                                                                                             October 6 2015


                                          DA 14-0566
                                                                                            Case Number: DA 14-0566

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2015 MT 289



CITY OF MISSOULA,

              Plaintiff and Appellee,

         v.

JUSTIN SHARP,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC-14-302
                        Honorable Ed McLean, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender, Haley Connell, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                        Attorney General, Helena, Montana

                        Jim Nugent, Missoula City Attorney, Angie Robertson Bakken, Deputy
                        City Attorney, Missoula, Montana



                                                    Submitted on Briefs: September 2, 2015
                                                               Decided: October 6, 2015


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Justin Sharp appeals from the order of the Montana Fourth Judicial District Court,

Missoula County, affirming the Missoula Municipal Court judgment denying his motion

to suppress evidence for lack of particularized suspicion. We affirm.

¶2     We address the following issue:

       Did Officer Lloyd have sufficient objective data to form a particularized suspicion
       of wrongdoing in order to justify the investigatory stop of Sharp?

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3     On November 27, 2013, Officer Lloyd (“Lloyd”) of the Missoula Police

Department was on patrol in downtown Missoula. Around 10:00 p.m., Lloyd was parked

on the southbound lane of Higgins Street with a view of the Front and Higgins Street

intersection.   While parked, Lloyd noticed pedestrians walking in and around the

intersection. He then observed several vehicles stop at the northbound light on Front

Street. One of those vehicles at the light was an older model pickup truck operated by

Justin Sharp (“Sharp”). The speed limit for that section of Higgins Street is 25 miles per

hour. When the light at the intersection turned green, Lloyd heard Sharp rev the engine

of his pickup truck. Lloyd then saw Sharp launch the truck into a rapid acceleration

across the block, leaving behind the other cars at the intersection. As Sharp passed the

patrol car, which was parked near the middle of the block, the other cars had just crossed

Front Street. After Sharp passed the parked patrol car, Lloyd had time to start the police

car, switch his lights on, and turn into the same traffic with which Sharp had stopped at


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the light. Lloyd considered the rapid acceleration and excessive speed of the truck to be

“aggressive” driving, especially in an area frequented by pedestrians walking to and from

restaurants and bars in the dark. Lloyd followed Sharp with his light bar activated and

Sharp stopped after a few blocks. After the stop Lloyd noticed Sharp slurring his speech

and the stop ripened into a DUI investigation.

¶4     As a result of the stop, Sharp was charged with Driving Under the Influence of

Alcohol or Drugs, in violation of § 61-8-212, MCA, Driving Without Liability Insurance,

in violation of § 61-6-301, MCA, Habitual Traffic Offender Operating Motor Vehicle, in

violation of § 61-11-213, MCA, and Refusal To Submit To Breath or Blood Alcohol

And/Or Drug Test, in violation of Missoula ordinance 10.56.020. Sharp filed a motion to

suppress the evidence that resulted from the stop for lack of particularized suspicion. The

Missoula Municipal Court denied the motion. Sharp entered into a plea agreement and

reserved his right to appeal the denial. On August 6, 2014, after a review of the record,

the District Court affirmed the Municipal Court order, and a timely appeal to this Court

followed.

                              STANDARD OF REVIEW

¶5     We review a district court’s factual findings of particularized suspicion for clear

error and its application of those facts to the law for correctness. State v. Larson, 2010

MT 236, ¶ 15, 358 Mont. 156, 243 P.3d 1130.




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                                      DISCUSSION

¶6     Did Officer Lloyd have sufficient objective data to form a particularized suspicion
       of wrongdoing in order to justify the investigatory stop of Sharp?

¶7     Sharp contends on appeal that the District Court erred in concluding Lloyd

possessed sufficient objective data to constitute particularized suspicion to justify the

stop. Under Montana law, a peace officer is justified to stop a vehicle “that is observed

in circumstances that create a particularized suspicion that the . . . occupant of the vehicle

has committed, is committing, or is about to commit an offense.” Section 46-5-401(1),

MCA. In order to satisfy the requirement of particularized suspicion, the State must

show that the officer had “(1) objective data and articulable facts from which an

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

occupant of [the] vehicle is or has been engaged in wrongdoing.” Larson, ¶ 19 (citing

Brown v. State, 2009 MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842).

¶8     The law in Montana has never required that a peace officer be certain that an

offense has been committed in order to justify an investigatory stop. This Court adopted

the particularized suspicion standard in 1981 in State v. Gopher in the aftermath of the

United States Supreme Court case United States v. Cortez, 449 U.S. 411, 101 S. Ct. 690

(1981). State v. Gopher, 193 Mont. 189, 192, 631 P.2d 293, 295 (1981). The Court cited

the Cortez decision for the rationale behind the adoption of the requirement of

particularized suspicion.

       The process does not deal with hard certainties, but with probabilities.
       Long before the law of probabilities was articulated as such, practical
       people formulated certain common sense conclusions about human
       behavior; jurors as factfinders are permitted to do the same—and so are law

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       enforcement officers. Finally, the evidence thus collected must be seen and
       weighed not in terms of library analysis by scholars, but as understood by
       those versed in the field of law enforcement.

