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State v. Wagner4/29/2003
Submitted on Briefs: October 10, 2002
Following an arrest for driving under the influence of alcohol, Appellant Judd Wagner moved the Broadwater County Justice Court to dismiss the charge based on the arresting officer's lack of particularized suspicion to initiate an investigative stop. Wagner asserted that the officer failed to sufficiently corroborate a citizen informant's report. Wagner simultaneously filed a petition for reinstatement of his driver's license with the First Judicial District Court, Broadwater County, under the same theory. The Justice Court denied Wagner's motion and Wagner entered a guilty plea subject to his right to appeal the denial. The District Court denied Wagner's petition for reinstatement and dismissed his subsequent appeal from Justice Court under the theory of res judicata. Wagner filed independent appeals from each proceeding. We have consolidated the cases on appeal and affirm the judgment of the District Court.
Wagner presents three issues on appeal. We rephrase the sole dispositive issue as whether Officer Janes' encounter with Wagner at the pay phone constituted an investigative stop.
BACKGROUND
At approximately 11:00 a.m. on June 17, 2001, motorist Darwin Belcourt witnessed a red Ford Probe, bearing Montana license plate number 5A30553, traveling west on Interstate 90, near Belgrade, Montana, drive off of the road in a construction zone, return to the road, and then proceed to travel west in an erratic manner. Belcourt followed the vehicle for approximately twenty miles to a Town Pump at the junction of Interstate 90 and U.S. 287 near Three Forks, Montana. Belcourt noted that a lone male occupant exited the vehicle and staggered into the building. Using a cell phone, Belcourt phoned 911 to report his observations. Belcourt remained at the Town Pump until law enforcement arrived.
The 911 operator conveyed the report to Montana Highway Patrol Officers Cal Janes, Jim Hunter, and Mike Swingley at approximately 11:18 a.m. Officer Janes arrived at the Town Pump around 11:38 a.m. and Officers Hunter and Swingley arrived shortly thereafter. Upon his arrival, Officer Janes identified an unoccupied vehicle matching the description and license plate number of the vehicle reported by Belcourt. Officer Janes remained outside to establish contact with Belcourt while Officer Hunter and Sergeant Swingley proceeded inside. A short time later, Officer Janes joined Hunter and Swingley.
Once inside, the officers observed a lone male talking on a pay phone. The officers also noted that the male "continually swayed" as he stood at the phone. The officers initiated contact with the individual, later determined to be Wagner, and immediately discerned an odor of alcohol emanating from Wagner's person. The officers requested that Wagner speak with them outside and Wagner complied. As the parties proceeded to the patrol cars, Officer Janes observed Wagner's staggering gait. Further, Wagner voluntarily apologized to Officer Janes and admitted that he should not have proceeded to drive given his prior consumption of alcohol.
At the patrol car, Wagner performed poorly on the horizontal gaze nystagmus test, incorrectly recited the alphabet, and admitted several times that he was intoxicated. Officer Janes read Wagner the preliminary breath test implied consent form but Wagner declined to submit a breath sample for analysis. Officer Janes subsequently transported Wagner to the Broadwater County Sheriff's Office where Wagner refused to perform any field sobriety tests or provide a breath sample. Officer Janes seized Wagner's driver's license and cited him for driving under the influence of alcohol, second
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