State v. Updegraff , 363 Mont. 123 ( 2011 )

December 20 2011
DA 10-0613
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 321
STATE OF MONTANA,
Plaintiff and Appellee,
v.
FLOYD THOMAS UPDEGRAFF,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and For the County of Madison, Cause No. DC-2009-15
Honorable Loren Tucker, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joslyn Hunt, Chief Appellate Defender, Garrett R. Norcott, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Steve Bullock, Montana Attorney General, Mark W. Mattioli, Appellate
Services Bureau Chief, Rachel Batten, Legal Intern, Helena, Montana
Chris Christensen, Madison County Attorney, Christopher McConnell,
Deputy County Attorney, Virginia City, Montana
Submitted on Briefs: December 7, 2011
Decided: December 20, 2011
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Late one night in July 2009, Jefferson County Reserve Deputy Francine Janik
came upon a car parked in a posted “day use only” fishing access site in neighboring
Madison County. The car’s driver, Floyd Thomas Updegraff, appeared motionless and
unresponsive. Janik approached the vehicle and made contact with Updegraff. Upon
doing so, she ascertained that Updegraff was intoxicated. Janik detained Updegraff and
radioed for assistance from a second Jefferson County officer, Deputy Michael Wharton.
Wharton responded to the scene and placed Updegraff under arrest for driving under the
influence of alcohol (DUI).
¶2 Updegraff subsequently was charged in the Fifth Judicial District Court, Madison
County, with various offenses, including felony DUI (sixth offense). Before trial, he
filed a motion to dismiss or, alternatively, to suppress the evidence against him on the
ground that Deputy Janik and Deputy Wharton had effected an illegal arrest. The District
Court held an evidentiary hearing and denied the motion. The case then proceeded to
trial, and the jury ultimately convicted Updegraff.
¶3 On appeal, Updegraff raises one issue: whether the District Court erred in denying
his motion to dismiss/suppress. His arguments in the District Court and this Court boil
down to the following proposition: either the deputies were acting “under color of law”
as Jefferson County “peace officers,” in which case they had no authority to make an
arrest in Madison County, or the deputies were acting as “private citizens,” in which case
they failed to comply with the mandates and limited authority of the private person arrest
statute (§ 46-6-502, MCA). Either way, the arrest was illegal.
2
¶4 The State, on the other hand, argues the arrest was lawful. The State contends that
Janik was “still a peace officer” when her duties brought her into Madison County and
that her initial contact with Updegraff was justified under the community caretaker
doctrine.1 The State further contends that Janik’s observations after making contact with
Updegraff gave rise to “probable cause of a criminal offense involving an immediate, real
danger to Updegraff and other motorists,” thus meeting the arrest standard set forth in the
private person arrest statute. Finally, the State acknowledges that Janik and Wharton
followed certain “police procedures” in conjunction with Updegraff’s arrest, but the State
maintains that so-called “out-of-jurisdiction” peace officers are allowed to “employ their
training, experience, and procedures when exercising citizen arrest authority.”
¶5 These arguments implicate two questions in addressing the legality of Updegraff’s
arrest: what authority the deputies had to make a warrantless arrest in another county,
and what restrictions applied to the deputies’ actions incident to that arrest. As the State
points out, we have held that a law enforcement officer is always a peace officer, no
matter his or her geographical location. Yet, at the same time, we have also made it clear
that, unless authorized by statute, a peace officer may not use criminal procedure statutes
and does not have authority to make an arrest in the capacity of a peace officer when
outside the territorial jurisdictional limits of the law enforcement entity for which the
1
The community caretaker doctrine allows a law enforcement officer to effect a
brief warrantless seizure of a person in order to check on the person’s welfare. See State
v. Spaulding, 2011 MT 204, ¶¶ 18, 21, 361 Mont. 445, 259 P.3d 793. Private citizens,
conversely, are not subject to the warrant requirement, see State v. Long, 216 Mont. 65,
700 P.2d 153 (1985), and thus a private person would not need to invoke or satisfy the
requirements of the community caretaker doctrine in order to make contact with a parked
vehicle and check on the driver’s welfare.
3
officer works. Instead, we have analyzed arrests by out-of-jurisdiction officers for
compliance with the requirements of the private person arrest statute.
