State v. Olmsted

No

No. 96-493

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 301

STATE OF MONTANA,

Plaintiff and Respondent,

v.

MICHAEL LAW OLMSTED,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable John S. Henson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Lisa B. Kauffman, Attorney at Law; Missoula, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Tammy K. Plubell,

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Assistant Attorney General; Helena, Montana

Robert L. "Dusty" Deschamps III, Missoula County Attorney;

Betty Wing, Deputy County Attorney; Missoula, Montana

Submitted on Briefs: February 26, 1998

Decided: December 8, 1998

Filed:

__________________________________________

Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1. On February 16, 1995, Michael Law Olmsted was charged by information filed in
the District Court of the Fourth Judicial District in Missoula County with three
counts of burglary, felonies, in violation of § 45-6-204, MCA, one count of criminal
possession of a dangerous drug as defined by § 50-32-101, MCA, and one count of
possession of drug paraphernalia, a misdemeanor, in violation of § 45-10-103, MCA.
Olmsted filed a motion to suppress all physical evidence which the State obtained
through a warrantless search of his rented U-Haul truck, and all statements Olmsted
made subsequent to the search. He also filed a motion to dismiss the charges against
him based on his belief that the State violated his right to a speedy trial. The District
Court denied both motions.

¶2. Following a mistrial, the State filed a third amended information which charged
Olmsted with two counts of burglary in violation of § 45-6-204, MCA; two counts of
felony theft in violation of § 45-6-301, MCA; and one count of misdemeanor theft. On
December 21, 1995, at the conclusion of the second jury trial, the jury convicted
Olmsted of all counts. Olmsted appeals the District Court's denial of his motion to
suppress the physical evidence obtained as a result of the warrantless search of his
rented U-Haul truck, and its denial of his motion to dismiss for lack of speedy trial.

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¶3. We affirm the judgment of the District Court.

¶4. The issues on appeal are:

¶5. 1. Did the State have a particularized suspicion to initiate an investigative stop of
Olmsted?

¶6. 2. Did the warrantless search of Olmsted's rented U-Haul truck violate his right
to privacy or his right to be free from unreasonable searches and seizures as
guaranteed by the Montana Constitution?

¶7. 3. Did the State violate Olmsted's right to a speedy trial?

FACTUAL BACKGROUND

¶8. On January 30, 1995, Scott Roberts provided the Missoula Police Department
with information regarding six burglaries in Missoula. According to Detective James
Lemcke of the Missoula Police Department, Roberts reported that Michael Law
Olmsted and Olmsted's friend, Randy Munden, were involved in the burglaries and
thefts. Roberts indicated that Olmsted and Munden used two-way radios to
communicate with each other while committing the burglaries. Subsequently,
Lemcke learned that on January 11, 1995, Olmsted used his credit card to purchase a
pair of two-way radios.

¶9. At trial, Lemcke testified that Roberts stated that one of the businesses that
Olmsted and Munden burglarized was Browning Ferris Industries (BFI). Lemcke
confirmed that a person or persons had burglarized BFI on January 12, 1995, and
had stolen a color television and VCR, a Sony video camera, a pocket knife, a lap top
computer, and approximately $300.

¶10. According to Lemcke, Roberts also described the location of a second burglary
in which Olmsted and Munden were involved. Although Roberts did not know the
name of the burglarized business, he was able to describe the building sufficiently for
Lemcke to identify it as the building in which Big Sky Brewing and Mother Moose
are located. Lemcke was able to confirm that on January 12, 1995, both businesses
had reported burglaries. Big Sky Brewing reported that it was missing a Macintosh
computer, printer, monitor, modem, fax machine, and a Panasonic video camera.

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Mother Moose reported that it was missing $125. The owner of the building, David
Kester, reported that he was missing a briefcase which contained $6300 in cash.

¶11. According to Lemcke, the information that Roberts gave him regarding the
thefts and burglaries matched the details found in the police reports that documented
the January 12, 1995, burglaries.

¶12. Roberts admitted to Lemcke that he took possession of the Panasonic video
camera, even though he knew that it was stolen. He brought the video camera and
one of the stolen VCRs to the police. Roberts also told Lemcke that Randy Munden
was concerned about the serial number on the stolen Macintosh computer, so
Munden went to Sears, found a similar computer, pulled off the serial number and
placed it on the stolen computer. Lemcke called Sears and confirmed that one of
their Macintosh computers was missing its serial number.

