                                                                                               09/21/2021


                                           DA 20-0079
                                                                                           Case Number: DA 20-0079

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2021 MT 242N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

CODY R. SACKS,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twenty-First Judicial District,
                        In and For the County of Ravalli, Cause No. DC 19-47
                        Honorable Jennifer B. Lint, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Peter F. Lacny, Datsopoulos, MacDonald & Lind, P.C., Missoula, Montana

                For Appellee:

                        Austin Knudsen, Montana Attorney General, Damon Martin, Assistant
                        Attorney General, Helena, Montana

                        William E. Fulbright, Ravalli County Attorney, William Lower, Deputy
                        County Attorney, Hamilton, Montana



                                                    Submitted on Briefs: August 18, 2021

                                                                Decided: September 21, 2021


Filed:

                                  oe,,6tA- -if
                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1        Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2        Cody R. Sacks appeals from a December 24, 2019 judgment of the Twenty-First

Judicial District Court, Ravalli County, following his guilty plea to aggravated DUI and

from the court’s August 29, 2019 opinion and order denying his motion to suppress. We

affirm.

¶3        On September 2, 2018, at around 11:15 p.m., Ravalli County Sheriff’s Deputy Jason

Liechty observed Sacks leaving a bar located on U.S. Highway 93 in Victor, Montana.

Liechty observed Sacks stumbling and tripping on his way to his vehicle. Liechty then

followed Sacks as he drove north on Highway 93. After pulling into the left lane to read

Sacks’s license plate, Liechty observed Sacks signal to turn left. Dispatch informed

Liechty Sacks did not have valid insurance.

¶4        Deputy Liechty pulled Sacks over after the turn. Liechty noted Sacks’s difficulty

opening his electric window, red and bloodshot eyes, and the strong odor of alcohol.

Liechty informed Sacks the reason for the stop was driving without insurance. When

Liechty questioned Sacks about where he was going and where he had come from, Sacks

informed Liechty he was headed home from Cowboy Troy’s bar. The subsequent DUI


                                              2
investigation included a Standardized Field Sobriety Test during which Sacks

demonstrated multiple indicators of impairment and a BrAC of 0.298.

¶5     Sacks was arrested and charged with aggravated DUI under § 61-8-465, MCA, and

for failing to carry valid insurance under § 61-6-301, MCA.

¶6     On February 14, 2019, Sacks filed a motion to suppress and to dismiss the case

against him in Justice Court. Sacks claimed the evidence was obtained during an illegal

seizure in violation of his Fourth and Fourteenth Amendment rights and should be

excluded. Sacks disputed Deputy Liechty’s bases for particularized suspicion for the stop,

claiming Liechty’s sole basis was the report of no insurance obtained from the Montana

Insurance Verification System (MTIVS). In his motion before the Justice Court, Sacks

argued the stop was illegal because the MTIVS system is inherently unreliable, and Sacks

was able to prove he had valid insurance.

¶7     On March 12, 2019, the Justice Court issued an order denying Sacks’s motion to

suppress and dismiss. The Justice Court found Deputy Liechty had probable cause for the

stop, that Sacks could have corrected the error regarding his insurance coverage by carrying

a valid insurance card in his vehicle, and concluded the court was unable to verify Sacks’s

insurance coverage on the exhibits submitted due to discrepancies.

¶8     On March 22, 2019, the Justice Court held a bench trial. The court found Sacks

guilty of aggravated DUI and not guilty of driving without insurance. Deputy Liechty

testified at trial, and the Justice Court noted Sacks was pulled over after Liechty observed

him “staggering to [his] vehicle” and then driving. The State stipulated to Sacks’s

declaration of insurance.

                                             3
¶9     On March 22, 2019, Sacks filed a notice of appeal and request to stay sentencing.

The matter was transferred to the District Court.

¶10    On April 22, 2019, Sacks filed a motion to suppress, again arguing the traffic stop

was illegal as its sole basis was the report of no insurance by the MTIVS system. In support

of his motion, Sacks cited § 61-6-309(3), MCA, which prohibits law enforcement from

using the insurance verification system to stop a driver without reasonable cause for

another traffic violation.

