IN THE JUSTICE COURT OF ROSEBUD COUNTY

DEPARTMENT NO. TWO

BEFORE GAIL D. BECKHAM, JUSTICE OF THE PEACE

)

STATE OF MONTANA, ) CAUSE NO. 1357-HP/1358-HP

)

Plaintiff, ) SUPPLEMENTAL AUTHORITY

vs. ) TO STATE’S REPLY MEMORANDUM

) DATED MAY 9, 1995

SHIRL PITT, )

)

Defendant. )

)

465401. 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. In this case, an investigative stop was justified because the Defendant failed to come to a complete stop for the stop sign, and no further inquiry or justification for a stop is necessary or needed.

History: En. 95719 by Sec. 4, Ch. 513, L. 1973; amd. Sec. 8, Ch. 184, L. 1977; R.C.M. 1947, 95719(1) thru (3); amd. Sec. 42, Ch. 800, L. 1991.

Frisk: The term "frisk" is distinguished from the term "search" in that the objective of a search is to protect the officer, prevent escape, and obtain evidence while the objective of a frisk is the detection of concealed weapon in order to protect the officer. Under the new Stop and Frisk Law (MCA, sec. 465401, 465402) a peace officer may detain and frisk a person whom he believes may have been connected withthe commission of an offense or be of aid in investigation of an offense provided that the officer has reasonable cause to suspect the presence of a dangerous weapon. [But see 1991 amendments to these sections.]

Stop: The new Stop and Frisk statutes (MCA, 465401, 465402), allow a peace officer to detain a person for 30 minutes upon reasonable cause to suspect the person has committed an offense or may be of aid in the investigation of an offense. As defined in this subsection, a "stop" differs significantly from the term "arrest" which is a taking into custody (MCA, 466101). Attention is directed to MCA, 465401 and 465402, for analysis and case annotations to the Stop and Frisk Law. [But see 1991 amendments to these sections.]

Annotator's Note: The purpose of this section on use of force in resisting arrest is to change the commonlaw rule that an illegal arrest could be resisted lawfully. That rule encouraged resistance and breaches of the peace. This section requires submission to arrest. If the arrest is illegal (a determination which few citizens can make while being arrested), the arrestee should pursue civil and criminal remedies rather than resort to selfhelp. In applying this section a number of caveats are in order. First, the section has no application to persons fleeing from a possible arrest or from a stop under the new Stop and Frisk statute (MCA, 465401, 465402). Second, the arresting officer must identify himself to the arrestee. If the arrestee does notknow that the person making the arrest is authorized to do so, he may justifiably defend himself. Third, the section has been interpreted by the Illinois courts as not preventing an arrestee from protecting himself from unlawful and excessive force by the arresting officer. The wording for this section is identical to the Illinois source.

1991 Part Comments: The amendments to this part reflect case law. The statutes do not make any significant change in established procedure. Perhaps the most significant change in the stop and frisk provisions is the deletion of 1987 MCA 465401(2) and (3). The Commission noted that those subsections were repetitive and that they struck an unnecessary and confusing distinction between felony and misdemeanor offenses.

Uncorroborated Tip Not Basis for Particularized Suspicion for Traffic Stop: After the Lincoln County Sheriff's Office received a tip that Anderson would be traveling from Idaho to Montana with a large amount of marijuana, officers stopped Anderson's truck and conducted a patdown search of Anderson's passenger. After finding a marijuana pipe, the passenger was arrested, the vehicle was impounded, a warrant was obtained, and additional marijuana was discovered in the truck. Anderson was convicted of possession with intent to sell. The Supreme Court reversed, citing St. v. Gopher, 193 M 189, 631 P2d 293 (1981), and holding that the officers who stopped the truck had no particularized suspicion that Anderson was engaged in illegal activity. The tip received by the Sheriff's officecould not serve as the basis for the stop because anuncorroborated and unreliable tip is not the objective datacontemplated by the Gopher case. Because the initial stop wasunlawful, the Supreme Court ordered that all of the evidence seizedbe suppressed. St. v. Anderson, 258 M 510, 853 P2d 1245, 50 St.Rep. 637 (1993).

Vehicular Stop Based on Information From Flyer or Bulletin: Alaw enforcement officer may make a vehicular stop if the officerhas a reasonable suspicion, grounded in specific and articulablefacts, that a person was involved in or is wanted in connectionwith a completed felony. This suspicion may be based on informationobtained from a flyer or bulletin if the bulletin was issued on thebasis of articulable facts supporting a reasonable suspicion. St.v. Kills On Top, 243 M 56, 793 P2d 1273, 47 St. Rep. 984 (1990).See also U.S. v. Hensley, 469 US 221, 83 L Ed 2d 604, 105 S Ct 675(1985).

Inapplicability of Stop and Frisk Statutes: Where thedefendant in a criminal case was stopped by police and askedinvestigatory questions designed to identify him as a witness or asuspect and was not frisked or searched, the stop and friskstatutes did not apply. St. v. Graves, 191 M 81, 622 P2d 203, 38St. Rep. 9 (1981).

