No. 86-205
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
RONALD ELLINGER,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and for the County of Musselshell,
The Honorable Roy Rodeghiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Christopher P. Thimsen, Billings, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Joe R. Roberts, Asst. Attorney General, Helena
John L. Pratt, County Attorney, Roundup, Montana
Submitted on Briefs: July 17, 1986
Decided: OctoDer 2 , 1936
Filed:
O F 2 - 4986
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Ronald Ellinger appeals from a conviction of driving
while under the influence of alcohol, following a bench trial
in the Fourteenth Judicial District Court, Musselshell Coun-
ty, on January 30, 1986. Ellinger was sentenced to twenty-
four hours in jail and fined $310.
We affirm.
Defendant Ellinger raises two issues for our review:
1. Was the arrest valid?
2. If the arrest was not valid, should the charges be
dismissed?
At 7:00 p.m. on August 30, 1985, the Musselshell County
sheriff's office received a call from a citizen, who reported
a truck being driven in a reckless manner south of Roundup on
U. S. 87. The caller said the driver traveled in the wrong
lane, nearly caused an accident, and appeared intoxicated.
Undersheriff Floyd Fisher received a complete description of
the truck and license plate number. He drove to defendant
Ronald Ellinger's residence, after discovering that the
suspect vehicle was registered to Ellinger. The vehicle was
parked in defendant's driveway.
The defendant stepped outside his mobile home and
leaned against the doorway, while Undersheriff Fisher re-
mained on the walkway outside the home. Defendant was having
trouble keeping his balance. Undersheriff Fisher explained
that he was investigating the caller's report and asked if
defendant had been drinking. After first denying any drink-
ing, defendant then admitted that he had been drinking and
driving. The undersheriff asked the defendant to perform two
field sobriety tests. The defendant agreed and failed the
tests. Undersheriff Fisher arrested defendant at 7:34 p.m.,
informed defendant of his Miranda rights, and transported the
defendant to the Roundup sheriff's office.
At the sheriff's office, the defendant was videotaped,
given a breathalyzer test and given two more field sobriety
tests. One hour following the phone call, defendant's blood
alcohol level was .22. Based on this evidence, defendant was
convicted of driving while under the influence of alcohol, in
violation of S 61-8-401, MCA. The court fined defendant $310
and sentenced him to sixty days in the county jail with
fifty-nine days suspended. Defendant appeals, claiming the
evidence was obtained pursuant to an illegal arrest.
Issue No. 1
Was the arrest valid?
A. The citizen's report and defendant's admissions provided
probable cause for the arrest.
The threshold issue for the validity of an arrest is
probable cause. The probable cause requirement is satisfied
at the time of arrest if the facts and circumstances within
the officer's personal knowledge, or upon information impart-
ed to him by a reliable source, are sufficient to warrant a
reasonable person to believe that the suspect has committed
an offense. State v. Hamilton (1980), 185 Mont. 522, 528,
605 P.2d 1121, 1125, citing State v. Hill (1976), 170 Mont.
71, 74, 550 P.2d 390, 392.
Undersheriff Fisher had reasonable grounds to suspect
that defendant had committed a crime. The sheriff's office
received information from an eyewitness to defendant's errat-
ic driving. The office dispatched Undersheriff Fisher with a
complete description of the truck, its license plate number,
and its owner. In State v. Sharp (Mont. 1985), 702 P.2d 959,
962, 42 St.Rep. 1009, 1013, this Court held that when infor-
mation is provided by a citizen informant, such information
is presumed to be reliable. In Sharp, the defendant was
arrested for driving while under the influence of alcohol,
after a citizen reported the erratic driving, complete with a
vehicle description and license number. If an officer re-
ceives a tip from a reliable informant which includes a
complete vehicle description, then the officer has a particu-
larized reason to question a suspect. Sharp, 702 P.2d at
962.
The scope of arrests has been broadened to allow an
arrest for a past misdemeanor not committed in the officer's
presence. Section 46-6-401(1), MCA, states: "A peace officer
may arrest when: ... (d) he believes on reasonable grounds
that the person is committing an offense or that the person
has committed - offense - - existing circumstances
an and the
require his immedi-ate arrest. " (Emphasis added. ) In this
case, the preservation of defendant's evanescent blood alco-
hol required immediate arrest.