¶6 The assumption underlying this approach is that an out-of-jurisdiction officer “acts
as a private citizen” and that the private person arrest statute, therefore, applies wholesale
to the officer’s actions. The parties’ arguments and the events surrounding Updegraff’s
arrest, however, require that we address the correctness of this assumption. Following a
detailed examination of the law of private person arrests, we conclude that the private
person arrest statute applies only to arrests by actual “private persons” (i.e., non-peace
officers) and those whose arrest authority is, by statute, limited to that of a private person.
As such, it is necessary to clarify the analysis for arrests by out-of-jurisdiction peace
officers. Based on the discussion below, and because it does not alter the outcome of this
appeal, we hold that in order to make a warrantless arrest, an out-of-jurisdiction officer
must meet the arrest standard that would apply to a private person in the same
circumstances, but that if this standard is met, the officer may then follow the procedures
applicable to peace officers in processing the arrest. Applying this approach here, we
conclude that Updegraff’s arrest was legal, and we accordingly affirm the District Court’s
denial of his motion to dismiss/suppress.
BACKGROUND
¶7 Deputy Janik is a retired Montana Highway Patrol officer. At the time of the
events at issue here, she had served for ten years as a reserve officer with the Jefferson
County Sheriff’s Office. A “reserve officer” is “a sworn, part-time, volunteer member of
a law enforcement agency who is a peace officer, as defined in 46-1-202, and has arrest
4
authority, as described in 46-6-210, only when authorized to perform these functions as a
representative of the law enforcement agency.” Section 7-32-201(6), MCA. The
qualifications, training requirements, and limitations of reserve officers are set forth in
§§ 7-32-213, -214, -216, and -217, MCA. Upon being activated by the chief law
enforcement administrator of the local government, and while on assigned duty only, a
reserve officer “is vested with the same powers, rights, privileges, obligations, and duties
as any other peace officer of this state.” Section 7-32-218, MCA.
¶8 Deputy Janik was on duty during the evening and early morning hours of July 11
and 12, 2009. At around 1:00 a.m., while patrolling on Highway 359 in Jefferson County
between Cardwell and Interstate 90, she noticed a southbound vehicle that appeared to be
speeding. Janik followed the vehicle, but the driver quickly slowed down. Thus, after
crossing the Jefferson River into Madison County, Janik pulled into the Cardwell Bridge
Fishing Access Site intending to turn around and return to Jefferson County.
¶9 As she made her turn, Janik’s headlights illuminated a car parked on the roadway
in the fishing access site. Because this is a posted “day use only” area, and thus nobody
was supposed to be there at night, Janik decided to drive in and “make sure there was
nothing going on that might need some attention.” Based on what she had heard over the
radio traffic that evening, Janik believed there were no Madison County deputies,
Montana Highway Patrol officers, or Fish, Wildlife, and Parks officers in the area at the
time. Thus, she did not contact any of these agencies regarding her situation. She did
call in to the Jefferson County dispatcher, however, who noted “TS [traffic stop] @
Cardwell Fishing Access” on the dispatch logs at 1:13 a.m.
5
¶10 As she drove toward the parked vehicle, Janik could see that someone (Updegraff)
was sitting in the driver’s seat. His head was laid back against the seat, his eyes were
closed, and Janik could see no movement. She shined her headlights into the vehicle, but
Updegraff did not respond. She turned on her top red-and-blue rotating lights, but that
also failed to rouse him. She approached the vehicle, announced that she was a deputy,
and asked if he was alright. Still he did not respond. Janik then went up to the car door
window, knocked on it very loudly, and again asked if everything was alright. Finally,
Updegraff woke up. With slurred words, he stated, “Yeah, I think I’m alright.”
¶11 Janik observed that Updegraff seemed disoriented and confused. She identified
herself as a deputy and asked what he was doing there. Updegraff responded that he was
“trying to do the right thing” and “sleep it off.” He indicated that he was coming from
Bozeman, had pulled off the road at Cardwell, and would be heading on to Butte.
Through the windows of the vehicle, Janik observed “numerous, numerous beer cans.”
Some were open, others were in an ice cooler in back, and one was open in a cup holder
next to the driver’s seat. Janik could also see that his keys were in the ignition.
