State v. McDole

• Decision Date: 23 March 1987
• Docket Number: No. 86-413,86-413
• Citation: 734 P.2d 683,226 Mont. 169
• Parties: STATE of Montana, City of Eureka, Plaintiff and Respondent, v. Ronald Ray McDOLE, Defendant and Appellant.
• Court: Montana Supreme Court

Page 683

734 P.2d 683

226 Mont. 169

STATE of Montana, City of Eureka, Plaintiff and Respondent, v.Ronald Ray McDOLE, Defendant and Appellant.

No. 86-413.

Supreme Court of Montana.

Submitted on Briefs Dec. 4, 1986.

Decided March 23, 1987.

Scott B. Spencer, Libby, for defendant and appellant.

Hon. Mike Greely, Atty. Gen., George Schunk, Asst. Atty. Gen., Helena David W. Harman, Libby, for plaintiff and respondent.

WEBER, Justice.

After a jury trial in the Nineteenth Judicial District, Lincoln County, appellant was convicted of driving under the influence of alcohol (DUI) and leaving the scene of an accident.We affirm.

The issues are:

1.Did the District Court err in admitting evidence obtained by a city police officer during a warrantless search outside the city limits?

2.Did the District Court err by not instructing the jury on the mental state element of the DUI charge?

In November 1985, Mr. McDole was driving on the Pinkham Mountain Road near Eureka, Montana.Four witnesses testified at the District Court jury trial that Mr. McDole was driving erratically and swerving from side to side on the road.One of the witnesses who had observed Mr. McDole's driving called the Eureka police department to report Mr. McDole as a possible DUI driver.In addition, a fifth witness at the trial testified that Mr. McDole's vehicle hit her vehicle while she was stopped at a stop sign in the city limits and then backed up and left the scene of the accident.This fifth witness testified she then followed Mr. McDole to his residence, recorded his license plate number, and proceeded to the police station to report the accident.

A Eureka police officer responded to the possible DUI and leaving the scene of the accident call and drove to Mr. McDole's residence less than a mile outside the Eureka city limits.There, he confirmed that the truck in the driveway fit the dispatcher's description of the vehicle and license plate number involved in the accident and that the truck hood was still warm.Mr. McDole was arrested, given a breath test, and identified by the witness whose car had been hit.Mr. McDole's breath sample indicated a .23 alcohol content.

Mr. McDole was charged with violation of Sec. 61-8-401, MCA, driving under the influence, and Sec. 61-7-105, MCA, duty to give information and render aid.Mr. and Mrs. McDole and two of Mr. McDole's sisters testified on the defendant's behalf at the jury trial.Mr. McDole's defense was that a defective wheel bearing caused his vehicle to swerve, that he had not been in an accident, and that he had begun drinking only after arriving at home.

At the District Court jury trial, Mr. McDole was convicted of DUI and leaving the scene of an accident.He was sentenced to 180 days (with all but 7 days suspended) and fined $500 for the DUI, which was his second offense, and $100 for his failure to stop at an accident scene.Mr. McDole appeals.

I

Did the District Court err in admitting evidence obtained by a city police officer during a warrantless search outside the city limits?

Mr. McDole argues that his arrest was illegal because it was made outside the Eureka city limits and without an arrest warrant.He believes that because the arrest was illegal all evidence resulting from the arrest, including the breath test results, should have been excluded from evidence at the lower court level.Mr. McDole maintains that because the City of Eureka could not produce a statute authorizing its police officers to make arrests within five miles of the city limits in accordance with Sec. 7-32-4301, MCA, the police officer was without authority to arrest him.We disagree.

In Montana a city or town may authorize its police force to make arrests within 5 miles of a city pursuant to Sec. 7-32-4301, MCA, which provides:

The city or town council has power to make regulations authorizing the police of the city or town to make arrests of persons charged with crime:

(1) within the limits of the city or town;

(2) within 5 miles thereof; and

(3) along the line of water supply of the city or town.

If Eureka had enacted an ordinance authorizing its police officers to make arrests within 5 miles of the Eureka city limits, this issue would not be here.However, Eureka did not enact such an ordinance.

There is no question that Mr. McDole's arrest would have been legal under Sec. 46-6-401(1)(d), MCA, if that arrest had been made within the Eureka city limits.Section 46-6-401(1)(d), MCA, provides:

A peace officer may arrest a person when: ... (d)he believes on reasonable grounds that the person is committing an offense or that the person has committed an offense and the existing circumstances require his immediate arrest.

The hit and run accident in particular, as well as the reported erratic driving, clearly required Mr. McDole's immediate arrest in order to prevent his getting in additional accidents and possibly seriously injuring someone.In addition, the preservation of Mr. McDole's blood alcohol content required his immediate arrest.State v. Ellinger(Mont.1986), 43 St.Rep. 1778, 1780725 P.2d 1201, 1203.However, Mr. McDole's arrest was not made within Eureka so we cannot rely on Sec. 46-6-401(1)(d), MCA, but can only use it as guidance.

It is a well established general rule that a law enforcement officer acting outside his jurisdiction without a warrant may not make arrests.An exception to this rule is the arrest made under circumstances which would authorize a private citizen to make the arrest.See generally: Annot., Validity, In State Criminal Trial, of Arrest Without Warrant by Identified Peace Officer Outside of Jurisdiction, When Not in Fresh Pursuit, 34 A.L.R. 4th 328(1984);5 Am.Jur.2dArrestsSec. 50, (1962, Supplement 1986);andRestatement (Second) of TortsSec. 121(1965, Supplement 1975, 1984).

In Montana, a private citizen may make an arrest pursuant to Sec. 46-6-502, MCA, which provides:

A private person may arrest another when:

(1)he believes on reasonable grounds that an offense is being committed or attempted in his presence;

(2) a felony has in fact been committed and he believes on reasonable grounds that the person arrested has committed it; or

(3)he is a merchant, as defined in 30-11-301, and has probable cause to believe the other is shoplifting in the merchant's store.

By enacting Sec. 7-32-4301, MCA, (allowing a town to authorize a police force to make arrests within 5 miles of town), Sec. 46-6-502, MCA, (authorizing private citizens to make arrests), and Sec. 46-6-411, MCA, (authorizing a peace officer from another state who enters this state in close pursuit to make an arrest), it is clear Montana no longer adheres to the old common law rule strictly prohibiting arrests outside an officer's jurisdiction.

A police officer outside his jurisdiction has not lost his characteristics of being a citizen and has all the arrest capabilities that a private citizen has.Thus, we hold that if an arrest by a private...