At a minimum, the citizen's report provided probable
cause to investigate. Upon investigation, defendant volun-
tarily stepped outside his trailer. He appeared intoxicated
and leaned against the door. He admitted drinking and driv-
ing. Defendant voluntarily took the field sobriety tests and
failed. The citizen's tip, defendant's own admissions, and
his personal observations gave Undersheriff Fisher full
probable cause to arrest.
B. Defendant had a reduced expectation of privacy on his
walkway.
Defendant cites only one case on appeal, Welsh v.
Wisconsin (1984), 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d
732. In Welsh, a police officer responded to a report of a
nighttime accident. Upon arrival at the scene, the officer
found defendant's car in the ditch. A witness told the
officer that defendant had left, but had appeared either very
sick or very inebriated. After finding that the vehicle was
registered to the defendant, the police proceeded to the
defendant1 home without
s a warrant. The police arrested
Welsh for a first offense of driving while under the influ-
ence of an intoxicant, which was a noncriminal civil offense,
and for which no imprisonment was possible. The Welsh court
held that the warrantless, nighttime entry into the defen-
dant's house to arrest him for a nonjailable traffic offense
was prohibited by the Fourth Amendment. Welsh, 466 U.S. at
754, 104 S.Ct. at 2100, 80 L.Ed.2d at 746. Defendant claims
Welsh is analogous to the immediate case. However, Welsh is
distinguishable on several key points.
First, Undersheriff Fisher never entered defendant's
house. He remained on the walkway outside defendant's mobile
home. In uncontested testimony, Undersheriff Fisher stated
that the sobriety tests were "done outside the house on this
walkway." The court in Welsh emphasized that "the physical
entry of the home is the chief evil against which the wording
of the Fourth Amendment is directed." Welsh, 466 U.S. at
748, 104 S.Ct. at 2097, 80 L.Ed.2d at 742, citing United
States v. United States District Court (1972), 407 U.S. 297,
313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752, 764. Defendant
Ellinger's outside walkway did not have the same private
sanctity as the interior of his house. Therefore, Ellinger
had a reduced expectation of privacy when he stepped outside
of his house.
Second, in Welsh, the arrest occurred at night, Welsh
was nude, and he was wakened from sleep. In the immediate
case, the time of arrest was August 30 at 7:34 p.m., defen-
dant was fully clothed, standing outside his house and re-
sponding to the officer1s questions. Defense counsel
attempts to invalidate the arrest by characterizing 7:34 p.m.
as "night."
We note S 46-6-105, MCA:
An arrest may be made on any day and at
any time of the day or night, except
that a person cannot be arrested in his
7 -
- -or private dwellinq place
home night
for a misdemeanor committed at some
other time and place unless upon the
direction of a magistrate endorsed upon
a warrant of arrest. [Emphasis added.]
When viewed in a light most favorable to defendant, 7:34 p.m.
on August 30 might be considered twilight, but certainly not
"night." Furthermore, defendant was not arrested in his home
or dwelling place but on his walkway. Therefore, defendant's
arrest did not violate the constraints of the statute.
Third, in Welsh, the defendant was charged with driving
under the influence of alcohol, which was a nonjailable civil
offense in Wisconsin. Welsh, 466 U.S. at 754, 104 S.Ct. at
2100, 80 L.Ed.2d at 746. However, defendant Ellinger was
arrested for the criminal offense of driving while under the
influence of alcohol, where the penalty for a first offense
is a mandatory twenty-four hours imprisonment and up to a
$500 fine. The nature of the offense is a factor in the
defendant's privacy expectation.
In summary, an evaluation of the totality of the
circumstances determines whether an individual had a reason-
able expectation of privacy in the invaded place. Rawlings
v. Kentucky (1980), 448 U.S. 98, 104, 100 S.Ct. 2556, 2561,
65 L.Ed.2d 633, 641. Welsh is distinguished on the facts.
Defendant's arrest for a criminal offense neither occurred in
the defendant's house nor at night. Therefore, defendant
Ellinger's expectations of privacy were not violated.
C. Defendant's consent and evanescent blood alcohol removed
the warrant requirement from the arrest.
Section 46-5-103, MCA, states: "No search and seizure,
whether with or without warrant, shall be held to be illegal
as to a defendant if: (1) the defendant has disclaimed any
right to or interest in the place or object searched or the
instruments, articles, or things seized. . . ."
