State v. Chelsea Strom , 376 Mont. 277 ( 2014 )

September 2 2014
DA 13-0323
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 234STATE OF MONTANA,
Plaintiff and Appellee,
v.
CHELSEA LYNN STROM,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and For the County of Butte/Silver Bow, Cause No. DC 12-07
Honorable Kurt Krueger, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender; Nicholas Domitrovich,
Assistant Appellate Defender; Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Bureau
Chief, Appellate Services Bureau; Helena, Montana
Eileen Joyce, Silver Bow County Attorney; Butte, Montana
Submitted on Briefs: July 16, 2014
Decided: September 2, 2014
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Defendant Chelsea Strom (Strom) appeals the order of the Second Judicial District
Court, Silver Bow County, denying her motion to suppress evidence based upon an
unlawful seizure.
¶2 We reverse and address the following issue:
¶3 Did the District Court err by denying Defendant Strom’s motion to suppress on
the ground there had not been a seizure requiring particularized suspicion?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 On December 26, 2011, Strom was picked up by a 16-year-old friend, S.J., to go
for a drive. S.J. was driving a van borrowed from a friend. The pair parked at Stodden
Park to visit at approximately 9:40 a.m. Shortly after they arrived at the park, Butte
Police Sgt. Ed Heard drove by on routine patrol. Sgt. Heard later explained that due to
vandalism of the Korean War Memorial in the park, he tried to patrol the park at least
once during his shift. He noticed the van, parked and not running, with two occupants
inside. It was the only vehicle in the lot and though the park was open to the public at
that time, Sgt. Heard believed it to be suspicious. He pulled up behind the van and
parked his patrol car but did not activate his emergency lights. Based on the layout of the
parking lot, and the fact that no other vehicles were in the lot, the van was not physically
prevented from leaving the lot despite Sgt. Heard being parked behind it.
¶5 After parking behind the van, Sgt. Heard left his patrol car and approached the
driver’s side of the van. Sgt. Heard testified that as he approached the van he noticed
“how young [S.J.] was” so he asked for her driver’s license. S.J. informed Sgt. Heard
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that she didn’t have a driver’s license and handed him her school ID. Sgt. Heard then
asked Strom for identification and Strom provided an identification card. Sgt. Heard
instructed S.J. and Strom to wait and took both IDs to his patrol car to check the driver’s
status and for warrants. He learned that S.J. did not have a driver’s license and Strom had
a warrant from Stillwater County for failure to appear. Sgt. Heard reapproached the
vehicle from the passenger side, instructed Strom to step out of the vehicle, and placed
her under arrest based on the outstanding warrant. He handed S.J. back her school ID
and informed her that she could not drive. S.J. informed Sgt. Heard that she had been in
touch with the vehicle’s owner and he was on his way to pick up the van.
¶6 While being held in a cell at the detention center, Strom presented a detention
officer with a baggie filled with a white substance and stated it was “crystal meth.” The
substance tested positive for methamphetamine, and Strom was charged with one count
of criminal possession of dangerous drugs, a felony, on January 26, 2012.
¶7 Strom moved to suppress the evidence and statements pursuant to §§ 46-13-301
and -302, MCA. She argued that Sgt. Heard lacked particularized suspicion to perform
an investigatory stop when he asked her and S.J. for identification, and that any evidence
or statement obtained as a result of the illegal stop must be suppressed. The State
countered that no investigatory stop had occurred and that Sgt. Heard had discovered the
warrant after a voluntary conversation with citizens who were free to leave at any time.
The District Court denied Strom’s motion, finding that there had not been a seizure for
which particularized suspicion was required. Strom subsequently pled guilty pursuant to
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a plea agreement, reserving her right to appeal the court’s denial of her motion to
suppress.
STANDARD OF REVIEW
¶8 We review a denial of a motion to suppress to determine whether the lower court’s
findings of fact were clearly erroneous and whether it correctly applied the law to those
findings. State v. Graham, 2007 MT 358, ¶ 10, 340 Mont. 366, 175 P.3d 885.
