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State v. Nelson

Supreme Court of Montana

September 26, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
KYLE WADE NELSON, Defendant and Appellant.

          Submitted on Briefs: August 2, 2017

         APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-16-137 Honorable Karen Townsend, Presiding Judge

          For Appellant: Nathaniel S. Holloway. Paul T. Ryan, Paul Ryan & Associates, PLLC, Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana Kirsten Pabst, Missoula County Attorney, Brittany Santorno, Deputy County Attorney, Missoula, Montana

          OPINION

          Michael E Wheat Justice

         ¶1 Kyle Wade Nelson (Nelson) appeals from the District Court's denial of his motion to suppress. We affirm.

         ¶2 We restate the issue on appeal as follows:

Did the District Court err when it denied defendant's motion to suppress?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 On July 25, 2015, Kittrell Saunders (Saunders), a waitress, called 911 to report a drunk individual driving away from a restaurant. Saunders called 911 while a coworker, Justin Sharbono (Sharbono), watched the individual leave the restaurant, get in his vehicle, and drive away. Saunders reported her first and last name, the location of where she was calling from, her place of employment, a make, model, and license plate number of the vehicle, as well as the location of travel. Saunders reported Sharbono's name and that they were both willing to sign a complaint about what they witnessed. Saunders spoke with both the 911 operator and Sharbono simultaneously. Saunders informed dispatch that the man was "walking into stuff, and he was going all over the place. He couldn't walk in a straight line to save his life, and then he got in the, stumbled around and got in the vehicle." Sharbono, while not the caller, could be heard by the dispatcher say, "he just bounced off that wall."

         ¶4 Montana Highway Patrol Trooper Luke Burson was on patrol in the area when he received the report from dispatch. Eleven minutes after the initial report, Trooper Burson located the van in a hotel parking lot. He observed the vehicle drive from the check-in area to a spot in the parking lot. Trooper Burson activated his lights and made contact with the driver, Nelson. Trooper Burson conducted a driving under the influence (DUI) investigation after he smelled alcohol on Nelson. Trooper Burson arrested Nelson for DUI.

         ¶5 On July 25, 2015, the Missoula County attorney charged Nelson with DUI. In the Justice Court, Nelson filed a motion to suppress evidence of the stop based on Trooper Burson's lack of particularized suspicion based on an informant's tip. The State responded and an evidentiary hearing was held. The Justice Court granted Nelson's motion. The State appealed to the District Court, which reviewed the issue de novo. Nelson filed a motion to suppress, again arguing particularized suspicion did not exist and the "Pratt factors" were not met in order to create particularized suspicion based on Saunders' and Sharbono's report. The State responded and the District Court held an evidentiary hearing on May 9, 2016. Saunders, Sharbono, and Trooper Burson testified at the hearing. The District Court denied Nelson's motion. Nelson entered a nolo contendere plea pursuant to a plea agreement in which he reserved the right to appeal the denial of his motion to suppress. Nelson appeals.

         STANDARD OF REVIEW

         ¶6 We review a district court's denial of a motion to suppress to determine whether the court's findings are clearly erroneous and whether those findings were applied correctly as a matter of law. St ...


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