                                                                                            June 30 2015


                                          DA 14-0607
                                                                                          Case Number: DA 14-0607

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2015 MT 179N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

DAVID FRANZ COOK,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twenty-First Judicial District,
                        In and For the County of Ravalli, Cause No. DC-13-182
                        Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        David M. Maldonado, Stevenson Law Office, Missoula, Montana

                For Appellee:

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

                        William E. Fulbright, Ravalli County Attorney, Meghann Paddock, Deputy
                        County Attorney, Hamilton, Montana



                                                     Submitted on Briefs: May 27, 2015
                                                                Decided: June 30, 2015


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      David Franz Cook appeals from the denial of his motion to suppress in the

Twenty-First Judicial District Court, Ravalli County. We affirm.

¶3     Cook argues there were insufficient facts to support a finding of particularized

suspicion for his traffic stop, and therefore all evidence from that stop should be suppressed.

¶4     On Sunday, August 25, 2013, at approximately 1:20 a.m., Officer Shawn Williams

was patrolling in Hamilton. During or immediately after completing a left turn onto First

Street, heading northbound, Williams saw a vehicle approaching him in the southbound lane.

Williams observed the vehicle drift across the solid yellow line, into the turning lane, and

then drift back into the driving lane. Williams made a U-turn to follow the vehicle. While

following the vehicle, Williams saw the vehicle weave from side to side within its lane and

observed the vehicle drive onto the solid yellow line. Based on these observations-the

vehicle crossing the solid yellow line into the turning lane, the vehicle weaving within its

lane, and the vehicle driving on the solid yellow line, Williams activated his emergency

lights and initiated a traffic stop. Following further investigation and a standard field

sobriety test, Cook was charged with felony DUI and misdemeanor traffic offenses including

improper lane change.




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¶5     Cook requested an evidentiary hearing for the purpose of reviewing the facts

supporting Williams’s stop. At the hearing, Williams testified that as of March 2014, he had

been a Hamilton police officer for a year and a half, and his primary duty is patrolling traffic.

His training included a 40-hour course in DUI investigation and apprehension and a 14-hour

Advanced Roadside Impaired Driving Enforcement course related to DUI and drug cases.

Williams also testified that he is familiar with the NHTSA manual and its DUI impairment

cues, which he references regularly. Based on his experience, Williams also testified that

there are typically a lot of DUI drivers on the road at that time of night.

¶6     Williams’s patrol car’s onboard video recorded Cook’s vehicle from the time

Williams turned left onto First Street until Williams made his U-turn. The video footage did

not capture Cook’s vehicle before the left turn or during the U-turn. After Williams

completed the U-turn, Cook’s vehicle was visible in the video until the end of the recording.

Williams testified that the glare from the vehicle’s headlights and the low quality of the

video make it difficult to discern when or if Cook’s vehicle crossed the solid yellow line into

the turning lane. However, Williams testified that what he sees with his naked eye is better

than what he can see in the video footage.

¶7     The defense called Garrick F. Mitchell, an accident reconstructionist specializing in

photogrammetry, the science of obtaining measurements from photographs. Mitchell’s

testimony and report opined that, in the video, Cook’s vehicle did not cross over the solid

yellow line. Mitchell based this opinion on reviewing the video evidence, taking and

reviewing still photos obtained from the video, comparing the video and photos to

Williams’s affidavit, and applying photogrammetry to the video evidence.


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¶8      After viewing the video, the District Court could not determine if the vehicle crossed

over the yellow line during the time the vehicle was visible in the video. The District Court

did determine that Cook’s vehicle appeared to slowly drift from the yellow line towards the

center of its lane of travel as it approached Williams. The District Court also found that

Cook’s vehicle could be observed gently drifting from left to right within its lane. The

District Court found the wheels of the vehicle touched the yellow line just before the traffic

stop.