¶11    On August 23, 2019, the District Court held an evidentiary hearing on the motion

to suppress. The District Court reviewed the body and dash cam videos submitted into

evidence by Sacks and heard testimony from Deputy Liechty and an expert witness called

by Sacks. Sacks’s expert witness, Richard Hader, was a retired state trooper with 21 years

of law enforcement experience. Hader testified he would have acted similarly to Liechty

given identical circumstances, though he stated he would have informed the driver of the

additional reasons for the stop. The District Court found both Liechty’s and Hader’s

testimony credible. The District Court also confirmed Liechty’s body cam video showed

Liechty stated lack of insurance as the reason for the stop.

¶12    In its August 29, 2019 opinion and order denying Sacks’s motion, the District Court

held Deputy Liechty had reasonable cause to believe Sacks was committing the offense of

DUI and that Liechty did not conduct the stop in violation of § 61-6-309(3), MCA. The

District Court noted the only reason for the stop Liechty stated to Sacks was Sacks’s lack

of insurance. However, the court held there was no legal requirement for Liechty to inform

Sacks of every reason for the stop and that Liechty had already formed particularized

                                             4
suspicion Sacks was driving while intoxicated before he received the report about Sacks’s

insurance.

¶13   On November 7, 2019, Sacks entered a recommended sentence plea agreement upon

which he pleaded guilty to the charge of aggravated DUI. Sacks reserved the right to appeal

the District Court’s decision on his motion to suppress and dismiss.

¶14   On December 24, 2019, the District Court accepted Sacks’s guilty plea and entered

a judgment convicting Sacks of aggravated DUI.

¶15   On appeal, Sacks argues the District Court erred in denying his motion to suppress

because its findings of particularized suspicion are unsupported by evidence in the record.

Sacks disputes the credibility of Liechty’s testimony and claims the District Court’s

findings are based on Liechty’s “post hoc rationalizations.” Sacks argues the video

evidence supports his claim that Liechty’s sole basis for the stop was the MTIVS report of

no insurance, thereby making the stop illegal. As a result, Sacks maintains all evidence

from the subsequent DUI investigation should be excluded.

¶16   We have previously articulated the applicable standards of review as follows:

      We review a lower court’s denial of a motion to suppress to determine
      whether the court’s findings are clearly erroneous and whether those findings
      were applied correctly as a matter of law. A lower court’s finding that
      particularized suspicion exists is a question of fact which we review for clear
      error. A finding is clearly erroneous if it is not supported by substantial
      evidence, if the lower court has misapprehended the effect of the evidence,
      or if our review of the record leaves us with the firm conviction that a mistake
      has been made.

City of Missoula v. Metz, 2019 MT 264, ¶ 12, 397 Mont. 467, 451 P.3d 530 (internal
citations omitted).



                                             5
¶17    Individuals are protected from unreasonable searches and seizures by both the

United States Constitution and the Montana Constitution. U.S. Const. amend. IV; Mont.

Const. art. II, § 11. “These protections apply to investigative stops of vehicles.” State v.

Cooper, 2010 MT 11, ¶ 7, 355 Mont. 80, 224 P.3d 636 (citing State v. Gopher, 193 Mont.

189, 194, 631 P.2d 293, 296 (1981)). “To justify a traffic stop, law enforcement must have

a particularized suspicion that the occupant of the vehicle is committing, has committed,

or will commit an offense.” State v. Reeves, 2019 MT 151, ¶ 7, 396 Mont. 230, 444 P.3d

394 (citing § 46-5-401(1), MCA); see also State v. Pratt, 286 Mont. 156, 161, 951 P.2d 37,

40 (1997).

¶18    “[F]or a peace officer to have particularized suspicion or reasonable grounds for an

investigatory stop, the peace officer must be possessed of: (1) objective data and articulable

facts from which he or she can make certain reasonable inferences; and (2) a resulting

suspicion that the person to be stopped has committed, is committing, or is about to commit

an offense.” Brown v. State, 2009 MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842.

