State v. Martinez

2003 MT 65

• Court: Montana Supreme Court
• Decided: April 1, 2003
• Docket: 00-781
• Status: Published

Opinion

IN 'THE SUPREME CIjUI

Plali~ttff Respondent. and V.

JESUS MARTINEZ and DANIEL OLSON,

D c f e i ~ d a ~ands .\ppeiiants ~t

APPEAL FROM: District Cout? ofthe Tiiirteet~thJudicial District, In and for the County ofYellowstone, Cause Nos. DC 09-0859 & DC 09-86; The Honorable Russell C. Fagg, Judge presiding.

COUhSEL OF IIECORD:

For Appellants:

Kristina Guest, .4ppcliate Defcrtdcr OCtice, f-iclena, ?vlontana

For Respondent:

Mike McCirath, Mot~talra Attorney General, Stephen C. Bullock, Assistant Montrtna Attorney General, Helena, Molltana; De~rnis Paxinos, Yellowstone County Attorney, Billings, Montana

Heard: October 2, 2001 Submitted: December 12, 2002 Decided: f'iprii 1, 2003 Fiied: Justice James C. Nelson delivered the Opinion ofihe Court.

:ji Jesus Varrinez and Daniel Olson pled guilty to felony drug offenses. while preser\~ing

the right to appeal the denial of separate motions to suppress evidence gathered as a res~11t

of an investigative stop of their vehicle. We reverse the order of the Thirteenth Judicial

District Court, Yellowstone County. denying the Appellants' motions to suppress.

FACTUAL AND PROCEDURAL B.-iCKGROUND

72 The investigative stop of Jesus Martinez and Daniel Olson on the afernoon of

Kovember 4, 1999. culminated a two-week investigation by the Billings Police Departtncnt's

Special Investigation Unit (SIU). The issue on appeal is whether the police officers had a

particularized suspicion to justify the stop. Because a finding of particularized suspicion is

fact-specific, Lve recount the events leading up to the stop in some detail.

!/3 On October 2011999, Detective Richard Hirschi received a call from a woman who

stated a man named Ricky would arrive in Billings within three days with fifty pounds of

marijuana. According to the woman. Ricky woi~ld travel from Oregon in a tan Thunderbird

with license plate number WFY768 and stay at the To~vnhouseMotel. Later that day,

Mirschi met the caller and signed her up as a confidential informant. The woman stated illat

she was the girlfriend of a man named Daniel Olson, who lived in Havre. Monrana. and that

her boyfriend knew about many illegal dealings.

74 Hirsclri and L3etective Ken Paharik followed up the tip by visiting the Townlrottse

blotel and determining that a Thunderbird with a similar plate number had been listed on the tnotci register two weeks earlier by a guest named Jesus Martinez. Warrincz had stayed at

the Tourthoiise on October I and 2: 1999: and on October 12 through 149 1999. The

detectives ran a vehicle registration check aid learned that the plate ntrniber provided by the

informant was registered to Pedro Martinez Acezedo of Salem; Oregon, for a tan-colored

1989 Thunderbird. Upori questioning: Townhouse employees reported lot icing no

suspicious activity during Martinez's prior stays at the motel. Tile police requested that

rnotel personnel contact them should Martinez check-in again.

"5 11 On November Zl 1999, the motel clerk alerted Hirschi that Martinez had again

registered and that lie was driving a small 1986 Chevrolet truck with Oregon plates. The

police verified the truck was registered to a Mario Rodriguez of Monmourrth, Oregon. Later

that day, the confidential informant called again and told Hirschi that Riclcy had checked-in

at the Townhouse. In addition, the infornlant related that Daniel Olson had stolen a fiat-bed

truck in Great Falls and driven it to Billings. She directed the police to a three-block area

bvhe1.e the truck was parked in Billings. The detectives verified that a truck stolen in Great

Falls the previous day was at the described location.

'/6 The police placed Martinez under surveillance sho~lly after his arrival in Billings and

continued to follow his nlovenients for most of the next two and one-half days. Throughout

this time, the surveillance team observed no activity that they associated with drug-dealing.

The officers saw no persons come to or leave Martinez's motel rootn: did not witness

Martinei. meeting with people in bars or restaurants, on the street or at other public places; and never observed Martinez carrying large sacks or luggage to or from his vehicle.

7;7 During the second day of surveiliaiicc, thc police pulled Martinez over for illegally

changing lanes on a Billings street. Afier questioning him. the officers requested permission

to search the vehicle. Martinez consented. Officer Lan~b the department's drug-sniffing and

dog "l'ico" assisted in the search. A small bud, weighing approximately 0.4 gram aiid testing

positive for THC, was found on the truck seat. Unable to establish that the marijuana

bcloliged to Martinez, the police retained the evidence and allowed Martinez to leave without

issuing a traffic ticket or complaint.

fi8 On November 4, 1999, the confidential informant again contacted Hirschi and told

him that blartinez planned to leave Billings with Daniel Olson at about 1 :00 p.m. that day

to sell the remaining marijuana in Bozeman. She stated that Martinez probably would he

driving a different vehicle. The police confirmed with a nlotel employee that Martinez was

seen leaving the motel driving a teal Mazda pickup with a temporary registration sticker.

1i9 Tlie SlU planned a stake-out along the route to Bozeman, and Sergeant Tim

O'Conrtell requested permission to ride with the Montana Highway Patrol to execute the stop

as soon as Martinez and Olson traveled past the Laurel exit on Interstate 90, a few miles west

of Billings. When the Mazda pickup passed Highway Patrolman Craig Baum heading west

at about 1:30 in the aftertioon, Baum caught up with the vehicle and pulled it over.

O'Connell and Raum approached the pickup from opposite sides. After a brief exchange,

the officers directed Martinez and Olson to get out of the pickup. *;I 0 iletectives Hirschi and Paharik arrived at the scene within hvo minutes oilhe stop and

immediately handctiffcd and separated Martinez and Olson. Paiiarik interviewed Ma~?iilei

in one police vehicle; Hirschi questioned Olson in another. The detectives advised each

defendant of his Miranda rights and informed each that he was not under arrest but was

detained for investigation. Officers Evans and Lanib soon drove up and had "Tico" sniffthe

scene. The dog "signaled" positively for the presence of contraband in the pickup cab.

Martinez refused to consent to a search, stating that he had borrowed the vehicle. The record

contams no infomation on the duration of the separate interrogations of Manine7 and Olion

or whether the handcuffs were removed prior to questioning.

111 1 Martinez confessed to Paharik that a suitcase in tile pickup contained "mota." The

record does not reveal whether Paharik interviewed Martinez in Spanish or English. Paharik

explained to the other officers at the scene that "mota" means marijuana. The police arrested

Martinez and Olson and impounded the pickup. The detectives obtained a warrant to search

the vehicle and found approximately 15 pounds of marijuana in a suitcase. Martinez and

Olson were separately charged with felony possession and possession with the intent to sell

dangerous drugs. Olson requested and received court-appointed co~msel.

9112 The defendants filed separate motions to suppress all evidence gathered as a result of

the investigative stop on the grounds that the police lacked particularized suspicion of any

wrongdoing to justify tihe stop. The State moved without objection to consolidate the

defendants' motions for hearing. which occurred on April 14. 2000. The District Court denied the motions 011 May 2,2000.

7\13 Preserving their rights to appeal, Vlaflincz pled guilty to crirniriai possession with

intent to sell under 5 45-9-301. IL.ICA: and Olson to criminal possession under 5 45-9-302. MCA. Martinez received a five-year suspended sentence and deferred fine. The District

Court granted Martinez's request for court-appointed counsel to carry this appeal. Olson

received a four-year suspended sentence and deferred fine on October 2, 2000. Both

defendants filed timely appeals, u-hich this Court thereafter consolidated.

114 After the initial briefing, this Court noted that all parties argued our decision in State

v. Prutt (1 997). 286 Mont. 156,951 P.2d 37, as the legal basis underlying the particularized

suspicion for the vehicle stop in this case. We directed the parties to assuine, itrguerlu'u, that

I'rutt and its progeny are not appropriate authority for the vehicle stop on the facts presented

and ordered supplemental briefing on whether the stop is or is not supportable based on other

legal authority and argument.

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

L.Ed.2d 301, the State argues that particularized suspicion of criminal activity can arise from

information that is less reliable than that required to show^ probable cause and that

deficiencies in police corroboration of crin~inal behavior may be overcome by the strength

of an informant's basis of knowledge, Moreover, the State points out that this Court

recognized in St(ztc v. E1ixor1,2000 MT 288, 7 20? 302 Mont. 228, 7 20, 14 P.3d 456, 20,

that when a tip is reliable. "corroboration of innocent behavior may be sufficient to raise a particnlarii-ed suspicion."

