                                                                                               June 18 2013


                                           DA 12-0699

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 159



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

ROBERT A. WAGNER,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Nineteenth Judicial District,
                        In and For the County of Lincoln, Cause No. DC-12-56
                        Honorable James B. Wheelis, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Thane Johnson, Johnson, Berg & Saxby, PLLP, Kalispell, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General; Katie F. Schulz, Assistant
                        Attorney General, Helena, Montana

                        Bernard G. Cassidy, Lincoln County Attorney; Robert Slomski, Deputy
                        Lincoln County Attorney, Libby, Montana


                                                    Submitted on Briefs: May 1, 2013

                                                               Decided: June 18, 2013




Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     The State charged Robert Andrew Wagner in Lincoln County Justice Court with

driving under the influence of alcohol or drugs (third offense), a misdemeanor, in

violation of § 61-8-401, MCA, or, in the alternative, § 61-8-406, MCA. Wagner filed a

motion to suppress all evidence obtained during the stop of his vehicle. He argued that

the officer lacked particularized suspicion for the traffic stop. Following a suppression

hearing, the Justice Court denied Wagner’s motion.           Wagner then pleaded guilty,

reserving his right to appeal the Justice Court’s suppression ruling.

¶2     Wagner appealed to the Nineteenth Judicial District Court, Lincoln County. The

District Court conducted an evidentiary hearing and thereafter denied Wagner’s motion

to suppress, finding that there was particularized suspicion for the stop of his vehicle.

Wagner now appeals to this Court, raising the following issue: Whether the District

Court erred in denying Wagner’s motion to suppress based upon its determination that

the officer had particularized suspicion to justify an investigative stop. We conclude that

the District Court did not err, and we accordingly affirm.

                                     BACKGROUND

¶3     At approximately 2:40 a.m. on April 9, 2012, Lincoln County Sheriff’s Deputy

John Davis was patrolling southbound on U.S. Highway 2 in Libby near Empire Foods

and Town Pump, which are located at the southern edge of town. In front of him, Davis

noticed a vehicle that was also traveling southbound on Highway 2. At this location, the

highway consists of two southbound and two northbound lanes of travel.             Davis’s


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attention was drawn to the vehicle because it was straddling the two southbound lanes of

travel; in other words, the vehicle was not in a single lane. Davis observed the vehicle

continue to straddle both southbound lanes for 500 to 600 feet.             There were no

obstructions or roadwork that would have prevented the driver from traveling in one lane.

Davis was aware that Montana law requires a vehicle to be operated as nearly as

practicable entirely within a single lane. Section 61-8-328(1), MCA.

¶4     Davis followed the vehicle as it proceeded in a southerly direction. He observed

the vehicle slowly move into the left southbound lane, without signaling. The vehicle

continued in the left lane for roughly one-quarter mile. The vehicle’s right blinker then

activated and the vehicle moved into the right lane. Davis observed the vehicle weave

back and forth within the right lane. The vehicle’s left tires crossed the dividing line

between the two southbound lanes on two separate occasions, and the vehicle’s right tires

crossed the fog line on one occasion. The vehicle next signaled and turned right onto

Pearl Street, and then signaled again and turned left onto Granite Street. At this point,

Davis decided to initiate a traffic stop and activated his overhead lights. The vehicle

began signaling and eventually pulled into a driveway. Davis pulled in behind and made

contact with the driver, who he ascertained was Wagner.

¶5     Davis had been a deputy with the Lincoln County Sheriff’s Office for 15 months

at the time he stopped Wagner. Davis had received specialized training for investigations

involving driving under the influence. He had made other DUI stops and arrests prior to

his stop of Wagner. Davis testified at the suppression hearing that, in light of his training

and experience, he believed that Wagner’s driving was erratic and suspicious. Based on


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his observations of Wagner straddling the two southbound lanes of travel, then drifting

into the left lane, then weaving back and forth within the right lane, crossing the dividing

line on two occasions and the fog line on one occasion, Davis concluded that Wagner

might be impaired.

