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State v. Foster

Supreme Court of Montana

May 16, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
JOHN C. FOSTER, Defendant and Appellant.

          Submitted on Briefs: April 5, 2017

         APPEAL 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

          For Appellant: Hillary P. Carls, Angel, Coil, & Bartlett, Bozeman, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant Attorney General, Helena, Montana

          Michael J. Gee, Beaverhead County Attorney, Dillon, Montana

          Mike McGrath Chief Justice

         ¶1 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.

         ¶2 We restate the issue on appeal as follows:

         Was the District Court's finding that particularized suspicion existed to support an investigatory stop clearly erroneous?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 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 report.

         ¶4 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).

         ¶5 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.

         STANDARD ...


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