¶13. Roberts told Lemcke where Munden lived, who he lived with, what kind of car
he drove, and what kind of car his girlfriend drove. Two detectives checked on the
information Roberts provided regarding Munden and determined that it was
accurate. Roberts also told Lemcke that Olmsted was planning to leave town and had
a U-Haul truck and tow-dolly parked in front of his house ready to go. A detective
confirmed that this information was also accurate.

¶14. Roberts testified at trial that he had decided to share this information with the
police because he was concerned about Munden's plans to break into the home of one
of Roberts' acquaintances.

¶15. On January 30, 1995, the day that Roberts told the police that Olmsted might be
leaving the state, Lemcke asked Detective Joe Gaffney to watch the U-Haul truck
which was parked in front of Olmsted's residence. Lemcke told Gaffney to notify him
if anyone came out of Olmsted's house and moved the U-Haul truck. Gaffney did as
Lemcke requested.

¶16. At approximately 8:15 p.m., a vehicle pulled up near Olmsted's U-Haul truck,
and two people got out. One person attached a tow-dolly loaded with a car to the U-
Haul and then got into the U-Haul and began to drive away. Gaffney followed the
driver of the U-Haul truck and notified Lemcke of what had occurred. Lemcke
instructed Gaffney to stop and identify the driver of the U-Haul truck and ask for

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consent to search the truck.

¶17. Gaffney approached the driver of the truck whom he identified as Michael
Olmsted. Gaffney informed Olmsted that the Missoula Police Department was
investigating information it had received that Olmsted may have participated in
some recent burglaries and thefts and asked Olmsted if he could search the U-Haul
truck. Olmsted asked Gaffney if he needed to consult with an attorney in order to
decide if he should consent to the search. Gaffney responded that he could not advise
him on that matter. Olmsted then asked what would happen if he refused to consent.
Gaffney responded that he would impound the U-Haul truck until a search warrant
could be obtained. Olmsted then gave Gaffney permission to search the vehicle.
Gaffney advised Olmsted that he did not have to give his consent to search the
vehicle. According to Gaffney, Olmsted stated that he understood and that he would
still allow the truck to be searched. Olmsted then signed a consent-to-search form. At
trial, Olmsted testified that he consented to the search and fully cooperated with
Gaffney.

¶18. Following Roberts' tips, Lemcke completed a background check on Olmsted
which indicated that Olmsted was on probation for the offenses of burglary and
theft. Lemcke asked Detective Rich Ochsner of the Missoula Police Department to
contact Olmsted's probation officer. On January 30, 1995, Ochsner contacted
probation officer Jan Ullom. Ullom informed Ochsner that Earl Strubeck was
Olmsted's supervising parole officer, but that he was out of town. Ullom indicated
that she had no personal knowledge of Olmsted, but because Strubeck was out of
town, Ullom reviewed Olmsted's file and verified that his conditions of probation
included a search clause.

¶19. Olmsted's probation and parole records indicate that in 1989 he was convicted
of burglary and theft and received a deferred imposition of sentence. In 1991,
Olmsted was again convicted of burglary and theft. Consequently, the court reversed
his deferred imposition of sentence and sentenced Olmsted to ten years in prison with
six years suspended. Olmsted was paroled in 1992. One of the conditions of his
probation, to which he agreed, was that he would submit to a search of his person,
vehicle, or residence by a probation or parole officer at any time and without a
warrant.

¶20. Gaffney conducted a cursory search of the U-Haul truck at the location of the

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stop. Gaffney had no detailed information as to what was being sought by the
Missoula Police Department; however, just after he began a cursory search, Ochsner
and Ullom arrived at the scene. They decided that because of the rain and poor
lighting, it would be better to take the U-Haul truck to the police station for a more
thorough search. Olmsted agreed to drive the U-Haul truck to the station and,
according to Gaffney, Ullom, and Ochsner, he was very cooperative.

(1)
¶21. After reading Olmsted his Miranda rights, Ochsner attempted to interview
him. Initially, Olmsted agreed to talk with Ochsner. He denied any knowledge of the
burglaries and thefts and then stated "I won't say that I don't have any involvement,
and I won't say that I don't know what you are talking about, but before I say any
more I'm going to talk to a lawyer." Ochsner immediately ended the interview. After
learning of this and being informed of the information gathered by the police, as well
as being aware of the information in Olmsted's file, Ullom instructed the police
officers to arrest Olmsted and to search the truck.