¶12 Janik asked Updegraff to step out of the vehicle. He complied. Janik smelled the
“strong” odor of an alcoholic beverage emanating from both the car and Updegraff’s
person. She asked his name but was unable to understand his answer, so she asked for
his driver’s license, which he produced. Janik noted, though, that Updegraff had “a really
tough time” finding his license in his wallet and that he fell back against the car when
presenting it to her. His movements were “real staggery,” and he had to use the car to
keep himself up. His eyes were bloodshot and watery.
6
¶13 Updegraff refused to perform any field sobriety maneuvers. He indicated that he
wanted Janik to leave him alone so that he could “get on his way and go to Butte.” Since
Updegraff was “such a large gentleman” and “very difficult to deal with,” Janik radioed
Deputy Wharton from her patrol vehicle and asked him to respond to the scene. Janik
noticed that Updegraff was shuffling through things in his car, so she returned to his
vehicle to make sure that he was not drinking any alcohol or smoking any cigarettes. She
asked him to turn over his keys, which he eventually did. Janik noted that one of his beer
cans was now lying on the ground three feet from the driver’s side door.
¶14 Deputy Wharton is a Jefferson County Deputy Sheriff. He had been so employed
for about two years by the time of this incident. Upon arriving at the scene, Wharton
observed Updegraff outside his car “walking around a little bit and kind of stumbling.”
Wharton made contact with Updegraff and detected a distinct odor of an alcoholic
beverage coming from Updegraff. He also observed multiple beer cans in Updegraff’s
vehicle. Wharton read Updegraff the implied consent advisory (see § 61-8-402, MCA)
and asked him to provide a sample for a preliminary breath test. Updegraff refused.
Wharton then handcuffed Updegraff and informed him that he was under arrest on
suspicion of DUI. While Wharton got Updegraff situated in his cruiser, Janik searched
Updegraff’s car and collected evidence therefrom.
¶15 Wharton transported Updegraff to the Jefferson County Sheriff’s Office in
Boulder. This is approximately 33 miles north from the Cardwell Bridge Fishing Access
Site. On the other hand, Virginia City (the county seat of Madison County) is about
56 miles south from the fishing access. Wharton conceded that he could have driven
7
Updegraff to Virginia City, but in the circumstances he believed it was proper to
transport Updegraff to the nearest jail. At the Jefferson County detention facility,
Updegraff refused to provide a sample for the Intoxilyzer. Wharton then issued him
citations for various offenses, and Updegraff was processed into jail.
¶16 Madison County authorities were not immediately notified of Updegraff’s arrest.
He made his initial appearance the next day in Jefferson County Justice Court. It was not
until July 23, 2009—eleven days after the arrest—that a Madison County official became
involved in the case. On that date, the Madison County Attorney requested leave of the
District Court to file an information charging Updegraff with DUI, possession of an open
container, littering, and two drug-related offenses also arising out of the July 12 incident.
The Jefferson County Attorney, correspondingly, filed a “Dismissal of Citations” in
Jefferson County Justice Court on July 29.
¶17 At the hearing on Updegraff’s motion to dismiss/suppress, the prosecutor assumed
that because the events in question occurred in Madison County, the Jefferson County
deputies acted as “private persons.”2 The prosecutor thus presented the District Court
with a somewhat convoluted theory as to why Updegraff’s arrest and transportation to
Boulder were legal under the private person arrest statute, which provides as follows:
2
Because we ultimately conclude below that the prosecutor’s assumption was
incorrect, we note here that “[w]e are not bound by a party’s concession as to the
meaning of the law, even if that party is the government and even in the context of a
criminal case.” United States v. Ogles, 440 F.3d 1095, 1099 (9th Cir. 2006) (en banc);
accord United States v. Miller, 822 F.2d 828, 832 (9th Cir. 1987) (“Even if a concession
is made by the government, we are not bound by the government’s erroneous view of the
law. The policy is longstanding and applied whether it is the government or a private
party which has made the erroneous concession.” (citation and internal quotation marks
omitted)).
8
(1) A private person may arrest another when there is probable cause
to believe that the person is committing or has committed an offense and
the existing circumstances require the person’s immediate arrest. The
private person may use reasonable force to detain the arrested person.
(2) A private person making an arrest shall immediately notify the
nearest available law enforcement agency or peace officer and give custody
of the person arrested to the officer or agency.
Section 46-6-502, MCA.
