State v. Anderson

No. 92-298

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

THE STATE OF MONTANA,

Plaintiff and Respondent,

v.

ROBERT DUANE ANDERSON,

Defendant and Appellant.

APPEAL FROM: District Court of the Nineteenth Judicial District,

In and for the County of Lincoln,

The Honorable Robert S . Keller, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Donald L. Shaffer, Attorney at Law,

Libby, Montana

For Respondent:

Hon. Marc Racicot, Attorney General,

John Paulson, Assistant Attorney General,

Helena, Montana; Scott B. Spencer,

Lincoln County Attorney, Libby, Montana

L d kisf .i Submitted on Briefs: December 17, 1992

Decided: June 1, 1993

Justice Terry N. Trieweiler delivered the opinion of the Court.

Defendant Robert Duane Anderson was convicted in the

Nineteenth Judicial District, Lincoln County, of Criminal

Possession of Dangerous Drugs with Intent to Sell in violation of

5 45-9-103, MCA. Anderson appeals fromthe District Court's denial

of his motion to suppress evidence obtained in the warrantless

search of his vehicle. We reverse and remand.

The dispositive issue on appeal is:

Did the Lincoln County Sheriff's Department have a

particularized suspicion to justify an investigative stop of the

defendant's vehicle?

In the early afternoon on Tuesday, October 8, 1991, the

Lincoln County Sheriff's Department received a tip that Robert

Duane Anderson and another individual were leaving Libby, Montana,

and driving to Washington to retrieve a large quantity of

marijuana. The informant told Officer Don Bernall that Anderson

and his fellow passenger would be traveling in Anderson's blue

Toyota pickup and that they would be returning to Montana in the

late night on October 8, 1991.

Officer Bernall discussed the tip with County Attorney

Scott B. Spencer and they decided the tip should be confirmed

before applying for a search warrant. They devised a stakeout

strategy to verify the tip and to conduct further investigation.

By approximately 6:00 p.m. on October 8, 1991, the plan was

implemented.

The dispatcher at the Lincoln County Sheriff's Office

directed Officers Doug Johnson and Klint Gassett to drive in two

separate patrol cars to the Idaho-Montana border on U.S. Highway 2.

Two other officers were directed to the Idaho-Montana state line on

Highway 56. The officers were instructed to wait in their

positions until they received a message from Officer Bernall that

he had sighted Anderson's blue pickup, and once the pickup crossed

the Idaho border into Montana, the officers were to stop it for

further investigation.

Night fell, and in the early morning hours of October 9, 1991,

Officer Bernall traveled west into Idaho on U.S, Highway 2, in an

effort to locate Anderson's pickup. At about 1:20 a.m., Officer

Bernall sighted a blue pickup traveling eastbound toward Montana.

Officer Bernall alerted Officers Johnson and Gassett by radio that

he had sighted what he believed to be Anderson's pickup. Officer

Bernall instructed the two officers to verify the pickup's license

plate by following it. Anderson passed the two patrol cars on

Highway 2, just inside the Montana border. By following the

pickup, the officers confirmed that the license plate was

Anderson's.

Officer Gassett instructed Officer Johnson to conduct a

traffic stop on Anderson's pickup. Officer Gassett testified at

trial that although Anderson had not violated any traffic laws to

initiate a traffic stop, the officers conducted such a stop

nonetheless. Officer Johnson activated his red top lights and

signalled to Anderson to pull to the side of the road. Anderson

stopped his pickup.

Officer Johnson shined his spotlight on the pickup. Neither

of the officers approached the stopped vehicle to ask the driver or

passenger for a driver's license, proof of identification, or proof

of insurance, despite not knowing Anderson or the passenger. The

officers yelled to the men to get out of the pickup. Officer

Gassett called the passenger Michael Hathaway. Michael Romine

stepped out of the passengerts side of the pickup and walked into

the ditch beside the highway. Officer Gassett pulled his gun and

yelled at Romine to '!get his hands up," and to come over to his

patrol car. Romine complied and proceeded toward the officer as

instructed.

When Romine reached the patrol car, Officer Gassett directed

him to Lay spread eagle against the car with his hands on the hood.

The officer conducted a pat-down search on Romine (which the

officer later testified was for the purpose of looking for weapons

that could harm the officers) . During the pat-down, the officer

felt and removed a small, hard object in Rominels right shirt

pocket. The object was approximately three inches long and

three-quarters inch in diameter. I t was a single hit marijuana

pipe. Officer G a s s e t t also removed Romine9s wallet from his

pocket, told Romine he was under arrest, handcuffed him, and placed

him in the back seat of the patrol car.

Officer Johnson conducted a pat-down search on Anderson, but

did not arrest him. The officers detained Anderson in the area of

the patrol cars. Officer Bernall arrived a short time later.

