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State v. Tharin

Supreme Court of Montana

April 2, 2019

STATE OF MONTANA, Plaintiff and Appellee,
JAMES COTTER THARIN, JR., Defendant and Appellant.

          Submitted on Briefs: January 16, 2019

          Appeal 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.

          For Appellant: Ryan D. McCarty, Angel, Coil & Bartlett, Bozeman, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana Ed J. Hirsch, City Prosecutor, Bozeman, Montana


         ¶1 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 Montana Reports.

         ¶2 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 affirm.

         ¶3 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).

         ¶4 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.[1] 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.

         ¶5 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.[2] 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.

         ¶6 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?

         ¶7 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.[3] 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 P.3d 1192.

         ¶8 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.

         ¶9 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, ...

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