, at 211 South 33rd Street, Ballinger and Ramirez would be four

blocks out of their way if they were going from Ballinger’s home to Ramirez’s mother’s

home. Officer Morrison was suspicious of Ramirez’s and Ballinger’s presence in the

area, and he suspected Ramirez was lying to him.

¶6     Officer Morrison asked Ballinger for identification. Ballinger stated, “I just live

right down the street.” Officer Morrison responded, “I need to identify you, and this is

suspicious to me.    And this is what I’m investigating, so . . . I want to see ID.”

Ballinger’s Montana Identification Card confirmed that his address was 622 South

31st Street. Officer Morrison ran a warrant check on Ballinger. He found a probation

violation warrant, and he detained Ballinger while he validated the warrant. While

patting down Ballinger, Officer Morrison felt numerous unknown items in Ballinger’s

pants pockets.    Because no items felt like a weapon, nothing was retrieved from

Ballinger’s pockets. Officer Morrison also confirmed that neither Ballinger nor Ramirez

lived at 211 South 33rd Street.



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¶7    Officer Morrison arrested Ballinger. Ramirez was allowed to leave. Officer

Morrison then left Ballinger with Officer Miller, who had arrived as back up. Officer

Morrison approached 211 South 33rd Street. He found the lights on and the front door

open. Officer Morrison knocked on the door, called out, and rang the doorbell, but

received no response. Officer Morrison shut and locked the front door.

¶8    Ballinger was transported to the Yellowstone County Detention Facility. After

Ballinger was removed from the patrol vehicle and turned over to the Detention Facility

staff, Officer Morrison searched his patrol vehicle. Officer Morrison found a small

plastic bag containing a white crystal substance in the back seat. He identified the

substance as methamphetamine. The drugs were not present when Officer Morrison

started his shift at 9:00 p.m., and no other person had ridden in the back seat of the

vehicle that night. On October 7, 2013, Ballinger was charged by information with

criminal possession of dangerous drugs, a felony.

¶9    Ballinger moved to suppress the evidence of the drugs, arguing that Officer

Morrison did not have particularized suspicion to conduct a stop of Ballinger or Ramirez.

Ballinger then argued that the case should be dismissed for lack of evidence.         On

December 18, 2013, the District Court held a hearing on Ballinger’s motions to suppress

and dismiss.

¶10   The District Court denied Ballinger’s motions, finding that Officer Morrison had

the required particularized suspicion to make the investigatory stop of Ballinger and

Ramirez. The District Court based its finding on the suspicious nature of the call, the

condition of the home at 211 South 33rd Street, and Officer Morrison’s observation of

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Ramirez and Ballinger walking directly towards the house. The court also considered

facts gathered after Officer Morrison began talking with Ballinger and Ramirez,

including Ramirez’s statement that they were going to see people on the sidewalk when

no one else was around and Ramirez’s explanation that they were traveling between two

homes when they were four blocks out of their way.

¶11    On March 10, 2014, a jury found Ballinger guilty of criminal possession of

dangerous drugs, a felony. Ballinger was sentenced to five years at Montana State

Prison, and he was designated a persistent felony offender. Ballinger appeals.

                              STANDARDS OF REVIEW

¶12    We review the grant or denial of a motion to suppress to determine whether the

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

interpreted and applied the law to those facts. State v. Wagner, 2013 MT 159, ¶ 9,

370 Mont. 381, 303 P.3d 285.         A district court’s determination that particularized

suspicion exists is a question of fact, which we review for clear error. Wagner, ¶ 9.

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

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

leaves us with a definite and firm conviction that a mistake has been made. Wagner, ¶ 9.

¶13    We review the denial of a motion to dismiss in criminal cases de novo to

determine whether the district court’s conclusions of law are correct. State v. Seiffert,

2010 MT 169, ¶ 10, 357 Mont. 188, 237 P.3d 669.




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                                     DISCUSSION

¶14   Whether the District Court correctly found that the police officer had
      particularized suspicion to conduct an investigatory stop of Ballinger.

¶15   Citizens are protected from unreasonable searches and seizures by government

officials under both the Fourth Amendment of the United States Constitution and

Article II, Section 11 of the Montana Constitution. Montanans are afforded broader

protection from unreasonable searches and seizures under the express right to privacy in

Article II, Section 10 of the Montana Constitution. State v. Bullock, 272 Mont. 361, 384,

901 P.2d 61, 75 (1995).

¶16   With limited exceptions, police officers must obtain a warrant before seizing an

individual under both the United States Constitution and the Montana Constitution. State

v. Graham, 2007 MT 358, ¶ 13, 340 Mont. 366, 175 P.3d 885. One exception to the

warrant requirement is the investigatory or “Terry stop,” which allows “a brief seizure of

the individual that must be supported by a reasonable [or particularized] suspicion of

criminal activity.” State v. Lovegren, 2002 MT 153, ¶ 15, 310 Mont. 358, 51 P.3d 471

(citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)). Such a stop “may not last

longer than necessary to effectuate the purpose of the stop.” Section 46-5-403, MCA.

