NO. 94-174
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
SCOTT A. SANTEE,
Petitioner and Appellant,
-"ST.-
THE STATE OF MONTANA, DEPARTMENT
OF JUSTICE, MOTOR VEHICLE DIVISION, OCT 2 5 1994
Respondent and Respondent.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Byron L. Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Joseph T. Swindlehurst; Huppert & Swindlehurst,
Livingston, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
BrendaNordlund, Assistant Attorney General, Helena,
Montana
Jon M. Hesse, Park County Deputy Attorney,
Livingston, Montana
Submitted on Briefs: September 15, 1994
Decided: October 25, 1994
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
Scott A. Santee (Santee) appeals an order of the District
Court of the Sixth Judicial District, Park County, suspending his
driver's license. We affirm.
The issues raised on appeal are:
1. Did the District Court err when it held that the State
established reasonable grounds to arrest Santee for Driving Under
the Influence?
2. Did the District Court err when it found that the American
Bank parking lot is a way of the state open to the public?
At approximately 8:15 p.m. on August 25, 1993, Officer Glen
Farrell of the Livingston Police Department was dispatched to
investigate a complaint, unrelated to the present case, at the
Livingston Bar and Grill. After Officer Farrell investigated the
complaint, he was stopped inside the Livingston Bar and Grill by a
man who reported that he had seen an extremely intoxicated man
walking across the street whom he feared was going to drive away.
While Officer Farrell and the witness walked toward Officer
Farrell's police car, the witness pointed out Santee as the
intoxicated man he had seen earlier. At that time, Santee was
walking towards a truck parked in the American Bank parking lot.
As Officer Farrell continued toward his patrol car, two women waved
him down and said that the individual getting into the truck in the
American Bank parking lot was extremely intoxicated and about to
drive away.
2
Officer Farrell drove his patrol car to the American Bank
parking lot where he stopped Santee. Santee had backed his truck
out of his parking spot and was starting to pull forward when
Officer Farrell stopped him. Officer Farrell arrested Santee for
driving while under the influence of alcohol, a violation of § 61-
8-401, MCA. Officer Farrell requested Santee to take a
breathalyzer test, but Santee refused. Pursuant to Montana's
implied consent law, Officer Farrell confiscated Santee's driver's
license. See 5 61-8-402, MCA.
On September 2, 1993, Santee petitioned the District Court to
determine if his driver's license should be restored. The court
set a hearing date for October 12, 1993, and ordered that Santee
retain his driver's license and driving privileges prior to its
ruling. On October 12, 1993, the District Court heard the parties'
arguments. On January 18, 1994, the court entered its order
suspending Santee's driver's license for 90 days. From this order,
Santee appeals.
Did the District Court err when it held that the State
established reasonable grounds to arrest Santee for Driving Under
the Influence?
Upon notification of suspension of driver's license for
refusal to submit to a breath, blood, or urine test to detect the
presence of alcohol, the defendant may petition the district court
for a hearing to determine whether the suspension is proper. See
5 61-8-403, MCA. The issues at the hearing are limited by 5 61-8-
3
403, MCA, to:
(1) whether the arresting officer had reasonable arounds
to believe the following:
(a) that the petitioner had been driving or was in actual
physical control of a vehicle:
(b) that the vehicle was on a way of this State open to
the public; and
(c) that the petitioner was under the influence of
alcohol:
(2) whether the individual was placed under arrest; and
(3) whether the individual refused to submit to a
chemical test.
Jess v. State, Dept. of Justice, MVD (1992), 255 Mont. 254, 258-59,
841 P.2d 1137, 1140; citing Gebhardtv. State (1989), 238 Mont. 90,
95, 775 P.2d 1261, 1265. The hearing is a civil proceeding, and
the petitioner has the burden of proving that the State's actions
were invalid, rather than requiring the State to justify its act of
revocation. Jess, 841 P.2d at 1140.
We have determined that for an arrest to be valid, an officer
must have probable cause to make an arrest. -,
Jess 841 P.2d at
1141. We have stated that probable cause is analyzed by
determining "if at the time of the arrest the facts and
circumstances within the officer's personal knowledge, or upon
information imparted to him by a reliable source, are sufficient to
warrant a reasonable person to believe that the suspect has
committed an offense." Jess
-I 841 P.2d at 1141; citing State v.
Ellinger (1986), 223 Mont. 349, 352, 725 P.2d 1201, 1202.
Santee contends that Officer Farrell did not have probable
cause since there was no evidence presented at the hearing that
Officer Farrell corroborated reports that Santee was intoxicated.
In support of this proposition, Santee cites State v. Lee (1988),
4
232 Mont. 105, 754 P.2d 512, and State v. Sharp (1985), 217 Mont.
40, 702 P.2d 959. In &, an officer called for assistance after
he pulled two vehicles over and suspected that Lee, the driver of
the second vehicle, was intoxicated. A second officer (Officer
Grimstad) arrived, performed sobriety tests on Lee, and arrested
him for driving under the influence. Lee, 754 P.2d at 513. Lee
argued that Officer Grim&ad did not have probable cause to arrest
him. We held that Officer Grimstad had probable cause because: 1)
after performing the sobriety tests, Officer Grim&ad personally
knew that Lee was intoxicated; and 2) Officer Grimstad obtained
knowledge that Lee was driving from a reliable source (the first
officer), and this information was corroborated by Lee, who
admitted that he had been driving. Lee, 754 P.2d at 515.