¶18 Broken down into its constituent elements, the statute authorizes (a) an arrest,
(b) by a private person, (c) when there is probable cause to believe that another person is
committing or has committed an offense, and (d) the existing circumstances require the
other person’s immediate arrest; and the private person making the arrest (e) may use
reasonable force to detain the arrested person, (f) must immediately notify (g) the nearest
available law enforcement agency or peace officer and (h) give custody of the person
arrested to the agency or officer. In attempting to fit the present arrest within these
parameters, the prosecutor first argued that Janik and Wharton each had probable cause to
believe that Updegraff had committed DUI, given their observations of his intoxicated
condition, the strong odor of an alcoholic beverage, the numerous open beer cans strewn
about his car, the keys in the ignition, and his admission that he was on his way from
Bozeman to Butte. The prosecutor further argued that Updegraff’s articulated desire to
continue on his way gave the deputies grounds to make an immediate arrest.
¶19 The reasonableness of the force used had not been disputed by the defense, but
satisfying the remaining elements of the statute presented a bit of a challenge. For one
thing, the statute authorizes a private person to make “an arrest.” It says nothing about
the private person conducting the sort of DUI investigation that occurred here—i.e.,
9
asking Updegraff to perform field sobriety maneuvers, reading him the implied consent
advisory, and asking him to provide a breath sample. Nor does the statute authorize the
private person to conduct an automobile search or to collect evidence found therein. In
this regard, the District Court expressed concern that allowing private citizens to conduct
criminal investigations may implicate the arrestee’s constitutional rights and would be
“bad policy” in any event. Another problem in the statute’s application was the deputies’
apparent failure to “immediately notify the nearest available law enforcement agency or
peace officer and give custody of the person arrested to the officer or agency.” Section
46-6-502(2), MCA. It seems peculiar to question compliance with this requirement in the
present case, where the two deputies were the nearest—and evidently only—peace
officers available. It appears, however, that Updegraff, the prosecutor, and the District
Court all assumed that “the nearest available law enforcement agency or peace officer”
meant “the nearest available law enforcement agency or peace officer within that
jurisdiction”—meaning, here, Madison County.
¶20 To get around these problematic aspects of the private person arrest statute, the
prosecutor seized on language in State v. Hendrickson, 283 Mont. 105, 111, 939 P.2d
985, 988 (1997), where the Court stated: “Absent any exigent circumstances, when a
citizen or out-of-jurisdiction peace officer, acting as a citizen, makes a stop or arrest, his
or her authority to proceed ceases once a peace officer with jurisdiction arrives at the
scene.” (Emphasis in original.) Here, the prosecutor argued, the DUI investigation by
Janik and Wharton, their search of Updegraff’s car, their decision to transport him to
Boulder rather than Virginia City, and their failure to immediately notify and give
10
custody of him to Madison County law enforcement were all justified under the so-called
“exigent circumstances exception.” The exigent circumstances cited by the prosecutor
were the time of day, the location (being in the northernmost part of Madison County),
and, especially, the lack of available Madison County officers in the area.
¶21 In response to these arguments, Updegraff maintained that it is illegal for a peace
officer to make an arrest, in the capacity of a peace officer, outside his or her territorial
jurisdiction, which seemingly is what transpired here. Updegraff also maintained that the
private person arrest statute had not been satisfied. First, he contended that Janik needed
to have probable cause of an offense in order to approach his parked vehicle in the first
place. In his view, however, Janik did not have probable cause to believe that he was
committing or had committed any offense until after she made contact with him. Second,
regarding the deputies’ actions incident to the arrest, Updegraff agreed with the court that
it would be “bad public policy” for private citizens to be investigating traffic infractions.
Moreover, he argued that the deputies had failed to comply with the requirements of
immediate notification and transfer of custody, which could not be excused by “exigent
circumstances.” He noted that neither Janik nor Wharton had even attempted to get in
touch with Madison County authorities before transporting him to Boulder.
