STATE OF MONTANA, Plаintiff and Appellee, v. MICHAEL ALLEN ZEIMER, Defendant and Appellant.
DA 20-0107
IN THE SUPREME COURT OF THE STATE OF MONTANA
May 24, 2022
2022 MT 96
APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Dawson, Cause No. DC 19-49, Honorable Olivia C. Rieger, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Samir F. Aarab, Boland Aarab PLLP, Great Falls, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Michael P. Dougherty, Assistant Attorney General, Helena, Montana
Brett Irigoin, Dawson County Attorney, Glendive, Montana
Submitted on Briefs: November 17, 2021
Decided: May 24, 2022
Filed:
Clerk
¶1 Michael Allen Zeimer (Zeimer) appeals from his December 24, 2020 convictions in the Montana Seventh Judicial District Court, Dawson County, on the offenses of felony criminal possession of dangerous drugs (methamphetamine) and misdemeanor criminal possession of drug paraphernalia. Zeimer asserts that the convictions are invalidly based on evidence seized as the fruit of an unlawfully-prolonged investigatory traffic stop. We address the following dispositive issue:
Whether the District Court erroneously denied Zeimer‘s motion for suppression of evidence discovered upon a vehicle search that resulted from an unlawfully prolonged investigative DUI stop?
We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 At approximately 9:00 a.m. on April 15, 2019, a deputy Dawson County Sheriff (Deputy 1) responded to the Town Pump Travel Center in Glendive, Montana,1 on an employee‘s 911 report that a vehicle was irregularly parked in the rear parking lot of the truck stop with the driver slumped over the steering wheel. At the subsequent suppression hearing, Deputy 1 characterized the 911 dispatch as a “welfare check.” He further acknowledged on cross-examination that the report stated nothing more than that a pickup truck was parked “irregularly,” perpendicular to and across several striped parking spaces in the rear parking lot, with someone “slumped over their steering wheel,” “sleeping.”
Initial Investigatory Stop
¶3 Deputy 1 testified that, upon his arrival at the truck stop, he saw the pickup irregularly parked as described in the 911 report. He recounted that, as he approached, he saw the driver, later identified as Zeimer, “appear[] to look up from the steering wheel, check his mirrors,” and then notice the approaching patrol car. He testified that, though he could not tell whether the truck‘s engine was already running, Zeimer “proceeded to drive [forward] . . . in a slow . . . circle . . . around to the frontside” of the store, where he properly parked in a lined
¶4 Deputy 1 testified that, based on his training and experience, the “suspicious” circumstances observed upon his arrival (i.e., the manner in which the truck was parked perpendicular across the lined parking spaces with the driver slumped over the steering wheel, the driver‘s decision to move and drive around to the front of the store on approach of the patrol car, and his “slow driving” around the front of the building with turns that were “rounded and slow” rather than “sharp” or “crisp“) were “usually” indicative of “somebody who [was either] impaired or suffering from a medical condition.” In further describing his thought process at the time, the deputy explained that, in trying to assess which, if not both, of those possible scenarios might be the case, he intended to first check on Zeimer‘s welfare and then attempt to ascertain whether he had been driving under the influence (DUI) of alcohol or drugs.3
Initial Questioning: Zeimer‘s Identity, Explanation of his Presence and Circumstance, and Attempt to Ascertain Any Indicia of Impairment
¶5 Upon engaging Zeimer at the front of his truck, Deputy 1 identified himself and inquired as follows:
[Deputy 1]: How are you doing?
[Zeimer]: Good.
[Deputy 1]: . . . Alright. . . . We had a welfare check asked to be done on ya. . . . Were you sleeping in the pickup . . .?
[Zeimer]: Ya, I just, I pulled in here. I just got done driving from, from Miles City and, uh, . . . [inaudible] [another sheriff‘s deputy (Deputy 2) then walks into frame from the left behind Zeimer‘s truck and begins looking into the truck bed]
[Deputy 1]: Ok, ok, you‘re on your way from, from Miles City, is that what you said?
[Zeimer]: Ya, I came through last night.
[Deputy 1]: Oh, ok. Do you have a driver‘s license on you, sir? Anything like that?
[Zeimer]: Sure. [Reaches into coat pocket]
[Deputy 1]: Where‘re you headed to?
[Zeimer]: Actually, I‘m waiting for my sister.
[Deputy 1]: Oh, ok. [Zeimer pulls wallet from inside coat pocket and hands his driver‘s license to the deputy] She‘s going to meet up with you here?
[Zeimer]: Yep.
[Deputy 1]: Ok. [Examines driver‘s license] Michael Zeimer, is that right?
[Zeimer]: [Affirmatively nods head]
[Deputy 1]: Ok.
[Zeimer]: I‘m from here in Glendive and I just haven‘t . . . [inaudible]
[Deputy 1]: Ok, ok. So, ah, you were driving this morning, you said?
[Zeimer]: Yeah, . . . I just pulled in there and I didn‘t know what, what
time it was so I just thought . . . [Deputy 1]: Ok, ok, um, I did notice, and that‘s kind of how the, one of the things about the call was that, uh, when you parked, you parked sideways across the parking spots . . .
[Zeimer]: Ok, ya I did, I did. I [inaudible] by the door, by the door [pointing towards the rear door of the casino/store] . . .
[Deputy 1]: Ok, are you waiting for somebody that‘s in the casino . . . ?
[Zeimer]: [Briefly looks away] . . . I just, I just actually called her and she said she was going to be here.
[Deputy 1]: Ok, what‘s your sister‘s name, sir?
[Zeimer]: Janet Seymore.
[Deputy 1]: Janet Seymore? [Zeimer nods affirmatively] Ok and, ah, are you guys meeting up for breakfast, er, what‘s the . . .
[Zeimer]: Actually, I‘m still moving in with her. . . . I‘m just . . . [inaudible] moving back here, and I . . . [am going to be] living with her—her husband just, just passed away in January.
[Deputy 1]: Ok, ok, ya, I think I visited with her before and talked to her a bit about it.4 So, um, . . . she‘s going to meet you here for, what, are you guys gonna get, coffee or what, what‘s going on?
[Zeimer]: She just said to meet her here and . . . [inaudible], I‘m supposed to go out to her house.
[Deputy 1]: Ok. Are you not allowed to go to her house by yourself, or what?
[Zeimer]: No, we had . . . had a problem, but . . . [inaudible]
[Deputy 1]: Ok, kind of getting things figured out?
[Zeimer]: Yeah, I think we got things worked out.
[Deputy 1]: Ok, were you living in Wibaux for a while?
[Zeimer]: [Looks back over his shoulder and watches Deputy 2 walk over from right of frame to back of Zeimer‘s truck and again look into his truck bed] Was I living in Wibaux?
[Deputy 1]: Ya.
[Zeimer]: Uh, [pensively looks down and pauses] a long time ago.
[Deputy 1]: A long time ago? Ok, not recently though?
[Zeimer]: No. I haven‘t lived in Wibaux for at least eight years.
[Deputy 1]: Eight years, oh, ok, ok.
The deputy then presumptively questioned Zeimer non-sequitur about his prior association with another individual (Rob Hammonds) who had no apparent involvement or relationship to the DUI investigation, to wit:
[Zeimer]: Spent some time up in Glendive, Miles City, Fairview.
[Deputy 1]: Oh, ok, ok. When‘s the last time you saw Rob Hammonds?
[Zeimer]: Rob Hammonds, [pensively pauses] about [pauses], probably two months ago.
[Deputy 1]: Two months ago?
[Zeimer]: Yep.
[Deputy 1]: Ok, ok, where was that at?
[Zeimer]: Fairview . . . yeah, . . . worked with him in Fairview.
[Deputy 1]: Ok, ok.
[Zeimer]: [Inaudible]
The questioning then returned to questions regarding Zeimer‘s presence and circumstances at the truck stop, and his motor vehicle registration and liability insurance compliance:
[Deputy 1]: Ok. Do you have a registration and insurance and everything?
[Zeimer]: Yeah. [Returns to truck door, opens it, and retrieves a piece
of paper from driver‘s side visor, looks at it, returns to front of vehicle, hands registration to Deputy 1, and returns to truck door] . . . [I‘m] . . . buying the truck. [Deputy 1]: What‘s that?
[Zeimer]: I‘m buying the truck from Scott Miller.
[Deputy 1]: . . . Ok.
[Zeimer]: [Inaudible] [returns other paperwork to the visor]
[Deputy 1 hands registration to Deputy 2 who walks out of frame—Zeimer walks back to driver‘s door and continues search for insurance card above visor]
[Zeimer]: [Closes truck door] I can‘t find the insurance paper . . . [closes door and steps forward to Deputy 1]
[Deputy 1]: Can‘t find the insurance paper, ok. Does it have insurance on it, er?
[Zeimer]: As far as I know, yes.
[Deputy 1]: As far as you know?