¶6     At the suppression hearing, Davis also discussed the video-recording equipment in

his patrol car. He explained that the video camera runs on a continuous loop 24 hours a

day, recording and rerecording over itself on the videotape.        When the patrol car’s

overhead lights are activated, however, the device automatically saves what was recorded

during the 60 seconds before the overhead lights were activated, plus whatever occurs

while the overhead lights remain on. As noted, Davis did not activate his overhead lights

until Wagner turned onto Granite Street. As a result, the video recorder did not capture

any of Wagner’s erratic driving observed more than a minute prior to his turning onto

Granite Street. Davis acknowledged that he could have activated the video recorder

manually, before turning on his overhead lights. He stated that he did not do so because

his usual practice is to let the recorder operate automatically in conjunction with his

overhead lights.

¶7     Wagner testified that he clearly remembered the night in question. He stated that

he was familiar with the road and that he always drove on the inside southbound lane in

order to avoid collisions with the many deer and moose in the area. Wagner denied

straddling the line dividing the two southbound lanes. He testified that he stayed within

the designated lanes of travel.




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¶8     The District Court entered findings of fact and conclusions of law. The court

expressly found Davis’s testimony to be credible and Wagner’s testimony to lack

credibility. The court concluded that “[t]he facts articulated by Deputy Davis, together

with reasonable inferences from those facts, and taking into consideration Deputy Davis’

training and experience, led Deputy Davis to a resulting suspicion that Defendant was

committing an offense.” The court thus ruled that Davis had particularized suspicion to

justify an investigative traffic stop of Wagner’s vehicle. The District Court accordingly

denied Wagner’s motion to suppress.

                              STANDARDS OF REVIEW

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

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

and applied the law to those facts. State v. Nixon, 2013 MT 81, ¶ 15, 369 Mont. 359, 298

P.3d 408. A court’s determination that particularized suspicion exists is a question of

fact, which we review for clear error. State v. Gill, 2012 MT 36, ¶ 10, 364 Mont. 182,

272 P.3d 60. A finding of fact is clearly erroneous if it is not supported by substantial

evidence, if the lower court has 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. State v. Cooper, 2010 MT 11, ¶ 5, 355 Mont. 80, 224 P.3d 636.

                                      DISCUSSION

¶10    Pursuant to § 46-5-401(1), 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.”


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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

MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842. Where a defendant has filed a motion

challenging the legality of a stop, the State must show that there was objective data from

which the officer could make inferences and deductions of some sort of criminal activity.

State v. Clark, 2009 MT 327, ¶ 12, 353 Mont. 1, 218 P.3d 483. 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;

Clark, ¶ 12. The officer’s experience and training are not the defining element of this

analysis; they are only a factor in determining what sort of reasonable inferences the

officer is entitled to make from his or her objective observations. Brown, ¶ 20.

¶11    We clarified in State v. Flynn, 2011 MT 48, 359 Mont. 376, 251 P.3d 143, that the

inquiry turns on what the officer knew, observed, or suspected at the time of the stop, and

not what the defendant subsequently testifies to. We stated:

              A defendant’s subsequent, valid explanation for conduct that
       objectively appeared suspicious may affect his or her ultimate liability for a
       charged offense, but it cannot affect the validity of a stop properly based on
       particularized suspicion. The particularized suspicion inquiry is a fact
       based assessment of the objective quantity, content and reliability of
       information available to the officer. An officer in the field need not



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       consider every possible innocent explanation or legal exception before
       concluding that particularized suspicion exists.

Flynn, ¶ 11 (emphasis in original, citations and internal quotation marks omitted).

¶12    Moreover, while a statutory violation alone is sufficient to establish particularized

suspicion for an investigative stop, it is not necessary that an officer observe a moving

violation in order to support a particularized suspicion of driving under the influence.

