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State v. Wagner

Supreme Court of Montana

June 18, 2013

STATE OF MONTANA, Plaintiff and Appellee,
ROBERT A. WAGNER, Defendant and Appellant.

Submitted on Briefs: May 1, 2013

District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DC-12-56 Honorable James B. Wheelis, Presiding Judge

For Appellant: Thane Johnson, Johnson, Berg & Saxby, PLLP, Kalispell, Montana

For Appellee: Timothy C. Fox, Montana Attorney General; Katie F. Schulz, Assistant Attorney General, Helena, Montana

Bernard G. Cassidy, Lincoln County Attorney; Robert Slomski, Deputy Lincoln County Attorney, Libby, Montana


Laurie McKinnon, Justice

¶1 The State charged Robert Andrew Wagner in Lincoln County Justice Court with driving under the influence of alcohol or drugs (third offense), a misdemeanor, in violation of § 61-8-401, MCA, or, in the alternative, § 61-8-406, MCA. Wagner filed a motion to suppress all evidence obtained during the stop of his vehicle. He argued that the officer lacked particularized suspicion for the traffic stop. Following a suppression hearing, the Justice Court denied Wagner's motion. Wagner then pleaded guilty, reserving his right to appeal the Justice Court's suppression ruling.

¶2 Wagner appealed to the Nineteenth Judicial District Court, Lincoln County. The District Court conducted an evidentiary hearing and thereafter denied Wagner's motion to suppress, finding that there was particularized suspicion for the stop of his vehicle. Wagner now appeals to this Court, raising the following issue: Whether the District Court erred in denying Wagner's motion to suppress based upon its determination that the officer had particularized suspicion to justify an investigative stop. We conclude that the District Court did not err, and we accordingly affirm.


¶3 At approximately 2:40 a.m. on April 9, 2012, Lincoln County Sheriff's Deputy John Davis was patrolling southbound on U.S. Highway 2 in Libby near Empire Foods and Town Pump, which are located at the southern edge of town. In front of him, Davis noticed a vehicle that was also traveling southbound on Highway 2. At this location, the highway consists of two southbound and two northbound lanes of travel. Davis's attention was drawn to the vehicle because it was straddling the two southbound lanes of travel; in other words, the vehicle was not in a single lane. Davis observed the vehicle continue to straddle both southbound lanes for 500 to 600 feet. There were no obstructions or roadwork that would have prevented the driver from traveling in one lane. Davis was aware that Montana law requires a vehicle to be operated as nearly as practicable entirely within a single lane. Section 61-8-328(1), MCA.

¶4 Davis followed the vehicle as it proceeded in a southerly direction. He observed the vehicle slowly move into the left southbound lane, without signaling. The vehicle continued in the left lane for roughly one-quarter mile. The vehicle's right blinker then activated and the vehicle moved into the right lane. Davis observed the vehicle weave back and forth within the right lane. The vehicle's left tires crossed the dividing line between the two southbound lanes on two separate occasions, and the vehicle's right tires crossed the fog line on one occasion. The vehicle next signaled and turned right onto Pearl Street, and then signaled again and turned left onto Granite Street. At this point, Davis decided to initiate a traffic stop and activated his overhead lights. The vehicle began signaling and eventually pulled into a driveway. Davis pulled in behind and made contact with the driver, who he ascertained was Wagner.

¶5 Davis had been a deputy with the Lincoln County Sheriff's Office for 15 months at the time he stopped Wagner. Davis had received specialized training for investigations involving driving under the influence. He had made other DUI stops and arrests prior to his stop of Wagner. Davis testified at the suppression hearing that, in light of his training and experience, he believed that Wagner's driving was erratic and suspicious. Based on his observations of Wagner straddling the two southbound lanes of travel, then drifting into the left lane, then weaving back and forth within the right lane, crossing the dividing line on two occasions and the fog line on one occasion, Davis concluded that Wagner might be impaired.

¶6 At the suppression hearing, Davis also discussed the video-recording equipment in his patrol car. He explained that the video camera runs on a continuous loop 24 hours a day, recording and rerecording over itself on the videotape. When the patrol car's overhead lights are activated, however, the device automatically saves what was recorded during the 60 seconds before the overhead lights were activated, plus whatever occurs while the overhead lights remain on. As noted, Davis did not activate his overhead lights until Wagner turned onto Granite Street. As a result, the video recorder did not capture any of Wagner's erratic driving observed more than a minute prior to his turning onto Granite Street. Davis acknowledged that he could have activated the video recorder manually, before turning on his overhead lights. He stated that he did not do so because his usual practice is to let the recorder operate automatically in conjunction with his overhead lights.

ΒΆ7 Wagner testified that he clearly remembered the night in question. He stated that he was familiar with the road and that he always drove on the inside southbound lane in order to avoid collisions with the many deer and moose in the area. Wagner denied straddling the line dividing the two ...

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