                                                                                                 09/26/2017


                                           DA 16-0535
                                                                                             Case Number: DA 16-0535

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 237



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

KYLE WADE NELSON,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC-16-137
                        Honorable Karen Townsend, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Nathaniel S. Holloway. Paul T. Ryan, Paul Ryan & Associates, PLLC,
                        Missoula, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                        Attorney General, Helena, Montana

                        Kirsten Pabst, Missoula County Attorney, Brittany Santorno, Deputy
                        County Attorney, Missoula, Montana



                                                    Submitted on Briefs: August 2, 2017

                                                                Decided: September 26, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.


¶1     Kyle Wade Nelson (Nelson) appeals from the District Court’s denial of his motion

to suppress. We affirm.

¶2     We restate the issue on appeal as follows:

       Did the District Court err when it denied defendant’s motion to suppress?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶3     On July 25, 2015, Kittrell Saunders (Saunders), a waitress, called 911 to report a

drunk individual driving away from a restaurant. Saunders called 911 while a coworker,

Justin Sharbono (Sharbono), watched the individual leave the restaurant, get in his vehicle,

and drive away. Saunders reported her first and last name, the location of where she was

calling from, her place of employment, a make, model, and license plate number of the

vehicle, as well as the location of travel. Saunders reported Sharbono’s name and that they

were both willing to sign a complaint about what they witnessed. Saunders spoke with

both the 911 operator and Sharbono simultaneously. Saunders informed dispatch that the

man was “walking into stuff, and he was going all over the place. He couldn’t walk in a

straight line to save his life, and then he got in the, stumbled around and got in the vehicle.”

Sharbono, while not the caller, could be heard by the dispatcher say, “he just bounced off

that wall.”

¶4     Montana Highway Patrol Trooper Luke Burson was on patrol in the area when he

received the report from dispatch. Eleven minutes after the initial report, Trooper Burson

located the van in a hotel parking lot. He observed the vehicle drive from the check-in area


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to a spot in the parking lot. Trooper Burson activated his lights and made contact with the

driver, Nelson.    Trooper Burson conducted a driving under the influence (DUI)

investigation after he smelled alcohol on Nelson. Trooper Burson arrested Nelson for DUI.

¶5    On July 25, 2015, the Missoula County attorney charged Nelson with DUI. In the

Justice Court, Nelson filed a motion to suppress evidence of the stop based on Trooper

Burson’s lack of particularized suspicion based on an informant’s tip. The State responded

and an evidentiary hearing was held. The Justice Court granted Nelson’s motion. The

State appealed to the District Court, which reviewed the issue de novo. Nelson filed a

motion to suppress, again arguing particularized suspicion did not exist and the “Pratt

factors” were not met in order to create particularized suspicion based on Saunders’ and

Sharbono’s report. The State responded and the District Court held an evidentiary hearing

on May 9, 2016. Saunders, Sharbono, and Trooper Burson testified at the hearing. The

District Court denied Nelson’s motion. Nelson entered a nolo contendere plea pursuant to

a plea agreement in which he reserved the right to appeal the denial of his motion to

suppress. Nelson appeals.

                              STANDARD OF REVIEW

¶6    We review a district court’s denial of a motion to suppress to determine whether the

court's findings are clearly erroneous and whether those findings were applied correctly as

a matter of law. State v. Gill, 2012 MT 36, ¶ 10, 364 Mont. 182, 272 P.3d 60.




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                                      DISCUSSION

¶7     Did the District Court err when it denied defendant’s motion to suppress?

¶8     Nelson argues the District Court erroneously denied his motion to suppress the

evidence of the stop. Specifically, Nelson argues the citizen informant’s tip was unreliable

and that Trooper Burson did not have particularized suspicion to conduct an investigatory

stop. The State asserts Trooper Burson was provided with a reliable citizen informant’s

tip which created the particularized suspicion necessary to conduct an investigatory stop.

