Submitted on Briefs: April 5, 2017
FROM: District Court of the Fifth Judicial District, In and
For the County of Beaverhead, Cause No. DC-2015-3660
Honorable Brad Newman, Presiding Judge
Appellant: Hillary P. Carls, Angel, Coil, & Bartlett,
Appellee: Timothy C. Fox, Montana Attorney General, Madison
L. Mattioli, Assistant Attorney General, Helena, Montana
Michael J. Gee, Beaverhead County Attorney, Dillon, Montana
McGrath Chief Justice
John C. Foster (Foster) appeals from the April 1, 2016
District Court denial of his motion to suppress all evidence
and motion to dismiss. We affirm.
We restate the issue on appeal as follows:
the District Court's finding that particularized
suspicion existed to support an investigatory stop clearly
AND PROCEDURAL BACKGROUND
On April 10, 2015, at approximately 4:57 p.m., Jonathan Rees
(Rees) called 911, stating that he was following a driver who
appeared to be intoxicated. Rees advised the dispatch that he
was driving southbound on Highway 41 near mile marker 14,
between Twin Bridges and Dillon, Montana, and that the driver
of a dark blue Dodge Ram pickup with a large concrete
cylinder in the bed was potentially drunk, as he was
"driving all over the road." Rees identified
himself by first and last name, spelled his last name, and
agreed to go to the Beaverhead County Courthouse to sign his
Montana Highway Patrol Trooper Mitch Voss (Trooper Voss)
heard radio traffic regarding the potential drunk driver.
Trooper Voss was on a residential road, which intersected
Highway 41. Trooper Voss testified that he saw a vehicle
matching Rees' description at mile marker 9 on Highway
41. Trooper Voss followed the dark blue Dodge Ram with a
concrete cylinder in the bed, observed the vehicle crossing
the white line and then coming back into the lane of travel,
travel at a relatively low speed, and weave within the lane.
Trooper Voss pulled the vehicle over at 5:15 p.m. near mile
marker 2 on Highway 41. Trooper Voss identified Foster as the
driver and after an investigation arrested Foster for driving
under the influence of alcohol (DUI).
The State charged Foster with the offense of DUI. Foster pled
not guilty. In August 2015 Foster filed a motion to suppress
evidence and dismiss the charges based on Trooper Voss'
lack of particularized suspicion for the stop. After a
September 21, 2015 hearing, the Justice Court denied
Foster's motion to suppress and dismiss on October 3,
2015. On October 29, 2015, following a bench trial, the
Justice Court convicted Foster of DUI. Foster filed an appeal
to the District Court. He moved to suppress all evidence and
to dismiss the charge. After a full briefing by both parties,
the District Court conducted a hearing on April 1, 2016. On
May 13, 2016, the District Court denied Foster's motions.
Foster and the State entered a plea agreement and on June 17,
2016, Foster changed his plea to guilty reserving his right
to appeal the denial of his motions.