716 Martinez and Utson argue in their sirpplei~~ei~ral h a t the investigative stop cif brief

Xovember 4. 1999, constituted a warrantless arrest. The Appellants analogize the

circumstances of their stop to the facts depicted in United Siatc,s v. Beck (9th Cir. 1979), 598

F.2d 497. where nine border police acting on a custom agent's uncorroborated hunch that

three young men crossing the border from Mexico were inlporting illegal drugs, surrounded

and stopped a taxi cawing the young men to the airport. The "suspects" were separated and

questioned indi\:idually. The Ninth Circuit Court of Appeals held the investigative stop was

actually an illegal arrest executed without probable cause or warrant. The Appellants

similarly claim that their detention, handcuffing and intet~ogation separate police vehicles in

exceeded the scope of as1 investigative stop and the police lacked probable cause for an 1 arrest.

17 The rule is well established that this Court will not address an issue raised thr the first

2002 MT 65,124, 309 Mont. 199,!124,14 P.3d 499,y time on appeal. State v. Petelso~l,

24 (citing State v. Wel~selboy. 1999 MT 274,q 16; 296 Mont. 503,v 16, 989 P.2d 836, " 6).

A party may not raise new arguments or change its legal theory on appeal. Lhified

Irzdustries. Ittc. v. Easiey, 1998 MT 145, 15; 289 Mont. 255, 71 15. 961 P.2d 100. 'j 15

IAppellants' argument that the stop in the instant case was actually an illegal arrest finds support in the recent drug interdictio~lcase of Stute v. Olsorz, 2003 MT 61, - . Mont. ___,P.3d . where this Court held that the on-the-street questioning of a defertdant during an investigative stop constituted a custodial interrogation requiring ittfirunila warnings against self-incriminatiort. (where this Court declined to ibllow an exception to thc rule when the %cts are undisputed).

The reason for the rule is that it is fundanlentally unfair to fault the trial court for railii~g C " lo

rille on an issue it was never given the opportunity to consider.

j ' 18 The Appellants identified no exception to the above rule that would apply when they

posited a wholly new legal theory of the case in their supplemental brief. Although facts in

the record certainly raise genuine issues regarding the scope of the investigative stop, neither

Martinez nor Olson questioned the scope before the District Court and neither argued at the

suppression hearing, that the stop became ail arrest without probable cause. Although this

Court invited the par-ties to present additional argument and authority, we decline to address

an issue raised for the first time by brief before this Court. Therefore, we lirtiit our review

to the issue raised by the Appellants in the District Court and the record made thereon, which

is whether the District Court correctly concluded that particularized suspicion supported the

investigative stop.

STAEDARD OF REVIEW

719 The standard of review of a district court's denial of a motion to suppress evidence

is whether the court's findings are clearly erroneous. State v. Cur-lso~~: MT 320,7/ 14, 2000

302 bfont. 508, 1' 14, 15 P.3d 893,T 14 (citation o~ilittedj.To determine whether a finding

of fact is clearly erroneous, this Court ascertains whether the finding is supported by

substantial e\;idence, whether the district court misapprehended the effect of the evidence,

and lvhether the Court is nevertheless left wit11 a definite and firm conviction that the district court made a mistake. State v. Jut-/nun, !998 bl-F 277, 5 8, 291 blank. 391: 8, 967 P.2d

1099, *i8 (citarion omitted). \Ve iiitthur review a district court's deniai of a motion to

suppress to determine whether the court's interpretation and application of the law are

/' correct. Huzige v. District Courtl 2001 VLT 255, :/I ? 307 Mont. 195> 11. 36 P.3d 947, 1' 1 1 1

(citations omitted). This Court's review is plenary as to whether the district court correctly

interpreted and applied the law. State v. Griggs, 2001 MT 21 l , q 17, 301 Mont. 366,iI 17.

34 P.3d 1 0 1 , l 17 (citation omitted).

DISCUSSION

720 The Fourth Amendment to the United States Constitution and Article 11, Section 1 I

of the Montana Constitution protect persons against unreasonable searches and seizures.

Wlierrever a police officer restrains a person's freedom, such as in a brief investigatory stop

of a vehicle, the officer has seized that person. State v. Reynolds (1995), 272 Mont. 46,49,

899 P.2d 540, 542 (citing T e r ~ y;. Ohio (1968). 392 l1.S. 1, 16. 88 S.Ct. 1868, 1877, 20 1

L.Ed.2d 889, and C~rzitedSrutes Cortez (1981): 449 U.S. 41 1,417, 101 S.Ct. 690,694-95, v.

66 L.Ed.2d 621).

'i2 1 A "stop" is defined by statute as "the temporary detention of a person that results

when a peace officer orders the person to remain in the peace officer's presence." Section

45-2-101(71!, MCA. To justify an investigative stop, an officer must be able to point to

specific and articulable facts which; taken together with rational i~ifercncess n m those facts: fo o

reasonably warrant that intrusion. Reytrolds, 272 hlont. at 49,899 P.2d at 542 (citing Tert:l:, "12 2in Sriiie v. C;'opher (198i), 193 3 o n i . 189, 631 P.2d 293, we adopted the rest

announced in Cot.tez and held ihat in order for the State to prokc the existence of

parttcular17ed suspicion, the State must show:

( I ) objective data from which an experienced police officer can make ceriain inferences; and,

(2) a resulting suspicion that the occupant of the 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. When the facts support a particulari~ed

suspicion of wrong-doing, a limited and reasonable investigative stop and search by the

police are justified. Gopher, 193 blonl. at 194, 631 P.2d at 296. In 1991, the Monlana

Legislature codified the principles enunciated a decade earlier in Gopher that "stop and frisk

rules apply to persons in vehicles and that particularized suspicion for an investigative stop

may be based upon ol7jectiLe data other than a police officer's personal observations of

suspicious acti5-ity. See Ch. 800, sec. 43, L. 1991. The current statutory standard thr an

investigative stop reads:

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 lnay 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.

Section 46-5-401, MCA

723 NJhether particularized suspicion supports an investigative stop is a questiort of fact that is analyzed in the context of the totality of the circumstances. Prutt, 286 Mont. at 161:

95 l 1'..2d at 40 (citing Neytzolds, 272 Mont. a1 49, 899 P.2d at 5421, in evaluating the tolalily

of the circu~nstances, cour? sltould consider the quantity, or content, and quality. or degree a

of reliability, of the information available to the officer. Prutt, 286 at 161, 95 1 P.2d at 40

(citing Aluhumu, 496 U.S. at 330, 1 I0 S.Ct. at 2416, 110 L.Ed.2d 301).

7124 The case before us on appeal presents the question of what constitutes objective data

from which a law enforcement officer may reasonably infer that criminality is afoot to justify

the temporary seizure of a person for investigative questioning. The District Conrt found

substantial evidence to support two independent bases for particularized suspicion to justify

the investigative stop of the vehicle occupied by Martinez and Olson on Sovember 4, 1999.

We discuss each separately.

Terr~porucvWindow Sticker

1,25 Patrolman Bauni testified at the suppression hearing that the small size of the print on

the temporary window sticker adhered to the upper left-hand corner of the rear window of

the teal Marda pickup precluded him from verifying the sticker's number and expiration date

without pulling the vehicle over. Baum offered the District Court the following explanation:

I stopped the vehicle based on what Sergeant O'Connell told me. Fact that I couldn't read the sticker, that was secondary to the stop?but once we stopped the vehicle, I walked up to the pickup and looked at the sticker. It appeared to be current.

Uaum infonned Martinez that he had stopped hi111because the pickup had no license plates,

and reported that Martiner laughed and pointed to the temporarj tag attached to the mlndow behind him.

*j26 Martinez and Olson argue that 3 61-3-342(1), MCA, requires o111); rhal a valid

temporary window sticker be properly displayed "on the upper left-hand corner ofthe rear

window of a motor vehicle" and does not require that the sticker be easily readable at a

distance. They clairn that law enforcement had no reason to suspect that the pickup was not

legally registered on the basis that the sticker numbers were difficult to discern and contend

that sticker verification was a pretext for stopping them.

!I27 An investigative stop is a temporary detention that "may not last longer than is

necessary to effectuate the purpose of the stop." Section 46-5-403, MCA. See also, Terry,

392 U.S. at 29, 88 S.Ct at 1883-84, 20 L.Ed.2d 889. Ail motor vehicles operated on the

public highways of Montana must be properly registered with the State and have license

plates conspicuously displayed on the front and rear ends of the vehicle. Section 61-3-301,

MCA. New owners of hansfesred vehicles are afforded a grace period in which to complete

vehicle registration. Section 61-3-342(1), MCA, allows an owner awaiting delivery of a

certificate of ownership to operate the rtewly transferred vehicle on public roads as long as

a teo~porary window sticker issued by a county treasurer is clearly and properly displayed.

