No. 13491
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
GEORGE BENBO ,
Defendant and Appellant.
Appeal from: District Court of the Twelfth Judicial District,
Honorable B. W. Thomas, Judge presiding.
Counsel of Record:
For Appellant:
Donald A. Ranstrom argued, Chinook, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Allen Chronister argued, Assistant Attorney General,
Helena
William Solem, County Attorney, Chinook, Montana
Submitted: April 13, 1977
Decided :
3 C T 2 6 19771
Filed: 3C) 2 6 ' Y f l
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
~efendantGeorge Benbo appeals from a conviction of felony
theft under section 94-6-302(3), R.C.M. 1947, following a jury trial
in the district court, Blaine County.
On August 20, 1975, a complaint was signed and arrest war-
rant issued from the Cascade county justice court charging defendant
with two counts of felony theft under section 94-6-302(1) (a), R.C.M.
1947. Defendant was arrested in Blaine County, and without being
arraigned there, he was immediately taken by the police to Yellowstone
County to recover the stolen items. From there he was taken to
Cascade County. He was later tried and convicted in Blaine County.
Defendant's appeal contends the trial court should have
granted a motion to suppress evidence and that he was denied effec-
tive assistance of counsel by his retained counsel at the pretrial
and trial level. He contends the trial court should have granted
his motion to suppress because the complaint and arrest warrant
issued from Cascade County were defective because the Cascade County
justice of the peace had no jurisdiction to issue them. He relies
on section 95-1503(c)(4), R.C.M. 1947, which provides: "A charge
shall * * * [state] the time and place of the offense as definitely
as can be done * * *." He also contends the trial court should
have granted the motion to suppress evidence of statements he al-
legedly made to the police while on the way to Yellowstone County
fromBlaineCounty to recover the stolen guns. In this regard, he
contends the police violated his rights under section 95-901(a),
R.C.M. 1947, and 95-603 (d)( 3 ) , R.C.M. 1947, which provide that upon
an arrest the person must be taken "without unnecessary delay" for
an initial appearance before a judge in the county where the arrest
is made.
The facts leading up to defendant's arrest and conviction
are :
On August 8, 1975, approximately 30 handguns were stolen
from the Coast to Coast hardware store in Great Falls, Montana,
Cascade County. A semi-automatic rifle was also stolen from the
weapons room of the Great Falls police department. Defendant was
not involved in either burglary.
The day after the burglaries, defendant was approached in
Chinook, Montana, by John Bauman, his nephew by marriage. Bauman
and his brother had earlier purchased the stolen weapons. Bauman
asked defendant if he would be interested in buying some "merchandise"
without indicating the nature of the "merchandise1'. Defendant indi-
cated he would look at the "merchandise". At his own request, Bauman
borrowed defendant's pickup truck, drove it to the point near Great
Falls where the handguns had been cached, picked up the guns and
returned to Chinook. On August 10, after examining the weapons at
Bauman's brother's home in Chinook, defendant bought the handguns
and took the semi-automatic rifle to sell on consignment. Defendant
later brought the weapons to Billings, Montana.
On August 19, 1975, the Bauman brothers were arrested in
Chinook by officers of the Great Falls police department. The offi-
cers learned the weapons had been sold in Chinook to defendant,
George Benbo.
On August 20, 1975, a complaint was presented in Great Falls
justice court, charging defendant with two counts of felony theft
under section 94-6-302(1)(a), R.C.M. 1947, alleging the offenses
had been committed in Great Falls. A warrant for defendant's arrest
was issued by a Great Falls justice of the peace.
On the afternoon of August 20, three Great Falls police
officers drove to Chinook. The proceeded from there with a ~ l a i n e
County deputy sheriff to a ranch south of Chinook in Blaine County
where defendant was working. They arrived at the ranch at about
8 o'clock that evening. Defendant identified himself, was placed
under arrest, and given copies of the complaint and the arrest
warrant, both of which he read. Defendant was told he had the
right to remain silent and that anything he said could and would
be used against him. He also was told he had the right to an attor-
ney and if he could not afford an attorney, one would be provided
for him. Defendant acknowledged he understood these rights.
The officers told defendant they knew he had the guns and
recovery of the guns would be in his best interest. Defendant ad-
mitted he had the guns and stated they were at his house in Billings.
After the officers explained a warrant could be obtained allowing
them to search the house, defendant indicated a search warrant would
not be necessary, that he would voluntarily give them the guns.
The officers then decided to go directly to Billings with
defendant rather than returning immediately to Great Falls. Defend-
ant went inside the ranch house to get his personal gear and returned
with a small satchel. One of the officers opened the satchel and
found a .36 caliber black powder pistol, one of the weapons taken
in the Coast to Coast store burglary.