State v. Schulke, 2005 MT 77, ¶¶ 16-17, 326 Mont. 390, 109 P.3d 744; State v. Brander,

2004 MT 150, ¶ 6, 321 Mont. 484, 92 P.3d 1173. We do not require an officer to identify

a particular statutory violation or cite a defendant for a moving violation to establish a

particularized suspicion. Schulke, ¶ 18 (“the fact that Schulke was not cited for anything

beyond DUI and minor in possession of alcohol does not destroy the officer’s

particularized suspicion to make a stop based upon erratic driving”). The question, in

other words, is not whether any one of the defendant’s driving aberrations was itself

illegal; rather, it is whether the officer can point to objective and articulable facts which,

taken together, with reasonable inferences that may be drawn therefrom, warranted a

suspicion of criminal wrongdoing. Weer v. State, 2010 MT 232, ¶ 10, 358 Mont. 130,

244 P.3d 311; Brander, ¶ 6; Brown, ¶ 20.

¶13    Wagner argues that the absence of any erratic driving depicted in the patrol car

video contradicts Davis’s testimony that Wagner drove his vehicle erratically. Wagner

maintains that the District Court gave Davis’s testimony “preferential treatment” and that,

when compared to this Court’s other cases involving investigative stops, Wagner’s

driving does not rise to the level needed to establish particularized suspicion.



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¶14    The State, on the other hand, argues that Davis possessed particularized suspicion

of an offense in light of Wagner’s erratic driving, which was indicative of driving under

the influence of alcohol or drugs in violation of § 61-8-401 or -406, MCA, as well as

Wagner’s failure to operate his vehicle as nearly as practicable entirely within a single

lane of travel in violation of § 61-8-328(1), MCA. The State further maintains that the

absence of video evidence of Wagner’s impaired driving (prior to Davis’s activation of

his overhead lights) does not defeat Davis’s particularized suspicion.

¶15    We agree with the State that the circumstances observed by Davis at the time

supported a particularized suspicion to conduct an investigative stop of Wagner’s vehicle.

As an initial matter, we note that it is not this Court’s function, on appeal, to reweigh

conflicting evidence or to substitute our evaluation of the evidence for that of the trial

court. State v. Deines, 2009 MT 179, ¶ 20, 351 Mont. 1, 208 P.3d 857. We defer to the

trial court in cases involving conflicting testimony because we recognize that the court

had the benefit of observing the demeanor of witnesses and rendering a determination of

the credibility of those witnesses. Deines, ¶ 20.

¶16    In the instant case, the District Court specifically noted that it found Davis’s

testimony credible and Wagner’s testimony lacking credibility. Davis testified that he

first observed Wagner’s vehicle at around 2:40 a.m. The vehicle was straddling the two

southbound lanes of travel for 500 to 600 feet. It then drifted into the left lane without

signaling. After about a quarter mile, the vehicle signaled and moved into the right lane.

The vehicle weaved back and forth as it proceeded southbound in the right lane. It

crossed the dividing line on two occasions and the fog line on one occasion. These


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objective and articulable facts, taken together, substantiated Davis’s suspicion that the

driver, Wagner, might be impaired. Additionally, Davis’s testimony also substantiates

that Wagner violated § 61-8-328(1), MCA, which required him to operate his vehicle “as

nearly as practicable entirely within a single lane.” Davis testified that there were no

obstructions or roadwork that would have prevented Wagner from traveling in one lane.

We conclude, therefore, that the District Court, upon accepting Davis’s testimony as

credible, correctly determined that Davis had a particularized suspicion to justify the stop

of Wagner’s vehicle.

¶17     Regarding the absence of video evidence of erratic driving, we have previously

concluded that “there is no reason to view with distrust the failure of a police officer to

record events creating particularized suspicion for a traffic stop.” Deines, ¶ 23. The

absence of video evidence does not negate the sworn statements of a peace officer, whom

the trial court finds credible, concerning his observations in the field. Deines, ¶¶ 20-22.

Hence, the District Court’s determination that Davis’s sworn statements established a

particularized suspicion, notwithstanding the absence of video evidence, was not clearly

erroneous.

                                     CONCLUSION

¶18     We conclude that there were sufficient facts for Davis to form a particularized

suspicion that Wagner was committing an offense and, thus, to initiate an investigative

stop.   Accordingly, the District Court did not err in denying Wagner’s motion to

suppress.

¶19     Affirmed.


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                           /S/ LAURIE McKINNON


We Concur:

/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ BRIAN MORRIS
/S/ JIM RICE




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