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State v. Brander6/11/2004
Submitted on Briefs: March 16, 2004
On the Powell County side of McDonald Pass, Jerry Brander was arrested for driving under the influence of alcohol or drugs. He was subsequently charged with felony driving under the influence of alcohol or drugs; misdemeanor habitual traffic offender operating a motor vehicle; and misdemeanor careless driving. After entering a plea of not guilty, Brander moved the court to suppress evidence and to dismiss the charges. The District Court denied his motions. Pursuant to a plea agreement reserving his right to appeal the denial of the motions to suppress and dismiss, Brander changed his plea to guilty and was sentenced. Brander now appeals, claiming the District Court should have suppressed the evidence and dismissed the charges. We affirm.
Deputy Sheriff Roselles was in the Elliston area when he received a report from dispatch that it had received an anonymous tip of a drunk driver. The caller stated that Jerry Brander was driving drunk eastbound on his way to Stoner's (a bar on Highway 12) in a brown Isuzu pickup with a topper and license plate number 28T-142. Finding no such vehicle at Stoner's, Roselles continued east towards McDonald Pass. He soon encountered a dirty dark blue Isuzu pickup with a topper and license plate 28T-412, which was close to the description given by the anonymous caller. Roselles called dispatch to get an identification of the registered owner. He observed that the vehicle was moving slowly, at a rate of 30 to 35 mph in a 70 mph zone, and was meandering in its lane, swerving back and forth next to the fog line. It crossed the fog line, and swerved again, partially crossing into the other eastbound lane without signaling and then back into the right hand lane. As the vehicle was approaching the county line at the top of the pass, Roselles initiated a vehicle stop. Approaching the truck, he could see a number of cases of beer in the back end, both opened and unopened. Roselles ordered Brander out of the truck, and it soon became apparent from his odor and behavior that Brander was intoxicated. Brander failed several field sobriety tests and a Portable Breath Test (PBT) revealed a Blood Alcohol Content (BAC) of 0.288. He was then arrested.
We review a district court's denial of a motion to suppress evidence to determine whether the court's finding that the officer had particularized suspicion to justify the investigative stop is clearly erroneous. State v. Nelson , 2004 MT 13, 5, 319 Mont. 250, 5, 84 P.3d 25, 5.
The "reasonable grounds" standard for making an investigative stop under § 61-8403(4)(a)(i), MCA, is the effective equivalent of the "particularized suspicion" test for an investigative stop under § 46-5-401, MCA. Grindeland v. State, 2001 MT 196, 10, 306 Mont. 262, 10, 32 P.3d 767, 10.
Brander argues that Deputy Roselles could not justify an investigative stop on the basis of the information provided by the anonymous caller because the information did not meet the three-part test established in State v. Pratt (1997), 286 Mont. 156, 951 P.2d 37. The Pratt test is used to evaluate the existence of a particularized suspicion to justify an investigative stop pursuant to a tip. The first factor is whether the informant remains anonymous, or through identification, subjects herself to civil and criminal liability. The second factor is whether the report is based on personal observations. The third factor is whether the officer's own observations corroborate the informant's information. Brander contends that the informant did not identify herself, that there is no evidence that she was relying on information based on her personal observations, and that Roselles did not fi
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