Gopher, 193 Mont. at 192, 631 P.2d at 295 (quoting Cortez, 449 U.S. at 418, 101 S. Ct. at

695). The quoted language from Cortez also established that particularized suspicion

does not require certainty, but rather an analysis of the facts and circumstances as they

appear to the trained police officer who observes them. A year after Gopher, the Court

revisited the issue of particularized suspicion in State v. Morsette, 201 Mont 233, 654

P.2d 503 (1982). The Court reaffirmed in Morsette that certainty is not “essential” and

that the police officer need only have an objective and particularized “basis for

suspecting the . . . person of criminal activity.” Morsette, 201 Mont. at 240, 654 P.2d at

506 (quoting Cortez, 449 U.S. at 418, 101 S. Ct. at 695). The particularized suspicion

standard was eventually codified by the Legislature in 1991. Section 46-5-401, MCA.

Since then, there has been a string of cases upholding the law of particularized suspicion

as first articulated in Gopher, affirmed in Morsette, and codified by the Legislature in

1991. See State v. Martinez, 2003 MT 65, ¶ 22, 314 Mont. 434, 67 P.3d 207; State v.

Brander, 2004 MT 150, ¶ 6, 321 Mont. 484, 92 P.3d 1173;1 Weer v. State, 2010 MT 232,

¶ 10, 358 Mont. 130, 244 P.3d 311.

¶9     Here, although he did not have radar confirmation, Lloyd testified that in his

opinion Sharp was speeding.           Particularized suspicion does not require certainty; it


       1
          The Court in Brander pointed out that “the question is not whether any one of [the
petitioner’s] driving aberrations was itself ‘illegal’ but rather, whether [the officer] could point to
specific and articulable facts which, taken together with rational inferences from those facts,
reasonably warrant the intrusion.” Brander, ¶ 6.
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depends on the totality of the circumstances in which the officer is making the

determination. Larson, ¶ 19. As demonstrated above, this Court has in the past held that

a peace officer need not witness a specific offense in order to have particularized

suspicion. State v. Cameron, 2011 MT 276, ¶ 15, 362 Mont. 411, 264 P.3d 1136. Of

course, an officer observing a vehicle speeding has particularized suspicion to perform an

investigatory stop related to the speeding. See §§ 46-5-401 and 61-8-303, MCA; State v.

Hurlbert, 2009 MT 221, ¶ 21, 351 Mont. 321, 211 P.3d 874. Then, “if additional

objective data of wrongdoing exists, the additional information may give rise to further

suspicions and enlarge the scope of the investigation.” Hurlbert, ¶ 21 (internal citations

omitted).

¶10    Lloyd’s observations of Sharp’s driving behavior were sufficient to constitute

particularized suspicion. Lloyd’s suspicion was based on a combination of observable

facts and an awareness of the circumstances in which Sharp was operating the truck.

When Lloyd saw Sharp drive up to the Front and Higgins Street intersection at 10:00

p.m., it was dark. That intersection is located in downtown Missoula and is frequented

by restaurant patrons, pedestrians, and bicyclists. The posted speed limit for that part of

Higgins is 25 miles per hour. Lloyd, an experienced officer, had a direct view of the

northbound lane of Higgins and he could see several other cars stopping at the light with

Sharp. At the moment the light turned green, Sharp rapidly accelerated the truck, revving

the engine through the intersection. By the time Sharp passed the patrol car, Lloyd had

time to start the police car, switch on his light bar, and swing into the same traffic that

had stopped with Sharp. These events constitute objective data on which Lloyd visually

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estimated, based on years of monitoring vehicles on Montana’s roadways, that Sharp

likely exceeded the posted speed limit. As a result of those events, Lloyd was left with

an impression that Sharp’s handling of the car was unsafe under those circumstances.

Lloyd considered these facts and the totality of the circumstances before deciding to stop

Sharp.

¶11      In Larson we found that particularized suspicion was present under similar facts.

The defendant in Larson drove across an intersection at night in Missoula in clear view of

two patrol cars with activated light bars. The defendant revved the engine continuously

through the intersection and caught the notice of the police officers. Larson, ¶¶ 7-8.

Additionally, the police officer who ultimately conducted the stop of the defendant also

noticed a potentially citable violation on the truck, but did not confirm the violation. Nor

did the district court in that case find that the violation had actually occurred. Larson,

¶ 22. However, as we mentioned in Larson, “[t]he potential violation was merely one

observation [the police officer] relied upon in determining that a particularized suspicion

existed to conduct a traffic stop.” Larson, ¶ 22. Similarly, in this case, Lloyd did not

confirm that Sharp was actually going above the posted 25 miles per hour speed limit, but

Sharp’s acceleration and speed in the intersection were observable facts in a series of

events that would warrant further investigation.

¶12      Based on the above we are unable to conclude that the District Court’s factual

findings regarding the existence of particularized suspicion were clearly erroneous. In

view of all the circumstances, including Sharp’s speed, his rapid acceleration, the fact



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that there were pedestrians near the intersection, and the nighttime visibility, we agree

that there were sufficient objective facts to create particularized suspicion for the stop.

¶13    The judgment of the District court is affirmed.



                                                   /S/ MIKE McGRATH


We Concur:

/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JIM RICE




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