Failure to comply with rnotor vehicle registration requirements constitutes a misdemeanor

~ ~ n d3 61 -3-601, MCA, and peace officers of all jurisdictions of the State of Montana are er

charged with the mandatory duty of enforcing these provisions. Section 61-3-602. MCA.

yi28 lsi Sfate v. Herriler.~o~z, MT 233, 291 Mont. 77,966 P.2d 137. we acknowledged 1998 that the inability of a police officer to view a tetnporary vehicle purchase sticker behind a

darkly tinied car window was sufficient to give rise la a pan-iicuiarized suspicion that thc

vehicie was not properly registered. 1-ieridersotz;1 16. While the light tinting of the rear 1 window of the teal Mazda pickup presented minimal visual impairment, Patrolman Baum

testified that he nevertheless was unable to see the sticker's numbers while driving helzind

the vehicle. According to the District Court, the absence of license plates and Baum's

inability to read the sticker expiration date provided an objective basis for Baum to infer that

the Mazda's temporary window sticker was not valid. The court found the investigative stop

was justified because Baum's inference gave rise to a legitimate suspiciolt that the vehicle

was not legally registered.

7:29 We concl~tde District Court's finding is not clearly erroneous. However, a quick the

check of the properly displayed temporaiy sticker in the bright mid-day sun permitted Baum

to verify the sticker as valid, pursuant to $5 61-3-342(1) and 61 -3-602, MCA. Although the

officer? inability to read the temporary sticker justified a stop to check the sticker's validity,

once that limited purpose of the stop had been accomplished, no further police irttn~sion was

warranted, and the investigative stop related to drug possession was not justified thereby.

Corifidential I I ~ ~ ? ) I . I'.sNTipI ~ ~/

1[30 ,A tip from a confidential informant stating that Martinez and Olson were on their way

to Rozeman on the afternoon of November 4: 1999. to market a substantial amount of

mari.juana provided a second rationale for an investigative stop, according to the District Cortrt. Using the criteria set forth in Prutl the court ihund the confidential inr'or~nanl'stip

to bc reliable and poiice verification of non-criminal detaiis o f the suspects' travel

arrangements to provide sufficient corroboration.

y31 This Court adopted a three-factor test in Prutt to evaluate the reliability of an

informant's tip as a basis for particularized suspicion. I'mtt, 286 Mont. at 165, 95 1 P.2d at

42-43. In that ease, a convetlienee store clerk called the police dispaicher late at night,

identified himself, and reported that a very drunk man had just driven away from the store.

The clerk stated that the man staggered, lingered in front of the beer case and acted generally

conti~sed. fie described the make. model, color, license n~tmber direction the vehicle and

was traveling. which the dispatcher relayed to a patrol officer. As soon as the officer

encountered the person and vehicle at the location described by the clerk, he conducted an

investigative stop. Although the officer never observed any overt illegal acts or suspicious

behaviorl such as a traffic safety violation or erratic driving, we held that the officer had the

requisite particularized suspicion to justify a stop to investigate the citizen's allegations that

the driver was operating his vehicle under the influence of alcohol. Prutt. 286 Mont. at 166,

95 1 P.2d at 43.

732 In discussing the circumstances of the Pri~lt case, this Cotirt acknolv-ledged the useful

role that citizen inthrmants can play in law enforcement, but we also recognized the potential

for abuse iftlie informant provides unreliable infonation. Pi-utt, 286 Mont. at 164, 951 P.2d

at 32. To guard against such abuse, we adopted the following three-part analysis for evaluating the reliability of an informant's tip:

i ) \;\;herher the citizen infornrant identifies himself to iaw enfii.ce~~ieniand thus exposes hiinself to criminal and civil liability if the report is false.

2) Whether the report is based on the persona! observations of the int'orrnan?

3) Whether the officer's onn observatiorls corroborated the infornrant's information.

Prczft, 286 Mont. at 165,951 P.2d at 42-43 (citing State v. Viilegus-Vareiu (Or. 1994), 887

P.2d 809, 810-1 1). We further explained that "[c]orroboration of the tip occurs when the

officer either observes illegal activity or finds the person, the vehicle, and the v-elehicle's

location subsvantially as described by the infonnant." PI-art,286 Mont. at 165,951 P.2d at

7,33 The first PI-utt factor addresses the informant's ~ d e n t ~ t y relationsh~pto lam and

enforcement and assumes that the citizen informant who identifies himself to the police is

likely to be telling the truth. The District Court found this element \\-as satisfied when the

co~lfidential inSol-want met in person with Detective Hirschi. We disagree.

734 This Court distinguishes the concerned citizen who reports a chance ellcounter with

crime as a civic duty from the confidential informant who works with police by reporting on

the illegal activities of others. State v. Rre.slrzn~l,2000 MT 243-7 32, 301 Mont. 408,3 32.

10 P.3d 83, 1' 32. The 91 I-caller in Prat! was a citi~cn informant, as were the infbrniaiits in

subsequent cases that have relied upon our holding in PI-uft. See, e.g.. Stafe v. Eiisoiz, 2000

M'I' 288, 302 Mont. 228, 14 P.3d 356; Stirte ti. Kohet-rs, 1999 MT 59, 293 Mont. 476, 977 P.2d 974; State v. LajfC;riylLY98 M7' 247.291 Mont, 157,967 P.2d 363. Wc have repeatecily

stated il~ai citizen infom~ant; o is motivated by ""god ccitize~~sliip" ivilling to disclose a vh and

the circun~stanccs which the illcrinriiiating irrfomation became kno%.tnis presumed to be by

telling the truth. Reesrnu~z~ 34; Shurp, 217 Mont. at 46, 702 P.2d at 962; State v. Kelly ?j

(1 983j, 205 Mont. 417,436, 668 P.2d 1032, 1043; State v. Liestiko (1978)? 176 Mont. 434,

439, 578 P.2d 16 1 1, 16 14. The confidential informant, on the other hand, enjoys no such

presumption of veracity. Keesmun, 7 32.

735 According to Sergeant O'Connell's testimony, this was the SIU's first experience

working with this particular informant, who is identified in the record only as CI # 99-1020.

At the April 14, 2000 suppression hearing, Detective i-Iirschi stated that he was the only

officer involved in the investigation to meet or speak with the informant. He testified that

CI ri 99-1020 "had been in trouble with the law before; that she had been sent to prison; and

that her boyfriend had been informed [sic] of numerous illegal activities, and she wanted to

do what she thought was right." The record contains no additional background information

on the infoimant? no other explanation of her motives for contacting the police, and no

information as to the source and circumstances under which she came by the information she

conveyed to Detective Hirschi,

136 Under Keesmcrn, Ct # 99-1020 docs not enjoy a presunlption that she is trustworthy,

even though she met with Detective Mirschi in person. Also, given the confidential manner

by which the informant conveyed data to the police, it is unclear whether she exposed herself to criminal and civil liability if her report proved false. Accordingly, the presumption that

an idcntiiicci citizen informant is teliing the truth under the first h i i n Sactor simply does not

embrace the confidential informant in this case.

"37 i Although the State and Appellants both argue Ptzrtt as a basis for particularized

suspicion. we hold that Pt-utt does not offer the correct framework for analyzing the facts of

this case. The Prutt test is a narrowly drawn variant of the Goplzev analysis and addresses

the reliability of a citizen's tip in the context of a DU1 investigative stop. Although we also

applied the Prntt test to an investigative stop for drug possession in Stute v. Elison, the

particular circtlnrstances of that case paralleled a DUI stop. E1i.soo involved a citizen

infortllatlt who caught a glimpse of a driver smoking a brass pipe and reported to a police

officer that the driver appeared startled and tried to hide the pipe from view. Finding the

driver and vehicle as described by the citizen informant and independently observing

suspiciously evasive driving behavior constituted the objective data from which the police

ofticer inferred the presence of a stash in the vehicle, justifying the investigative stop.

7 Eli~on, 22.

e38 I; The Pvictt line of cases recognizes that a detailed tip from a concerned citizen based

on the informant's personal ohsewations is sufficient to trigger police interventictn. An

investigative stop is a particularly effective tool for Dlil investigations and to prevent

highway tragedies. iZ brief face-to-face exchange between the driver and a trained officer

often will affirm or refute an informant's allegation of drunkenness. If an officer detects the sn~eil alcohol on the driver's breath, blood-shot and glassy eyes or slurred speech, further of

iilvcstigation may be ivarranied, such as field sobriety sesii~~g. iiui.?e v. Srure, 1998 MT See

108,qi 40, 289 Mont. I , ' 40, 961 P.2d 75; 40. In most cases, within minutes and with j'

miniinal intrusion, a trained officer will be able to discern whether probable cause exists for

a DUI arrest or whether the inferences drawn from the tip were incorrect.

