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City of Missoula v. Metz

Supreme Court of Montana

November 5, 2019

CITY OF MISSOULA, Plaintiff and Appellee,
BRYAN ALLAN METZ, Defendant and Appellant.

          Submitted on Briefs: September 18, 2019

          District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 17-472 Honorable Robert L. Deschamps, III, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Koan Mercer, Assistant Appellate Defender, Calder Thingvold, Law Student Intern, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Misty D. Gaubatz, Law Student Intern, Helena, Montana Jim Nugent, Missoula City Attorney, Carrie L. Garber, Senior Deputy City Attorney, Missoula, Montana



         ¶1 Defendant and Appellant Bryan Allan Metz (Metz) appeals the Opinion and Order issued by the Fourth Judicial District Court, Missoula County, on April 30, 2018, which affirmed the judgment of the Missoula Municipal Court denying his motions to suppress evidence. We reverse.

         ¶2 We state the issue on appeal as follows:

Did the Municipal Court err when it determined that a particularized suspicion to conduct a DUI investigation existed at the completion of a community caretaker stop?


         ¶3 Shortly after 8:00 a.m. on April 18, 2017, Selene Koepke (Koepke), a Missoula County deputy county attorney, called 911 to request a welfare check on the driver of a vehicle parked near Franklin Park in Missoula. Koepke reported to 911 that the vehicle was running and that she couldn't tell if the driver was moving or not, informed the 911 operator that she did not want to get too close, and gave the vehicle's license plate information. A few minutes after Koepke's 911 call, law enforcement and emergency medical services arrived at the vehicle's location at Franklin Park. The vehicle was parked legally in a designated parking space at the park. Missoula Police Officer Erickson was the first to make contact, and as he approached the vehicle, he observed that the vehicle was not running and the driver, later identified as Metz, was awake, moving, and looking at him. The morning's weather was sunny and pleasant. Officer Erickson's body and dash cameras recorded video of the subsequent interactions leading up to Metz's arrest.

         ¶4 Officer Erickson arrived, activated his emergency lights, and parked perpendicular to Metz's car on the driver's side. Two more police cruisers arrived at or near the same time as Officer Erickson. One parked on the opposite side of Metz's car from Officer Erickson, and one parked behind Metz's car. As Officer Erickson approached the car, Metz sat up and rolled his window down to speak with Officer Erickson. Officer Erickson informed Metz that a caller thought he was sleeping and was concerned about his safety. Officer Erickson does not personally inquire about Metz's welfare, but tells Metz to step out of the car so that medical personnel can talk to him and see if he is all right. As Metz steps out of his vehicle, three additional police officers are surrounding his car and they ask Officer Erickson if this is a "210," or intoxicated driver, and Officer Erickson responds, "Possibly." Officer Erickson asks to see Metz's identification as an ambulance and fire truck arrive to the scene. Metz asks Officer Erickson if it is "really that big of a deal" to be parked outside of the park. Officer Erickson responds that people were concerned about Metz's welfare, and then calls in Metz's identification to dispatch. Officer Erickson asks how long Metz has been at the park, and Metz responds that he has just been relaxing there for a "couple hours." Officer Erickson asks why he was at the park, and Metz responds that he was just trying to take a nap. At this point, medical personnel begin to walk over to Metz and Officer Erickson and ask if they need medical attention. For the first time in the encounter, Officer Erickson asks a question regarding Metz's welfare and asks Metz if he needs any medical attention. Metz responds that he does not, and Officer Erickson sends the medical personnel away, telling them that "we're good, thank you."

         ¶5 After Officer Erickson sends the medical personnel away, Officer Kamerer approaches Officer Erickson to ask about the situation. Officer Erickson, still holding Metz's driver's license, tells Metz to "hang tight" and steps away to speak with Officer Kamerer and another officer. Officer Kamerer asks if the vehicle was running when Officer Erickson arrived, and Officer Erickson responds that it was not, but Metz tried to start the vehicle when he was approaching. Officer Kamerer then asks Officer Erickson, "What are you getting off of him?" Officer Erickson responds that Metz has bloodshot eyes and "a little bit of a slur." Officer Erickson asks the other officers, who were looking into the windows of Metz's car, if they saw anything inside the car. Officer Kamerer responds that he was "not seeing anything." Officer Kamerer tells Officer Erickson that if Officer Erickson thinks "there is enough, we can process. If not, then have [Metz] walk and come back and get it later." Officer Erickson remarks about the situation, before stating that he's "not terribly worried" and "[doesn't] really want to pursue it." Officer Kamerer responds that he is fine with that, before Officer Erickson decides that he wants to take another look in Metz's car windows.