¶22. As a result of the search, police officers recovered the laptop computer stolen
from BFI, a video camera stolen from BFI, and a fax machine stolen from Big Sky
Brewing.

¶23. At trial, Olmsted testified that he unknowingly bought the stolen office
equipment from Randy Munden who told Olmsted that he received the items from a
friend who owed him money. According to Olmsted, Munden offered to sell him a
laptop computer, a fax machine, and a video camera because Munden knew that
Olmsted used these items in his business. Olmsted testified that he agreed to
purchase these items for $1500, $500 of which he paid initially, and the rest which he
agreed to pay upon reaching California where he planned to establish his new
business. Olmsted testified that he did not know that these items were stolen when he
purchased them.

¶24. Olmsted testified that on January 30, 1995, he had intended to leave the next
day for California. That night he loaded the U-Haul truck and drove it to his
girlfriend's house to spend the evening with her before departing in the morning. It
was at Olmsted's girlfriend's house that Gaffney stopped Olmsted and asked if he
could search the U-Haul.

¶25. At Olmsted's trial, Randy Munden testified that he agreed to cooperate with the

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police and give them the names and places of the crimes in which he was involved,
and the names of the people with whom he committed the crimes. Munden admitted
burglarizing Big Sky Brewing and BFI and testified that Olmsted had participated
with him in the burglaries.

STANDARD OF REVIEW

¶26. Olmsted first contends that the District Court erred when it denied his motion
to suppress the physical evidence obtained as a result of the warrantless search of his
rented U-Haul truck. He argues that the State did not have a particularized suspicion
to initiate an investigative stop and that the warrantless search of the U-Haul truck
was unconstitutional. We review a district court's denial of a motion to suppress to
determine if the district court's findings of fact are clearly erroneous and whether
the district court correctly applied the findings of fact as a matter of law. See State v.
Burchett (1996), 277 Mont. 192, 195, 921 P.2d 854, 856.

¶27. Olmsted also argues that the District Court incorrectly concluded that the State
did not violate his right to a speedy trial. Whether a defendant has been denied a
speedy trial is a question of constitutional law. See City of Billings v. Bruce, 1998 MT
186, ¶18, 965 P.2d 866, ¶18, 55 St. Rep. 750, ¶18. We review a district court's
conclusions of law to determine whether its interpretation of the law is correct. See
Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680,
696.

ISSUE 1

¶28. Did the State have a particularized suspicion to initiate an investigative stop of
Olmsted?

¶29. Section 46-5-401, MCA, provides:

In order to obtain or verify an account of the person's presence or conduct or to determine
whether to arrest the person, a peace officer may stop any person or vehicle that is
observed in circumstances that create a particularized suspicion that the person or
occupant of the vehicle has committed, is committing, or is about to commit an offense.

¶30. We have held that a particularized suspicion, not probable cause, is the

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standard necessary for the State to initiate an investigative stop of an individual. See
State v. Gopher (1981), 193 Mont. 189, 194, 631 P.2d 293, 296. We use a two-part test
in order to determine whether a particularized suspicion exists to justify an
investigatory stop. First, objective data must exist from which an experienced officer
can make certain inferences and, second, the objective data must lead to a suspicion
that the occupant of a certain vehicle is or has been engaged in wrongdoing or was a
witness to criminal activity. See Gopher, 193 Mont. at 194, 631 P.2d at 296. We must
determine whether the totality of the circumstances presented in this case created a
particularized suspicion. See Anderson v. State, Dep't of Justice (1996), 275 Mont. 259,
263, 912 P.2d 212, 214.

¶31. Olmsted contends that at the time Gaffney pulled him over, Gaffney was acting
on a mere hunch and did not have a particularized suspicion to justify an
investigative stop. We disagree. The facts of this case demonstrate that the Missoula
Police Department knew that numerous burglaries and thefts had been committed in
Missoula earlier that month and that Scott Roberts' detailed information about the
burglaries and thefts implicated Olmsted in some of those crimes. The officers who
were working under Lemcke's direction in the investigation corroborated much of
the information Roberts provided.

¶32. After Lemcke received Roberts' information, he verified that it matched the
information found in police reports which documented burglaries and thefts from
Missoula businesses which occurred on January 12, 1995, and which were similar to
those described by Roberts. Lemcke verified that one of the computers at Sears was
missing a serial number as Roberts had described. Roberts correctly informed
Lemcke that the police would find a U-Haul truck and tow-dolly loaded with a car,
parked in front of Olmsted's residence.