¶9      This Court reviews the grant or denial of a motion to suppress to determine whether

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

correctly interpreted and applied the law to those facts. State v. Wagner, 2013 MT 159, ¶ 9,

370 Mont. 381, 303 P.3d 285. A district court’s determination that particularized suspicion

exists is a question of fact, which this Court reviews for clear error. State v. Gill, 2012 MT

36, ¶ 10, 364 Mont. 182, 272 P.3d 60. This Court does not reweigh evidence or substitute its

evaluation of the evidence for that of the district court. Wagner, ¶ 15. The trial court is in

the best position to evaluate the credibility of witnesses with the benefit of live testimony, to

become familiar with the details of the case and to weigh the value of evidence. State v.

Kaufman, 2002 MT 294, ¶ 12, 313 Mont. 1, 59 P.3d 1166.

¶10     Both the United States Constitution and the Montana Constitution prohibit

unreasonable searches and seizures. U.S. Const. amend. IV; Mont. Const. art. II, § 11.

These protections apply to brief investigative stops of vehicles. State v. Ross, 2008 MT 369,

¶ 9, 346 Mont. 460, 197 P.3d 937. Montana law provides that an officer “may stop any

person or vehicle that is observed in circumstances that create a particularized suspicion that


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the person or occupant of the vehicle has committed, is committing, or is about to commit an

offense.” Section 46-5-401(1), MCA; State v. Flynn, 2011 MT 48, ¶ 7, 359 Mont. 376, 251

P.3d 143. The State must prove the existence of particularized suspicion by showing the

officer had: (1) objective data and articulable facts from which he or she could 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. Flynn, ¶ 7.             Further,

particularized suspicion does not require certainty on the part of the investigating officer.

State v. Larson, 2010 MT 236, ¶ 19, 358 Mont. 156, 243 P.3d 1130. If an officer does not

have particularized suspicion to effect a stop, the stop is unlawful, and any evidence gained

from the stop must be excluded. State v. Pearson, 217 Mont. 363, 366, 704 P.2d 1056, 1058

(1985).

¶11    Cook, relying on Mitchell’s report and testimony, takes issue only with the

observation that he crossed the yellow line during the time the vehicle was visible on video.

Without this observation, Cook argues, Williams did not have enough facts to find

particularized suspicion. Williams testified, however, that he observed Cook’s vehicle for

six seconds before the vehicle appeared on camera. While Williams’s affidavit states that he

observed the vehicle crossing the yellow line as he was heading north on First Street, he

clarified at the hearing that he could not recall if the observation was while he was making

the turn or directly after. The District Court found this variation to be insignificant when

assessing Williams’s credibility. The District Court also found Williams’s testimony was

not in conflict with Mitchell’s opinion, because Cook’s vehicle may have crossed the yellow

line before it was on camera. These assessments of the credibility and weight to be given the


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testimony of witnesses are within the realm of the District Court, and we will not disturb its

findings on appeal. Kaufman, ¶ 12.

¶12    A traffic violation alone is sufficient to give rise to particularized suspicion. Section

46-5-401(1), MCA; § 61-8-328(2), MCA. The observation of the vehicle crossing the

yellow line alone was enough to support particularized suspicion. In Flynn, we concluded

sufficient facts existed to support a finding of particularized suspicion when the arresting

officer observed the defendant’s vehicle cross the fog line three times where both right-side

tires were driving on the shoulder of the highway. Flynn, ¶ 4. The officer’s observations in

Flynn took place at 1:30 a.m., and the officer was on alert for DUI because of the proximity

to the bar closing times. Flynn, ¶¶ 3-4,14. Here, like in Flynn, Williams observed the

defendant crossing a road line and considered the time of night. Additionally, Williams saw

the vehicle travel in a weaving pattern and observed its tires touch the lane line a second

time. These facts allowed Williams to make a reasonable inference that the driver of the

vehicle may be impaired by alcohol.

¶13    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

applicable standards of review. The District Court’s findings of fact were not clearly

erroneous and its interpretation and application of the law were correct.

¶14    Affirmed.


                                                   /S/ LAURIE McKINNON



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We Concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA




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