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City of Missoula v. Kroschel

Supreme Court of Montana

June 12, 2018

CITY OF MISSOULA, Plaintiff and Appellee,
MARCY JANE KROSCHEL, Defendant and Appellant.

          Argued and Submitted: February 28, 2018

          APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-16-99 Honorable Leslie Halligan, Presiding Judge

          For Appellant: Anne Hamilton (argued), Brandon Shannon, Legal Intern, ASUM Legal Services, Missoula, Montana.

          For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler (argued), Assistant Attorney General, Helena, Montana Angela Suzanne Robertson-Bakken, Missoula County Attorney, Missoula, Montana.



         ¶1 Appellant Marcy Kroschel (Kroschel) appeals the judgment of the Montana Fourth Judicial District Court affirming the judgment of the City of Missoula Municipal Court denying her motion to suppress evidence. We affirm in part, reverse in part, and remand addressing the following restated issues:

1. Did the Municipal Court correctly conclude that police had sufficient particularized suspicion to prolong an investigatory stop of Kroschel under the Fourth Amendment and §§ 46-5-401 and -403, MCA, after database checks returned no record on the name and date of birth provided?
2. Did the Municipal Court correctly conclude that police subjected Kroschel to interrogation that did not require an advisory and waiver of constitutional rights?


         ¶2 On August 29, 2015, Kroschel attended a University of Montana (UM) football game at Washington-Grizzly Stadium in Missoula, Montana. UM Campus Police Officer Shannon Parsons was on uniformed foot patrol at the game with the specific duty assignment of patrolling and issuing citations for underage drinking in violation of § 45-5-624, MCA (minor in possession of intoxicating substance (MIP)). On the main stadium concourse (second level), Officer Parsons encountered Kroschel and Kaitlynn O'Connell walking toward the restroom. Parsons testified that she first noticed the two young women because she saw them walking arm-in-arm, unsteady on their feet, with O'Connell physically assisting Kroschel to the restroom. Suspecting that the two had been drinking underage and concerned about Kroschel's apparent level of intoxication, Parsons approached and asked if they were okay. When they responded that they were, Officer Parsons noticed an alcoholic odor emanating from them and asked for proof of identification. O'Connell produced identification showing that she was 21 years old. When Kroschel stated that she did not have identification because it was in her coat back at her stadium seat, Parsons asked Kroschel for her UM student ID number. Kroschel answered that she was no longer a UM student and could not remember her former ID number.

         ¶3 Officer Parsons then asked Kroschel for her name and date of birth. Kroschel gave a misspelled name ("Marcie Krochel") and a false date of birth indicating that she was 21. Parsons ran radio dispatch checks through the UM and CJIN[1] databases which returned no record on the name and date of birth given by Kroschel. Officer Parsons later testified that, in her experience in dealing with young adults on the UM campus, the absence of a record on those databases often indicates a false name. At the Municipal Court suppression hearing, Parsons testified that she asked Kroschel for her true name and date of birth at least twice with the same result. Getting no satisfactory response, Parsons asked Kroschel to accompany her "to the station" for the purpose of ascertaining her identity.

         ¶4 Kroschel became highly emotional and uncooperative, refused to accompany Parsons to the station, and asserted that Parsons was interfering with her desire to go home. Officer Parsons then warned Kroschel that she was obstructing Parsons' investigation and warned further that, unlike the offense of MIP, the offense of obstructing a peace officer is a jailable offense. In her subsequent testimony, Parsons explained that her purpose in so warning Kroschel was not to threaten or coerce her but, rather, "to give her information so that she could make the decision to tell me her correct name and date of birth." When Kroschel attempted to walk away, Officer Parsons physically grabbed her by the elbow, told her that they were "going to the station, " and then physically "guided" her to and down the stairway. On the way down, Kroschel began to walk compliantly and Parsons released her grip. Parsons did not formally arrest Kroschel but later testified that Kroschel was not free to go until Parsons could verify her true identity. Kroschel testified that she was crying, scared, and repeatedly told the officer that she did not want to go with her.

         ¶5 At the bottom of the stairway, as they approached a ground floor stadium gate, Parsons and Kroschel encountered another UM police officer on underage drinking patrol, Detective Chris Croft. Detective Croft then subjected Kroschel to a second round of questioning as to her true name and date of birth. As Croft questioned Kroschel, Officer Parsons ordered Kroschel's friend away, leaving Kroschel alone with the officers. Unable to confirm Kroschel's identity and age, and unsatisfied with her responses, the two police officers walked Kroschel to a secluded room in an adjoining concessions building connected to the stadium where they sat her down in a closed room for a third round of questioning about her true identity and date of birth.

