State v. Myhre , 329 Mont. 210 ( 2005 )

No. 04-849
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 278STATE OF MONTANA,
Plaintiff and Respondent,
v.
DAVID JON MYHRE,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Broadwater, Cause No. DC 2004–12
Honorable Dorothy McCarter, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jeffrey L. Sutton; Hartelius, Ferguson, Baker & Kazda,
Great Falls, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Joslyn M. Hunt,
Assistant Attorney General, Helena, Montana
John Flynn, Broadwater County Attorney, Townsend, Montana
Submitted on Briefs: September 27, 2005
Decided: November 8, 2005
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 David Jon Myhre (Myhre) appeals from his conviction and sentence in the First
Judicial District Court, Broadwater County, for driving under the influence of alcohol (DUI).
We affirm.
¶2 The issue on appeal is whether the District Court erred in denying Myhre’s motion
to dismiss the case.
BACKGROUND
¶3 On the evening of September 20, 2003, Colleen Yunis (Yunis) was driving from
Hardin, Montana, to Butte, Montana, with her mother and her two children. As they
approached Bozeman, Montana, Yunis observed a pickup truck approach from behind, pass
her vehicle and proceed ahead of her down the highway. Yunis was traveling the speed limit
and the truck was traveling faster. Yunis noticed that, although it was dark outside, the truck
did not have its lights on. She also observed that the truck was swerving in its lane of travel
and crossing over the line dividing the two lanes of travel. Concerned that the driver of the
truck might be intoxicated, Yunis called 911 emergency dispatch on her cell phone to report
the driver. Yunis described the truck and its actions to the 911 dispatcher, and gave the
truck’s location on the highway in reference to mile marker posts. Eventually, the truck
came to a stop along the side of the highway. Yunis felt uncomfortable about passing the
truck, so she parked alongside the highway some distance back. She then waited
approximately five minutes until a law enforcement officer arrived.
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¶4 In the meantime, the 911 dispatcher contacted the Montana Highway Patrol, which
dispatched Officer Marvin Reddick (Reddick) to respond to the call. Reddick located the
two vehicles parked along the highway, drove past Yunis’ vehicle and pulled in behind the
truck. Reddick observed that the truck was not running and its lights were not on. He
walked up to the driver’s side door and saw that the driver--later identified as Myhre--
appeared to be asleep. When Reddick knocked on the truck’s window, Myhre awoke and
exited the truck. Reddick eventually arrested Myhre for DUI.
¶5 The State of Montana (State) charged Myhre by complaint in the Broadwater County
Justice Court with misdemeanor DUI. Myhre moved to suppress all evidence obtained after
Reddick approached his vehicle on the basis that Reddick did not have a particularized
suspicion of wrongdoing sufficient to justify an investigative stop. The Justice Court denied
the motion. The Justice Court subsequently held a bench trial, found Myhre guilty of DUI,
sentenced him and entered judgment on the conviction and sentence. Myhre appealed to the
District Court for trial de novo.
¶6 Myhre moved the District Court to dismiss the case, again arguing that Reddick did
not have particularized suspicion sufficient to justify the investigative stop of his vehicle.
The District Court held an evidentiary hearing, following which it denied Myhre’s motion
to dismiss. The case proceeded to a jury trial and the jury found Myhre guilty of DUI. The
District Court sentenced Myhre and ordered execution of the sentence stayed pending appeal
to this Court. Myhre appeals.
STANDARD OF REVIEW
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¶7 A district court’s ruling on a motion to dismiss in a criminal proceeding is a question
of law which we review de novo. State v. White Bear, 2005 MT 7, ¶ 5, 325 Mont. 337, ¶ 5,
106 P.3d 516, ¶ 5.
DISCUSSION
¶8 Did the District Court err in denying Myhre’s motion to dismiss the case?
¶9 As stated above, Myhre moved the District Court to dismiss the charge against him
based on his contention that Reddick did not have sufficient particularized suspicion of
wrongdoing to justify the investigative stop of Myhre’s vehicle. The District Court held an
evidentiary hearing and entered written findings of fact, conclusions of law and an order
denying Myhre’s motion to dismiss. The court determined that, considering the totality of
the circumstances surrounding the incident, citizen informant Yunis had provided sufficient
reliable information to support a particularized suspicion justifying Reddick’s investigative
stop. Myhre asserts error.
¶10 Myhre’s argument on appeal consists of two subparts. First he contends that,
notwithstanding Myhre’s truck was not actually in motion at the time, Reddick was
conducting an investigatory stop when he approached the truck on the side of the highway
rather than performing a community caretaking function. Second, Myhre contends that
Reddick did not have the particularized suspicion required to perform such an investigative
stop. The State does not respond to Myhre’s argument regarding whether the stop was for
investigative or community caretaking purposes, thus implicitly conceding that an
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investigative stop occurred. Consequently, we address only whether Reddick had the
requisite particularized suspicion to justify the investigative stop.
