                                                                                              12/06/2016


                                          DA 16-0170
                                                                                          Case Number: DA 16-0170

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2016 MT 316



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

KELLY RAY MASSEY, JR.,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DC 14-393
                       Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Craig Shannon, Attorney at Law, Missoula, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
                       Assistant Attorney General, Helena, Montana

                       Kirsten H. Pabst, Missoula County Attorney, James McCubbin, Deputy
                       Missoula County Attorney, Missoula, Montana



                                                  Submitted on Briefs: October 19, 2016

                                                             Decided: December 6, 2016


Filed:

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



¶1     Appellant Kelly Ray Massey, Jr. (Massey) appeals the order of the Fourth Judicial

District Court, Missoula County, denying his motion to suppress. We affirm and address

the following issue:

       Did the District Court err by determining there was particularized suspicion for
the traffic stop of Massey’s vehicle?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶2     At approximately 1:00 a.m. on June 16, 2014, Trooper Lynwood Bateman

observed a sport-utility vehicle with black plastic, logo-style covers on its tail lights, and

initiated a traffic stop because the covers appeared to obscure and diminish the visibility

of the vehicle’s tail lights. During the traffic stop, Bateman observed signs that Massey

was impaired by drugs and asked him to step out of his vehicle. As Massey stepped out,

Bateman observed a small, plastic bag with possible drug residue in plain view in the

passenger door pocket. Massey stated the bag was not his and declined to consent to a

search of the vehicle. Bateman seized the vehicle and released Massey. A subsequent

search of the vehicle pursuant to a search warrant revealed drugs, a handgun, drug

paraphernalia, and other items leading to the filing of charges against Massey for criminal

possession of dangerous drugs with intent to distribute, a felony, and criminal possession

of dangerous drugs/opiates, a felony.

¶3     Massey moved to suppress the evidence found in his vehicle on the ground that

Bateman lacked particularized suspicion to initiate a traffic stop. At the suppression
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hearing, Bateman testified that he was approximately 500 feet behind Massey’s vehicle

when he noticed the tail light covers, which he stated “were black and covered up the

light.” Bateman initiated the traffic stop “because [the tail light covers] were obscuring

and diminishing the visibility of the lights to the rear,” and he needed to stop the vehicle

to determine if the lights were visible from more than 1,000 feet, the distance required by

statute.

¶4     Under cross examination, Bateman testified that the tail light covers functioned as

stencils, which “left portions of the red visible, but they obscured it.” The following

exchange also took place:

       Q. Okay. Do you see [these stencil-like covers] fairly often in Missoula in
       the line of work that you’re in?
       A. I see them, yeah, I would say fairly often.
       Q. Okay. Do you stop everybody with those?
       A. If I’m able to make a traffic stop, yes.
       Q. Okay.
       A. And, I mean, but that’s all dependent on the situation, other traffic and,
       you know, what I have going on that day.
       Q. And there was no other reason for your stop of the vehicle Kelly Massey
       was in?
       A. That’s correct.

¶5     Bateman compared the effect of the tail light covers to placing fingers in front of a

flashlight, which “stops some of that light from going through. And, therefore, the

visibility is less and the light is diminished.”

¶6     The District Court denied Massey’s motion to suppress. Massey entered into a

plea agreement, but reserved his right to appeal the District Court’s ruling. Massey

appeals.

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                               STANDARD OF REVIEW

¶7     We review a motion to suppress to determine whether a district court’s findings of

fact are clearly erroneous, and whether those findings were correctly applied as a matter

of law. State v. Plouffe, 2014 MT 183, ¶ 18, 375 Mont. 429, 329 P.3d 1255 (citing State

v. Dawson, 1999 MT 171, ¶ 13, 295 Mont. 212, 983 P.2d 916); State v. Chilinski, 2014

MT 206, ¶ 16, 376 Mont. 122, 330 P.3d 1169. A district court’s findings are clearly

erroneous if they are not supported by substantial credible evidence, if the 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. Ellis, 2009 MT 192,

¶ 20, 351 Mont. 95, 210 P.3d 144 (citing State v. Lewis, 2007 MT 295, ¶ 17, 340 Mont.

10, 171 P.3d 731).

                                      DISCUSSION

¶8     Did the District Court err by determining there was particularized suspicion for
the traffic stop of Massey’s vehicle?