¶22 The District Court ruled in favor of the State. The court first presumed that the
Jefferson County deputies were “merely private citizens” while they were in Madison
County. Proceeding on that premise, the court determined that Wharton’s observations of
Updegraff, the many containers of beer, the strong odor of alcohol, and the fact that he
was parked some distance away from any town provided a sufficient basis upon which to
11
form probable cause of DUI, especially if considered together with Janik’s observations.3
Next, the court concluded that Updegraff’s expressed desire to drive away gave Wharton
reason to make an immediate arrest. Also, the court noted that evidence of alcohol
consumption in the bloodstream dissipates over time, and the court reasoned that in order
to secure this evidence, it was necessary to take Updegraff into custody so that testing
could be done without delay. Finally, as for the investigation and transfer-of-custody
issues, the court found it troubling that the deputies had gone north to Boulder rather than
south to Virginia City. The court also noted that the private person arrest statute does not
authorize criminal investigations in conjunction with an arrest. However, the court read
Hendrickson as allowing a private person to delay transfer of custody and to conduct an
investigation if there are “exigent circumstances.” Here, the court concluded, the lack of
available Madison County officers in the area and the need to promptly test for alcohol
concentration were exigent circumstances which justified the deputies in continuing to
investigate and in transporting Updegraff to the Jefferson County Sheriff’s Office.
¶23 The discussion then turned to the search of Updegraff’s car. The prosecutor
admitted uncertainty as to whether “the plain view doctrine,” “inventory searches,” and
“searches incident to a lawful arrest” apply to arrests under the private person arrest
statute. He elected, therefore, to dismiss the two drug-related charges that were
3
The District Court indicated that it was uncertain whether a private person, when
assessing probable cause to make an arrest under the statute, may rely on information
provided by another. Subsequent to the District Court hearing, we issued our decision in
State v. Schubert, 2010 MT 255, 358 Mont. 286, 244 P.3d 748. There, we held that the
private person may consider information from a reliable third-party source, together with
the facts and circumstances within the private person’s own personal knowledge, in the
assessment of probable cause under the statute. See Schubert, ¶¶ 17-22.
12
dependent on evidence which Janik had discovered and seized from Updegraff’s car. The
District Court granted the motion, and the case proceeded to trial on the DUI, littering,
and open-container charges. Ultimately, the jury convicted on all three offenses.
STANDARDS OF REVIEW
¶24 We review the denial of a motion to dismiss in a criminal case de novo. State v.
Hocter, 2011 MT 251, ¶ 13, 362 Mont. 215, 262 P.3d 1089. We review a district court’s
ruling on a motion to suppress to determine whether its findings of fact are clearly
erroneous and its interpretation and application of the law are correct. State v. Hafner,
2010 MT 233, ¶ 12, 358 Mont. 137, 243 P.3d 435.
DISCUSSION
¶25 As an initial observation, treating the events described above as two “private
persons” merely making an “arrest” is difficult to square with reality. Janik and Wharton
were peace officers and conducted themselves as such. Janik activated her vehicle’s top
red-and-blue rotating lights and identified herself as a deputy. She directed Updegraff to
get out of his car and to produce identification. She asked him to perform field sobriety
tests and insisted that he turn over his keys. Wharton read Updegraff the implied consent
advisory and asked him to provide a breath sample. Wharton handcuffed Updegraff,
advised him that he was under arrest, and placed him in a patrol car. Meanwhile, Janik
searched Updegraff’s vehicle. Notwithstanding his articulated desire to continue on his
way to Butte, Updegraff complied with all of the deputies’ directions (other than their
requests for a breath sample and field sobriety tests). It is questionable whether he would
have been so compliant had these truly been “private persons.”
13
¶26 The District Court endeavored to apply the private person arrest statute to these
facts in accordance with Hendrickson. Understandably, the judge noted some difficulties
with our jurisprudence in this area. The problem is that we have tried to fit a square peg
(arrests by out-of-jurisdiction peace officers) into a round hole (the private person arrest
statute). The fact is that § 46-6-502, MCA, was intended to apply to actual private
persons, not sworn peace officers. In this regard, a brief historical account is required.
Arrests by Private Citizens
¶27 At common law, a private person had the power to arrest for felonies and breaches
of the peace. See United States v. Coplon, 185 F.2d 629, 634 (2d Cir. 1950); Crawford v.
Commonwealth, 44 S.W.2d 286, 288 (Ky. 1931); Stevenson v. State, 413 A.2d 1340,
1345-46 (Md. 1980); Rohan v. Sawin, 59 Mass. 281, 285 (1851); State v. Mobley, 83
S.E.2d 100, 102, 103-04 (N.C. 1954); Brooks v. Commonwealth, 61 Pa. 352, 358-59 (Pa.
