CITY OF KALISPELL v. Sotomayor

2010 MT 54N

228 P.3d 451

2010 MT 54N

CITY OF KALISPELL, Plaintiff and Appellee, v. FRANKIE SOTOMAYOR, Defendant and Appellant.

No. DA 09-0391.

Supreme Court of Montana.

Submitted on Briefs: February 17, 2010.

Decided: March 16, 2010.

For Appellant: Joslyn Hunt, Chief Appellate Defender, Jennifer Hurley, Legal Intern, Helena, Montana.

For Appellee: Steve Bullock, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana.

Justice Patricia O. Cotter delivered the Opinion of the Court.

¶ 1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal Operating Rules, as amended in 2006, the following memorandum decision shall not be cited as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and its case title, Supreme Court 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 Frankie Sotomayor (Sotomayor) was arrested and charged pursuant to a traffic stop with several offenses, including driving under the influence and carrying a concealed weapon, in Kalispell Municipal Court. Sotomayor filed a motion to dismiss the charges because the officers did not have particularized suspicion to justify the stop. The Kalispell Municipal Court denied the motion to dismiss, finding that there was particularized suspicion to justify the traffic stop. Sotomayor pled guilty to driving under the influence and carrying a concealed weapon and appealed the denial of his motion to dismiss to the Eleventh Judicial District Court, Flathead County.

¶ 3 On April 29, 2009, the District Court affirmed the denial of Sotomayor's motion to dismiss. The District Court determined that the Municipal Court's findings that the officers had particularized suspicion to justify the stop were not clearly erroneous. See State v. Faber, 2008 MT 368, 346 Mont. 449, 197 P.3d 941. The District Court found that the Municipal Court correctly determined that the totality of the circumstances constituted objective data from which an experienced officer could make an inference that Sotomayor, as the driver of the vehicle, had been or was about to engage in wrongdoing. Accordingly, there was requisite particularized suspicion to justify the stop.

¶ 4 Sotomayor now appeals from the District Court's decision. We will review the District Court's decision to determine whether its conclusions of law are correct, and the findings in support thereof are clearly erroneous. Faber, ¶ 17. Particularized suspicion necessary to justify a...