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                                                                No. 98-440

                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             1999 MT 300N



STATE OF MONTANA,

Plaintiff and Respondent,

v.

GEOFFREY MORRISON,

Defendant and Appellant.




                                                          APPEAL FROM: District Court of the Tenth Judicial District,

In and for the County of Fergus,

The Honorable Roy Rodeghiero, Judge presiding.




COUNSEL OF RECORD:

For Appellant:

Torger Oaas, Lewistown, Montana


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For Respondent:

Joseph P. Mazurek, Attorney General, Cregg Coughlin, Assistant Attorney General, Helena, Montana;
Thomas P. Meissner, Fergus County Attorney, Lewistown, Montana




Submitted on Briefs: June 10, 1999

Decided: December 6, 1999

Filed:




__________________________________________

Clerk

Justice William E. Hunt, Sr. 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. ¶ Geoffrey Morrison (Morrison) was charged by information on September 27,
         1997, with the offense of driving under the influence of alcohol. Morrison filed a
         motion in district court to suppress the evidence of his offense on the grounds the
         arresting officer did not have a particularized suspicion to make the traffic stop and
         therefore the subsequent arrest was unlawful. On April 14, 1998, the Tenth Judicial
         District Court, Fergus County, denied Morrison’s motion to suppress and issued an

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        order to that effect. On June 10, 1998, Morrison pleaded guilty to the DUI charge
        and was sentenced to 24 hours in jail, a fine of $350, $20 in fees, and completion of
        the ACT program for that offense. Morrison reserved his right to appeal the District
        Court’s denial of his pretrial motion. Morrison’s sentence was stayed pending this
        appeal from the District Court’s order. We affirm.

Morrison presents the following issue on appeal:

      2. ¶ Did Patrolman Mantooth have particularized suspicion to stop Morrison’s vehicle?




                                  FACTUAL AND PROCEDURAL BACKGROUND

      3. ¶ At 10:55 p.m. the dispatcher at the Fergus County Sheriff’s Office received a
         phone call from an informant, a Mr. Rick Jones, (Jones) giving his name, address
         and telephone number to the dispatcher. At 10:58, Jones called again giving the
         dispatcher the license plate number of Morrison’s vehicle. In both calls, Jones
         described extremely erratic driving by Morrison, to the effect that he was swerving
         and weaving on the roadway. Patrolman Mantooth (Mantooth) who was at the
         Fergus County Sheriff’s Office at the time the calls were made, left to intercept
         Morrison on the truck bypass route into Lewistown.
      4. ¶ Mantooth passed Morrison’s vehicle just north of Lewistown, identified it by its
         license plate number, stopped it without observing evidence of Morrison’s
         intoxicated condition, and subsequently arrested Morrison for DUI.

                                                       STANDARD OF REVIEW

      5. ¶ The standard of review for a district court’s denial of a motion to suppress is
        whether the court’s findings of fact are clearly erroneous and whether those findings
        were correctly applied as a matter of law. State v. Pratt (1997), 286 Mont. 156, 160-
        161, 951 P.2d 37, 40 (citing State v. Flack (1993), 260 Mont 181, 185-188, 860 P.2d
        89, 92-94).

                                                                 DISCUSSION

      6. ¶ Morrison argues that Mantooth did not have sufficient particularized suspicion to
        stop Morrison’s vehicle based solely on a citizen informant’s telephone tips. The
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        facts surrounding Morrison’s stop are much like the facts of the controlling case in
        this area, State v. Pratt, in which we held that a citizen informant’s tip may provide
        the basis for an investigatory stop. Morrison does not challenge the District Court’s
        findings of fact, nor does he claim that they were applied incorrectly as a matter of
        law. Morrison’s sole objective in bringing this case appears to be for this Court to
        overrule its holding in Pratt. We decline to do so.
     7. ¶ In Pratt, an informant called Missoula police to report a drunk driver. He included
        in his description the color, make, model, license plate number and direction of
        travel of the vehicle. A Missoula police officer who saw Pratt’s vehicle driving
        toward him noticed the vehicle matched the informant’s description, initiated a
        traffic stop, and eventually arrested Pratt for DUI. We held that the officer, who had
        not personally observed behavior by Pratt which would indicate his intoxicated
        condition, had sufficient particularized suspicion to initiate the investigatory stop
        based on the informant’s tip. Pratt, 286 Mont. at 160, 951 P.2d at 44.
     8. ¶ When circumstances create a particularized suspicion that a person is committing
        an offense, a peace officer may stop the person or the vehicle containing the person
        to determine whether to arrest the person. State v. Lafferty, 1998 MT 247, ¶ 9, 291
        Mont. 157, ¶ 9, 967 P.2d 363, ¶ 9. See §46-5-401, MCA.