The three Great Falls officers, with defendant in custody,
left the ranch for Billings at about 9 o'clock p.m. The officers
testified defendant was very cooperative and relaxed throughout the
trip and that he freely engaged in a conversation covering a variety
of topics. One of the officers testified he considered the conver-
sation to be an interrogation of defendant, and conceded that although
defendant was asked several times if he was "aware of his rights"
the full "Miranda" warning was given only once, before the trip
began.
Defendant and the police officers arrived in ~illings
shortly after midnight. After picking up a Yellowstone county
deputy sheriff, they proceeded to defendant's house. ~efendant
showed the officers the suitcase in which the pistols were kept, and
told them the rifle was under the bed. The officers recovered the
weapons, loaded them into the patrol car, and after stopping for a
meal, drove to Great Falls, arriving there at 5:30 on the morning
of August 21.
The record does not disclosewhen, or whether, defendant
was given an initial appearance before a judge in Cascade County.
The action against defendant in that county was dismissed by the
county attorney on September 3, 1975. The information under which
defendant's conviction was obtained was filed in Blaine County on
October 16, 1975. Defendant was found guilty on March 24, 1976.
Following denial of his motion for a new trial, he appealed.
By his motion to suppress, defendant sought to exclude all
evidence gathered by the Great Falls police from the time he was
arrested at the ranch. This included the gun found in the satchel,
the guns recovered from his Billings house, and statements he al-
legedly made during the trip from the ranch to Great Falls, con-
cerning his belief or knowledge that the guns had been stolen when
he purchased them. After a hearing, the district court denied the
motion. At trial all of the guns were admitted into evidence, and
two of the arresting officers testified defendant told them he knew
or believed the guns were stolen. In his testimony, defendant denied
making any statements to the officers concerning the origin of the
guns.
Defendant first contends the motion to suppress should have
been granted because the complaint issued from the Cascade county
justice court was defective. The complaint states defendant com-
mitted felony theft on August 10, 1975, in Great ~ a l l s ,cascade
County. Defendant contends the police knew at the time they applied
for the arrest warrant out of Cascade County that he had nothing to
do with the burglaries committed there and he had purchased the guns
in Blaine County. Therefore, defendant argues the complaint fails
to meet the requirement of section 95-1503(c)(4), R.C.M. 1947, that
a charging document must state "the time and place of the offense
as definitely as can be done."
Here, however, the purpose of the complaint was not to
charge the offense but to establish the basis for an arrest warrant.
While the police knew defendant had purchased the guns in Blaine
County, they also knew his truck was used to retrieve the handguns
that had been hidden in Cascade County. One of the arresting offi-
cers testified the complaint and arrest warrant were issued out of
Cascade County for that reason.
In any event, the charging document was the Information
filed in Blaine County subsequent to the dismissal of the Cascade
County action, and its sufficiency is not questioned. The fact that
the complaint places the offense in Cascade County does not invali-
date either the complaint itself or the arrest warrant issued and
served upon the complaint.
Defendant's second challenge to the district court's denial
of his motion to suppress is grounded on the failure of the arrest-
ing officers to take him before a Blaine County judge promptly after
his arrest.
Section 95-901(a), R.C.M. 1947, sets forth the duty of a
person making an arrest to provide the arrested person with an ini-
tial appearance. In relevant part ik provides:
" * * * If an arrest is made in a county other than
the one in which the warrant was issued the arrested
person shall be taken without unnecessary delay be-
fore the nearest and most accessible judge in the
county where the arrest was made."
Identical language, imposing the same duty, is found in section 95-
603 (d)(3), R.C.M. 1947.
Defendant was arrested in Blaine County on the Cascade County
warrant, taken from there to Yellowstone County and finally jailed
in Cascade County. It does not appear the arresting officers made
any attempt to bring defendant before any judge for the initial
appearance required by section 95-901(a), R.C.M. 1947, and 95-
603 (d)(3), R.C.M. 1947.
The question becomes whether this failure to provide de-
fendant with a prompt initial appearance is to have the effect of
excluding the guns recovered and statements allegedly made after his
arrest.
The key requirement of these statutes is that an arrested
person is to be taken before a judge "without unnecessary delay".