1869). As noted in Stevenson, the right of private citizens to make arrests
has its roots in the Statute of Winchester, enacted in 1285. This statute not
only established the right of every person to apprehend malefactors in order
to preserve the King’s peace, but also imposed a positive duty on the people
of England to drop whatever they were doing when the “hue and cry” was
raised and to “join immediately in the pursuit.” [M. Cherif Bassiouni,
Citizen’s Arrest 9 (1977).] Professor Wilgus vividly describes this early
method of law enforcement: “When the cry of Out! Out! is heard, all must
turn out with bows, arrows, knives, and shout and blow horns, from vill to
vill. . . . The hand-having thief, or the red handed slayer with the gory
knife in his hand, taken in hot pursuit, by those following the hue and cry,
was still summarily disposed of; or if brought before any court was
summarily hanged or beheaded, on proof that he was so taken under hue
and cry, without any formal appeal or charge against him.” [Horace L.
Wilgus, Arrest without a Warrant, 22 Mich. L. Rev. 541, 545 (1924).] This
differs little from what has been referred to in this country as lynch law.
413 A.2d at 1345 n. 5 (ellipsis and italics in original, some citations omitted).
14
¶28 Regarding felonies, the rationale for allowing arrests to be made without a warrant
was that “dangerous criminals and persons charged with heinous offenses should be
incarcerated with all possible haste in the interest of public safety,” while arrests in
misdemeanor cases involving breaches of the peace were justified by “the necessity for
prompt on-the-spot action in suppressing and preventing disturbances of the public
peace.” Mobley, 83 S.E.2d at 102; accord Carroll v. United States, 267 U.S. 132, 157, 45
S. Ct. 280, 286 (1925); see also Malley v. Lane, 115 A. 674, 676 (Conn. 1921) (“ ‘The
doctrine would seem to be that one who sees another committing a crime should do
something to prevent it, or, failing in this, should bring him to justice.’ ” (citing Bishop,
New Criminal Procedure vol. 1, § 171)). It is important to note that the common law
rules were developed at a time when “the apprehension of criminals by private
individuals was the norm rather than the exception as it is today. While ‘[t]he Crown
appointed sheriffs and constables among whose manifold duties was that of arresting
wrongdoers, . . . the principal burden of keeping the peace lay on the community as a
whole.’ ” Stevenson, 413 A.2d at 1347 (brackets and ellipsis in original) (quoting Sam
Bass Warner, Investigating the Law of Arrest, 31 J. Am. Inst. Crim. L. & Criminology
111, 112 (1940)). Not only did private persons have the right to make an arrest, they had
the obligation to do so in the case of felonies. See Kennedy v. State, 6 N.E. 305, 307
(Ind. 1886) (“ ‘All persons whatsoever, who are present when a felony is committed, or a
dangerous wound given, are obliged to apprehend the offender; otherwise they are liable
to be fined and imprisoned for the neglect.’ ”); Crawford, 44 S.W.2d at 288 (“ ‘Any
private person . . . that is present when any felony is committed is bound by the law to
15
arrest the felon on pain of fine and imprisonment if he escapes through the negligence of
the standers-by.’ ”); accord Brooks, 61 Pa. at 358.
¶29 Montana’s private person arrest statute is founded on the common law rules. State
v. Hum Quock, 89 Mont. 503, 507, 300 P. 220, 221 (1931). The statutory authority for a
private person to make an arrest in Montana has existed since territorial days. Section 64
of the Criminal Practice Act, passed by the legislative assembly in Virginia City on
January 12, 1872, provided that an arrest could be made by a peace officer under a
warrant, by a peace officer without a warrant, or by a private person. Sections 65 and 66
detailed the authority of a peace officer to make an arrest. Section 67, in turn, detailed
the circumstances in which a private person could make an arrest: “First. For a public
offence committed or attempted to be committed in his presence. Second. When he has
reasonable cause for believing that a person has committed a felony, and that said person
may flee before he can be arrested by a proper officer.” Before making an arrest, the
private person was required to “state to the person about to be arrested the cause thereof,
and require him to submit, except when such person is in the actual commission of the
offence, at the time thereof, or is in actual flight thereafter.” Section 68. The private
person was not to use any more restraint than necessary for the defendant’s arrest and
detention. Section 71. The private person was also required, “without unnecessary
delay, [to] take him before a magistrate or deliver him to a peace officer.” Section 69.