¶33. We agree with the District Court that Roberts' information was reliable and
trustworthy. We have previously held that it is proper for an officer to rely upon
information which a reliable third person conveys in order to formulate a
particularized suspicion. See State v. Sharp (1985), 217 Mont. 40, 46, 702 P.2d 959,
962. Roberts freely admitted that he had a video camera in his possession as a result
of the burglaries, and he turned it over to the police. An informant's act of subjecting
himself to criminal liability contributes to the trustworthiness of the information
which he provides. See State v. Adams (1997), 284 Mont. 25, 37, 943 P.2d 955, 961-62.
We have stated that "[a] person of known criminal activity or a person admitting his

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own criminal activity is not likely to place himself in such a dubious position unless
he is telling the truth." State v. Garberding (1990), 245 Mont. 356, 362, 801 P.2d 583,
586. Roberts' information was reliable, detailed, and accurate. It was more than an
uncorroborated tip and it, along with the information officers were able to
corroborate, provided the police with more than a mere hunch that Olmsted had
been engaged in some kind of wrongdoing.

¶34. Olmsted further contends that because the arresting officer did not personally
observe Olmsted committing illegal activity prior to initiating a stop, the police did
not have the authority to stop him. We have held, however, that it is appropriate for
an arresting officer to rely on information that is conveyed by reliable third persons
or another officer in order to stop or arrest a person. See Boland v. State (1990), 242
Mont. 520, 524, 792 P.2d 1, 3, overruled on other grounds by Bush v. State, Dep't of
Justice, 1998 MT 270, 55 St. Rep. 1118. We have also held that a particularized
suspicion does not require certainty on the part of the law enforcement officer. See
State v. Morsette (1982), 201 Mont. 233, 241, 654 P.2d 503, 507. In this case, although
Detective Gaffney was not an eye witness to Olmsted's illegal activity, he correctly
relied upon the collective information from all the detectives investigating this
matter, as well as the information conveyed by Roberts.

¶35. The information provided to and gathered by the investigating officers was
more than sufficient to support a particularized suspicion. Several burglaries and
thefts of businesses had been reported to the police department earlier that month.
Roberts implicated Olmsted in some of the crimes and reported to the police
department that Olmsted had rented a U-Haul truck and was preparing to leave
town. Olmsted had prior convictions for burglary and theft for which he was still
believed to be serving a probationary sentence. When Gaffney watched Olmsted
move the U-Haul truck and relayed that information to Lemcke, Lemcke reasonably
feared that Olmsted was leaving town and may be taking stolen property with him.
We conclude that there was a sufficiently particularized suspicion to justify
Gaffney's investigative stop.

ISSUE 2

¶36. Did the warrantless search of Olmsted's rented U-Haul truck violate his right to
privacy or his right to be free from unreasonable searches and seizures as
guaranteed by the Montana Constitution?

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¶37. Olmsted argues that the State violated his right to be free from unreasonable
searches and seizures and his right to privacy when officers searched his U-Haul
truck. He contends that the District Court should have suppressed the evidence
which was obtained as a result of the search. We have held that a criminal defendant
who seeks to suppress evidence has the burden of proving that the search was illegal.
See State v. McCarthy (1993), 258 Mont. 51, 55, 852 P.2d 111, 113.

¶38. Pursuant to the Fourth and Fourteenth Amendments of the United States
Constitution, and Article II, Section 11, of the Montana Constitution, warrantless
searches and seizures are unreasonable unless carefully crafted exceptions exist. One
such exception is when a person knowingly and voluntarily consents to a search. See
State v. Rushton (1994), 264 Mont. 248, 257, 870 P.2d 1355, 1361. Olmsted contends
that he did not consent to the search voluntarily because Gaffney coerced him into
signing the consent-to-search form by leading him to believe that the police had
sufficient evidence to obtain a search warrant for the U-Haul. However, based on our
conclusion that the items seized were the result of a later search which was
authorized, we decline to address this claim.

¶39. A warrantless search of a probationer's residence or vehicle does not require
probable cause but rather, reasonable grounds. See State v. Boston (1994), 269 Mont.
300, 304-05, 889 P.2d 814, 816-17. Olmsted contends that Ullom did not have
reasonable grounds to authorize the search of the U-Haul truck because Ullom relied
on "uncorroborated information" provided by a confidential informant; Olmsted
was not Ullom's client, and thus was not familiar with him; and because Olmsted had
not committed a criminal act to trigger the search.

