State v. Zietlow

2017 MT 148, 396 P.3d 740, 388 Mont. 26, 2017 Mont. LEXIS 348, 2017 WL 2645333
CourtMontana Supreme Court
DecidedJune 20, 2017
DocketDA 16-0347
StatusPublished
Cited by3 cases

This text of 2017 MT 148 (State v. Zietlow) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Zietlow, 2017 MT 148, 396 P.3d 740, 388 Mont. 26, 2017 Mont. LEXIS 348, 2017 WL 2645333 (Mo. 2017).

Opinion

JUSTICE McKINNON

delivered the Opinion of the Court.

¶1 Gregory Zietlow (Zietlow) appeals from an order entered in the Montana Fourth Judicial District Court, Missoula County, finding there was particularized suspicion to initiate an investigatory stop of Zietlow’s vehicle for driving under the influence (DUI)- We affirm.

¶2 Zietlow presents the following issue for review:

Whether a corroborated tip from an identified citizen informant based, in part, on personal observations of a co-worker is reliable.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On June 13, 2015, at approximately 7:30 p.m., Karmen Stagl (Stagl), an employee at the Town Pump in Bonner, called 911 to report a suspected drunk driver. Over the next six minutes, Stagl made three separate phone calls to 911 updating dispatch concerning Zietlow’s behavior. During the first 911 call, Stagl told dispatch that she was reporting on behalf of her coworker, later identified as Jamie Weavers (Weavers). Stagl can be heard in the 911 tape asking Weavers more questions, which were specifically prompted by the dispatcher. Stagl reported to dispatch her coworker’s answers: that Weavers observed Zietlow stumbling; that Zietlow smelled like alcohol; and that Weavers could tell Zietlow was intoxicated. Stagl, herself, observed Zietlow walk into the building and enter the restroom. Stagl continued to provide dispatch with a real time update of Zietlow’s activities, relating that Zietlow was “bugging other customers,” walking around other vehicles while customers were “just kind of watching him,” and appeared to be about to leave. Stagl described Zietlow’s vehicle as a black Chevy Silverado LTZ with temporary dealer plates and provided the tag number in its entirety. She provided a physical description of Zietlow, which included his hair color, height, the presence of facial hair, and what he was wearing. During her last call to 911, Stagl describes Zietlow pulling out of the parking lot and heading east on Highway 200.

¶4 Highway Patrol Trooper Andrew Novak (Trooper Novak) used the *28 tag information provided by Stagl and learned the vehicle was registered to Zietlow and that Zietlow lived about 6 miles from the Bonner Town Pump. When Trooper Novak arrived at the address he did not observe any black Chevy Silverado pickup truck. At that point, Trooper Novak turned around and headed back towards the Town Pump. Almost immediately, however, he observed a pickup truck matching the description given by Stagl pull into Zietlow’s driveway. Trooper Novak initiated a traffic stop, during which he confirmed the tag number, the vehicle’s description, and the physical description of Zietlow. Ultimately, the stop ripened into probable cause to arrest Zietlow for driving under the influence.

¶5 On June 15, 2015, Zietlow was charged in Missoula County Justice Court with Aggravated Driving Under the Influence, in violation of § 61-8-465, MCA, due to having a blood alcohol content above .16. Zietlow argued in a motion to suppress that the investigating officer did not have particularized suspicion to initiate the stop of his vehicle. The Justice Court denied Zietlow’s motion and Zietlow subsequently entered a guilty plea to aggravated DUI, reserving his right to appeal the Justice Court’s ruling on his motion to suppress. Zietlow filed a notice of appeal. Following briefing by the parties and an evidentiary hearing in which Trooper Novak testified, the District Court denied Zietlow’s motion to suppress in a written order issued May 31, 2016. Zietlow appeals.

STANDARD OF REVIEW

¶6 This Court reviews a district court’s denial of a motion to suppress to determine whether the court’s findings are clearly erroneous and whether those findings were applied correctly as a matter of law. City of Missoula v. Moore, 2011 MT 61, ¶ 10, 360 Mont. 22, 251 P.3d 679. A district court’s finding that particularized suspicion exists is a question of fact, which this Court reviews for clear error. Moore, ¶ 10. A finding is clearly erroneous if it is not supported by substantial evidence, if the district court has misapprehended the effect of the evidence, or if this Court’s review of the record leaves us with the firm conviction that a mistake has been made. Moore, ¶ 10.

DISCUSSION

¶7 Whether a corroborated tip from an identified citizen informant based, in part, on personal observations of a co-worker is reliable.

¶8 The United States Constitution and the Montana Constitution protect individuals from unreasonable searches and seizures. U.S. *29 Const, amend. IV; Mont. Const, art. II, § 11. Law enforcement officers may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense. Section 46-5-401(1), MCA; State v. Peters, 2011 MT 274, ¶ 57, 362 Mont. 389, 264 P.3d 1124; Hulse v. DOJ, Motor Vehicle Div., 1998 MT 108, ¶ 12, 289 Mont. 1, 961 P.2d 75.

¶9 Particularized suspicion exists when an officer has objective data and articulable facts from which the officer can make certain inferences, and a resulting suspicion that the subject is, or has been, engaged in wrongdoing. Moore, ¶ 16. Whether particularized suspicion exists is a question of fact, which is evaluated under the totality of the circumstances. State v. Gill, 2012 MT 36, ¶ 15, 364 Mont. 182, 272 P.3d 60. When evaluating the totality of the circumstances, a court considers the quantity or content of the information available and the quality or degree of reliability of that information. Gill, ¶ 15.

¶10 We have stated that “[a] citizen informant who is motivated by good citizenship and [is] willing to disclose the circumstances by which the incriminating information became known is presumed to be telling the truth.” Moore, ¶ 18 (quoting State v. Martinez, 2003 MT 65, ¶ 34, 314 Mont. 434, 67 P.3d 207 (internal quotations omitted)). Thus, information provided by a citizen informant, “such as the citizen informant’s name, address, and telephone number, lends a ‘high indicia of reliability’ to his or her report.” Moore, ¶ 18 (quoting State v. Myhre, 2005 MT 278, ¶ 18, 329 Mont. 210, 124 P.3d 126). An arresting officer may rely on information conveyed by a reliable third person to form the particularized suspicion necessary to justify an investigative stop if the report contains some indicia of reliability. State v. Pratt, 286 Mont. 156, 162, 951 P.2d 37, 41 (1997). To determine the reliability of a third person report and thus the sufficiency of an officer’s particularized suspicion based on that report, this Court has adopted three factors to use in its evaluation. State v. Clawson, 2009 MT 228, ¶ 11, 351 Mont. 354, 212 P.3d 1056 (citing Pratt, 286 Mont. at 164-65, 951 P.2d at 42-43). The factors are: (1) whether the informant identified themselves to the authorities; (2) whether the informant's report is based on personal observation; and (3) whether the officer’s observations corroborate the informant’s information.

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Cite This Page — Counsel Stack

Bluebook (online)
2017 MT 148, 396 P.3d 740, 388 Mont. 26, 2017 Mont. LEXIS 348, 2017 WL 2645333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-zietlow-mont-2017.