[Zeimer]: Ya, . . . [inaudible] Scott Miller.
[Deputy 1]: Ok, um, so you‘re buying the pickup from Scott?
[Zeimer]: [Nods affirmatively]
[Deputy 1]: Ok.
[Zeimer]: Ya, I work with him too.
[Deputy 1]: Ok, what a, do you know when Janet is supposed to be here?
[Zeimer]: She didn‘t say. She has a paper route here in Glendive.
[Deputy 1]: Oh, ok, ok, alright. Well, ah, so, with, with the way you parked the pickup and stuff, I guess, like I said, not sure why you did that. So, I, either you‘ve been drinking—
[Zeimer]: Nope, I don‘t drink—
[Deputy 1]: Ok, you don‘t drink at all?
[Zeimer]: Nope.
[Deputy 1]: Oh, well that‘s good. So what time did ya drive this morning?
[Zeimer]: [Inaudible] three o‘clock [and was] tired when I pulled in here.
[Deputy 1]: Three o‘clock, ok. You might have been tired, that might have been why you parked that way?
[Zeimer]: [Inaudible] . . . tired.
Transition to Investigation of Zeimer‘s Inconsistent Account of His Presence and Circumstances at the Truck Stop
¶6 Having, as manifest in the body-cam recording, apparently observed no confirmatory particularized indicia of actual alcohol or drug impairment, the deputy‘s questioning then focused on challenging Zeimer‘s seemingly odd and inconsistent account of his presence and circumstances at the truck stop prior to the deputy‘s arrival:
[Deputy 1]: Ok, ok, alright, Mr. Zeimer, one second [pause]. Were you getting ready to go inside [the casino], is that—
[Zeimer]: Yeah, ah, that‘s what I was gonna do . . . see if [inaudible] in there.
[Deputy 1]: Were you gonna see if she‘s inside?
[Zeimer]: Yeah. Far as I know, she drives a gold-colored van.
[Deputy 1]: Ok. She drives what kind of van?
[Zeimer]: A van, ah, . . . like this one right here [points to parked van].
[Deputy 1]: Ok, ok. [Pauses and looks at his cell phone] You got her phone number, on ya?
[Zeimer]: [Shrugs shoulders, gives seven-digit number].
After calling and speaking with Zeimer‘s sister and ascertaining that she had no idea as to what Zеimer was talking about, the deputy continued to aggressively challenge Zeimer about his seemingly inconsistent story:
[Deputy 1]: Alright Mr. Zeimer, here‘s the deal, why are you bullshitting me?
[Zeimer]: Ah, I‘m not—
[Deputy 1]: You are. I just talked to Janet, she had no idea what you‘re talking about. She‘s not planning on meeting you here. So who are you here to meet? [Zeimer]: Nobody.
[Deputy 1]: Ok, then why would you tell me you‘re here to meet your sister?
[Zeimer]: I talked to her last night, . . . [inaudible] I called her last night and she said meet her down here this morning, that was it, we were talking about getting things straightened-up between us.
Pat-Down/Frisk and Clothing Search
¶7 Unable to get a more credible and acceptable explanation for Zeimer‘s presence at the truck stop, and without any apparent indication of a particularized basis upon which to suspect that Zeimer may have been armed and dangerous, Deputy 1 stated his intent to conduct a protective officer “safety” pat-down of Zeimer. His body-cam recording manifested no overt indication that Zeimer was in fact armed or dangerous, however. Nor did he articulate any such indication or actual suspicion on the recording or subsequently at hearing. In any event, the purported protective search then proceeded:
[Deputy 1]: Why don‘t you go ahead and turn-around, I‘m going to frisk you for weapons, do you have any weapons on you?
[Zeimer]: I‘ve got a pocketknife on my side here.
[Deputy 1]: Ok, go ahead and turn around, you‘re not under arrest, ok, but I‘m going to frisk you for my safety, ok. So, I‘m not sure why you‘re lying to me about what‘s going on. [Begins pat-down search of Zeimer‘s body] Do you have a pocket knife?
[Zeimer]: [Inaudible]
[Deputy 1]: Ok, is there anything else on you? [Reaches into and retrieves something from Zeimer‘s pocket and then pats-down his front pants pocket] What‘s that there [in reference to a two-prong hand tool handle
visibly protruding from his pants pocket]? Pliers. [Pat-down then continues] Just checking for weapons, sir. You don‘t have knives, other knives, firearms, anything like that?
[Zeimer]: No.
[Deputy 1]: On your person? [Continues pat-down and reaches into Zeimer‘s coat pocket] Billfold?
[Zeimer]: Should be [inaudible] wallet, er, my other license—
[Deputy 1]: It‘s something round, what, what do you got going on up here [in your coat]?
[Zeimer]: [Inaudible] I‘m not sure.
[Deputy 1]: You‘re not sure?
[Zeimer]: Nope.
[Deputy 1]: Ok [continues pat-down], like, [pauses] you‘re not sure what this is up here? . . . You, you don‘t have any idea.
[Zeimer]: I have—
[Deputy 1]: Ok, you alright with me taking it out then, if you don‘t know what it is?
[Zeimer]: Ya, ok.
[Deputy 1]: Ok, it‘s not something sharp and pokey, that‘s going to hurt me? Is it on the inside [coat] pocket?
[Zeimer]: Yup.
[Deputy 1]: You‘re not sure what it is? [digging into coat and pulls out two items and reaches back in and pulls out another] Electrical tape?
[Zeimer]: Yep.
[Deputy 1]: Ok, that‘s probably what I was feeling mostly, there‘s something else in there [as he reaches into inside coat pocket and retrieves something]. Pens?
[Zeimer]: Ya, [inaudible].
[Deputy 1]: Ok, you still have more hard stuff down at the bottom, no idea?
[Zeimer]: [Inaudible]
[Deputy 1]: Ok, I‘m going to let go of your hands, but I‘m going to take another look in here, ok, just keep them back there, thank you [and then continues reaching into Zeimer‘s inside coat pocket]. [Deputy 2]: Hold on to your fingers, ok?
[Zeimer]: Yep.
¶8 The deputy then pulled out a set of keys from Zeimer‘s pocket, resumed digging in the pocket, pulled out another item, examined it and reached back into the pocket. Finding nothing more, the deputy told Zeimer to put the removed items back in his pocket and the questioning resumed:
[Deputy 1]: . . . Ok, why are you lying about why you‘re here?
[Zeimer]: [Shakes his head negatively while replacing items into his coat] I‘m not.
[Deputy 1]: You obviously are, I just talked to Janet, I just told you that, she has no idea what you‘re talking about.
[Zeimer]: I‘m not here to meet anybody, just my sister.
[Deputy 1]: Right, but your sister, she doesn‘t know anything about meeting you here, which means you‘re lying to me. [pause] You better start telling me the truth or we‘re going to have more problems than just checking on ya, right?
[Zeimer]: I‘m not here to meet anybody, nobody at all, not even my sister.
Deputy 2 joined in and the questioning continued:
[Deputy 2]: Where do you live at?
[Zeimer]: I was living with Janet.
[Deputy 2]: Say again.
[Zeimer]: I was living with Janet.
[Deputy 2]: Ok, where‘re you living at now?
[Zeimer]: I‘m not.
[Deputy 1]: You don‘t have a place anywhere around here?
[Zeimer]: [Points at his truck] Right here is where I‘m living.
[Deputy 1]: You spent the night there last night?
[Zeimer]: Right here, yep. Right back, that‘s where I parked . . .
[Deputy 2]: Where‘d you come from?
[Zeimer]: What‘s that?
[Deputy 2]: Where‘d you come from?
[Zeimer]: Right here in town.
[Deputy 2]: Where at though?
[Zeimer]: Just driving around town.
[Deputy 2]: You just drove around town all night and then came here to sleep?
[Zeimer]: [Inaudible]
[Deputy 2]: Does that make any sense to you?
¶9 At this point, the continuing colloquy between Deputy 2 and Zeimer became inaudible on Deputy 1‘s body-cam recording as he stepped away behind Zeimer and began searchingly looking into both sides of his truck bed and cab. Upon Deputy 1‘s return to the front of the truck, his body cam captured Deputy 2 directing Zeimer to “pull off your sunglasses.” Zeimer complied and the questioning continued:
[Deputy 2]: You just drove around town all night.
[Zeimer]: [Nods affirmatively] Yep.
[Deputy 2]: You still didn‘t tell [the other deputy] what you‘re doing here.
[Zeimer]: [J]ust sleeping in the truck. That‘s it.
[Deputy 2]: You said you were meeting your sister, that turned to be false.
[Zeimer]: Yes, it was.
[Deputy 2]: Why are you lying?
[Zeimer]: I didn‘t have any place to stay.
[Deputy 2]: That‘s nothing to lie about.
[Zeimer]: Well, that‘s nothing to be proud of.
