                                          No. 02-520

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2004 MT 127



STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

MATTHEW DEAN EIXENBERGER,

              Defendant and Appellant.




APPEAL FROM:         District Court of the Eleventh Judicial District,
                     In and For the County of Flathead, Cause No. DC 00-254C,
                     Honorable Stewart E. Stadler, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Mark R. Sullivan, Attorney at Law, Kalispell, Montana
                     Great Falls, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Jennifer Anders, Assistant
                     Attorney General; Ryan M. Archer, Legal Intern, Helena, Montana

                     Edward J. Corrigan, County Attorney, Kalispell, Montana



                                                  Submitted on Briefs: May 29, 2003

                                                             Decided: May 18, 2004

Filed:

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

¶1     Matthew Dean Eixenberger (Eixenberger) was charged with two felony counts of

burglary in violation of § 45-6-204, MCA, in the Eleventh Judicial District, Flathead County.

Eixenberger moved to suppress evidence gained from an investigative stop, but the District

Court denied the motion. Eixenberger then entered an Alford plea to Count I of the

information and reserved his right to appeal the District Court’s denial of his motion to

suppress. Eixenberger now appeals, and we affirm in part and reverse in part.

¶2     We restate the issues on appeal as follows:

¶3     1. Did the District Court err in denying the defendant’s motion to suppress?

¶4     2. Did the District Court err in imposing the restitution condition portion of

Eixenberger’s sentence?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶5     Beginning in July 2000, several casinos were burglarized in the City of Kalispell and

surrounding areas. All of the burglaries had similar characteristics. The glass front door of

each casino had been broken with small round river rocks, creating an opening through

which the burglar would then enter the casino. After entering the premises, the burglar

would pry open the cash boxes of the keno machines with the flat tip of a pry tool, large

screwdriver, or a tire iron, and exit with the cash. In almost every case, all of this was

accomplished in under a minute.

¶6     Detective Greg Burns (Burns) of the Kalispell Police Department (KPD or

department) was assigned to investigate the case. Burns had been an officer with the


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department for twenty-four years, and a detective with special investigative training for three

to four years. While investigating the burglaries, Burns was contacted by Eixenberger’s

former parole officer, Paul Berg (Berg). After learning of the casino burglaries, Berg

decided to notify Burns that Eixenberger was in the area and had been previously convicted

of two casino burglaries. Burns himself was familiar with Eixenberger because Eixenberger

had been a suspect in another Kalispell burglary in 1997.

¶7     Burns investigated Eixenberger and discovered that Eixenberger had recently been

issued two traffic tickets while driving a red Ford Thunderbird, which was registered to an

Adrian Hertz (Hertz). In addition, he learned that Eixenberger and Hertz were good friends;

that they had been involved in various thefts as youths; and that they were probably living

together in Kalispell. After this initial investigation of Eixenberger, officers from the KPD

began monitoring Eixenberger, along with seven or eight other suspects, during late night and

early morning patrol surveillance.

¶8     Shortly after the KPD began monitoring Eixenberger, Patrolman Sean McRae

(McRae), while patrolling the casinos early one morning, identified the Thunderbird and

license plate from a list of potential suspect vehicles at about 2:00 a.m. and followed it until

about 2:10 a.m. McRae ceased trailing the Thunderbird about two hundred yards from the

Montana Grille. At 2:19 a.m., the Montana Grille Casino was burglarized. Due to the

similarity between the Montana Grille burglary and other prior burglaries, and the fact that

the Thunderbird was sighted in the vicinity shortly before the Montana Grille was

burglarized, Eixenberger became a prime suspect.


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¶9     The police increased their early morning patrols of the casinos and their surveillance

of the Thunderbird and Eixenberger. The Thunderbird was spotted cruising the valley

several times, with either Eixenberger or Hertz driving, between two and six o’clock in the

morning, the time period in which the burglaries had occurred. Based on this evidence,

Burns applied for a search warrant, which was issued by Judge Ortley, enabling a tracking

device to be placed on the Thunderbird. However, at approximately 4:00 a.m. on September

14, 2000, before the device was installed, the Best Bet Casino was burglarized.

¶10    Burns was immediately awakened and notified of the Best Bet Casino burglary. He

alerted the KPD and the Flathead County Sheriff’s Department to patrol other casinos and

to watch particularly for the Thunderbird. KPD Patrol Officer Jim Wardinsky (Wardinsky)

was dispatched to the Hertz residence to ascertain whether Eixenberger or the Thunderbird

were there. Wardinsky discovered that neither Eixenberger nor the Thunderbird were

present at the Hertz residence. In addition, Flathead County Deputy Sheriff Art Nelson

(Nelson) was dispatched to Los Caporales in Evergreen, which had suffered a similar break-

in, to conduct surveillance.

