Submitted on Briefs: October 17, 2018
FROM: District Court of the Eleventh Judicial District, In
and For the County of Flathead, Cause No. DC-17-018C
Honorable Heidi J. Ulbricht, Presiding Judge.
Appellant: Thane Johnson, Johnson, Berg & Saxby, PLLP,
Appellee: Timothy C. Fox, Montana Attorney General, Mardell
Ployhar, Assistant Attorney General, Victoria Nickol, Student
Intern, Helena, Montana, Ed Corrigan, Flathead County
Attorney, Andrew C. Clegg, Deputy County Attorney, Kalispell,
JEREMIAH SHEA JUSTICE.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion, 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 Montana Reports.
¶2 Scott Alan Mahlen appeals the Order of the Eleventh
Judicial District Court, Flathead County, denying his Motion
to Suppress. We affirm.
On the evening of August 11, 2016, Sheridan Fishe called
police to report a road rage incident involving two
individuals driving black and chrome Harley-Davidson
motorcycles. Fishe identified himself, told officers the two
individuals threatened to kill him, and reported that he saw
them traveling toward the Scoreboard Pub. Police dispatch
contacted Deputy Cody Shields and notified him about the
incident and the suspects' potential whereabouts. Deputy
Shields and two other officers, Deputy McKeag Johns and
Corporal Nick Fister, arrived at the Scoreboard Pub within
minutes of the alleged incident. Deputy Shields testified he
observed two men-ultimately identified as Mahlen and another
man-at the Scoreboard Pub standing near a couple of
motorcycles that generally matched Fishe's description.
Deputy Shields testified that he "walked up to [two
motorcycles] and observed a couple individuals near the
bikes, started talking to them about the motorcycles, and
then proceeded to identify who they were from there."
After initially providing officers with a fake name, Mahlen
then provided Deputy Shields with his real name. Deputy
Shields looked up Mahlen's information, discovered he had
an outstanding arrest warrant, and arrested Mahlen. Deputy
Shields conducted a search incident to arrest and recovered
$932 and a plastic baggie containing twenty-seven grams of
cocaine in Mahlen's left front pants pocket.
The State charged Mahlen with possession with intent to
distribute, a felony, in violation of § 45-9-103, MCA.
Mahlen moved to suppress all evidence gathered from the stop
on the basis that Deputy Shields lacked particularized
suspicion to make contact with him. On August 28, 2017, the
District Court held a hearing on Mahlen's Motion to
Suppress. On September 6, 2017, the District Court denied the
Motion. On September 13, 2017, pursuant to a plea agreement,
Mahlen pled guilty to criminal possession of dangerous drugs,
a felony, in violation of § 45-9-102, MCA, reserving his
right to appeal the Order denying his Motion to Suppress.
We review a district court's denial of a motion to
suppress to determine whether the district court's
findings are clearly erroneous and whether those findings
were applied correctly as a matter of law. State v.
Gill, 2012 MT 36, ¶ 10, 364 Mont. 182, 272 P.3d 60.
A district court's finding that particularized suspicion
exists is a question of law, which is reviewed for clear
error. City of Missoula v. Moore, 2011 MT 61, ¶
10, 360 Mont. 22, 251 P.3d 679. A finding is clearly
erroneous if it is "not supported by substantial
evidence, if the court has misapprehended the effect of the
evidence, or if this Court's review of the record leaves
us with the firm conviction that a mistake has been
made." State v. Roberts, 1999 MT 59, ¶ 11,
293 Mont. 476, 977 P.2d 974 (citations omitted).
The Fourth Amendment of the United States Constitution and
Article II, Sections 10 and 11 of the Montana Constitution
afford all individuals freedom from unreasonable searches and
seizures. A constitutional seizure occurs when an officer
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 he was not free to leave. City of Missoula v.
Kroschel, 2018 MT 142, ¶ 10, 391 Mont. 457, 419
P.3d 1208; Roberts, ¶ 16 (quoting United
States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870,
1877 (1980)). Courts look to whether an officer, "by
means of physical force or show of authority, has in some way
restrained the liberty of a citizen" to determine
whether a "seizure" has occurred. State v.
Wilkins, 2009 MT 99, ¶ 8, 350 Mont. 96, 205 P.3d
795 (quoting Terry v. Ohio, 392 U.S. 1, 19-20 n. 16,
88 S.Ct. 1868, 1879 n. 16 (1968)). However, not all
interactions between police officers and citizens constitute
a "seizure." Wilkins, ¶¶ 8,
12-15 (citing Terry, 392 U.S. at 19-20 n. 16, 88
S.Ct. at 1879 n. 16). Merely approaching a person who is
standing or sitting in a public place and conducting a
welfare check or asking a question does not, by itself,
constitute a seizure. Wilkins, ¶ 10 (citing
Wayne LaFave, Search and Seizure, vol. 4 §
9.4(a) 419-21 (4th ed. West 2004)).
Generally, for government searches and seizures to be
reasonable they must occur pursuant to a judicial warrant
issued on probable cause. U.S. Const. amend. IV; Mont. Const.
art II, § 11. A valid warrant "is a judicial
mandate to an officer to conduct a search or make an arrest,
and the officer has a sworn duty to carry out its
provisions." United States v. Leon, 468 U.S.
897, 920 n. 21, 104 S.Ct. 3405, 3419 n. 21 (1984) (internal
One exception to the warrant requirement is the temporary
investigative stop. Terry, 392 U.S. at 15-16, 29-31,
88 S.Ct. at 1877, 1884-85; §§ 46-5-401, -403, MCA.
During a temporary investigative stop, police officers may
briefly stop and detain a person for an investigative purpose
without a warrant or probable cause for arrest if,
"based on specific and articulable facts known to
the officer," the officer has an objectively
reasonable particularized suspicion that the person is
engaged in, or about to engage in, criminal activity.
Kroschel, ¶ 11 (emphasis in original);
Roberts, ¶¶ 12-13, 25; §§
46-5-401, -403, MCA. The question of whether particularized
suspicion of wrongdoing exists "is a factually driven
inquiry dependent upon the totality of circumstances giving
rise to the investigative stop." Roberts,
¶ 13 (citing State v. Reynolds, 272 Mont. 46,
50, 899 P.2d 540, 542-43 (1995)).
Police officers "may rely on information conveyed by a
reliable third person . . . in forming the basis for a
particularized suspicion to justify an investigative
stop." State v. Pratt, 286 Mont. 156, 162, 951
P.2d 37, 41 (1997). To determine whether an informant's
tip contains sufficient indicia of reliability for purposes
of creating particularized suspicion, courts examine (1)
whether the citizen informant identifies himself to law
enforcement and thus exposes himself to criminal and civil
liability if the report is false; (2) whether the report is
based on the personal observations of the informant; and (3)
whether the ...