DUI: Requirement that officers have certain amount of “experience” to make investigatory stop abandoned… relatively inexperienced deputy had reasonable grounds to believe driver DUI… McKeon affirmed.
Hill Co. Dep. Martin saw a pickup “barely moving” at 2:51 a.m., then pull over, stop, and shut off its lights. He pulled in behind and approached it. (The State asserted the Community Caretaker Doctrine but Judge McKeon simply stated that Martin “had probable cause/ reasonable grounds” to believe the driver was DUI.) David Brown rolled down his window and Martin smelled alcohol. He asked Brown if he was having any problems and Brown stated that he and his son argued and his son got out and walked away. He admitted that he had been drinking and explained that he had pulled over to wait for his son to return. Martin saw a beer container in the cupholder and observed that Brown’s speech was slow and slurred. He asked him to perform field tests. Brown was slow in exiting and had to lean on the truck, explaining that he had back problems. Martin improperly administered the HGN. Brown refused a breath test. Martin arrested him for DUI. He again improperly administered the HGN at the jail. He then read Brown the implied consent advisory. Brown again refused to take a breath test and his license was suspended. He petitioned for reinstatement on grounds that Martin did not have reasonable grounds to believe that he was DUI. McKeon denied his petition. Brown appeals.
Brown contends that based on “plain, unmistakable language” in Gopher (Mont. 1981), only an “experienced” officer can make the proper inferences as to DUI. He contends that Martin was lacking the requisite experience because he had only 4 prior DUI investigations and had been on the job less than a year. He also contends that there was not sufficient objective data from which inferences of DUI could be drawn. The idea that an officer has to have a certain amount of experience to make an investigatory stop & frisk comes from this Court’s early interpretations — or misinterpretations — of Cortez (US 1981). While Cortezreferred several times to “trained” officers, it referred only once to “experienced” officers — in the context of what an “experienced” officer might infer. It did not establish any requirement that only “experienced” officers could make such inferences. There is no Montana statute that carves out a class of officers as the only ones capable of particularized suspicion for a stop. Rather than requiring that each officer have a certain amount of experience, the test for particularized suspicion simply requires that the information available to the officer — whether rookie or veteran — be sufficient to allow a hypothetical “experienced” officer to have either particularized suspicion for a stop or probable cause for an arrest. Henceforth, for an officer to have particularized suspicion or reasonable grounds for an investigatory stop, he must be possessed of (1) objective data and articulable facts from which he can make certain reasonable inferences and (2) a resulting suspicion that the person has, is, or is about to commit an offense. While experience & training may be a factor in determining what sort of reasonable inferences he is entitled to make from his observations, they will not necessarily be the defining element. For example, a rookie on his 1st patrol may well be entitled to stop at 2 a.m. a vehicle that is driving slowly without lights and weaving across the lines, but might not be entitled to make reasonable inferences resulting in particularized suspicion or reasonable grounds to stop under circumstances which are demonstrably beyond his training or experience. The courts will look to the facts and totality of the circumstances of each case.
McKeon correctly concluded that Martin had reasonable grounds to believe that Brown was DUI. Brown contends that “virtually all” the data that Martin utilized were subjective, including the alcohol odor, the early morning hour, the vehicle’s slow movement, the sudden stop, the slurred/slow speech, the slow/staggered exit, and the explanation of a recently absent passenger when no one else was in the vicinity. He claims that the only objective data from which Martin could make any inferences of wrongdoing were Brown’s turning off the lights, admitting that he had been drinking, and the beer cup. He contends that because there was nothing improper about the way his pickup was parked, there was no objective evidence of any illegal activity. However, Martin did not act on one isolated observation, but drew inferences from several observations that indicated possible criminal activity. Clark (Mont. 2005).
Nelson, Leaphart, Cotter, Warner, Morris.
Brown v. State, DA 07-700, last brief 8/13/08, decided 3/3/09.
Jeremy Yellin, Havre, for Brown; Asst. AG Mark Fowler; Dep. Hill Co. Atty. Lindsay Osborne.