[Deputy 1]: You could‘ve told me you were living in your pickup, it wouldn‘t have mattered to me any, right?
[Zeimer]: [Nods affirmatively]
[Deputy 1]: I figured something else was going on because, usually when someone lies to me, it‘s because they‘re covering something else, right? [Zeimer]: [Nods affirmatively] That‘s what it sounds like, ya, but I didn‘t have any place to live.
Initial Deputies Consultation on Dead-End and Transition to Focused Drug Investigation
¶10 After the investigative questioning again dead-ended, the deputies stepped away from Zeimer to consult. While the first part of their conversation is inaudible, Deputy 1‘s body cam captured him saying, “I tried smelling him for alcohol, I can‘t smell anything, but I don‘t know [inaudible] I can check him for priors [inaudible].” (Emphasis added.) The body cam recording reflects no articulation by either deputy of any particularized indication that Zeimer in fact may have been impaired. After consulting further, they returned to Zeimer, still standing patiently outside his truck, and Deputy 1 began accusatorily questioning him about drug use:
[Deputy 1]: Mr. Zeimer, you, ah, do you use drugs?
[Zeimer]: No, I do not. I watched my brother, both my brothers go through it, I see no reason.
[Deputy 1]: No reason for it, okay. Well, I‘ve heard from your family that you‘re into drugs, okay, so I already know that, that, that‘s the deal—
[Zeimer]: A while ago, yes, I was.
[Deputy 1]: A while ago, how long‘s a while ago?
[Zeimer]: About, two years ago.
[Deputy 1]: Two years ago, ok.
[Zeimer]: Yep.
[Deputy 1]: Ok, so, ah, [inaudible]
[Zeimer]: . . . Two years ago, I bet I was.
[Deputy 1]: Ok, what, did you do some more last night?
[Zeimer]: No, I did not. I was over at, ah, I seen Steven Yurian, and I helped him move some stuff—
[Deputy 1]: Steve Yurian?
[Zeimer]: Yeah, he‘s moving. I helped him move a little bit of stuff because he worked with us too. I got tired, I came up here.
[Deputy 1]: Where‘s Steve at?
[Zeimer]: He lives over in that trailer court by, ah, ah, [inaudible]
[Deputy 1]: By who?
[Zeimer]: By [inaudible]
[Deputy 1]: Ok, the one right here across the Interstate?
[Zeimer]: Yeah, down here [points to his left]
[Deputy 1]: Down there, ok. So, you didn‘t hit up before you came over here and went to sleep?
[Zeimer]: No, nope.
[Deputy 1]: Okay, I mean, you haven‘t told me the truth about anything that I‘ve asked you about yet. I mean, even, you just said that you don‘t use drugs and then you just said you used drugs, you know—
[Zeimer]: Two years ago [shrugs shoulders], yeah.
[Deputy 1]: Two years ago. Right. But that‘s, you, you have obviously used drugs, right?
[Zeimer]: Yeah, two years ago, yeah.
[Deputy 1]: So, and you lied about meeting your sister here. Absolutely nothing you‘re saying right now is making sense.
[Zeimer]: [Shrugs shoulders and hands]
[Deputy 2]: What time did you get done doing this work for this guy?
[Zeimer]: About two-thirty [or] three.
[Deputy 2]: And then you just came straight here?
[Zeimer]: Yep.
[Deputy 2]: So why did you just tell me you got done driving around, if that‘s all you were doing last night?
[Zeimer]: Before I met up with him that‘s what I was doing, just driving
around. Then stopped here for a little bit.5
Second Consultation, Acknowledgment of Dead-End, and Stated Need to “Turn This Thing Into” a Drug or DUI Investigation
¶11 Still unable to get a more credible and acceptable account of Zeimer‘s presence and preceding activities, the deputies once more stepped away from him to consult on what to do next:
[Deputy 2]: We‘re still waiting on the returns [inaudible]. I think we gotta either turn this thing into . . . a narcotics thing, or DUI. I don‘t know, if you want to ask him, you could ask him [inaudible] for [inaudible] an HGN6 or something [inaudible]. So ya, [inaudible]
[Deputy 1]: It‘s your call, sorry. I was trying to back you up—
[Deputy 2]: Hey man, take [inaudible], take point [chuckles].
(Emphasis added.) When they returned to Zeimer, who was still patiently standing outside his truck waiting, Deputy 2 took a crack at questioning him regarding the aforementioned “narcotics thing“:
[Deputy 2]: So do you have anything in the vehicle we should know about?
[Zeimer]: [Negatively shakes head]. No.
[Deputy 2]: No, ok, do you have any, uh, prescription pills in there?
[Zeimer]: [Negatively shakes head]. Not that I know of.
[Deputy 2]: Not that you know of, ok, do you have any marijuana in there?
[Zeimer]: No.
[Deputy 2]: Heroin?
[Zeimer]: [Negatively shakes head] Uh-uh.
[Deputy 2]: Crack?
[Zeimer]: [Shakes head and responds negatively].
[Deputy 2]: Cocaine, methamphetamine?
[Zeimer]: [Negatively shakes head]. No.
[Deputy 2]: No, when‘s the last time you used?
[Zeimer]: Two years ago.
[Deputy 2]: Um, so here‘s the deal, ok, all, all the questions he‘s been asking, we‘ve been asking ya, you can‘t give us a good answer on, ok. You‘ve been lying to us ever since, ok, alright. Does that seem odd to you that somebody would do that if they‘re not doing anything
that they‘re not supposed to be doing?
[Zeimer]: I‘m not lying.
Return to DUI Investigation Upon Dead-End of “Narcotics Thing” Questioning
¶12 With the “narcotics thing,” i.e. illegal drug possession questioning, having again dead-ended, Deputy 2 shifted the focus of the investigation back to the original purpose of the stop—the DUI investigation:
[Deputy 2]: Ok, well you already [lied], and you already admitted to it, ok, um, so, do you, don‘t take offense to this or anything, but, I mean, do you usually talk slow and slurred and tired sounding?7
[Zeimer]: I don‘t have any teeth in the front [points to his mouth].
[Deputy 2]: Ok, ok, that‘s why?
[Zeimer]: Yep.
[Deputy 2]: Ok, you didn‘t use anything last night, this morning?
[Zeimer]: No. I‘ve been here.
[Deputy 2]: Been here, but prior to that you were doing what?
[Zeimer]: Driving around.
[Deputy 2]: Driving around—
[Zeimer]: Helping Steve Yurion move some stuff.
[Deputy 2]: Ok, well, just so I can rule out the fact you could be intoxicated, I‘m just going run, run a couple of tests on ya, ok, does that make sense, have you been through ‘em before?
[Zeimer]: Nope.
[Deputy 2]: Ok, alright, why don‘t you come over here real quick for me, ok.
(Emphasis added.) At this point, over 20 minutes into the investigatory DUI stop, Deputy 2 walked Zeimer away from his truck and subjected him to field sobriety testing.
Field Sobriety Testing
¶13 After subjecting him to HGN testing, Deputy 2 led Zeimer back towards his truck and instructed him to stand on a parking space line, where he sequentially instructed and directed him to accordingly perform two other standard field sobriety tests—the nine-step walk-and-turn and the one-leg stand.8 The body-cam recording shows Zeimer compliantly listening and performing both tests, after advising that he had a problem with one of his legs. Neither the body-cam recording that captured the testing, the patrol car dash-cam recording of subsequent events later in the stop, nor Deputy 1‘s trial testimony captured or included any articulation of how Deputy 2 may have scored Zeimer‘s performance of any of those tests as an indicator of alcohol- or drug-related impairment. After subjecting him to the requested field sobriety testing, Deputy 2 advised Zeimer, “so, [Deputy 1] has a little bit of time to kill, ok,” and “I got one more test for ya” to perform.
Detention in Locked Patrol Car
¶14 The deputies then directed Zeimer to Deputy 1‘s patrol car and, without further explanation, directed him to sit down in the back seat. After one of them closed the locked car door behind Zeimer, the deputies walked around to the other side of the patrol car. The body-cam recording captured one of
Pre-PBT/PAST Patrol Car Detention and Request for Consent to Search Truck
¶15 Upon the confinement and detention of Zeimer in the backseat of the patrol car, the dash cam turned around and recorded his detention in the patrol car.9 A few minutes later, Deputy 2 returned, opened the rear door, and further engaged Zeimer:
[Deputy 2]: Ok, um, so just real quick, you are being detained for a DUI investigation right now, ok? Um, I‘m just going to read your Miranda rights, ok, . . . [then reads Miranda advisory] Do you understand [your rights]?
[Zeimer]: [Nods affirmatively] Yeah.
[Deputy 2]: Is there anything in the [truck] we should know about?
[Zeimer]: [Shakes head negatively] Nope.
[Deputy 2]: Ok, that being said, would you consent to a search?
