                                          No. 04-849

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 278


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

DAVID JON MYHRE,

              Defendant and Appellant.


APPEAL FROM:         District Court of the First Judicial District,
                     In and For the County of Broadwater, Cause No. DC 2004–12
                     Honorable Dorothy McCarter, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Jeffrey L. Sutton; Hartelius, Ferguson, Baker & Kazda,
                     Great Falls, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Joslyn M. Hunt,
                     Assistant Attorney General, Helena, Montana

                     John Flynn, Broadwater County Attorney, Townsend, Montana



                                                  Submitted on Briefs: September 27, 2005

                                                             Decided: November 8, 2005


Filed:

                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1     David Jon Myhre (Myhre) appeals from his conviction and sentence in the First

Judicial District Court, Broadwater County, for driving under the influence of alcohol (DUI).

We affirm.

¶2     The issue on appeal is whether the District Court erred in denying Myhre’s motion

to dismiss the case.

                                      BACKGROUND

¶3     On the evening of September 20, 2003, Colleen Yunis (Yunis) was driving from

Hardin, Montana, to Butte, Montana, with her mother and her two children. As they

approached Bozeman, Montana, Yunis observed a pickup truck approach from behind, pass

her vehicle and proceed ahead of her down the highway. Yunis was traveling the speed limit

and the truck was traveling faster. Yunis noticed that, although it was dark outside, the truck

did not have its lights on. She also observed that the truck was swerving in its lane of travel

and crossing over the line dividing the two lanes of travel. Concerned that the driver of the

truck might be intoxicated, Yunis called 911 emergency dispatch on her cell phone to report

the driver. Yunis described the truck and its actions to the 911 dispatcher, and gave the

truck’s location on the highway in reference to mile marker posts. Eventually, the truck

came to a stop along the side of the highway. Yunis felt uncomfortable about passing the

truck, so she parked alongside the highway some distance back.              She then waited

approximately five minutes until a law enforcement officer arrived.


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¶4     In the meantime, the 911 dispatcher contacted the Montana Highway Patrol, which

dispatched Officer Marvin Reddick (Reddick) to respond to the call. Reddick located the

two vehicles parked along the highway, drove past Yunis’ vehicle and pulled in behind the

truck. Reddick observed that the truck was not running and its lights were not on. He

walked up to the driver’s side door and saw that the driver--later identified as Myhre--

appeared to be asleep. When Reddick knocked on the truck’s window, Myhre awoke and

exited the truck. Reddick eventually arrested Myhre for DUI.

¶5     The State of Montana (State) charged Myhre by complaint in the Broadwater County

Justice Court with misdemeanor DUI. Myhre moved to suppress all evidence obtained after

Reddick approached his vehicle on the basis that Reddick did not have a particularized

suspicion of wrongdoing sufficient to justify an investigative stop. The Justice Court denied

the motion. The Justice Court subsequently held a bench trial, found Myhre guilty of DUI,

sentenced him and entered judgment on the conviction and sentence. Myhre appealed to the

District Court for trial de novo.

¶6     Myhre moved the District Court to dismiss the case, again arguing that Reddick did

not have particularized suspicion sufficient to justify the investigative stop of his vehicle.

The District Court held an evidentiary hearing, following which it denied Myhre’s motion

to dismiss. The case proceeded to a jury trial and the jury found Myhre guilty of DUI. The

District Court sentenced Myhre and ordered execution of the sentence stayed pending appeal

to this Court. Myhre appeals.

                                    STANDARD OF REVIEW


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¶7     A district court’s ruling on a motion to dismiss in a criminal proceeding is a question

of law which we review de novo. State v. White Bear, 2005 MT 7, ¶ 5, 325 Mont. 337, ¶ 5,

106 P.3d 516, ¶ 5.

                                       DISCUSSION

¶8     Did the District Court err in denying Myhre’s motion to dismiss the case?

¶9     As stated above, Myhre moved the District Court to dismiss the charge against him

based on his contention that Reddick did not have sufficient particularized suspicion of

wrongdoing to justify the investigative stop of Myhre’s vehicle. The District Court held an

evidentiary hearing and entered written findings of fact, conclusions of law and an order

denying Myhre’s motion to dismiss. The court determined that, considering the totality of

the circumstances surrounding the incident, citizen informant Yunis had provided sufficient

reliable information to support a particularized suspicion justifying Reddick’s investigative

stop. Myhre asserts error.

¶10    Myhre’s argument on appeal consists of two subparts. First he contends that,

notwithstanding Myhre’s truck was not actually in motion at the time, Reddick was

conducting an investigatory stop when he approached the truck on the side of the highway

rather than performing a community caretaking function. Second, Myhre contends that

Reddick did not have the particularized suspicion required to perform such an investigative

stop. The State does not respond to Myhre’s argument regarding whether the stop was for

investigative or community caretaking purposes, thus implicitly conceding that an




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investigative stop occurred. Consequently, we address only whether Reddick had the

requisite particularized suspicion to justify the investigative stop.

