Submitted on Briefs: February 15, 2017
FROM: District Court of the Seventh Judicial District, In and
For the County of Richland, Cause No. DC 15-054 Honorable
Katherine M. Bidegaray, Presiding Judge.
Appellant: Brad L. Arndorfer, Arndorfer Law Firm, P.C.,
Appellee: Timothy C. Fox, Montana Attorney General, Tammy A.
Hinderman, Assistant Attorney General, Helena, Montana, Mike
Weber, Richland County Attorney, Janet Christoffersen, Deputy
County Attorney, Sidney, Montana.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
Defendant, Brian M. Volbrecht (Volbrecht), appeals his
conviction of driving under the influence in violation of
§ 61-8-401, MCA (2015). He challenges the order of the
Seventh Judicial District Court, Richland County, denying his
motion to dismiss the charge on the ground that the officer
did not have particularized suspicion to initiate the traffic
stop that led to his arrest.
At 1:28 a.m., on May 6, 2015, Officer Josh Harris (Officer
Harris) was on patrol in Sidney, Montana, when he observed a
red pickup truck "accelerate quickly across [North
Central Avenue], " requiring the vehicle in front of
Officer Harris to "apply its brakes and nearly come to a
stop to avoid a possible collision." The red truck was
proceeding on West Main Street, and, as it approached the
intersection with North Central Avenue, was faced with a
flashing red light. Traffic on North Central Avenue,
including Officer Harris' vehicle and the vehicle in
front of him, had a flashing yellow signal. Officer Harris
initiated a traffic stop on the red truck for "[f]ailing
to yield to the vehicle traveling . . . on North
Central." Officer Harris' dash camera corroborated
his account of the incident. Volbrecht was the driver of the
red truck and, during the traffic stop, he failed a field
sobriety test. Volbrecht was charged with driving under the
Unreasonable searches and seizures, including investigatory
stops, are prohibited by the Montana and United States
Constitutions. Mont. Const. art. II, § 11; U.S. Const.
amend. IV; State v. Massey, 2016 MT 316, ¶ 9,
385 Mont. 460, 385 P.3d 544. However, "a peace officer
may stop any . . . 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.
Particularized suspicion requires, based on the facts
available to the officer in the totality of the
circumstances: "(1) objective data from which an officer
can make certain inferences, and (2) a resulting
particularized suspicion that the occupant of the motor
vehicle is or has been engaged in wrongdoing or was a witness
to criminal activity." Massey, ¶ 9
(internal citations and quotations omitted). Section
61-8-341(1), MCA, mandates that vehicles entering highways
"shall yield the right-of-way to other vehicles that are
approaching close enough on the through highway to constitute
an immediate hazard." "Observation of a traffic
offense is sufficient to establish a particularized
suspicion." State v. Loney, 2004 MT 204, ¶
16, 322 Mont. 305, 95 P.3d 691; accord State v.
Murray, 2011 MT 10, ¶ 14, 359 Mont. 123, 247 P.3d
721 ("[O]bservation of a traffic offense more than
satisfies the particularized suspicion requirement.").
"A court's determination that particularized
suspicion exists is a question of fact, which we review for
clear error." State v. Wagner, 2013 MT 159,
¶ 9, 370 Mont. 381, 303 P.3d 285 (citation omitted).
"A finding of fact is clearly erroneous if it is not
supported by substantial evidence, if the lower court has
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." Wagner, ¶ 9
We have determined to decide this case pursuant to Section I,
Paragraph 3(c) of our Internal Operating Rules, which
provides for memorandum opinions. The District Court's
findings that Officer Harris had sufficient information to
conclude that Volbrecht committed a traffic violation by
failing to yield the right-of-way to another vehicle and,
therefore, had a particularized suspicion that Volbrecht had
violated § 61-8-341, MCA, were not clearly erroneous.
concur: LAURIE McKINNON, JAMES JEREMIAH SHEA, BETH ...