Opinion

State v. Pratt

286 Mont. 156
54 State Rptr. 1349
951 P.2d 37
1997 Mont. LEXIS 266

Court: Montana Supreme Court
Filed: Dec 16, 1997
Status: Published
Author: Regnier
On the bench: Regnier, Turnage, Nelson, Gray, Hunt
Cited by: 59 cases
Authority: More cited than 96.0%

stating that the parties appropriately focus their arguments on the nature of the information provided by the citizen informant and the role it played in the officer’s determination of particularized suspicion

How later courts described this case

stating that the parties appropriately focus their arguments on the nature of the information provided by the citizen informant and the role it played in the officer’s determination of particularized suspicion
“corroboration of a tip occurs when the officer either observes illegal activity or finds the person, the vehicle, and the vehicle’s location substantially described by the informant”

Written by the judges who cited it.

The opinion

97-144

No. 97-144

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

STATE OF MONTANA,

Plaintiff and Respondent,

KENT JAMES PRATT,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable Douglas G. Harkin, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

J. Dirk Beccari; Quane, Smith, Howard & Hull;

Missoula, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General;

John Paulson, Assistant Attorney General;

Helena, Montana

Robert L. "Dusty" Deschamps, III, Missoula County

Attorney;

Robert L. Zimmerman, Deputy County Attorney;

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Missoula, Montana

Submitted on Briefs: November 6, 1997

Decided: December 16, 1997

Filed:

__________________________________________

Clerk

Justice Jim Regnier delivered the Opinion of the Court.

Kent James Pratt was charged by information on November 2,

1995, with the

offenses of felony driving under the influence of alcohol,

misdemeanor possession of

more than one valid Montana driver's license, and misdemeanor

violation of the

provisions of a restricted driver's license. Pratt filed a motion

to suppress evidence of

his intoxication which had been obtained following the

investigatory stop of his vehicle.

Pratt also filed a motion to dismiss the charge for lack of

jurisdiction. The Fourth

Judicial District Court, Missoula County, denied both motions.

Pratt entered into a plea

agreement with the State in which he agreed to plead guilty to

felony DUI and the State

agreed to dismiss the two misdemeanor counts and make a specified

sentencing

recommendation. The District Court sentenced Pratt to a term of

five years, with two

years suspended, with the Department of Corrections, and

recommended his placement

in the intensive supervision program. Pratt reserved the right to

appeal from the District

Court's denial of his pretrial motions. Pratt appeals from the

sentence and judgment of

the District Court, and from the orders denying his motion to

suppress and motion to

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dismiss. We affirm.

The following issues are presented on appeal:

1. Did the District Court err in denying Pratt's motion to

suppress evidence,

in which Pratt argued that Officer Pastian did not have a

particularized suspicion to justify

an investigatory stop of Pratt's vehicle?

2. Did the District Court err in denying Pratt's motion to

dismiss the felony

DUI charge for lack of jurisdiction?

FACTUAL AND PROCEDURAL BACKGROUND

The defendant's motion to suppress was submitted and decided

without an

evidentiary hearing. As a factual basis for his motion, however,

Pratt used two police

reports which he attached to the motion. The following facts are

derived from the reports

which were considered by the District Court.

At 2:09 a.m. on October 5, 1995, Officer Scott Pastian of the

Missoula City Police

Department received a police dispatcher's report of an intoxicated

driver. The report

related that the driver was operating a white Toyota Land Cruiser,

license number

resembling "GRIZZII" and traveling north on Van Buren Street from

East Broadway.

The complainant was Mike Lafournaise, the night manager of the

Short Stop convenience

store in Missoula.

Officer Pastian was traveling south on Van Buren Street when

the dispatcher

relayed the report with the description of the vehicle and license

number. Officer Pastian

saw Pratt's Toyota driving toward him on Van Buren Street and then

turn onto Elm

Street. Officer Pastian initiated a traffic stop. Subsequently,

Pastian arrested Pratt for

driving under the influence of alcohol, fourth offense; possession

of more than one valid

Montana driver's license; and violation of the provisions of a

restricted driver's license.

