LEE R. KERR

ROSEBUD COUNTY ATTORNEY

Rosebud County Courthouse

P.O. Box 69

Forsyth, MT 59327

(406) 356-2236

Attorney for State of Montana

MONTANA SIXTEENTH JUDICIAL DISTRICT COURT, ROSEBUD COUNTY

)

STATE OF MONTANA, ) CAUSE NO. DC 95-16

)

Plaintiff, ) JUDGE JOE L. HEGEL

vs. )

) STATE’S BRIEF IN OPPOSITION

CHERIE STOKEN, ) TO DEFENDANT’S MOTION TO

) SUPPRESS

Defendant. )

)

STATEMENT OF FACTS

On March 26, 1995, at approximately 8:52 a.m., Dispatcher Marsha Orr, from the Custer County Sheriff's Department, received information from a Crimestopper's tip regarding a vehicle that would be transporting dangerous drugs to Hathaway, Montana.

The Crimestopper's caller advised dispatcher, Marsha Orr, that the Defendant, Cherie Stoken, of 210 Arrowhead Lane, #E4, Miles City, Montana, would be transporting pot in a grey Dodge hatchback with Montana license 14-4571A. The marijuana was believed to be in a small blue or grey bag. The Crimestopper's caller described Cherie Stoken, the Defendant, as being approximately five foot seven inches tall, 120 pounds, and dark hair. Further, Stoken was supposed todeliver the marijuana to someone in another vehicle, at Hathaway, Montana.

Lieutenant Blair Martenson drove to 210 Arrowhead Lane, Apartment #E4 and verified the vehicle information that the Crimestopper's called had given. Dispatcher, Marsha Orr, confirmed the vehicle information the Crimestopper's caller had given. The vehicle was determined to be a 1984 Dodge Omni, four door, grey in color, registered to the Defendant, Cherie Stoken.

At approximately 9:10 a.m., Billings Patrol dispatch called Montana Highway Patrolman, Jeff Sorensen, and informed him of the situation. Officer Sorensen left his house at 9:20 a.m. and drove towards Hathaway.

At approximately 9:48 a.m., the Crimestoppers' caller called back to say that Cherie Stoken had just left. Lieutenant Martenson then followed the suspect vehicle west on I-94 towards Hathaway.

Officer Sorensen was set up and waiting by this time at mile marker 121 on I-94 at 9:59 and at about 10:03 a.m., the suspect vehicle went by Officer Sorensen. Officer Sorensen then started to follow the vehicle and was advised that Deputy Ron Bromley was approximately three miles west of him. Deputy Bromley went on to Hathaway to find a pick-up vehicle waiting there, driven by Leslie Ray Blackman. In the meantime Officer Jeff Sorensen stopped the Defendant, Cherie Stoken, at approximately 10:04 a.m. at mile marker 119. Officers also had information and belief that the Defendant’smaiden name was Blackman, corroborating the tip that the Defendant was to meet someone. Arriving shortly thereafter was Lieutenant Blair Martenson, drug task force agent from Miles City to assist.

Passengers in the vehicle with the Defendant, were her two children. Officer Sorensen informed the Defendant why he had stopped her. He told her that they had received a tip that she was transporting some marijuana. Officer Sorensen read a consent to search form and the Miranda warning rights to her, and asked her if he could search her vehicle. The Defendant said "no" to the request. Officer Sorensen advised her that they were going to impound her vehicle and that they were going to apply for a search warrant on the vehicle. At that time the vehicle was towed to the Rosebud County impound lot. Lieutenant Blair Martenson, Eastern Montana Drug Task Force, applied for a search warrant through Justice Court in Colstrip, Montana, and was granted one the same day.

At approximately 1:29 p.m., the warrant was issued and was served on Ms. Stoken, the Defendant. Lieutenant Martenson, Deputy Bromley, and Officer Sorensen then searched the vehicle. Officer Blair Martenson found a blue denim bag under the front seat of the vehicle. Inside the bag were three plastic bags, containing marijuana, one small plastic bag containing methamphetamine powder, and a small plastic bag containing two rainbow colored pieces of paper and a pipe screen.

