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State v. Anderson6/1/1993
Rehearing Denied June 23, 1993.
Submitted on Briefs December 17, 1992.
Defendant Robert Duane Anderson was convicted in the Nineteenth Judicial District, Lincoln County, of Criminal Possession of Dangerous Drugs with Intent to Sell in violation of § 45-9-103, MCA. Anderson appeals from the District Court's denial of his motion to suppress evidence obtained in the warrantless search of his vehicle. We reverse and remand.
The dispositive issue on appeal is:
Did the Lincoln County Sheriff's Department have a particularized suspicion to justify an investigative stop of the defendant's vehicle?
In the early afternoon on Tuesday, October 8, 1991, the Lincoln County Sheriff's Department received a tip that Robert Duane Anderson and another individual were leaving Libby, Montana, and driving to Washington to retrieve a large quantity of marijuana. The informant told Officer Don Bernall that Anderson and his fellow passenger would be traveling in Anderson's blue Toyota pickup and that they would be returning to Montana in the late night on October 8, 1991.
Officer Bernall discussed the tip with County Attorney Scott B. Spencer and they decided the tip should be confirmed before applying for a search warrant. They devised a stakeout strategy to verify the tip and to conduct further investigation. By approximately 6:00 p.m. on October 8, 1991, the plan was implemented.
The dispatcher at the Lincoln County Sheriff's Office directed Officers Doug Johnson and Klint Gassett to drive in two separate patrol cars to the Idaho-Montana border on U.S. Highway 2. Two other officers were directed to the Idaho-Montana state line on Highway 56. The officers were instructed to wait in their positions until they received a message from Officer Bernall that he had sighted Anderson's blue pickup, and once the pickup crossed the Idaho border into Montana, the officers were to stop it for further investigation.
Night fell, and in the early morning hours of October 9, 1991, Officer Bernall traveled west into Idaho on U.S. Highway 2, in an effort to locate Anderson's pickup. At about 1:20 a.m., Officer Bernall sighted a blue pickup traveling eastbound toward Montana. Officer Bernall alerted Officers Johnson and Gassett by radio that he had sighted what he believed to be Anderson's pickup. Officer Bernall instructed the two officers to verify the pickup's license plate by following it. Anderson passed the two patrol cars on Highway 2, just inside the Montana border. By following the pickup, the officers confirmed that the license plate was Anderson's.
Officer Gassett instructed Officer Johnson to conduct a traffic stop on Anderson's pickup. Officer Gassett testified at trial that although Anderson had not violated any traffic laws to initiate a traffic stop, the officers conducted such a stop nonetheless. Officer Johnson activated his red top lights and signaled to Anderson to pull to the side of the road. Anderson stopped his pickup.
Officer Johnson shined his spotlight on the pickup. Neither of the officers approached the stopped vehicle to ask the driver or passenger for a driver's license, proof of identification, or proof of insurance, despite not knowing Anderson or the passenger. The officers yelled to the men to get out of the pickup. Officer Gassett called the passenger Michael Hathaway. Michael Romine stepped out of the passenger's side of the pickup and walked into the ditch beside the highway. Officer Gassett pulled his gun and yelled at Romine to "get his hands up," and to come over to his patrol car. Romine complied and proceeded toward the officer as instructed.
When
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