                                          No. 05-213

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2006 MT 216


STATE OF MONTANA,

              Plaintiff and Appellant,

         v.

NIKKI FAYE WAITE,

              Defendant and Respondent.


APPEAL FROM:         The District Court of the Fourth Judicial District,
                     In and For the County of Missoula, Cause No. DC 2004-446,
                     Honorable John S. Henson, Presiding Judge

COUNSEL OF RECORD:

              For Appellant:

                     Honorable Mike McGrath, Attorney General; Ilka Becker,
                     Assistant Attorney General, Helena, Montana

                     Fred Van Valkenburg, County Attorney; Karen S. Townsend,
                     Deputy County Attorney, Missoula, Montana

              For Respondent:

                     Mark Anderson, Public Defender, Missoula, Montana



                                                       Submitted on Briefs: December 14, 2005

                                                                 Decided: September 6, 2006

Filed:

                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1      The State of Montana appeals from an order of the Fourth Judicial District Court,

Missoula County, holding there was not particularized suspicion for the investigatory

stop of Nikki Faye Waite’s (Waite) vehicle. We reverse and remand.

¶2      We consider the following issue on appeal:

¶3      Did the District Court err in granting Waite’s motion to suppress based on its

determination that the officer lacked particularized suspicion to justify an investigatory

stop?

                                    BACKGROUND

¶4      On October 19, 2003, at approximately 2:30 a.m., Montana Highway Patrol

Officer James Kitchin (Kitchin) patrolled north on U.S. Highway 93. He observed a

passenger vehicle, later determined to be driven by Waite, following a pickup truck

traveling south. Kitchin saw Waite’s car swerve across the center line of the two

southbound lanes. He turned his video camera on, and followed her for several miles.

Waite’s vehicle drifted across the center line of the two southbound lanes, crossed the fog

line, and followed the pickup truck in front of her too closely. Based on his observations,

Kitchin activated his lights and began an investigatory traffic stop near Chief Looking

Glass Road and U.S. Highway 93. The pickup truck and passenger vehicle both stopped.

¶5      Kitchin approached the driver’s door and informed Waite of the reason for the

stop. Kitchin noticed that Waite’s eyes were bloodshot and her speech was slurred.

Kitchin asked Waite for her license, registration, and proof of insurance. Waite handed

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him proof of insurance, but was unable to locate her driver’s license or registration. When

Kitchin asked Waite to step from her vehicle, she told him that the driver’s side door did

not open. Kitchin instructed Waite to exit from the passenger side door, which she also

said did not open. Waite then opened the driver’s side door and exited the vehicle. As

Waite stepped out, Kitchin noticed the odor of alcohol coming from her. Waite had to

lean on her car for balance, and stated that she could not stand due to two broken feet.

Kitchin conducted a Horizontal Gaze Nystagmus (HGN) test on Waite and observed lack

of smooth pursuit and nystagmus at maximum deviation. Kitchin placed Waite in his

patrol car, and found that her license was revoked and that she had two prior DUI

convictions.

¶6     The State charged Waite with driving a motor vehicle while under the influence of

alcohol (DUI), in violation of § 61-8-401, MCA (2003), and driving while license

suspended or revoked, in violation of § 61-5-212, MCA (2003).

¶7     Waite appeared in Justice Court with counsel and moved to suppress the evidence,

asserting there were insufficient facts to support a particularized suspicion she was

committing an offense, and therefore, Kitchin’s stop was invalid. The Justice of the

Peace denied Waite’s motion based on Kitchin’s sworn testimony that Waite was

continuously swerving, crossing the center line and fog line, and following too closely. In

a Justice Court trial, a jury found Waite guilty of DUI. She appealed to the Fourth

Judicial District Court, and again filed a motion to suppress based on the officer’s lack of

particularized suspicion.

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¶8     The District Court noted that, from its review of Kitchin’s video, Waite was

driving erratically and following the pickup truck too closely, in violation of § 61-8-329,

MCA (2003).      However, the court granted the motion to suppress, concluding that

Waite’s swerving within a lane and touching the fog line was insufficient to establish

particularized suspicion, and that her action of following too closely could not be

considered in the particularized suspicion analysis because Kitchin did not cite Waite

with that traffic violation or note it in his report. The State appeals.

                                STANDARD OF REVIEW

¶9     We review a District Court’s grant of a motion to suppress based on a finding of

no particularized suspicion to determine whether the court’s findings of fact are clearly

erroneous and whether its conclusions of law are correct. State v. Schulke, 2005 MT 77,

¶ 10, 326 Mont. 390, ¶ 10, 109 P.3d 744, ¶ 10 (citation omitted).

                                       DISCUSSION

¶10    The State contends that the District Court erred when it granted Waite’s motion to

suppress based on its conclusion there was not particularized suspicion for the stop. The

State argues that Waite’s erratic driving was sufficient to establish particularized

suspicion, and, further, that the District Court erred in concluding that Kitchin’s failure to

cite Waite for following too closely, or note the infraction in his report, precludes

consideration of this evidence in the particularized suspicion analysis. In response, Waite

contends that simply swerving within a lane and touching the fog line, without a citation




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for some other driving offense, is insufficient to support a finding of particularized

suspicion for a traffic stop.

