City of Billings v. Whalen

• Decision Date: 05 April 1990
• Docket Number: No. 89-513,89-513
• Citation: 790 P.2d 471,242 Mont. 293
• Parties: CITY OF BILLINGS, Plaintiff and Appellant, v. Timothy J. WHALEN, Defendant, Respondent, and Cross-Appellant.
• Court: Montana Supreme Court

Page 471

790 P.2d 471

242 Mont. 293

CITY OF BILLINGS, Plaintiff and Appellant, v. Timothy J. WHALEN, Defendant, Respondent, and Cross-Appellant.

No. 89-513.

Supreme Court of Montana.

Submitted on Briefs Feb. 9, 1990.

Decided April 5, 1990.

Marc Racicot, Atty. Gen., Jennifer Anders, Asst. Atty. Gen., Helena, Russell C. Fagg, City Prosecutor, Billings, for plaintiff and appellant.

Michael J. Whalen, Billings, for defendant, respondent, and cross-appellant.

HUNT, Justice.

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 Sec. 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 "guiding" 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 Sec. 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 of privacy in that, "absent 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. II, Sec. 10.

In order for Sec. 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...