                                      No. DA 06-0224

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 47



STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

WILLIAM BENJAMIN LUCKETT,

              Defendant and Appellant.



APPEAL FROM:         The District Court of the Thirteenth Judicial District,
                     In and For the County of Yellowstone, Cause No. DC-05-0767,
                     Honorable Susan P. Watters, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Brad L. Arndorfer, Arndorfer Law Firm, P.C., Billings, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Pamela Bucy, Assistant
                     Attorney General; Jessie Lundberg, Legal Intern, Helena Montana

                     Dennis Paxinos, County Attorney; Laura E. Watson, Deputy County
                     Attorney, Billings, Montana


                                                       Submitted on Briefs: January 10, 2007

                                                                  Decided: February 21, 2007

Filed:


                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1    Defendant William Luckett appeals the order of the Thirteenth Judicial District

Court, Yellowstone County, finding that a police officer had the requisite particularized

suspicion necessary to make an investigative stop of his vehicle. We affirm.

¶2    We state the issue as follows: Did the District Court err in denying Luckett’s

motion to dismiss based on its finding that the arresting officer had particularized

suspicion to conduct an investigative stop of Luckett’s vehicle?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3    On February 11, 2005, around 7:20 p.m., Deputy Reyna of the Yellowstone

County Sheriff’s Department was patrolling the area of the Pelican Truck Stop near

Billings, Montana. Deputy Reyna observed two men, later identified as Luckett and

Harold Creighton, standing in the parking lot, drinking beer. Three other men later

joined Luckett and Creighton in the parking lot.       Shortly thereafter, Deputy Reyna

observed either Luckett or Creighton place his beer on the ground and enter a Ford

Crown Victoria. Luckett was later identified as the driver of the Crown Victoria. Deputy

Reyna followed Luckett as Luckett drove onto Interstate 90. Deputy Reyna testified that

he followed Luckett to “make sure they were okay” as he had just witnessed the two men

drinking beer.

¶4    Once on Interstate 90 Deputy Reyna followed Luckett, who was headed west

towards Laurel, Montana. The other men in Luckett’s group also were driving on

Interstate 90 and were in a white pickup truck that was traveling between Deputy Reyna

and Luckett. Despite the white pickup truck between him and Luckett’s Crown Victoria,


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Deputy Reyna was still able to observe Luckett’s driving. In particular, Deputy Reyna

observed Luckett driving at 50 miles per hour in a 75 miles her hour speed zone while

weaving and also crossing the fog line on at least two occasions. Luckett exited Interstate

90 at Laurel where Deputy Reyna proceeded to initiate a traffic stop. Based upon his

contact with Luckett, Deputy Reyna believed Luckett was under the influence of alcohol.

¶5      Luckett was subsequently charged with driving under the influence of alcohol

(DUI) and careless driving.       Luckett filed a motion to dismiss arguing lack of

particularized suspicion. The District Court denied the motion. Pursuant to a plea

agreement, Luckett subsequently entered a guilty plea reserving the right to appeal the

District Court’s denial of his motion to dismiss. Luckett timely appeals.

                               STANDARD OF REVIEW

¶6      The grant or denial of a motion to dismiss in a criminal proceeding is a question of

law which we review to determine whether the district court’s conclusion of law is

correct. State v. Trombley, 2005 MT 174, ¶ 5, 327 Mont. 507, ¶ 5, 116 P.3d 771, ¶ 5

(citing City of Missoula v. O’Neill, 2004 MT 328, ¶ 5, 324 Mont. 124, ¶ 5, 102 P.3d 21,

¶ 5).    When the question is one of particularized suspicion, the district court’s

determination in that regard is reviewed under the clearly erroneous standard. Trombley,

¶ 5 (citing State v. Steen, 2004 MT 343, ¶ 5, 324 Mont. 272, ¶ 5, 102 P.3d 1251, ¶ 5).

                                      DISCUSSION

¶7      Did the District Court err in denying Luckett’s motion to dismiss based on its
        finding that the arresting officer had particularized suspicion to conduct an
        investigative stop of Luckett’s vehicle?




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¶8     Luckett contends that the District Court erred when it denied his motion to dismiss

because Deputy Reyna did not possess the necessary particularized suspicion to justify an

investigative stop. A peace officer may stop a vehicle that is observed in circumstances

that create particularized suspicion that the occupant of the vehicle has committed, is

committing, or is about to commit an offense. Section 46-5-401, MCA. To determine

whether such particularized suspicion exists, the State must show: (1) objective data from

which an experienced officer could make certain inferences, and (2) a resulting suspicion

that the occupant of the vehicle in question is or has been engaged in some wrongdoing.

State v. Britt, 2005 MT 101, ¶ 8, 327 Mont. 1, ¶ 8, 111 P.3d 217, ¶ 8. Whether

particularized suspicion exists is a question of fact dependent on the totality of the

circumstances surrounding the investigative stop. Britt, ¶ 8. We evaluate the totality of

the circumstances by considering the quantity, or content, and quality, or degree of

reliability, of the information available to the officer. Britt, ¶ 8.