739 By contrastt:a vehicular stop in a drug interdiction case is less likely to yield decisive

evidence of either innocence or crin~inality. Officers might look for contraband in plain

view. ask the driver to consent to a full search of the vehicle or hope a suspect offers a

voluntary confession. The brief detainment and questioning permitted during an

investigative stop might not nraterially advance an investigation for drug possession if no

incriminating evidence is visible and no one consents to a search or confesses. In Elison, we

held the officer exceeded the scope of an in~estigatory stop and conducted an illegal search

when the officer reached behind the driver's seat for a concealed bag of marijuana. Elison,

7 58. li40 However, neither the scope of the investigative stop nor the legality of Martinez's

confession are the subject of this appeal. The sole issue presented to this Court is whether

the stop of the vehicle driven by Martinez and Olson on November 4. 1999, was supported

by particularized suspicion. We reiterate that $ 46-5-401. MCA, allows a peace officer to

stop any person or vehicle observed in circumstances that create a particularized suspicion

that the person has conlmittcd, is committing or 1s about to comrnlt an offense. \Vc hold that the test outlined in (iopJzcr is the appropriate Srarnework within wnich the State must

der~lonstrate existence of particularized suspiciori in this case. The essence orthe Gol>iiei. t'ne

tcst is that specific and articulable facts comprising the totality of the circumstances must

give the police a particularized and objective basis for suspecting a person of criminal

activity. Rcytzolds. 272 Mont. at 49-50, 800 P.2d at 542 (citing ('ortez. 449 U.S. at 417-18,

101 S.Ct. at 694-95, 66 L.Ed.2d 621).

4 I The Appellants rely upon our holding in Stute 1;. Anderson (1993), 258 Pvlont. 5 10, 853

P.2d 1245. for the proposition that information provided by a known, previously reliable

infornlant is not sufficient as a basis for an investigative stop when the police do not know

the source of the infornsanl's ktiowledge and have not corroborated any suspicious activity

through independent investigation. In Andecron, an informant telephoned the 1-incoln

County Sheriffs Department to tell them that Anderson and another individual were leaving

Libby to go to Washington to pick up a quantity of marijuana and would be driving a blue

Toyota pickup. The inhrmant stated that the men would return later the same night. The

police devised a stake out along the highway. When they caught sight of the described

vehicle after it crossed the border into Montana. they verified that the license number was

registered to Anderson, and conducted an investigative stop.

fj42 This Court held the stop in Andersorz was illegal. ..lndersotr, 258 Mont. at 516, 853

P.2d at 1249. We reasoned that tlze police must have ol?jectiv data from which to draw

inferences and make deductions that lead to a suspicion that an individual is involved in criminal activity. Ar/u'er*.son,258 Mont. at 5 14. 853 P.2d at 1248 (citing Gopher, 193 Mont.

at iX2, 1 1Y2J at 2 5 . Objecti~e 63 9) data nlay he based on %artous objective observations9

informati013 from police reports, if such are available, and consideration of the ii~odes or

patterns of operation of certain kinds of lawbreakers." Atzdersoiz. 258 Mont. at 5 14,853 P.2d

at 1248 (quoting Cortez, 449 U.S. at 418, 101 S.Ct. at 695,66 L.Ed.2d 621). We held that

an uncorroborated tip does not constitute objecti~e data from mhlch a tralned officer can

infer a par'ticular indkidual is or has been engaged in TTrongdoirtg. An(lersoli, 258 Mont. at

5 16. 853 P.2d at 1249.

743 We distinguished the circumstances of the inforinant's tip in ilnde~son fro111the tip

discussed in Adutns v. I~~~illiums (1972), 407 U.S. 143,92 S.Ct. 1921,32 L.Ed.2d 612, where

the United States Supreme Court held that crime information offered to the police by a

known and previously reliable informant possessed sufficient indicia of reliability to justify

a brief in~estigatike stop. In ilizdersorl, the police officers had no factual information about

how the informant came to knou about the alleged drug transport. We also dtsttnguished the

case from State v Sizurp ((1985).217 Mont. 40. 702 P.2d 959. u here pol~ce obsewation of

skid marks and erratic driving corroborated a citizen's tip regarding an allegedly intoxicated

driver. In Andersoli, none of the observations made by the police prior to the stop suggested

illegal activity.

1;44 The State urges this Court to follow the reasoning of the United States Supreme Court

in Aiilhu~izuv. White, and affirnt the legality of an investigative stop conducted on the basis of information that is less reliable than that requjred to show probable cause. The A/uhurrzu

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can he established with inforntation that is different in quantity or content that1 that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.

Aluhurrzu. 496 U.S. at 330, 1 SO S.Ct. at 2416. 110 L.Ed.2d 301

7-15 In illubu~tzrl, police rcce~ved anonymous tip that a \%omani%ouldsoon be leav~ng an

a particular apartment with an attache case containing a small amount of cocaine. The

informant described the woman's car and told the police that she would drive to a certain

nlotel. The police immediately uent to the named apartment building and sau a vehicle

matching the caller's description. Shortly thereafter, a woman, who was carrying nothing in

her hands, left the building and entered the described vehicle. The officers tailed as the

woman drove about four miles along the most direct route to the named motel. A short

distance from the motel, the officers conducted an inccstigative stop. White consented to a

search of the vehicle and the interior of a brown attache case, which revealed a small arnourit

of mar~juana.Aftcr White was arrested, officers found three milligranis of cocaine in her

purse.

'146 The Alcih~~mu Cot~rt held that thc anonymous tip, as corroborated by independent

police work. exhibited sufficient indicia of reliability to provide reasonable suspicion to make

the investigative stop. The Court noted that, standing alone, the tip provided nothing from ivtiich one might conclude the caller was honest or the information reliable. tio\vever: the

Court rcasoncd :hat police corroboration of' sig~~ificani aspects of the caller's infiirmation

about Vanessa White and the caller's apparent ability to predict the direction of White's

travel indicated the tipster had a special familiarity with White's affairs. On the basis that

the officers observed White getting into tlie identified car and driving in a certain direction,

the Court condoned the officers' inference that the anonymous infonnant was both truthful

and personally knowledgeable about White's criminal activities and concluded that the tip

justified an investigative stop.

147 We note, first. that the tip that initiated the investigation of Vanessa White was

urtreliable for the following reasons: the iderrlily of the tipster was unknowrt; the informant's

motivation for offering the tip was unknown; the basis for the informant's knowledge about

White's movements was unknown; and the source of the tipster's information regarding the

alleged drug possession was unknown. Second, police corroboration of the unreliable tip

consisted entirely of innocent, non-criminal information. The officers observed a woman

leave an apartment brrildirtg, get into a described car and drive in a predicted direction.

'48 This Court recognizes that the quutzt~~m information regarding suspected criminal of

activity needed to justify an investigative stop is lower than that required for an arrest or a

search based on probable cause. However, we do not agree with the Rluhii/ncl C:ourt that

inforination of a lesser quality will suppon particularized suspicion. Regarding the use of

informant tips in the context of an investigative stop, we stated in .4tzrler:rotz--although concededly in clictu--that a "tip that has not been shown to be reliable or trustworthy for

probable cause ro procure a search warrant is also unreiiabii: for purposes of estabiisiri~rg

p r t ~ p x s o providing an officer with particularized suspicion." .4nde,son9 258 Mont. at 515> f

853 P.2d at 1249.

1:49 For a tip to support a finding of probable cause, the police must know the identity of

the informant: trust from experience or presumption that the infonnant is telling the truth;

and discern that the infornlant's inforn~ationabout the alleged crime derives froin the

informant's personal observations. Reesman, 71 28-35. Similarly, when an officer receives

an infornlant's report of criminal activity. the officer must evaluate the veracity, reliability

and basis of knowledge of the illformant in older to determilie whether the report supports

reasonable suspicion. For example, in Pratt, Roherfs and Lufj'ercy, the officers involved

presumed that the tips about alleged intoxicated drivers were reliable because the 91 1-caller

in each case was a corlcerned citizen who identified himself to the police and reported his

personal observations of suspicious activity. The only corroboration needed for these reliable

tips consisted of wholly innocent information--the location of the persons and vehicles in the

places described. By contrast. as we stated in Pratt, where an informant's tip is anonymous

and lacks any indication of the basis for the informant's opinion, the officer must corroborate

the tip by observing suspicious behavior that aleits the officer to the existence of a possible

violation. P n ~ t f286 'Llont. at 168, 95 1 P.2d at 44; accord Lujj'ertj. T/ 12 (holding that any ,

anonymous informant's report of criminal conduct that did not state the basis for the informant's belief must be corroborated by an officer's personal observation of illegal or

sitspicious activitq j.