In Sharp, an anonymous caller informed the highway patrol that
an intoxicated person had driven away from a local bar. The caller
gave a description of the vehicle, its license number, and the
direction it was travelling. When the responding officer
discovered the car stopped in the road with 57 feet of skidmarks
behind the car, it started to pull away so the officer pulled the
car over. The officer gave the driver a field sobriety test which
the driver passed. The officer noticed that Sharp, the passenger,
appeared intoxicated. The driver said that he had just taken over
the driving for Sharp before the officer stopped the car. The
officer contacted the anonymous caller who then identified herself
and stated that Sharp was the intoxicated person driving the
vehicle when it left the bar. Sharp, 702 P.2d at 962.
5
We held that the officer had a reasonable suspicion to pull
the car over because it matched the informant's description and was
travelling in the direction reported by the informant. Sharp, 702
P.2d at 962. Sharp argued that the officer did not have probable
cause to continue his investigation after he performed the initial
sobriety tests on the driver. We held that the officer had
probable cause to arrest Sharp because: 1) the officer observed
Sharp in an apparently intoxicated state: and 2) the driver stated
that Sharp had been driving, and his statement was corroborated by
the caller's report that Sharp was driving the vehicle when it left
the bar. Sharp, 702 P.2d at 963.
Both & and Sharp demonstrate that some facts necessary to
establish probable cause may come from sources other than the
arresting officer and may be corroborated by information from
individuals other than the arresting officer. L e e , 754 P.2d at
See
515; Sharp, 702 P.2d at 963. In the present case, Officer Farrell
received reports from three witnesses that an individual was
extremely intoxicated, and they were afraid he would drive in this
condition. The information reported by the first citizen
informant, that Santee was extremely intoxicated, was corroborated
by the other two citizen informants who also informed Officer
Farrell that Santee was extremely intoxicated. In addition, all
three witnesses were in Officer Farrell's presence when they
indicated that Santee was the intoxicated individual. Information
provided by citizen informants is considered presumptively
reliable. Jess, 841 P.2d at 1141; citing Share, 702 P.2d at 962.
6
Officer Farrell testified that he further investigated by driving
to the American Bank parking lot, where Santee pulled out of his
parking spot and was about to pull forward into the alley.
Facts and circumstances within Officer Farrell's personal
knowledge (that Santee was in control of his truck in the American
Bank parking lot), and facts imparted to him by the three citizen
informants (that Santee was intoxicated), were sufficient to
warrant a reasonable person to believe that Santee was driving
while under the influence of alcohol. Thus, Officer Farrell had
probable cause to arrest Santee for that offense. We hold that the
District Court did not err in concluding that Officer Farrell had
reasonable grounds to arrest Santee.
II
Did the District Court err when it found that the American
Bank parking lot is a way of the state open to the public?
Montana's implied consent law states in relevant part:
(1) Any person who operates or is in actual physical
control of a vehicle upon ways of this state open to the
public shall be deemed to have given consent, subject to
the provisions of 61-8-401, to a test of his blood,
breath, or urine for the purpose of determining any
measured amount or detected presence of alcohol in his
body if arrested by a peace officer for driving or for
being in actual physical control of a vehicle while under
the influence of alcohol, drugs, or a combination of the
two.
SeCtiOn 61-8-402(l), MCA (1991). Santee was stopped after backing
out of his parking space in the American Bank parking lot. He
contends that the American Bank parking lot is not a way open to
the public, thus he was not subject to the provisions of the
implied consent law.
A Montana statute defines "ways of this state open to the
public" as "any highway, road, alley, lane, parking area, or other
public or private place adapted and fitted for public travel that
is in common use by the public." Section 61-8-101(l), MCA. We
examined this statute in City of Billings v. Peete (1986), 224
Mont. 158, 729 P.2d 1268. In Peete, we recognized that 5 61-8-
101 (1) , MCA, was patterned after Seattle Traffic Code §§ 11.12.1020
and 11.12.715. Peete, 729 P.2d at 1269. We relied on Washington
courts' interpretations of the Seattle code in determining that the
Northern Hotel's parking garage in Billings was a way of the state
open to the public. Peete, 729 P.2d at 1270-71.
Santee contends that Peete is distinguishable because the
Northern Hotel parking garage was open to every member of the
public who paid a fee to park there, whereas the American Bank
parking lot was restricted to bank employees and bank customers.
A Washington case interpreting Seattle's traffic code is again
instructive. In City of Seattle v. Tolliver (Wash. Ct. App. 1982),
641 P.2d 719, 721-22, the Washington Court of Appeals determined
that a private parking lot, posted with signs declaring that
unauthorized vehicles would be impounded, constituted a way open to
the public since the lot was accessible to busy intersections, and
the lot was often used, without authorization, by patrons of nearby
taverns. Santee claims that Tolliver is distinguishable because it
is not clear whether the parking lot in that case was a parking lot
for hire or strictly a private lot. This distinction is
unpersuasive as applied to the present case.
8
Here, the American Bank parking lot is posted with signs
stating that it is a private lot and violators will be towed.
Testimony revealed that the lot is commonly used by members of the
public who are patrons of nearby taverns rather than bank
customers. The only access to the lot is by an alley, but this
alley and the American Bank parking lot are in the middle of an
active Livingston business district. We hold that the American
Bank parking lot is a parking area fitted for public travel and in
common use by the public. Therefore, it is within the definition
of "ways open to the public" contained in 55 61-8-101(l), MCA, and
61-8-402(l), MCA. We hold that the District Court did not err in
determining that the American Bank parking lot is a way of the
state open to the public.
The judgment of the District Court is affirmed.