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State v. Zakovi4/12/2005
under the circumstances and in any case before questioning the person, that the officer is a peace officer, that the stop is not an arrest but rather a temporary detention for an investigation, and that upon completion of the investigation, the person will be released if not arrested. [Emphasis added.]
Section 46-5-401(1), MCA (2001), provides:
Investigative stop and frisk. In order to obtain or verify an account of the person's presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.
We first note that Zakovi's argument is premised on the incorrect assumption that police are required to give the investigative stop advisory whenever they have particularized suspicion that a crime has been committed or initiate a seizure. To the contrary, § 45-5-402(4), MCA (2001), requires an officer to provide the investigative stop advisory only when making an investigative stop upon observing the circumstances that create a particularized suspicion. That did not occur here.
Officer Cohenour's initial contact with Zakovi was made after the officer was called to the scene of a reported accident. He did not stop Zakovi after observing him in "circumstances that create a particularized suspicion" that Zakovi had committed, or was committing, a crime. Section 46-5-401(1), MCA (2001). Indeed, Zakovi was already stopped. Upon Officer Cohenour's arrival at the scene, Zakovi was under the control of emergency personnel and was being loaded into an ambulance for transport to St. Peter's. After Zakovi was taken from the scene, Officer Cohenour completed his investigation of the scene and proceeded to St. Peter's to continue his inquiry of Zakovi. Again, at the hospital, Zakovi was under the care and control of hospital personnel who had placed him in a trauma room to be treated for his injuries. Officer Cohenour testified that his practice is to ask a doctor or nurse for permission before entering a hospital room to question an accident victim, as he considers himself a guest of the hospital, regardless of his duties as an investigating officer. Thus, again, Officer Cohenour initiated no "stop" of Zakovi at the hospital for purposes of the investigative stop advisory statute.
We therefore conclude that Officer Cohenour's questioning and administration of field sobriety tests at the accident scene and at the hospital did not constitute an investigative stop that triggered the investigative stop advisory under § 46-5-402(4), MCA (2001), and the District Court properly denied this motion.
Did the District Court abuse its discretion when it denied Zakovi's motion in limine which challenged the officer's administration of an HGN test?
Zakovi argues that the District Court abused its discretion when it denied his motion in limine and admitted the HGN results from Officer Cohenour's testing. He notes that Officer Cohenour deviated from the standard four second interval requirements established by the National Highway Traffic Safety Administration in its DWI Detection and Standardized Field Sobriety Training Manual (DWI Manual), which compromised the test result's validity. He notes that the DWI Manual provides that an HGN test is only valid when "administered in the prescribed, standardized manner; . . . if any one of the standardized field sobriety test elements is changed, the validity is compromised." DWI Manual, p. 12 (emphasis omitted). Therefore, Zakovi claims the test results were unreliable and required e
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