         ¶6 Alone with two police officers behind a closed door in a secluded room, Kroschel continued to give the same misspelled name and false date of birth in response to Detective Croft's repeated questioning. Kroschel later testified that it was clear that she was not free to leave. Kroschel eventually relented and gave the officers her true name and date of birth. Another UM database check confirmed that she was in fact a 20-year-old UM student. After issuing Kroschel a notice to appear before the Missoula Municipal Court on the misdemeanor offenses of MIP and obstructing a police officer, Officer Parsons released Kroschel without further incident.

         ¶7 Kroschel appeared before the Municipal Court and later moved for suppression of the State's evidence of her age, date of birth, and the fact that she gave false information to police, on the asserted ground that the police unreasonably prolonged the initial investigative stop in violation of the Fourth Amendment of the United States Constitution, Article II, Section 11 of the Montana Constitution, and § 46-5-401, MCA. Kroschel further asserted that police subjected her to a custodial interrogation without a rights advisory in violation of the Fifth Amendment and Article II, Section 25 of the Montana Constitution. In denying the motion, the Municipal Court first ruled that Officer Parsons validly stopped and briefly questioned Kroschel on the main stadium concourse based on particularized suspicion of criminal activity as permissible under the Fourth Amendment. The Court ruled further that, though the stop ripened into a custodial interrogation which generally requires a constitutional rights advisory under the Fifth Amendment, no rights advisory was necessary in this case because the information sought by police (name, age, and date of birth) was merely non-incriminating, "basic biographical data." At a subsequent non-jury trial, the Municipal Court found Kroschel guilty of being a minor in possession of alcohol but not guilty of obstructing a peace officer. Kroschel timely appealed the Municipal Court's suppression ruling to the District Court. The District Court affirmed[2]and Kroschel now timely appeals to this Court.


         ¶8 On appeal from a municipal court of record, district courts function as intermediate courts of appeal with the scope of review "confined to review of the record and questions of law." Sections 3-5-303 and 3-6-110(1), MCA; State v. Luke, 2014 MT 22, ¶ 9, 373 Mont. 398, 321 P.3d 70.[3] On appeal of a lower court judgment following intermediate appeal, we review the lower court record independently of the district court as if appealed directly to this Court without district court review. State v. Maile, 2017 MT 154, ¶ 7, 388 Mont. 33, 396 P.3d 1270; Stanley v. Lemire, 2006 MT 304, ¶¶ 25-26, 334 Mont. 489, 148 P.3d 643. Upon independent review of the lower court record, our standard of review is whether the lower court's findings of fact are clearly erroneous, whether its conclusions of law are correct, and, as applicable, whether the lower court abused its discretion. State v. Davis, 2016 MT 206, ¶¶ 5-6, 384 Mont. 388, 378 P.3d 1192. Accord State v. Kasparek, 2016 MT 163, ¶ 6, 384 Mont. 56, 375 P.3d 372 (standard of review of a lower court ruling on a motion to suppress evidence is whether the court's findings of fact are clearly erroneous and whether the court correctly applied the governing law).


         ¶9 1. Did the Municipal Court correctly conclude that police had sufficient particularized suspicion to prolong the investigatory stop of Kroschel under the Fourth Amendment and §§ 46-5-401 and -403, MCA, after database checks returned no record on the name and date of birth provided?