Officer J. Pontrelli overheard the dispatch report about the

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intoxicated driver and

proceeded toward Van Buren Street. Upon hearing Pastian inform the

dispatcher that he

had stopped Pratt, Pontrelli drove to the Short Stop and talked to

Lafournaise.

Lafournaise described Pratt's actions and intoxicated condition

while at the store.

Lafournaise related to Officer Pontrelli that he saw a white

male, now known as

the defendant, Kent Pratt, drive a 1991 white Toyota Land Cruiser

into the store's gas

pump lanes where he stopped and sat for awhile and then drove away

onto Broadway.

A short time later, Pratt returned to the Short Stop, parked again

in the pump lane, and

stayed in the vehicle for a few minutes. Pratt then exited the

vehicle and staggered into

the store to the bathroom. After coming out of the bathroom, he

went to the beer cooler

and stood in front of it as if he were going to purchase some beer.

The store attendant

then told Pratt that he could not purchase any beer since it was

after 2:00 a.m. Pratt left

the store, fumbled around in his vehicle, and finally drove away.

In reporting Pratt's actions at the Short Stop to the police,

Lafournaise described

the vehicle and its distinctive personalized license plate, and

informed the dispatcher that

Pratt was traveling north on Van Buren Street.

On November 2, 1995, Pratt was charged by information in the

Fourth Judicial

District Court, Missoula County, with violations of: (1) õ

61-8-401, MCA, DUI, a fourth

lifetime offense, a felony; (2) õ 61-5-111, MCA, possession of more

than one valid

Montana driver's license, misdemeanor; and (3) õ 61-5-113, MCA,

violation of

provisions of a restricted driver's license, a misdemeanor.

Pratt has three prior convictions for DUI which occurred on

June 10, 1985; March

7, 1989; and September 13, 1991.

On January 11, 1996, Pratt filed a motion to suppress the

evidence of his

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intoxication which had been obtained following the investigatory

stop of his vehicle. On

February 6, 1996, the District Court denied Pratt's motion to

suppress.

On March 8, 1996, Pratt filed a motion to dismiss the felony

charge for lack of

jurisdiction. In that motion, Pratt argued that two of his prior

DUI convictions should

have been expunged from his record and, therefore, could not be

used as a basis for a

felony DUI prosecution. Pratt also argued that, as applied to his

prior DUI convictions,

the 1995 amendments to the DUI sentencing statutes violated the

constitutional

prohibitions against ex post facto legislation. On June 21, 1996,

the District Court denied

Pratt's motion to dismiss.

On October 7, 1996, Pratt entered a conditional plea of

guilty, pursuant to

õ 46-12-204(3), MCA, to the offense of felony DUI. The State

agreed to dismiss the two

misdemeanor counts and make a specified sentencing recommendation.

Pratt reserved

his right to appeal from the orders denying his motions to suppress

and dismiss.

On November 22, 1996, the District Court sentenced Pratt to a

term of five years,

with two years suspended, with the Department of Corrections, and

recommended his

placement in the intensive supervision program. The District

Court's judgment was filed

on December 9, 1996.

On February 6, 1997, Pratt filed a notice of appeal, and on

February 7, 1997, the

District Court entered an order staying the sentence pending final

determination by this

Court.

Pratt appeals from the sentence and judgment of the District

Court, from the order

denying his motion to suppress evidence, and from the order denying

his motion to

dismiss. ISSUE 1

Did the District Court err in denying Pratt's motion to

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suppress evidence, in which

Pratt argued that Officer Pastian did not have a particularized

suspicion to justify an

investigatory stop of Pratt's vehicle?

The standard of review for a district court's denial of a

motion to suppress is

whether the court's findings of fact are clearly erroneous and

whether those findings were

correctly applied as a matter of law. State v. Flack (1993), 260

Mont. 181, 185-88, 860

P.2d 89, 92-94.

Pratt argues that the District Court erred in denying his

motion to suppress and in

finding him guilty of driving under the influence of alcohol.

