                                      No. DA 06-0603

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 145N

                                                  ____________________________________

STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

CATHY ANN JOHNSON,

              Defendant and Appellant.
                                                  ____________________________________


APPEAL FROM:         District Court of the Eighteenth Judicial District,
                     In and for the County of Gallatin, Cause No. DC 06-124A,
                     The Honorable Holly B. Brown, Presiding Judge.


COUNSEL OF RECORD:

              For Appellant:

                     Hillary S. Prugh, Angel, Coil & Bartlett, Bozeman, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Tammy K. Plubell, Assistant
                     Attorney General, Helena, Montana

                     Marty Lambert, Gallatin County Attorney; Matthew Lowy, Deputy
                     County Attorney, Bozeman, Montana
                                                 ____________________________________

                                                          Submitted on Briefs: May 31, 2007

                                                                     Decided: June 12, 2007

Filed:

                   _____________________________________________
                                       Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court 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     The State charged Cathy Ann Johnson (Johnson) with DUI following her arrest by

Gallatin County sheriff’s deputy Jason Hoppert. Johnson filed a motion to suppress the

evidence obtained by Deputy Hoppert following the stop of her vehicle based upon a lack

of particularized suspicion to support the stop. The District Court held a hearing on

Johnson’s motion and entered the following findings of fact established at the hearing.

¶3     Deputy Hoppert was patrolling on Valley Center Road in Gallatin County at

approximately 9:00 p.m. on November 23, 2005. Deputy Hoppert traveled east on Valley

Center Road when he encountered Johnson who was traveling west. Deputy Hoppert

testified that Johnson was driving with her left wheels across the center line and into his

driving lane. Deputy Hoppert testified that he felt he had to move his car away from the

center of the lane to get out of Johnson’s way. Deputy Hoppert allowed Johnson to pass

before executing a u-turn to follow her. Deputy Hoppert activated his dashboard video

camera at that time.

¶4     Deputy Hoppert observed Johnson driving with her left wheels over the center

line. Johnson continued to drive with her left wheels over the center line when the center

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line was marked as a solid no-passing zone. Deputy Hoppert testified that Johnson’s left

wheels remained over the center line when she came to a stop at an intersection with

Jackrabbit Lane. He further testified that Johnson stopped beyond the “stop line” at the

intersection. Deputy Hoppert further testified that Johnson turned “real wide” when she

made a left turn onto Jackrabbit Lane. Deputy Hoppert further testified that Johnson

drove with her right wheels over the fog line on Jackrabbit Lane for some distance.

Deputy Hoppert stopped Johnson’s vehicle at that point to investigate a possible driving

under the influence.

¶5     The District Court denied Johnson’s motion to suppress.                  Johnson appeals.

Johnson argues on appeal that particularized suspicion requires an examination of the

totality of the circumstances and in the absence of erratic driving, a traffic violation must

occur. She argues that she committed no traffic violations as evidenced by the fact that

Deputy Hoppert did not cite her for any offense besides the DUI. Johnson argues that the

rutted condition of Valley Center Road, the narrow shoulder, and the steep barrow pit on

the right side all justified her actions in driving close to the center line.

¶6     We review a District Court’s denial of a motion to suppress based upon a finding

of particularized suspicion to determine whether the lower court’s findings of fact are

clearly erroneous and whether its conclusions of law are correct. State v. Waite, 2006

MT 216, ¶ 9, 333 Mont. 365, ¶ 9, 143 P.3d 116, ¶ 9.

¶7     We have determined to decide this case pursuant to Section I, Paragraph 3(d)(v),

of our 1996 Internal Operating Rules, as amended in 2003, that provide for memorandum

opinions. It is manifest on the face of the briefs and the record before us that substantial

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evidence supports the District Court’s findings of fact. It is also manifest on the face of

the briefs and record before us that settled Montana law clearly controls the legal issues

and the District Court correctly interpreted the law.

¶8     We affirm the order of the District Court.


                                                    /S/ BRIAN MORRIS


We Concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




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