DISCUSSION
¶9 Did the District Court err by denying Defendant Strom’s motion to suppress on
the ground there had not been a seizure requiring particularized suspicion?
¶10 In reviewing Strom’s allegation of an illegal seizure, we must first determine
whether a seizure has occurred. Both the Fourth Amendment to the United States
Constitution and Article II, Section 11 of the Montana Constitution protect citizens from
unreasonable searches and seizures. However, we have recognized that “‘not all
personal intercourse between policemen and citizens involves “seizures” of persons.’”
State v. Wilkins, 2009 MT 99, ¶ 8, 350 Mont. 96, 205 P.3d 795 (quoting Terry v. Ohio,
392 U.S. 1, 19-20 n. 16, 88 S. Ct. 1868, 1879 n. 16 (1968)). In determining whether a
seizure has occurred, we apply the same test under both the federal and Montana
constitutions. State v. Case, 2007 MT 161, ¶ 24, 338 Mont. 87, 162 P.3d 849. A person
has been seized if, after viewing all the circumstances surrounding the incident, a
reasonable person would not have believed that he or she was free to leave. Case, ¶ 24.
We adopted this test from the United States Supreme Court’s decision in United States v.
Mendenhall, 446 U.S. 544, 100 S. Ct. 1870 (1980). In Mendenhall, the Supreme Court
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provided examples of circumstances that may indicate a person was seized, including
“the threatening presence of several officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the use of language or tone of voice
indicating that compliance with the officer’s request might be compelled.” Mendenhall,
446 U.S. at 554, 100 S. Ct. at 1877. We have repeatedly relied on these factors, often
referred to as the Mendenhall factors, in seizure cases but we have also explained that the
test is an objective one and “is necessarily imprecise and will vary depending on the
setting in which the conduct occurs.” State v. Clayton, 2002 MT 67, ¶¶ 22-23, 309 Mont.
215, 45 P.3d 30. The Mendenhall factors may be helpful in certain cases, but we have
recognized that they are not exhaustive. Wilkins, ¶ 12.
¶11 As a preliminary matter, Strom argues that we should overrule our past cases
utilizing the Mendenhall test. It appears that Strom advocates for a rejection of the
“reasonable person/free to leave standard” in favor of a more subjective test based on the
age and knowledge of the citizen claiming to have been seized. The State counters that
Strom’s request to reject decades of case law in favor of a vague and poorly defined rule
has scant legal support and “no record facts to support her position.” We agree that
rejection of the Mendenhall test is not warranted in this case.
¶12 The District Court agreed with the State’s argument that, under the facts of this
case, no seizure had occurred. The State argues that our holding in Wilkins is controlling.
In Wilkins, an officer was on routine patrol at 1:30 a.m. when he noticed a vehicle with its
lights on parked halfway down a side street next to a salvage yard. The location where
the vehicle was parked was a dark, remote area occupied by mostly industrial businesses
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that were closed at that time. The officer drove past the vehicle and noticed that it was
running. Wilkins, ¶ 2. The officer found the vehicle to be suspicious because it was
unusual for a vehicle to be in the area, running and with its lights on, at that time of night,
and that there had been recent burglaries in the area. The officer was also concerned
about the welfare of the driver because it was a cold night, near or below freezing, and
the vehicle was in an isolated location. The officer approached the vehicle and spoke to
the driver. While speaking with her, the officer noticed the smell of alcohol and that
Wilkins’ speech was slurred. The officer then conducted a DUI investigation and
arrested Wilkins for DUI. Wilkins, ¶ 3. We upheld the district court’s denial of Wilkins’
motion to suppress, concluding that no seizure had occurred where the officer did not
initiate the stop of the vehicle and did nothing to impede the driver’s liberty by means of
physical force or show of authority, such as activating his emergency lights or shining a
spotlight in the vehicle. The initial contact with Wilkins was a voluntary exchange, and
the later DUI investigation was supported by particularized suspicion gained through this
exchange. Wilkins, ¶¶ 14-15.