¶11 In Montana, law enforcement officers are authorized by statute to conduct
investigative stops under certain circumstances. In that regard, § 46-5-401(1), MCA,
provides, in pertinent part, that
[i]n 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 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.
In applying this statute, we have stated that particularized suspicion exists where a peace
officer has objective data from which the officer can make certain inferences and a suspicion
resulting from those inferences that the person to be stopped is, or has been, engaged in some
wrongdoing. State v. Fellers, 2004 MT 321, ¶ 21, 324 Mont. 62, ¶ 21, 101 P.3d 764, ¶ 21.
The existence of a particularized suspicion is a question of fact which is determined by
examining the totality of the circumstances surrounding the stop. State v. Britt, 2005 MT
101, ¶ 8, 327 Mont. 1, ¶ 8, 111 P.3d 217, ¶ 8. In evaluating the totality of the circumstances,
courts consider the quantity, or content, and quality, or degree of reliability, of the
information available to the peace officer. Britt, ¶ 8.
¶12 It is undisputed here that Reddick did not personally observe any activity, such as
erratic driving or a traffic law violation, which would support a particularized suspicion for
him to conduct an investigative stop of Myhre’s vehicle. However, an officer need not
personally observe illegal activity in order to have particularized suspicion justifying an
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investigative stop. Fellers, ¶ 21. Particularized suspicion may be based on information
obtained via a citizen informant, as long as the informant’s information contains sufficient
indicia of reliability. See State v. Pratt (1997), 286 Mont. 156, 164-68, 951 P.2d 37, 42-44.
In that regard, we previously have set forth three factors which are important in weighing and
determining the reliability of a citizen informant’s tip. See Pratt, 286 Mont. at 165, 951 P.2d
at 42-43.
¶13 Myhre contends that analyzing the totality of the circumstances surrounding the stop
of his vehicle in the context of the three Pratt factors reveals that Reddick lacked the
requisite particularized suspicion of wrongdoing to conduct the investigatory stop. The State
responds that application of the Pratt factors to the facts of this case establishes that Yunis’
information was reliable and provided sufficient basis for the investigatory stop. We address
each of the three Pratt factors in turn.
¶14 The first Pratt factor provides that a citizen informant’s tip may be considered more
reliable where the citizen identifies him or her self, thereby exposing the citizen to criminal
or civil liability if the information is false. Pratt, 286 Mont. at 165, 951 P.2d at 42. At the
evidentiary hearing on Myhre’s motion to dismiss, the State entered into evidence an audio
tape of the telephone conversation between Yunis and the 911 dispatcher on the night of
Myhre’s arrest. The audio tape reveals that when Yunis called 911, she gave the dispatcher
her first name and her cell phone number, and informed the dispatcher that she was from
Hardin, Montana. Yunis also described the make, model, year and color of the vehicle she
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was driving, as well as giving the first two numbers of her vehicle’s license plate indicating
the county in which her vehicle was registered.
¶15 Myhre points out that the written call for service report printed by the highway patrol
dispatcher indicates that Yunis was from Gallatin County, rather than Big Horn County
where Hardin is located, and lists an incorrect prefix for Yunis’ cell phone number. At the
hearing in the District Court, Reddick testified that this mixup occurred when the 911
dispatcher relayed the information from Yunis’ cell phone call to the highway patrol
dispatcher. Reddick also testified that he contacted the original 911 dispatcher several days
later, obtained Yunis’ correct phone number and eventually located Yunis in order to take
a statement from her regarding the incident. Myhre asserts that, notwithstanding Reddick’s
ability to search down and talk to Yunis several days after his arrest, the misinformation in
the written report results in Yunis’ information being unreliable because “[t]he information
is not reliable unless the identity of the citizen informant has been confirmed prior to the
investigative stop.” Thus, according to Myhre, because Reddick did not personally have the
correct information identifying the citizen informant, he could not rely on the citizen’s
information to establish particularized suspicion. Myhre’s contention is without merit.
¶16 We rejected a contention identical to Myhre’s in Pratt. There, the defendant argued
that the officer initiating the investigative stop “must have personally assessed the reliability
of the informant’s tip before making the stop.” Pratt, 286 Mont. at 166, 951 P.2d at 43.
After analyzing both United States Supreme Court and Ninth Circuit Court of Appeals
jurisprudence on the issue, we determined that the officer could reasonably rely on
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information conveyed by a dispatcher or other officer for particularized suspicion justifying
an investigatory stop without being required to personally assess the underlying reliability
of the information. Pratt, 286 Mont. at 166-67, 951 P.2d at 43-44.
