Submitted on Briefs: January 16, 2019
From District Court of the Eighteenth Judicial District, In
and For the County of Gallatin, Cause No. DC 16-109C
Honorable John C. Brown, Presiding Judge.
Appellant: Ryan D. McCarty, Angel, Coil & Bartlett,
Appellee: Timothy C. Fox, Montana Attorney General, C. Mark
Fowler, Assistant Attorney General, Helena, Montana Ed J.
Hirsch, City Prosecutor, Bozeman, Montana
M. SANDEFUR JUDGE.
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
James Cotter Tharin Jr. appeals from the judgment of the
Montana Eighteenth Judicial District Court, Gallatin County,
affirming the judgment of the City of Bozeman Municipal Court
denying Tharin's motion to suppress evidence of the
offense of driving under the influence of alcohol or drugs
(DUI). Tharin asserts that the arresting Bozeman police
officer lacked sufficient particularized suspicion to effect
the initial non-DUI-related traffic stop that ultimately led
to the discovery of evidence that Tharin was operating a
motor vehicle under the influence of alcohol or drugs. We
After midnight on August 18, 2014, Bozeman Police Officer
Justin Chaffins (Chaffins) was on patrol in Bozeman westbound
on West Mendenhall Street approaching its intersection with
North 7th Avenue. Chaffins later testified in Municipal Court
that, upon looking to his left up North 7th toward Main
Street, he observed a vehicle make a right turn off of Main
northbound onto North 7th Avenue across the outside lane into
the inside lane. Viewing the turn as an improper right turn
in violation of § 61-8-333(1), MCA (requiring right
turns "as close as practicable to the right-hand curb or
edge of the roadway"), Chaffins activated his emergency
lights and effected an investigative traffic stop on the
vehicle. As he approached on foot, Chaffins encountered
Tharin sitting in the driver's seat behind the wheel.
Based on his observation that Tharin had bloodshot, glassy
eyes and an alcoholic odor on his breath, Chaffins asked him
to perform various field sobriety tests. Upon completion of
the tests, Chaffins arrested Tharin on suspicion of DUI,
ultimately citing him into Bozeman Municipal Court for
violations of §§ 61-8-333(1) and -401, MCA
(improper right turn and DUI).
Tharin later filed a motion to suppress all evidence
discovered incident to the traffic stop on the asserted
ground that the arresting officer lacked particularized
suspicion to warrant the initial investigative stop as
required by § 46-5-401(1), MCA. In support of the motion,
Tharin asserted that the officer was not in a position where
he could have observed the alleged improper turn and thus
lacked sufficient objective data to support a traffic stop
based on particularized suspicion of that offense.
At the suppression hearing, the State presented the testimony
of Officer Chaffins, an onboard patrol car video recording,
and a post-incident daytime video of the intersection of Main
Street and North 7th Avenue from the officer's reported
vantage point at the time of the alleged improper turn.
Tharin supported his motion with the expert testimony of
Christopher A. Gayner, a highly experienced forensic
engineering expert. At the close of hearing, based on various
predicate findings of fact, the Municipal Court denied the
motion to suppress based on its ultimate finding that the
officer had sufficient particularized suspicion of the
alleged improper turn.
Tharin later pled guilty to an amended charge, operating a
motor vehicle with a blood alcohol content in excess of
0.08%, under a plea agreement that reserved his right to
appeal the denial of his suppression motion. Upon timely
appeal, the District Court affirmed the Municipal Court
ruling by order filed October 24, 2017. Tharin timely appeals
to this Court and we restate the dispositive issue as whether
the Municipal Court erroneously denied Tharin's motion to
suppress due to lack of particularized suspicion to warrant
the initial traffic stop?
District courts function as intermediate appellate courts on
appeal from municipal courts of record, with review confined
to the municipal court record and questions of law. Sections
3-5-303, 3-6-110(1), MCA; State v. Luke, 2014 MT 22,
¶ 9, 373 Mont. 398, 321 P.3d 70. On appeal of a lower court
judgment following intermediate appeal, we review the record
independently of the district court as if appealed directly
to this Court without intermediate 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. We review lower court
findings of fact for clear error, conclusions of law de novo
for correctness, and discretionary rulings for an abuse of
discretion. City of Missoula v. Kroschel, 2018 MT
142, ¶ 8, 391 Mont. 457, 419 P.3d 1208; State v.
Davis, 2016 MT 206, ¶¶ 5-6, 384 Mont. 388, 378
The Fourth and Fourteenth Amendments to the United States
Constitution and Article II, § 11 of the Montana
Constitution protect individuals from unreasonable government
searches and seizures. Procedurally, those protections
generally prohibit government searches and seizures except
pursuant to a judicial warrant issued on probable cause. U.S.
Const. amend. IV and XIV; Mont. Const. art. II, § 11.
As a limited exception to the warrant requirement, a law
enforcement officer may stop and temporarily detain a person
for investigative purposes without probable cause for an
arrest if, based on specific and articuable 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; State v.
Roberts, 1999 MT 59, ¶ 12, 293 Mont. 476, 977 P.2d
974; State v. Reynolds, 272 Mont. 46, 49-50, 899
P.2d 540, 542 (1995); State v. Gopher, 193 Mont.
189, 193-94, 631 P.2d 293, 295-96 (1981); United States
v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, ...