The Revised Commission Comment to section 95-901 indicates the pro-
vision for an appearance before a judge in the county where the arrest
is made is designed to reduce the time between the arrest and initial
appearance. The Comment states:
" * * * [This provision] allows a first appearance in
the county where the arrest is made rather than
forcing the arrested person to be removed to another
county for the purpose of stating the charge and
setting bail. I'
This Court has considered the effect of a delay between ar-
rest and initial appearance in a variety of factual situations. In
Cline v. Tait, 113 Mont. 475, 129 P.2d 89 (1942), a false imprison-
ment action turned on whether a sheriff's failure to promptly take
the plaintiff before a judge rendered the detention unlawful. This
Court held that while the reasonableness of the length of the delay
was a jury question, it was not unreasonable as a matter of law to
wait until ordinary working hours before providing an initial ap-
pearance. The judgment was reversed, and following retrial, this
Court again considered the question of the reasonableness of a delay
between arrest and initial appearance. In Cline v. Tait, 116 Mont.
571, 155 P.2d 752 (1945), emphasis was placed on evidence tending
to show the sheriff did not intend to provide the plaintiff with
a prompt initial appearance, rather than the time that transpired
between arrest and initial appearance.
In two cases concerning the admissibility of confessions
made during a delay between arrest and initial appearance, this
Court held such confessions are not rendered inadmissible solely by
reason of the delay. In State v. Nelson, 139 Mont. 180, 189, 362
P.2d 224 (1961), this Court, quoting from the New Jersey Supreme
Court case, State v. Pierce, 4 N.J. 252, 72 A.2d 305, stated:
"'A confession is not rendered inadmissible solely
by reason of a delay in taking the arrested person
before a magistrate but that circumstance becomes
an important factor to be given serious considera-
tion in determining whether or not the confession
was voluntarily made. The mere failure to follow
the procedural rule, however, does not of itself
destroy the voluntariness of the confession if the
abuses the rule seeks to prevent did not in fact
take place. ' 'I
In State v. White, 146 Mont. 226, 235, 405 P.2d 761 (1965),
this Court cited Nelson with approval in holding that failure to
meet the statutory requirement of a prompt initial appearance is
not determinative of the admissibility of a confession made in the
interim between arrest and initial appearance.
The state contends defendant voluntarily agreed to turn over
the stolen guns and voluntarily admitted he knew they were stolen
when he purchased them, and the delay between his arrest and initial
appearance therefore cannot have the effect of causing the guns and
statements to be excluded.
Under this reasoning, the statutory requirement of an ini-
tial appearance without unnecessary delay after an arrest is prac-
tically meaningless. Only when a defendant can affirmatively
show statements, admissions, or confessions attributed to him were
either not made at all, or were involuntarily made, would the fail-
ure to provide him with a prompt initial appearance be taken into
account. This would put an almost impossible burden on a defendant.
Furthermore, there would be no incentive for arresting officers
to conform their procedures to statutory guidelines.
Assurance that statements are voluntarily made is not the
only objective of the requirement of a prompt initial appearance.
In Nelson this Court considering a statute which required that a
person arrested without a warrant was to be provided with an initial
appearance without unnecessary delay, stated:
"The purpose of this statute is to insure
that the person arrested is advised of the charge
against him in order to enable him to prepare a
defense, and to protect him from being held incom-
municado for protracted periods of time." 139
Mont. 188.
The full range of protections afforded a prisoner at an ini-
tial appearance is set forth in section 95-902, R.C.M. 1947. The
duty of the court is:
"The judge shall inform the defendant:
" (a) Of the charge against him;
" (b) Of his right to counsel;
" (c) Of his right to have counsel assigned by a
court of record, in accordance with the provisions
of section 95-1001;
"(d) That he is not required to make a statement
and that any statement made by him may be offered
in evidence at his trial;
"(e) Admit the defendant to bail in accordance with
the provisions of this code."
It is necessary the defendant be informed of these rights
by the court. The fact that an arrested person is read his "Miranda"
rights by the arresting officers, as in the present case, does not
release the officers from their obligation to provide that person
with an initial appearance before a judge. Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L Ed 2d 694, 717 (1966); Commonwealth
v. Tingle, 451 Pa. 241, 301 A.2d 701, 703 (1973).
As the Montana cases cited above indicate, this Court has
not previously emphasized the importance of the statutory requirement
of a prompt initial appearance.
In false imprisonment cases, this requirement has been con-
sidered in the context of the reasonableness of the length of the
delay between arrest and initial appearance. Cline v. Tait, 113
Mont. 475, 129 P.2d 89 (1942); Cline v. ~ a i t ,116 Mont. 571, 155
P.2d 752 (1945); Rounds v. Bucher, 137 Mont. 39, 349 P.2d 1026
In cases involving confessions made during the interim be-
tween arrest and initial appearance, the requirement of a prompt
initial appearance has been considered in the context of the volun-
tariness of the confession. State v. Nelson, supra; State v. White,
supra.
In a criminal case not involving the admissibility of a con-
fession, a 21 day delay between arrest and initial appearance was
found to have not prejudiced the defendant in the presentation of
his defense at trial. The delay was treated as having no effect
on the defendant's conviction, and this Court indicated the only
remedy available to the defendant was a possible false imprisonment
action. State v. Johnston, 140 Mont. 111, 114, 367 P.2d 891 (1962).
