                                          No. 03-437

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 3N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

ARTHUR RAY PEOPLES,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Eleventh Judicial District,
                     In and for the County of Flathead, Cause No. DC-02-319(B),
                     The Honorable Katherine R. Curtis, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Kristina Guest, Appellate Defender Office, Helena, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Mark W. Mattioli,
                     Assistant Attorney General, Helena, Montana

                     Ed Corrigan, Flathead County Attorney; Daniel Guzynski, Deputy County
                     Attorney, Kalispell, Montana


                                                  Submitted on Briefs: April 13, 2004

                                                             Decided: January 18, 2005

Filed:


                     __________________________________________
                                       Clerk
Justice John Warner delivered the Opinion of the Court.

¶1     We have determined to decide this case according to Section I, Paragraph 3(d)(i),

Montana Supreme Court Internal Operating Rules, as amended in 2003, which provides for

memorandum opinions. Pursuant to Section I, Paragraph 3(d)(v) of these rules, the

following decision shall not be cited as precedent. Its case title, Supreme Court cause

number and disposition shall be included in this Court’s quarterly list published in the Pacific

Reporter and Montana Reports.

¶2     Arthur Ray Peoples (“Peoples”) appeals from an order of the Eleventh Judicial

District Court, Flathead County, denying his motion to suppress evidence. We affirm.

¶3     The sole issue on appeal is whether the District Court erred in denying Peoples’

motion to suppress evidence found during a search of his vehicle.

¶4     On August 28, 2002, a Kalispell police officer (“Officer McCarvel”) received a

confidential tip from a Wal-Mart employee that a black male accompanied by a female had

purchased an unusual amount of Pseudoephedrine from the Wal-Mart Pharmacy. The

employee was able to positively identify Peoples from a police photograph. Shortly

thereafter, Sergeant Roger Nasset (“Sgt. Nasset”) of the Kalispell Police was asked to assist

in surveillance of a vehicle driven by Peoples and a female passenger. Sgt. Nasset was

aware that Peoples’ driver’s license had been suspended. Sgt. Nasset contacted dispatch to

confirm that Peoples’ license was still suspended. A third Officer, Deputy Wingert, heard

the radio traffic and responded to assist Sgt. Nasset in stopping Peoples’ car. It was Deputy

Wingert who initiated the actual stop. Sgt. Nasset arrived just after Deputy Wingert, and the

two officers then approached Peoples’ car. Peoples was in the driver’s seat and a female

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passenger was in the back seat.

¶5     The officers asked Peoples and his female passenger to exit the car as they observed

both were behaving nervously. When Peoples and the woman got out of the car, the officers

observed syringes, baggies containing a white substance, and other drug-related evidence in

plain view inside the car. Upon this discovery, Officer McCarvel was called in to continue

the investigation. The police impounded the car and searched it pursuant to a warrant. The

search of the vehicle resulted in the discovery of nearly all of the precursors and materials

necessary to produce methamphetamine.

¶6     Peoples was charged with Operation of an Unlawful Clandestine Laboratory and

Criminal Possession of Dangerous Drugs. He filed a motion to suppress all the evidence

found in his car on the basis that the police stopped him as a pretext to search for drugs. The

District Court denied the motion concluding that the police had the particularized suspicion

required to initiate a traffic stop of Peoples’ vehicle because Peoples was driving while his

license to do so was suspended. Relying on State v. Farabee, 2000 MT 265, ¶ 29, 302

Mont. 29, ¶ 29, 22 P.3d 175, ¶ 29, the District Court held the fact that the officers also used

the stop to investigate the possibility that Peoples was engaged in illegal drug activity did

not render the stop unlawful. The District Court further concluded that the drug evidence

found in plain view during the traffic stop, together with information from a confidential

informant that Peoples had purchased unusual amounts of Pseudoephedrine from the Wal-

Mart Pharmacy, gave the police the requisite probable cause to get a search warrant for the

car.

¶7     Peoples was convicted of both of the offenses with which he was charged.

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¶8       In the District Court, Peoples argued that the police used the suspension of his

driver’s license as a pretext, after-the-fact, to justify the stop so they could investigate

Peoples’ drug activity. Peoples argued that even though the officers said they stopped him

because his license was suspended, they failed to issue a citation to him on that basis, which

proved the officers lacked the particularized suspicion necessary to make the stop.

¶9       On appeal, Peoples has changed his argument. He now asserts, for the first time, that

the State did not have the requisite particularized suspicion to stop his vehicle because it

failed to prove that Deputy Wingert had actual knowledge that Peoples’ license was

suspended at the time he made the stop, or that Deputy Wingert was actually directed to

make the stop for that reason.

¶10      The rule is well established that a party may not raise new arguments or change his

legal theory on appeal. State v. Heath, 2004 MT 58, ¶ 39, 320 Mont. 211, ¶ 39, 89 P.3d 947,

¶ 39. The issue regarding whether Deputy Wingert was required to have actual knowledge

of the reason for the stop in order to establish particularized suspicion was not raised in the

District Court. Therefore, it is not properly before us on appeal. We decline to discuss this

issue.

¶11      On the face of the briefs and the record before us on appeal, it is manifest that the

appeal is without merit. The District Court correctly interpreted the legal issues before it at

the time of Peoples’ suppression hearing in accordance with settled Montana law.




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¶12   Affirmed.


                              /S/ JOHN WARNER


We Concur:

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




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