                                                                                                05/05/2020


                                          DA 19-0430
                                                                                            Case Number: DA 19-0430

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2020 MT 111N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.                                                                      FILED
JOSEPH H. SCHMAUS,                                                                MAY 0 5 2020
                                                                                Bowen Greenwood
                                                                              Clerk of Supreme Court
                                                                                 State of Montana
               Defendant and Appellant.



APPEAL FROM:           District Court ofthe First Judicial District,
                       In and For the County of Lewis and Clark, Cause No. DDC 2019-78
                       Honorable James P. Reynolds, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Joseph H. Schmaus, Self-represented, Helena, Montana

                For Appellee:

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

                      Leo John Gallagher, Lewis and Clark County Attorney, Peter E. Delmoe,
                      Deputy County Attorney, Helena, Montana



                                                   Submitted on Briefs: February 26,2020

                                                             Decided: May 5, 2020


Filed:


                                           Clerk
Justice Dirk Sandefur delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, we decide this case by memorandum opinion. It shall not be cited and has no

precedential value. The case title, cause number, and disposition shall be included in our

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Joseph H. Schmaus appeals pro se from the judgment of the Montana First Judicial

District Court, Lewis and Clark County, affirming the judgment of the Lewis and Clark

County Justice Court denying his motion to suppress evidence of driving under the

influence of alcohol (DUI). He asserts that the investigating Montana Highway Patrol

Trooper lacked sufficient particularized suspicion to make the initial non-DUI-related

traffic stop that ultimately led to the discovery of DUI evidence against him. We affirm.

       On July 28, 2018, the Trooper was stopped southbound on Green Meadow Drive in

Helena at a red light at the intersection of Green Meadow and Custer Avenue, waiting to

turn west onto Custer. He observed a Toyota minivan, traveling eastbound on Custer,

approach and enter the intersection without slowing as the traffic light changed from yellow

to red. Based on the apparent red light violation, the Trooper turned left onto Custer,

activated his patrol car top lights, and pursued. After the minivan failed to stop and

continued eastbound through the next controlled intersection at North Benton Avenue, the

pursuing Trooper activated his emergency siren. The minivan continued on through at

least one more intersection before eventually turning off Custer and stopping on a bus loop

in front of the Four Georgians School. The Trooper approached on foot, identified the

driver as Schmaus, and, upon observing indicia of alcohol impairment, initiated a DUI
                                             2
investigation. He ultimately arrested Schmaus and cited him into Justice Court on a red

light violation and second offense Aggravated DUI.

¶4     After pleading not guilty, Schmaus filed separate motions through counsel to

dismiss the red light violation due to lack ofprobable cause and the DUI charge due to lack

ofparticularized suspicion for the initial investigative stop. Upon hearing,the Justice Court

denied both motions. Pursuant to an apparent oral plea agreement, Schmaus later pled

guilty to a reduced DUI charge (second offense DUI per se). The court then dismissed the

red light violation, sentenced him on the DUI charge, and stayed execution of sentence

pending appeal. Schmaus timely appealed the denial of his motion to dismiss the original

DUI charge. After the District Court affirmed, Schrnaus timely appeals here.

¶5     On appeal from a justice court of record, district courts function as intermediate

appellate courts confined to review of the record and questions of law. Sections 3-5-303

and 3-10-115, MCA; State v. Luke, 2014 MT 22, ¶ 9, 373 Mont. 398, 321 P.3d 70.1 On

appeal of a district court ruling on a justice court appeal, we review the justice court ruling

as if appealed directly to this Court. State v. Maile, 2017 MT 154, ¶ 7, 388 Mont. 33,

396 P.3d 1270; Stanley v. Lemire, 2006 MT 304, Tilt 25-26, 334 Mont. 489, 148 P.3d 643.

We review a lower court denial of a motion to suppress evidence for whether pertinent

findings of fact are clearly erroneous and whether the court correctly applied controlling

law. State v. Foster, 2017 MT 118, ¶ 6, 387 Mont. 402, 394 P.3d 916; State v. Massey,

2016 MT 316, ¶ 7, 385 Mont. 460, 385 P.3d 544.



1 The Lewis and Clark County Justice Court is a court ofrecord as defined by § 3-10-101(5), MCA.

                                               3
¶6      As an exception to the warrant requirements ofthe Fourth Arnendment to the United