By their terms sections 95-603(d)(3), R.C.M. 1947, and 95-
901(a), R.C.M. 1947, impose a duty on persons making an arrest to
take their prisoner "without unnecessary delay before the nearest
and most accessible judge" in the county where the arrest is made.
It is time to recognize the importance of this requirement.
The Supreme Court of Pennsylvania has developed a test for deter-
mining whether evidence obtained during a delay between arrest
and initial appearance will be excluded. In Commonwealth v. Futch,
447 Pa. 389, 290 A.2d 417, 419 (1972), that court stated:
"This Court has similarly been conscious
of the possible adverse effects of police conduct
which deviates from the unequivocal language of
Rule 118 [which requires an initial appearance
without unnecessary delay]. We have held that
failure to comply with Rule 118 does not ipso
facto render inadmissible evidence obtained by the
police during the 'unnecessary delay' and that it
is incumbent upon defendant to show some prejudice
from the delay. [Citing cases.] While this Court
has never articulated precisely what constitutes
'prejudice' in the context of 'unnecessary delay'
proscribed by Rule 118, we think it appropriate
to follow the federal amroach and exclude all
L a
.
evidence obtained during 'unnecessary delay' ex-
cept that which * * * has no reasonable rela-
tionship to the delay whatsoever." (Emphasis and
paraphrased material added.)
Having considered the language of sections 95-603(d)(3),
R.C.M. 1947, and 95-901(a), R.C.M. 1947, and the purposes for their
requirement of a prompt initial appearance that have been articu-
lated by this and other courts, we approve the test set forth above.
Henceforth, the effect of a failure to take a person before
a judge without unnecessary delay after his arrest is to be deter-
mined as follows: When a defendant bases a motion to suppress
evidence upon a claim that he was not provided a prompt initial
appearance, the burden is first on the defendant to show the delay
was unnecessary. The district court should focus on the diligence
of the persons who made the arrest in bringing the defendant before
the nearest and most accessible judge. While the length of the
time between arrest and initial appearance is not determinative
of the "necessity" of the delay, it is a factor to be considered.
Once a defendant has established the delay was unnecessary,
the burden shifts to the prosecution. The state must show the
evidence obtained during the delay was not reasonably related to
the delay. Absent such a showing the evidence will be excluded.
Applying this test to the facts of the instant case, we
conclude the pistol found in defendant's satchel before the trip
to Billings began was properly admitted. The recovery of this
pistol was in no way related to the delay between arrest and ini-
tial appearance caused by the failure of the arresting officers to
take defendant before the nearest and most accessible judge subse-
quent to his arrest.
The weapons taken from defendant's Billings house and the
statements he allegedly made while being taken from the ranch where
he was arrested and ultimately to Great Falls, however, should have
been excluded. The delay was unnecessary. The arresting officers
made no attempt to find an available judge in Blaine County after
the arrest there. They made no attempt to find a judge in Yellow-
stone County after they had taken defendant to Billings to recover
the stolen guns. The officers took no action indicating in any way
they intended to provide defendant with a prompt initial appearance.
There is no record that defendant was brought before a judge for an
initial appearance after he was taken to Great Falls.
The statements allegedly made by defendant during the trip
from the ranch to Billings concerning his knowledge or belief that
the guns were stolen were reasonably related to the delay between
arrest and initial appearance. The fact that defendant was coopera-
tive after his arrest does not operate as a waiver of his right to
an initial appearance and cannot be used to excuse the officers'
failure to bring him without unnecessary delay before the nearest
and most accessible judge. It is bare conjecture to claim that
defendant's waiver of his right to remain silent and his right to
counsel at that point reflects what he would have said had he been
promptly brought before a judge. One of the purposes of the initial
appearance is to give a defendant the opportunity to be judicially
informed of the charge against him. Here, the Cascade County com-
plaint which defendant read immediately after his arrest, alleged
he had stolen the guns in Great Falls. Only after defendant was
told by the arresting officers that they knew he had not taken the
guns did defendant admit to having them. The effect of this assurance
is unknown, but a judge's explanation of what the complaint on its
face indicated would have eliminated any possible doubt concerning
the nature or gravity of the offense charged.
Since we hold for the above reasons that the district court
should have granted defendant's motion to suppress the evidence
gathered in Billings and statements defendant allegedly made to
the arresting officers, it is unnecessary to determine whether
defendant's conviction should be reversed on the ground of inade-
quacy of counsel.
The judgment is reversed and defendant granted a new trial
in accordance with this opinion.
We Concur: