Submitted on Briefs: September 13, 2017
Court of the Sixteenth Judicial District, In and For the
County of Rosebud, Cause No. DC 15-18 Honorable Michael B.
Hayworth and Honorable Nickolas C. Murnion, Presiding Judges
Appellant: Chad Wright, Chief Appellate Defender, Moses
Okeyo, Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Tammy A.
Hinderman, Assistant Attorney General, Helena, Montana C.
Kristine White, Rosebud County Attorney, Forsyth, 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
Terry Allison appeals his conviction for Driving Under the
Influence from the Sixteenth Judicial District Court. We
A Montana Highway Patrol trooper approached a vehicle with
out-of-state plates legally parked in a remote public
campground on a warm spring day. The trooper found Terry
Allison in the driver's seat with the keys in the
ignition. In response to the trooper's inquiries into
Allison's welfare, Allison said he was getting drunk.
Based on Allison's response and the trooper's own
observations, the trooper arrested Allison for Driving Under
the Influence in violation of § 61-8-401(1)(a), MCA.
Allison filed a motion to suppress the evidence against him
and to dismiss the charges. He argued that the officer had no
"particularized suspicion" of criminal activity or
"objective, specific and articulable facts" that
Allison was in need of aid before seizing him. The State
argued to the District Court that the community caretaker
doctrine justified the seizure, because the out-of-state
license plates, the quick movements in the van, the dark
tinted windows, and the remote location were sufficient to
lead the trooper to believe that the occupant of the vehicle
may need assistance. The District Court agreed with the State
and denied the motion. Following a one-day trial, a jury
found Allison guilty. Allison appeals the District
Court's denial of his motion to suppress.
We review a district court's decision on a motion to
suppress to determine whether the court's findings of
fact are clearly erroneous and whether its interpretation and
application of the law are correct. State v. Tucker,
2008 MT 273, ¶ 13, 345 Mont. 237, 190 P.3d 1080.
In its briefing, the State effectively concedes that the
community caretaker doctrine does not apply to this case. We
agree. Observing a vehicle parked in an open public
campground on a warm spring day does not meet the
doctrine's first requirement that an officer observe
"objective, specific and articulable facts from which an
experienced officer would suspect that a citizen is in need
of help or is in peril." State v. Lovegren,
2002 MT 153, ¶ 25, 310 Mont. 358, 51 P.3d 471; see
also State v. Spaulding, 2011 MT 204, ¶ 18, 361
Mont. 445, 259 P.3d 793. The State instead argues for the
first time on appeal that the trooper's actions did not
affect a seizure of Allison at all. We decline to address a
change in legal theory that was not presented to the District
Court, but raised for the first time on appeal. State v.
Knowles, 2010 MT 186, ¶ 42, 357 Mont. 272, 239 P.3d
129; State v. Malkuch, 2007 MT 60, ¶ 17, 336
Mont. 219, 154 P.3d 558; State v. Wetzel, 2005 MT
154, ¶ 13, 327 Mont. 413, 114 P.3d 269. Because we
decline to address the State's change in legal theory on
appeal and the community caretaker doctrine does not apply,
the District Court's denial of Allison's motion to
suppress must be reversed.
We have determined to decide this case pursuant to Section I,
Paragraph 3(c) of our Internal Operating Rules, which
provides for memorandum opinions. This appeal does not
establish new precedent or modify existing precedent. We do
not determine whether the officer acted inappropriately or
whether the trooper's actions constituted a seizure. We
conclude only that the District Court's application of
the community caretaker doctrine was incorrect. Given this
disposition, we do not address ...