                                           No. 04-001

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2004 MT 210N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

ALAN JAY LABUDA,

              Respondent and Appellant.



APPEAL FROM:         District Court of the Twelfth Judicial District,
                     In and for the County of Hill, Cause No. DV 2003-011
                     The Honorable John C. McKeon, Judge presiding.



COUNSEL OF RECORD:

              For Appellant:

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

              For Respondent:

                     Honorable Mike McGrath, Montana Attorney General, Jennifer Anders,
                     Assistant Attorney General, Helena, Montana; Cyndee Peterson, Hill County
                     Attorney, Gina Bishop, Chief Deputy Hill County Attorney, Havre, Montana



                                                        Submitted on Briefs: May 19, 2004

                                                                   Decided: August 10, 2004




Filed:

                     __________________________________________
                                       Clerk
Justice James C. Nelson delivered the Opinion of the Court.

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

Operating Rules, the following decision shall not be cited as precedent. The decision shall

be filed as a public document with the Clerk of the Supreme Court and shall be reported by

case title, Supreme Court cause number, and result to the State Reporter Publishing

Company and to West Group in the quarterly table of noncitable cases issued by this Court.

¶2     Alan Jay Labuda (Labuda) appeals the judgment of the Twelfth Judicial District

Court, Hill County, denying his motion to suppress.

¶3     We address the following issue on appeal and affirm: Did the officers have

particularized suspicion in stopping the minivan in which Labuda was a passenger?


                  FACTUAL AND PROCEDURAL BACKGROUND

¶4     On May 28, 2002, Alex Giles (Giles), a traveling salesperson, was driving from Great

Falls back home to Havre. Around Big Sandy, Giles noticed that a vehicle had pulled out

behind him. The vehicle was traveling in the same direction as Giles; however, it was

traveling on the wrong side of the road. The vehicle eventually returned to the right side of

the road as it neared the Big Sandy city limits.

¶5     The vehicle then passed Giles, during which time Giles noted that the vehicle was “a

dark colored Chevy pickup.” Giles then noticed that the vehicle “began drifting from one

lane to the other, close to the ditch,” and that another vehicle that the driver of the pickup

had also passed “had to get to the shoulder of the road” to let the driver of the pickup by, as



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the driver did not pass in the appropriate lane.

¶6     Giles called 911, telling the dispatcher that he thought that the driver of the pickup

was driving under the influence. The 911 dispatcher asked Giles if it was possible for him

to get a license number. Hence, Giles drove “between 95 and 100 miles an hour” in order

to “catch” the pickup, traveling a distance of “14 or 15 miles” before getting behind the

pickup. Giles was then “a few feet behind,” the pickup, and he gave the dispatcher the

license number. He also noticed that the driver of the pickup “appeared to have kind of

longer, bushier hair and seemed to be wearing a baseball cap.” When asked for an

estimation of the driver’s height, Giles told the dispatcher that based on how tall the driver

seemed to sit in the driver’s seat, he estimated the driver’s height to be “around six-feet tall.”



¶7     Giles and the driver of the pickup then entered the town of Laredo, at which time

Giles pulled over and watched the driver drive to a residence. Giles then observed the driver

go back and forth from his residence to the pickup several times. He then saw another

vehicle--a minivan--turn off of the highway and drive to the same residence.

¶8     Giles next observed “the person that appeared to be driving the pickup” get into the

minivan. It was at this time that the summoned officers arrived, namely Deputy Dwyer and

Deputy Ross. However, before arriving, Deputy Dwyer received information from the

dispatcher that the vehicle matching the license and description relayed to her by Giles came

back registered to Labuda.

¶9     Upon arriving, Deputy Dwyer and Giles began talking “for a short time,” after which

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the minivan left the residence and proceeded to drive towards Giles, Deputy Dwyer, and

Deputy Ross. At that time, Deputy Dwyer stopped the minivan. Deputy Ross advised

Deputy Dwyer that he recognized the passenger in the minivan as Labuda. Deputy Dwyer

then spoke to Labuda, noting Labuda “was slurring his words,” and that he had to repeat the

questions he was asking Labuda several times because he could not understand Labuda’s

answers. Deputy Dwyer asked Labuda several questions without first giving him a Miranda

warning. Ultimately, Deputy Dwyer concluded that Labuda had been driving under the

influence. Another patrol officer then removed Labuda from the minivan and took Labuda

into custody.

¶10    Labuda moved to suppress the statements he made to Deputy Dwyer, which the

District Court denied. Ultimately, Labuda pled guilty to the charge of driving under the

influence of alcohol, second offense, reserving his right to appeal the denial of his motion

to suppress.

¶11    Labuda now appeals the District Court’s denial of his motion to suppress.

                               STANDARD OF REVIEW

¶12    We review a district court’s grant or denial of a motion to suppress to determine

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

court’s conclusions of law were correctly applied as a matter of law. State v. Henderson,

1998 MT 233, ¶ 9, 291 Mont. 77, ¶ 9, 966 P.2d 137, ¶ 9. A district court’s findings of fact

are clearly erroneous if they are not supported by substantial evidence; if the district court

misapprehended the effect of the evidence; or if a mistake has been committed. Henderson,


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¶ 9.

                                       DISCUSSION

¶13    Did the officers have particularized suspicion in stopping the minivan in which
       Labuda was a passenger?

¶14    Labuda argues that “[t]here is no record that either of the deputies were provided with

any identification of the suspect by Giles before or during the time of the stop of the van.”

