[00:00:00] Speaker 01:
Your honors I'm here representing mr. Waldeck there are essentially There's two issues on the appeal the first issue is a issue whether or not the district court erred in denying a motion to suppress that has two components to it the first is whether or not the officers had reasonable suspicion to stop him on a Montana violation for

[00:00:23] Speaker 01:
not driving in the right-hand lane and in violation of Montana code 61 8 3 2 1 C with subparts So the officer stopped Waldeck on a traffic violation for what he indicated was driving in the right-hand lane and he indicated to mr. Waldeck that

[00:00:46] Speaker 01:
that the reason he stopped him was because he couldn't drive in the right-hand lane unless he's passing.

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And the Montana Code, 618321C, has three exceptions and lists a variety of exceptions.

[00:01:04] Speaker 01:
And lists a variety of exceptions.

[00:01:07] Speaker 00:
Right, one of which, if you're getting ready to turn left.

[00:01:09] Speaker 01:
Yes, if you're preparing to turn left.

[00:01:12] Speaker 01:
It has no distance requirement on it whatsoever.

[00:01:15] Speaker 01:
In a pretty long preparation, how many left turns did he pass before he finally... Well, he's from Oregon, Washington, maybe not as familiar, so he's passing the streets to see what the name of the streets are.

[00:01:27] Speaker 01:
But didn't he go, apparently... So, I mean, it's reasonable to do that, especially if you're from out of state.

[00:01:32] Speaker 02:
Counsel, didn't he, he went some three miles, did he not?

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And according to the

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The record extract, apparently he not only went three miles, but he passed five intersections, five different opportunities.

[00:01:44] Speaker 02:
Isn't that part of the record where he could have turned left?

[00:01:46] Speaker 01:
Yes, that is part of the record.

[00:01:48] Speaker 01:
That's what the officer testified to.

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That's what Judge Belloy referred to in page 20.

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So how far, if you go 30 miles and you passed 18, does that give reasonable suspicion?

[00:01:58] Speaker 02:
But if you go three miles and you only passed five, that it's not reasonable suspicion?

[00:02:02] Speaker 01:
Well, you know, this is a state highway, assuming that it's right outside the town of Poulsen.

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There's going to be more left turns the closer you are to Poulsen than there would be, let's say, if you're going a long distance.

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So it is reasonable to anticipate having turning left to stay in the left-hand lane.

[00:02:18] Speaker 01:
And there's nothing in the Montana code that says there's a distance requirement, which is different from the issue that was in the Texas case, the Fifth Circuit case, that had a distance requirement.

[00:02:30] Speaker 01:
But the whole issue in that case was, was whether it was a left turn or a left lane change, and that's the case that I cited in my brief.

[00:02:39] Speaker 03:
How about the tip from Rodriguez, though?

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I mean, they've got two reasons to support it.

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The other one is the tip from Rodriguez.

[00:02:45] Speaker 01:
There is a tip from Rodriguez.

[00:02:47] Speaker 03:
Why is that not sufficient to justify the stop?

[00:02:50] Speaker 01:
Well, first of all, we know she's a known liar because she lied to him at least on two occasions on two significant facts.

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Number one is she indicated that a person named David didn't give David's last name.

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Whereas in Roland, the informant gave the first and last name so they knew the identity.

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So that's one flaw.

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After the stop, she texted them and said that this person, David, who drives a red charger, isn't going to be in Poulsen until the next day.

[00:03:20] Speaker 01:
What about the corroboration?

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Anne also said that this person wasn't going to be at the casino, he was going to be at some other hotel, which those two instances didn't pan out.

[00:03:35] Speaker 00:
Can you address the corroboration?

[00:03:38] Speaker 01:
she said he had history our priors the officers verified that so the prior name match yes the priors go back to 2016 this is october 2022 um so there is a significant gap in in time and activity in relation to the priors she uh the only thing she corroborated that was corroborated

[00:04:02] Speaker 01:
was that there was a person named David that drove a red charger.

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She gave no basis of knowledge as to why he would have a significant amount of drugs at that time and that place, and there was nothing that corroborated he did.

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And he was driving a red charger?

[00:04:19] Speaker 01:
Yeah.

[00:04:20] Speaker 01:
And he had Washington plates?

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And he was either from Washington or Oregon.

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She didn't know which.

[00:04:25] Speaker 03:
And he had Washington plates, and he observed her talking to him, right?

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with no exchange, with no indication of exchange.

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So it proves that there was a person named David driving a red charger who knows Rodriguez.

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Well unlike Rowland, Rowland where they found the informant had no motive whatsoever to give false information.