¶40. Lemcke instructed Ochsner to contact Olmsted's probation officer after
learning that Olmsted had previous convictions for the crimes of burglary and theft
and believing that he was, at the time, still serving a probationary sentence for those
crimes. Ochsner contacted Ullom, a probation officer with Adult Probation and
Parole. Ullom informed Ochsner that Earl Strubeck was the officer responsible for
supervising Olmsted, but that he was out of town. Ullom volunteered to go to the
probation office and research Olmsted's file. After doing so, she went to the Missoula
Police Department where Lemcke shared with her all of the information he had
gathered concerning Olmsted's involvement in the burglaries and thefts. Based upon
this information, Ullom determined that there was reasonable cause for a search of
Olmsted's U-Haul truck and communicated her conclusion to the detectives, who

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then authorized Gaffney's search of the truck.

¶41. As we previously discussed, the State had reason to believe the information
provided by Scott Roberts was trustworthy. It was more than an uncorroborated tip
and provided Ullom with more than a mere hunch that Olmsted had been engaged in
wrongdoing. Moreover, even after taking Roberts' statement, Lemcke verified the
fact that burglaries and thefts similar to those Roberts had described had actually
occurred. Lemcke also verified that the personal information that Roberts gave
about Olmsted was accurate. Therefore, we conclude that the information that Ullom
relied upon to authorize the search was reliable and independently corroborated.

¶42. We have held that a probation officer "must be able to supervise the
probationer, and upon his judgment and expertise, search the probationer's
residence or cause it to be searched." State v. Small (1989), 235 Mont. 309, 312, 767
P.2d 316, 318. Olmsted contends that our conclusion implies that the only probation
officer authorized to conduct such a search is the probation officer who is specifically
assigned to that probationer. In this case, according to Olmsted, only Earl Strubeck
had the authority to authorize a search of the U-Haul truck, regardless of whether he
was available to give the authorization or not. Olmsted supports his argument with
our reasoning in State v. Burke (1988), 235 Mont. 165, 766 P.2d 254, wherein we held:

The probation officer acts upon a continued experience with the probationer, with
knowledge of the original offense, and with the probationer's welfare in mind. Because of
his expertise, we view the probation officer in a far superior position to determine the
degree of supervision necessary in each case.

Burke, 235 Mont. at 169, 766 P.2d at 256.

¶43. Based on this language, Olmsted concludes that it is the special relationship
between a probation officer and a probationer that justifies the exclusive authority of
that probation officer to conduct or authorize probation searches. He argues that
Ullom did not have a continuing relationship with Olmsted, had no knowledge of
Olmsted's original offense, had never met Olmsted, and possessed no expertise with
regard to Olmsted. Because of these things, Olmsted contends that Ullom did not
have the authority to allow a probationary search of his U-haul. We disagree.

¶44. Our reasoning in Burke was not intended to preclude all probation officers other

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than the one assigned to a probationer from authorizing a probationary search.

¶45. When Ullom learned of Olmsted's possible involvement in the same crimes for
which he was on probation, she did not immediately authorize a search, but rather
went to the police department to learn the nature and extent of the information the
detectives had gathered. She correctly relied upon the information that the police
investigation had uncovered. We have held that "due to the large land mass and
mostly rural population of Montana, it would be impossible for the parole officers to
supervise every probationer and, as such, police officers are needed to assist
probation officers." See Boston, 269 Mont. at 305, 889 P.2d at 816-17. A requirement
that only the supervising probation officer be allowed to evaluate the facts and
circumstances surrounding a possible probation violation, and then determine if
reasonable grounds exist to warrant a search, would greatly hamper the effectiveness
of supervision during probation and diminish the public safety that supervision is
intended to assure. We conclude, therefore, that probation officers must be able to
support one another in order for the sanction of probation to work effectively. We
further conclude that, for the reasons previously stated, Ullom had reasonable cause
to authorize the search of Olmsted's U-Haul truck and that the search did not violate
Olmsted's right of privacy and his right to be free from unreasonable searches and
seizures.

¶46. We conclude that because the State had a particularized suspicion to initiate an
investigative stop of Olmsted, and because the warrantless search of the U-Haul
which yielded the evidence which Olmsted sought to suppress was constitutionally
valid, the District Court did not err when it denied Olmsted's motion to suppress.