Subsequent to the stop, the removal of both Anderson and

Romine from the pickup, and the initial body pat-down searches,

Officers Bernall and Gassett conducted a search of Anderson's

pickup. On the floorboards of the pickup on the driver's side,

Officer Bernall discovered a brown paper grocery bag. The top of

the bag was rolled shut. Officer Bernall opened the bag and

observed what he believed to be marijuana. The officers arrested

Anderson for possession of dangerous drugs.

Officer Bernall drove the pickup to Libby and impounded the

vehicle. The officers then obtained a search warrant for the

pickup, At approximately 3:40 a.m., on October 9, 1991, the

officers searched the pickup and found 11 pounds of marijuana

behind the pickup seat.

On October 9, 1991, the State formally charged Anderson by

complaint with the offense of Criminal Possession of Dangerous

Drugs with Intent to Sell in violation of § 45-9-103, MCA. At a

scheduled suppression hearing, Anderson made a motion to suppress

physical evidence obtained in the search of his pickup, based on

the alleged illegality of the search. The District Court denied

Anderson s motion. Anderson then entered an A@rd pf ea, preserving

his right to appeal the refusal to suppress the evidence seized

from the vehicle. The District Court accepted Anderson's plea and

sentenced him to 13 years in prison. Anderson appeals the court's

5

denial of his motion to suppress the evidence obtained in the

search.

The issue on appeal is whether the Lincoln County Sheriff Is

Department had a particularized suspicion to justify an

investigative stop of the defendant's vehicle.

Anderson contends the State's evidence was obtained from an

illegal search of his pickup, and therefore, the District Court

erred when it denied his motion to suppress. We agree with

Anderson that the warrantless search of his pickup and subsequent

seizure of the contraband were unlawful. We conclude that the

Lincoln County Sheriffis officers conducted an unjustified

investigatory stop of Anderson's pickup and that, therefore, the

search of that vehicle was illegal.

In 1968, the United States Supreme Court recognized that a

police officer may stop an individual to investigate possible

criminal behavior even though there is no probable cause to make an

arrest. Tenyv. Ohio (1968), 3 9 2 U.S. 1, 22, 88 S. Ct. 1868, 1880,

20 L. Ed. 2d 889, 906-07. The Supreme Court also recognized,

however, that the Fourth Amendment applies to seizures of the

person, T e v , 392 U.S. at 9, and investigatory stops such as the

stop of Anderson's pickup. UnitedStatesv. Cortez (1981), 4 4 9 U . S . 411,

417, 101 S. Ct. 690, 694-95, 66 L. Ed. 2d 622, 628. In Tewy, the

Supreme Court held that an unparticularized suspicion or l'hunch1I is

not sufficient cause to stop and frisk a person, and that an

investigatory stop and frisk will be justified only when it is

based on specific, articulable facts from which the officer could

reasonably infer that the individual is engaged in criminal

activity and is armed and dangerous, Teny, 3 9 2 U.S. 1.

In Co~ez, a post-Teny decision regarding investigative stops,

the United States Supreme Court recognized that terms like

uarticulable reasons" and founded suspicions, referred to by

courts in cases such as Terry, are not self-defining, and that

further guidance was necessary to know when an officer has

sufficient cause to make an investigatory stop. Cortez, 449 U.S.

at 417.

In Cortez, the Supreme Court held that to justify an

investigative stop of a vehicle, detaining officers must have a

particularized suspicion comprised of (1) objective data and

circumstantial evidence from which an experienced officer can make

inferences, and (2) a resulting suspicion that the occupant of a

certain vehicle is or has been engaged in wrongdoing. Corfez, 449

U.S. at 418.

In State v. Gopher (1981), 193 Mont. 189, 631 P. 2d 293, we adopted

the Cortez standard required to justify a valid investigatory stop

of an individual or vehicle. We held that probable cause was no

longer necessary in Montana to make a limited and reasonable

investigatory stop of an individual or vehicle; and that the lower

particularized suspicion standard, as set forth in Cortez, was

sufficient justification f a r a permissible stop.

In 1991, the Montana Legislature amended the investigative

stop statute to reflect the particularized suspicion standard set

forth in Gopher. Section 46-5-401, MCA, provides:

~nvestigative Stop, In 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.

Both C r e and Gopher are clear that objective data must form

otz

the basis of the officer's particularized suspicion before a stop

is valid. Objective data may be based on "various objective

observations, information from police reports, if such are

available, and consideration of the modes or patterns of operation

of certain kinds of lawbreaker^.^' C r e , 449 U.S. at 418.

otz From

objective data, a trained officer draws inferences and makes

deductions that lead the officer to a resulting suspicion that the

individual is involved in criminal activity. Gopher, 631 P.2d at

295 (citing Carter, 4 4 9 U . S . a t 418). Based on t h e evidence before

this Court, hold that the Lincoln County Sheriff s Office did

not have objective data, as required by C r e and Gopher, upon which

otz

to form a resulting suspicion that Anderson was involved in a

crime.