¶19    Whether particularized suspicion exists is a question of fact that depends on the

totality of the circumstances. Weer v. State, 2010 MT 232, ¶ 10, 358 Mont. 130, 244 P.3d

311 (citing State v. Gilder, 1999 MT 207, ¶ 11, 295 Mont. 483, 985 P.2d 147). Objective

data must give rise to a resulting suspicion an offense has been, is being, or is about to be

committed. State v. Reynolds, 272 Mont. 46, 51, 899 P.2d 540, 543 (1995). The question

is not whether any one of a driver’s behaviors was itself illegal, but whether the officer

“could point to specific and articulable facts which, taken together with rational inferences

from those facts, reasonably warrant the intrusion.” State v. Brander, 2004 MT 150, ¶ 6,

                                              6
321 Mont. 484, 92 P.3d 1173. Some of the factors this Court has previously considered

under totality of the circumstances are the time of day, the location of the stop, and the

petitioner’s driving behavior. Weer, ¶ 10 (citing Jess v. State ex rel. Records & Driver

Control, 2008 MT 422, ¶¶ 14-15, 347 Mont. 381, 198 P.3d 306; Widdicombe v. State ex rel.

Lafond, 2004 MT 49, ¶¶ 13-14, 320 Mont. 133, 85 P.3d 1271; Morris v. State, 2001 MT 13,

¶¶ 9-10, 304 Mont. 114, 18 P.3d 1003).

¶20       The District Court found Deputy Liechty’s observations of Sacks leaving a bar, the

time of night, and Sacks’s stumbling behavior on his way to his car gave rise to sufficient

particularized suspicion that Sacks was driving under the influence. The court held that

under the totality of the circumstances Liechty could reasonably infer Sacks was

committing the offense of DUI.

¶21       Sacks argues Deputy Liechty’s credibility is suspect because his testimony at the

suppression hearing identified additional reasons for his particularized suspicion beyond

those that appear on the submitted videos or in his offense report. This is similar to Cooper,

where the defendant argued evidence could not be considered if it did not appear in the

officer’s report. Cooper, ¶ 10. However, Liechty cited Sacks’s stumbling behavior coming

out of the bar in his offense report and in his testimony to both the Justice Court and District

Court. When questioned in District Court about his reasonable suspicion upon observing

Sacks then enter his vehicle and drive away, Liechty stated he “could [have] made a stop

there.”

¶22       Like the defendant in Cooper, Sacks also argues Liechty’s testimony is suspect

because he did not stop Sacks sooner. However, Sacks’s own expert testified he would
                                               7
have proceeded as Liechty did in identical circumstances. Further, Liechty testified he

didn’t believe he had time to get to Sacks in the parking lot. Though Liechty also testified

he waited to stop Sacks because he wanted to give Sacks the benefit of the doubt and to

observe additional driving behavior to be sure Sacks was an impaired driver, a peace officer

need not be certain an offense has been committed in order to justify an investigatory stop.

City of Missoula v. Sharp, 2015 MT 289, ¶ 8, 381 Mont. 225, 358 P.3d 204. “An officer in

the field [also] need not consider every possible innocent explanation . . . before concluding

that particularized suspicion exists.” State v. Flynn, 2011 MT 48, ¶ 11, 359 Mont. 376,

251 P.3d 143 (citing State v. Clark, 2009 MT 327, ¶ 13, 353 Mont. 1, 218 P.3d 483).

¶23    Liechty’s observations up to and including Sacks’s getting into and driving his

vehicle out of the bar parking lot were sufficient to support his particularized suspicion

justifying an investigatory stop. That he did not stop Sacks immediately upon reaching a

particularized suspicion does not undermine his bases for the investigatory stop.

¶24    The District Court did not err. The District Court held Liechty had the requirements

for particularized suspicion to justify an investigatory stop. The District Court did not

misapprehend the effect of the evidence and is correct in its application of the law.

¶25    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review. The District Court’s findings of fact were not clearly

erroneous nor suggestive of mistake, it did not misapprehend the evidence, and its

interpretation and application of the law were correct.

                                              8
¶26   Affirmed.


                              /S/ MIKE McGRATH


We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
/S/ JIM RICE




                          9