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She had a motive.

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She didn't know she wasn't going to be arrested on that warrant.

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She had an outstanding warrant.

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She had a motive to deflect whatever was going on during that time onto somebody else.

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So she has a motive.

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So that's why in this case is far different than Rowland.

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And what they've corroborated, they haven't corroborated

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activity that's consistent with what she was saying because what she was saying is David isn't going to be there until the next day and he'll be staying at another motel.

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So all they corroborated was there's a guy named David whose red charger was at the casino.

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Although on the other hand you've got to be a pretty dumb cop

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If you get this tip from her, you know she's in trouble, you know she's trying to get out of trouble, so she gives you a tip.

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And then all these things happen that don't quite match, but they match kind of close for you to say, oh, there's nothing here.

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Boy, if a cop says there's nothing here and he goes for a cup of coffee, I'd say, I don't think you're doing your job.

[00:05:54] Speaker 01:
Well, they didn't get the phone number of Dave Big Dog and try to search to see what that phone number belonged to.

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Yeah.

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That's true.

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may amount to a somewhat of a quick response with very little information based on what the police did.

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Because the case is so, when you really look at the detail of this case and the informant in this case, who has no track record, who did lie, at least on a couple significant information, and for them to conclude, okay, this David and this red charger, who's supposed to be here tomorrow,

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And all they have is that they met with with no information of any exchange of money or drugs It's just it's really Is there does it give you a gut feeling?

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Yeah, but is it reasonable suspicion?

[00:06:45] Speaker 02:
I really think that's what I think Roland said totality of the circumstances, didn't it?

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But the totality of the circumstances, Your Honor, I suggest, leans against reasonable suspicion.

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Because there isn't any one thing that corroborates that Mr. Waldeck, at that point in time, was involved in drug trafficking or had anything in his car.

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The informant did not give them the corroborative detail that was in the Alabama versus White case.

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where they could actually track the person who was actually identified, the person that was identified from a specific apartment into a specific car with a broken taillight, then go into the place where they said she was going to go to get drugs.

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and go back to the Mobley Hotel.

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And the person was right outside of the Mobley Hotel when they stopped.

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So there was not only a name given, specific car with a broken taillight, and the direction of travel and the travel pattern

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fit exactly what the informant said would occur.

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Is there a difference as to the level of suspicion that's required for a traffic stop, which this is, compared to a genuine arrest?

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Is there a difference?

[00:08:03] Speaker 01:
Yeah.

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Yeah, one's probable cause and the other one is reasonable.

[00:08:08] Speaker 03:
Less suspicion required for this.

[00:08:10] Speaker 01:
Yeah, I think had they connected Dave big dog Texts to mr. Wallach they may have had it but they didn't they didn't make an effort to connect that to Those text messages, so we're not talking arrest that we're talking stop traffic stop Yeah, but there has to be some corroboration and and they don't to corroborate.

[00:08:28] Speaker 01:
He's the one he's the david that they're talking about I know you wanted to save a little bit of time.

[00:08:34] Speaker 01:
I am and I'll just rest the second issue on the briefs

[00:08:38] Speaker 00:
All right, thank you, counsel.

[00:08:40] Speaker 00:
Let's hear from the government.

[00:08:47] Speaker 04:
Good morning.

[00:08:47] Speaker 04:
Jennifer Clark on behalf of the United States from the District of Montana.

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I'll begin to address the informant, Ms.

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Rodriguez.

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And the officers had reasonable suspicion based on the totality of the circumstances from the information that she provided.

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This case parallels Rowland, and as the case of the state, you take each one on a case-by-case basis.

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First of all, Ms.

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Rowland was known to the officers.

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She met with them, so she, like the informant in Rowland, would face consequences if she was not truthful with them.

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Her basis of knowledge was provided because she told them that she had met with him before.

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She had purchased drugs from him before.

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She showed them text messages that she said was with him that they discussed her purchase of methamphetamine.

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She said that she told him to come over to Montana to distribute his drugs because he would make more money here.

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And so she had a basis of knowledge to provide.

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She provided predictive information that they corroborated, which was a man named David.

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She told them that the car would be registered to him.

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When they found the car, they ran the registration, and it came back to David Waldeck.

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They Googled him.

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They found that he did have a lengthy history, which she told them that they would find.

[00:10:06] Speaker 04:
She told them that she was going to meet up with him later, and they did indeed see that.

[00:10:10] Speaker 03:
Now, while she was in- A different kind of later, however.

[00:10:13] Speaker 04:
Correct.

[00:10:14] Speaker 04:
She was untruthful about that instance, but taking the totality of the circumstances and what they were able to corroborate and verify, the reasonable suspicion does exist in this case based on her information.

