NO. 89-513
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
CITY OF BILLINGS,
Plaintiff and Appellant,
-vs-
TIMOTHY J. WHALEN,
-. . .
Defendant, Respondent, and ~ r o s s - ~ ~ ~ e l ~ --,~ n t ,
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APPEAL FROM: District Court of the Thirteenth Judicial.~ i-sr i c t ,
.a s
In and for the County of Yellowstone, c z ~2
The Honorable Robert Holmstrom, Judge &esiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Marc Racicot, Attorney General, Helena, Montana
Jennifer Anders, Asst. Atty. General, Helena
Russell C. Fagg, City Prosecutor, Billings, Montana
For Respondent:
Michael J. Whalen, Billings, Montana
Submitted on Briefs: Feb. 9, 1990
a Decided: April 5, 1990
Filed:
Clerk
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
Plaintiff and appellant, the City of Billings, appeals from
an order of the District Court of the Thirteenth Judicial District,
Yellowstone County, which granted the motion to suppress all
evidence against the defendant, Timothy J. Whalen and denied the
defendant's motion to dismiss the complaint for lack of speedy
trial. We affirm the District Court order on the motion to
suppress and dismiss defendant's cross-appeal of the order for lack
of jurisdiction. The issues raised on appeal are:
(1) Did the District Court err in granting defendant's motion
to suppress evidence obtained from an illegal arrest in violation
of 5 46-6-105, MCA?
(2) Does this Court have jurisdiction over defendant s cross-
appeal to dismiss the complaint for lack of speedy trial?
On October 28, 1988, at approximately 10:15 p.m., the
defendant was driving north on North 31st Street in Billings,
Yellowstone County, Montana. It was dark outside. As he reached
8th Avenue North, defendant made a left-hand turn onto 8th Avenue
and continued to travel along 8th Avenue in a westerly direction.
While he was in the process of making his left-hand turn, defendant
observed a police car traveling in an easterly direction on 8th
Avenue.
The officer driving the police car stated that defendant, "cut
the corner," when making the left-hand turn. Such activity is a
misdemeanor traffic violation. Because of this activity, the
officer made a U-turn with his vehicle and followed defendant to
his home which was approximately two blocks from the point
defendant made the questioned left-hand turn. During the time the
officer followed the defendant he did not observe anything unusual
in defendant s manner of driving. At no time while he was
following defendant did the officer activate the siren or the
overhead lights on his vehicle.
Defendant arrived at home and pulled into his driveway. He
parked his car, walked to the front door, opened the outer or storm
door and began to enter the house. While defendant was performing
these activities he noticed the officer's police car pull into his
driveway behind his parked car, still with no lights or siren.
Defendant was in a position of straddling the threshold of his home
when the officer approached defendant from behind and shouted or
called to the defendant to hold on or wait. It is unclear from
the record if at that point the officer physically restrained
defendant from entering the house or if such restraint occurred
after the officer asked defendant for his driver's license and
defendant attempted to enter the house to obtain the license. In
either event, the officer placed his hands on the defendant to
prevent the defendant from entering the house. Defendant described
the restraint as being pulled from the house and the officer
described the restraint as "guidingw the defendant.
The officer asked defendant for evidence of insurance and
registration. As they walked toward defendant's car a second
police vehicle had arrived. The officer asked defendant to perform
certain field sobriety tests after which defendant was handcuffed
and placed in the officer's police vehicle. Defendant was taken
to the Yellowstone County Courthouse where a video tape DUI
interview was conducted.
Defendant was charged with a DUI offense. On December 30,
1988, defendant was tried in City Court and was convicted on
January 16, 1989. On January 16, 1989, the defendant appealed his
conviction to District Court. On January 24, 1989, an omnibus
hearing was set for April 18, 1989 and a trial date of May 8, 1989.
The District Judge issued a new order setting the omnibus hearing
for September 1, 1989 and trial for September 18, 1989.
On August 31, 1989, defendant filed consolidated motions to
suppress evidence and dismiss the complaint with an alternative
request for an evidentiary hearing. On September 14, 1989, the
District Court granted defendant's motion to suppress all evidence
on the grounds that defendant was illegally arrested and denied
defendant's motion to dismiss the complaint due to denial of speedy
trial. The State appeals the District Court's order granting
defendant's motion to suppress. Defendant cross-appeals the
District Court order denying defendant's motion to dismiss.
The first issue raised on appeal is whether there is
sufficient evidence of the elements of 5 46-6-105, MCA, to support
the District Court's conclusion that a violation of such statute
occurred which resulted in the illegal arrest of the defendant.
The statute states in relevant part:
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 home or private dwelling place at night for a
misdemeanor committed at some other time and place unless
upon the direction of a magistrate endorsed upon a
warrant of arrest.
Section 46-6-105, MCA.