[Zeimer]: [Shakes head negatively] It‘s not my vehicle.
[Deputy 2]: Well, you‘re, you‘re in control of it and you‘ve been living in it, right?
[Zeimer]: Yep.
[Deputy 2]: So—
[Zeimer]: Yep—
[Deputy 2]: You‘re ok with that?
[Zeimer]: Yep.
[Deputy 2]: Alright, it‘s, got some paperwork for you to fill out, ok?
[Zeimer]: Ok.
[Deputy 2]: [Closes backseat door and walks away]
The deputy returned a few minutes later, opened the patrol car door, and asked Zeimer to verify his phone number and current address. The deputy then presented a vehicle search consent form:
[Deputy 2]: Alright, so this is a consent search form, ok, um, saying that a, you, you‘ll sign it, um, . . . [summarizes prefatory language of the form] you hereby authorize . . . [Deputies 1 and 2 of] the Dawson County Sheriff‘s Office, um, to search your property, particularly described as your brown Ford Ranger bearing Montana plate . . . Ok, ah, you further authorize us to remove from your possession or the vehicle any documents or items of property deemed necessary for our investigation. It says you‘re giving, ah, your written permission freely and voluntarily without threats or promises having been made and after having been informed by us that you can stop, refuse, or limit the search, make sense?
[Zeimer]: Yeah.
[Deputy 2]: You ok with that?
[Zeimer]: Yeah.
[Deputy 2]: Ok, so then sign right there for me.
[Zeimer]: [Takes and signs form]
[Deputy 2]: Alright, . . . . [will] you . . . step [out] and grab your dog for me.
After Zeimer compliantly got out and retrieved his dog from his truck, one of the deputies directed him to stand next to the Town Pump building with his dog. While Deputy 2 searched the vehicle, Deputy 1 stood next to Zeimer and continued to ask him questions about his work and personal relations, when he last saw Rob Hammonds, and whether he was on probation. After about eight minutes, Deputy 2 returned from searching the vehicle and directed Zeimer to put his dog in the back of Deputy 2‘s vehicle. After securing the dog, Deputy 2 asked Zeimer if he had “any idea what I found,”
Continued Detention, Truck Search, and PBT/PAST Administration
¶16 After the truck search, Deputy 2 returned and read Zeimer the Montana implied consent advisory pursuant to
DUI Arrest, Charged Offenses, and Suppression Motion
¶17 Upon returning to the patrol car a few minutes later, Deputy 2 advised Zeimer that he was now also under arrest for DUI based on “alcohol and/or drugs[,] [d]rugs in this case.” The deputy then read him a Montana implied consent advisory pursuant to
¶18 Zeimer later moved to suppress the suspected methamphetamine and glass pipes on the asserted ground that they were seized in violation of the warrant and probable cause requirements of the
Guilty Plea, Sentencing, and Appeal
¶20 Following the denial of the suppression motion, Zeimer pled guilty under a plea agreement to felony possession of methamphetamine and misdemeanor possession of drug paraphernalia with reservation of right to appeal the suppression motion denial. In return, the State dismissed the DUI charge. The District Court subsequently sentenced Zeimer to a suspended five-year year term of commitment to the Montana Department of Corrections for placement in an appropriate correctional facility or program, subject to various conditions of probation including, inter alia, successful completion of the court‘s Adult Treatment Court program. Zeimer timely appeals.
STANDARD OF REVIEW
¶21 On review of a lower court denial of a motion to suppress evidence in a criminal case, we review supporting findings of fact only for clear error and lower court conclusions and applications of law de novo for correctness. State v. Olson, 2002 MT 211, ¶ 7, 311 Mont. 270, 55 P.3d 935; State v. Carlson, 2000 MT 320, ¶ 14, 302 Mont. 508, 15 P.3d 893 (citing State v. Henderson, 1998 MT 233, ¶ 9, 291 Mont. 77, 966 P.2d 137). Lower court findings of fact are clearly erroneous only if not supported by substantial credible evidence, the court clearly misapprehended the effect of the evidence, or we are firmly and definitely convinced on our review of the record that the court was otherwise mistaken. State v. Pierre, 2020 MT 160, ¶ 10, 400 Mont. 283, 466 P.3d 494 (citing State v. Spina, 1999 MT 113, ¶ 12, 294 Mont. 367, 982 P.2d 421); State v. Maile, 2017 MT 154, ¶ 8, 388 Mont. 33, 396 P.3d 1270.
¶22 Whether the District Court erroneously denied Zeimer‘s motion for suppression of evidence discovered upon a vehicle sеarch that resulted from an unlawfully prolonged investigative DUI stop?
¶23 The
¶24 As a threshold matter, the
¶25 Government searches and seizures are lawful only if constitutionally reasonable. See
Terry Investigative Stop Exception to Probable Cause & Warrant Requirements.
¶27 First recognized by the United States Supreme Court in Terry, 392 U.S. at 16, 88 S. Ct. at 1877, and further developed in Cortez, 449 U.S. at 417-18, 101 S. Ct. at 694-95, one recognized and narrowly limited exception to the warrant and probable cause requirements is the temporary investigative stop, also known as a Terry stop. Under this exception, a law enforcement officer may briefly stop and detain a person for investigative purposes without a warrant or probable cause for an arrest if, based on specific and articulable facts known to the officer and rational law enforcement inferences, the officer has an objectively reasonable particularized suspicion that the person is engaged, or about to engage, in criminal activity. Elison, ¶ 15; Roberts, ¶ 12; Reynolds, 272 Mont. at 49-50, 899 P.2d at 542; State v. Gopher, 193 Mont. 189, 193-94, 631 P.2d 293, 295-96 (1981) (recognizing and applying Cortez formulation of Terry stop standards); Cortez, 449 U.S. at 417-18; Terry, 392 U.S. at 19-22, 88 S. Ct. at 1879-80. In other words, “[a]n investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity“—“officers must have a particularized and objective basis” under the “totality of the circumstances” for “suspecting the particular person stopped of criminal activity.” Cortez, 449 U.S. at 417-18 (internal citations omitted).16 Relevant factual considerations include the quantity, substance,
¶28 The Terry particularized suspicion standard does not require that an officer be certain, or even ultimately correct, that a person is engaged or about to be engaged in criminal activity. See State v. Thomas, 2008 MT 206, ¶ 10, 344 Mont. 150, 186 P.3d 864; Henderson, ¶ 12; Gopher, 193 Mont. at 192, 631 P.2d at 295; Cortez, 449 U.S. at 418, 101 S. Ct. at 695. It does not depend on “hard certainties,” but on “probabilities” based on “commonsense conclusions” from the perspective of “those versed in the field of law enforcement.” Cortez, 449 U.S. at 418, 101 S. Ct. at 695.17 However, a reasonable particularized suspicion requires more than mere generalized suspicion, possibility, an undeveloped hunch, or good faith belief. Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S. Ct. 673, 676 (2000); Terry, 392 U.S. at 27, 88 S. Ct. at 1883. See also State v. Strom, 2014 MT 234, ¶¶ 4-5, 14-17, 376 Mont. 277, 333 P.3d 218 (daytime observation of occupied vehicle legally parked alone in public-use area near oft-vandalized war memorial insufficient for particularized suspicion of criminal activity); State v. Jarman, 1998 MT 277, ¶¶ 14-15, 291 Mont. 391, 967 P.2d 1099 (mere presence in phone booth in high crime area on cold night insufficient particularized suspicion of criminal activity); Reynolds, 272 Mont. at 49-51, 899 P.2d at 542-43 (mere suspicion of “possible” traffic violation “combined with no other objective data” insufficient to justify investigatory stop); Brown v. Texas, 443 U.S. 47, 50-53, 99 S. Ct. 2637, 2640-41 (1979) (generalized observation that person looked suspicious in “neighborhood frequented by drug users” insufficient to justify investigative stop). The assessment of whether an officer had a reasonable particularized suspicion of criminal activity sufficient to justify making or continuing a temporary investigative stop depends on the facts and circumstances known to the officer at the time of the stop and any continuation. United States v. Slater, 979 F.3d 626, 629 (8th Cir. 2020) (reasonable particularized suspicion of criminal activity depends upon “what the officer reasonably knew at the time” rather than in “hindsight“—internal punctuation and citations omitted); Leverette v. Bell, 247 F.3d 160, 168 n.5 (4th Cir. 2001) (reasonable suspicion must evaluated based on what the officer knew “at the time“—not in “hindsight“); Lindsey v. Storey, 936 F.2d 554, 559-60 (11th Cir. 1991) (noting that facts then unknown to officer are immaterial to whether he or she had a reasonable particularized suspicion of criminal activity at the time of the stop).