States Constitution and Montana Constitution Article II, Section 11, a law enforcement

officer may briefly stop and detain a person for investigative purposes without a warrant

or probable cause if, based on specific and articulable facts known to the officer, including

rational inferences from the perspective ofthose versed in law enforcement, the officer has

an objectively reasonable, particularized suspicion that the person is engaged, or about to

engage, in criminal activity. State v. Elison, 2000 MT 288, ¶ 15, 302 Mont. 228, 14 P.3d

456; State v. Roberts, 1999 MT 59, ¶ 12, 293 Mont. 476, 977 P.2d 974; State v. Reynolds,

272 Mont. 46, 49-50, 899 P.2d 540, 542(1995); State v. Gopher, 193 Mont. 189, 193-94,

631 P.2d 293, 295-96 (1981); United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct.

690, 694-95 (1981); Terry v. Ohio, 392 U.S. 1, 16-19, 88 S. Ct. 1868, 1877-79 (1968).2

The particularized suspicion standard does not require that an officer be certain, or even

ultimately correct, that a person was in fact engaged in the suspected crirninal activity. See

State v. Thomas, 2008 MT 206, ¶ 10, 344 Mont. 150, 186 P.3d 864; State v. Henderson,

1998 MT 233, ¶ 12, 291 Mont. 77, 966 P.2d 137; Gopher, 193 Mont. at 192, 631 P.2d

at 295; Cortez, 449 U.S. at 418, 101 S. Ct. at 695.3 Whether an officer had sufficient


2 See also §§ 46-5-401(1) and -403, MCA (authorizing temporary investigative stops based on
particularized suspicion of criminal activity); State v. Bar-Jonah, 2004 MT 344, ¶ 42, 324 Mont.
278, 102 P.3d 1229 (noting Montana codification of constitutional principles).

3 Based on additional information developed incident to a lawful stop, new or broader
particularized suspicion ofcrhninal activity may develop and thus permissibly expand the duration
and scope of the stop beyond its initial purpose. State v. Case, 2007 MT 161, ¶ 34, 338 Mont. 87,
162 P.3d 849; State v. Carlson, 2000 MT 320, ¶ 21, 302 Mont. 508, 15 P.3d 893; Hulse v. State,
1998 MT 108,740-42, 289 Mont. 1, 961 P.2d 75; State v. Sharp, 217 Mont. 40, 46, 702 P.2d
959, 963 (1985).

                                               4
particularized suspicion ofcriminal activity for an investigative stop is generally a question

of fact under the totality of circumstances. Kaufman, ¶ 11; Cortez, 449 U.S. at 417-18,

101 S. Ct. at 695.

¶7        Here, the only evidence presented and considered at the hearing on Schmaus's

suppression motion was the investigating Trooper's incident report and a 26-second video

recording from his onboard patrol car camera that captured Schmaus's approach and

passage through the subject intersection.4 The video clearly showed that the subject traffic

light was green for east-west traffic on Custer Avenue as the Trooper approached the

intersection. However, due to the lirnited carnera angle from where the patrol car was

stopped, the video did not show the light when the minivan crossed into the intersection.

          However, the Trooper's uncontested incident report stated that:

         [he] observed . . . a minivan heading eastbound which did not attempt to
         reduce speed for the light. . . . [T]he front tires of the vehicle crossed into
         the intersection as the light changed from yellow to red. The minivan made
         no attempt to reduce speed or stop as the light changed color.

The Justice Court accordingly found that "the incident took place in an instant" and that

the Trooper "observed the minivan go through what he apparently thought was a red light."

If found credible by the finder of fact, an officer's uncorroborated observations are

sufficient alone for particularized suspicion for an investigative stop. State v. Deines,

2009 MT 179, ¶ 21, 351 Mont. 1, 208 P.3d 857. Accord Kummerfeldt v. State, 2015 MT

109, ¶ 11, 378 Mont. 522, 347 P.3d 1233 (affirming lower court conclusion of sufficient




4   Schmaus presented both exhibits without objection from the State.

                                                 5
particularized suspicion based on uncorroborated officer's account where onboard video

of the scene and circumstances was inconclusive). Under the totality ofthe circumstances

indicated on the evidentiary record here, we hold that the Justice Court did not erroneously

conclude that the Trooper had sufficient particularized suspicion of a red light violation for

the initial investigative stop.

¶9     This case presents a question controlled by settled law or by the clear application of

the applicable standard of review. We accordingly decide this case by memorandum

opinion pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules.

¶10    Affirmed.



                                                          :4 A4  2   '41°L
                                                              Justice

We concur:




                                             6
