State ex rel. Sanford v. District Court of Thirteenth Judicial Dist., In and For Carbon County, 13361

• Decision Date: 08 July 1976
• Docket Number: No. 13361,13361
• Citation: 551 P.2d 1005,33 St.Rep. 644,170 Mont. 196
• Parties: The STATE of Montana ex rel. Ron SANFORD, Relator, v. The DISTRICT COURT OF the THIRTEENTH JUDICIAL DISTRICT of the State of Montana, IN AND FOR the COUNTY OF CARBON, and the Honorable Robert H. Wilson, Respondents.
• Court: Montana Supreme Court

Page 1005

551 P.2d 1005

170 Mont. 196

The STATE of Montana ex rel. Ron SANFORD, Relator, v. The DISTRICT COURT OF the THIRTEENTH JUDICIAL DISTRICT of the State of Montana, IN AND FOR the COUNTY OF CARBON, and the Honorable Robert H Wilson, Respondents.

No. 13361.

Supreme Court of Montana.

Submitted May 25, 1976.

Decided July 8, 1976.

Moses, Kampfe, Tolliver & Wright, Pablo Perhacs (argued), Billings, for relator.

Robert L. Woodahl, Atty. Gen., Helena, Arthur W. Ayers, Jr., (argued), County Atty., Red Lodge, for respondents.

HASWELL, Justice.

Relator has filed an original proceeding seeking a writ of supervisory control to review and reverse the district court's denial of his motions to dismiss and suppress in a criminal prosecution against him in the district court of Carbon County.

Relator is Ron Sanford who was charged with burglary of the Stockman Bar and Cafe in Bridger, Montana, at an unspecified date between March 25 and April 12, 1975.

On May 1, 1975, the Carbon County attorney applied for a search warrant of a house and garage in Bridger occupied by defendant. The district judge issued the search warrant and it was executed the same day by the deputy sheriff. Three items allegedly stolen in the burglary were found on defendant's premises and seized.

On May 15, 1975, the county attorney filed a direct information against relator by leave of court. Arraignment was set for May 20, but was continued to June 26 by mutual agreement of the county attorney and relator's counsel.

In the meantime relator filed a motion to quash the information with supporting brief and mailed copies of the same to the county attorney and presiding judge. On June 26, relator was apparently arraigned, but the record is silent concerning whether a plea was entered.

On June 27, relator requested the court to set a hearing on this motion. The record discloses that nothing further transpired until January 28, 1976, when relator again requested the court to set a hearing date on his motion.

On January 30, 1976, the district court entered an order reciting that relator's case had been set for trial as the third case on April 20, 1976, and set all pending pretrial motions for hearing on February 19. Relator's motion to quash the information was heard and denied on February 19.

One month later relator filed a notice to suppress all testimony and evidence resulting from issuance of the search warrant and noticed it for hearing on April 1. At that time the motion was ordered submitted on briefs. On April 15, the district court denied this motion.

In the meantime on March 25, relator filed a motion to dismiss the information on the ground that he had been denied a speedy trial. At that time relator filed a supporting brief and noticed his motion for hearing on April 1. On that date relator's motion to dismiss was ordered submitted on briefs. On April 15 relator's motion to dismiss was denied.

On May 3 relator applied to this Court for a writ of supervisory control. The application was set for adversary hearing, heard on May 25, and taken under advisement by the Court.

Two issues are presented for review:

(1) Did the district court err in denying relator's motion to suppress?

(2) Did the district court err in denying relator's motion to dismiss?

We hold that denial of relator's motion to suppress was error. The search warrant was directed 'to any Peace Officer of this State'. This practice has been condemned by this Court in the following cases: State v. Meidinger (1972), 160 Mont. 310, 502 P.2d 58; State ex rel. Stief v. Sande and Mankin v. Sande (1975), Mont., 540 P.2d 968, 32 St.Rep. 942; State v. Snider (1975), Mont., 541 P.2d 1204, 32 St.Rep. 1056. Also cf. State v. Tropf, 166 Mont. 79, 530 P.2d 1158, 32 St.Rep. 56. We simply will not tolerate further violation of section 95-703, R.C.M.1947, to permit incursions by law enforcement officers into a constitutionally protected area. The motion to suppress should have been granted.

We likewise hold that denial of relator's motion to dismiss was error. In finding that relator has been denied his right to a speedy trial as mandated by the United States and Montana Constitutions, we apply the balancing test of Barker v. Wingo, 407 U.S. 514, 529, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101, 116. This test was approved by this Court in State v. Steward, Mont., 543 P.2d 178, 181, 32 St.Rep. 1185, where we quoted from Barker:

'* * * The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.

"A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant."

Here the state admits a delay of 299 days, or...