7150 While corroboration of a tip with innocent information may lend an unknotvn or

untested tipster some credibility, suclr indicia of reliability does not obviate tlre relevance of

the tipster's basis of knowledge as a factor in the evaluation. In Andemon; although a

previously reliable informant called in the tip, the officers were not aware of how the

informant came by the reported information. As we discussed at length in Keesnzatz, when

a tip is based on hearsay or when an officer is uncertain about the informant's basis of

knowledge, the tip cannot be considered reliable without independent corroboration of the

Yilj criminality alleged. Rees~nan: 44-45. 111 the context of particularized suspicion, because

the quantum of suspicion is less, an unreliable tip requires corroboration that supports an

inference that criminality is afoot by direct police observation of suspicious activity and

consideration of the modes of patterns of operation of certain kinds of lawbreakers. Gopher,

193 Mont. at 192, 631 P.2d at 295 (citing Cortez, 449 U.S. at 418, 101 S.Ct. at 695, 66

L.Ed.2d 621).

151 Therefore, we decline to adopt the Alabanzu Court's reasoning that the veracity.

reliability and basis of knowledge of an anonymous or othenvise unreliable informant may

be inferred wlien police corroborate wholly innocent facts about the alleged criminal actor

and no independent infonnation indicates that the suspect is involved in the alleged crime or

even that a cnme has occurred or rs occnmng. As long as me guarantee the minimum rlghts established by the United States Constitution. we are not compelled to march lock-step wit11

pronounceinents of the Uniied Stales Suprcrnc Cuu:-t if oar ot%-n ciitistitutional provisions cai!

for rnore il~dividiral rights protection than that guaranteed by the United States Constitution.

State I). Sierra (1985), 214 Mont. 472,476,692 P.2d 1273, 1276 (overruled in part on other

grounds by State v. Pastos (1994), 269 Mont. 43. 887 P.2d 199). This Court has repeatedly

held that the unique language of Article 11; Section i 0 of the Montana Constitution. which

establishes privacy as a fundamental right, affords greater protections than the Fourth

Amendment in cases involving searches of persons or property. State v. HarJuway, 2001 MT

252, 1' 31,307 Mont. 139, fi 31,36 P.3d 900,131 (right to privacy disallows swabbing blood

sample from hands of an arrestee as a warrantless search incident to lawful arrest); EIisotl,

1 46 (r~ght prlvacy d~sallows ; to federal "automobile except~on" the warrant requ~rement to

in Montana); State v. ~Velson (1997) 283 Mont. 231, 241-42, 941 P.2d 441, 448 (right to

pri>acy disallows unauthori7ed access to personal medical records without subpoena); Strstr

v. Bullock (1995), 272 Mont. 361, 383, 901 P.2d 61, 75 (right to privacy disallows federal

"open fields" search as an exception to warrant rcquircrnent)

752 Article 11, Section 10 of Montana's Constitutiolt provides:

Right of privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.

The heightened protection of individual privacy in Montana demands our divergence from

federal jurisprudence regarding the use of tips as the basis for particularized suspicion justifying the temporary seizure of a person for questioning. We hold that an ailegatiorr of

criminality from an unreliable iafihmnt that 1x1s 1 0 knotsri 1 basis in fact does not constitute

ol?jective data from which an officer may legitimately irrfer particularized suspicion. Even

though an investigative stop is conceived to be a brief governmental intrusion, if an

unreliable tip provides the only grounds for the detention; the stop constitutes an

unconstitutional infringen~ent an individual's right to privacy. of

7/53 klartinez and Olson argue that the information provided by the confidential informant

was not a reliable basis for particularized suspicion. They contend that the informant's past

criminal record and prison history do not support her credibility and that the police knew

little about how she came by her information. The nature of the irrfornlant's relationship with

Daniel Olson was ambiguous and no testimony was taken on the subject. The Appellants

correctly point out that no criminal charges resulted from the stolen truck incident or the

search of Martinez's vehicle and argue that neither tip actually connected the Appellants to

criminal activity. The Appellants further assert that the SIU did not observe any illegal or

even suspicious activity indicating that Martinez was i~ivolved drug dealing during the in

entire investigation, even after placing Martinez under sun;eilla~icefor two and one-half

days.

7154 Deducing that CI # 99-1020's role as Olson's girlfriend allowed her to be "privy to

cotrvet-sations between Martinez and Olson." the District Court found that the infom~ant

"advised the detectives of the plans for the illegal activities that occurred when she was report was present." On the basis of this inference, the court detennincd that the infor-ma~it's

based upon ilcr personal observatiur~s cr.imirra1 activity. The Appellants counter that the of

infi;rrnant never observed Martinez or Olson in possession of marijuana; she did not witness

any drug iransactions; and the District Court erred in finding that the infomant's tip was

based on her personal observations.

155 In Reesrrzntz, we held that a confidential informant's unverified report is reliable for

the purpose of independently establishing probable cause--and, by incorporation,

particularized suspicion--only after the informant has established a track record of providing

the police with consistently accurate inforn~ationand only when the police know that the

informant's knowledge of the reported criminal activity is based upon personal observation.

Reesinun, 7 32 (citing Kaluzu, 272 Mont. at 410, 901 P.2d at 1 1 I , and Stute v. CVul.~toiz

(1989), 236 Mont. 218,223,768 P.2d 1387, 1390).

y56 As discussed above, because this case provided the SIU with their first experience in

working with CI i 99-1020, the confidential infonilant had not established a track record that i

supports a finding of reliability. Regarding the confidential infornlarit's source of

knowledge. Detective Hirschi offered the followin!: testimony on cross-examination at the

suppression hearing,:

Q. At any tnne. L>etect~\eH~rschr, thrs mformant tell you she had seen, did arth her own eyes, the marijuana?

A. I dori't think so.

Q. In fact, she doesn't describe any tsansactrons rn regard to rnarljuana by

27 Jesus Martinez or 'LZr. Olson, does shc?

A. No.

7/57 The record does not support the District Court's finding that the confidential

infolmaut personally observed the criminal behavior that she reported to the police. Neither

Detective Hirschi nor any other officer involved in the investigation testified that CIii99-

1020 listened in on discussions of the Appellants' "plans for the illegal activities." In fact.

there was no evidence presented at the suppression hearing indicating that the SIU officers

even asked the informant how she came by her incriminating information. Because Detective

Hirschi testified that the informant did not personally observe any contraband substances or

drug dealing and, as in Aizderson, the record reveals nothing about the source of the

informant's knowledge, we conclude that the court erred by finding the confidential

informant's tip to be reliable. Consequently, the tip does not stand as an independent basis

for the investigative stop.

758 When an infomlantis source of information is hearsay, independent police

corroboration of "suspicious" activity is needed. Ree.cmurz, 7 29. We stated the principle in

Griggs as follous:

[Tlhe necessary indicia of suspitioii that results from police corroboration of otherwise innocent information must reveal a pattern of human behavior associated with the alleged criminal activity, or activities which, when viewed as a whole, are consistent with the alleged criminal activity.

159 The District Court found that the SIU officer's own observations corroborated the confidential infhrnrant's information. The police coni7rmed the ~nfbrmant's report o f the

make and model of the vebicies PJarrincz drove; accurate licmse plate n~~mbers; that

Martinez traveled from Oregon; and that Martinez stayed at the Townhouse Motel during two

prior visits to Billings. The informant told Detective Hirschi that Martinez would return to

Billings in late October and the police verified Martinez arrived in Billings on November 2.

1999. She predicted that Martinez would again stay at the Townliouse Motel, which he did.

The informant alerted Hirschi that Martinez would switch vehicles after the police searched

his truck. The Townhouse Motel manager confirmed the vehicle change. The tracking of

Martinez and Olson on November 4, corroborated that the Appellants set out on a road trip

in a teal Mazda pickup with a temporary sticker, as described by the motel niartagcr. The

officers followed the vehicle through Billings traffic and waited until Martinez and Olson

had driven past the Laurel exit on Interstate 90, headed in the direction of Bozeman.

Sergeant O'Connell testified that when the vehicle passed the Laurel exit, be inferred the

pickup was going to Bozeman.

760 The State also argues on appeal that the SIU found certain aspects of Martinez's

transportation history indicated a pattern of criminal behavior. For example, Martinez had

made two prior trips from Oregon to Billings within the previous month, which suggested

to the officers the possibility of a drug trafficker servicing established customers. Although

the police observed no suspicious behavior to associate Martinez with drug dealing during

the two and one-half days of surveillance. the consensual search of the borrowed vehicle Martinez was driving revealed a marijuana bud. The State contertds that the discovery of a

s~ilallamount of contrabarrd associated tfartinez wirh the illegal substance that the

co~tfidcntialinfornlai~t reported him to possess in larger quantity, even though questions

about the ownership of the marijuana bud precluded criminal charges. However, no police

officers at the suppression hearing actually testified that their surveillance of Martinez and

finding the 0.4 gram of marijuana lead them to this conclusion.

l[h1 Martinez and Olson point out that their travel arrangeinents were equally consistent

with innocent betiavior and that none of the corroborative data cited by the State indicated

patterned criminal behavior. We agree.