¶9     Both the United States Constitution and the Montana Constitution protect

individuals from unreasonable searches and seizures. U.S. Const. amend. IV; Mont. Const.

art. II, § 11. Under Montana law, a law enforcement 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.” Section 46-5-401(1), MCA; State v. Peters, 2011 MT 274, ¶ 57, 362 Mont. 389,

264 P.3d 1124; Hulse v. DOJ, Motor Vehicle Div., 1998 MT 108, ¶ 12, 289 Mont. 1, 961

P.2d 75.

¶10    Particularized suspicion exists when an officer has “objective data and articulable

facts from which an officer can make certain inferences, and a resulting suspicion that the

subject is, or has been, engaged in wrongdoing.” City of Missoula v. Moore, 2011 MT 61,

¶ 16, 360 Mont. 22, 251 P.3d 679. Whether particularized suspicion exists is a question of

fact, which is evaluated under the totality of the circumstances. Gill, ¶ 15. When

evaluating the totality of the circumstances a court considers the quantity or content of the



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information available and the quality or degree of reliability of that information. Gill,

¶ 15.

¶11     An arresting officer may rely on information conveyed by a reliable third person to

form the particularized suspicion necessary to justify an investigative stop. State v. Pratt,

286 Mont. 156, 162, 951 P.2d 37, 41 (1997). To determine the reliability of a third person

report and thus the sufficiency of an officer’s particularized suspicion based on that report,

this Court has adopted three factors to use in its evaluation. State v. Clawson, 2009 MT

228, ¶ 11, 351 Mont. 354, 212 P.3d 1056 (citing Pratt, 286 Mont. at 164-65, 951 P.2d at

42-43). The factors are: (1) whether the informant identified herself to the authorities; (2)

whether the informant’s report is based on personal observation; and (3) whether the

officer’s observations corroborate the informant’s information. Pratt, 286 Mont. at 164-65,

951 P.2d at 42-43.

¶12     Nelson argues, contrary to the facts in the record, that Saunders’ report was

unreliable because she did not identify herself, she was not the personally observing party,

and that she was not willing to sign a complaint. Nelson argues Sharbono’s report was

insufficient to believe Nelson was drunk. Therefore, the citizen informant’s tip was

insufficient to give Trooper Burson particularized suspicion for an investigatory stop.

¶13     The first Pratt factor is whether the informant identified herself to the authorities.

Pratt, 286 Mont. at 165, 951 P.2d at 42. An informant’s tip may be considered more

reliable where the citizen identifies himself or herself, thus exposing himself to civil and

criminal liability. State v. Foster, 2017 MT 118, ¶ 13, 387 Mont. 402, 394 P.3d 916 (citing

Pratt, 286 Mont. at 165, 951 P.2d at 42). However, a citizen reporter is not required to

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self-identify or provide specific pieces of personal information in order for the report to be

deemed reliable. Foster, ¶ 13 (citing State v. Brander, 2004 MT 150, 321 Mont. 484, 92

P.3d 1173; State v. Lee, 282 Mont. 391, 395, 938 P.2d 637, 640 (1997)). A citizen reporter

is not required to sign or be willing to sign a complaint in order for the report to be

considered reliable. See City of Missoula v. Tye, 2016 MT 153, ¶ 3, 384 Mont. 24, 372

P.3d 1286.

¶14    Nelson concedes Sharbono’s report satisfies the first factor because he was

identified and willing to sign a complaint that Nelson was drunk. However, Nelson

contests the reliability of Saunders’ report. As the record disclosed, Saunders told and

spelled to dispatch her first and last name, agreed to sign a complaint, provided her place

of work and stated she could be reached there. Saunders testified at the evidentiary hearing

to the above. This Court does not require a citizen informant to identify himself or herself

or be willing to sign a complaint in order for the report to be deemed reliable. Here,

Saunders both identified herself and was willing to sign a complaint. The District Court’s

finding that the first Pratt factor was satisfied is supported by substantial evidence and is

not clearly erroneous.