       In asserting that a police officer had the particularized suspicion to make an
       investigatory stop, the State has the burden to show: ‘(1) objective data from which
       an experienced officer can make certain inferences; and (2) a resulting suspicion
       that the occupant of a certain vehicle is or has been engaged in wrongdoing or was a
       witness to criminal activity’.

       Pratt, 286 Mont at 161, 951 P.2d at 40 (citing State v. Gopher (1981), 193 Mont.
       189, 194, 631 P.2d 293, 296). Whether a particularized suspicion exists is a question
       of fact which depends on the totality of the circumstances. Pratt, 286 Mont. at 161,
       951 P.2d at 40 (quoting State v. Reynolds (1995), 272 Mont. 46, 899 P.2d 540). "[A]
       n arresting officer may rely on an informant’s tip, including that of an anonymous
       informant, if conveyed by a reliable third person, in forming the basis for a
       particularized suspicion to justify an investigative stop." Pratt, 286 Mont. at 162,
       951 P.2d at 41 (citing Boland v. State (1990), 242 Mont. 520, 792 P.2d 1 (overruled
       on other grounds)). See State v. Ellinger (1986), 223 Mont. 349, 725 P.2d 1201.

     9. ¶ The basis for Morrison’s argument that such a tip is insufficient to form a
       particularized suspicion to justify an investigative stop is that "[a] telephone

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     informant can perpetuate all kinds of havoc on innocent motorists and hide between
     [sic] the protection of telephone anonymity." We find Morrison’s argument
     unpersuasive.
 10. ¶ In adopting the Oregon Court of Appeals’ three-part-test in State v. Villegas-
     Varela (1994),132 Or.App. 112, 887 P.2d 809, for evaluating a citizen informant’s
     report, we carefully considered the issue of the reliability of such informant tips.

       Citizen informants can provide useful information and play an important role in law
       enforcement. At the same time, however, it is imperative to recognize the potential
       for abuse if the information provided by a citizen informant is not reliable.

       Pratt, 286 Mont. at 164, 951 P.2d at 42.

 11. ¶ The three-part-test this court adopted in Pratt is 1) whether the citizen informant
       identified himself to the authorities and thus exposed himself to civil and criminal
       liability if the report is false; 2) whether the report is based upon the citizen
       informant’s personal observations; and 3) whether the officer’s own observations
       corroborated the informant’s information. State v. Roberts, 1999 MT 59, ¶17, 293
       Mont. 476, ¶17, 977 P.2d 974, ¶17 (citing Pratt, 286 Mont. at 165, 951 P.2d at 42-
       43).
 12.   ¶ The State contends that the citizen informant’s report was reliable because Jones
       identified himself to law enforcement, his report was based on his own observations,
       and Officer Mantooth found the vehicle substantially as described by Jones, i.e. in
       the location, driving in a direction, at a time as Jones had described.
 13.   ¶ We agree with the State that the elements of the Pratt test are satisfied. Jones gave
       his name, address, and telephone number when reporting information about
       Morrison’s erratic driving, thereby exposing himself to civil and criminal liability if
       the report was false. He also gave Morrison’s license plate number and stated that
       the driver of the vehicle was "weaving on the road". Jones personally made these
       observations while driving behind Morrison’s vehicle on the highway.
 14.   ¶ Based on the above reasoning, we agree with the State that Morrison offers no
       sound reasoning for reversing the decision in Pratt.
 15.   ¶ We hold that based on an informant’s tips, Officer Mantooth had sufficient
       information to form the basis for particularized suspicion to justify an investigative
       stop of Morrison’s vehicle.
 16.   ¶ Affirmed.