F6Z Motel en~ployees reported that Martinez engaged in no suspicious activity during his

prior stays at the motel. When Martinez returned to Billings, the SIU detectives surveilled

him for two and one-half days and again observed no behavior associated with drug dealing

or any other criminal activity. When the police stopped Martinez's vehicle on the second day

of surveillance on a minor traffic charge, they searched his vehicle with his consent and with

the assistance of a drug-sniffing dog. They could not establish that tbe n~inuscule marijuana

bud found in the vehicle belonged to Martinez and, as a result, they let him go without ally

charges being filed--not even the traffic charge. The informant's tip that a flatbed truck was

stolen in Great Falls and parked in Billings was never associated with Olson beyond the

informant's allegation. Sergeant O'Connell's testimony that he inferred that Martinez and

Olson \yere headed to Boze~nanafter they passed the Laurel exit on the Interstate does nothing to verify the destination or the purpose of the Appellants' journey. especiallq-given

the fact that Bozcman is located o\-er 120 miles from Laurel. In short, the pastic~larizeii . .

snspicion supporting the stop in this case was based on a totality of innocent conduct and

allegations of marijuana possession from an unreliable informant. While innoctious conduct

nlay be used in the calc~ilus the totality of the circumstances, that totality must lead to a of

suspicion of criminal conduct to justify an investigative stop. That did not occur here, and,

importantly, no police officer testified that it did. Consequently, we hold that the stop ol'thc

vehicle was not legal for the purpose of obtaining an account of the Appellants' presence on

the highway on the afternoon of Uoveniber 4- 1999.

163 Justice Cotter argues in her dissenting Opinion that the confidential infornlant's report

contained enough detail to establish that it was not hbricated from whole cloth and that the

officers were correct to infer that her report was based on her personal observations. But

how could the ofticers in this case legitimately itzjkt- that the informant personally observed

a crime when the officers knew from the informant herself that she never saw the alleged

marijuana or witnessed any drug transactions?

764 In his dissent, Justice Rice contends that the informant is presumptively trustworthy

as a "concerned citizen " because she revealed her identity to the police and "wanted to do

what she thought was right." We find no factual support for this where the record depicts

a convicted felon with a prison history, protected identity, unclear motives and uncertaiil

liability for falsely reporting. CI i 99-1020's present relationship with the police as a i confidential informant who reports on the activities of persons with whom she associates

distinguishes her from the concerned citizen who reports a chance cncounlcs with crime.

Justice Rice further argues that the informant established a track record of reliability by

calling the police a number of times during the investigation with additional pieces of

accurate information. Pointing particularly to the tip about the truck allegedly stolen by

Olson, the dissent contends that police verification of the vehicle's stolen status established

the informant's trustworthiness. However, more than an ultiinately proven allegation of

theft--without any proven tie between the theft and the alleged thief--is needed to create a

track record. Nothing in the record corroborated a connection between Olson and the stolen

truck.

t65 It is understaildable that the dissent makes a great deal of the informant's various

reports to the police as providing the basis for her reliability. That is all there is--a number

of reports. The problem with this reasoning, however, is that the informant did not once

report any activity that any officer ever testified was suspicious. Reduced to its essentials the

informant reported at different times that the defendants were driving different vehicles. The

officers dutifully followed the defendants around Billings for two and one-half days based

on the infomlant's reports, yet observed no crirninal activity--except the minor traffic offense

for which no citation was issued. Not one offycer ever testified that he observed any

suspicious activity on the part of the defendants.

166 Justice Rice states that the confidential informant derived her inforniation from being in "strategic proximity to the planning of criminal activity" wiih the result tirat her

infomiation, thus, ti-as based on "personal observation." Again, the record does not support

this depiction. In fact, the record is absolutely devoid of any i~idicationas to lrow tlie

informant obtained her information. And; as we have already noted, that is the problem.

There is iio testimony in the transcript of the suppression hearing that the confidential

informant overheard conversations planning any crime. in fact, there is no evidence in the

record whatsoever as to bow, when or under what circumstances the informant came by her

information.

1/67 Indeed, the testimony on record is that the informant never actually saw any marijuana

xior did she observe, much less describe, any transactions with regard to marijuana

between either Martinez or Olson. The record is clear on this point. If the informant had a

basis for her reports, we will never know because no one--neither the police nor the

prosecution--ever bothered to ask her. Or, if they did, that evidence never made it into the

record of the suppression hearing.

768 The dissent takes six reports of perfectly innocent conduct regarding Appellants--the

driving different vehicles around town; undisputed police testimony that they never observed

the Appellants engage in any suspicious, much less criminal. conduct, despite two and one-

half days of surveillance; and a record totally devoid of any evidentiary basis for the

inforniant's state~nents the Appellants were engaged in transporting marijuana--and then that

transforms all of this into a conclusion that a reliable citizen informant has repeatedly rcpo~ted personal observations of a crime and that her reports are repeatedly corroborated.

$69 'cl-hi'ie Justice Rice finds it "troubling" that n~orcis ilat made of the 0.4 grarz

marijuana bud found on the seat of Martinez's vehicle; we can only note that the investigating

officers did not put any significance on their discovery either. No officer testified at the

suppression hearing that the bud was "highly relevant in confirming the informant's report

that Martinez was transporting larger quantities of marijuana" as claimed by the dissent. The

dissent would find the bud confirms the suspicions aroused by the confidential informant's

t~nreliable tip and characterizes the majority's reliance upon the testimony of the

investigating officers regarding the significance of the marijuana bud as "extreme hair

splitting." Again, if the officers put as much weight on the marijuana bud "from a stem" and

"not ground up" as does the dissent, we will never know, as there is not one iota of testimony

in the record to that effect. The totality of the circumstances is the standard for assessing the

inferences drawn by experienced police officers and the fact that the officers placed no

importance on Martinez's unsubstantiated association with a marijuana bud is relevant to our

inyuiry on appeal.

Ti70 Contrary to the dissent, we are not adopting any new rules nor are we changing those

already adopted. The totality of the eircumstances test is applicable. What the dissent fails

to acknowledge is that the totality cannot be greater than the sum of its parts. No evidentiary

underpinning for the inforn~ant's reports, or lier reliability, two and one-half days of observed

innocent conduct, no suspicious activity and no criminal conduct, still adds up to zero, no rnatter how you finesse the nuinbers.

aj7l Justice Rice accuses rile ntajoriiy oi' "tieiilg prtrn[ing], si~ippjirrg] and rrin~mlir~g]

pieces of the police investigation." Quite to the contrav, the majority Opinion is grounded

in the evidence adduced at the suppression hearing--or more co:-rectly, in the lack of

evidence. It is, rather, the dissent which takes liberties with the record. Indeed, the dissent

creates evidence that is not there.

q72 Finally, we note that the drug stop and interdiction in State v. Olson, 2003 MT 61, -

Mont. - . P.3d - , - , presents an informative contrast to the one at bar. In Ol.soti, a

person who was unquestionably acting as a citizen informant reported to the police his

personal observations of an operatio~ral methanipheta~nil~e in the garage of his ex-wife lab

when he entered the garage to retrieve two camper jacks. The inforniant immediately

reported his observations to Great Falls authorities. Olson, 1 6. While they did not need to ' corroborate this presumptively reliable report (see K e e ~ ~ n n3 ,34), the two investigating n

detectives went the extra mile and placed the garage under surveillance. Within an hour after

their sunreillance began, the detectives personally observed garbage bags being transferred

from the garage into a vehicle and then the vehicle leaving the property driven by the

defendant and accompanied by other individuals. Olson, 51 7. 1 28. A m e d with this

information--information which included presumptively reliable observations of criminal

activity and corroborating observations of activity that, while innocent, nonetheless

evidenced a pattern of activity consistent with criminal conduct (see C2r-igg.7,? ! the l 46-50), detectives executed 2 successfuirl investigative stop. iiitorz, 74, 35-35, and obtained a search

war-rant illat \vitbsiood ihe defendant's rliotion to suppress. Oiio!?. 29.

',73 Perhaps if the prosecution here had made for itself as good a case as does Justice Rice

the result would be different. The majority shares the State's and Justice Kice's concerns

for law and order and public safety, but the fact remains: it is not our function to make a

case for either the State or the defendants. Our sole obligation is to apply the law in the

context of the constitutional protections afforded to those accused.

CONCLUSION

774 When the police decided to stop Martinez's vehicle on the interstate as he and Olson

were leaving Billings; neither had co~nniittedany traffic offense lior violated any other

criminal law of whiclt the police were aware. Ostensibly the stop was made to check the

temporary sticker, but when the police approached, they could readily see that the sticker was

current and correctly displayed. The grounds for the stop ended when that limited purpose

was fulfilled outside the vehicle and that, thereafter, no further police intrusion was

warranted under 5 46-5-403, MCA, and under the rationale of our decision in Stute v.

Therefore; we hold that the District Court erred when it denied the Appellants' ffetzdc.~-so~~.

motion to suppress all evidence gathered as a result of the interrogation subsequent to the

stop. Reversed and remanded for further procee

/" / i*. 8

36 C5'c Concur: *

Justices Justice Jim Rice dissenting.