Pratt claims that Officer

Pastian did not have enough information to form a particularized

suspicion of criminal

activity to justify an investigatory stop pursuant to õ 46-5-401,

MCA.

In Montana, the requirement of particularized suspicion was

adopted in State v.

Gopher (1981), 193 Mont. 189, 631 P.2d 293, and is codified at õ

46-5-401, MCA,

which provides:

Investigative 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.

In Gopher, this Court adopted the two-part test enunciated by

the United States

Supreme Court in United States v. Cortez (1981), 449 U.S. 411, 101

S. Ct. 690, 66 L.

Ed. 2d 621, to evaluate whether the police have sufficient cause or

a "particularized

suspicion" to stop a person. In asserting that a police officer

had the particularized

suspicion to make an investigatory stop, the State has the burden

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to show:

(1) objective data from which an experienced officer can make

certain

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

certain

vehicle is or has been engaged in wrongdoing or was a witness to

criminal

activity.

Gopher, 193 Mont. at 194, 631 P.2d at 296.

Whether a particularized suspicion exists is a question of

fact which depends on

the totality of circumstances. State v. Reynolds (1995), 272 Mont.

46, 899 P.2d 540. In

evaluating the totality of the circumstances, a court should

consider the quantity, or

content, and quality, or degree of reliability, of the information

available to the officer.

Alabama v. White (1990), 496 U.S. 325, 330, 110 S. Ct. 2412, 2416,

110 L. Ed. 2d

301, 309.

In this case, both Pratt and the State appropriately focus

their arguments on the

nature of the information provided by the citizen informant and

the role it played in

forming Pastian's particularized suspicion in justifying the

investigative stop of Pratt's

vehicle. Pratt argues that the citizen informant who provided the

information to the

Missoula City Police Department was unknown to Pastian before he

initiated the stop of

his vehicle. Therefore, Pratt contends Pastian could not have

assessed the reliability of

the informant's information and rely on that information in forming

a particularized

suspicion to justify the stop. Pratt also argues that the detailed

information establishing

the foundation of Lafournaise's opinion was provided to Officer

Pontrelli after Pastian

stopped Pratt. Furthermore, Pratt asserts that Pastian made no

observation regarding his

driving before stopping him. Thus, without assessing the

reliability of the informant or

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observing any erratic driving on Pratt's part, Pastian possessed no

objective data upon

which to base his stop of Pratt's vehicle.

The State concedes that Pastian's report does not indicate

that the officer himself

observed any erratic driving prior to the investigatory stop of

Pratt's vehicle. However,

the State counters by arguing that the information provided by the

citizen informant about

Pratt to the Missoula City Police Department was sufficient in

itself to justify the stop.

This Court has held that an arresting officer may rely on

information conveyed by

a reliable third person, including an anonymous citizen informant,

in forming the basis

for a particularized suspicion to justify an investigative stop.

See Boland v. State (1990),

242 Mont. 520, 792 P.2d 1; State v. Ellinger (1986), 223 Mont. 349,

725 P.2d 1201.

For example, we have stated that a citizen report of a DUI, the

reported vehicle observed

halfway off the road, and the vehicle pulling away when an officer

approached is

sufficient to establish a particularized suspicion. State v. Sharp

(1985), 217 Mont. 40,

702 P.2d 959. Likewise, two anonymous telephone calls corroborated

by officers and

evidence of excessive speed were sufficient grounds for a

justifiable stop. State v. Shaffer

(1987), 227 Mont. 221, 738 P.2d 491. In both Sharp and Shaffer,

unlike this case, the

information provided by the citizen informant was corroborated by

independent

observation of wrongdoing or illegality by the officer in order to

meet the particularized

suspicion standard.

Not surprisingly, both parties refer to and place great

emphasis on our recent

decision in State v. Lee (Mont. 1997), 938 P.2d 637, 54 St. Rep.

