                                                                                                June 5 2012


                                           DA 11-0652

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2012 MT 123N



CITY OF GREAT FALLS,

              Plaintiff and Appellee,

         v.

ROBERT JOHN TRACY,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. CDC-11-012
                        Honorable Kenneth R. Neill, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Jeffrey L. Sutton, Sutton Law Office, Great Falls, Montana

                For Appellee:

                        Steve Bullock, Montana Attorney General, Katie F. Schulz, Assistant
                        Attorney General, Helena, Montana

                        James W. Santoro, Great Falls City Attorney, Mary Matelich, Assistant
                        City Attorney, Great Falls, Montana



                                                     Submitted on Briefs: May 16, 2012

                                                                 Decided: June 5, 2012


Filed:

                        __________________________________________
                                          Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), 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     Robert John Tracy pleaded guilty in Great Falls Municipal Court to operating a

noncommercial vehicle with an alcohol concentration of 0.08 or more, in violation of

§ 61-8-406(1)(a), MCA. He reserved his right to appeal the Municipal Court’s denial of

his motion to dismiss. The Eighth Judicial District Court, Cascade County, affirmed, and

Tracy now appeals to this Court. We also affirm.

¶3     The incident occurred July 15, 2010, at around 2:10 a.m. Officer Shane Daniels, a

12-year veteran of the Great Falls Police Department, received a citizen’s report of a

running vehicle stopped at the T-intersection of Riverview Six West and Fifth Street

Northwest in Great Falls. This intersection is in a residential area. Daniels arrived on the

scene within three minutes. He saw a pickup stopped wholly within the right-hand lane

of travel for a full minute. The vehicle’s brake lights were on. Without powering the

sirens or the light bar of his patrol car, Daniels approached the passenger-side window of

the vehicle. He observed Tracy slumped over the steering wheel, apparently sleeping.

The pickup gear was in the drive position, and Tracy’s foot was on the brake pedal.

¶4     Daniels went back to his patrol car, activated the light bar, and then returned to

Tracy’s vehicle. He knocked on the window to awaken Tracy. Upon making contact,


                                             2
Daniels detected the odor of an alcoholic beverage emanating from the vehicle and

observed that Tracy had bloodshot eyes, slow speech pattern, and disorientation. Daniels

cited Tracy with driving under the influence.

¶5     Tracy argued in the Municipal Court that Daniels lacked particularized suspicion

of wrongdoing that would justify an investigative stop. In response, the prosecution

argued that Daniels had made a lawful seizure under the community caretaker doctrine.

The Municipal Court held a hearing at which Daniels and Tracy testified. Thereafter, the

court entered an order concluding that under the community caretaker doctrine, Daniels

acted appropriately in investigating Tracy’s running vehicle stopped in the traffic lane.

¶6     On appeal to the District Court, Tracy argued that the factual circumstances did

not support application of the community caretaker doctrine—specifically, that there

were not objective, specific, and articulable facts from which a law enforcement officer

would suspect that a citizen needed help or was in peril. See State v. Spaulding, 2011 MT

204, ¶¶ 18, 21, 361 Mont. 445, 259 P.3d 793. The District Court disagreed. Analogizing

to State v. Lovegren, 2002 MT 153, 310 Mont. 358, 51 P.3d 471, and State v. Burns, 2011

MT 167, 361 Mont. 191, 256 P.3d 944, the court concluded that the community caretaker

doctrine applied.

¶7     On appeal to this Court, Tracy maintains that the District Court erred. He cites

State v. Graham, 2007 MT 358, 340 Mont. 366, 175 P.3d 885, but that case is clearly

distinguishable. There, we observed that although Deputy Juhl initially may have had

reason to be concerned that Graham and his passenger were having vehicle problems, the

evidence of their conduct which she witnessed as she passed their vehicle completely


                                             3
obviated those concerns. It was “clear they were not parked there because they were in

peril, and nothing observed by Juhl suggested otherwise. Moreover, by Juhl’s own

admission, she did not stop and question Graham in order to assist them, but instead to

‘move them along.’ ” Graham, ¶ 30. That is not the situation here.

¶8     Tracy admits that he was stopped wholly within the right-hand lane of travel. He

contends that this was because he was “required to stop his vehicle at the uncontrolled

intersection to yield to traffic.” He further asserts that when Officer Daniels saw him

through the passenger window, Tracy was “looking down at his cellular phone to send a

text message.” Tracy argues that being “paus[ed] at the intersection to use his cellular

phone” is insufficient to support application of the community caretaker doctrine. We

conclude, however, that this argument is without merit.

¶9     Daniels came upon a vehicle that was not merely “paused” in the right-hand lane

of travel. The vehicle had been stopped there for at least four minutes: the three minutes

between Daniels’ receipt of the citizen’s report and Daniels’ arrival at the scene, plus the

one minute before Daniels approached the passenger-side window. Daniels did not

immediately power his sirens or his light bar (which would have been indicative of an

investigative stop, rather than a welfare check). When Daniels observed Tracy through

the passenger window, Tracy appeared to be slumped over the steering wheel. The

pickup gear was in the drive position, and Tracy’s foot was on the brake pedal. While

Tracy maintains that he was not passed out, but was instead sending a text message on his

mobile device, it was the province of the Municipal Court to assess the demeanor and

credibility of the witnesses at the hearing. Spaulding, ¶ 23. The Municipal Court found


                                             4
Daniels’ testimony about what he observed of Tracy’s appearance to be credible. Upon

seeing Tracy slumped over the steering wheel of his pickup, which was stopped wholly

within the driving lane for at least four minutes, with the vehicle running, Daniels had

objective, specific, and articulable facts from which a law enforcement officer would

suspect that a citizen needed help. The suggestion that Daniels should have driven off,

rather than investigate whether Tracy needed assistance, borders on the absurd.

¶10    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

District Court and this Court review the Municipal Court’s factual findings for clear error

and the Municipal Court’s legal conclusions for correctness.        See § 3-6-110, MCA;

Stanley v. Lemire, 2006 MT 304, ¶¶ 25-26, 334 Mont. 489, 148 P.3d 643. Doing so, we

conclude that the Municipal Court’s findings are supported by substantial evidence and

that the Municipal Court correctly interpreted the law.

¶11    Affirmed.


                                                                  /S/ JAMES C. NELSON


We Concur:


/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JIM RICE




                                             5