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/S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER



Justice Terry N. Trieweiler dissenting.



  18. ¶ I dissent from the majority's conclusion that Patrolman Kelly Mantooth had
      sufficient particularized suspicion to make an investigatory stop of the vehicle being
      operated by Rick Jones on September 27, 1997. Furthermore, if we have now
      reached the point that our decision in State v. Pratt (1997), 286 Mont. 156, 951 P.2d
      37 can be interpreted to allow an investigatory stop of a vehicle based on nothing
      more than a citizen informant's tip, then I conclude that State v. Pratt flies in the
      face of the statutory requirements for an investigative stop, not to mention the
      constitutional right to be free from unreasonable searches and seizures and I would,
      therefore, reverse that decision.
  19. ¶ Section 46-5-401, MCA, provides as follows:

        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.

  20. ¶ The facts in this case are undisputed. Neither Officer Mantooth nor any other law
      officer observed any circumstances about Morrison's operation of his vehicle that
      created a particularized suspicion that Morrison was committing an offense.
  21. ¶ We discussed the application of § 46-5-401, MCA in a non-motor vehicle context
      in State v. Gopher (1981), 193 Mont. 189, 631 P.2d 293. However, in Gopher we

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       relied on the United States Supreme Court's decision in United States v. Cortez
       (1981), 449 U.S. 411, 101 S. Ct. 690, 66 L. Ed. 2d 621, to conclude when facts and
       circumstances are constitutionally sufficient to permit an investigatory stop of a
       motor vehicle. We noted that an important element of the Cortez analysis allowing
       investigative stops, was that Court's emphasis on the ability of experienced law
       enforcement officers to draw certain conclusions which laymen would not be able to
       draw under the same circumstances. Gopher, 193 Mont. at 193, 631 P.2d at 295.
       Based on Cortez we articulated the following two-part test which must necessarily
       be satisfied to give rise to the particularized suspicion necessary to justify an
       investigatory stop of a person's automobile:

       The State's burden has two elements: (1) objective data from which an experienced
       officer can make certain inferences; and (2) a resulting suspicion that the occupant
       of a certain vehicle is or has been engaging in wrongdoing or was a witness to
       criminal activity.

       193 Mont. at 194, 631 P.2d at 296 (emphasis added).

 22. ¶ The critical factor in both Cortez and Gopher is that trained and experienced law
     enforcement officers are capable of making inferences from the observation of
     certain facts which lay people are not qualified to make. Nothing in Gopher or
     Cortez authorized investigative stops based purely on secondhand information
     provided to law officers by untrained citizens.
 23. ¶ This underlying premise of search and seizure law was recognized in the DUI
     context recently in State v. Lee (1997), 282 Mont. 391, 938 P.2d 637. In Lee an
     anonymous citizen informant reported a belief that the defendant was operating his
     motor vehicle under the influence of alcohol and described the probable
     whereabouts of the vehicle. When observed by a highway patrolman less than one-
     half hour later the defendant slowed his vehicle to a speed approximately 20 miles
     slower than the speed limit but the officer observed no other irregularities in his
     manner of operation before making an investigative stop. On appeal from the
     defendant's conviction for driving under the influence of alcohol, we noted that § 46-
     5-401, MCA requires a particularized suspicion for an investigatory stop and that
     operators of motor vehicles are otherwise protected against investigatory stops by
     the Fourth Amendment. We stated:

       The Fourth Amendment applies to seizures of the person, including brief


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       investigatory stops such as the stop of a vehicle. Reid v. Georgia (1980), 448 U.S.
       438, 440, 100 S. Ct. 2752, 2753, 65 L. Ed. 2d 890, 893. An investigatory stop must
       be justified by some objective manifestation that the person stopped is, or is about to
       be, engaged in a crime. For sufficient cause to stop a person, the detaining police
       officers must have a particularized and objective basis for suspecting the particular
       persons stopped of criminal activity.

       Lee, 282 Mont. at 394, 938 P.2d at 639 (citation omitted).