In addition, Labuda argues that “[t]he only, on record, connection between the van and the

suspected pickup . . . was that it [the minivan] was coming from the general direction of

where the pickup was seen in a stopped position.” Such information, Labuda contends, does

not constitute objective data connecting the minivan to the driver of the pickup. Hence, the

stop of the minivan was illegal, and any evidence derived from the stop must be suppressed.

¶15    The State of Montana (the State) argues that “substantial evidence” connected Labuda

to the events that Giles witnessed. Specifically, the State argues that: (1) Giles followed the

pickup and saw it pull into a residence; (2) Giles never lost sight of the pickup and watched

the driver go to and from the pickup into the residence; and (3) Giles testified that he

believed the driver of the pickup was the same person in the minivan whom the officers

stopped. Hence, the State argues that “there was adequate evidence from which the district

court” could make the inference that Labuda--the passenger in the minivan--was also the

erratic driver of the pickup.

¶16    Under § 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.” The

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existence of particularized suspicion is a question of fact, which a district court determines

in light of the totality of circumstances. State v. Lacasella, 2002 MT 326, ¶ 20, 313 Mont.

185, ¶ 20, 60 P.3d 975, ¶ 20. Particularized suspicion exists if: (1) an officer has objective

data from which to make certain inferences; and (2) the officer also has a suspicion that the

occupant of the vehicle is or has been engaged in wrongdoing. Lacasella, ¶ 20.

¶17    We adopted a three factor test in State v. Pratt (1997), 286 Mont. 156, 165, 951 P.2d

37, 42-43, to evaluate the totality of the circumstances under which an investigative stop is

made pursuant to a tip. These factors include whether: (1) the informant remains

anonymous or subjects himself to civil and criminal liability; (2) the report is based on

personal observations; and (3) the officer’s own observations corroborate the informant’s

information. State v. Hall, 2004 MT 106, ¶ 9, 321 Mont. 78, ¶ 9, 88 P.3d 1273, ¶ 9.

¶18    In addition, we held in State v. Elison, 2000 MT 288, 302 Mont. 228, 14 P.3d 456,

that the officer had particularized suspicion to stop Elison based on “Gibson’s [the non-

anonymous informant’s] report . . . [regarding] his personal observation of Elison smoking

from a brass pipe, appearing startled upon noticing the patrol car and attempting to hide the

pipe from view; Officer Conrad’s corroboration of Gibson’s description of the vehicle; and

Officer Conrad’s independent observation of Elison’s subsequent driving behavior which

appeared suspicious in light of Gibson’s report.” Elison, ¶¶ 22, 23. We held that “[t]hese

facts [we]re reliable objective data from which Officer Conrad could make certain

inferences, based on his [Officer Conrad’s] four years of experience and training, which

would lead to a resulting suspicion that Elison was engaged in wrongdoing.” Elison, ¶ 22.

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¶19    In Elison, the officer was informed by the non-anonymous informant that he observed

Elison “smoking from what he believed to be a marijuana pipe and that . . . [Elison] . . .

appeared startled and attempted to hide the pipe.” Elison, ¶ 7. The officer in Elison did not

witness any of the activity that the non-anonymous informant had, but the officer did locate

the truck that Elison was driving. Elison, ¶ 7. At that point, the officer stopped Elison’s

vehicle and “immediately smell[ed] the odor of marijuana,” and noticed that “Elison

appeared nervous, his eyes were red and glassy, and he would not sit still.” Elison, ¶ 8.

¶20    Here, just as in Elison, the non-anonymous informant, Giles, observed Labuda’s

erratic driving, followed Labuda to a residence, and observed Labuda exit his pickup, go to

and from his residence, and get into a minivan that arrived some time later. Giles relayed

his observations to Deputy Dwyer, upon Deputy Dwyer’s arrival near the residence. Deputy

Dwyer then observed the minivan pass by him, and was advised by Deputy Ross that Labuda

was in the passenger side. At that point, Deputy Dwyer stopped the minivan, and

subsequently noted that Labuda had difficulty in answering the questions asked of him and

that Labuda noticeably slurred his words.

¶21    Just as we held in Elison, Deputy Dwyer’s corroboration met the third factor of the

Pratt test. And, ultimately, all three factors of the Pratt test were established, and Deputy

Dwyer had particularized suspicion to justify his stop of Labuda.

¶22    There was an unbroken chain of events and observations starting with Giles’s

observations of Labuda driving on the wrong side of the road, to Giles’s observations of

Labuda’s pickup “drifting from one lane to the other,” to Giles’s observations of another

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vehicle having to get onto the shoulder of the road to facilitate Labuda’s passing, to Giles’s

following of Labuda’s pickup, to Giles’s observations of Labuda driving to a residence,

wherein Labuda went to and from the residence and his pickup, to Giles’s observations of

the minivan arrival and Giles entering the minivan on the passenger side, to Giles’s

statements to Deputy Dwyer and Deputy Ross of his observations, to Deputy Dwyer’s stop

of the minivan and Deputy Dwyer’s personal observations of Labuda’s state of apparent

intoxication following the stop. All three parts of the the Pratt test were satisfied. Hence,

particularized suspicion existed upon which Deputy Dwyer had objective data and a resulting

suspicion that Labuda was driving under the influence of alcohol. Therefore, we hold that

the District Court did not err in denying Labuda’s motion to suppress, as the deputies had

particularized suspicion to arrest Labuda for driving under the influence of alcohol.

¶23    Affirmed.


                                                         /S/ JAMES C. NELSON




We Concur:


/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JIM RICE




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