         ¶10 The Fourth Amendment to the United States Constitution and Article II, Section 11 of the Montana Constitution similarly prohibit unreasonable searches and seizures. As a procedural component of these protections, government searches and seizures must generally occur pursuant to a judicial warrant issued on probable cause. U.S. Const. amend. IV ("no Warrants" for search or seizure "shall issue, but upon probable cause") and Mont. Const. art. II, § 11 ("No warrant to search any place, or seize any person or thing shall issue . . . without probable cause"). A constitutional seizure of a person occurs when a government officer "in some way" restrains a person's liberty by means of physical force or show of authority that, under the totality of the circumstances, would cause an objectively reasonable person to believe that the person is not free to leave the presence of the officer. State v. Clayton, 2002 MT 67, ¶ 12, 309 Mont. 215, 45 P.3d 30 (citing United States v. Mendenhall, 446 U.S. 544, 552-54, 100 S.Ct. 1870, 1876-77 (1980)); State v. Roberts, 1999 MT 59, ¶ 16, 293 Mont. 476, 977 P.2d 974; Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877 (1968). Even a brief restraint of a person's liberty constitutes a constitutional seizure. State v. Massey, 2016 MT 316, ¶ 9, 385 Mont. 460, 385 P.3d 544; State v. Martinez, 2003 MT 65, ¶ 20, 314 Mont. 434, 67 P.3d 207; State v. Kaufman, 2002 MT 294, ¶ 14, 313 Mont. 1, 59 P.3d 1166; State v. Reynolds, 272 Mont. 46, 49, 899 P.2d 540, 542 (1995); United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694-95 (1981).[4] Except under certain recognized exceptions to the warrant requirement, warrantless searches and seizures of persons are per se unreasonable under the Fourth Amendment and Article II, Section 11 of the Montana Constitution. State v. Ballinger, 2016 MT 30, ¶ 16, 382 Mont. 193, 366 P.3d 668; State v. Hardaway, 2001 MT 252, ¶ 36, 307 Mont. 139, 36 P.3d 900; Katz v. United States, 389 U.S. 347, 358, 88 S.Ct. 507, 515 (1967).

         ¶11 A recognized exception to the warrant requirement is the temporary investigative stop, or Terry stop, as first recognized by the United States Supreme Court in Terry, 392 at 16, 88 S.Ct. at 1877, and subsequently codified in Montana at §§ 46-5-401 and -403, MCA.[5] Under this exception, a law enforcement officer may briefly stop and detain a person for investigative purposes without a warrant or probable cause for an arrest if, based on specific and articulable facts known to the officer, including rational inferences therefrom based on the officer's training and experience, the officer has an objectively reasonable, particularized suspicion that the person is engaged, or about to engage, in criminal activity. State v. Elison, 2000 MT 288, ¶ 15, 302 Mont. 228, 14 P.3d 456; Roberts, ¶ 12; Reynolds, 272 Mont. at 49-50, 899 P.2d at 542; State v. Gopher, 193 Mont. 189, 193-94, 631 P.2d 293, 295-96 (1981); Cortez, 449 U.S. at 417-18, 101 S.Ct. at 694-95; Terry, 392 U.S. at 16-19, 88 S.Ct. at 1877-79. See also §§ 46-5-401(1) and -403, MCA (authorizing temporary stop of a person "to obtain an account of the person's presence or conduct or to determine whether to arrest the person" upon observing the person "in circumstances that create a particularized suspicion that the person . . . has committed, is committing, or is about to commit an offense"). Whether an officer had a particularized suspicion of criminal activity is a question of fact under the totality of circumstances. Kaufman, ¶ 11; Cortez, 449 U.S. at 417-18, 101 S.Ct. at 695.

         ¶12 Here, Kroschel asserts, and the State does not dispute, that Officer Parsons stopped and thus effected a constitutional seizure on Kroschel and her friend when the officer approached them, asked them if they were okay, and demanded identification including age. In turn, Kroschel does not seriously dispute the Municipal Court's finding and conclusion that Officer Parsons had sufficient particularized suspicion of underage drinking to justify the initial stop based on her articulated observations of Kroschel's "difficulty walking, her need to have a friend assist her, and the odor of alcohol" about her. Upon our review of the record, we hold that the Municipal Court correctly concluded that police had sufficient particularized suspicion under the Fourth Amendment and § 46-5-401, MCA, to temporarily stop Kroschel and investigate whether she had committed the offense of MIP.

         ¶13 Upon making a valid investigative stop, law enforcement officers must act with reasonable diligence to quickly confirm or dispel the predicate suspicion for the stop. United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575 (1985). The duration and scope of an investigative stop must be carefully limited to its "underlying justification." Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325-26 (1983). Thus, the duration and scope of a stop may not exceed what is reasonably necessary to confirm or dispel the predicate suspicion for the stop. Royer, 460 U.S. at 500, 103 S.Ct. at 1325-26; Terry, 392 U.S. at 17-20, 88 S.Ct. at 1878-79. Montana has codified these principles in § 46-5-403, MCA (temporary investigative stop "may not last longer than is necessary to effectuate the purpose of the stop"). See State v. Carlson, 2000 MT 320, ¶ 21, 302 Mont. 508, 15 P.3d 893 (citing § 46-5-403, MCA, and Royer); Commission Comments, supra, § 20.03. However, judicial assessment of the reasonableness of the duration and scope of an investigative stop must recognize that the State's compelling interest in "effective law enforcement" demands that officers in the field have reasonable "latitude" to reach, follow up on, and confirm or dispel initial suspicions of criminal activity. State v. Sharp, 217 Mont. 40, 47, 702 P.2d 959, 963 (1985); see also State v. Seaman, 2005 MT 307, ¶ 29, 329 Mont. 429, 124 P.3d 1137 (citing Sharp in community caretaker context).