401. Lee involved the

investigatory stop of a vehicle after a report from an anonymous

citizen informant was

relayed to the arresting officer. In Lee,

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the anonymous caller stated that she "believed Lee was under

the influence

of alcohol and speeding." This statement, along with a

description of the

car and the direction it was heading, was all the information

that was

provided to the dispatcher. The dispatcher relayed this

information to

Officer Collins. The caller did not provide the dispatcher

with any basis

for her belief that Lee was driving under the influence of

alcohol or

speeding. At the time of the call, the informant did not

state whether she

had personally observed Lee drinking or that he was speeding

or driving

erratically. The informant merely believed that Lee was

speeding and

under the influence of alcohol.

Before Officer Collins stopped Lee, he did not have any

contact with

the informant to assess whether the information provided was

reliable or

had any basis in fact. Officer Collins saw a car matching the

informant's

description traveling north on the Fort Peck highway and

turned around to

follow it. Collins testified that the car was not speeding,

weaving, or

swerving. When the patrol car accelerated to get behind the

vehicle driven

by Lee, Lee slowed down to 35 miles per hour. Outside of this

deceleration, Officer Collins observed no violations of the

law or driving

anomalies. Lee did not exhibit patterns consistent with a

person driving

while under the influence of alcohol; there was no evidence of

erratic

driving.

Lee, 938 P.2d at 640, 54 St. Rep. at 403 (emphasis added).

In Lee, the anonymous citizen informant provided the

dispatcher with little

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information except a statement of opinion, a description of the

vehicle, and the general

direction of travel. Upon locating Lee's vehicle, the officer

initiated an investigatory stop

before first assessing whether the information was reliable or had

any basis in fact and,

second, corroborating the information with any observation of

illegal activity or indication

of impaired or erratic driving. Based upon these facts, we held

that a citizen informant's

opinion which is not supported by either the basis for such belief

or by the officer's

personal observations cannot be sufficient to form a particularized

suspicion. Lee, 938

P.2d at 640, 54 St. Rep at 403.

Pratt relies on Lee in arguing that Pastian did not have

sufficient information to

form a particularized suspicion to justify an investigatory stop of

his vehicle. Pratt

contends that the circumstances surrounding the investigatory stop

of his vehicle are

identical to the facts in Lee, in that the tip from the citizen

informant was not reliable and

that the officer did not observe any erratic or impaired driving.

The State argues that Lee is factually distinguishable and

does not control the

resolution of Pratt's case. The State contends that the citizen

informant was not

anonymous, but had identified himself to the dispatcher.

Furthermore, the citizen

informant also indicated that his report was based upon his own

observations that Pratt

was drunk and driving.

Citizen informants can provide useful information and play an

important role in

law enforcement. At the same time, however, it is imperative to

recognize the potential

for abuse if the information provided by a citizen informant is not

reliable. The United

States Supreme Court has recognized the problems associated with

tips from citizen

informants:

Informants' tips, like all other clues and evidence coming to

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a policeman

on the scene may vary greatly in their value and reliability.

One simple

rule will not cover every situation. Some tips completely

lacking in indicia

of reliability, would either warrant no police response or

require further

investigation before a forcible stop of a suspect would be

authorized.

Adams v. Williams (1972), 407 U.S. 143, 147, 92 S. Ct. 1921, 1924,

32 L. Ed. 2d 612,

617-18.

Recognizing the frequency in which we encounter issues

involving citizen

informants, it is appropriate that we provide further guidance on

the proper use of

information given by citizen informants. We find the analysis as

set forth by the Oregon

Court of Appeals in State v. Villegas-Varela (Or. 1994), 887 P.2d

809, useful in

evaluating a citizen informant's report and adopt this approach for

Montana.

In Villegas-Varela, the defendant appealed from a denial of

his motion to suppress.

The police officer at the suppression hearing testified that he

received a dispatch that an

anonymous caller reported an "intoxicated driver operating a small

red vehicle with four

subjects in it. The vehicle was driving erratically all over the

road." Although the caller

provided the license number, he did not give his location, the

location of the car, the

direction of travel or a description of any of the occupants. The

caller also did not give

his name or telephone number. More than an hour later, the

arresting officer observed

the defendant's vehicle and followed it for several blocks without

observing any traffic

infraction. After following the car into a parking lot, the

officer identified the license

plate and matched it to the one provided by the dispatcher. He

then arrested the

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defendant for driving under the influence of intoxicants, giving

false information to a

police officer, and driving with a suspended license.

