State v. Van Kirk9/6/2001
and Article II, Section 11, of the Montana State Constitution protect against unreasonable searches and seizures, including brief investigatory stops of vehicles. State v. Elison, 2000 MT 288, 15, 302 Mont. 228, 15, 14 P.3d 456, 15.
Montana peace officers, however, are authorized to initiate an investigatory stop of any vehicle observed in circumstances that create a particularized suspicion that an occupant of the vehicle has committed or is committing a criminal offense. State v. Halvorson, 2000 MT 56, 8, 299 Mont. 1, 8, 997 P.2d 751, 8.
The requirement that a particularized suspicion be found in order to justify an investigatory stop of a vehicle is codified in a Montana statute:
Investigative stop. 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. Section 46-5-401, MCA.
Particularized suspicion does not require that an officer possess proof beyond a reasonable doubt that a crime has been, is, or is about to be committed before initiating an investigative stop. Hatler, 11.
Particularized suspicion is quantitatively different and less stringent than probable cause to arrest or conduct a search. State v. Williamson, 1998 MT 199, 12, 290 Mont. 321, 12, 965 P.2d 231, 12.
In order to show sufficient cause to stop a vehicle, the burden is on the State to show (1) objective data from which an experienced police officer can make certain inferences, and (2) a resulting suspicion that an occupant of a vehicle is or has been engaged in wrongdoing or was a witness to criminal activity. State v. Gilder, 1999 MT 207, 10, 295 Mont. 483, 10, 985 P.2d 147, 10.
The gravamen of the particularized suspicion standard is that the totality of the circumstances confronting the officer at the time of the investigative stop must give rise to a particularized and objective basis for suspecting criminal activity. Halvorson, 9.
In evaluating the totality of the circumstances, this Court considers the quantity, or content, and quality, or degree of reliability, of the information available to the officer at the time of the investigatory stop. Gilder, 11.
Here, Van Kirk first drew suspicion by pulling into and then immediately pulling back out of a parking lot after spotting Officer Kelly's patrol car. It appeared to Officer Kelly that the driver of the vehicle wanted to get quickly away from him, so he decided to follow and observe this vehicle. While following Van Kirk's vehicle, Officer Kelly observed that, even though the speed limit was twenty-five mph, Van Kirk was going only seven to ten mph. Officer Kelly also observed Van Kirk's vehicle meandering from the edge of the roadway to the center of the roadway and across it several times. On at least one occasion, Van Kirk's vehicle would have impeded any oncoming traffic. Based on this erratic driving and slow speed, Officer Kelly decided to initiate a traffic stop.
Van Kirk argues that these facts are analogous to those in State v. Lafferty, 1998 MT 247, 291 Mont. 157, 967 P.2d 363, where this Court concluded there were insufficient facts to support a particularized suspicion. We disagree. In Lafferty, the officer observed Lafferty driving across the fog line twice, and upon it once. Lafferty, 13.
Here, Van Kirk's crossing over the edge of the road was only one of several facts giving rise to Officer Kelly's part
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