Submitted on Briefs: March 8, 2017
FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DC-16-6 Honorable
Jeffrey H. Langton, Presiding Judge
Appellant: Dustin M .Chouinard, Markette & Chouinard
P.C., Hamilton, Montana.
Appellee: Timothy C. Fox, Montana Attorney General, Tammy K
Plubell, Assistant Attorney General, Helena, Montana William
Fulbright, Ravalli County Attorney, William Lower, Deputy
Ravalli County Attorney, Hamilton, 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
Richard Ray Kelm (Kelm) appeals from the Opinion and Order
entered in the Twenty-First Judicial District, Ravalli
County, affirming the Justice Court's denial of his
Motion to Suppress Evidence and Dismiss Charge. We affirm.
Kelm was charged with Driving Under the Influence (DUI) in
Justice Court and, following the Justice Court's denial
of his motion to suppress, Kelm entered a plea of guilty to
DUI. Pursuant to § 46-12-204(3), MCA, Kelm reserved his
right to appeal the denial of his suppression motion. The
issue on appeal is whether the District Court, on appeal from
a justice court, correctly found that the arresting officer
had particularized suspicion to conduct an investigative
On April 25, 2015, Ravalli County Sheriff Sergeant Jesse
Jessop (Sergeant Jessop) was driving southbound on Highway 93
in Hamilton, Montana, at approximately midnight, when he
observed a Jeep in front of him. The driver of the Jeep,
later identified as Kelm, appeared to be weaving within his
lane. Sergeant Jessop activated his in-car camera and,
seconds later, Kelm turned right into the Albertsons'
parking lot and stopped. Sergeant Jessop then deactivated his
in-car camera and drove past the Albertsons' parking lot,
paying attention to the Jeep's movements. Sergeant Jessop
believed, correctly, that the Albertsons and other businesses
connected to the parking lot were closed for the evening.
Sergeant Jessop turned into the K-Mart parking lot, which is
attached to the Albertsons' parking lot and preceded
Sergeant Jessop observed Kelm drive slowly towards the closed
K-Mart, which law enforcement had received a large number of
alarms about possible criminal conduct. Kelm was parked close
to the entrance of the K-Mart. Sergeant Jessop decided to
initiate a traffic stop based on Kelm's weaving within
traffic lanes; lateness of the hour; how quickly Kelm turned
off of Highway 93 into a closed business after Sergeant
Jessop observed him; and Kelm's conduct of driving slowly
past the front of the business, given the number of alarms
law enforcement had recently received of possible criminal
conduct at the businesses. The stop ultimately ripened into a
DUI investigation and resulted in Kelm being charged with
Sergeant Jessop, at the motion hearing, elaborated that
Kelm's weaving from side to side within his lane, coupled
with the time of night, initially concerned Sergeant Jessop
that Kelm might be impaired. Sergeant Jessop also testified
that impaired drivers often turn off the road after noticing
a patrol vehicle behind them. It was also known to Sergeant
Jessop that K-Mart had been having problems with alarms going
off after hours, so in his words "it was a two-part
suspicion for me; one was the driving and two was 
what's someone doing here at Albertsons or K-Mart at
just after midnight."
We review a motion to suppress to determine whether a
district court's findings of fact are clearly erroneous
and whether the court's conclusions of law are correct.
State v. Loiselle, 2001 MT 174, ¶ 6, 306 Mont.
166, 30 P.3d 1097. A finding is clearly erroneous if not
supported by substantial evidence, if the lower court has
misapprehended the effect of the evidence, or if we are left
with a definite and firm conviction that the lower court made
a mistake. State v. Dupree, 2015 MT 103, ¶ 8,
387 Mont. 499, 346 P.3d 1114.
An 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. To have
particularized suspicion, the officer must have (1) objective
data and articulable facts from which he can make certain
reasonable inferences, and based on those facts or data (2) a
resulting suspicion that the person has committed, is
committing, or is about to commit an offense. State v.
Wagner, 2013 MT 159, ¶ 10, 370 Mont. 381, 303 P.3d
When legality of a stop is at issue it is the State's
burden to show there were sufficient facts and data on which
law enforcement can reasonably rely to infer criminal
activity. State v. Clark, 2009 MT 327, ¶ 12,
353 Mont 1, 218 P.3d 483. Observing a traffic offense is
sufficient but not necessary to establish particularized
suspicion. See State v. Flynn, 2011 MT 48,
¶¶ 7-9, 359 Mont. 376, 251 P.3d 143; see also
State v. Cameron, 2011 MT 276, ¶ 15, 362 Mont. 411,
264 P.3d. 1136. When determining if particularized suspicion
was present, we look at the totality of the circumstances.
State v. Pratt, 286 Mont. 156, 161, 951 P.2d 37, 40
(1997). The time of day, the location of the ...