¶9     The Montana and United States Constitutions prohibit unreasonable searches and

seizures, Mont. Const. art. II, § 11; U.S. Const. amend. IV, which includes brief

investigatory stops, State v. Ross, 2008 MT 369, ¶ 9, 346 Mont. 460, 197 P.3d 937 (citing

State v. Loiselle, 2001 MT 174, ¶ 7, 306 Mont. 166, 30 P.3d 1097); State v. Roy, 2013

MT 51, ¶ 15, 369 Mont. 173, 296 P.3d 1169; City of Missoula v. Moore, 2011 MT 61,

¶ 16, 360 Mont. 22, 251 P.3d 679. Investigatory stops are valid where a law enforcement

officer observes a vehicle “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
                                         4
offense.” Section 46-5-401(1), MCA. Particularized suspicion requires, in the totality of

the circumstances, “(1) objective data from which an officer can make certain inferences,

and (2) a resulting particularized suspicion that the occupant of the motor vehicle is or

has been engaged in wrongdoing or was a witness to criminal activity.” State v. Flynn,

2011 MT 48, ¶ 7, 359 Mont. 376, 251 P.3d 143; accord Brown v. State, 2009 MT 64,

¶ 20, 349 Mont. 408, 203 P.3d 842. The focus of an inquiry into whether particularized

suspicion existed is “entirely on what facts were available to the officer.” State v. Duong,

2015 MT 70, ¶ 14, 378 Mont. 345, 343 P.3d 1218; accord State v. Clawson, 2009 MT

228, ¶ 11, 351 Mont. 354, 212 P.3d 1056; Flynn, ¶ 11.

¶10    Section 61-9-204(5), MCA, provides:

       A person may not operate a motor vehicle on a highway with taillamps that
       are covered by a lens or a plastic cover or with a tinted or colored material,
       substance, system, or component placed on or in front of rear lamps,
       taillamps, license plate lamps, or rear lamp combinations that obscures the
       taillamps or diminishes the distance of visibility required by this section.

The “distance of visibility” stated in this section requires that tail lamps be “plainly

visible from a distance of 1,000 feet to the rear of the vehicle.” Section 61-9-204(1),

MCA. Thus, there are two ways the statute may be violated: by covering the tail lights

in a manner that (1) obscures the tail lamps, or (2) diminishes the tail lamps such that

they are not “plainly visible” at 1,000 feet.

¶11    Massey argues that the statutory term “obscures” means “not clearly seen or easily

distinguished” and is synonymous with “conceal,” which Bateman’s testimony did not

establish. He argues that because his covers allowed light to shine through, they did not

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“obscure” the tail lights.    He interprets Bateman’s testimony as espousing a “zero

tolerance policy” for tail light covers that leads to vehicle stops without regard to actual

suspicion on the part of the officer that the statutes are being violated.

¶12    “Obscures” is not defined by the statute but generally means, as acknowledged in

part by Massey, “to make dark, dim, or indistinct” or which is “not clearly seen or easily

distinguished.” Merriam-Webster’s Collegiate Dictionary 856 (Frederick C. Mish ed.,

11th ed. 2012). Bateman testified that he stopped Massey because the tail light covers

“were obscuring and diminishing the visibility of the lights to the rear.” He also stated

that the covers were “black and covered up the light.” Clearly, these observations

establish a suspicion that the tail lights were obscured. The District Court credited

Bateman’s testimony, finding that “the tail light covers at issue diminished the visibility

of the lights by covering the red portion of the tail lights.”               Further, Bateman’s

observations, initially made from a point approximately 500 feet behind Massey’s

vehicle, also raised a suspicion concerning the second way to violate the statute, by not

having tail lights “plainly visible” at 1,000 feet. As such, the District Court correctly

concluded that Bateman had particularized suspicion of a violation of § 61-9-204(5),

MCA, that justified a traffic stop.

¶13    Stopping all vehicles with tail light covers pursuant to a “zero tolerance policy,”

regardless of actual suspicion of a statutory violation, would clearly be improper. Tail

light covers are not per se prohibited by § 61-9-204(5), MCA. However, covers must

comply with the statute and, here, Bateman’s testimony demonstrated that his stop of

                                           6
Massey was supported by a particularized suspicion that Massey’s covers violated

§ 61-9-204(5), MCA.

¶14   Affirmed.


                                           /S/ JIM RICE


We concur:


/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA




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