This statute is a codification of the Montana and United
States Constitutional protection privacy that, absent
It
exigent circumstances, a warrantless arrest for a minor
(misdemeanor or nonviolent) crime cannot be made in the defendant's
home without a warrant." State v. Beach, 217 Mont. 132, 147, 705
P.2d 94, 103 (1985); (citing Welsh v. Wisconsin, 466 U.S. 740, 104
S.Ct. 2091, 80 L.Ed.2d 732 (1984); Payton v. NY, 445 U.S. 573, 100
S.Ct. 1371, 63 L.Ed.2d 639 (1980). ) See U.S. Const. Amend. IV;
1972 Mont. Const. Art. 11,Sec. 10.
In order for 5 46-6-105, MCA to apply to the facts of this
case it must be shown that the defendant was arrested in his home
or private dwelling at night for a misdemeanor committed at some
other time and place. It is undisputed that the encounter between
the defendant and the officer occurred at night and would not have
occurred but for an alleged misdemeanor violation. The remaining
elements of arrest, home or dwelling place, and the commission of
the misdemeanor at another time and place are in dispute.
The first question to be answered is whether the encounter
that occurred between the defendant and the officer rose to the
level of an arrest. Section 46-6-101(1), MCA, defines an arrest
as the "taking [of] a person into custody in a manner authorized
by law.'' Section 46-6-104(1), MCA, requires that an arrest be
"made by an actual restraint of the person to be arrested."
(Emphasis added.) In the previous case of State v. Thornton, 218
Mont. 317, 708 P.2d 273 (1985), this Court adopted three elements
necessary to formulate an arrest.
An arrest involves three elements: (1) authority to
arrest; (2) assertion of that authority with intention
to affect an arrest; and (3) restraint of the person
arrested.
Thornton, 708 P.2d at 277.
In this case, the officer clearly had the authority to make
an arrest. It appears that the officer went to defendant's home
in order to make an arrest for the left-hand turn.
The actual restraint by a person is based upon an objective
analysis of the surrounding circumstances.
The standard for an arrest when there is not a physical
restraint of the defendant is whether a reasonable
person, innocent of any crime, would have felt free to
walk away under the circumstances. (Emphasis added.)
Thornton, 708 P.2d at 277, 278.
It is reasonable under the circumstances of this case that
the defendant would not have felt free to leave the officer's
presence regardless of whether the physical contact between the
defendant and the officer rose to the level of physical contact.
The officer testified that he made demands on the defendant and
expected the defendant to obey these demands. These expectations
by the officer give rise to the presumption that the officer acted
in such a way as to make a reasonable person believe that he must
obey. Defendant testified that he believed he must obey. The
District Court found that the restraint rose to the level of an
arrest.
The second question is whether the arrest occurred at the home
or dwelling of the defendant. A person's privacy is protected from
search and seizure intrusions without a warrant if it is reasonable
to expect privacy under the surrounding circumstances. Katz v.
United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
A person has such a reasonable expectation of privacy while in his
home. The U.S. Supreme Court has concluded that these privacy
protections begin at the "firm line" drawn at the entrance to the
home. Payton v. N.Y., 445 U.S. at 590, 100 S.Ct. at 1382, 63
L.Ed.2d at 653. At the very least, under the Federal Constitution,
if a person has substantially crossed this firm line, they have
been deemed to have entered the home and it is reasonable to expect
privacy.
In this case, the District Court found ample support in the
record to reach the conclusion that the defendant was "~traddling'~
the threshold to his home when he was confronted by the officer.
Thus, defendant's body had broken the firm line defined at the
home's entrance. There is substantial credible evidence to support
the District Court's decision that the defendant had entered his
home or dwelling place.
The third and last element to be discussed regarding the
application of 5 46-6-105, MCA, to this case is whether the
misdemeanor offense occurred "at some other time and p1ace.I'
Section 46-6-105, MCA. In this case, there is no question the
misdemeanor offense of an allegedly illegal left-hand turn occurred
other that at the defendant's home.
The District Court conclusion that the officer violated 5 46-
6-105, MCA, by arresting the defendant in his home at night without
a warrant for a misdemeanor that was committed at some other time
and place is supported by substantial credible evidence and applied
correctly as a matter of law. Such violation resulted in an
illegal arrest from which any resulting evidence must be suppressed
as being "tainted." "Evidence ... in order to be admissible,
must be the product of a search, incident to a lawful arrest, since
the officer had no search warrant." State v. Armstrong, 149 Mont.
470, 478, 428 P.2d 611, 615 (1967) .
Because this arrest was illegal, all evidence against
defendant seized as a result of such arrest is inadmissible.
The second issue to be addressed is whether this Court has
juridiction over defendant's cross-appeal to dismiss the complaint
for lack of speedy trial. "An appeal may be taken by the defendant
only from a final iudment of conviction and orders after judgment
. . .It (Emphasis added.) Section 46-20-104, MCA, see Rule l(d),
M.R.App.P.
Section 46-1-201, MCA, defines judgment as Ifan adjudication
by the court that the defendant is suiltv or not suiltv . . . 11
(Emphasis added.) In this case, there has been no determination
by the District Court as to defendantfsguilt or innocence of the
offense charged. The appeal is premature.
The order of the District Court is affirmed and the cross-
appeal is dismissed without prejudice. ,
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& Justices