ISSUE 3

¶47. Did the State violate Olmsted's right to a speedy trial?

¶48. As stated above, whether a defendant has been denied a speedy trial is a
question of constitutional law. See City of Billings v. Bruce, 1998 MT 186, ¶18, 965
P.2d 866, ¶18, 55 St. Rep. 750 ¶18. We review a district court's conclusions of law to
determine whether its interpretation of the law is correct. See Carbon County v.
Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 696.

¶49. A criminal defendant's right to a speedy trial is guaranteed by the Sixth

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Amendment to the United States Constitution, and Article II, Section 24, of the
Montana Constitution. See State v. Weeks (1995), 270 Mont. 63, 71, 891 P.2d 477, 482.
We review claims that a speedy trial was denied based on the four-part test
established by the United States Supreme Court in Barker v. Wingo (1972), 407 U.S.
514, 92 S. Ct. 2182, 33 L. Ed. 2d 101, as applied in City of Billings v. Bruce, 1998 MT
186, ¶19, 965 P.2d 866, ¶19, 55 St. Rep. 570 ¶19. According to Barker, the four
factors which a court must consider when evaluating an alleged speedy trial violation
are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's
assertion of his right; (4) and the prejudice to the defendant. See Barker, 407 U.S. at
530, 92 S. Ct. at 292, 33 L. Ed. 2d at 117. Prejudice to the defense can be established
based on any of the following factors: (1) pretrial incarceration; (2) anxiety and
concern to the defendant; and (3) impairment of the defense. See Barker, 407 U.S. at
532, 92 S. Ct at 2193, 33 L. Ed. 2d at 118.

¶50. According to our reasoning in Bruce, we apply the Barker factors in the
following manner to determine whether a defendant has been denied his or her right
to a speedy trial in violation of the Sixth Amendment to the United States
Constitution, or Article II, Section 24, of the Montana Constitution.

Length of Delay

¶51. We consider the length of delay from the time charges are filed until the
defendant's trial date without regard to fault of either party for the various periods
of delay. See Bruce, ¶55. In this case, Olmsted was charged by information on
February 16, 1995, and was tried on October 30, 1995; a delay of 256 days prior to
trial. Based on our decision in Bruce that 200 days is the necessary length of time to
trigger further speedy trial analysis, we conclude that the delay of 256 days prior to
Olmsted's trial is sufficient to trigger further speedy trial analysis. See Bruce, ¶55.

Reason for the Delay

¶52. In our consideration of the second factor of the Barker test, the reason for the
delay, we allocate the delay by determining how much time is attributable to each
party. See State v. Heffernan (1991), 248 Mont. 67, 71, 809 P.2d 566, 568. Any delay
directly attributable to a motion to dismiss based on denial of speedy trial which is
filed less than ten days prior to commencement of trial will be assigned to the
defendant. See Bruce, ¶57. When it has been demonstrated that 275 days of delay is

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attributable to the State, the burden shifts to the State to demonstrate that the
defendant has not been prejudiced by the delay. See Bruce, ¶56. Olmsted's trial was
scheduled for September, 6, 1995. Olmsted orally moved the District Court to dismiss
the case for lack of speedy trial on August 29, 1995, 194 days after being charged and
eight days before trial. On September 5, 1995, one day before the scheduled jury trial
and 201 days after being charged, Olmsted filed his motion to dismiss for the State's
violation of his right to a speedy trial. The timing of Olmsted's motion made it
impossible for the District Court to begin the trial on September 6, 1995 as
scheduled. On September 13, 1995, the District Court denied Olmsted's motion to
dismiss and rescheduled the trial for October 30, 1995.

¶53. In this case, the state was responsible for an institutional delay of 201 days and,
because he filed his motion to dismiss one day before trial, Olmsted was responsible
for 54 days of the delay. Nonetheless, even if all 256 days were attributable to the
State, the total delay is not sufficient to shift the burden to the State. Therefore,
Olmsted continues to bear the burden of demonstrating prejudice based on one or
more of the three factors considered when determining prejudice.

Assertion of the Right to a Speedy Trial

¶54. When we consider the third Barker factor, whether the defendant's right to
speedy trial has been timely asserted, we have held that if the right to speedy trial is
invoked at any time prior to the commencement of trial, either by demanding a
speedy trial, or moving to dismiss for failure to provide a speedy trial, the third
prong is satisfied. See Bruce, ¶57. Because Olmsted moved to dismiss on speedy trial
grounds prior to trial, we conclude that the third element of the Barker test, the
defendant's assertion of his right to a speedy trial, is satisfied.