The State asserts, on appeal, that the informant's tip served

as a sufficient basis to justify the stop of Andersonls vehicle.

The State relies on the precedent set forth in Adam v. m i u r n s

(1972), 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612, and Statev.

Sharp (1985), 217 Mont. 40, 702 P.2d 959--two cases in which an

informant's tip served as the initial basis for an investigative

stop. We conclude that the facts of both Adams and Slzarp are

distinguishable from the facts in the present case and that the

informant's tip in the present case did not give rise to a

particularized suspicion of criminal activity.

In Adams, the police officer was acting on a tip supplied

moments earlier by an informant, and the United States Supreme

Court held that the informant's tip had sufficient indicia of

reliability to justify the officer's stop. Adams, 407 U.S. at 147.

By contrast, the officer in the present case relied on an

informant's tip which included no factual basis to indicate its

reliability. The State concedes that it had no information

regarding the basis of the informant's knowledge.

In Sharp, a citizen informer had just called the police to

report a possible DUI offense and the informant provided the police

with information to find the vehicle. The police officer

corroborated the informant's tip with his own observations at the

scene. He noticed the defendant's vehicle stopped halfway in the

road, saw attendant skid marks near the car, and observed the

vehicle pulling away from him when he arrived. We held that based

on the informant's tip and the officer's observations at the scene

which corroborated the tip, the officer had a particularized

suspicion sufficient to stop the vehicle to investigate a possible

crime. Sharp, 702 P.2d at 962.

In contrast to Sharp, none of the observations made in this

case prior to the stop of Anderson's vehicle suggested illegal

activity. The only investigation made by the officers prior to the

stop involved observation of Anderson as he lawfully drove across

the Idaho border into Montana. In State v. Valky (1992), 252 Mont.

489, 494, 830 P.2d 1255, 1258, w e held a simple drive-by of a house

was not probative of the probability of illegal activity within the

house. Similarly, a simple observation of a motor vehicle lawfully

crossing a state line was not probative of the probability that

Anderson was transporting drugs in his vehicle.

Instead of conducting independent investigation to corroborate

the tip, the officers relied on the tip to stop the pickup and

gather information to justify the stop in the first place, Officer

Bernall testified that the very purpose of stopping and searching

Anderson's pickup was to investigate whether Anderson was

transporting drugs and to confirm that the tip was reliable so that

a search warrant could be obtained. To condone a search of the

defendant under these circumstances would render the right to be

free from unreasonable searches and seizures meaningless.

A tip that has not been shown to be reliable or trustworthy

for purposes of establishing probable cause to procure a search

warrant is also unreliable for purposes of providing an officer

with a particularized suspicion. An uncorroborated, unreliable tip

is not objective data as contemplated by Cortez and Gopher.

We conclude that when the officers in this case stopped

Anderson's pickup to investigate and confirm the reliability of

their informant's tip, the officers did not have objective data and

did not meet the particularized suspicion standard required by

Gopher. Therefore, the stop was illegal.

The Fourth Amendment protection against unreasonable searches

and seizures applies to the seizures of the person, including brief

investigatory stops such as the stop of a vehicle. Cortez, 449 U.S.

at 417. When the Lincoln County Sheriff's officers stopped

Anderson in his pickup, they violated Anderson's right to be free

from unreasonable searches and seizures as guaranteed by the Fourth

Amendment of the United States Constitution and Article 11,

Section 11, of the Montana Constitution.

We hold that because the initial stop was unlawful, all of the

evidence obtained by the officers in this case is inadmissible at

trial. Mupp v. Ohio (196l), 367 U.S. 643, 81 S. Ct. 1684,

6 L. Ed. 2d 1081.

We reverse and remand this case to the District Court and

direct the lower court to suppress and exclude from evidence all

items seized as a result of the unlawful stop and search of

Anderson's pickup.

W e concur:

Chief Justice

Justice Fred J. Weber dissents as follows:

I dissent from the conclusion of the majority which holds that

when the officers in this case stopped Anderson's vehicle, the

officers did not have objective data and did not meet the

particularized suspicion standard required by State v. Gopher

(l98l), 193 Mont. 189, 631 P.2d 293. Police are authorized to stop

a vehicle when they have a particularized or reasonable suspicion

that criminal activity may be afoot. This is the controlling rule

as clearly stated in State v. Sharp (1985), 217 Mont. 40, 702 P.2d

The defendant alleges that Officer Williams was without

authority to stop the defendant's vehicle because he

lacked probable cause to do so. This contention is

erroneous. All that is required of an officer in making

an investigatory stop is that he have a "particularized"

or "reasonable" suspicion that criminal activity may be

afoot. This is the applicable standard for an

investigative stop of a vehicle; or in other words "some

basis from which the court can determine that the

detention was not arbitrary or harassing." State v.