¶29 Moreover, because the Terry investigative stop exception authorizes no more than a reasonably brief and minimally intrusive interference with the individual liberty and privacy of the subject, law enforcement officers must act with reasonable diligence to quickly confirm or dispel the underlying particularized suspicion that justified the initial stop and any continuation. United States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 1575 (1985) (whether an officer unreasonably continued or expanded the duration of an initially lawful investigative stop depends on whether the officer “diligently pursued a means of investigation . . . likely to confirm or dispel” the particularized suspicion justifying the stop); Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325-26 (1983) (Terry stop exception warrants only a “limited intrusion on the personal security of the subject” and the officer must “employ[] . . . the least intrusive means reasonably available
¶30 As a corollary to the investigative stop exception, the officer may lawfully expand or prolong the scope or duration of an investigative stop beyond its initial justification upon development of a new or expanded particularized suspicion of criminal activity based on additional specific and articulable facts observed or discovered during the lawful scope and duration of the initial stop. State v. Case, 2007 MT 161, ¶ 34, 338 Mont. 87, 162 P.3d 849; Carlson, ¶ 21; Hulse v. Mont. Dep‘t of Justice Motor Veh. Div., 1998 MT 108, ¶¶ 40-42, 289 Mont. 1, 961 P.2d 75; Sharp, 217 Mont. at 46, 702 P.2d at 963. See also State v. Laster, 2021 MT 269, ¶ 14, 406 Mont. 60, 497 P.3d 224 (“investigative stop cannot permissibly ripen into new or broader particularized suspicion of criminal activity
¶31 At the point that the investigating officer has either dispelled the predicate particularized suspicion that justified the initial stop within its lawful scope and duration, or failed to observe or discover additional specific and articulable facts justifying expansion of the scope or duration of the stop based on a new or expanded particularized suspicion of criminal activity, the stop must end without further delay. See, e.g., State v. Harning, 2022 MT 61, ¶¶ 28-29, 408 Mont. 140, 507 P.3d 145 (holding that justice court erroneously failed to suppress subsequently discovered drug evidence where the investigating state trooper failed to articulate objective data sufficient to support a new or expanded particularized suspicion of illegal drug possession justifying extension of the traffic stop after addressing the initial speeding predicate and determining that the driver was not impaired in relation to a detected marijuana odor and his admission that he earlier smoked marijuana in another location); State v. Wilson, 2018 MT 268, ¶¶ 36-37, 393 Mont. 238, 430 P.3d 77 (holding that traffic stop should have ended upon issuance of subject traffic citations where officer “lacked the requisite particularized suspicion to extend the stop into a drug investigation“); Hoover, ¶¶ 2-6, 19-23, 28, and 30 (holding that justice court erroneously failed to suppress probation violation and DUI evidence discovered upon investigative stop of vehicle and occupants lawfully parked around midnight in secluded area on private commercial property where officer articulated no more than generalized suspicion or hunch of possible theft and/or involuntary sexual conduct); State v. Driscoll, 2013 MT 63, ¶¶ 5-8, 14, and 15, 369 Mont. 270, 303 P.3d 788 (upholding suppression of drug and paraphernalia evidence discovered after officer unlawfully extended a welfare check into a drug investigation).
underage drinking evidence discovered after officers removed and cited a youthful-appearing man holding a beer in a bar without identification where they were unable to articulate any additional facts other than that he was “acting defensively” to support their continued suspicion that he was not 22 years-old as asserted ); State v. Graham (Graham II), 2007 MT 358, ¶¶ 2-4, 16-20, 340 Mont. 366, 175 P.3d 885 (holding that trial court erroneously failed to suppress DUI evidence discovered upon investigative stop of vehicle and occupants lawfully parked on county road kissing in broad daylight with female attempting “to mount” male сompanion where investigating officer had no more than generalized suspicion or hunch of possible mechanical problems, indecent exposure, or illegal sexual conduct); Martinez, ¶¶ 29, 62, and 74 (once the “limited purpose of the stop [has] been accomplished, no further police intrusion [is] warranted” and the stop must terminate absent new or additional particularized suspicion justifying further investigation—holding that district court erroneously failed to suppress drug evidence discovered upon continuation of a traffic stop after the initial justification for the stop (suspected invalid temporary registration sticker) was dispelled after officer stopped and approached the subject‘s car¶32 The question of whether an officer had a particularized suspicion of criminal activity, based on knowledge of specific and articulable objective facts and reasonable law enforcement inferences, is first a question of fact under the totality of the circumstances subject to review only for clear error. Hoover, ¶ 17 (internal citations omitted); Kaufman, ¶¶ 10-12; Cortez, 449 U.S. at 417-18, 101 S. Ct. at 695; Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880. However, any related conclusion or application of law, such as whether the involved or indicated activity was unlawful in nature or whether the asserted particularized suspicion was objectively reasonable, is a question of law subject to de novo review. Kaufman, ¶¶ 10-11 (assessment of whether an officer had a reasonable particularized suspicion of criminal activity “may [also] encompass legal conclusions, such as whether or not a particular act or omission violates the law” and “[a]lso[] the legal standard of objective reasonableness“—citing State v. Lafferty, 1998 MT 247, ¶ 10, 291 Mont. 157, 967 P.2d 363, abrogated on other grounds by State v. Flynn, 2011 MT 48, ¶¶ 10-12, 359 Mont. 376, 251 P.3d 143, and Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657 (1996)); Lafferty, ¶ 10 (whether “particularized suspicion exists to justify an investigative stop is a question of fact which depends on the totality of the circumstances” but such determination may also “include conclusions [and applications] of law” reviewed de novo for correctness); Ornelas, 517 U.S. at 694-99, 116 S. Ct. at 1660-63 (assessment of an asserted “reasonаble [particularized] suspicion and probable cause” involve mixed questions of fact and
Initial Investigatory Stop of Zeimer
¶33 Based on the initial 911 report, Deputy 1‘s initial observations of a vehicle irregularly parked across the parking stripes outside the rear casino/store door at the truck stop with a man slumped over the steering wheel, Zeimer acknowledges, and we agree, that Deputy 1 initially had sufficient particularized suspicion justifying a CCD stop of Zeimer for the purpose of checking on his welfare.19 However, a CCD stop must “actuallyinvolve a welfare check” and may not “be used as a pretext for an illegal search and seizure.” State v. Spaulding, 2011 MT 204, ¶ 24, 361 Mont. 445, 259 P.3d 793. See also State v. Reiner, 2003 MT 243, ¶¶ 20-22, 317 Mont. 304, 77 P.3d 210 (rejecting State‘s alternative characterization of a stop resulting in a DUI conviction as a CCD stop where the officer testified that he approached a vehicle parked on side of highway in response to DUI report rather than as a welfare check). Moreover, “[s]imilar to the limited permissible scope and duration of a Terry stop,” once the objective facts and circumstances manifest that the subject is not or no longer in peril, distress, or otherwise in need of assistance, “the original constitutional justification for a CCD stop ends unless some other constitutional justification” exists or arises for completing or prolonging the stop. Laster, ¶ 18 (citing Spaulding, ¶ 21—internal punctuation omitted). Here, Deputy 1 acknowledged at hearing that his initial justification for a welfare check stop evaporated and was thus dispelled at the point that he saw Zeimer pеrk-up, check his mirrors, put the truck in gear, and lawfully drive away without any apparent indicia of peril, distress, or need for assistance.
¶34 Tacitly conceding that point, the State asserts that the same factual observations that initially justified a CCD welfare check stop (truck parked perpendicularly across several lined parking spaces with driver slumped over the wheel apparently sleeping or passed out), coupled with his additional
particularized suspicion“); State v. Van Kirk, 2001 MT 184, 306 Mont. 215, 32 P.3d 735 (holding that erratic and abnormal driving behavior—conspicuous attempt to avoid approaching patrol car, driving away in abnormally slow manner (7-10 mph in a 25 mph speed zone), and “meandering” back and forth between the side and center of the road and across the center of the road—was sufficient to support a particularized suspicion of DUI under the totality of the circumstances); Hulse, ¶ 39 (noting that erratic driving, such as “driving all over the road, crossing the center line and the fog line, weaving in and out of traffic, or braking for green lights,” may support a рarticularized suspicion of DUI under the totality of the circumstances).
¶35 Here, at the suppression hearing, the deputy articulated a number of particular observations prior to stopping and engaging Zeimer, none of which constituted or were necessarily indicative of illegal conduct. However, based on his law enforcement training and experience, he further articulated and reasonably inferred that those particularized observations indicated in the aggregate that the driver of the truck may have been under the influence of alcohol or drugs rather than merely engaged in some other innocuous activity. We accordingly hold that the District Court correctly concluded that Deputy 1‘s initial stop of Zeimer after he parked in front of the truck stop store was a lawful investigatory stop based on an objectively reasonable particularized suspicion of DUI under the totality of the circumstances and inferences articulated by the deputy at hearing.