         ¶14 To that end, "[a]sking questions is an essential part of police investigations." Hiibel v. Sixth Jud. Dist. Ct., 542 U.S. 177, 185, 124 S.Ct. 2451, 2458 (2004). "[Q]uestions concerning a suspect's identity are a routine and [permissible] part" of a typical temporary investigative stop. Hiibel, 542 U.S. at 186, 124 S.Ct. at 2458. The state has a compelling interest in enforcing the criminal law in furtherance of public order and safety. State v. Goetz, 2008 MT 296, ¶ 17, 345 Mont. 421, 191 P.3d 489; State ex rel. Zander v. Fourth Jud. Dist. Ct., 180 Mont. 548, 556, 591 P.2d 656, 660 (1979). In furtherance of that compelling state interest, identification of a validly stopped suspect assists police in confirming or dispelling the particularized suspicion of criminal activity that warranted the stop, determining whether further investigation of the suspect is warranted, and informing whether the suspect is "wanted for another offense" or requires aid due to mental illness. Hiibel, 542 U.S. at 186, 124 S.Ct. at 2458.[6] Officers investigating a particularized suspicion of criminal activity "need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger" to others. Hiibel, 542 U.S. at 186, 124 S.Ct. at 2458. "The request for identity has an immediate relation to the purpose, rationale, and practical demands of" a typical temporary investigative stop. Hiibel, 542 U.S. at 188, 124 S.Ct. at 2459. Though the Fourth Amendment does not compel a person to answer questions posed by police upon a temporary investigative stop, a state law that requires a suspect to disclose his or her identity upon request incident to a valid investigative stop does not violate the Fourth Amendment. Hiibel, 542 U.S. at 188, 124 S.Ct. at 2459.

         ¶15 Accordingly, incident to a lawful investigative stop, Montana law enforcement officers may request a person's name, current address, and "an explanation" of the person's conduct in relation to the officer's particularized suspicion for the stop. Section 46-5-401(2)(a), MCA. Consistent with governing federal and state constitutional principles, a person may be subject to criminal liability for failing to comply with an officer's lawful request for such information. See § 45-7-302(1), MCA (obstructing a peace officer).[7] See also Hiibel, 542 U.S. at 188-89, 124 S.Ct. at 2459-60 (police "may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop"). While § 46-5-401(1), MCA, does not expressly authorize police to request information other than a person's name, current address, and "an explanation" of the person's conduct, nothing in the language or legislative history of § 46-5-401(1), MCA, indicates any legislative intent to preclude police from asking other questions permissible under the Fourth Amendment within the limited scope of the stop (i.e., reasonably related in scope to the particularized suspicion that justified the stop). If not the functional or substantive equivalent of requesting a person's name and current address, demanding available proof of identification is typically likewise reasonably related to the purpose of an investigative stop for Fourth Amendment purposes. See Hiibel, 542 U.S. at 186-88, 124 S.Ct. at 2458-59.

         ¶16 Nonetheless, pursuant to State v. Driscoll, 2013 MT 63, 369 Mont. 270, 303 P.3d 788, Kroschel asserts that Officer Parsons improperly prolonged the duration of the investigative stop of Kroschel without a particularized basis upon which to continue to suspect that she was underage after the initial UM and CJIN database checks yielded no information contradicting the name and date of birth provided. In Driscoll, while on foot patrol during the annual Labor Day rodeo weekend in Dillon, uniformed police officers saw a young man in a bar holding a beer can. Suspecting that he was underage based on his youthful appearance, the officers approached the man and asked him how old he was. When Driscoll replied that he was 22 years old, the officers asked him for proof of identification verifying his age. When he refused to comply, the officers ordered Driscoll to accompany them outside. Driscoll, ¶ 5. Outside, in response to officers' request for his full name and date of birth, Driscoll gave them a false first name and date of birth. When a CJIN check returned no record of that name and date of birth, the officers arrested Driscoll and ultimately charged him with MIP and obstructing a peace officer. Driscoll later gave his true name which led police to his driver's license record and confirmation that he was less than 21 years old. Driscoll, ΒΆ 6. Driscoll subsequently moved in city court ...

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