 24. ¶ In Lee we referred to the two-part test established in Cortez and Gopher and held
     that the test can be satisfied by a combination of information including that which is
     provided by a citizen informant so long as it is corroborated by "independent
     observations of wrongdoing or illegality by the officer . . . ." Lee, 282 Mont. at 395,
     938 P.2d at 640. We held, however, that in that case where there was no factual
     basis provided for the caller's suspicion of wrongdoing and the officer did not
     personally observe any evidence of wrongdoing by the defendant there was no
     objective data which would have enabled the officer to reach a conclusion justifying
     an investigative stop. In other words, there was insufficient objective data to support
     a particularized suspicion that the defendant had been engaged in wrongdoing. Lee,
     282 Mont. at 396, 938 P.2d at 640.
 25. ¶ However, the ink was barely dry on the Lee opinion when seven months later we
     decided State v. Pratt (1997), 286 Mont. 156, 951 P.2d 37. In Pratt an identified
     citizen informant reported to police that an intoxicated person was operating a motor
     vehicle. He described to the police the motor vehicle and its approximate location
     and direction of travel. When an officer who overheard the report observed the
     vehicle traveling at that location in the direction reported he initiated a stop
     following which the defendant was arrested for DUI. A more detailed description of
     the defendant's prearrest activities was given by the informant subsequent to the
     stop. However, the arresting officer did not have that information at the time of the
     arrest. On appeal Pratt argued there were insufficient facts to give rise to a
     particularized suspicion justifying the investigative stop. We acknowledged § 46-5-
     401, MCA and our decisions in Gopher and Lee, but distinguished Pratt on the basis
     that the informant in that case had identified himself. We adopted the three-part test
     referred to in the majority opinion, i.e., (1) whether the citizen informant identifies
     himself; (2) whether the report is based on personal observations of the informant;
     and (3) whether the officer's own observations corroborate the informant's
     information. This Court combined the information communicated by the informant

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     both before and after the stop to satisfy the second prong of the test and accepted the
     police officer's observation of the vehicle traveling in the direction and on the street
     described in satisfaction of the third prong of the test.
 26. ¶ The problem with Pratt, (in addition to the fact that nothing in the prearrest report
     by the informant indicated that it was based on personal observation) is that it
     completely eliminates the stated basis which justified investigative stops in Cortez
     and in Gopher. That basis was specialized knowledge by experienced law
     enforcement officers which enabled them to draw conclusions from their
     observations which would not be apparent to ordinary citizens. If the third prong of
     the Pratt test requires no more corroboration than that the vehicle is at the place
     described by the informant or proceeding in the direction indicated by the informant,
     then the investigating officer's experience adds nothing to the equation and the
     corroboration requirement adds nothing to the information provided by the citizen
     informant. In effect, what we have done with Pratt, and taken to a new extreme in
     this case, is established a rule that the particularized suspicion requirement for
     investigative stops can be satisfied based solely on information provided by a citizen
     informant with no consideration given to the specialized experience on which the
     investigative stop exception to the Fourth Amendment was originally based in
     Cortez and Gopher. In other words, the whole factual predicate for allowing
     investigative stops as an exception to the Fourth Amendment (i.e., specialized
     knowledge) is no longer a requirement for an investigative stop since Pratt. (Unless,
     of course, it takes special training and experience to corroborate the report that the
     vehicle is at the location where it was reported to be.)
 27. ¶ If the result described is this Court's intention then it should state clearly for the
     benefit of law enforcement officials that from this date forward the only thing
     required to establish a particularized suspicion is information from a citizen
     informant. On the other hand, if corroboration of what the police have been told by
     the informant is in fact significant, then it must necessarily involve corroboration of
     some illegal or irregular activity. Simply finding the vehicle reported at the place
     where it was reported doesn't corroborate anything relevant to the creation of a
     particularized suspicion.
 28. ¶ For these reasons, I conclude that the decision of the majority in this case is
     contrary to the plain language of our statutory requirement found at § 46-5-401,
     MCA that investigative stops cannot be initiated without a particularized suspicion
     of criminal activity and that the decision further offends the prohibition found at the
     Fourth Amendment of the United States Constitution against unreasonable searches
     and seizures. To the extent that this result is authorized by our prior decision in State

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       v. Pratt, I would reverse that decision.

/S/ TERRY N. TRIEWEILER




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