                                                                                      July 7 2009




                                          DA 07-0351

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       2009 MT 228



STATE OF MONTANA,

                Plaintiff and Appellee,

         v.

RICHARD CLAWSON,


                Defendant and Appellant.


APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and For the County of Yellowstone, Cause No. DC-06-0812
                     Honorable G. Todd Baugh, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Jim Wheelis, Chief Appellate Defender, Helena, Montana


              For Appellee:

                     Hon. Steve Bullock, Montana Attorney General; Matthew T.
                     Cochenour Assistant Attorney General, Helena, Montana

                     Dennis Paxinos, Yellowstone County Attorney, Billings, Montana



                                                 Submitted on Briefs: June 10, 2009

                                                            Decided: July 7, 2009
Filed:

                     __________________________________________
                                       Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Richard Clawson appeals his conviction after a jury trial for the offenses of

driving under the influence (§ 61-8-401, MCA); criminal possession of dangerous drugs

(§ 45-9-102(2), MCA); and criminal possession of drug paraphernalia (§ 45-10-103,

MCA).

¶2     Clawson presents the following issue for review:

¶3     Whether the District Court properly held that the arresting officer had

particularized suspicion to make the investigatory stop that led to Clawson’s arrest.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶4     At 10:00 a.m. on October 7, 2007, Keri Perez, her husband and her 11-year-old

son stopped to get gas at a convenience store in the Heights area of Billings, Montana.

Keri pumped the gas while her husband and son waited in the car. Clawson and an

acquaintance were also at the store buying beer. Clawson’s vehicle was parked parallel

to the Perez vehicle, oriented in the same direction. While Keri Perez was pumping the

gas, she heard Clawson confront her husband with an obscenity, asking what he was

looking at. Richard Perez was sitting in his car with the window up. Clawson continued

confronting Richard who got out of his car, telling Clawson that he was only looking at

Clawson’s black lab dog and that Clawson should leave. Clawson was confrontational

and belligerent and, according to Keri, was flailing his arms and coming toward the

passenger door of their car. Her first impression was that Clawson was intoxicated.

Richard could smell alcohol on Clawson’s breath and saw him stumble. Keri was startled


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and afraid of Clawson’s behavior, and Richard was concerned that Keri’s son was being

frightened. Richard got back into their car and told Keri that Clawson was “really drunk

and he shouldn’t be driving” and that they should call the cops. Clawson left driving his

vehicle.

¶5     Keri used her cell phone to call the Billings Police Department dispatch to report a

possible drunk driver. She told the dispatcher about the incident, that Clawson started

yelling at her husband for looking at the dog, and that she thought Clawson was

intoxicated.   Keri described Clawson’s vehicle as a maroon Chevy Blazer or Ford

Explorer, and provided the number of the Iowa license plate. Keri described Clawson in

detail, along with the fact that he was traveling with a passenger and had a black lab in

the vehicle. She gave the street location of the incident and the direction of Clawson’s

travel when he left. She provided dispatch with her full name, address, and home phone

and cell phone numbers. She stated that she would file a complaint if Clawson were

located.

¶6     Dispatch broadcast to officers that there was a possible DUI driver in the Heights

area and relayed Keri’s description of Clawson and his vehicle. Billings Police officers

were dispatched to the convenience store to make contact with Keri and Richard Perez.

Chris Romero was a deputy with the Yellowstone County Sheriff’s Department and a 12-

year law enforcement veteran who had made hundreds of DUI arrests. He heard the

information from dispatch of an altercation at a gas station and a request that officers

attempt to locate Clawson’s vehicle. He heard that a witness had called in a report of the

incident, that the suspect involved had driven off, and that the witness believed that the

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driver was intoxicated. Romero received a description of the vehicle as a maroon SUV

with Iowa plates, a male driver and a black lab. Romero soon saw Clawson’s vehicle on

Five Mile Road, a rural gravel road in the area described by dispatch. Clawson’s vehicle

was stopped in the travel lane with the door open. The black lab was running down the

road.

¶7      When Romero arrived at Clawson’s vehicle, Clawson retrieved the dog and started

to drive away. Romero turned around, stopped the vehicle, talked to Clawson, and asked

for his driver’s license. Romero observed that Clawson’s speech was slurred, his eyes

were bloodshot and that his breath smelled of alcohol. Clawson stated that he had

consumed “a beer” and Romero proceeded to investigate to determine whether Clawson

was able to drive safely. During a consensual pat-down search Romero found marijuana

and a pipe in Clawson’s pockets. Romero gave Clawson a warning ticket for parking on

the traveled way of the road. Clawson failed initial field sobriety tests conducted at the

scene, as well as others conducted later at the station.

¶8      Clawson was charged with DUI and possession of drugs and paraphernalia.

Clawson moved to dismiss the charges on the ground that the evidence obtained at the

scene of the stop should be suppressed because Romero lacked particularized suspicion to

stop and conduct an investigation. The District Court held an evidentiary hearing on the

motion to dismiss and concluded that Romero had sufficient information to stop Clawson

and investigate. Clawson was subsequently convicted of all three offenses after a jury

trial and was sentenced. He appeals.

                               STANDARD OF REVIEW

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¶9     We review denial of a motion to suppress evidence to determine whether the

district court’s findings of fact are clearly erroneous and whether the court correctly

applied those findings as a matter of law. State v. Elison, 2000 MT 288, ¶ 12, 302 Mont.