¶9     The District Court found that Deputy Reyna did have particularized suspicion to

stop Luckett’s vehicle and based its finding on the following facts: Deputy Reyna saw

Luckett and another man drinking and observed them get into the Crown Victoria.

Deputy Reyna then observed Luckett’s slow rate of speed on Interstate 90. Finally,

Deputy Reyna observed Luckett weaving on the Interstate and specifically, crossing the

fog line on two separate occasions. Based on these facts, the District Court found that

Deputy Reyna had particularized suspicion to stop Luckett and investigate his suspicions.

¶10    Luckett makes several generalized arguments.            First, Luckett claims he was

driving slowly because “with $3.00 gas many people drive at 50 miles per hour.” Luckett


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also contends that Deputy Reyna’s stop was a “random check” for alcohol. Luckett

further argues that “[t]here was a vehicle between the officer and Mr. Luckett’s vehicle

traveling 50 mph but the officer didn’t stop that one.” Luckett lastly contends that

Deputy Reyna’s sole justification for the investigative stop was based on observing

Luckett and Creighton drinking beer at the Pelican Truck Stop and thus, Deputy Reyna’s

stated reason was merely a pretext to investigate whether Luckett was under the influence

of alcohol.

¶11    We note that Luckett fails to ever properly apply the applicable standard as to

whether particularized suspicion exists here—that is, the totality of the circumstances

surrounding Deputy Reyna’s stop of Luckett’s vehicle. We find nothing in the record to

substantiate Luckett’s claims. Rather, it is clear that Deputy Reyna stopped Luckett

based on witnessing Luckett and Creighton drinking, the two men subsequently driving

away in the Crown Victoria while driving at a noticeably slow rate of speed on Interstate

90, the vehicle weaving along the highway, and the vehicle crossing the fog line.

Moreover, Deputy Reyna testified that although there was another vehicle between him

and the Crown Victoria, he was nevertheless able to fully observe Luckett’s driving. The

record further indicates that Deputy Reyna had over four years experience in law

enforcement and had completed multiple training sessions through the Montana Law

Enforcement Academy, including training in DUI detection. Given the objective data

presented by the State through the observations of Deputy Reyna, which gave rise to his

suspicions that Luckett was engaged in some wrongdoing, the District Court’s finding




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that there was particularized suspicion for conducting an investigative stop was not

clearly erroneous.

¶12    In addition to arguing there was no factual basis for a finding of particularized

suspicion, Luckett also seeks relief under the holding of State v. Lafferty, 1998 MT 247,

291 Mont. 157, 967 P.2d 363, that merely crossing the fog line, on its own, did not

support a finding of particularized suspicion.    Lafferty, ¶¶ 17-18.    Here—unlike in

Lafferty—Deputy Reyna testified, based on his training and experience, that he not only

observed Luckett crossing the fog line, but also driving at an abnormal speed, weaving,

and that he had previously witnessed Luckett and Creighton drinking beer. Lafferty is

clearly distinguishable.

¶13    Luckett further argues that this case is similar to State v. Jarman, 1998 MT 277,

¶¶ 15-16, 291 Mont. 391, ¶¶ 15-16, 967 P.2d 1099, ¶¶ 15-16, where we held an officer

did not have particularized suspicion to conduct an investigative stop of an individual

solely based on the officer’s observations of the individual talking on a pay phone on a

cold night in a high crime area, driving away, and leaving the pay phone off the hook.

We agree with the State that Jarman is distinguishable from the case at bar because in

Jarman the behavior the officer observed did not connect the defendant to the crimes the

officer suspected. Jarman, ¶ 15. Here Deputy Reyna’s observations directly connected

Luckett to a possible DUI violation.

¶14    Luckett finally advances State v. Lee, 282 Mont. 391, 938 P.2d 637 (1997), for the

proposition that an officer’s observation of a vehicle traveling 35 miles per hour in a 70




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miles per hour speed zone is insufficient to establish particularized suspicion. 1 In Lee,

we held that information provided by a citizen informant alone, with no other objective

data observed by law enforcement, does not support a finding of particularized suspicion.

Lee, 282 Mont. at 396, 938 P.2d at 640. Lee is clearly not on point with the case at bar as

there is no citizen informant here and Deputy Reyna personally observed the events that

preceded the investigative stop. Thus, we will not address Luckett’s argument with

respect to Lee.

                                     CONCLUSION

¶15    Although Luckett claimed he was not drinking, Deputy Reyna observed Luckett

and Creighton drinking beer at the Pelican Truck Stop. Deputy Reyna further watched

Luckett and Creighton shortly thereafter drive onto Interstate 90. While on Interstate 90,

it is uncontroverted that Luckett was driving abnormally slow for the conditions, crossed

the fog line, and was weaving. Accordingly, we hold the District Court’s finding that

Deputy Reyna had particularized suspicion to conduct an investigative stop of Luckett’s

vehicle was not clearly erroneous.

¶16    The judgment of the District Court is affirmed.




                                                /S/ W. WILLIAM LEAPHART




       1
       In his brief, Luckett erroneously claims that Lee involved a 70 miles per hour
speed zone. In actuality, Lee involved a 55 miles per hour speed zone. Lee, 282 Mont. at
393, 938 P.2d at 639.

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We concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ BRIAN MORRIS




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