¶36 However, under the constitutional Terry stop analysis, a related issue remains as to whether and at what point, if any, the scope or duration of the stop thereafter unlawfully exceeded that reasonably necessary to dispel or exhaust the original justification andpurpose of the stop with reasonable diligence before one of the deputies asked Zeimer for consent to search his truck for contraband unrelated to whether he was in fact actually impaired. As a preliminary matter, the standardized field sobriety tests typically conducted by Montana law enforcement officers (i.e., the nine-step walk-and-turn, one-leg stand, HGN, and statutorily-authorized PBT/PASTs) upon investigative DUI stops are each, in and of themselves, additional and more intrusive infringements and interferences with a person‘s individual liberty and privacy rights than the underlying constitutional seizure (i.e. stop) of the person. Bramble v. Mont. Dep‘t of Justice Motor Vehicle Div., 1999 MT 132, ¶ 23, 294 Mont. 501, 982 P.2d 464 (citing Hulse); Hulse, ¶¶ 11-12, 19, and 32-33. Those standardized field sobriety and PBT/PAST tests thus effect separate constitutional searches,
¶37 We would agree, if that was indeed what the deputies proceeded to do with reasonable diligence, but they did not. After his initial post-stop DUI-related questioning, Deputy 1 did not diligently proceed with field sobriety testing to either confirm or dispel his initial particularized suspicion of DUI. After his initial post-stop observations and questioning revealed no apparent confirmatory indica of actual impairment, the deputies transitioned to extensive and prolonged questioning of Zeimer‘s odd, inconsistent, and seemingly deceptive account of his presence and prior activities. As manifest by his unrelated non-sequitur questioning about Zeimer‘s prior association with a “Rob Hammonds,” acknowledged prior knowledge of Zeimer‘s involvement in some other unspecified case “three months” earlier, taking time to call Zeimer‘s sister and questionher to verify Zeimer‘s account of his presence at the truck stop, then taking time to confront him with his sister‘s contradictory statements, and repeated challenges of Zeimer for a more truthful account of his presence, the deputy was conducting an investigation of something other than whether Zeimer was actually impaired due to alcohol or drug use.
¶38 After this initial round of non-DUI-related questioning dead-ended, the deputy then subjected Zeimer to a protective pat-down/frisk search for the purported purpose of ensuring the deputy‘s safety. Under the particular record circumstances of this case, the frisk/pat-down search was and is peculiarly significant to whether or not he was attempting to confirm or dispel his initial particularized DUI suspicion with reasonable diligence, or whether he was conducting some other unrelated investigation. As a preliminary matter, similar to standardized field sobriety tests, officer-safety protective pat-down/frisks involve an additional degree of intrusion and interference with the subject‘s protected personal privacy interest beyond that involved in the underlying investigative seizure of the person and related questioning. Consequently, warrantless protective pat-down/frisks not incident to arrest are thus distinct constitutional searches, lawful only upon a distinct, reasonable particularized suspicion, based on specific and articulable objective facts and resulting inferences under the totality of the circumstances, that the subject is “armed and presently dangerous.” Terry, 392 U.S. at 27 and 30-31, 88 S. Ct. at 1883-85 (emphasis added). See also Laster, ¶¶ 19-20 (analyzing Terry protective
¶39 Even when justified based on a particularized suspicion that the subject is presently armed and dangerous, the constitutionally-authorized manner and scope of a protective frisk/pat-down search is narrowly limited to a protective pat-down of the subject‘s “outer
clothing,” without more intrusive tactile manipulation, for items readily recognizable as weapons. Terry, 392 U.S. at 27, and 30-31, 88 S. Ct. at 1883-85. See also State v. Stubbs, 270 Mont. 364, 369-73, 892 P.2d 547, 550-53 (1995) (upholding seizure of small brass drug pipe perceived by officer on Terry pat-down as a potential knife or derringer), overruled on other grounds by Loh, 275 Mont. at 471-73, 914 P.2d at 599-600. Only on ready-recognition of an item felt on a valid pat-down of a subject‘s outer clothing may the officer seize, examine, and temporarily hold the discovered weapon as necessary to provide for the safety of the officer and any others nearby during the lawful duration of the underlying investigative stop. Laster, ¶¶ 19-20 (citing Terry); Terry, 392 U.S. at 30-31, 88 S. Ct. at 1884-85.22 In any event, the limited Terry protective pat-down/frisk search exception does not permit “random[] ‘recover[y]’ [of] items from the suspect‘s clothing” for examination absent ready-recоgnition of them as a weapon on pat-down touch. State v. Heath, 2000 MT 94, ¶ 17, 299 Mont. 230, 999 P.2d 324 (Terry protective pat-down/frisk exception does not allow police “to simply ‘recover’ objects from the suspect‘s clothing” for examination “and then, after the fact, argue that the objects might have contained a weapon or were immediately apparent as contraband“). Because the “[t]he sole justification” and purpose of a Terry pat-down search is “protection of the police officer and others nearby,” Terry, 392 U.S. at 26 and 29, 88 S. Ct. at 1882 and 1884, the protective
pat-down/frisk exception further does not in any event justify warrantless pat-down searches and seizures for other evidence or contraband. Terry, 392 U.S. at 29, 88 S. Ct. at 1884. Accord Laster, ¶ 20 (construing Terry). The protective Terry frisk “must therefore be confined in scope” to a limited pat-down of the subject‘s outer clothing “reasonably designed to discover guns, knives, clubs, or other hidden instruments” readily recognizable as weapons. See Terry, 392 U.S. at 29, 88 S. Ct. at 1884. Accord Laster, ¶ 20 (construing Terry).23
the stated officer-safety purpose of the pat-down search, thus exposing the stated purpose as an unsupported pretext for invasively searching Zeimer‘s pockets for the presence of illegal drugs or other contraband. It is further difficult, if not impossible, to reasonably conceive that, aside from the manifest lack of constitutional justification for the pat-down search and related pocket-dives and retrieval, any item that could conceivably have been found in Zeimer‘s pockets could possibly have aided in confirming or dispelling whether he was in fact impaired by alcohol or drug use within the lawful scope of the limited DUI investigation that justified the underlying stop. Thus, under the particular circumstances of this case, the pat-down search clearly manifests that Deputy 1 was not proceeding with reasonable diligence to confirm or dispel the articulated initial suspicion that justified the stop, i.e., whether Zeimer was in fact actually impaired while operating a motor vehicle.
¶41 Upon completion of the purported protective pat-down search, Deputy 1 resumed grilling Zeimer about his inconsistent account of his overnight presence at the truck stop. Deputy 2 then joined the continuing questioning about Zeimer‘s inconsistent account of his presence at the scene. At some point, Deputy 1 stepped away and began to take another searching look into the cab and bed of Zeimer‘s truck, while Deputy 2 continued the questioning, resulting in Zeimer‘s eventual admission that he lied to conceal the embarrassing fact that he was currently without a home. Neither of the deputies disputed that admission, but it did not deter them from continuing to grill him about what they viewed as his suspicious presence at the truck stop, a line of questioning to which a more truthful answer was in any event still not likely to aid in the assessment of whether he was in fact impaired by drugs or alcohol in furtherance of the original justification for the stop.
¶42 The body-cam recording clearly manifests that, from the outset of the stop throughout the deputies’ intensive questioning up to that point, 15 minutes into the stop, Zeimer was cooperative, coherent, clear-speaking, and steady on his feet as he continued to stand at the front of his truck and answer questions. Up to that point, the recording manifests no indication that he was in fact intoxicated or otherwise impaired as a rеsult of alcohol or drug use. On the one occasion that one of the deputies asked whether he had been drinking that morning or the night before, Zeimer answered, “no[].” The only perceived indication of impairment subsequently articulated by Deputy 1 at the hearing was what he initially perceived as Zeimer‘s “slurred or mumbled speech.” However, the deputy‘s hearing assertion is not supported by the extensive body-cam recording which evinces no such objective indication.24
body-cam recording manifests that the encounter took place on a bright sunny morning. Neither the deputy, nor any other State evidence, provided any evidentiary basis asserting, much less establishing, a correlation between human pupil size, alcohol or drug use, and resulting impairment, particularly in the bright sunlight that was prevailing that day.
¶44 As noted in the District Court‘s findings, Deputy 1 testified that he was also suspicious that Zeimer may have been involved in some other unspecified criminal activity based on his observation that Zeimer “seemed nervous” during the questioning and that he suspiciously kept looking away and back at his truck for “long periods of time.” However, the body-cam recording manifests only one instance in which Zeimer looked away and back at his truck, and then only in a quick glance back when his dog stood up in his truck cab as Deputy 2 moved around behind him to look into the driver‘s side window. Deputy 1 testified that he “didn‘t see any other signs” indicating that Zeimer was impaired and his body-cam recording simply manifests no speech pattern or manner, eye contact, lack of eye contact, or other personal behavior or condition indicative or suggestive of actual impairment, whether in isolation or in the aggregate. There is further no evidence that either of the deputies saw any open or unopen alcohol containers, drugs, drug paraphernalia, or other indication of alcohol or drug use in or about Zeimer‘s truck cab, bed, or any of the various items removed from his clothing during the purported protective pat-down search.