75 I dissellt from the Court's rctersal oiehc District Court. 1 disagrci- strongiy with ihc

Court's conclusion that "the particularized suspicion supporting the stop in this case was

based oil a totality of innocent conduct" and infortnation from "an i in reliable infonnant." Scc

7 62. The record and standards enunciated by this Court, including those adopted herein

regarding the reliability of an informant in the context of particular-ixed suspicion, co~npel

the opposite result.

(176 Although 1 do not dissent from the Court's application of our infonnant reliability

stai~dards stops which are pre~nised to upon particularized suspicion; the Court's rejection

of the reasoning of the United States Supreme Courl in Al(lhii~rta M%lirc(1890), 390 U.S. v.

325, 110 S.Ct. 3412, 110 LJ.Ed.2d 301. is of little consequence ctnder the facts lterc. The

Court criticizes Alnhantc~'~ holding that "the veracity, reliability and basis of knowledge of

an anonymous or otherwise unreliable informant may be inferred when policc corroborate

wholly innocent facts about the alleged criminal actor and no independent information

indicates that the suspect is involved in an alleged crime." See 7 5 1 . flowevert as discussed

below, the two fundamental conclusions which undergird the Court's decision here, and its

distinguishment of Alcihiri~ziz,those being ( 1 ) the infom~antwas unreliable, and (2) the

officers' corroboration of the informant's infortnation was insufficicnt, arc both faulty. 1 find

the second couclusictn to be profoundly so. The informant in this case was neitlicr

anonymous nor othervciise ttnreliable. Further, the police's corroboration was not limited to independent information that ihc iiefendants iverc in\ oivcci in \viiolly innocent Facts ~ v i t l i o ~ t t

a crime. ?iiius,regardieis ofthe necessity o f corroboration, ihc police corrobori:tion hrrc ivas

more than sufficient to support the investigative stop.

1177 it cannot bc overemphasized that this is a case involving particularized suspicion, and

not probable cause. Because this was an invcstigati.re stop: our law requires only that there

be "objective data from which an experienced officer can make certain inferences" and a

"resulting suspicion" that criminal activity is afoot. State v. Gopher (lO8l), 103 Mont. 189,

194, 631 P.2d 293, 296. The Court here is requiring much more. The conclusions of the

Court are discussed in turn.

RELIABILITY OF THE INFORMAXT

1178 i~~formu~if'ssrut~rs. the Court repeats our long-established rulcthat "acitizen In1 33,

informant who is motivated by 'good citizenship' and willing to disclose the circumstatlccs

by which the incriminating information became known is presumcd to bc telling the truth,"

but then tosses tlie rule away and concludes that thc informant here is no: entitled to a

pres~iniptionof tr~istworthiness.

7 9 The informant meets our criteria. above-stated, for a "good citizen" infor~want."[IIf

the informant is motivated by 'good citizenship' and the information provided demonstrates

a sufficient degree of the nature of the circumstances under which the i~lcriminating

information became known, then tlie informant's disclosures arc deemed a reliable basis

2000 MT 243. 11 301 Uont. 408, a 34; 10 P.3d 83, fl 34. The . . . ." ,Stuinrc v. Ree.s.smrlr~, 34, i~~ibrnlant was not anonymous, but identified herselt; disclosed her piloii~ address herc and . information, rcveaied that s11c ,.v~ts a glritr~end a defendant, re!:iy:d to a si~i>srai~iial amount

of information to policei and personally appeared at police offices to do so. Why did shc do

this' The evidence in regard to her motivation was tliat "she .wanted to do what shc thought

was right." The defense offered no alternative motivations for her conduct. Further, it was

obvious from the wide range of details she provided, which u-erecorroborarcd by police, that

her involvement as a girlfriend to a defendant had indeed given her access to the defendants'

plans. Given this record, tlie Court has no basis to conclude that the informant wits acting

for any reason but gooci citizenship. As such, she should be considered reliable, yet the Court

concludes that "[wlc find no factual support" for the Ilearing testimony tlrat tile informant

was doing what she thought was right. Why does the Court deem the hearing tesiirnony of

the informant's good motive to be without "factual support"'? Because the Court does not

like the informant's background.

7180 Instead of ackno\vledging that the requirements of Neesn~nnwere fulfilled here, the

Co~trt holds that the infomniant here cannot be considered a good citizen bccause she is "a

convicted felon" and has "a prison history . . . unclear motives [or] uncertain liability for

falsely reporting." See'; 64. Nel-er have we held that informants with a criminal background

could not be motivated by good citizenship, but tlie C.:ourt does so iierc. Apparently. unless

the informant has a "lily white" background. she need not call; as this Court will deem her

dark past to outweigli her desire to do good. The error here is painf~fillly obvious, and cannot be cienicd. as the Coin? has given no otl-ier rcason to conclude that thc hearing testimony of

good motive cannot bc bciieved, and therc is no other reason fron? thc record tiic irifon?~ani's

to so conclude.

"1 The irrfor~sant's"track record." The Court also finds that because this was the

police's '"first experience" in working with the informant, "the confidential informant had

not established a track record that supports a finding of reliability," pursuant to Reesrnnt~.

In rnechanieally applying our informant reliability standards, the Court misses the big picture

here. The absence of a "track record" is an appropriate consideration when an informant

makes a first call to police about suspected criminal activity. Howec-er, that is not the

situation here.

1182 Prior to the informant's call about the Bozcn~an which led to the stop, she made trip

multiple other calls over a several week period about different activitiesi including other

crimes, which were investigated by police and found to be accurate. The Court references

some of the infonnation derived from those previous calls, and the corroboration thereof.'

Notable among those calls was the informant's report that Olson had stolen a truck from

Great Falls. which police located in the area desertbed by the infomlant and confim~cd had

been stolen. These calls represent successful pollee experiences wit11 t h ~ s informant, and

unclemines the Court's finding that this information suffered "indeterruirtable rcliability."

Indeed, thc rcliability was established ~vhcrlthe inforlnatioli was confirmed by police.

'In its discussion in these refcrcnccd paragraphs, the ('our1 ovc.rlooked other critical rnibrmation provided by the infiirn-rant,which is discussed helow. Neither does the State's failure to tile chargcs on all of thesc rcports serw to dirnirrisii ihe

vaiidity of the inibrrnation pro-:iiicd, Quite to tirc cciiltiar,- encl; of the many calk nndc by i, ,

the informant sened to create a track record and enhaiice her crcdibi!ity. By the time the

informant informed police about the defendants' trip to transport drugs to B o ~ e m a n ~ the

informant was far beyond a "first experience," and should have been eonsidered reliable on

this basis as well.

783 I11 response, the Cot~rtriljects this dissent's reliarrce on the intbrmant's niultiple

accurate reports by asserting that police verification of the informant's stolen vehicle report

did nothing to enhance her trustworthiness, and by dismissing her successive reports of the

defendants' aetiviries as "perfectly innocent conduct.'' The Court fails to explain how an

accurate and corroborated report about a stolen vehicle \vould not serve to enhance an

informant's credibility. Further, as discussed herein. the informant's other reports provided

infonnalion that was mnch more that^ "perfcctly innocent."

184 The informant here provided no less than six reports to police over a several week

time period which were all corroborated, and I would conclude that the last report, in

response to which police initiated the stop, was based upon a successf~tl track record.

'85 Ifzformant'spersonulohservatiorzs. The f ourt finds that becsltlse "the informant did

not personally observe any contraband substances or drug dealing and. . . the recorci reveals

nothing about thc source of the iriforniant's knowledge; . . . the court erred by finding the confidential infonnanr's tip to he reliable." 57. Hoivever, ti~is not ihc proper icst for is

assessing an infomiant's pcrsonai in\:oivcrr~ent.

T86 First, \vc analyze particularized suspicion in tl-ic context of "tihc totality of ti?c

circumstances." Srnte v. h'q.tlold~s(1005), 272 Mont. 36, 49, 890 P.2d 540, 542; Ut~ifccl

States v. Cortez (l981), 349 I1.S. 41 1,417-18. 101 S.Ct. 690,694-115,66 L.Ed.2d 621,628-

29. Within that context, we ascertain an informant's personal in\:oivement as follows:

At1 officer may infer that thc iufonnation is based on the info~mant's personal observations if the inforniation 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 liaving been obtained in a reliable way . . . .3,

Strite 1.. I'ratf (l907), 286 Mont. 156, 165, 951 P.2d 37, 42-43, quoting Stcue v L7il1cg(z~>-

(Or. 1994), 887 P.2d 809, 8 1 1 (quoting,S~~~riellr Furelc~ (1969). 393 U.S. 3 0. 1 . Ciz~reclStittes 1

\%ithoutquestton that the informant was not fabr ~cating reports fro111 "\+hole cloth." but her

rather, that she was in strategic proximity to the planning of the criminal activity. Therefore,

we should conclude that the officer properly iilfened that the substantial information

provided by this informant was based upon her personal observation. The Court criticizes

this dissent's conclusion that police could infer that the info~mant's reports were based upon

personal obsenatton, but it whollj Fails to deal mith the fact that our case la\\ in regard to

particular~/edsuspleion allous for exactl~ that. q8 j7 For these multiple reasons, the inihrllranr should be considcrrd a good citiicn and

should be deenied to hake previous1)-PI-ovided acciiraie iaihi-rriaion, Co:-roboration skoiild

not be necessary. However, the officers notictheless obtained it.

