No. 01-461
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 250N
STATE OF MONTANA,
Plaintiff and Respondent,
v.
LUTHER JOE CRASCO,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventeenth Judicial District, In and for the County of Phillips, Cause No. DC 00-010 The Honorable John C. McKeon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James W. Spangelo, Havre, Montana
For Respondent:
Mike McGrath, Montana Attorney General, Pamela P. Collins, Assistant Montana Attorney General, Helena, Montana; Ed Amestoy, Phillips County Attorney, Dan O’Brien, Deputy Phillips County Attorney, Malta, Montana
Submitted on Briefs: July 10, 2003
Decided: September 19, 2003 Filed:
__________________________________________ Clerk Justice Patricia O. Cotter 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 but 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 Luther Joe Crasco (Crasco) appeals from the March 15, 2001 order of the Seventeenth
Judicial District Court, Phillips County, denying his Motion to Suppress and Dismiss the
charges of Driving a Vehicle While Under the Influence of Alcohol, first offense, § 61-8-
401, MCA (1999) and Improper Passing in a No Passing Zone § 61-8-326, MCA (1999).
We affirm.
ISSUES
¶3 Crasco presents four issues on appeal, which this Court restates as two:
¶4 1. Was the District Court's denial of Crasco's Motion to Suppress and Dismiss, on the ground that the officers had particularized suspicion for an investigative stop, clearly erroneous?
¶5 2. Was the District Court's denial of Crasco's Motion to Suppress and Dismiss, on the ground that the officers had probable cause for arrest, clearly erroneous?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 On the evening of October 15, 1999, Phillips County Sheriff's Deputy Larry Solberg
and Reserve Deputy Allen Guderjahn approached the Milk River Bridge from the westbound
2 lane of U.S. Highway 2. They observed an eastbound small, dark truck cross the double line
into the westbound lane, passing two eastbound vehicles in a no-passing zone on the bridge.
¶7 Deputy Solberg pulled off the road to avoid the oncoming vehicle in his lane of travel.
As Guderjahn watched the departing truck, Deputy Solberg drove across the bridge, turned
his patrol vehicle around in a parking lot, and drove east across the bridge to follow the
truck. After traveling a short distance on Highway 191, the deputies came up behind a green
Ford Ranger pickup truck driven by Crasco. They witnessed the truck drive around an
obstruction in the road and pull into the parking lot of a convenience store. Crasco's truck
circled around the store's gas pumps and turned to re-enter Highway 191 when the deputies
executed a traffic stop.
¶8 Crasco maintains that the deputies stopped the wrong truck. Both he and his
passenger, son Brandon Crasco, testified that they did not pass any vehicles on the Milk
River Bridge, did not see any other vehicles on the bridge, and did not see a truck pass other
vehicles. While the deputies conceded that they saw neither the driver nor the license
number of the pickup which executed the illegal pass, both deputies testified that they did
not lose sight of the suspect vehicle and that they were certain Crasco's truck was the vehicle
they witnessed performing the illegal pass on the bridge. However, as Crasco notes, there
was some discrepancy in the deputies' testimony and reports as to their exact location at the
time they observed the illegal maneuver. Guderjahn admitted it was possible he may have
lost sight of the truck momentarily as Deputy Solberg turned the patrol vehicle around.
3 ¶9 Crasco admitted he had consumed a few beers and Deputy Solberg testified that he
smelled alcohol on Crasco when he approached Crasco's truck. Because Deputy Solberg
observed clues which suggested Crasco might be under the influence of alcohol, the deputies
radioed Montana Highway Patrolman Ralph Atchley to borrow his Portable Breath Test
(PBT) unit. After Patrolman Atchley arrived, Crasco refused to take a PBT test. He did not
perform the walk and turn because he stated he had bad knees and the officers believed the
ground slope was too steep for the test to yield reliable results.
¶10 Patrolman Atchley took over the arrest of Crasco because, he stated, he needed "the
stats." He issued a citation for Driving a Vehicle While Under the Influence of Alcohol, first
offense, § 61-8-401, MCA (1999), based on his own observations, and a citation for
Improper Passing in a No Passing Zone, § 61-8-326, MCA (1999), based on the information
given to him by the deputies.
¶11 Crasco was found guilty of both offenses after a Justice Court bench trial. Crasco
then appealed to District Court. He filed a Pretrial Motion to Suppress and Dismiss, which
was denied by the District Court. Crasco pled guilty as part of a plea agreement filed March
28, 2001, reserving his right to appeal the District Court's order denying his Motion. This
appeal timely followed.
STANDARD OF REVIEW
¶12 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, 188, 860 P.2d 89, 92, 94.