“THE STOP”

In 1968, the United States Supreme Court recognized that a police officer may stop an individual to investigate possible criminal behavior even though there is no probable cause to make an arrest. Terry v. Ohio (1968), 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906-07. The Supreme Court also recognized, however, that the Fourth Amendment applies to seizures of the person, Terry, 392 U.S. at 9, 88 S.Ct. At 1873, and investigatory stops such as the stop of Stoken’s vehicle. United States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621, 628. In Terry, the Supreme Court held that an unparticularized suspicion or “hunch” is not sufficient cause to stop and frisk a person, and that an investigatory stop and frisk will be justified only when it is based on specific, articulable facts from which the officer could reasonably infer that the individual is engaged in criminal activity and is armed and dangerous. Terry, 392 U.S. 1, 88 S.Ct. 1868. In this case, the corroborated informant’s tip reasonable inferred the Defendant Stoken was engaged in criminal activity.

In Cortez, a post-Terry decision regarding investigative stops, the United States Supreme Court recognized that terms like “articulable reasons” and “founded suspicions”, referred to by courts in cases such as Terry, are not self-defining, and that further guidance was necessary to know when an officer has sufficient cause to make an investigatory stop. Cortez, 449 U.S. at 417, 101 S.Ct. at 694-95.

In Cortez, the Supreme Court held that to justify an investigative stop of a vehicle, detaining officers must have a particularized suspicion comprised of (1) objective data and circumstantial evidence from which an experienced officer can make inferences, and (2) a resulting suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing. Cortez, 449 U.S. at 418, 101 S.Ct. at 695.

The Montana Supreme Court has clarified when duty of law enforcement officer to investigate overrides the individual right of privacy. When a trained and experienced officer has a particularized suspicion that the occupant of a vehicle is or has been engaged in criminal activity or is a witness thereto, that officer has a duty to investigate, and a limited and reasonable investigatory stop and search is justified. St. v. Morris, 230 M 311, 749 P.2d 1379, 45 St. Rep. 234 (1988); St. v. Gopher, 193 M 189, 631 P.2d 293, 38 St. Rep. 1078 (1981).

In U.S. v. Cortez, 449 US 411, 66 L Ed 2d 621, 101 S Ct 690 (1981), an assessment of whether a crime has been committed must be based upon all relevant circumstances and the evidence evaluated in light of the knowledge of a trained law enforcement officer. When a trained police officer has a particularized suspicion that the occupant of a vehicle is or has been engaged in criminal activity or is a witness thereto, a limited and reasonable investigatory stop and search is justified. St. v. Gopher, 193 M 189, 631 P.2d 293, 38 St. Rep. 1078 (1981), followed in In re Blake, 220 M 27, 712 P.2d 1338,43 St. Rep. 143 (1986), St. v. Morris, 230 M 311, 749 P.2d 1379, 45 St. Rep. 234 (1988), and St. v. Lee, 232 M 105, 754 P.2d 512, 45 St. Rep. 903 (1988). See also Jess v. St., 255 M 254, 841 P.2d 1137, 49 St. Rep. 951 (1992).

In 1991, the Montana Legislature amended the investigative stop statute to reflect the particularized suspicion standard set forth in Gopher. Section 46-5-401, M.C.A., provides:

“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.”

[1] Both Cortez and Gopher are clear that objective data must form the basis of the officer’s particularized suspicion before a stop is valid. Objective data may be based on “various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers.” Cortez, 449 U.S. at 418, 101 S.Ct. at 695. From objective data, a trained officer draws inferences and makes deductions that lead the officer to a resulting suspicion that the individual is involved in criminal activity. Gopher, 193 Mont. at 192, 631 P.2d at 295 (citing Cortez, 449 U.S. At 418, 101 S.Ct. at 695).

In this case the informant’s tip served as a sufficient basis to justify the stop of Stoken’s vehicle. Adams v. Williams (1972), 407 U.S. 143, 92 S.Ct. 1921, 32L.Ed.2d 612, and State v. Sharp (1985), 217 Mont. 40, 702 P.2d 959, are two cases in which an informant’s tip served as the initial basis for an investigative stop. The informant’s tip in the present case did give rise to a particularized suspicion of criminal activity.