Defendant consented to the pre-arrest investigation.
The police may conduct a valid warrantless search if they
have a voluntary and intelligent consent to do so. Knowledge
of the right to withhold consent, while a factor to be con-
sidered, is not a prerequisite to establishing a voluntary
and intelligent consent. The police do not have to warn a
person of the right to withhold consent. Schneckloth v.
Bustamonte (1973), 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36
L.Ed.2d 854, 863. The voluntariness is viewed under the
totality of the circumstances. State v. Stemple (1982), 198
Mont. 409, 412-413, 646 P.2d 539, 541. Officer Fisher en-
tered the premises upon probable cause to investigate the
citizen's report. He personally observed defendant acting in
an intoxicated manner. He asked defendant to take the sobri-
ety tests, and defendant voluntarily consented. Before being
placed in custody, defendant freely admitted that he had been
drinking and driving.
Although defense counsel failed to raise the issue at
trial, defendant alleges in his appeal that his admissions
were made without Miranda warnings and are, therefore, inad-
missible. However, Miranda only applies to custodial inter-
rogation. Miranda v. Arizona (1966), 384 U.S. 436, 444, 86
S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706. An interrogation will
not be considered custodial if the individual is free to
leave. Berkemer v. McCarty (1984), 468 U.S. 420, 440, 104
S.Ct. 3138, 3151, 82 L.Ed.2d 317, 335. When a defendant is
the focus of an investigation, the threshold Miranda question
is whether the defendant was significantly deprived of his
freedom. State v. Lapp (1983), 202 Mont. 327, 332, 658 P.2d
400, 403. Defendant Ellinger was neither deprived of any
freedom, nor in custody, during his admissions and sobriety
tests outside his house. Defendant voluntarily left the
confines of his house. He answered the undersheriff's ques-
tions without objection. Nowhere in the record did defendant
indicate that he was unable to withdraw from the conversa-
tion, withdraw from the sobriety tests, and retreat into his
house. Defendant had multiple opportunities to stop the
interrogation and testing, yet freely consented to further
proceeding. Therefore, defendant's Miranda rights did not
engage until he had been placed in custody. Upon arrest,
Undersheriff Fisher informed the defendant of his Miranda
rights.
Undersheriff Fisher also sought to preserve the evi-
dence of evanescent alcohol in defendant's blood by adminis-
tering a breathalyzer test. The nearest test facility was in
Roundup, which was seventeen miles away. The undersheriff
needed to promptly transport the defendant to the facility
because the percentage of alcohol in the blood decreases
rapidly with time. Although the Welsh court found no need to
make a warrantless arrest to preserve evanescent evidence in
a civil case, this Court has held that the police may seize
any evidence which is likely to disappear before a warrant
can be obtained, such as a blood sample containing alcohol.
State v. Deshner (1971), 158 Mont. 188, 193, 489 P.2d 1290,
1293; Schmerber v. California (1966), 384 U.S. 757, 771, 86
S.Ct. 1826, 1836, 16 L.Ed.2d 908, 920.
In conclusion, we hold that the arrest was valid. The
undersheriff had probable cause with precise information from
a citizen's report. The defendant's expectation of privacy
was not violated on the walkway outside his house. The
warrantless arrest preserved evanescent evidence.
Issue No. 2
If the arrest was not valid, should the charges have
been dismissed?
Defendant claims that his arrest was unlawful and
therefore the charges should have been dismissed. However,
an unlawful arrest has no impact on subsequent prosecution.
This Court has held: "An illegal arrest does not preclude the
State from proceeding on a criminal charge against him."
State v. Woods (Mont. 1983), 662 P.2d 579, 581, 40 St.Rep.
533, 534. Furthermore, an invalid arrest is not a defense to
being convicted of the offense charged. "An illegal arrest,
without more, has never been viewed as a bar to subsequent
prosecution, nor as a defense to a valid conviction. . ."
Woods, 622 P.2d at 581, 40 St.Rep. at 535, citing United
States v. Crews (1980), 445 U.S. 463, 474, 100 S.Ct. 1244,
1251, 63 L.Ed.2d 537, 547. If, arguendo, the arrest was
invalid, the conviction remains supported on the basis of the
defendant's admissions and his .22 blood alcohol level.
Affirmed.
p4r7&P
We concur:
5
' Chief Justice