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97-144

No. 97-144 IN THE SUPREME COURT OF THE STATE OF MONTANA 1997

STATE OF MONTANA, Plaintiff and Respondent, v. KENT JAMES PRATT, Defendant and Appellant.

APPEAL FROM:

District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Douglas G. Harkin, Judge presiding.

COUNSEL OF RECORD: For Appellant: J. Dirk Beccari; Quane, Smith, Howard & Hull; Missoula, Montana For Respondent: Hon. Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General; Helena, Montana Robert L. "Dusty" Deschamps, III, Missoula County Attorney; Robert L. Zimmerman, Deputy County Attorney;
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Missoula, Montana

Submitted on Briefs: November 6, 1997 Decided: Filed: December 16, 1997

__________________________________________ Clerk Justice Jim Regnier delivered the Opinion of the Court. Kent James Pratt was charged by information on November 2, 1995, with the offenses of felony driving under the influence of alcohol, misdemeanor possession of more than one valid Montana driver's license, and misdemeanor violation of the provisions of a restricted driver's license. Pratt filed a motion to suppress evidence of his intoxication which had been obtained following the investigatory stop of his vehicle. Pratt also filed a motion to dismiss the charge for lack of jurisdiction. The Fourth Judicial District Court, Missoula County, denied both motions. Pratt entered into a plea agreement with the State in which he agreed to plead guilty to felony DUI and the State agreed to dismiss the two misdemeanor counts and make a specified sentencing recommendation. The District Court sentenced Pratt to a term of five years, with two years suspended, with the Department of Corrections, and recommended his placement in the intensive supervision program. Pratt reserved the right to appeal from the District Court's denial of his pretrial motions. Pratt appeals from the sentence and judgment of the District Court, and from the orders denying his motion to suppress and motion to
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dismiss. We affirm. The following issues are presented on appeal: 1. Did the District Court err in denying Pratt's motion to suppress evidence, in which Pratt argued that Officer Pastian did not have a particularized suspicion to justify an investigatory stop of Pratt's vehicle? 2. Did the District Court err in denying Pratt's motion to dismiss the felony DUI charge for lack of jurisdiction? FACTUAL AND PROCEDURAL BACKGROUND The defendant's motion to suppress was submitted and decided without an evidentiary hearing. As a factual basis for his motion, however, Pratt used two police reports which he attached to the motion. The following facts are derived from the reports which were considered by the District Court. At 2:09 a.m. on October 5, 1995, Officer Scott Pastian of the Missoula City Police Department received a police dispatcher's report of an intoxicated driver. The report related that the driver was operating a white Toyota Land Cruiser, license number resembling "GRIZZII" and traveling north on Van Buren Street from East Broadway. The complainant was Mike Lafournaise, the night manager of the Short Stop convenience store in Missoula. Officer Pastian was traveling south on Van Buren Street when the dispatcher relayed the report with the description of the vehicle and license number. Officer Pastian saw Pratt's Toyota driving toward him on Van Buren Street and then turn onto Elm Street. Officer Pastian initiated a traffic stop. Subsequently, Pastian arrested Pratt for driving under the influence of alcohol, fourth offense; possession of more than one valid Montana driver's license; and violation of the provisions of a restricted driver's license. Officer J. Pontrelli overheard the dispatch report about the
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intoxicated driver and proceeded toward Van Buren Street. Upon hearing Pastian inform the dispatcher that he had stopped Pratt, Pontrelli drove to the Short Stop and talked to Lafournaise. Lafournaise described Pratt's actions and intoxicated condition while at the store. Lafournaise related to Officer Pontrelli that he saw a white male, now known as the defendant, Kent Pratt, drive a 1991 white Toyota Land Cruiser into the store's gas pump lanes where he stopped and sat for awhile and then drove away onto Broadway. A short time later, Pratt returned to the Short Stop, parked again in the pump lane, and stayed in the vehicle for a few minutes. Pratt then exited the vehicle and staggered into the store to the bathroom. After coming out of the bathroom, he went to the beer cooler and stood in front of it as if he were going to purchase some beer. The store attendant then told Pratt that he could not purchase any beer since it was after 2:00 a.m. Pratt left the store, fumbled around in his vehicle, and finally drove away. In reporting Pratt's actions at the Short Stop to the police, Lafournaise described the vehicle and its distinctive personalized license plate, and informed the dispatcher that Pratt was traveling north on Van Buren Street. On November 2, 1995, Pratt was charged by information in the Fourth Judicial District Court, Missoula County, with violations of: (1)

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Montana Law