4 See also State v. Williams (1995), 273 Mont. 459, 462, 904 P.2d 1019, 1021. A finding of
fact is clearly erroneous if it is not supported by substantial evidence, if the trial court
misapprehended the effect of the evidence, or if this Court is left with a definite and firm
conviction that the district court made a mistake. State v. Doyle, 1998 MT 195, ¶ 10, 240
Mont. 287, ¶ 10, 963 P.2d 1255, 1257, quoting State v. Cassell (1996), 280 Mont. 397, 400,
932 P.2d 478, 479.
DISCUSSION
ISSUE ONE
¶13 Was the District Court's denial of Crasco's Motion to Suppress and Dismiss, on the ground that the officers had particularized suspicion for an investigative stop, clearly erroneous?
¶14 Determining whether an officer has the requisite "particularized suspicion" for a valid
investigatory stop under § 46-5-401, MCA, invokes a two-part test first 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, and adopted by this Court in State v. Gopher (1981), 193 Mont. 189,
631 P.2d 293. This Court explained that, in asserting that an officer had the particularized
suspicion to make an investigatory stop, "[t]he State's burden has two elements: (1) objective
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No. 01-461
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 250N
STATE OF MONTANA,
Plaintiff and Respondent,
v.
LUTHER JOE CRASCO,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventeenth Judicial District, In and for the County of Phillips, Cause No. DC 00-010 The Honorable John C. McKeon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James W. Spangelo, Havre, Montana
For Respondent:
Mike McGrath, Montana Attorney General, Pamela P. Collins, Assistant Montana Attorney General, Helena, Montana; Ed Amestoy, Phillips County Attorney, Dan O’Brien, Deputy Phillips County Attorney, Malta, Montana
Submitted on Briefs: July 10, 2003
Decided: September 19, 2003 Filed:
__________________________________________ Clerk Justice Patricia O. Cotter 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 but 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 Luther Joe Crasco (Crasco) appeals from the March 15, 2001 order of the Seventeenth
Judicial District Court, Phillips County, denying his Motion to Suppress and Dismiss the
charges of Driving a Vehicle While Under the Influence of Alcohol, first offense, § 61-8-
401, MCA (1999) and Improper Passing in a No Passing Zone § 61-8-326, MCA (1999).
We affirm.
ISSUES
¶3 Crasco presents four issues on appeal, which this Court restates as two:
¶4 1. Was the District Court's denial of Crasco's Motion to Suppress and Dismiss, on the ground that the officers had particularized suspicion for an investigative stop, clearly erroneous?
¶5 2. Was the District Court's denial of Crasco's Motion to Suppress and Dismiss, on the ground that the officers had probable cause for arrest, clearly erroneous?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 On the evening of October 15, 1999, Phillips County Sheriff's Deputy Larry Solberg
and Reserve Deputy Allen Guderjahn approached the Milk River Bridge from the westbound
2 lane of U.S. Highway 2. They observed an eastbound small, dark truck cross the double line
into the westbound lane, passing two eastbound vehicles in a no-passing zone on the bridge.
¶7 Deputy Solberg pulled off the road to avoid the oncoming vehicle in his lane of travel.
As Guderjahn watched the departing truck, Deputy Solberg drove across the bridge, turned
his patrol vehicle around in a parking lot, and drove east across the bridge to follow the
truck. After traveling a short distance on Highway 191, the deputies came up behind a green
Ford Ranger pickup truck driven by Crasco. They witnessed the truck drive around an
obstruction in the road and pull into the parking lot of a convenience store. Crasco's truck
circled around the store's gas pumps and turned to re-enter Highway 191 when the deputies
executed a traffic stop.
¶8 Crasco maintains that the deputies stopped the wrong truck. Both he and his
passenger, son Brandon Crasco, testified that they did not pass any vehicles on the Milk
River Bridge, did not see any other vehicles on the bridge, and did not see a truck pass other
vehicles. While the deputies conceded that they saw neither the driver nor the license
number of the pickup which executed the illegal pass, both deputies testified that they did
not lose sight of the suspect vehicle and that they were certain Crasco's truck was the vehicle
they witnessed performing the illegal pass on the bridge. However, as Crasco notes, there
was some discrepancy in the deputies' testimony and reports as to their exact location at the
time they observed the illegal maneuver. Guderjahn admitted it was possible he may have
lost sight of the truck momentarily as Deputy Solberg turned the patrol vehicle around.
3 ¶9 Crasco admitted he had consumed a few beers and Deputy Solberg testified that he
smelled alcohol on Crasco when he approached Crasco's truck. Because Deputy Solberg
observed clues which suggested Crasco might be under the influence of alcohol, the deputies
radioed Montana Highway Patrolman Ralph Atchley to borrow his Portable Breath Test
(PBT) unit. After Patrolman Atchley arrived, Crasco refused to take a PBT test. He did not
perform the walk and turn because he stated he had bad knees and the officers believed the
ground slope was too steep for the test to yield reliable results.
¶10 Patrolman Atchley took over the arrest of Crasco because, he stated, he needed "the
stats." He issued a citation for Driving a Vehicle While Under the Influence of Alcohol, first
offense, § 61-8-401, MCA (1999), based on his own observations, and a citation for
Improper Passing in a No Passing Zone, § 61-8-326, MCA (1999), based on the information
given to him by the deputies.