In Adams, the police officer was acting on a tip supplied moments earlier by an informant, and the United States Supreme Court held that the informant’s tip had sufficient indicia of reliability to justify the officer’s stop. Adams, 407 U.S. at 147, 92 S.Ct. at 1924.

Police are authorized to stop a vehicle when they have a particularized or reasonable suspicion that criminal activity may be afoot. This is the controlling rule as clearly stated in State v. Sharp (1985), 217 Mont. 40, 702 P.2d 959:

The defendant alleges that Officer Williams was without authority to stop the defendant’s vehicle because he lacked probable cause to do so. This contention is erroneous. All that is required of an officer in making an investigatory stop is that he have a “particularized” or “reasonable” suspicion that criminal activity may be afoot. This is the applicable standard for an investigative stop of a vehicle; or in other words “some basis from which the court can determine that the detention was not arbitrary or harassing.” State v. Gopher (Mont. 1981), 631 P.2d 293, 295, 38 St.Rep. 1078, 1081, relying on United States v. Cortez (1981), 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621.

Sharp, 217 Mont. at 45, 702 P.2d at 962.

In Sharp, a citizen informer had just called the police to report a possible DUI offense and the informant provided the police with information to find the vehicle. The police officer corroborated the informant’s tip with his ownobservations at the scene. He noticed the defendant’s vehicle stopped halfway in the road, saw attendant skid marks near the car, and observed the vehicle pulling away from him when he arrived. The court held that based on the informant’s tip and the officer’s observations at the scene which corroborated the tip, the officer had a particularized suspicion sufficient to stop the vehicle to investigate a possible crime. Sharp, 217 Mont. At 45-46, 702 P.2d at 962.

THE INVESTIGATORY DETENTION

Information from an informant that exhibits sufficient indicia of reliability may provide reasonable suspicion to conduct an investigatory detention. See Alabama v. White, 496 U.S. 325, 326-27 (1990) (officers had reasonable suspicion to stop person after anonymous informant correctly described detainee’s vehicle, time of departure, and destination); U.S. v. Salazar, 945 F.2d 47, 50-51 (2d Cir. 1991) (officer had reasonable suspicion to stop and frisk person when suspect was in apartment identified by informant as used for drug operation, matched informant’s description of height, coloring, gender, and ethnicity, and appeared nervous), cert. denied, 112 S.Ct. 1975 (1992); U.S. v. Cox, 942 F.2d 1282, 1285 (8th Cir. 1991) (officer had reasonable suspicion to stop suspect when standing next to car that matched informant’s description of car, location, and license plat number), cert. denied, 112 S.Ct. 1298 (1992).

In Alabama v. White, 496 U.S. 325 (1990), the Supreme Court held that police may demonstrate the reliabilityof an informant’s tip on a sliding scale: greater corroboration will verify a tip from an informant of uncertain or unknown trustworthiness, Id. at 330-32 (tip sufficiently reliable despite lack of information about anonymous informant’s trustworthiness when police corroborated tip concerning detainee’s vehicle, destination, and time of departure). Compare U.S. v. Rodriquez, 835 F.2d 1090, 1092-93 (5th Cir. 1988)(corroboration of location, description, and license number of truck given by anonymous informant and observation of suspicious activity provided reasonable suspicion to stop truck); U.S. v. Adbayo, 985 F.2d 1333, 1340 (7th Cir.) (corroboration of anonymous tip regarding name, physical appearance, and travel schedule of suspect as well as suspect’s nervous behavior, claim to not having airline ticket, and suspicious exchange of eye contact with fellow passenger provided reasonable suspicion to detain), cert. denied, 113 S.Ct. 2947 (1993); U.S. v. Cox, 942 F.2d 1282, 1285 (8th Cir. 1991) (corroboration of description given in anonymous tip describing type of vehicle, location, and license plate number provided reasonable suspicion to detain suspect when standing next to stopped vehicle) cert. denied, 112 S.Ct. 1298 (1992); U.S. v. Alvarez, 899 F.2d 833, 837 (9th Cir. 1990) (corroboration of anonymous tip describing detainee and type and location of vehicle provided reasonable suspicion to stop vehicle), cert. denied, 498 U.S. 1024 (1991) and U.S. v. Beale, 921 F.2d 1412, 1431 (11thCir.)(corroboration of anonymous telephone tip of suspicious activity in restaurant parking lot where spate of burglaries occurred combined with suspect’s evasive behavior and possession of weapon provided reasonable suspicion), cert. denied, 112 S.Ct. 99 (1991) with U.S. v. Jones, 998 F.2d 883, 886 (10th Cir. 1993)(no reasonable suspicion to stop based on tip from unknown informant and no police corroboration). The Eighth Circuit has held that the degree of reliability required of hearsay information used to justify an investigative detention is less than that needed to justify an arrest. U.S. v. McBride, 801 F.2d 1045, 1047 (8th Cir. 1986)(anonymous tip alone may establish reasonable suspicion for investigatory detention when informant has firsthand knowledge), cert. denied, 479 U.S. 1100 (1987).