¶17 We recently reaffirmed that, in applying the three-factor Pratt analysis to the totality
of the circumstances, “when a tip has been relayed from dispatch and an officer has acted
on that information, it is appropriate to look beyond the stopping or investigating officer to
include the information known to the dispatching or reporting officer.” State v. Hall, 2004
MT 106, ¶ 15, 321 Mont. 78, ¶ 15, 88 P.3d 1273, ¶ 15.
¶18 In the present case, the audio tape of Yunis’ 911 call clearly establishes that she gave
the original 911 dispatcher her first name, correct cell phone number, description of the
vehicle she was driving and the name of the town in which she lived. This information
identified Yunis sufficiently to expose her to criminal or civil liability if her information was
false. These facts, when considered under the first Pratt factor, lend a high indicia of
reliability to Yunis’ report.
¶19 The second Pratt factor relating to indicia of reliability requires consideration of
whether Yunis’ citizen’s report contained sufficient detail to establish that her information
was based on her personal observations. Pratt, 286 Mont. at 165, 951 P.2d at 42. Myhre
again argues that, because the highway patrol’s call for service report contained no
information indicating--and Reddick himself did not know--whether Yunis was relaying
personal observations regarding the incident, there was insufficient indicia of reliability in
the report to support the existence of a particularized suspicion. He contends, specifically,
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that it would be “reasonable to conclude that if the citizen informant actually observed such
actions that she would have been able to provide a make, model and year of the vehicle, as
well as the complete plate number.” This contention, too, is without merit.
¶20 Here, the audio tape of Yunis’ call to 911 establishes that the information she
conveyed was based on her personal observations. Much of that detailed information is set
forth in ¶ 3 above and need not be repeated here. Yunis continued to talk on her cell phone
to the dispatcher for a number of minutes, giving a “play-by-play” report including that the
truck was being driven all over the road; its lights kept going on and off; the truck had gone
off the road into the ditch and then back onto the road; and that the truck exited the highway
at the Manhattan, Montana, exit only to re-enter the highway and pass her vehicle again.
Additionally, Yunis was able to inform the dispatcher--while talking and driving on a dark
evening--that the truck was white in color and the license plate number began with the
number 21. Yunis’ citizen’s report contained sufficient detail with regard to both quality and
quantity to establish that her information was based on her personal observations of the
incident. These facts, when considered under the second Pratt factor, also lend a high
indicia of reliability to Yunis’ report.
¶21 The third Pratt factor is whether the officer’s personal observations corroborate the
information given in the citizen informant’s report. Pratt, 286 Mont. at 165, 951 P.2d at 43.
Myhre contends that corroboration of a citizen tip “occurs when the officer personally
observes illegal activity to justify an investigative stop,” and notes that this did not occur in
this case because Reddick did not personally observe any activity, such as erratic driving or
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a traffic law violation, which would corroborate Yunis’ report of a possible intoxicated
driver. However, under Pratt, a citizen informant’s tip also may be corroborated “when the
officer . . . finds the person, the vehicle, and the vehicle’s location substantially as described
by the informant.” Pratt, 286 Mont. at 165, 951 P.2d at 43.
¶22 As stated above, Yunis was on her cell phone with the 911 dispatcher for several
minutes reporting her observations of Myhre’s truck. The 911 dispatcher relayed this
information to the highway patrol dispatcher, who then relayed the information to Reddick.
Reddick testified at the hearing in the District Court that the highway patrol dispatcher
informed him of the description of the reported vehicle and that the report referenced a
location at mile marker number 286. The dispatcher also advised Reddick that the citizen
informant had observed the truck drive off the highway into the ditch at one point. Reddick
observed two vehicles parked on the side of the highway at mile marker number 274. He
pulled in behind the first vehicle, which was a white truck with license plates beginning with
21. At that point, Reddick also saw a clump of grass stuck in the truck’s rear bumper, which
Reddick connected to the report that the truck had driven into the ditch.
¶23 Myhre asserts that the vague description of the vehicle and the twelve mile difference
in location where Reddick encountered the vehicle rendered the corroboration insufficient.
We conclude, however, that twelve miles down the highway is a location “substantially as
described by the informant” when the vehicles at issue are traveling at the posted speed of
75 miles per hour or more. Moreover, the vehicle Reddick observed shortly after receiving
the dispatch matched the description given in the citizen report. We conclude that Reddick’s
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observations sufficiently corroborated Yunis’ citizen report as required in the third Pratt
factor.
¶24 Based on the totality of the circumstances presented in this case, we conclude that the
information provided by Yunis contained sufficient content and indicia of reliability to
support a particularized suspicion on Reddick’s part justifying the investigative stop of
Myhre’s truck. As a result, we hold that the District Court did not err in determining that
Reddick had particularized suspicion to stop Myhre’s truck and in denying Myhre’s motion
to dismiss on that basis.
¶25 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ JOHN WARNER
/S/ PATRICIA O. COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS
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