Hearsay Admissible to Establish Probable Cause: Testimony ofa police officer regarding a radio dispatch received regarding amotorcycle theft, introduced to establish the officer's probablecause for stopping the vehicle in which defendant was riding andsubsequently arresting him, was not hearsay in this context and wasproperly admitted. St. v. White, 185 M 213, 605 P2d 191 (1980).

Moving Vehicle: It is inconceivable how stop and frisk can beapplied to the stop of a defendant in a moving vehicle. St. v.Rader, 177 M 252, 581 P2d 437 (1978).

465402. Stop and frisk. A peace officer who has lawfullystopped a person under 465401 or this section:

(1) may frisk the person and take other reasonably necessarysteps for protection if the officer has reasonable cause to suspectthat the person is armed and presently dangerous to the officer oranother person present;

(2) may take possession of any object that is discoveredduring the course of the frisk if the officer has probable cause tobelieve the object is a deadly weapon;

(3) may demand the name and present address of the person; and

(4) shall inform the person, as promptly as possible under thecircumstances and in any case before questioning the person, thatthe officer is a peace officer, that the stop is not an arrest butrather a temporary detention for an investigation, and that uponcompletion of the investigation, the person will be released if notarrested.

465403. Duration of stop. A stop authorized by 465401 or466411 may not last longer than is necessary to effectuate thepurpose of the stop.

"Stop and Frisk" by Private Security Guard No Violation ofRight to Privacy: A "stop and frisk" action by a private securityguard taken to protect a hotel and its occupants againsttrespassers in the process of committing an offense was not aviolation of the right to privacy set forth in this section of theMontana Constitution when the security guard had a "reasonablesuspicion" that a crime was taking place. St. v. Bradford, 210 M130, 683 P2d 924, 41 St. Rep. 962 (1984).

When Duty of Law Enforcement Officer to Investigate OverridesIndividual Right of Privacy: When a trained and experienced officerhas a particularized suspicion that the occupant of a vehicle is orhas been engaged in criminal activity or is a witness thereto, thatofficer has a duty to investigate, and a limited and reasonableinvestigatory stop and search is justified. St. v. Morris, 230 M311, 749 P2d 1379, 45 St. Rep. 234 (1988); St. v. Gopher, 193 M189, 631 P2d 293, 38 St. Rep. 1078 (1981).

Stop and Frisk Procedure Applicable to Automobiles: Where,upon investigating a possible burglary, the investigating officerstopped a suspicious looking automobile and noticed what appearedto be stolen property in the back seat of the car, which was drivenoff at a high rate of speed in the middle of the investigation, theDistrict Court did not err in denying the defendant's motion tosuppress the stolen property recovered from the automobile. Thedictum in St. v. Rader, 177 M 252, 581 P2d 437 (1978), that stopand frisk principles do not apply to automobiles must be abandonedin light of the principle most recently announced in U.S. v.Cortez, 449 US 411, 66 L Ed 2d 621, 101 S Ct 690 (1981), that anassessment of whether a crime has been committed must be based uponall relevant circumstances and the evidence evaluated in light ofthe knowledge of a trained law enforcement officer. When a trainedpolice officer has a particularized suspicion that the occupant ofa vehicle is or has been engaged in criminal activity or is awitness thereto, a limited and reasonable investigatory stop andsearch is justified. St. v. Gopher, 193 M 189, 631 P2d 293, 38 St.Rep. 1078 (1981), followed in St. v. Lee, 232 M 105, 754 P2d 512,45 St. Rep. 903 (1988).

Stop and Frisk Procedure Applicable to Automobiles: Where, upon investigating a possible burglary, the investigating officer stopped a suspicious looking automobile and noticed what appearedto be stolen property in the back seat of the car, which was driven off at a high rate of speed in the middle of the investigation, the District Court did not err in denying the defendant's motion to suppress the stolen property recovered from the automobile. The dictum in St. v. Rader, 177 M 252, 581 P2d 437 (1978), that stop and frisk principles do not apply to automobiles must be abandoned in light of the principle most recently announced in U.S. v. Cortez, 449 US 411, 66 L Ed 2d 621, 101 S Ct 690 (1981), that 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 P2d 293, 38 St. Rep. 1078 (1981), followed in In re Blake, 220 M 27, 712 P2d 1338, 43 St. Rep. 143 (1986), St. v. Morris, 230 M 311, 749 P2d 1379, 45 St. Rep. 234 (1988), and St. v. Lee, 232 M 105, 754 P2d 512, 45 St. Rep. 903 (1988). See also Jess v. St., 255 M 254, 841 P2d 1137, 49 St. Rep. 951 (1992).

DUI Conviction Partially Based on Anonymous Tips Substantial Independent Evidence to Support Conviction: The District Court did not err in allowing evidence and argument on the contents of two anonymous phone calls reporting a speeding car when the vehicle description, license number, speed, and direction of travel were corroborated by police officers. These facts constituted reasonable suspicion justifying a stop which "ripened into probable cause to arrest for DUI" upon the officers'observations of the defendant's impaired motor functions, and they indicated substantial evidence independent of the anonymous tips to support the conviction. St. v. Shaffer, 227 M 221, 738 P2d 491, 44 St. Rep. 1029 (1987).

DATED this day of May, 1995.

LEE R. KERR

ROSEBUD COUNTY ATTORNEY