[00:10:27] Speaker 04:
And Alabama V. White says, not every detail that is provided by the informant needs to be verified.

[00:10:34] Speaker 02:
She did not observe any specific drug exchange, though, correct?

[00:10:38] Speaker 04:
That's correct.

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And again, the totality of the circumstances, I believe, weighs in favor of reasonable suspicion given all of the information that she had provided.

[00:10:49] Speaker 04:
Mr. Harmel talked about the fact that she said he was from Oregon when, in fact, he was from Washington.

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The district court noted that he was from out of state.

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In the record, she said that she had just arrived from Oregon, and it could be that

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She was just, she had met with him before in Oregon and that's why she made that assertion.

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The other details that they had corroborated was that he was an older male.

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He was at the casino.

[00:11:18] Speaker 04:
She said he was not going to be staying at that casino, but she did not say he was going to not be at that casino.

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And that casino is known for drug distribution, and that's located in the record at 119.

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The second reason that the officers had a reasonable suspicion to stop

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Mr. Waldeck was based on the Montana code 618321.

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And I would direct the court to subsection three, which is the specific section that addresses roads such as the one Mr. Waldeck was on, the ones that have two lanes traveling in one direction.

[00:11:51] Speaker 04:
That statute starts with, you must drive in the right-hand lane unless you meet one of the exceptions.

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And there's many of those exceptions delineated.

[00:12:00] Speaker 04:
As the court was discussing, and at Docket 32 is the video that the officers took.

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And you can see long-turn left-hand turn lanes that he passed.

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And he did that for nearly three miles.

[00:12:13] Speaker 03:
Was he traveling in such a speed that it was plausible that he was looking?

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Meaning, the argument here is,

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He wanted to turn left.

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He wasn't quite sure where.

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And someone doing that is maybe going to go a little slowly as he checks out each place this way.

[00:12:30] Speaker 03:
What speed was he driving?

[00:12:33] Speaker 04:
We know he was driving below the speed limit.

[00:12:35] Speaker 04:
At one part, it was 55 miles an hour was the speed limit, and one part was 70.

[00:12:39] Speaker 04:
The officers never did state at what speed he was traveling.

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However, you can see in the video that he's not slowing down at each intersection as if to look to see if he is going to turn.

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continues along in that left-hand lane and he does so for quite a while at the record at 70 through 71 the video starts late and the officer said that he started that video after Caffrey Lane and estimated from Caffrey to Minesinger where he actually turned left was one mile.

[00:13:11] Speaker 04:
Just looking at the video when it started after a minute and 20 seconds that silver car comes up behind him and is unable to pass which is one of the

[00:13:20] Speaker 04:
reasons you need to be in the right-hand lane to let traffic pass in the left-hand lane.

[00:13:25] Speaker 04:
At 144 the sirens are activated and at 212 you see the officers make the left-hand turn.

[00:13:33] Speaker 04:
If you estimate that that took about a mile, it would be about four minutes that he traveled in the left-hand lane before actually making a left-hand turn.

[00:13:43] Speaker 04:
Now, the officers had specific articulable facts that they identified that he was doing to violate the statute, and it's objectively reasonable for them to make this stop

[00:13:54] Speaker 04:
based on the fact that he traveled so far in that lane.

[00:13:58] Speaker 04:
Mr. Hormel points out that there's no time limit, but I would argue that it's reasonable for them to believe that he's violating the statute.

[00:14:06] Speaker 04:
And the touchstone of the Fourth Amendment is reasonableness.

[00:14:11] Speaker 04:
So based on those two reasons, the government believes that there was reasonable suspicion for the traffic stop.

[00:14:17] Speaker 02:
There is no distance limitation in this particular Montana statute, correct?

[00:14:21] Speaker 04:
That is correct, Your Honor.

[00:14:27] Speaker 04:
If the court would like me to address the expert testimony argument.

[00:14:34] Speaker 04:
The district court did not abuse its discretion when it admitted the testimony of Agent Shade as an expert.

[00:14:43] Speaker 04:
expert testimony is admissible if it's relevant, probative, and not prejudicial, and you must look if it substantially outweighs the probative value.

[00:14:52] Speaker 04:
In this case, and this court had recently decided in January the Velazquez case that stated that

[00:14:58] Speaker 04:
testimony similar to this on street value of drugs was relevant to show an element of the offense.

[00:15:04] Speaker 04:
In that case, it was an importation case, and that went to knowledge.

[00:15:08] Speaker 04:
Our argument to the district court in this matter was that it went to both knowledge and his intent to distribute.

