                                                                                            March 12 2013


                                           DA 12-0389

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2013 MT 63



STATE OF MONTANA,

              Plaintiff and Appellant,

         v.

DOMINIC PAUL DRISCOLL,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Fifth Judicial District,
                        In and For the County of Beaverhead, Cause No. DC-12-3461
                        Honorable Loren Tucker, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        James P. Dolan, Dillon City Attorney, Dillon, Montana


                For Appellee:

                        J. Blaine Anderson, Jr., Attorney at Law, Dillon, Montana


                                                     Submitted on Briefs: January 9, 2013
                                                                Decided: March 12, 2013




Filed:

                        __________________________________________
                                          Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     The State appeals the order of the Fifth Judicial District, Beaverhead County, that

suppressed statements made by Appellee Dominic Paul Driscoll (Driscoll) to two police

officers. We affirm.

¶2     The State presents the following issues on appeal:

¶3     Whether the officers possessed particularized suspicion to question Driscoll?

¶4     Whether the officers violated Driscoll’s right against self-incrimination?

                       PROCEDURAL AND FACTUAL BACKGROUND

¶5     Assistant Chief Don Guiberson and Officer Brad Rose of the Dillon Police

Department observed Driscoll holding a beer can in a bar during a routine sweep during the

annual Labor Day rodeo weekend in Dillon, Montana. The officers believed, based on

Driscoll’s appearance, that Driscoll was younger than 21 years old. Officer Rose approached

Driscoll to ask how old he was. Driscoll responded that he was 22 years old. Officer Rose

asked Driscoll for identification to verify Driscoll’s age. Driscoll refused. Officer Rose told

Driscoll to accompany the officers outside.

¶6     Driscoll accompanied the officers outside. Officer Rose asked Driscoll for his full

name and his birthdate. Driscoll provided Officer Rose a false first name and a false

birthdate. Officer Rose asked dispatch to verify this information. Dispatch responded that

there was no return on that name and date of birth. Officer Rose placed Driscoll under arrest.

Driscoll eventually admitted that his true first name was Dominic. Officer Rose found a



                                              2
driver’s license, through a name-search of the database, which matched Dominic Driscoll.

The birthdate on the driver’s license confirmed that Driscoll was under 21 years old.

¶7     The State charged Driscoll with minor in possession, in violation of § 45-5-624(1),

MCA, and obstructing a peace officer, in violation of § 45-7-302, MCA. Driscoll moved to

suppress his statements to the officers and to dismiss the charges. Driscoll first claimed that

the officers lacked particularized suspicion to question him. Driscoll next claimed that the

officers’ request for his name, date of birth, and identification had violated his federal and

state constitutional right against self-incrimination.

¶8     The City Court granted Driscoll’s motion to suppress. The City Court also granted

Driscoll’s motion to dismiss. The State appealed. The District Court affirmed Driscoll’s

motion to suppress after determining that the officers had violated Driscoll’s right against

self-incrimination. The District Court denied, however, Driscoll’s motion to dismiss. The

District Court determined that it was the role of the State, not the court, to decide whether to

proceed with the prosecution. The State appeals.

                                STANDARD OF REVIEW

¶9     We engage in a twofold review of a district court’s motion to suppress. We initially

review the court’s findings of fact to determine whether they are clearly erroneous. We

conduct a plenary review of the conclusions of law to determine whether the district court

correctly interpreted the law. State v. Jones, 2006 MT 209, ¶ 17, 333 Mont. 294, 142 P.3d

851. The parties have stipulated to the facts. We review therefore only the District Court’s

conclusions of law.
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                                      DISCUSSION

¶10    Whether the officers possessed particularized suspicion to question Driscoll?

¶11    Section 46-5-401(1), MCA, provides that when an officer has particularized suspicion

that a person has committed, is committing, or is about to commit an offense, the officer may

stop that person. The officer may lawfully request the person’s name and present address

and an explanation of the person’s actions. Section 46-5-401(2), MCA.

¶12    The District Court determined that the officers possessed particularized suspicion to

question Driscoll. The officers saw Driscoll holding a beer can. Driscoll appeared younger

than age 21. The State argues that these facts informed the officers with sufficient

particularized suspicion to approach Driscoll and ask his age. We agree.

¶13    The existence of a particularized suspicion depends on the totality of the

circumstances. State v. Fisher, 2002 MT 335, ¶ 12, 313 Mont. 274, 60 P.3d 1004. The

totality of the circumstances includes objective observations and consideration of the modes

or patterns of operation of certain kinds of lawbreakers. Fisher, ¶ 12.

¶14    We next address whether the officers improperly expanded their investigation by

taking Driscoll outside. Section 46-5-401(2)(a), MCA, authorizes the officers to have asked

Driscoll for his name, address, and an explanation for Driscoll’s actions. The officers

approached Driscoll and asked for his age and an ID, rather than for his name, address, or an

explanation for his actions. Driscoll informed the officers that he was 22. Driscoll declined

to provide the officers with an ID. The officers never asked Driscoll for his address or an

explanation for his actions. The officers failed to articulate any reason in their report for
                                             4
continuing their questioning of Driscoll after he responded that he was 22. The officers

simply described Driscoll as acting “defensively.”

¶15    Without additional articulable facts that led the officers to believe that Driscoll was

underage, the officers should not have taken Driscoll outside. The officers could have

pursued their investigation through other means. The officers exceeded the scope of their

investigation, however, by taking Driscoll outside the bar without additional articulable facts.

We need not consider whether the officers violated Driscoll’s right against self-

incrimination because we have determined that the officers exceeded the scope of § 46-5-

401, MCA.

¶16    We also affirm the District Court’s denial of Driscoll’s motion to dismiss. We agree

that the State, rather than a court, should assess whether sufficient evidence exists to

continue the prosecution.

¶17    Affirmed.

                                                   /S/ BRIAN MORRIS

We Concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE




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