                                                                                        October 13 2015


                                        DA 14-0208
                                                                                        Case Number: DA 14-0208

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      2015 MT 298N



STATE OF MONTANA,

           Plaintiff and Appellee,

    v.

ROBERT LESTER LUCIER,

           Defendant and Appellant.



APPEAL FROM:         District Court of the Nineteenth Judicial District,
                     In and For the County of Lincoln, Cause No. DC-13-52
                     Honorable James B. Wheelis, Presiding Judge


  COUNSEL OF RECORD:

             For Appellant:

                     Wade Zolynski, Chief Appellate Defender, Kristen L. Larson, Assistant
                     Appellate Defender, Helena, Montana

             For Appellee:

                     Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
                     Attorney General, Helena, Montana

                     Bernard Cassidy, Lincoln County Attorney, Libby, Montana



                                                 Submitted on Briefs: September 2, 2015
                                                            Decided: October 13, 2015


  Filed:

                     __________________________________________
                                       Clerk
Chief Justice Mike McGrath 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     Robert Lester Lucier appeals from the order of the Montana Nineteenth Judicial

District, Lincoln County, denying his motion to dismiss all charges filed against him

asserting the officer lacked particularized suspicion to stop his truck. We affirm.

¶3     On Saturday, June 8, 2013, Officer Curtis Meier (Meier) was parked on Highway

93 on the south end of Eureka, Montana. Meier was on patrol, facing south with a view

of the intersection of Highway 93 and Tobacco Road. Highway 93 and Tobacco Road

are both paved, but there was loose gravel at the intersection. Around 11:00 p.m., Meier

observed Robert Lester Lucier (Lucier) approach Highway 93 in his truck from Tobacco

Road. Meier saw Lucier spin his tires, kick up dust and gravel, and accelerate onto

Highway 93. Lucier passed Meier and slowed down after Meier made eye contact with

Lucier. Lucier then made a right turn off of the highway onto First Street and eventually

rejoined Highway 93 from Second Street. Meier drove up Highway 93 and turned onto

Second Street, where he met Lucier again in the other lane. Lucier then rejoined the

highway from Second Street. Meier, having just turned onto Second Street from the

highway, made a three-point turn and followed Lucier back onto Highway 93. As Lucier


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drove up Highway 93, he made another right turn onto Third Street. Meier followed,

activated his overhead lights, and stopped Lucier.         Meier thought Lucier’s driving

behavior was careless and prompted safety concerns. As a result of the stop, Lucier was

charged with one count of DUI, or, in the alternative, one count of DUI per se.

Following a hearing, the District Court denied Lucier’s motion to dismiss for lack of

particularized suspicion. Lucier entered into a plea agreement with the State and reserved

his right to appeal the denial of his motion. Lucier now appeals to this Court.

¶4     We review a district court’s factual findings of particularized suspicion for clear

error and its application of those facts to the law for correctness. State v. Larson, 2010

MT 236, ¶ 15, 358 Mont. 156, 243 P.3d 1130.

¶5     Lucier contends on appeal that the District Court erred in concluding Meier

possessed sufficient objective data to constitute particularized suspicion to justify the

stop. Under Montana law, a peace officer is justified to stop a vehicle “that is observed

in circumstances that create a particularized suspicion that the . . . occupant of the vehicle

has committed, is committing, or is about to commit an offense.” Section 46-5-401(1),

MCA. In order to satisfy the requirement of particularized suspicion, the State must

show that the officer had “(1) objective data and articulable facts from which an

experienced officer can make certain inferences, and (2) a resulting suspicion that the

occupant of [the] vehicle is or has been engaged in wrongdoing.” Larson, ¶ 19 (citing

Brown v. State, 2009 MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842). Particularized

suspicion does not require certainty; it depends on the totality of the circumstances in

which the officer is making the determination. Larson, ¶ 19. This Court has in the past

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held that a peace officer need not witness a specific offense in order to have

particularized suspicion. State v. Cameron, 2011 MT 276, ¶ 15, 362 Mont. 411, 264 P.3d

1136.

¶6      Meier’s observations of Lucier’s driving behavior were sufficient for the District

Court to reasonably find that particularized suspicion was present. Meier saw Lucier

arrive at the intersection on a Saturday night at 11:00 p.m. and rev the truck’s engine,

which caused the tires to spin and upended dust and gravel from the road. After Lucier

accelerated onto to the highway, Lucier and Meier made eye contact, at which point

Lucier slowed down and made an immediate right turn. Furthermore, Meier did not

activate his lights or otherwise try to stop Lucier until Lucier made two additional turns,

which made Meier suspicious that Lucier was trying to avoid being stopped.

Additionally, Lucier’s behavior prompted safety concerns and left Meier with an

impression of careless driving. In Larson, we found similar driving behavior to be

sufficient for particularized suspicion:    the defendant in Larson revved his engine,

screeched his wheels, and then drove across a busy intersection in front of two police

officers with activated light bars.     Larson, ¶ 23.      Considering the totality of the

circumstances here, the facts similar to Larson, and the additional evasive behavior in

this case, we are unable to conclude that it was clear error by the District Court to find

that Meier had particularized suspicion to stop Lucier. The standard for particularized

suspicion only requires that Lucier’s driving behavior reasonably lead Meier to suspect

that Lucier was or had been engaging in wrongdoing. Larson, ¶ 19. We find that the

facts support such a finding, and the District Court correctly applied the law to the facts.

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¶7     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. This appeal

presents neither constitutional issues nor issues of first impression, and does not establish

new precedent or modify existing precedent. Therefore, it is the opinion of the Court that

this case would not otherwise be of future guidance for citation purposes to the citizens of

Montana.

