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                                                               No. 98-201



                    IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                           1998 MT 273N




                                                   STATE OF MONTANA,



                                                   Plaintiff and Respondent,



                                                                      v.



                                                      SHANE A. MARTIN,



                                                   Defendant and Appellant.




                     APPEAL FROM: District Court of the Tenth Judicial District,


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                                              In and for the County of Fergus,

                                Honorable John R. Christensen, Judge Presiding.




                                                  COUNSEL OF RECORD:



                                                            For Appellant:



                         Craig R. Buehler, Attorney at Law, Lewistown, Montana



                                                          For Respondent:



                    Honorable Joseph P. Mazurek, Attorney General; John Paulson,

                                   Assistant Attorney General, Helena, Montana



                      Thomas P. Meissner, County Attorney, Lewistown, Montana




                                         Submitted on Briefs: October 1, 1998



                                                Decided: November 12, 1998


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                                                                    Filed:




                              __________________________________________

                                                                    Clerk




                      Chief Justice J. A. Turnage delivered the Opinion of the Court.

¶1. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number, and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.

¶2. Shane A. Martin (Martin) appeals the ruling of the Tenth Judicial District Court,
Fergus County, denying his motion to suppress the State's evidence against him on
charges of driving under the influence of alcohol (DUI), minor in possession of
alcohol, second offense, and failure to drive on the right side of the roadway. We
affirm the ruling of the District Court.

                                                                   ISSUE

¶3. Did the District Court err in denying Martin's motion to suppress the State's
evidence on the grounds that the arresting officer lacked a particularized suspicion
justifying the stop?

                                                          BACKGROUND

¶4. On the evening of June 14, 1997, Fergus County Deputy Sheriff Larry McCord

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was patrolling near Roy, Montana, during a local rodeo and dance. At approximately
9:30 p.m., Deputy McCord noticed a stalled pick-up truck in the middle of an
intersection and walked over to investigate. Martin, who was the driver of the
vehicle, was apparently engaged in a confrontation with another individual, but this
encounter ceased at the deputy's approach and in response to the deputy's inquiry
Martin indicated that they were not experiencing any problems. Martin then climbed
into the truck while several others stepped out of the cab to help push-start the truck.
The deputy did not smell or see any alcohol at that time and left the scene without
further dialog.

¶5. A few hours later, Deputy McCord saw Martin's truck again, this time pulled off
the side of a highway approximately three or four miles outside of Hilger, Montana.
When Deputy McCord began pulling up behind the vehicle, Martin drove back onto
the road and proceeded down the highway. Deputy McCord followed Martin's
vehicle for approximately five miles, including its passage through and out of the
town of Hilger.

¶6. While following the vehicle from a distance of approximately one thousand feet,
Deputy McCord observed the vehicle crossing over the yellow line, going back over
the white fog line and maneuvering a curve while partially over the center line again.
Deputy McCord sped up to get into closer proximity to the vehicle to video record its
movements. The deputy followed Martin's vehicle for approximately two miles with
the video camera activated, during which time no traffic violations were exhibited.
Deputy McCord then turned the camera off and dropped back to follow Martin at
one thousand feet again.

¶7. When Deputy McCord again observed the vehicle crossing over the center line
and back to the white fog line, he sped up to the vehicle a second time and once again
turned on the video camera in his patrol car. Martin's vehicle swerved over the
yellow line for a third time, at which point Deputy McCord activated his overhead
lights and initiated an investigatory stop. After performing a series of field sobriety
tests on Martin, Deputy McCord arrested him for DUI.

                                                  STANDARD OF REVIEW

¶8. We review a trial court's grant of a motion to suppress evidence to determine
whether the court's findings of fact are clearly erroneous and whether those findings


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were correctly applied as a matter of law. State v. Roberts (1997), 284 Mont. 54, 56,
943 P.2d 1249, 1250. Factual findings are clearly erroneous if they are not supported
by substantial evidence, the court has misapprehended the effect of the evidence, or
our review of the record convinces us that a mistake has been committed. Interstate
Prod. Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.

                                                             DISCUSSION

¶9. The Fourth Amendment's prohibition against unreasonable searches and seizures
applies to situations in which a law enforcement officer detains a motor vehicle to
investigate a possible wrongdoing. Reid v. Georgia (1980), 448 U.S. 438, 440, 100 S.Ct.
2752, 2753, 65 L.Ed.2d 890, 893; State v. Lee (1997), 282 Mont. 391, 394, 938 P.2d
637, 639. However, such a stop is permissible if the officer suspects that the
individual stopped has committed or is in the process of committing an offense, even
though there is no probable cause to arrest at the time of the stop. Terry v. Ohio
(1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. In Montana, the guidelines for
executing an investigative stop of a motor vehicle are codified at § 46-5-401, MCA,
which reads:

Investigative stop. In order to obtain or verify an account of the person's presence or conduct or to
determine whether to arrest the person, a peace 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.




¶10. Whether a "particularized suspicion" existed at the time of the stop depends
upon the totality of the circumstances giving rise to the stop. State v. Reynolds (1995),
272 Mont. 46, 49-50, 899 P.2d 540, 542. The totality of the circumstances includes the
evidence as evaluated by the officer in light of the officer's knowledge and training.
State v. Gopher (1981), 193 Mont. 189, 193, 631 P.2d 293, 295. A particularized
suspicion does not require that the law enforcement officer be certain that an offense
has been committed. State v. Morsette (1982), 201 Mont. 233, 240, 654 P.2d 503, 507.

¶11. Martin argues that Deputy McCord lacked the necessary particularized
suspicion to initiate a stop of Martin's vehicle, because while the deputy thought he
saw Martin crossing the center line on three occasions, he could not be absolutely
sure of two of them from the distance at which he was trailing Martin's vehicle, and
the deputy's testimony on this point is too inconsistent to be relied upon. This

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argument is unpersuasive. Our review of the record convinces us that there was
sufficient objective data available to Deputy McCord to form a particularized
suspicion under § 46-5-401, MCA, that Martin was driving while under the influence
of alcohol.

¶12. Deputy McCord made three separate observations of Martin's vehicle driving
over the center line of the highway. While two of these observations were from a
distance of approximately one thousand feet, the third observation was made from a
much closer distance and was actually recorded on film by the deputy's video
camera. Martin's argument regarding how much weight should have been afforded
Deputy McCord's testimony regarding the first two instances of Martin's erratic
driving goes to the credibility of Deputy McCord as a witness, an issue which is
properly left to the determination of the trier of fact, and one which we will not
disturb on appeal. State v. Collard (1997), 286 Mont. 185, 193, 951 P.2d 56, 61.
Likewise, the fact that Deputy McCord failed to record either of the first two traffic
violations on film in the same way that he recorded the third one is not grounds for
disregarding the sworn testimony of Deputy McCord as to what he believes he saw.

¶13. Because there was sufficient objective data from which Deputy McCord could
have formed the requisite particularized suspicion to stop Martin for the purpose of
conducting a further investigation, the District Court did not err in denying Martin's
motion to suppress the evidence gleaned from that stop on those grounds. Affirmed.



/S/ J. A. TURNAGE



We concur:



/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART


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/S/ TERRY N. TRIEWEILER




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