POLICE CORROBOKATIQX OF THE INFORM.IIUT'S INFORMATIOX

7/88 The Court improperly focuses its discussion on what the police did izot obse~ve.S'ec

7: 6, 53, 57. The proper focus is what police did observe, arrd whether "an experienced

police officer cat1 make certain inferences" therefrom. Gopirev, 193 blotlt. at 194.63 i P.2d

at 296.

1 ] 8 W l z emal-ijuanu bud. In a conclusion ivhicli I find very troubliiig, the Court concludes

that thc bud obtained by police in the first stop of defendant Martincr bears no relevance

whatsoever to the question of particularized suspicio~iof drug trafficking. The Court

acknowledges the State's argument that the bud was indicative of possession of a larger

quantity of marijuana, but concludes that, because police "could not establish that the

minuscule marijuana bud found in the vehicle belongcd to Martinez and, as a result. they let

him go without any charges being filed--not even the traffic charge," the bud did not indicate

"patterned criminal behavior," and thus; cannot be considered.

9 Contrary to the Court's aiialysis, the relevance olthe bud is not limited by the failure

to establish Martinez' ownership of it, or the failure to charge hirn with its possession. As

noted, the bud was highly relevant in confirming the informant's report that Martinez was

transporting larger quantities of marijuana iti his vehiclc, an inference that \vould be particulariy signilicarlt in the cycs of "an experienced poiicc offker," which our analysis is

supposcii to consicier. The failure to charge ii1arti;ler with possession ofrlx bud is no:!-iiiig

more than a "red hcrring3 issue, and tlie Court should not consider it. Curiously, thc C:oi!rt

is fixated on the police's failure to charge the defendants for violations observed prior to the

stop at issue here. That t l ~ e police elected not to further investigate or charge the defendants

with theft of the truck or with possession of the bud could very well have reflected police

interest in furthering rheir in\-estigation of the reported transport of a large arnouut of drugs,

but, n-hatever the reason, takes nothing away from the significance of this evidence in

relatio~ishipto particularized suspicion. This one small piece of evidence, with its large

attendant rncani~lg regard to drug trafficking, sliould require a different result here. in

791 The Court attempts to dismiss t l ~ eseizure of the marijuana bud because "the

investigating officers didnot put ally significance on their discovery." The Court ignores that

the officers testified that the bud appeared to come from a stem, and that it was not ground

up marijuana, but. in any event, that testimony apparently docs not satisfy the Court. The

Court will not be deterred, suppressing this evidence because "[n]o officer testified at the

suppression hearing that the bud was 'highly releuant."'

1102 In so holding, the Court misses the point of tlie entire case. This case was about

stopping a suspected drug trafficker who was reported to be transporting a large aniount of

marijuana. Yet. because the officers didn't specifically testify that "we think this marijuana

bud came from a bigger pile ofmarijuana,"'thc Court finds that the bud offers no signi ficancc as objective data for purposes of particularized suspicicn. f h i s conciusion is nothing more

than cxtrcrnc hair splitting a i d is itreconciiabic with riic rcyuircn-ien! that a?iaiyzc Y V ~

particularized suspicion in tl-te context ofthc "'iotality of thc circiimstances." Rq.17oliis, 272

703 Switching ofvehi~Ies/(fUtureplans. Court overlooks critical facts in its analysis The

of the informant's reliabilitq, the police's conoborition efforts, and ultimately, the

determination of particularized suspicion: the conspirators' switching of vehicles, and the

predictive nature of the defendants' plans. Following the police stop and the discovery of

the bud in the Chevrolet pickup driven by Martinez on November 3, the informant told police

that the defendants were leav~ng ~ l l ~ n the next day, and that because of the pol~ce B gs stop,

they had switched vehicles and were going to drive a teal-colored Malda truck with a

temporary sttcker. The s~vitch r chtcles was confirmed by independent pol~ce in survclllancc.

About this information. the State offers in its brief:

The reliability of the information and its use as thc basis for the detectives' partict1la1-ized suspicion is buttressed not only by the detail she provided, but also relating things that were going to occur. including Martinez's arrival in Billings on Sovcmber 2, his switching to a different truck aftcr the Novcrnber 3 stop, and his and Olson's driving together in the teal truck toward Bozeman on Noveriber 4, [Emphasis in original.]

Despite the significance of this inforumtion, which was not lost to experienced police

officers, the Court concludes that th1.i is "perfcctlq innocent conduct" ~111ch added notli~ng

to the police's inbestigatton and d e c ~ s ~ o nstop the t ehicle. Seee168. Tlie Court appatcntly to bclicvcs that it is ''pcrfectly innocent'' for a visitor to BiIlirtgs to change vehiclcs For Iiis . .. 7 ' ' r-turn trip after hc is stopped by police and ciispossesscd ofihe illegal drugs in iiis car.. I 111s

activity may appcar to be "'perfectly irmocent" to judges in tlelcna, hut it is anything but

Innocent to trained police officers on the street, and it is the officers' \ie\x~pornlthmugh

M Goplzer, 193 Mont. at 194,63 1 P.2d at 296. Further, hlch u e are to assess the ~nfom~atlon.

this Court has previously acknowledged that such '+innocent" travel infortnation is highly

relevant, and can form the basis of confirming an informant's report, as \veil as a subsequent

stop or arrest. See State v. Griggs, 2001 MT 21 1 , l 43, 301 Mont. 366,q 43, 34 P.3d 101.

13. The Court should so conclude here.

9 1 In his presentation at oral argument, Ationley General Mikc McCrath ciffcred these

comments:

The officers involved in this case did what we told them to do when we do training. They've done what this court asked tfleni to do . . . . They did riot wake a stop until they determined that they had a particularized suspicion to do that. . . . I mean, they did this right. They spent time developing the corroboratio~i this court requires them to do. And I think if you look at that all the facts, you say that the police officers in this case did what we asked them to do. They did the right thing and I don't think they should be penalized. Clearly, Judge Fagg made the right decision.

1n stark contrast to the Attorney General's assertion that the police "did this right" by

collecting the necessary evidence to justify the stop, the Court eo~rclc~dcs the police had that

no leg~tin~atc e.v~dence all. The Court has cleftlq prixncd, snipped and trlmlned all the at

picccs ofthe police's invcstigaliu~l that nothing rerr~ains their work cxcept "innocent so of

conduct" and "untrustuorthq ~nformation." The Court has abandoned the total~ty the of circumstances lcst for a narrow and rigid application of standards w:hicn bcars no

rescnlbiancc to practical reality. N-liiii: i do not rnininiic ihe Attorney Gcncralis conccrn

that we not penalizc the officers, the larger problem is that his decision wiil eventually

penali~e citizens by diminishing the officers' ability to protect their public safety. all

9 5 1 dissent. Justice Patricia 0. Cotter dissents.

g9b ti ~ 1 too dissent ~ O I P il:e T rcvelsai ofthe District Cntirr. Like Justice Rice. i agree wit11

rhc Goun's application of our informant reliability standards to stops which a n premised on

particularized si~spicion.1 fusther agree that there was sul'ftcient particularized s~~spicion to

justify the stop of the defendants. I \vould affirm based upon our holding in Prutt, to the

effect that an officer may infer that information provided by an informant is based on an

informant's personal observations if the information contains enough detail to establish that

it has not been fabricated. See 7 86 of Justice Rice's dissent. I \vould further note in

response to the Court's conclusion that the informant had "uncertain liability for falsely

reporting'' (f 64j, that this informant vvus at risk for providing false inforn~ation, that she in

was on probation at the time she gave her information to authorities, and presumably was

therefore subject to probation revocation if she violated the law.

7i97 With Pmtt as legal backdrop, and given the considerable and unique set of facts with

which the District Court \;vas faced, 1 would simply conclude that the District Court's

findings that the officers had information from a reliable source that the defendants were

transporting dmgs and that the police sufficiently corroborated the informant's tip were not

clearly erroneous, While we all wish the record was better--and I agree with the Court that

we should not have to read between the lines to find a sufficient indicia of reliability--no

clear error was committed by the District Court. There is ample legal support in Prutt for the , - - , District Court's findings. I would therefore affirm. ~ .~ - . i 1 i 4-' - I+p / #4 /y@q ~9 c"~&~. b&, .A

d&# Justice