[00:15:13] Speaker 00:
I don't read counsel's argument as really disputing the relevancy.

[00:15:17] Speaker 00:
It's more of four, three, overkill.

[00:15:20] Speaker 00:
You had so much evidence of distribution type of argument.

[00:15:23] Speaker 04:
Correct.

[00:15:23] Speaker 04:
And the other witnesses, the district court certainly looked at that and made some comments about it and ultimately decided that this was not cumulative evidence.

[00:15:32] Speaker 04:
In fact, he limited the testimony of Agent Shade to not cover what had already been brought into the record, which was the weight of the drugs and how it was packaged.

[00:15:41] Speaker 02:
Judge Malloy just limited to drug prices, correct?

[00:15:44] Speaker 04:
That is correct.

[00:15:45] Speaker 02:
And the total figure was $290,000, is that right?

[00:15:47] Speaker 04:
Correct.

[00:15:48] Speaker 03:
And there had been no other testimony as to the street value of the drugs?

[00:15:52] Speaker 04:
There had not been.

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And so based on the fact that expert testimony is relevant and that rule 403 favors admission, we believe that the district court did not abuse its discretion.

[00:16:04] Speaker 04:
And we would ask this court to affirm the district court's ruling on that matter and find that there was reasonable suspicion for the traffic stop.

[00:16:13] Speaker 04:
And if the court has no other questions, I will cede my time.

[00:16:15] Speaker 04:
Thank you.

[00:16:16] Speaker 04:
Thank you.

[00:16:16] Speaker 04:
All right.

[00:16:16] Speaker 04:
Thank you, counsel.

[00:16:25] Speaker 01:
I think I had a little bit left.

[00:16:29] Speaker 01:
First of all, the statute at issue, I'll go to the first issue first.

[00:16:33] Speaker 01:
It starts out with the exceptions and then says you have to stay on, drive on the right hand.

[00:16:38] Speaker 01:
It says accept as provided in 3B and subject to subsection 4.

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Upon all roadways having two or more lanes and traffic moving in the same direction a vehicle must be driven.

[00:16:51] Speaker 01:
So it starts out a person learning that statute is going to know to begin with that there are multiple exceptions.

[00:16:59] Speaker 01:
So I believe that the reasonableness of the mistake has not been met in this case.

[00:17:05] Speaker 02:
May I ask you if I can, with respect to the notion of the distance limitation, and you contrasted this with I think the Texas statute, if I'm not mistaken.

[00:17:14] Speaker 02:
Well, there's no distance limitation, but I'm not sure if we would interpret it that way, because if you require that there's a distance limitation,

[00:17:25] Speaker 02:
It really takes all the force out of the statute because someone can be in the left-hand lane and have an optional left turn five, six, eight, nine, ten miles up the road.

[00:17:35] Speaker 02:
I don't understand what your argument is that because there's no distance limitation that therefore it's ambiguous.

[00:17:43] Speaker 01:
I don't even think it's ambiguous it just doesn't have a distance limitation and when you look or review the testimony officers and look at the the tape or the video there there's just regular left-hand turns coming up every so often so so there's nothing in it's it's clear there's nothing in the statute that indicates

[00:18:03] Speaker 01:
How long you have to prepare how short you have to prepare this but the Texas statute was really clear It had to be at within a hundred feet.

[00:18:11] Speaker 01:
So I don't think that the that favors The reasonableness of the officer, especially when the officer says the only exception there is as if you're passing it's not a reasonable interpretation of what the law really is and then can I

[00:18:26] Speaker 00:
You're over time, but why don't you go ahead and wrap up.

[00:18:29] Speaker 01:
Okay.

[00:18:29] Speaker 01:
So the other part of Roland that's important is that the informant has to give predictive information, and that predictive information has to be corroborative of the crime that they are investigating.

[00:18:40] Speaker 01:
Nothing that the officers corroborated indicated whatsoever that David Waldek was the David and that David Waldek was engaged in criminal activity.

[00:18:54] Speaker 01:
And then the part of the prejudice that I was really focusing on is at page 420 of excerpt record 3.

[00:19:04] Speaker 01:
And that was when Agent Shade testified as to what guidelines they used to determine whether it goes federal, indicating that Mr. Waldeck was a major drug dealer and not a low-level dealer.

[00:19:18] Speaker 01:
So I'll submit it on that.

[00:19:20] Speaker 01:
Thank you.

[00:19:20] Speaker 00:
All right.

[00:19:21] Speaker 00:
Thank you very much, counsel, for both sides for your argument.

[00:19:24] Speaker 00:
The matter is submitted.