State v. Jerry Gonzales , 2010 MT 161N ( 2010 )

July 23 2010
DA 09-0437
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 162N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MELVIN MATSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and For the County of Jefferson, Cause No. DC 08-2169
Honorable Loren Tucker, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joslyn Hunt, Chief Appellate Defender; Lisa S. Korchinski,
Assistant Appellate Defender, Helena, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Mardell Ployhar,
Assistant Attorney General, Helena, Montana
Matthew Johnson, Jefferson County Attorney; Tiffany Heaton,
Deputy County Attorney, Boulder, Montana
Submitted on Briefs: May 12, 2010
Decided: July 23, 2010
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2006, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 Melvin Matson (Matson) appeals from the denial of his motion to suppress
evidence and conviction for operating a motor vehicle with a BAC of .08 or greater (DUI
per se), by the Fifth Judicial District Court, Jefferson County. We affirm.
¶3 The issue on appeal is whether the police officer had particularized suspicion to
stop Matson.
¶4 At approximately 7:25 p.m. on Friday, August 29, 2008, Jefferson County
Sheriff’s Department Detective Bob Gleich (Detective Gleich) noticed a dust cloud
coming from Gruber Excavating’s storage yard in Clancy. Detective Gleich saw
Matson’s blue pickup truck exiting the yard. Aware that it was after hours and that the
truck did not belong to an employee, Gleich observed that Matson’s truck lurched
forward in a jerking motion. Detective Gleich initiated a traffic stop “to make sure the
driver was not involved in any criminal activity on the property belonging to Gruber
Excavating.” During the stop, Detective Gleich determined that Matson was intoxicated
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and arrested him for operating a vehicle while under the influence of alcohol and
operating a vehicle with a blood alcohol content above .08.
¶5 Matson moved to suppress evidence of his intoxication for lack of particularized
suspicion to stop his vehicle. The justice court granted Matson’s motion to suppress and
the State appealed dismissal of the case to the District Court. Following a hearing, the
District Court denied Matson’s motion to suppress. Matson subsequently pled guilty to
DUI per se, reserving the right to appeal the denial of his motion to suppress.
¶6 We review a district court’s denial of a motion to suppress to determine whether
the court’s findings of fact are clearly erroneous and whether the court correctly applied
the law to those findings. State v. Cooper, 2010 MT 11, ¶ 5, 355 Mont. 80, 224 P.3d 636.
A finding is clearly erroneous if it is not supported by substantial credible evidence, the
court has clearly misapprehended the effect of the evidence, or if our review of the record
leaves us with a definite and firm conviction that a mistake has been made. Cooper, ¶ 5.
We review for clear error a finding that an officer had particularized suspicion to conduct
an investigative stop. Cooper, ¶ 5.
¶7 Montana law provides that “a peace officer 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. The State must prove that an officer had particularized
suspicion to stop a vehicle by showing: (1) objective data and articulable facts from
which an officer 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
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offense. Brown v. State, 2009 MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842; State v.
Gopher, 193 Mont. 189, 194, 631 P.2d 293, 296 (1981). Whether particularized
suspicion exists is a question of fact that depends on the totality of the circumstances.
Cooper, ¶ 7.
¶8 Matson argues that Detective Gleich lacked particularized suspicion that he was
engaged in any wrongdoing or criminal activity based on his driving behavior or location
on a business property open to the public. However, the District Court examined the
totality of the circumstances, and listed the following articulable facts as justifying the
stop: Detective Gleich observed dust and unusual jerky driving; Gruber Excavating yard
was closed for the evening and weekend and contained the same type of materials
recently stolen from other locations; the yard was not a sale location and was closed to
the public; and Gleich generally knew the employees of Gruber Excavating and knew
that Matson was not authorized to be there. The court noted that these facts taken
together could lead to an inference that “a person who is there under all those
circumstances was not there for a valid purpose, and instead he might be there for
wrongdoing.”
¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2006, which provides for
memorandum opinions. It is manifest on the face of the briefs and the record that the
appeal is without merit because the issues are factual and there clearly is sufficient
evidence to support the findings of fact below.
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¶10 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
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