¶30 In 1895, the Legislature renumbered these sections and made some amendments
not material to this discussion. The statutes were again renumbered for the 1907, 1921,
and 1947 Codes. In 1967, the Legislature overhauled the criminal procedure laws and, of
16
relevance here, enacted the following private person arrest statute: “A private person
may arrest another when: (a) He believes, on reasonable grounds, that an offense is being
committed or attempted in his presence; or (b) When a felony has in fact been committed
and he believes, on reasonable grounds, that the person arrested has committed it.” Laws
of Montana, 1967, ch. 196, § 1 (paragraph breaks omitted), codified at § 95-611, RCM,
derived from former § 94-6004, RCM. This statute modified the law “by restricting the
power of a private person to arrest to the two situations stated above. . . . The consensus
of the commission was that modern law enforcement requires that most arrests be made
by police officers and the right of private persons to arrest should be strictly limited.”
Commission Comments to § 46-6-502, MCA (2010 Annotations). Notably, the rule that
the arrested person had to be brought before a judge without unnecessary delay was
retained, but now it had to be a judge “in the same county.” See § 95-901(b), RCM;
§ 46-7-101(2), MCA (1989). In addition, the option (under former § 94-6014, RCM) of
delivering the arrested person to a peace officer, rather than a judge, was not retained.
¶31 In 1974, the Legislature added a subsection specifically authorizing a merchant to
stop and temporarily detain a suspected shoplifter in the merchant’s store. See Laws of
Montana, 1974, ch. 274, § 3; § 95-611(3), RCM; §§ 46-6-502(3), -503(1), MCA (1989).
The detention could last no more than 30 minutes, unless the person was arrested and
turned over to the custody of a police officer. See § 46-6-503(2), MCA (1989); but see
Duran v. Buttrey Food, Inc., 189 Mont. 381, 393, 616 P.2d 327, 333 (1980) (holding
§ 46-6-503, MCA, unconstitutional insofar as it permits a merchant to stop and detain an
individual suspected of shoplifting for up to 30 minutes without making an arrest).
17
¶32 The last significant amendments to the statutory scheme occurred in 1991. First,
the felony/misdemeanor distinction and the “in his presence” language were deleted, as
were the merchant-specific rules. In addition, the standard for believing that an offense
has been or is being committed was restated as “probable cause” rather than “reasonable
grounds,” and the requirement that “the existing circumstances require the person’s
immediate arrest” was added. See Laws of Montana, 1991, ch. 800, § 40; § 46-6-502(1),
MCA (2011). Elsewhere, the “same county” requirement for the arrestee’s initial
appearance was eliminated. See Laws of Montana, 1991, ch. 800, § 87; § 46-7-101(1),
MCA (2011) (the arrested person “must be taken without unnecessary delay before the
nearest and most accessible judge for an initial appearance” (emphasis added)).
Similarly, provision was made for the arrestee to be delivered to a peace officer, instead
of a judge. See Laws of Montana, 1991, ch. 800, § 40; § 46-6-502(2), MCA (2011) (“A
private person making an arrest shall immediately notify the nearest available law
enforcement agency or peace officer and give custody of the person arrested to the officer
or agency.” (emphasis added)).4
¶33 Based on this history of the common law rule and statutory scheme, we conclude
that the purposes of the private person arrest statute are (1) to provide a mechanism
4
It should be noted that there is no requirement in § 46-6-502(2), MCA, that “the
nearest available law enforcement agency or peace officer” be “in the same county.”
And since the Legislature is clearly capable of using such language when it wants to—as
the earlier versions of the statutes reflect—the parties and the District Court were
mistaken in the assumption that a private person making an arrest under the statute must
immediately notify and give custody to a law enforcement agency or peace officer “in the
same county” as the arrest. Indeed, the fact that the initial appearance no longer has to be
“in the same county” is further indication that there is not a “same county” requirement
for notification and transfer of custody.
18
whereby a person, who is not a peace officer, may lawfully arrest another under the
limited circumstances described in the statute and (2) to require that the nearest available
law enforcement agency or peace officer immediately be given notice and custody of the
arrestee. Importantly, the statute does not give the private person the right “to take the
law into his own hands to redress his grievances.” Kroeger v. Passmore, 36 Mont. 504,
510, 93 P. 805, 807 (1908); cf. State v. Lemmon, 214 Mont. 121, 128, 692 P.2d 455, 459
(1984) (“Vigilante days are over in Montana.”). Nor does the statute authorize the
private person to conduct forensic tests or searches or to otherwise “process” the arrestee,
as those are strictly law enforcement functions. The statute contemplates a public safety
purpose, not a criminal investigation purpose. It grants private persons the power to take
another into custody in the interest of public safety, but mandates that the arrestee be
promptly turned over to law enforcement, thereby allowing the normal processes and
safeguards of the criminal justice system to take effect.
