MT: Couple kissing in a car is not particularized suspicion

A couple kissing in a car is not particularized suspicion that a crime is occurring or about to occur. Instead of “moving them along,” the officer detained them, and the detention was unlawful. The state’s community caretaking justification for rousting them also failed. State v. Graham, 2007 MT 358, 340 Mont. 366, 175 P.3d 885 (2007):

[*P20] Any particularized suspicion which arose in this case did so only after Graham was seized. Because the sweaty beer can and the state of undress of Graham and Strauser were observed by Juhl after she had seized them, they could not form a basis for particularized suspicion justifying the seizure in the first place. While Juhl claims that her intention in stopping Graham and Strauser was to simply “move them along,” and encourage them to engage in their “inappropriate behavior” elsewhere, that is not what she did. Instead, Juhl seized them within the meaning of the Fourth Amendment and Article II, Section 11, despite the fact that she lacked the particularized suspicion necessary to do so.

. . .

[*P29] The State argues that the District Court’s conclusions on this point were correct. The State contends that the objective and articulable facts justifying Juhl’s stop come from two sources: first, the unusual location of the car; and second, the observation that Graham and Strauser were kissing, and that Strauser had mounted Graham which, in spite of the District Court’s findings, the State maintains was evidence of Strauser and Graham engaged in a sexual act. Additionally, the State argues that Juhl’s intent to “move them along” falls within the scope of law enforcement actions justified by the community caretaker doctrine.

[*P30] We disagree and conclude that the District Court erred in its application of the community caretaker doctrine. As noted above, the first step in examining whether the community caretaker doctrine applies is to determine if “there are objective, specific and articulable facts from which an experienced officer would suspect that a citizen is in need of help or is in peril ….” Lovegren, P 25. Here, no such facts existed. Although initially Juhl might have been concerned that the unusual location of the pickup indicated Graham and Strauser were having vehicle problems, the evidence of their conduct which she witnessed as she passed their vehicle completely obviated those concerns. It is 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.”

Defendant was lawfully stopped for a window tint violation, and the officer asked about drugs in the car, and defendant offered to consent to a search, which was, thus, valid. State v. Cox, 248 S.W.3d 1 (Mo. App. 2008).*