¶45 Upon a valid investigative traffic stop, unrelated questioning, including requests for proof of identification and checks for warrants, driver‘s license, vehicle registration, and insurance, inter alia, do not exceed the purpose, and reasonably-related scope and durationof the investigation of the underlying purpose of the stop as long as “the unrelated question[ing] or [checking] does not substantially prolong the duration of the stop” beyond that reasonably necessary to diligently dispel or exhaust the predicate particularized suspicion of criminal activity that justified the stop. Laster, ¶ 49 (internal citations omitted); Rodriguez v. United States, 575 U.S. 348, 354-57, 135 S. Ct. 1609, 1614-16 (2015) (officer “may conduct certain unrelated checks during an otherwise lawful traffic stop” but “may not do so in a way that prolongs the stop[] absent the reasonable suspicion ordinarily demanded to justify detaining an individual“—internal citations omitted). Accord State v. Snell, 2004 MT 269, ¶¶ 16-17, 323 Mont. 157, 99 P.3d 191 (“additional justification” not required for request for unrelated consent to search incident to otherwise valid investigative traffic stop); State v. Clark, 2008 MT 419, ¶¶ 24-25, 347 Mont. 354, 198 P.3d 809 (unrelated request for consent to search vehicle after initial domestic abuse suspicion was dispelled did not unlawfully prolong the stop where subject voluntarily consented, duration of the stop was already lawfully prolonged on probable cause of traffic violations, and the request for consent was immediately incident thereto); Arizona v. Johnson, 555 U.S. 323, 333, 129 S. Ct. 781, 788 (2009) (officer inquiry into matter unrelated to justification for initial traffic stop not unreasonable as long as the unrelated inquiry does “not measurably extend the duration of the stop“); Royer, 460 U.S. at 502, 103 S. Ct. at 1326-27 (noting that officers would have been justified in asking for consent to search luggage without рarticularized suspicion without exceeding permissible scope of initial stop had they not substantially extended the duration and scope of the intrusion by directing
¶46 Here, the initial particularized suspicion of DUI that initially justified the stop soon dead-ended based on Zeimer‘s denial of alcohol use and the deputy‘s failure to observe any confirmatory indicia of alcohol or drug use, much less actual impairment. Whether viewed as a secondary investigation of possible illegal drug distribution or possession, as apparent from the body-cam recording, or merely a more generic secondary investigation of Zeimer‘s odd, inconsistent, seemingly untruthful account of his presence and preceding activities, neither the deputy‘s body-cam recording, nor his subsequent hearing testimony, manifested anything more than a generalized suspicion or hunch that Zeimer may have been involved in some unspecified criminal activity other than DUI. Deputy 1 acknowledged as much in real time when the deputies first stepped away from Zeimer to consult and he told Deputy 2, “I tried smelling him for alcohol, I can‘t smell anything, butI don‘t know.” The deputies then returned and challenged Zeimer further with a series of questions as to whether he used any drugs the night before and, after he twice emphatically answered “no,” continued to question him about what he did the night before. Still unsatisfied with his answers, the deputies stepped away to consult a second time at which point Dеputy 2 advised that they were “still waiting” on a criminal history check, and “I think we gotta either turn this thing . . . into a narcotics thing or DUI, I don‘t know, . . . you could [inaudible] for [inaudible] an HGN or something.” (Emphasis added.) Deputy 1 responded, “[i]t‘s your call, . . . I was trying to back you up.” Regardless of the State‘s attempt to minimize it, the substance of the deputies’ second consultation clearly manifests that they still did not think that they had developed any particularized information sufficient to either confirm their initial DUI suspicion or to support a particularized suspicion of some other type of criminal activity.
¶47 Approximately 16 minutes into the stop, the deputies returned to the patiently waiting Zeimer and began more directly pursuing the aforementioned “narcotics thing.” Deputy 2 asked Zeimer a series of questions as to whether he had various types of illegal drugs in his truck. When that series of questions dead-ended, Deputy 2 resumed challenging Zeimer about “lying to us.” Manifesting their only generalized suspicion or hunch of unspecified criminal activity, the deputy then presumptively asked Zeimer whether it “seem[s] odd” that, since he was “lying” to them and “can‘t give us a good answer,” “somebody would do that if they‘re not doing anything that they‘re not supposed to be doing?” Zeimer emphatically answered, “I‘m not lying.”
¶48 With the “narcotics thing” having again dead-ended, Deputy 2 resorted back to the original DUI investigation by asking the loaded presumptive question, “do you usually talk slow and slurred and tired sounding?” Aside from the fact that the body-cam recording does not support either assertion, Zeimer pointed out that he did not “have any teeth in the front” of his mouth. Deputy 2 accepted that answer without challenge, and again asked whether Zeimer “use[d] anything last night” or that morning, and what he was doing the night before. Zeimer again answered “no,” and that he was just “[d]riving around.” Deputy 2 then said, “[o]k . . ., just so I can rule out the fact that you could be intoxicated, I‘m just going to run, run a couple of [field sobriety] tests on ya.” (Emphasis
¶49 For sake of argument, we will assume that the deputies’ failure to observe any specific record-supported post-stop facts or circumstance either confirming Deputy 1‘s pre-stop DUI suspicion, or giving rise to a new or expanded particularized suspicion of some other particular criminal activity, did not earlier dispel the original justification and thus end the lawful duration of the stop. We further note that the order of investigative progression between the original purpose of a stop and some permissible incidental questioning or checking regarding an unrelated matter is not necessarily determinative of whether the officer unlawfully prolonged the stop, as long as the officer does not
substantially prolong the duration of the stop beyond the time necessary to confirm or dispel the justifying particularized suspicion of criminal activity with reasonable diligence. See Rodriguez, 575 U.S. at 354-55 and 357-58, 135 S. Ct. at 1616. We thus recognize here that a reasonably brief transition and departure from the deputies’ originally justified DUI investigation to an unrelated line of questioning would not have necessarily precluded them from returning to the DUI investigation and confirmatory field sobriety testing, if they had completed or exhausted the original DUI investigation with reasonable diligence.
