                                                                                              05/09/2017


                                           DA 16-0436
                                                                                          Case Number: DA 16-0436

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 113N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

RICHARD RAY KELM,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twenty-First Judicial District,
                        In and For the County of Ravalli, Cause No. DC-16-6
                        Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Dustin M .Chouinard, Markette & Chouinard P.C., Hamilton, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
                        Attorney General, Helena, Montana

                        William Fulbright, Ravalli County Attorney, William Lower, Deputy
                        Ravalli County Attorney, Hamilton, Montana



                                                     Submitted on Briefs: March 8, 2017

                                                                 Decided: May 9, 2017


Filed:

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

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Richard Ray Kelm (Kelm) appeals from the Opinion and Order entered in the

Twenty-First Judicial District, Ravalli County, affirming the Justice Court’s denial of his

Motion to Suppress Evidence and Dismiss Charge. We affirm.

¶3     Kelm was charged with Driving Under the Influence (DUI) in Justice Court and,

following the Justice Court’s denial of his motion to suppress, Kelm entered a plea of guilty

to DUI. Pursuant to § 46-12-204(3), MCA, Kelm reserved his right to appeal the denial of

his suppression motion. The issue on appeal is whether the District Court, on appeal from

a justice court, correctly found that the arresting officer had particularized suspicion to

conduct an investigative stop.

¶4     On April 25, 2015, Ravalli County Sheriff Sergeant Jesse Jessop (Sergeant Jessop)

was driving southbound on Highway 93 in Hamilton, Montana, at approximately midnight,

when he observed a Jeep in front of him. The driver of the Jeep, later identified as Kelm,

appeared to be weaving within his lane. Sergeant Jessop activated his in-car camera and,

seconds later, Kelm turned right into the Albertsons’ parking lot and stopped. Sergeant

Jessop then deactivated his in-car camera and drove past the Albertsons’ parking lot,

paying attention to the Jeep’s movements. Sergeant Jessop believed, correctly, that the

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Albertsons and other businesses connected to the parking lot were closed for the evening.

Sergeant Jessop turned into the K-Mart parking lot, which is attached to the Albertsons’

parking lot and preceded towards Kelm.

¶5     Sergeant Jessop observed Kelm drive slowly towards the closed K-Mart, which law

enforcement had received a large number of alarms about possible criminal conduct. Kelm

was parked close to the entrance of the K-Mart. Sergeant Jessop decided to initiate a traffic

stop based on Kelm’s weaving within traffic lanes; lateness of the hour; how quickly Kelm

turned off of Highway 93 into a closed business after Sergeant Jessop observed him; and

Kelm’s conduct of driving slowly past the front of the business, given the number of alarms

law enforcement had recently received of possible criminal conduct at the businesses. The

stop ultimately ripened into a DUI investigation and resulted in Kelm being charged with

DUI.

¶6     Sergeant Jessop, at the motion hearing, elaborated that Kelm’s weaving from side

to side within his lane, coupled with the time of night, initially concerned Sergeant Jessop

that Kelm might be impaired. Sergeant Jessop also testified that impaired drivers often

turn off the road after noticing a patrol vehicle behind them. It was also known to Sergeant

Jessop that K-Mart had been having problems with alarms going off after hours, so in his

words “it was a two-part suspicion for me; one was the driving and two was [] what’s

someone doing here at Albertson[]s or K-Mart at just after midnight.”

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

fact are clearly erroneous and whether the court’s conclusions of law are correct. State v.

Loiselle, 2001 MT 174, ¶ 6, 306 Mont. 166, 30 P.3d 1097. A finding is clearly erroneous

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if not supported by substantial evidence, if the lower court has misapprehended the effect

of the evidence, or if we are left with a definite and firm conviction that the lower court

made a mistake. State v. Dupree, 2015 MT 103, ¶ 8, 387 Mont. 499, 346 P.3d 1114.

¶8     An 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. To have

particularized suspicion, the officer must have (1) objective data and articulable facts from

which he can make certain reasonable inferences, and based on those facts or data (2) a

resulting suspicion that the person has committed, is committing, or is about to commit an

offense. State v. Wagner, 2013 MT 159, ¶ 10, 370 Mont. 381, 303 P.3d 285.

¶9     When legality of a stop is at issue it is the State’s burden to show there were

sufficient facts and data on which law enforcement can reasonably rely to infer criminal

activity. State v. Clark, 2009 MT 327, ¶ 12, 353 Mont 1, 218 P.3d 483. Observing a traffic

offense is sufficient but not necessary to establish particularized suspicion. See State v.

Flynn, 2011 MT 48, ¶¶ 7-9, 359 Mont. 376, 251 P.3d 143; see also State v. Cameron, 2011

MT 276, ¶ 15, 362 Mont. 411, 264 P.3d. 1136. When determining if particularized

suspicion was present, we look at the totality of the circumstances. State v. Pratt, 286

Mont. 156, 161, 951 P.2d 37, 40 (1997). The time of day, the location of the stop, and the

defendant’s driving behavior are permissible factors in determining the totality of the

circumstances. Weer v. State, 2010 MT 232, ¶ 10, 358 Mont. 130, 244 P.3d 311.

¶10    We conclude, based upon the totality of the circumstances, that the District Court’s

finding that Sergeant Jessop had the necessary particularized suspicion to make an

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investigative stop was not clearly erroneous. Based upon Sergeant Jessop’s training and

experience, Wagner, ¶ 10, he is aware that weaving within a traffic lane can be a sign of

impairment. Further, Sergeant Jessop is aware that when an impaired driver realizes an

officer has observed him, the driver will exit the roadway to avoid further observation.

This, in conjunction with turning into a closed business late at night, provided Sergeant

Jessop with the necessary particularized suspicion for the stop. We find the District Court’s

findings were not clearly erroneous and were supported by evidence.

¶11    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

relevant standards of review.

¶12    Affirmed.

                                                  /S/ LAURIE McKINNON


We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR




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