¶11 Crasco was found guilty of both offenses after a Justice Court bench trial. Crasco
then appealed to District Court. He filed a Pretrial Motion to Suppress and Dismiss, which
was denied by the District Court. Crasco pled guilty as part of a plea agreement filed March
28, 2001, reserving his right to appeal the District Court's order denying his Motion. This
appeal timely followed.
STANDARD OF REVIEW
¶12 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, 188, 860 P.2d 89, 92, 94.
4 See also State v. Williams (1995), 273 Mont. 459, 462, 904 P.2d 1019, 1021. A finding of
fact is clearly erroneous if it is not supported by substantial evidence, if the trial court
misapprehended the effect of the evidence, or if this Court is left with a definite and firm
conviction that the district court made a mistake. State v. Doyle, 1998 MT 195, ¶ 10, 240
Mont. 287, ¶ 10, 963 P.2d 1255, 1257, quoting State v. Cassell (1996), 280 Mont. 397, 400,
932 P.2d 478, 479.
DISCUSSION
ISSUE ONE
¶13 Was the District Court's denial of Crasco's Motion to Suppress and Dismiss, on the ground that the officers had particularized suspicion for an investigative stop, clearly erroneous?
¶14 Determining whether an officer has the requisite "particularized suspicion" for a valid
investigatory stop under § 46-5-401, MCA, invokes a two-part test first 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, and adopted by this Court in State v. Gopher (1981), 193 Mont. 189,
631 P.2d 293. This Court explained that, in asserting that an officer had the particularized
suspicion to make an investigatory stop, "[t]he State's burden has two elements: (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. This Court has
explained that the existence of particularized suspicion is a question of fact dependent upon
5 the totality of circumstances. State v. Reynolds (1995), 272 Mont. 46, 50, 899 P.2d 540,
543.
¶15 Here, the District Court concluded that the State demonstrated that sufficiently
credible evidence existed from which the deputies could reach certain inferences and suspect
Crasco was engaged in wrongdoing. The District Court noted that Crasco admitted to
operating a vehicle matching the description of the suspect vehicle in the same area at the
same time, that Deputy Solberg was an experienced police officer, and that his testimony
was largely corroborated by Reserve Deputy Guderjahn. Barring clear error by the District
Court, this Court will not disturb its findings.
¶16 We conclude that, based upon the evidence submitted, the District Court's finding that
the officers had particularized suspicion for an investigative stop was not clearly erroneous.
Thus, this Court declines to disturb it.
ISSUE TWO
¶17 Was the District Court's denial of Crasco's Motion to Suppress and Dismiss, on the ground that the officers had probable cause for arrest, clearly erroneous?
¶18 Crasco next argues that the District Court erred in denying his motion to dismiss
because the officers lacked probable cause for his arrest.
¶19 A peace officer may arrest a person when a warrant has not been issued if the officer
has probable cause to believe that the person is committing an offense or that the person has
committed an offense and existing circumstances require immediate arrest. Section 46-6-
311(1), MCA (1999). Probable cause is established if the facts and circumstances within an
6 officer's personal knowledge, or related to the officer by a reliable source, are sufficient to
warrant a reasonable person to believe that another person is committing or has committed
an offense. State v. Williamson, 1998 MT 199, ¶ 12, 290 Mont. 321, ¶ 12, 965 P.2d 231,
234, citing Jess v. State Dept. of Justice, MVD (1992), 255 Mont. 254, 261, 841 P.2d 1137,
1141.
¶20 Patrolman Atchley testified that the deputies contacted him on the radio and informed
him they had stopped a possible DUI. When he arrived, he inquired as to their reason for
stopping the vehicle and they informed him they had observed the vehicle illegally pass other
vehicles on Highway 2. Patrolman Atchley observed that Crasco had bloodshot eyes and
slurred speech, and he detected an odor of alcohol. Patrolman Atchley testified that based
on his firsthand observations and the statements from the deputies that Crasco had been
driving the vehicle, it was appropriate to place Crasco under arrest for DUI. Patrolman
Atchley further testified that he issued a citation for passing in a no-passing zone based on
the statements of the deputies.
¶21 The facts and circumstances within Patrolman Atchley's personal knowledge were
Crasco's behavior and the odor of alcohol. Further information was related to him by
reliable sources--the deputies--indicating that Crasco had committed the offense of passing
in a no-passing zone. Based on the information available, Patrolman Atchley had probable
cause to arrest Crasco for the two offenses.
7 ¶22 We conclude that, based upon the evidence submitted, the District Court's finding of
probable cause for Crasco's arrest was not clearly erroneous. Thus, this Court declines to
disturb it.
CONCLUSION
¶23 For the foregoing reasons, we affirm the District Court.
/S/ PATRICIA COTTER
We Concur:
/S/ KARLA M. GRAY /S/ JAMES C. NELSON /S/ W. WILLIAM LEAPHART /S/ JIM RICE