Toeing the line 

Can police stop drivers who haven’t broken any laws?

As Washington politicians spar over military tribunals, material witness detentions and wiretaps, freedom and security continue to come into conflict locally on a smaller scale every day. The Montana Supreme Court recently tackled the issue as it relates to driving under the influence (DUI) in the case of City of Missoula vs. Bradley Cook. The core question was how much leeway the police should have in pulling over suspected drunk drivers who have not yet done anything illegal. Cook argued that the evidence from his traffic stop should not be used in his DUI case because the traffic stop was unlawful. In its decision last week, the court disagreed by a narrow margin of 4-3.

“This case changes Montana law in a way that is very favorable to prosecutors,” says John Bennett, Cook’s attorney in the case. Bennett’s counterpart, prosecutor Gary Henricks, doubts that the law has been changed, but was surprised the case split the justices so closely.

The case dates back to April 11, 1999. Brad Cook, a Missoula accountant with no prior record of drunk driving, was pulled over shortly after 1 a.m. He was on his way home from a downtown bar, and had stopped at a flashing red light at the intersection of Mount Avenue and Russell Street.

Waiting at the light, Cook saw a police car make a U-turn and pull up behind him. The officer honked his horn, and Cook waited a while and then proceeded through the intersection. He did not go through right away, Cook says, because the officer made him nervous. “I thought he was going to go around me,” Cook testified in Missoula Municipal Court. “But when he pulled up behind me, I was concerned that something was wrong, my lights were out, or something was wrong with my car.”

Officer Ken Guy pulled Cook over after he crossed the intersection. His version of the night’s events is similar to Cook’s, except he does not remember making the U-turn. He remembers heading west on Mount and simply pulling up behind Cook.

“I waited for a time and noted there was a lone driver in the vehicle,” Guy wrote in his report, which was read in court. “I honked my horn and waited for approximately 15 to 20 more seconds before the vehicle started to cross the intersection. I noted there were still no other vehicles in sight. I felt there must be a problem with the driver, so I initiated a traffic stop.”

Guy testified in court that in his eight and a half years with the Missoula Police Department, he had issued between 250 and 275 DUI citations and assisted with more than 100 others. Officer Guy’s suspicion was based on his experience and training, and therefore was legitimate, Henricks argued. Bennett, however, believes the officer’s presence and actions must be considered. While Henricks says the U-turn was not significant even if it did occur, Bennett believes its unnerving effect was key.

“It was the unusual driving of the officer that led my client to stay stopped at this intersection as long as he did,” Bennett says. “The important thing, though, is that sitting at a stop sign or a flashing red light for too long, that doesn’t violate any driving rules.”

Cook’s case hinged on what the law defines as “particularized suspicion.” Montana law allows officers to stop vehicles “observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.” Particularized suspicion can be based on a clear traffic violation—such as speeding or running a stop sign—or can be something like crossing the fog line or driving erratically. All this gets into murkier territory.

The state Supreme Court has established that to be reasonable, an officer’s particularized suspicion must be based on objective data. In the 1995 case, State v. Reynolds, which Cook relied on as a precedent, a sheriff’s deputy pulled over a driver after he waited too long to cross an intersection. The majority of justices, however, agreed with Henricks, who said that Reynolds did not apply to the Cook case because the cumulative circumstances—notably the time of night and the presence of other traffic at the intersection—were different.

“Based on the totality of the circumstances, Guy had sufficient objective data—when viewed in light of his experience and training—from which to make inferences regarding Cook’s possible impairment,” wrote Chief Justice Karla Gray in the majority opinion. In his dissent, Justice James Nelson countered that “there is not a scintilla of evidence that Cook violated any traffic law or that he was driving erratically prior to the stop. In fact, Cook was obeying the law.”

“Until this case, we felt we had a pretty good idea of what would constitute particularized suspicion,” says Jeff Renz, a University of Montana law professor. He does not think the law has been changed, but thinks the application of the law will be confused. “My only concern is that this tends to muddy things up in terms of the officer’s perspective,” he says. Officer Guy was probably making the right decision, Renz argues, but even so, particularized suspicion remains a gray area. “It’s a matter of where you’re shifting the line back and forth, do you want to pick people up more often or not?”

For Henricks and the law enforcement community, the answer is clear. Henricks cites the crash last week near Lolo in which an alleged drunk driver crossed over the center line and hit an oncoming car, killing a 6-year-old girl. If an officer saw the motorist driving erratically beforehand, asks Henricks, should he have let him go?

According to Missoula lawyer Rich Buley, a DUI specialist, the problem is not with the actions of officers, but with the consistency of the courts.

“They always put forth the standard of what particularized suspicion is, and then they kind of wing it from there,” Buley says. “I don’t think the standard has been reduced at all. I just think the Supreme Court has gone with the standard and decided both ways, so now who knows?”

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