                                           No. 05-588

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2006 MT 118N

                                                _______________________________________

TIMOTHY O’LEARY,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Respondent.

                                                 ______________________________________

APPEAL FROM:         District Court of the Twelfth Judicial District,
                     In and for the County of Hill, Cause No. DV 04-219
                     The Honorable David Rice, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Jeremy S. Yellin, Attorney at Law, Havre, Montana

              For Respondent:

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

                     Tamara Barkus, Havre City Attorney, Havre, Montana

                                                   ____________________________________

                                                           Submitted on Briefs: May 3, 2006

                                                                     Decided: May 31, 2006
Filed:

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

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number and disposition shall be included in

this Court's quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2     Appellant Timothy O’Leary (O’Leary) appeals from an Order of the Twelfth

Judicial District Court, Hill County, denying his petition to reinstate his driver’s license

based upon a lack of particularized suspicion to stop his vehicle by the Havre City Police.

O’Leary contends that the District Court erred in concluding that Officer Ben Havron of

the Havre Police Department, who stopped O’Leary’s vehicle, possessed the requisite

objective data to authorize such a stop pursuant to § 46-5-401(1), MCA. We have held

that for an investigatory stop to be reasonable, “an officer must have: 1) objective data

from which the officer can make certain inferences; and 2) a resulting suspicion that the

person stopped is or has been engaged in wrongdoing.” State v. Fellers, 2004 MT 321, ¶

21, 324 Mont. 62, ¶ 21, 101 P.3d 764, ¶ 21.

¶3     We evaluate the question of whether a particularized suspicion supports an

investigatory stop in light of the totality of the circumstances. Fellers, ¶ 21. We further

have concluded that the “[o]bservation of a traffic offense is sufficient to establish a

particularized suspicion.” State v. Loney, 2004 MT 204, ¶ 16, 322 Mont. 305, ¶ 16, 95

P.3d 691, ¶ 16. We also have determined, however, that a particularized suspicion does


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not require an officer to be certain that an offense has been committed. State v. Britt,

2005 MT 101, ¶ 12, 327 Mont. 1, ¶ 12, 111 P.3d 217, ¶ 12.

¶4     We decide this case pursuant to Section I, paragraph 3(d) of our 1996 Internal

Operating Rules, as amended in 2003, that provides for memorandum opinions. Officer

Havron testified that he stopped O’Leary’s vehicle because O’Leary had failed to

illuminate his headlights. Officer Havron testified that the parking lights on O’Leary’s

vehicle were illuminated, but his headlights were not. Officer Havron relied on his

observation of O’Leary’s vehicle and his experience and familiarity with the type of

vehicle that O’Leary drove, in determining that O’Leary only had his parking lights

illuminated. Officer Havron further noted that the lights of the vehicle behind O’Leary’s

looked different than O’Leary’s.

¶5     O’Leary contends that he had both the parking lights and the headlights turned on

as he manually had to turn on both. O’Leary further testified that he could not have the

headlights on without also having the parking lights on due to the fact that the first notch

that he manually turns is for the parking lights and the next notch he manually turns is for

the headlights. Regardless of the truth of that claim, however, O’Leary fails to recognize

that the basis for Officer Havron’s stop of his vehicle was simple. O’Leary’s headlights,

in comparison to the vehicle behind, did not appear to be illuminated thereby providing

Officer Havron with particularized suspicion to stop O’Leary for failing to illuminate his

headlights. It is to this fact that Officer Havron testified at the hearing on O’Leary’s

petition to reinstate his driver’s license and this fact provides a particularized suspicion

necessary to satisfy the requirements of § 46-5-401(1), MCA.


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¶6   Affirmed.



                          /S/ BRIAN MORRIS


We Concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM RICE




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