¶11    Approximately an hour after the Best Bet Casino was burglarized, the Gold Bar

Casino was burglarized. Wardinsky responded to the break-in and found that it was similar

to the break-in at the Best Bet Casino, but that the interior door had not been breached and

that no money had been taken. Meanwhile, as Nelson was patrolling the Evergreen area, he

encountered the Thunderbird and stopped it. The stop occurred within minutes of the Gold

Bar burglary and within a quarter-mile from the Gold Bar. Nelson testified that he stopped


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the Thunderbird because it was the precise car he was looking for at the request of the KPD.

Nelson called in the stop and Burns was notified. When Burns arrived at the scene of the

stop, he identified two people in the car. Eixenberger was the driver and an unknown

person, who gave his name as Eric but was later determined to be Aaron Diaz, was in the

passenger seat. Burns also observed, in the front passenger area of the car, six round river

rocks and two screwdrivers. Burns further noted that Eixenberger’s clothing matched the

clothing description which KPD Sergeant Brian Fulford (Fulford) had radioed to Burns after

Fulford had viewed the surveillance tapes from the Best Bet Casino burglary earlier that

night.

¶12      Eixenberger consented to a search of the vehicle and officers recovered a screwdriver

with paint on it, glass fragments, and a tire iron. The officers arrested Eixenberger, and he

was charged with two felony counts of burglary in violation of § 45-6-204, MCA. He was

arraigned and pled not guilty to both counts. The State filed a notice of intent to seek

persistent felony offender designation. Eixenberger filed a motion to suppress evidence from

the stop, alleging that the stop was illegal. The District Court denied his motion. The State

then filed a Just notice concerning Eixenberger’s previous crimes, to which Eixenberger

objected by filing a motion in limine to exclude the evidence. The District Court granted his

motion in limine. In March of 2002, Eixenberger entered an Alford plea to Count I of the

information, reserving his right to appeal the District Court’s denial of his motion to

suppress. The State dismissed Count II and withdrew the persistent felony offender notice.

In May, the District Court sentenced Eixenberger to twenty years at Montana State Prison


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with eight years suspended, and ordered restitution in a sum to be determined. Eixenberger

appeals from the denial of his motion to suppress.

                                STANDARD OF REVIEW

¶13    We will not “overturn a District Court’s findings of fact regarding suppression hearing

evidence unless those findings are clearly erroneous.” State v. Hermes (1995), 273 Mont.

446, 449, 904 P.2d 587, 589. Findings of fact are clearly erroneous “if they are not

supported by substantial evidence, the court has misapprehended the effect of the evidence,

or our review of the record convinces us that a mistake has been committed.” State v.

Lacasella, 2002 MT 326, ¶ 10, 313 Mont. 185, ¶ 10, 60 P.3d 975, ¶ 10.

                                       DISCUSSION

                                        ISSUE ONE

¶14    Did the District Court err in denying the defendant’s motion to suppress?

¶15    Although Eixenberger argues that the stop was unlawful because there was

insufficient probable cause, his authorities and argument indicate he is actually asserting the

lack of particularized suspicion for the investigative stop made by the officers. Eixenberger

analogizes his situation with that in State v. Lafferty, 1998 MT 247, 291 Mont. 157, 967 P.2d

363, where an officer stopped the defendant based on an anonymous informant’s tip that the

defendant was drunk but the officer did not observe any illegal driving or any indication of

impairment to corroborate the informant’s tip before stopping the defendant. Lafferty, ¶ 4.

Eixenberger maintains that the officer who stopped him needed to observe illegal driving or

some indication of impairment before Eixenberger could be stopped. However, we disagree.

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Lafferty addressed the necessary police corroboration of an anonymous informant’s tip.

Lafferty, ¶ 12. Here, the issue is whether the police had the requisite particularized suspicion

from their own investigation to initiate an investigative stop of the Thunderbird Eixenberger

was driving.