¶13 Although there are similarities between this case and Wilkins, distinctions justify a
different result here. Unlike the casual conversation with the driver initiated by the
officer in Wilkins to check on her welfare and the unusual circumstances of the running
and lighted vehicle’s presence in the area at that time of day, Sgt. Heard’s first
communication with both S.J. and Strom, properly parked in a public-use area in broad
daylight, was a demand of them to produce identification. After first obtaining a student
ID from S.J., Sgt. Heard asked Strom if she “had any type of driver’s license or
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identification.” He then took both women’s IDs to his patrol car, instructing them to wait
there, to check driver’s status and warrants. Based on these facts, we conclude that a
reasonable person would not have felt free to leave despite the fact that more compelling
actions were not taken, such as the use of emergency lights, drawing of a weapon, or
parking in such a way as to physically prevent the van from departing, and, therefore,
both women were seized at that time.1
¶14 A peace officer may stop an individual to conduct a brief investigation if the
person or vehicle 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. A peace officer who has lawfully stopped a
person may “request the person’s name and present address and an explanation of the
person’s actions and, if the person is the driver of a vehicle, demand the person’s driver’s
license and the vehicle’s registration and proof of insurance.” Section 46-5-401(2)(a),
MCA.
¶15 To have particularized suspicion for an investigative stop, “the peace officer must
be possessed of: (1) objective data and articulable facts from which he or she can make
certain reasonable inferences; and (2) a resulting suspicion that the person to be stopped
has committed, is committing, or is about to commit an offense.” Brown v. State, 2009
1
In his testimony, Sgt. Heard briefly mentioned that his intention when first approaching
the van included checking on the welfare of the occupants due to the fact that it was a cold
morning and the vehicle was not running. However, he first testified that he approached the
vehicle because “it was—just looked suspicious to me,” and the dispatch notes indicate that Sgt.
Heard reported that he was checking on “suspicious activity.” The State affirmatively states in
its appellate briefing that it is not relying on the community caretaker doctrine as an alternative
theory.
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MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842. Whether or not particularized suspicion
exists is a question of fact determined by looking at the totality of the circumstances.
Moore v. State, 2002 MT 315, ¶ 10, 313 Mont. 126, 61 P.3d 746. In evaluating the
totality of the circumstances, a court must consider the quality and quantity of the
information available to the officer. State v. Flemings, 2008 MT 229, ¶ 16, 344 Mont.
360, 188 P.3d 1020.
¶16 Sgt. Heard testified that the only reason he asked Strom for her identification was
because S.J. had just informed him that she did not have a driver’s license and he needed
to “see if we could have a licensed driver drive the vehicle.” However, neither an inquiry
from Sgt. Heard nor a statement from the women had been made establishing that Strom
would drive the vehicle, or that she was licensed to drive. To the contrary, it was S.J.’s
intention to contact the van’s owner about retrieving it, which is what she did while Sgt.
Heard was checking the women’s identifications in his car. Based on the scant
information available to Sgt. Heard at the time, we see no objective data or resulting
suspicion that justified an investigation of Strom.
¶17 Although S.J. is not a defendant, neither was there particularized suspicion to stop
or seize her that could support or properly lead to the subsequent investigation of Strom.
The initial reason for requesting S.J.’s driver’s license was that, on his approach to the
vehicle, Sgt. Heard “noticed how the age—how young [S.J.] was.” This statement is the
only evidence in the record supporting an investigation into the identity and driving status
of S.J. In Montana, a person at least 15 years of age may obtain a license if he or she has
passed a driver’s education course, and a person at least 13 years of age may obtain a
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restricted license in cases of individual hardship. Section 61-5-105(1), MCA. While the
apparent youthfulness of a driver may well constitute particularized suspicion for an
officer to stop and check the driver’s status, that concern was not the reason that Sgt.
Heard stopped and approached the vehicle here. Rather, the stop and the request for
identification was premised on Sgt. Heard’s assessment of suspicious activity, for which
there was no objective data to support.
¶18 We reverse and remand for further proceedings consistent with this Opinion.
/S/ JIM RICE
We Concur:
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA
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