         ¶6 As Officer Erickson-still with Metz's driver's license-goes to look in Metz's windows, Officer Kamerer and another officer immediately approach Metz and start questioning him. Officer Erickson's body camera video picks up a portion of the audio of Officer Kamerer's questioning of Metz, and Officer Kamerer tells Metz that he can smell alcohol coming off of him. Metz tells Officer Kamerer that he was not drinking before parking his car, and Officer Kamerer asks where his empties are if he has been drinking since parking. Metz states that he has not been drinking in his car. Officer Kamerer asks if Metz is on probation, and Metz responds that he is on misdemeanor probation. Officers Kamerer and Erickson then discuss whether Metz will provide a breath test at the request of his probation officer. The officers tell Metz that he has "no choice" but to provide one because he is on probation-though no officer has yet spoken with Metz's probation officer-and Metz refuses. Officer Erickson then asks Officer Kamerer to again step aside to discuss the situation, and Officer Erickson states that, "the more I think about it, the more I think I do have enough to push through with a DUI." Officer Erickson tells Officer Kamerer that he "might roll with it."

         ¶7 Officer Erickson then reapproaches Metz and attempts to conduct field sobriety tests. Eventually, Officer Erickson is able to complete the horizontal gaze nystagmus (HGN) test, but before any further field sobriety tests are completed, Metz is arrested. During the arrest, Officer Emerson questions Metz about whether there is anything in his car that he does not want them to find. Metz responds that there is nothing illegal in his car, and Officer Erickson says that "there is a beer cup in your car." Metz states that it is a Solo cup, and Officer Erickson responds that, "no, it's not a Solo, it's a Miller Lite cup." Metz is then placed in the back of Officer Erickson's police vehicle and eventually read the Montana implied consent advisory before declining to provide a breath test. Metz's car is ultimately searched by probation and parole officers before being towed.

         ¶8 Officer Erickson transported Metz to the Missoula Police Department, where he applied for a search warrant to test Metz's blood. On the application for search warrant, Officer Erickson writes that "Bryan was reported as being 'passed out' in his running vehicle." Officer Erickson cited Metz for misdemeanor DUI and failure to carry proof or exhibit insurance.[1] Officer Erickson also completes an Affidavit of Probable Cause, where he again states that officers responded to a "report of a male 'passed out' in his running motor vehicle."

         ¶9 On April 18, 2017, Metz pled not guilty to the charges in the Missoula Municipal Court. On June 29, 2017, Metz filed a Motion to Suppress and Dismiss, alleging, in relevant part, that any evidence obtained should be suppressed due to a lack of particularized suspicion. On August 2, 2017, the Municipal Court held a hearing on the motion, where Officer Erickson testified and his body camera video was both viewed and entered into evidence. Officer Erickson testified that his job when making contact with Metz on the morning of the incident was to "identif[y] who this person we are out with is, and then let [medical personnel] do the medical assessment." Officer Erickson testified upon making initial contact with Metz that he had "suspicions of intoxication," but no indication of any medical problem. Officer Erickson, when asked what indications led to his particularized suspicion to continue with a DUI investigation, testified that Metz had breath that had a strong odor of alcohol; red, extremely bloodshot eyes; a dazed expression upon initial contact; and an empty alcoholic cup in the back of the car. Officer Erickson further testified that Metz admitted to drinking alcohol "the night prior, before parking his vehicle to sleep." On cross-examination, Officer Erickson-after watching the body camera video show him not mention any odor of alcohol to the other officers during their conversation about his observations of Metz after sending medical personnel away- testified that he "[didn't] recall" whether he mentioned the odor of alcohol to those officers or not. Officer Erickson further testified on cross-examination that, based on his observations of Metz, he did not wish to pursue a DUI investigation after this conversation with the other officers present. Officer Erickson also testified that, at that moment, Metz was not free to leave and was "detained for investigation."

         ¶10 After the hearing, the Municipal Court issued an Opinion and Order denying Metz's motion on August 15, 2017. On August 16, 2017, Metz pled nolo contendere to the DUI charge, and reserved his right to appeal the Municipal Court's denial of his Motion to Suppress and Dismiss to the District Court. After briefing by the parties, the District Court affirmed the Municipal Court's judgment on April 30, 2018. Metz appeals.


         ¶11 Upon Metz's appeal from Municipal Court, the District Court functioned as an intermediate appellate court. See §§ 3-5-303 and 3-6-110, MCA. When district courts function as intermediate appellate courts for appeals from lower courts of record, we review the appeal de novo as though it were originally filed in this Court. State v. Akers, 2017 MT 311, ¶ 9, 389 Mont. 531, 408 P.3d 142. We examine the record independently of the district court's decision, reviewing the lower court's findings of fact under the clearly erroneous standard, its discretionary ...

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