¶16    “[W]arrantless searches are per se unreasonable, subject to a few carefully drawn

exceptions. One of those exceptions is the investigatory stop.” State v. Tackitt, 2003 MT

81, ¶ 24, 315 Mont. 59, ¶ 24, 69 P.3d 295, ¶ 24 (citation omitted). Under § 46-5-401, MCA,

“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.” To determine whether an officer had the

requisite “particularized suspicion,” we utilize a two-part test. Anderson v. State Dept. of

Justice (1996), 275 Mont. 259, 263, 912 P.2d 212, 214; State v. Gopher (1981), 193 Mont.

189, 192, 631 P.2d 293, 295. There must have been “(1) objective data from which an

experienced officer can make certain inferences; and (2) a resulting suspicion that the

occupant of a certain vehicle is or has been engaged in wrongdoing.” State v. Fisher, 2002

MT 335, ¶ 12, 313 Mont. 274, ¶ 12, 60 P.3d 1004, ¶ 12 (citing Gopher, 193 Mont. at 194,

631 P.2d at 296). Whether particularized suspicion exists to justify an investigative stop is

a question of fact which depends on the totality of the circumstances. State v. Reynolds

(1995), 272 Mont. 46, 49, 899 P.2d 540, 542.

¶17    We have noted that “objective data may be based on ‘various objective observations,

information from police reports, if such are available, and consideration of the modes or


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patterns of operation of certain kinds of lawbreakers.’” State v. Anderson (1993), 258 Mont.

510, 514, 853 P.2d 1245, 1248 (quoting United States v. Cortez (1981), 449 U.S. 411, 418,

101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629). Though Eixenberger maintains that the only

reason he was stopped was because of his previous burglary convictions, the record reveals

other factors which led to the stop.

¶18    First, police conducted a background investigation of Eixenberger which prompted

police to add him to a list of potential suspects. The background investigation revealed that

Eixenberger had been issued two traffic citations while driving a red Ford Thunderbird,

which was registered to Hertz; that Eixenberger and Hertz were good friends; that they had

been involved in various thefts as youths; and that they were possibly living together in

Kalispell.

¶19    Eixenberger become a primary suspect after the Montana Grille Casino was

burglarized and the Thunderbird was seen about two hundred yards away from the Montana

Grille some nine minutes before the burglary occurred. Subsequently, the Thunderbird was

spotted several times, with either Eixenberger or Hertz driving, between two and six o’clock

in the morning. During the early morning hours of September 14, 2000, following the

burglary at the Best Bet Casino, police checked the Hertz residence, finding that neither

Eixenberger nor the Thunderbird were there. About an hour later, the Gold Bar Casino was

burglarized, and Eixenberger was stopped in the Thunderbird within minutes of that burglary

and about a quarter-mile from the Gold Bar.




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¶20    We conclude that sufficient objective data existed to support a police suspicion that

Eixenberger was engaged in wrongdoing, or had engaged in wrongdoing, and that the

investigative stop of Eixenberger’s vehicle was appropriate. Therefore, the District Court

did not err in denying Eixenberger’s motion to suppress.

                                        ISSUE TWO

¶21    Did the District Court err in imposing the restitution condition of the sentence?

¶22    Eixenberger challenges the amount the District Court awarded in restitution. The

District Court held that Eixenberger “must pay restitution in a sum to be determined, with

interest accruing at the legal rate of 10% per annum, for losses and damages sustained by

Best Bet Casino . . . and Gold Bar Casino . . . .” (Underlining in original.) The State

concedes that the District Court did not follow the statutory guidelines for imposing

restitution. Section 46-18-244(1), MCA, reads that “[t]he court shall specify the total amount

of restitution that the offender shall pay.” The District Court did not specify the total amount

of restitution, instead it held that Eixenberger would pay restitution “in a sum to be

determined.” We have held that district courts must comply with § 46-18-244, MCA, and,

here, the District Court did not comply. See State v. Flanagan, 2003 MT 123, ¶ 35, 316

Mont. 1, ¶ 35, 68 P.3d 796, ¶ 35. State v. Pritchett, 2000 MT 261, 302 Mont. 1, 11 P.3d

539; State v. Brown (1994), 263 Mont. 223, 867 P.2d 1098. Further, the State also notes that

the presentence investigation report failed to document the victim’s pecuniary loss and

Eixenberger’s financial resources and ability to pay, as required by § 46-18-242, MCA




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(1999). Therefore, we reverse and remand this matter for further sentencing proceedings

consistent herewith.

¶23   Affirmed in part, reversed in part and remanded.



                                                         /S/ JIM RICE



We concur:

/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ JOHN WARNER
/S/ PATRICIA O. COTTER




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