¶15    The second Pratt factor is whether the informant’s report is based on personal

observation. Pratt, 286 Mont. at 165, 951 P.2d at 42. An officer is allowed to infer that a

report is based on a citizen informant’s personal observations if “the report contains

sufficient detail that it is apparent that the informant has not been fabricating the report out

of whole cloth and the report is of the sort which in common experience may be recognized

as having been obtained in a reliable way.” Moore, ¶ 21. A citizen informant’s belief that

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a person is DUI must be based on his or her personal observations. Moore, ¶ 21. Innocent

details, personally observed by the citizen informant, are also relevant in assessing the

reliability of the report. Moore, ¶ 21.

¶16    Nelson argues Saunders’ and Sharbono’s personal observations are insufficient to

allow Trooper Burson to infer the observations were made personally. Nelson argues

because Saunders relayed Sharbono’s personal observations the report was insufficiently

based on personal observations.

¶17    This Court has determined that a report is made on personal observations sufficient

to create particularized suspicion when a citizen informant relays information from a third

party who is contemporaneously observing the behavior of the individual in question. See

Pratt, 286 Mont. at 166, 951 P.2d at 43. Recently, this Court reviewed this issue in State

v. Zietlow, 2017 MT 148, ¶ 13, 388 Mont. 26, 396 P.3d 740. Similar to Saunders’ and

Sharbono’s report, the caller in Zietlow related information regarding a possible drunk

driver to the dispatcher which was relayed to her by a coworker and the caller relayed her

own personal observations to the dispatcher. Zietlow, ¶ 13. This Court determined the

report was sufficient to satisfy Pratt because “the circumstances clearly establish the

conduct was occurring as [caller] was talking to dispatch and that [caller] was relating what

[coworker] was contemporaneously reporting and observing,” and that separate calls by

each to law enforcement were not necessary. Zietlow, ¶ 13.

¶18    Here, Saunders was on the phone with the dispatcher while Sharbono watched

Nelson drive away.        Saunders spoke with both Sharbono and the dispatcher,

contemporaneously relaying information from Sharbono. In fact, while Sharbono was not

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the caller, dispatch could hear him over the phone state that “he just bounced off that wall.”

Saunders then informed dispatch that she observed the man “walking into stuff, and he was

going all over the place. He couldn’t walk in a straight line to save his life, and then he got

in the, stumbled around and got in the vehicle.” The District Court’s finding that the report

was based on the personal observations of Saunders and Sharbono is supported by

substantial evidence and is not clearly erroneous.

¶19    The third Pratt factor is whether the officer’s observations corroborate the

informant’s information. Pratt, 286 Mont. at 165, 951 P.2d at 43. An officer corroborates

an informant’s report by observing illegal activity or by finding “the person, the vehicle,

and the vehicle’s location substantially as described by the informant.” Gill, ¶ 30 (citing

Pratt, 286 Mont. at 165, 951 P.2d at 43). Where the first and second factors have been

satisfied, an officer may corroborate the citizen informant’s report by observing wholly

innocent behavior. Gill, ¶ 30. Nelson argues that the first two Pratt factors were not

satisfied; therefore, Trooper Burson was required to observe independently illegal activity

or evidence of impairment to form particularized suspicion before making the investigatory

stop. Pratt, 286 Mont. at 168, 951 P.2d at 44.

¶20    We determined above that the District Court’s findings were not clearly erroneous

and were based on substantial evidence when it determined the first two Pratt factors had

been satisfied. Therefore, Trooper Burson could corroborate Saunders’ and Sharbono’s

report by observing wholly innocent behavior. Nelson concedes that Trooper Burson

corroborated Saunders’ description of the vehicle and license plate number, its location,



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and its direction of travel. The District Court’s finding that the third Pratt factor was

satisfied is supported by substantial evidence and is not clearly erroneous.

                                     CONCLUSION

¶21    Based on the totality of the circumstances, we conclude that the District Court’s

determination that particularized suspicion existed is not clearly erroneous. Saunders’ and

Sharbono’s report contained sufficient indicia of reliability to form the basis for Trooper

Burson’s particularized suspicion. The District Court did not err in denying Nelson’s

motion to suppress.

¶22    Affirmed.

                                                        /S/ MICHAEL E WHEAT


We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
/S/ JAMES JEREMIAH SHEA




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