¶11    In Montana, law enforcement officers are authorized by statute to conduct

investigative stops under certain circumstances. In that regard, § 46-5-401(1), MCA,

provides, in pertinent part, that

       [i]n order to obtain or verify an account of the person’s presence or conduct
       or to determine whether to arrest the person, 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 applying this statute, we have stated that particularized suspicion exists where a peace

officer has objective data from which the officer can make certain inferences and a suspicion

resulting from those inferences that the person to be stopped is, or has been, engaged in some

wrongdoing. State v. Fellers, 2004 MT 321, ¶ 21, 324 Mont. 62, ¶ 21, 101 P.3d 764, ¶ 21.

The existence of a particularized suspicion is a question of fact which is determined by

examining the totality of the circumstances surrounding the stop. State v. Britt, 2005 MT

101, ¶ 8, 327 Mont. 1, ¶ 8, 111 P.3d 217, ¶ 8. In evaluating the totality of the circumstances,

courts consider the quantity, or content, and quality, or degree of reliability, of the

information available to the peace officer. Britt, ¶ 8.

¶12    It is undisputed here that Reddick did not personally observe any activity, such as

erratic driving or a traffic law violation, which would support a particularized suspicion for

him to conduct an investigative stop of Myhre’s vehicle. However, an officer need not

personally observe illegal activity in order to have particularized suspicion justifying an


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investigative stop. Fellers, ¶ 21. Particularized suspicion may be based on information

obtained via a citizen informant, as long as the informant’s information contains sufficient

indicia of reliability. See State v. Pratt (1997), 286 Mont. 156, 164-68, 951 P.2d 37, 42-44.

In that regard, we previously have set forth three factors which are important in weighing and

determining the reliability of a citizen informant’s tip. See Pratt, 286 Mont. at 165, 951 P.2d

at 42-43.

¶13    Myhre contends that analyzing the totality of the circumstances surrounding the stop

of his vehicle in the context of the three Pratt factors reveals that Reddick lacked the

requisite particularized suspicion of wrongdoing to conduct the investigatory stop. The State

responds that application of the Pratt factors to the facts of this case establishes that Yunis’

information was reliable and provided sufficient basis for the investigatory stop. We address

each of the three Pratt factors in turn.

¶14    The first Pratt factor provides that a citizen informant’s tip may be considered more

reliable where the citizen identifies him or her self, thereby exposing the citizen to criminal

or civil liability if the information is false. Pratt, 286 Mont. at 165, 951 P.2d at 42. At the

evidentiary hearing on Myhre’s motion to dismiss, the State entered into evidence an audio

tape of the telephone conversation between Yunis and the 911 dispatcher on the night of

Myhre’s arrest. The audio tape reveals that when Yunis called 911, she gave the dispatcher

her first name and her cell phone number, and informed the dispatcher that she was from

Hardin, Montana. Yunis also described the make, model, year and color of the vehicle she




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was driving, as well as giving the first two numbers of her vehicle’s license plate indicating

the county in which her vehicle was registered.

¶15    Myhre points out that the written call for service report printed by the highway patrol

dispatcher indicates that Yunis was from Gallatin County, rather than Big Horn County

where Hardin is located, and lists an incorrect prefix for Yunis’ cell phone number. At the

hearing in the District Court, Reddick testified that this mixup occurred when the 911

dispatcher relayed the information from Yunis’ cell phone call to the highway patrol

dispatcher. Reddick also testified that he contacted the original 911 dispatcher several days

later, obtained Yunis’ correct phone number and eventually located Yunis in order to take

a statement from her regarding the incident. Myhre asserts that, notwithstanding Reddick’s

ability to search down and talk to Yunis several days after his arrest, the misinformation in

the written report results in Yunis’ information being unreliable because “[t]he information

is not reliable unless the identity of the citizen informant has been confirmed prior to the

investigative stop.” Thus, according to Myhre, because Reddick did not personally have the

correct information identifying the citizen informant, he could not rely on the citizen’s

information to establish particularized suspicion. Myhre’s contention is without merit.

¶16    We rejected a contention identical to Myhre’s in Pratt. There, the defendant argued

that the officer initiating the investigative stop “must have personally assessed the reliability

of the informant’s tip before making the stop.” Pratt, 286 Mont. at 166, 951 P.2d at 43.

After analyzing both United States Supreme Court and Ninth Circuit Court of Appeals

jurisprudence on the issue, we determined that the officer could reasonably rely on


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information conveyed by a dispatcher or other officer for particularized suspicion justifying

an investigatory stop without being required to personally assess the underlying reliability

of the information. Pratt, 286 Mont. at 166-67, 951 P.2d at 43-44.