¶8     Affirmed.


                                                     /S/ MIKE McGRATH

We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE




Justice Michael E Wheat, dissenting.

¶9     In my view the Court is wrong to affirm the District Court’s denial of Lucier’s

motion to dismiss for lack of particularized suspicion because the evidence gathered was

not sufficient to justify a stop. Therefore, I respectfully dissent.

¶10    “Whether particularized suspicion exists is evaluated under the totality of the

circumstances and requires consideration of the quantity or content of the information

available to the officer and the quality or degree of reliability of that information.” City

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of Missoula v. Moore, 2011 MT 61, ¶ 16, 360 Mont. 22, 251 P.3d 679 (citing State v.

Rutherford, 2009 MT 154, ¶ 12, 350 Mont. 403, 208 P.3d 389). While I find that the

evidence relied upon for the stop of Lucier to be reliable, I believe it falls short of the

quantity necessary to substantiate a particularized suspicion that the driver of the vehicle

“has committed, is committing, or is about to commit an offense.” Section 46-5-401(1),

MCA.

¶11    In this case, the State relies on the following to establish a particularized suspicion

based upon a “totality of the circumstances”:

          1. A vehicle spins its wheels in gravel while entering the highway, and,

           2. The driver then makes a series of “evasive” legal turns, not speeding
       or violating any other traffic laws.

¶12    There is no bright line established to demonstrate a clear case of particularized

suspicion, which is the reason we rely upon the totality of the circumstances in each case

to determine sufficiency. Because I am arguing that the determination in this case falls

short, I want to review cases on both sides of this standard to illustrate what the Court

currently views as sufficient.

¶13    First, cases where the facts were sufficient to establish a particularized suspicion

to justify a stop. In State v. Cameron, 2011 MT 276, ¶ 3, 362 Mont. 411, 264 P.3d 1136,

Cameron was observed drifting onto the centerline in his vehicle late at night. The

officer followed Cameron for five miles, observed Cameron drift onto the center line four

times, including one stretch where Cameron drove the centerline for 100 yards. We

concluded that the officer had sufficient facts to form a particularized suspicion to initiate


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a stop. In State v. Waite, 2006 MT 216, ¶ 4, 333 Mont. 365, 143 P.3d 116, we found the

stop justified because the officer followed the vehicle, observed the vehicle swerving in

its lane, following too close on another vehicle, crossing the fog line, and swerving across

the centerline of two lanes. We concluded Waite’s actions were sufficient to establish

particularized suspicion for the stop.

¶14    On the other side of the equation, we have found a lack of information to justify

stops made in several cases. I refer to two of those cases with facts similar to Lucier.

First, in State v. Reynolds, 272 Mont. 46, 51, 899 P.2d 540, 543 (1995), the officer

observed that the driver was “bordering on travelling too fast” and then watched the

driver hesitate and wait too long at an intersection after seeing the officer. We concluded

that under the totality of the circumstances that the “possible” traffic violation combined

with waiting too long at a stop sign did not support a particularized suspicion to justify

the traffic stop. Next, in State v. Fisher, 2002 MT 335, ¶¶ 3-5, 21, 313 Mont. 274,

60 P.3d 1004, we did not find support for a particularized suspicion when the defendant’s

attempts to avoid a police officer included legal and ordinary turns while maintaining

appropriate speed.    The driver in Fisher made several evasive turns and this Court

concluded that the driver was attempting to elude or avoid the officer but we did not find

sufficient information to support particularized suspicion.    Both of these cases include

activity that is suspicious and probably could lead to a conclusion of a particularized

suspicion under the totality of the circumstances; but each case lacked enough quantity of

evidence necessary to justify a stop.



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¶15    I believe Lucier’s case is more similar to Reynolds and Fisher. Lucier’s initial act

of spinning his tires in gravel while driving onto Highway 93, (a turn many of our State’s

citizens have made with similar spinning results) fails to meet the careless driving

standard as there was no evidence that Lucier fishtailed, swerved, left his lane, or that he

was speeding. Lucier reduced his acceleration when he looked over and saw the officer;

a typical reaction for many drivers when they see a police officer. None of Lucier’s

actions driving onto Highway 93 appear to be careless or criminal. After this, Lucier

initiated a series of turns which could be considered suspicious. However, the turns are

information that contribute to the totality of the circumstances but need additional support

prior to a conclusion of particularized suspicion. Because of the unlikelihood that Lucier

could mount an escape with the officer so close, it appears there was still opportunity to

gather additional evidence to establish a proper particularized suspicion. This was the

action taken in both Cameron and Waite, where the officers pursued the drivers for a

period of time while gathering evidence of impaired driving.             However, similar to

Reynolds and Fisher, I believe the officer in this case made a judgment based upon too

little evidence and failed to establish sufficient information to justify the stop.

¶16    In my view, the District Court’s conclusion that the particularized suspicion was

supported is incorrect, because the total quantity of evidence in this case is not sufficient

to establish that standard under the totality of the circumstances. Moore, ¶ 16. I dissent

here because the greater hazard of the majority’s decision is to move the goalposts further

in favor of the State, making it easier to establish reasons to unfairly stop our citizens in

their daily lives. Ultimately, I believe that upholding the quantity of evidence in this case

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as sufficient lowers this Court’s established standard for particularized suspicion and

reduces our citizen’s right to be free from unwarranted intrusion by law enforcement.



                                                  /S/ MICHAEL E WHEAT


   Justice Laurie McKinnon joins in the dissenting Opinion of Justice Michael E Wheat.



                                                  /S/ LAURIE McKINNON




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