In United States v. Sharpe, 470 U.S. 675 (1985), the Supreme Court held that a twenty-minute detention was reasonable because the police acted diligently in investigating the detainee. Id. at 687-88. The Court rejected the argument that the failure to use less intrusive investigatory means rendered the stop per se unreasonable, Sharpe, 470 U.S. at 687. In Sharpe, the Court cautioned that “a court making [the] assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing.” Id. at 686; and suggested that an extended detention may be justified when the detainee’s own actions contribute to the duration of the stop. See Sharpe, 470 U.S. at 687-88. In this case, officers acted promptly and detained the vehicle no longer than was necessary to obtain a Search Warrant.

As with personal detentions, the reasonableness of a property detention depends upon police diligence in conducting the investigation quickly, the duration of the seizure, and whether the objects were transported by the police to a different location from where they were originally seized. U.S. v. Frost, 999 F.2d 737, 741 (3d Cir.) (80-minute detention of suitcase for sniff test reasonable when police acted diligently), cert. denied, 114 S.Ct. 573 (1993).

THE VEHICLE SEARCH

The Fourth Amendment does not require that the police obtain a warrant to search an automobile when they have probable cause to believe that it contains contraband or evidence of criminal activity. Two separate rationales underlie the “automobile exception” to the warrant requirement. First, the inherent mobility of vehicles often creates exigent circumstances that make obtaining a warrant impractical. See U.S. v. Chadwick, 433 U.S. 1, 12 (1977) (automobile exception partially based on impracticality of obtaining warrant given “inherent mobility” of vehicles); Carroll, 267 U.S. at 153 (warrantless search of vehicle valid because securing warrant impractical when vehicle readily removable from jurisdiction). Second, the “configuration, use, and regulation of automobiles” tend to diminish the reasonable expectation of privacy attendant to other forms of private property. Sanders, 442 U.S. at 761: See Class, 475 U.S. at 112-13 (lessened expectation of privacy in automobile because of physical characteristics and pervasive regulation of moving vehicles).

Vehicle searches performed after exigent circumstances have lapsed are valid as long as the police could have legitimatelysearched the automobile at some point. In Chambers v. Maroney, 399 U.S. 42 (1970), the Supreme Court approved the warrantless seizure and subsequent search of a car at a police station because exigent circumstances existing at the time of the stop would have justified an immediate search. Id. at 52 & n.10 (search of car after its removal to police station reasonable when probable cause and exigent circumstances existed immediately after defendants arrested, but darkness in parking lot precluded search. In Florida v. Meyers, 466 U.S. 380 (1984)(per curiam), the Court upheld the warrantless search of an impounded car that had already been subject to a legitimate inventory search. Id. at 382; cf. Michigan v. Thomas. Detention of the automobile may be reasonable if the police decide to obtain a warrant before searching an automobile, even though they also have probable cause. See U.S. v. Kimberlin, 805 F.2d 210, 229 (7th Cir. 1986) cert. denied, 483 U.S. 1023 (1987).

CONCLUSION

In this case, officers obtained a Search Warrant when they had probable cause to search the vehicle, and the State should not now be penalized by application of the exclusionary rule for a 2 « hour reasonable delay in obtaining a warrant, in cautious consideration of the Defendant’s constitutional rights.

DATED this day of June, 1995.

LEE R. KERR

ROSEBUD COUNTY ATTORNEY