On appeal, the defendant argued that the trial court erred in

denying his motion

to suppress, contending that the arresting officer lacked

reasonable suspicion to justify the

stop because the informant was anonymous and not sufficiently

reliable. In reversing the

trial court, the Oregon Court of Appeals stated when reasonable

suspicion is based solely

on a citizen informant's report, that report must contain some

indica of reliability.

Villegas-Varela, 887 P.2d at 810. The court identified three

factors that are important

in determining the reliability of a citizen informant's report.

The first factor is whether the citizen informant identifies

himself to law

enforcement and thus exposes himself to criminal and civil

liability if the report is false.

Villegas-Varela, 887 P.2d at 810. Under this factor, a tip may be

considered more

reliable if the informant provides his or her name to law

enforcement authorities or

delivers the information to the officer in person. The second

factor is whether the report

is based on the personal observations of the informant.

Villegas-Varela, 887 P.2d at 811.

The Oregon court recognized that:

An officer may infer that the information is based on the

informant's

personal observations if the information contains sufficient detail

that

"it is apparent that the informant had not been fabricating

[the] report out of whole cloth . . . [and] the report [is] of

the

sort which in common experience may be recognized as

having been obtained in a reliable way . . . ."

Villegas-Varela, 887 P.2d at 811 (quoting Spinelli v. United States

(1969), 393 U.S. 410,

417-18, 89 S. Ct. 584, 589-90, 21 L. Ed. 2d 637, 644). The third

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factor is whether the

officer's own observations corroborated the informant's

information. Villegas-Varela,

887 P.2d at 811. Corroboration of the tip occurs when the officer

either observes illegal

activity or finds the person, the vehicle, and the vehicle's

location substantially as

described by the informant.

In applying these factors to the instant case, the report by

citizen informant

Lafournaise about Pratt's condition can be viewed as reliable and,

therefore, provided

Pastian with a particularized suspicion justifying his

investigatory stop of Pratt's vehicle.

First, Lafournaise identified himself during the 911 call and was

subjected to a full

interview by another officer soon after making the report.

Lafournaise, therefore, was

exposed to not only civil liability, but also criminal prosecution

pursuant to õ 45-7-205,

MCA, if the report was fabricated. Second, although we do not have

a transcript of

Lafournaise's call to the dispatcher, we can infer from the record

that Lafournaise was

reporting his personal observations of Pratt's activities that led

him to believe that Pratt

was intoxicated. He provided the dispatcher with information

indicating that he was the

night manager of the Short Stop and thus in a position to have

observed Pratt.

Furthermore, he provided information detailing the vehicle

description, the direction the

vehicle was traveling, and the vehicle's personalized license plate

number. Certainly a

report given by an on-duty manager of a retail establishment is

"of the sort which in

common experience may be recognized as having been obtained in a

reliable way."

Finally, in accordance with the third factor, the report was

sufficiently corroborated

when Pastian observed the described vehicle within a short period

of time, traveling in

the direction and on the same street indicated by Lafournaise.

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Therefore, we conclude

that Pastian had a particularized suspicion to initiate the

investigatory stop of Pratt.

Pratt also argues that Pastian, as the officer who initiated

the investigatory stop,

must have personally assessed the reliability of the informant's

tip before making the

stop. Pratt finds fault with Pastian making the stop without

having spoken with the

informant or, at least, having any information regarding the

circumstances which led to

the report, the person who made the report, the manner of Pratt's

driving, the facts

relating to Pratt's level of impairment, or the basis for the

informant's belief in making

the report.

The United States Supreme Court has held that an officer who

is unaware of the

factual basis for particularized suspicion, may make an

investigatory stop upon a directive

or request for action from another officer or law enforcement

agency. United States v.

Hensley (1985), 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d 604.