¶17    We recently reaffirmed that, in applying the three-factor Pratt analysis to the totality

of the circumstances, “when a tip has been relayed from dispatch and an officer has acted

on that information, it is appropriate to look beyond the stopping or investigating officer to

include the information known to the dispatching or reporting officer.” State v. Hall, 2004

MT 106, ¶ 15, 321 Mont. 78, ¶ 15, 88 P.3d 1273, ¶ 15.

¶18    In the present case, the audio tape of Yunis’ 911 call clearly establishes that she gave

the original 911 dispatcher her first name, correct cell phone number, description of the

vehicle she was driving and the name of the town in which she lived. This information

identified Yunis sufficiently to expose her to criminal or civil liability if her information was

false. These facts, when considered under the first Pratt factor, lend a high indicia of

reliability to Yunis’ report.

¶19    The second Pratt factor relating to indicia of reliability requires consideration of

whether Yunis’ citizen’s report contained sufficient detail to establish that her information

was based on her personal observations. Pratt, 286 Mont. at 165, 951 P.2d at 42. Myhre

again argues that, because the highway patrol’s call for service report contained no

information indicating--and Reddick himself did not know--whether Yunis was relaying

personal observations regarding the incident, there was insufficient indicia of reliability in

the report to support the existence of a particularized suspicion. He contends, specifically,


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that it would be “reasonable to conclude that if the citizen informant actually observed such

actions that she would have been able to provide a make, model and year of the vehicle, as

well as the complete plate number.” This contention, too, is without merit.

¶20    Here, the audio tape of Yunis’ call to 911 establishes that the information she

conveyed was based on her personal observations. Much of that detailed information is set

forth in ¶ 3 above and need not be repeated here. Yunis continued to talk on her cell phone

to the dispatcher for a number of minutes, giving a “play-by-play” report including that the

truck was being driven all over the road; its lights kept going on and off; the truck had gone

off the road into the ditch and then back onto the road; and that the truck exited the highway

at the Manhattan, Montana, exit only to re-enter the highway and pass her vehicle again.

Additionally, Yunis was able to inform the dispatcher--while talking and driving on a dark

evening--that the truck was white in color and the license plate number began with the

number 21. Yunis’ citizen’s report contained sufficient detail with regard to both quality and

quantity to establish that her information was based on her personal observations of the

incident. These facts, when considered under the second Pratt factor, also lend a high

indicia of reliability to Yunis’ report.

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

information given in the citizen informant’s report. Pratt, 286 Mont. at 165, 951 P.2d at 43.

Myhre contends that corroboration of a citizen tip “occurs when the officer personally

observes illegal activity to justify an investigative stop,” and notes that this did not occur in

this case because Reddick did not personally observe any activity, such as erratic driving or


                                               9
a traffic law violation, which would corroborate Yunis’ report of a possible intoxicated

driver. However, under Pratt, a citizen informant’s tip also may be corroborated “when the

officer . . . finds the person, the vehicle, and the vehicle’s location substantially as described

by the informant.” Pratt, 286 Mont. at 165, 951 P.2d at 43.

¶22    As stated above, Yunis was on her cell phone with the 911 dispatcher for several

minutes reporting her observations of Myhre’s truck. The 911 dispatcher relayed this

information to the highway patrol dispatcher, who then relayed the information to Reddick.

Reddick testified at the hearing in the District Court that the highway patrol dispatcher

informed him of the description of the reported vehicle and that the report referenced a

location at mile marker number 286. The dispatcher also advised Reddick that the citizen

informant had observed the truck drive off the highway into the ditch at one point. Reddick

observed two vehicles parked on the side of the highway at mile marker number 274. He

pulled in behind the first vehicle, which was a white truck with license plates beginning with

21. At that point, Reddick also saw a clump of grass stuck in the truck’s rear bumper, which

Reddick connected to the report that the truck had driven into the ditch.

¶23    Myhre asserts that the vague description of the vehicle and the twelve mile difference

in location where Reddick encountered the vehicle rendered the corroboration insufficient.

We conclude, however, that twelve miles down the highway is a location “substantially as

described by the informant” when the vehicles at issue are traveling at the posted speed of

75 miles per hour or more. Moreover, the vehicle Reddick observed shortly after receiving

the dispatch matched the description given in the citizen report. We conclude that Reddick’s


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observations sufficiently corroborated Yunis’ citizen report as required in the third Pratt

factor.

¶24       Based on the totality of the circumstances presented in this case, we conclude that the

information provided by Yunis contained sufficient content and indicia of reliability to

support a particularized suspicion on Reddick’s part justifying the investigative stop of

Myhre’s truck. As a result, we hold that the District Court did not err in determining that

Reddick had particularized suspicion to stop Myhre’s truck and in denying Myhre’s motion

to dismiss on that basis.

¶25       Affirmed.


                                              /S/ KARLA M. GRAY

We concur:

/S/ JOHN WARNER
/S/ PATRICIA O. COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS




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