December 9 2008
DA 07-0634
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 414N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
RYAN CHRISTOPHER NETTLETON,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 07-68
Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jeffrey T. Renz, Attorney at Law, Clinical Professor of Law, University of
Montana; Nathan Kosted, Intern; Missoula, Montana
For Appellee:
Hon. Mike McGrath, Montana Attorney General; C. Mark Fowler,
Assistant Attorney General; Helena, Montana
Submitted on Briefs: September 24, 2008
Decided: December 9, 2008
Filed:
__________________________________________
Clerk
Justice Jim Rice 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 shall be reported by case title, Supreme Court cause number and result to the
State Reporter Publishing Company and West Group in the quarterly table of noncitable
cases issued by this Court.
¶2 On October 8, 2006, Officer Tillman observed Defendant Nettleton’s vehicle
parked in the roadway, directed southbound on River Pines Road, Missoula County, with
its lights on, at 3:45 a.m. Tillman stopped approximately 300 yards away to observe the
vehicle, which remained stopped for several minutes. Tillman then approached the
vehicle, which began moving when Tillman’s patrol car came within 50 yards. The
vehicle stopped again when it reached the intersection of River Pines Road and Blue
Mountain Road. The vehicle remained motionless for about a minute, partially within the
intersection, with its headlights illuminated. The vehicle then suddenly made a u-turn
and proceeded in the opposite direction on River Pines Road. Officer Tillman then
executed a traffic stop for further investigation. Ultimately, Officer Tillman processed
Nettleton for a DUI, whereupon Nettleton admitted he was intoxicated and should not
have been operating a vehicle.
¶3 Nettleton was charged with a DUI, and he filed a motion to dismiss in Justice
Court, arguing Officer Tillman did not have particularized suspicion to justify the traffic
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stop and requesting suppression of all evidence. The Justice Court denied his motion,
and Nettleton entered a conditional guilty plea reserving his right to appeal. In the
District Court, Nettleton moved to suppress the evidence upon the same theory. An
evidentiary hearing was conducted on April 18 at which time Officer Tillman testified.
The District Court denied Nettleton’s motion and pursuant to his conditional plea of
guilty, entered judgment against him on August 30, 2007. Nettleton appeals his
conviction and the District Court’s order denying his motion.
¶4 Nettleton presents three issues on appeal but we restate the dispositive issue as
follows:
¶5 Did the District Court err in determining that Officer Tillman had particularized
suspicion to execute a traffic stop?
STANDARD OF REVIEW
¶6 We review a district court’s finding that an officer had particularized suspicion to
justify an investigatory stop for error, and whether the court correctly applied that finding
as a matter of law. State v. Luckett, 2007 MT 47, ¶ 6,
336 Mont. 140, ¶ 6,
152 P.3d 1279,
¶ 6.
DISCUSSION
¶7 A peace officer may stop a vehicle for which he has a particularized suspicion,
based on the circumstances, that the occupant of the vehicle has committed, is
committing, or is about to commit an offense. Section 46-5-401, MCA. “To determine
whether such particularized suspicion exists, the State must show: (1) objective data from
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which an experienced officer could make certain inferences, and (2) a resulting suspicion
that the occupant of the vehicle in question is or has been engaged in some wrongdoing.”
Luckett, ¶ 8. The determination of whether particularized suspicion exists is a question of
fact based on the totality of the circumstances, which include the quantity, or content and
quality, or degree of reliability of the information available to the officer. Luckett, ¶ 8.
¶8 At the evidentiary hearing, Officer Tillman testified to the facts contained in his
original report, as well as his experience and training. Tillman testified that he had been
an active member of law enforcement for thirty-three years, of which thirty-one years
included DUI detection work. He also attended ongoing training programs related to
DUI detection. He testified that, based on his training and experience, indicators of a
potentially impaired driver included driving either too fast or too slow, stopping
inappropriately, and making wide turns.
¶9 When asked what indicators led him to stop Nettleton, Tillman noted the place,
time of day, and Tillman’s driving behavior. The incident occurred at about four in the
morning in an area known for high criminal activity. Tillman observed the Defendant
stop his vehicle on the road more than once for a prolonged period of time, perform a
wide turn, make contact with the centerline, and veer back over the fog line. The District
Court found sufficient particularized suspicion existed based upon Officer Tillman’s
observation of a vehicle stopped in the roadway for a prolonged period of time, the
resumption of driving, and stopping again partially within an intersection, the location of
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the incident, the time of day, the length of the stop at the intersection, and Nettleton’s
touching of the centerline.
¶10 Nettleton argues the District Court erred in failing to grant his motion to suppress
because his behavior was not illegal and any prolonged stopping by him resulted from his
text-messaging his girlfriend. The State counters with its assertion that an officer need
not observe illegal behavior. The State argues that the District Court correctly found,
based on the totality of the circumstances, that Officer Tillman made an appropriate
inference from objective data that resulted in a suspicion of wrongdoing justifying his
stop of Nettleton’s vehicle.
¶11 Nettleton attempts to pick apart each of the factors Officer Tillman relied upon in
determining to stop him and claims he was doing nothing illegal. However,
particularized suspicion is based on the totality of the circumstances; whether a particular
piece of information an officer observes is illegal is not decisive. An officer need not
observe a traffic violation to establish particularized suspicion to justify a traffic stop.
State v. Brander, 2004 MT 150, ¶ 6,
321 Mont. 484, ¶ 6,
92 P.3d 1173, ¶ 6. “Even if a
defendant does not violate a specific traffic law, the officer still may form a particularized
suspicion, under the totality of the circumstances, sufficient to make an investigatory
stop.” State v. Shulke,
2005 MT 77, ¶ 17,
326 Mont. 390, ¶ 17,
109 P.3d 744, ¶ 17.
¶12 Nettleton explains his driving behavior appeared unusual because he was text-
messaging. However, despite Nettleton’s justification, an officer need not eliminate all
possible legal reasons for a driver’s conduct before initiating a stop. State v. Hatler, 2001
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MT 38, ¶ 11,
304 Mont. 211, ¶ 11,
19 P.3d 822, ¶ 11. On the contrary, the goal of an
investigative stop is to further an officer’s investigation into whether illegal behavior has
been or is being committed. Section 46-5-401, MCA.
¶13 It is appropriate to decide this case pursuant to our Order of February 11, 2003,
amending Section I.3 of our 1996 Internal Operating Rules and providing for
memorandum opinions. It is manifest on the face of the briefs and the record before us
that the appeal is without merit because the findings of fact are supported by substantial
evidence, the legal issues are clearly controlled by settled Montana law, which the
District Court correctly interpreted, and there was clearly no abuse of discretion by the
District Court.
¶14 Affirmed.
/S/ JIM RICE
We concur:
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
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