¶50 However, the primary, if not exclusive, manifest purpose of the deputies’ transition from the initially-justified DUI stop was to extensively interrogate Zeimer regarding his odd, inconsistent, and seemingly deceptive account of his presence and preceding activities, based on their only generalized suspicion of some other illegal activity (e.g., illegal drug possession or distribution). As asserted by Deputy 1 at hearing and found by the District Court, the justification for that investigative detour was no more than his articulated observation of Zeimer as nervous and nervously looking back or away from the deputy during the ongoing questioning regarding that non-DUI-related matter. In that regard, we recognize that otherwise perfectly legal or innocuous conduct or behavior may be a contributing factor in giving rise to a particularized suspicion of criminal activity in conjunction with other specific indicia of criminal activity. See Flynn, ¶ 11 (particularized suspicion requirement does not require officers to “consider every possible innocent explanation” for the subject‘s conduct or circumstance); State v. McMaster, 2008 MT 294, ¶¶ 15-23, 345 Mont. 408, 191 P.3d 443 (a series of odd but innocent actions at Town Pump store sufficient to contribute to a particularized suspicion of illegal drug activity in conjunction with articulated police knowledge that subject was a major out-of-town drug dealer, the store “was a location known for drug deals” and experienced officer observations of defendant‘s erratic driving like he was looking to meet somebody outside of town and multiple individuals outside their vehicles “rubber-necking” at or for police before exchanging a box); Wardlow, 528 U.S. at 121-22 and 124-25, 120 S. Ct. at 674-76 (noting “nervous, evasive behavior” may be “a pertinent factor” supporting a particularized suspicion of criminal activity in conjunction with other particularized indica of criminal activity and thus holding that the subject‘s “[h]eadlong flight” upon seeing approaching police vehicles was a contributing factor supporting a particularized suspicion of illegal drug activity under the totality of the circumstances that also included the subject‘s presence “in an area known for heavy narcotics trafficking” while “standing next to [a] building carrying an opaque bag“). Even a series of otherwise lawful or innocuous acts may together support a reasonable particularized suspicion of criminal activity if coupled with an articulated and objectively reasonable officer inference, based on the officer‘s training or experience, that the otherwise lawful or innocuous conduct and attendant circumstances are together indicative of some particular type of criminal activity. See United States v. Arvizu, 534 U.S. 266, 274-75 and 277-78, 122 S. Ct. 744, 751-53 (2002) (particularized suspicion requirement does not require officers to “rule out the possibility оf innocent conduct“—inter alia citing Terry, 392 U.S. at 22, 88 S. Ct. at 1880-81 (noting that “a series of acts, each of them perhaps innocent” if viewed separately may warrant further investigation “if taken together“)); United States v. Sokolow, 490 U.S. 1, 8, and 9, 109 S. Ct. 1581, 1586 (1989) (holding that, though any one of the articulated facts would be “quite consistent with innocent travel,” the purchase of thousands of dollars of airline tickets from a roll of $20 bills for a short-duration trip from Honolulu to Miami in July were sufficient together with various other “probablistic” factors to support a reasonable particularized suspicion of illegal drug activity). However, without reasonable officer-articulated inferences of some particular criminal activity, merely inconsistent accounts of a person‘s conduct or presence, nervous or defensive behavior when monitored or confronted by police, or the desire to avoid or evade oncoming police are insufficient to support a reasonable particularized suspicion of any particular criminal activity. See Harning, ¶¶ 19-20, 24-26, and 28-29 (holding that “[n]ervous behavior during a traffic stop is not uncommon and d[id] not establish particularized suspicion to extend a traffic stop into a drug investigation” of the vehicle—trooper “unlawfully extended” the speeding-based traffic stop because his articulated observations of a marijuana odor, the subject‘s admission of earlier smoking marijuana in another location, lack of indication of impairment, “nervous” and “evasive” behavior, “hesitant answers,” “hemming and hawing,” failure to roll down his window, and that people pulled-over generally “don‘t act like that” were insufficient without articulation of additional “objective data” to support a new or expanded reasonable particularized suspicion that the subject‘s vehicle contained marijuana); Driscoll, ¶¶ 5-8, 14, and 15 (holding that observation of youthful-looking subject “acting defensively” when confronted by officers while holding a beer can in a bar was not a sufficient particularized basis upon which to prolong the underage drinking investigatory stop where they failed to articulate any additional facts suppоrting their continued suspicion that he was underage after he told them he was 22 years old); Martinez, ¶ 62 (“innocuous conduct may be used in the calculus” of particularized suspicion of criminal activity in conjunction with other objective facts but is insufficient alone); State v. Fisher, 2002 MT 335, ¶¶ 3-5, 15, and 18-21, 313 Mont. 274, 60 P.3d 1004 (holding that subject‘s presence in a “high-crime area” in Billings and accompanying “nervous and evasive driving” upon seeing an approaching police car was insufficient to support a particularized suspicion that he was either one of the “three or four people” reportedly “on foot in an alley” with “a gun” or otherwise involved in some other criminal activity—noting that subject “made an entirely legal and ordinary turn [away from the police car] on a public street” and that there was no evidence that the officer saw any “nervous and evasive” behavior by the subject himself or that he was engaged in “headlong flight” or other “consummate act of evasion“); State v. Broken Rope, 278 Mont. 427, 432, 925 P.2d 1157, 1160 (1996) (noting that “there is nothing inherently suspicious” about a person “moving around in a convenience store parking lot, . . . staring at a police officer, or being or appearing “nervous” when being watched by or in the presence of a police officer and further noting that “many law-abiding citizens may well be nervous when their activities are being watched by law enforcement officers“); Gonzalez, 328 F.3d at 758 (“mere ‘uneasy feelings’ and inconsistent stories” are insufficient alone to support a reasonable particularized suspicion of criminal activity).
¶51 Here, after 20 minutes of intensive questioning and repeated searching looks into Zeimer‘s truck, the deputies had yet to subject him to field sobriety testing to confirm or dispel their original DUI suspicion. A manifest and only generalized suspicion of some other unspecified criminal activity drove both the initial 20-minute investigative detour, which was at most only briefly and tangentially related to the DUI-confirmatory purpose of the stop, and the additional 17-minute delay after completion of the belated field sobriety testing, purportedly for further DUI investigation, but which actually involved the time taken to ask for consent and
¶52 Except for strained analogy to cases involving fact patterns distinctly different from the particular record facts and circumstances in this case, the State has provided no constitutional, officer-articulated justification for prolonging the initial DUI traffic stop for over 20 minutes while the officers grilled Zeimer about his odd, inconsistent, and only generally suspicious account of his presence and prior activity instead of more diligently proceeding with field sobriety testing to either confirm or dispel the initial particularized suspicion of DUI. Based on the particular evidentiary record in case, we hold that the deputies unlawfully prolonged the duration of the initially valid investigative DUI stop before subjecting Zeimer to the confirmatory DUI field sobriety testing, that was the sole justification for the stop, over 20 minutes into the stop.
¶53 The State asserts that Zeimer waived the right to assert that the deрuties unconstitutionally prolonged the duration of the stop because his suppression motion and briefing narrowly focused on whether the stop was a valid CCD stop. However, the primary focus of the State‘s evidentiary showing and argument in defense of the stop was on the constitutional validity of the stop as a Terry investigative stop for purposes of confirmatory DUI investigation, namely field sobriety testing. Tracking the course and scope of the parties’ dispute at hearing, the District Court ultimately concluded that Deputy 1 “was warranted in continuing to engage [Zeimer] in conversation based upon information discovered from the stop, itself.” (Emphasis added.) Inter alia, the court‘s written ruling quoted Kroschel, ¶ 19 (noting that investigating officer “may develop new or broader particularized suspicion of criminal activity justifying the expansion of the scope or duration of the stop beyond that justified by the officer‘s initial observations” “[b]ased on additional information developed during the initial lawful duration and scope of [the] initial investigative stop“). The dispositive issue actually litigated by the parties at hearing and adjudicated by the court thus encompassed the essence of Zeimer‘s assertion of error on appeal. We therefore reject the State‘s assertion of procedural waiver.
Application of Exclusionary Rule
¶54 Pursuant to the exclusionary rule, also known as the “fruit of the poisonous tree” doctrine, evidence discovered as the result of a constitutionally invalid search or seizure is generally inadmissible against the accused in subsequent proceedings. Laster, ¶ 35 (internal citations omitted); State v. Hilgendorf, 2009 MT 158, ¶ 23, 350 Mont. 412, 208 P.3d 401 (citing Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S. Ct. 407, 416 (1963)); State v. Pipkin, 1998 MT 143, ¶ 12, 289 Mont. 240, 961 P.2d 733 (citing Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961) and United States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 620 (1974)); Murray v. United States, 487 U.S. 533, 536-37, 108 S. Ct. 2529, 2533 (1988) (internal citations omitted). The exclusionary rule is the “principal mode of discouraging lawless police conduct.” Terry, 392 U.S. at 12, 88 S. Ct. at 1875. Its primary narrow purpose is to “deter[] government agents from acquiring evidence via violation of constitutional
¶55 As he did below as pertinent, Zeimer essentially asserts that the incriminating evidence seized from his truck was subject to suppression because the search and resulting discovery would not have occurred but for the fact and circumstances of his unlawfully prolonged investigatory detention without a warrant or probable cause. The State counters only that he procedurally waived that assertion and that the stop was in any event lawful in duration and scope. In the absence of any assertion and supporting showing by the State that the truck search was the product of Zeimer‘s free will independent of the unlawfully prolonged duration of the original DUI stop, we hold that the exclusionary rule is applicable and requires exclusion here. See Royer, 460 U.S. at 501 and 507-08, 103 S. Ct. at 1325 and 1329 (noting that incriminating “statements given during a period of illegal detention are inadmissible even [if] voluntarily given” unless they were “the result of an independent act of free will“-holding that drug evidence seized pursuant to consensual airport luggage search after “the bounds of [the] investigative stop had been exceeded” was “tainted by illegality” and subject to exclusion). Compare Laster, ¶¶ 46-49 (holding that, despite the causal connection with police discovery of illegal drug evidence in the pocket of subject‘s clothing as a result of an unlawful pat-down search and seizure, the independent source exception to the exclusionary rule precluded suppression of the drug evidence discovered in the subsequent consensual vehicle search where the unrelated questioning did not substantially prolong the stop and the record manifested that the vehicle search “was primarily the result of . . . [an] intervening free will choice” rather than officer coercion, duress, or exploitаtion of the prior illegal pat-down search). We thus hold that the District Court erroneously denied Zeimer‘s motion for suppression of the incriminating evidence upon which his underlying criminal convictions are based.
CONCLUSION
¶56 We hold that the District Court correctly concluded that Deputy 1 lawfully stopped and detained Zeimer on a reasonable particularized suspicion of DUI. Based on the particular evidentiary record in this case, we hold further, however, that the deputies thereafter unlawfully prolonged the duration of the initially valid investigative DUI stop before subjecting Zeimer to the confirmatory DUI field sobriety testing, which was the sole asserted justification for the stop, over 20 minutes into the stop. Based on the particular evidentiary record in this case, we thus ultimately hold that the subject illegal drug evidence at issue was subject to suppression pursuant to the exclusionary rules as evidence discovered and seized as a direct
/S/ DIRK M. SANDEFUR
We concur:
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ INGRID GUSTAFSON