¶11    Pursuant to § 46-5-401(1), MCA, “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.”

In State v. Gopher, 193 Mont. 189, 631 P.2d 293 (1981), we adopted the two-part test

enunciated by the United States Supreme Court in United States v. Cortez, 449 U.S. 411,

101 S. Ct. 690 (1981), to evaluate whether a police officer had a particularized suspicion

to make an investigatory stop. Under Gopher, 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. Gopher, 193 Mont. at 194, 631 P.2d at

296. Whether particularized suspicion exists is a question of fact that depends on the

totality of the circumstances. State v. Otto, 2004 MT 338, ¶ 15, 324 Mont. 217, ¶ 15, 102

P.3d 522, ¶ 15.

¶12    The District Court reviewed the video of Waite’s vehicle and stated:

       [I]t is notable that Defendant’s driving is visibly erratic, the car swerving
       repeatedly within the lane of traffic, appearing to touch or cross the center
       line on at least three occasions, as well as touching the fog line within the
       right lane. The video also shows that Defendant is following her
       companion’s vehicle, a pickup truck, extremely closely for nearly the entire
       duration of the video . . . . It certainly appears from the camera’s view that
       Defendant is following too closely, in violation of § 61-8-329, MCA.




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¶13    The State correctly argues that under Hulse v. State, 1998 MT 108, ¶ 39, 289

Mont. 1, ¶ 39, 961 P.2d 75, ¶ 39, “erratic driving” can constitute the basis for a

particularized suspicion to stop a vehicle. In Hulse, we discussed erratic driving as

including “driving all over the road, crossing the center line and the fog line, weaving in

and out of traffic, or braking for green lights . . . .” Hulse, ¶ 39.

¶14    Kitchin’s failure to cite Waite for traffic violations other than DUI and driving

while license suspended or revoked does not prohibit consideration of such violations or

conduct in determining the existence of particularized suspicion. We note that it is not

necessary for an officer to observe a moving violation to establish particularized

suspicion to justify a traffic stop. State v. Brander, 2004 MT 150, ¶ 6, 321 Mont. 484,

¶ 6, 92 P.3d 1173, ¶ 6. Further, “we do not require an investigating officer to identify a

particular statutory violation and/or cite a defendant for a moving violation to establish a

particularized suspicion.”     Schulke, ¶ 18.     In Schulke, we found that particularized

suspicion existed when the defendant drove at 2:30 a.m., crossed the center line of the

fast and slow lanes of traffic, and briefly drove, in part, in a lane reserved for oncoming

traffic. Schulke, ¶¶ 14-15. We determined that the fact the defendant was not cited for

improper lane travel, in violation of § 61-8-328, MCA, did not eliminate that evidence for

purposes of determining the existence of particularized suspicion for the traffic stop.

Schulke, ¶ 18.

¶15    The District Court erred by concluding that, because Waite was not cited for the

offense, her actions of following too closely could not be considered in determining the

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existence of particularized suspicion. Waite’s following too closely, in violation of § 61-

8-329, MCA (2003), contributed to the officer’s objective observations even though no

citation was issued.

¶16    Similarly, the court erred in concluding that Waite’s actions could not be

considered because Kitchin failed to note them in his report. Kitchin testified about his

observation of Waite’s following too closely, and his failure to include this observation in

his report bears solely upon the credibility of his testimony, not to the availability, as a

matter of law, of this evidence for purposes of a particularized suspicion determination.

Here, of course, the District Court itself observed Waite’s actions on the videotape, and

the officer’s credibility was not an issue.

¶17    Waite contends that the facts of this case are analogous to several cases in which

this Court held that questionable driving behaviors observed by police officers were

insufficient to allow for particularized suspicion to justify a traffic stop. See State v.

Lafferty, 1998 MT 247, 291 Mont. 157, 967 P.2d 363 (crossing the fog line twice and

driving on it once was insufficient, without other relevant circumstances, for

particularized suspicion); Morris v. State, 2001 MT 13, 304 Mont. 114, 18 P.3d 1003

(merely “drifting” over the fog line with no other evidence of speeding or erratic driving

insufficient for particularized suspicion); State v. Reynolds, 272 Mont. 46, 899 P.2d 540

(1995) (driving which was “bordering on traveling too fast” and waiting too long at an

intersection with no traffic laws broken insufficient for particularized suspicion).

However, there are additional facts in this case which distinguish it from the above cases.

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Here, Waite’s crossing of the fog line was only one of several facts giving rise to the

officer’s particularized suspicion. Kitchin also observed Waite’s vehicle continuously

swerving within the lane, crossing over the center line twice, crossing over the fog line

numerous times, and following too closely, all of this occurring late at night. Under the

totality of the circumstances, these facts are sufficient to establish a particularized

suspicion.

                                      CONCLUSION

¶18    The District Court erroneously concluded that, while sufficient evidence existed

for the officer to cite Waite with following too closely, the fact that the officer did not

issue a citation or note the infraction in his report precluded that evidence from the

particularized suspicion analysis. Waite’s erratic driving, including her following too

closely, was sufficient to establish particularized suspicion for the stop.

¶19    Reversed and remanded.

                                                  /S/ JIM RICE


We concur:

/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS




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