¶17   Ballinger argues that he was seized when Officer Morrison stopped him with a

flashlight and began asking him questions. The District Court did not make an explicit

finding as to when Officer Morrison seized Ballinger. However, it is clear from the

District Court’s order denying Ballinger’s motion to suppress that the court found

particularized suspicion by relying upon all of the information Officer Morrison obtained


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before asking Ballinger for his identification. Implicit in the District Court’s analysis,

therefore, is that it found no seizure had occurred until Officer Morrison asked Ballinger

for his identification.

¶18    “‘[N]ot all personal intercourse between policemen and citizens involves

‘seizures’ of persons. Only when the 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.’” State v. Wilkins, 2009 MT 99, ¶ 8, 350 Mont. 96, 205 P.3d 795

(quoting Terry, 392 U.S. at 19 n.16, 88 S. Ct. at 1879 n.16). To determine if a seizure has

occurred, this Court applies the same test under both the United States and Montana

Constitutions. State v. Strom, 2014 MT 234, ¶ 10, 376 Mont. 277, 333 P.3d 218. “‘[A]

person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of

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

believed that he was not free to leave.’” Wilkins, ¶ 9 (quoting U.S. v. Mendenhall,

446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980)). Circumstances which may indicate

that a person has been seized include the presence of many officers, a display of weapons

by an officer, physical touching of the person by the officer, or the officer’s use of

language or tone indicating compliance with the officer’s request is required. Strom, ¶ 10

(citing Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877). However, these factors are not

exhaustive. Strom, ¶ 10.

¶19    The record in this case does not support Ballinger’s contention that a seizure

occurred before Officer Morrison asked for his identification. Officer Morrison first

“intercepted” Ballinger and Ramirez as they were walking on a public street towards the

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vacant house that he was investigating. In State v. Dupree, 2015 MT 103, 378 Mont.

499, 346 P.3d 1114, this Court held that the defendant was not seized when officers

approached her in a public place of her choosing, identified themselves as law

enforcement officers, and told her about a tip they had received that indicated that she

would be carrying drugs. Dupree, ¶ 15. We further held the defendant was not seized

when the officers asked the defendant if she would sign a consent form for a search or

when they asked her to move to another room. Dupree, ¶ 15.

¶20    Here, the parties were on a public street, and Officer Morrison told Ballinger and

Ramirez that he was investigating a suspicious call regarding a vacant house with an open

door. Wanting to know if they were connected to the vacant house, he asked them where

they were going. Officer Morrison made no show of force or authority; he merely used a

flashlight to see better in the dark. Officer Morrison did not ask Ballinger or Ramirez to

do anything until he requested their identification and stated, “I need to identify you, and

this is suspicious to me. And this is what I’m investigating, so . . . I want to see ID.” The

State concedes that at this point the encounter became a seizure because Ballinger and

Ramirez would not have felt free to stop the encounter and walk away.

¶21    Regardless of when he was seized, Ballinger contends that Officer Morrison did

not have particularized suspicion for the stop. A police 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. A police officer has particularized suspicion to

conduct an investigatory stop when the officer has “(1) objective data and articulable

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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 MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842.

When reviewing whether a police officer had particularized suspicion, a court must “look

to the facts and to the totality of the circumstances of each case.” Brown, ¶ 20.

¶22    Before Officer Morrison requested Ballinger’s identification, Officer Morrison

had objective data and articulable facts from which he could reasonably infer and suspect

that Ballinger was involved in criminal activity. Just as Officer Morrison was responding

to a call regarding a vacant house with an open door at 211 South 33rd Street, Ballinger

and Ramirez arrived at the same house, and Officer Morrison observed them walk

directly towards the house. Officer Morrison stopped Ballinger and Ramirez and told

them he was investigating a vacant house with an open door. When asked where they

were going, Ramirez stated that they were meeting people on the sidewalk, but Officer

Morrison did not observe any other people in the vicinity. Ramirez also explained that

they were travelling between two homes that Officer Morrison observed would not

normally take them past the vacant house they were walking directly towards.

¶23    Based on the totality of the facts and circumstances of this case, Officer Morrison

had a particularized suspicion that justified an investigatory stop of Ballinger. The

evidence collected as a result of the investigatory stop and validly executed arrest warrant

was admissible at trial.    The District Court correctly denied Ballinger’s motions to

suppress the evidence and dismiss the charge.



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                                    CONCLUSION

¶24   The District Court correctly found that Officer Morrison had particularized

suspicion to conduct an investigatory stop of Ballinger. Therefore, Ballinger’s motions to

suppress the evidence gathered as a result of the stop and to dismiss the charge of

criminal possession of dangerous drugs for lack of evidence were correctly denied.

Affirmed.



                                                /S/ JAMES JEREMIAH SHEA

We Concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ JIM RICE




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