Gopher (Mont. 1981), 631 P.2d 293, 295, 38 St.Rep. 1078,

1081, relying on United States v. Cortez (1981), 449 U.S.

411, 101 S.Ct. 690, 66 L.Ed.2d 621.

Sharp, 217 Mont. at 45.

As pointed out in the majority opinion, on October 8, 1991,

the Lincoln County Sheriff's Department received a tip that

defendant and another individual were leaving Libby, Montana, and

driving to Washington to retrieve a large quantity of marijuana.

That informant told Officer Burnell that defendant and his fellow

passenger would be traveling in defendant's blue Toyota pickup and

would be returning to Montana in the late night of October 8, 1991.

We emphasize that here the police had a particularized suspicion

based upon the tip of a previously accurate confidential informant.

We have held that information supplied by a previously accurate

informant is sufficient to establish the probability of criminal

activity. State v. Walston (l989), 236 Mont. 218, 223, 768 P.2d

In Sharp this Court concluded that Officer Williams did have

sufficient basis for his particularized suspicion, stating:

Here, Officer Williams had a sufficient basis for his

particularized suspicion of illeyal activity. A citizen

had just called the police to report a possible DUI

offense and had given the police dispatcher the car's

license plate number and description and the direction of

travel. These facts were corroborated when Officer

Williams found the described vehicle qoinq in the

direction and on the hishway reported by the telephone

caller. When Williams came upon the automobile, it was

stopped halfway off the roadway and began to pull away

when he approached. Officer Williams noticed skid marks

coming from the vehicle. He had right at that time,

based on reasonable suspicion and logical inference, to

stop the defendant's vehicle to investigate a possible

crime. (Emphasis added.)

Sharp, 217 Mont. at 45-46. In Sharp an anonymous informant had

called to report a possible DUI, giving a description of the car's

license plate number, automobile description and direction of

travel. Sharp concluded those facts were corroborated when the

officer found the described vehicle going in the direction and on

the highway reported by the caller. 1 3 our case, we have directly

comparable facts, but facts which are somewhat stronger as a basis

for an investigatory stop than in Sham. Here the initial tip was

by the previously accurate confidential informant who advised that

the defendant and another individual were going to be driving into

Libby, Montana in the late night of October 8, and that they would

be traveling in the defendant's blue Toyota pickup. A significant

portion of these facts was corroborated when the officers observed

the defendant's blue Toyota pickup, whose license number they

verified, returning to Montana on the late night of October 8, as

described by the informant. These facts are directly comparable to

Sharp plus the additional corroboration of a tip by a previously

accurate confidential informant.

Following the confirmation of the defendant's vehicle going in

the right direction, on the highway, and at the time of day

described by the informant, I conclude that the officers had

properly obtained sufficient corroboration so they had a

particularized and reasonable suspicion that criminal activity may

have been afoot, entitling them to make an investigatory stop. The

majority refers to Sharp and suggests that this case is to be

distinguished because there was nothing to suggest that the

defendant's vehicle here suggested illegal activity. I do not find

any such indication of illegal activity in SharlJ. The majority

refers to State v. Valley (1992), 252 Mont. 489, 830 P.2d 1255, for

the proposition that a simple "drive by" of the premises is not

observation probative of illegal activity. That analysis is not

applicable here. The informant in Valley was an anonymous citizen

informant, the police did not have a way of knowing whether the

information was correct without specific corroboration which was

not obtainable in a drive by situation. The present case should be

distinguished from Valley because we have the previously accurate

confidential informant.

I suggest t h a t p o l i c e corroboration of t h e e x a c t make, model

and c o l o r of c a r , going i n the s p e c i f i e d direction a t t h e s p e c i f i e d

time was enough to constitute a l l p a r t i c u l a r i z e d suspicionn when

p r e s e n t e d by a p r e v i o u s l y accurate confidential informant.

I would therefore a f f i r m t h e D i s t r i c t Court.

Chief Justice J. Turnage concurs in the f-

og dissent.

June 1, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by U i e States mail, prepaid, to the following

ntd

named:

DONALD L. SHAFFER

Attorney at Law

502 Main St.

Libby, MT 59923

HON. MARC RACICOT, Attorney General

John Paulson, Assistant

Justice Bldg.

Helena, MT 59620

SCOTT B. SPENCER

Lincoln County Attorney

512 California Ave.

Libby, MT 59923

ED SMITH

CLERK OF THE SUPREME COURT

STATE 9F

MPNTANA