228, 14 P.3d 456. We review a finding that an officer had particularized suspicion to

conduct an investigatory stop to determine whether the finding was clearly erroneous.

State v. Farabee, 2000 MT 265, ¶ 11, 302 Mont. 29, 22 P.3d 175.

                                      DISCUSSION

¶10    Both the United States and Montana Constitutions require that searches and

seizures be reasonable. U.S. Const. amend. IV; Mont. Const. art. II, § 11. These

protections apply to investigative stops. State v. Gopher, 193 Mont. 189, 194, 631 P.2d

293, 296 (1981). An investigative stop is valid if the officer possessed a particularized

suspicion that the subject has committed or is about to commit an offense. Section 46-5-

401(1), MCA. Particularized suspicion requires a showing of objective data from which

an officer can make certain inferences, and a resulting suspicion that the subject is or has

been engaged in wrongdoing. Elison, ¶ 15.

¶11    Whether an investigative stop is founded upon particularized suspicion is a

question of fact that must be evaluated under the totality of the circumstances. When

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

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

information. Elison, ¶ 16. An arresting officer may rely on information conveyed by a

reliable third party to form particularized suspicion sufficient to justify an investigative

stop. State v. Pratt, 286 Mont. 156, 162, 951 P.2d 37, 41 (1997). In Pratt this Court

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recognized that “[c]itizen informants can provide useful information and play an

important role in law enforcement.” Pratt, 286 Mont. at 164, 951 P.2d at 42. We

adopted three factors to use to evaluate the reliability of the report of a citizen informer in

the context of whether the totality of the circumstances warranted an investigative stop:

(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      All information that the citizen informant gives to the dispatcher is relevant when

evaluating the justification for an investigative stop, whether or not it is specifically

relayed to the officer in the field. State v. Hall, 2004 MT 106, ¶ 15, 321 Mont. 78, 88

P.3d 1273. An officer in the field does not have to personally assess the reliability of the

tip given to dispatch. Hall, ¶ 11. Effective law enforcement often depends upon officers

acting on the directions and information transmitted swiftly from one to another and

“officers cannot be expected to cross-examine their fellow officers about the foundation

for the transmitted information.” Hall, ¶ 11, quoting, United States v. Robinson, 536 F.2d

1298, 1299 (9th Cir. 1976). In the present case, the District Court found that while

Clawson’s stopping on the roadway likely did not provide sufficient particularized

suspicion, Romero’s investigative stop was justified by the information supplied by Keri

Perez.

¶13      Considering the Pratt factors, first it is clear that Perez adequately identified

herself. She provided her name, her address, her home phone number, her cell phone

number, and the location she was calling from. Second, the information was based upon

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her personal observations and experience.         She saw and heard the unprovoked and

belligerent confrontation that Clawson initiated with her husband a short distance from

where she was standing pumping gas.           She heard her husband’s contemporaneous

conclusion that Clawson was intoxicated, based upon his face-to-face interaction with

Clawson. She observed and relayed details about Clawson’s appearance, his vehicle

type, make, color and license. She observed and relayed Clawson’s direction of travel

when he left. Third, the officer corroborated Keri’s information. Within five to ten

minutes of hearing the information over his radio, Romero found Clawson’s vehicle in

the area indicated by dispatch, based upon information supplied by Perez.                 The

description of a maroon SUV with Iowa plates and a dog, based upon information

supplied by Perez, matched what Romero found when he located Clawson. Clawson fit

the physical description given by Perez. Clearly the three-prong test of Pratt has been

satisfied.

¶14    Romero saw Clawson’s vehicle stopped in the travel lane of the road with the door

open, a traffic offense for which Romero issued a warning ticket. Even though Romero

did not observe other DUI-related behavior by Clawson prior to initiating his

investigative stop, direct observation of the specific illegal activity is not required as long

as other salient facts are corroborated.

       In applying the Pratt test, it is important to remember that the standard of
       “particularized suspicion does not require that the law enforcement officer
       be certain that an offense has been committed.”

State v. Roberts, 1999 MT 59, ¶ 26, 293 Mont. 476, 977 P.2d 974.



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The District Court observed in the present case that neither the informant nor the

investigating officer can normally know whether the subject driver is intoxicated until

“tests have been done [or] field sobriety maneuvers have been done.” That is usually the

point of an investigative stop: to allow the officer to make a determination as to whether

further investigation is warranted. A “trained and experienced law enforcement officer is

entitled to draw inferences and make deductions that might well elude a layperson in

determining whether a particular stop is justified.” Roberts, ¶ 26. As the District Court

explained, the officer gets information about “the layman’s observations” and attempts to

verify them if the officer happens to find the subject vehicle:

       And if the officer has no further probable cause to believe that the person is
       intoxicated, nothing further happens with all of that. But if the officer
       further corroborates that the person that is stopped seems to be under the
       influence of alcohol, then it proceeds on, as it did in this case.

Under the totality of the circumstances of this case, we find that the stop was justified and

that the District Court’s findings were not clearly erroneous. We affirm.



                                                  /S/ MIKE McGRATH


We concur:


/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ JIM RICE
/S/ BRIAN MORRIS




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