Prejudice to Defendant

¶55. The fourth factor of the Barker test, prejudice to the defendant, must be
demonstrated by the defendant before there is a speedy trial violation. See State v.
Waters (1987), 228 Mont. 490, 494, 743 P.2d 617, 620. The importance of this factor
and the degree of prejudice needed to establish denial of speedy trial will vary based
upon other considerations, such as length of delay and the reason for delay. See
Bruce, ¶58. In order to determine whether the defendant has been prejudiced, the
court analyzes three interests which the right to a speedy trial is designed to protect:

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(1) avoiding oppressive pretrial incarceration; (2) minimizing the anxiety of the
accused; and (3) avoiding impairment of the defendant's defense. See State v. Hembd
(1992), 254 Mont. 407, 413-14, 838 P.2d 412, 416.

¶56. The first interest, avoiding oppressive pretrial incarceration, does not apply in
this case. Olmsted was released on bond and not incarcerated prior to trial.

¶57. As for the second interest, excessive anxiety and concern, Olmsted contends that
he has proven this type of prejudice because newspaper accounts stigmatized him as
a burglar, because he was unable to leave Montana to take advantage of a job
opportunity, and because the reopening of his business and the need to secure living
arrangements caused him difficulty and anxiety. We have previously recognized,
however, that although direct proof of a defendant's state of mind may not always be
possible, see Bruce ¶56, a certain amount of anxiety and concern is inherent in being
accused of a crime. See State v. Foshee (1997), 282 Mont. 326, 334, 938 P.2d 601, 606.
The existence of anxiety or emotional distress is notoriously difficult to prove. See
State v. Curtis (1990), 241 Mont. 288, 303, 787 P.2d 306, 316. Every person charged
with a felony offense has to live with uncertainty about his or her future liberty since
a period of incarceration is always a possibility. Likewise, every person charged with
a felony offense could argue that he or she has been stigmatized. Olmsted, however,
has failed to demonstrate how his anxiety and concern is more excessive than that of
other individuals who are charged with felonies. Moreover, in this case, Olmsted had
been previously convicted of burglary charges and, therefore, any stigma which
attached to Olmsted as a result of being charged with criminal conduct had already
occurred. Finally, there is no evidence in the record which demonstrates that
Olmsted suffered economic hardship. In fact, Olmsted stated that he had "re-
established his business in Missoula and rented a small office on a month-to-month
lease."

¶58. On appeal, Olmsted does not argue that the third interest, the impairment of his
defense, applies to this case.

¶59. Accordingly, we conclude that Olmsted has not carried his burden of
demonstrating prejudice from the delay of his trial date.

¶60. No single factor of the Barker analysis is determinative, and each must be
weighed in light of the facts of this case to determine if Olmsted was denied his right

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to speedy trial. See Bruce, ¶75. After weighing all three prongs of the Barker test, we
conclude that while there was institutional delay attributable to the State of 201 days,
and 54 days of delay attributable to Olmsted, Olmsted did not demonstrate sufficient
prejudice to establish that his October 30 trial date denied his constitutional right to
a speedy trial.

¶61. Further, we have held that when a mistrial is declared, the speedy trial clock is
reset and begins to run from the date of the mistrial. See State v. Sanders (1973), 163
Mont. 209, 214, 516 P.2d 372, 375. Therefore, the time which lapsed between the
mistrial on November 2, 1995, and the second trial on December 18, 1995, a delay of
46 days, does not trigger a speedy trial analysis. We conclude that the District Court
properly denied Olmsted's motion to dismiss.

¶62. Accordingly, we hold that Detective Gaffney had a particularized suspicion to
initiate an investigative stop of Olmsted, that probation officer Ullom had reasonable
grounds to authorize a probationary search of the U-Haul truck, and that the delay
in this case did not prejudice Olmsted and was not unreasonable in light of the
complexity of the case. Therefore, we conclude that the District Court correctly
denied Olmsted's motion to suppress the evidence gained through the search, and
properly denied his motion to dismiss for lack of speedy trial. We affirm the
judgment of the District Court.

/S/ TERRY N. TRIEWEILER

We Concur:

/S/ JAMES C. NELSON

/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER

1. 1Miranda v. Arizona (1966), 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694

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