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State v. Zietlow

Supreme Court of Montana

June 20, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
GREGORY ZIETLOW, Defendant and Appellant.

          Submitted on Briefs: April 5, 2017

         APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 16-121 Honorable Karen Townsend, Presiding Judge

          For Appellant: Brett D. Schandelson, Tipp & Buley, P.C., Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana

          Kirsten Pabst, Missoula County Attorney, Britany Santomo, Deputy County Attorney, Missoula, Montana

          OPINION

          Laurie McKinnon Justice

         ¶1 Gregory Zietlow (Zietlow) appeals from an order entered in the Montana Fourth Judicial District Court, Missoula County, finding there was particularized suspicion to initiate an investigatory stop of Zietlow's vehicle for driving under the influence (DUI). We affirm.

         ¶2 Zietlow presents the following issue for review:

         Whether a corroborated tip from an identified citizen informant based, in part, on personal observations of a co-worker is reliable.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 On June 13, 2015, at approximately 7:30 p.m., Karmen Stagl (Stagl), an employee at the Town Pump in Bonner, called 911 to report a suspected drunk driver. Over the next six minutes, Stagl made three separate phone calls to 911 updating dispatch concerning Zietlow's behavior. During the first 911 call, Stagl told dispatch that she was reporting on behalf of her coworker, later identified as Jamie Weavers (Weavers). Stagle can be heard in the 911 tape asking Weavers more questions, which were specifically prompted by the dispatcher. Stagl reported to dispatch her coworker's answers: that Weavers observed Zietlow stumbling; that Zietlow smelled like alcohol; and that Weavers could tell Zietlow was intoxicated. Stagl, herself, observed Zietlow walk into the building and enter the restroom. Stagl continued to provide dispatch with a real time update of Zietlow's activities, relating that Zietlow was "bugging other customers, " walking around other vehicles while customers were "just kind of watching him, " and appeared to be about to leave. Stagl described Zietlow's vehicle as a black Chevy Silverado LTZ with temporary dealer plates and provided the tag number in its entirety. She provided a physical description of Zietlow, which included his hair color, height, the presence of facial hair, and what he was wearing. During her last call to 911, Stagl describes Zietlow pulling out of the parking lot and heading east on Highway 200.

         ¶4 Highway Patrol Trooper Andrew Novak (Trooper Novak) used the tag information provided by Stagl and learned the vehicle was registered to Zietlow and that Zietlow lived about 6 miles from the Bonner Town Pump. When Trooper Novak arrived at the address he did not observe any black Chevy Silverado pickup truck. At that point, Trooper Novak turned around and headed back towards the Town Pump. Almost immediately, however, he observed a pickup truck matching the description given by Stagl pull into Zietlow's driveway. Trooper Novak initiated a traffic stop, during which he confirmed the tag number, the vehicle's description, and the physical description of Zietlow. Ultimately, the stop ripened into probable cause to arrest Zietlow for driving under the influence.

         ¶5 On June 15, 2015, Zietlow was charged in Missoula County Justice Court with Aggravated Driving Under the Influence, in violation of § 61-8-465, MCA, due to having a blood alcohol content above .16. Zietlow argued in a motion to suppress that the investigating officer did not have particularized suspicion to initiate the stop of his vehicle. The Justice Court denied Zietlow's motion and Zietlow subsequently entered a guilty plea to aggravated DUI, reserving his right to appeal the Justice Court's ruling on his motion to suppress. Zietlow filed a notice of appeal. Following briefing by the parties and an evidentiary hearing in which Trooper Novak testified, the District Court denied Zietlow's motion to suppress in a written order issued May 31, 2016. Zietlow appeals.

         STANDARD ...


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