¶34 Given this purpose, it does not make sense to apply the statute to peace officers.
In fact, the 1991 Commission Comments to § 46-6-502, MCA, state that the provisions
allowing a warrantless arrest by a police officer are “parallel” to, but “distinct” from,
those allowing an arrest by a private citizen. The requirement in the private person arrest
statute that custody of the arrestee be given to “the nearest available law enforcement
agency or peace officer”—regardless of whether the nearest agency or peace officer is on
the other side of the county or city line—reflects the sound policy of getting the arrestee
out of the private person’s hands as soon as practically possible and into the hands of
trained law enforcement personnel who are subject to constitutional and statutory
19
mandates in the processing of arrested persons. Not only does this protect the safety of
the person making the arrest, it also protects the rights of the arrestee. Yet, if the arrest is
made by a peace officer, and the arrestee is thus already in the custody of a peace officer,
then the policy that would otherwise be served by the statute has already been fulfilled:
need for an arrest in the interest of public safety has occurred, and the arrestee is under
the control of the personnel responsible for processing the arrest.
¶35 For all of these reasons, we hold that the private person arrest statute (§ 46-6-502,
MCA) applies only to arrests by actual “private persons” (i.e., non-peace officers) and
those whose arrest authority is, by statute, limited to that of a “private person.” See e.g.
§ 7-32-233, MCA (“An auxiliary officer has only the arrest authority granted a private
person in 46-6-502.”).
Arrests by Out-of-Jurisdiction Officers: Caselaw
¶36 The question remains as to the authority of an out-of-jurisdiction peace officer to
make an arrest. The foundation of our present jurisprudence on this subject is State v.
McDole, 226 Mont. 169, 734 P.2d 683 (1987). We followed McDole in State v. Sunford,
244 Mont. 411, 796 P.2d 1084 (1990), Maney v. State, 255 Mont. 270, 842 P.2d 704
(1992), State v. Hendrickson, 283 Mont. 105, 939 P.2d 985 (1997), and State v.
Williamson, 1998 MT 199, 290 Mont. 321, 965 P.2d 231. Each of these decisions is
discussed in turn below.
¶37 McDole. Eureka police received a report that McDole was driving erratically on a
road near Eureka. The witness reported McDole as a possible DUI driver. A second
witness reported that McDole had hit her vehicle while she was stopped at a stop sign in
20
the city limits and then had backed up and left the scene of the accident. A Eureka police
officer drove to McDole’s residence less than a mile outside the Eureka city limits. He
confirmed that the truck in the driveway fit the description provided by the witnesses and
that the truck hood was still warm. McDole came out of his residence, walked up to the
officer with his hands in the air, appeared intoxicated, and said: “Take me! Take me!”
The officer obliged, placed McDole under arrest, and took him to the station. McDole,
226 Mont. at 170, 172-73, 734 P.2d at 683-84, 685.
¶38 McDole argued that his arrest was illegal because it was made by a city police
officer outside the city limits and without an arrest warrant. In addressing this claim, we
acknowledged the “well established general rule that a law enforcement officer acting
outside his jurisdiction without a warrant may not make arrests.” McDole, 226 Mont. at
172, 734 P.2d at 685. But we noted that Montana recognizes exceptions to this rule and,
hence, that “Montana no longer adheres to the old common law rule strictly prohibiting
arrests outside an officer’s jurisdiction.” McDole, 226 Mont. at 172, 734 P.2d at 685.
One exception to the general rule is § 7-32-4301, MCA, pursuant to which a city or town
may authorize its police force to make arrests within five miles of the city or town limits.5
Eureka, however, had not enacted such an ordinance. McDole, 226 Mont. at 171, 734
P.2d at 684. Accordingly, we considered a second exception: “the arrest made under
circumstances which would authorize a private citizen to make the arrest.” McDole, 226
5
Section 7-32-4301, MCA, provided then, as it does now: “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.”
21
Mont. at 172, 734 P.2d at 685. In this regard, we observed that an officer outside his or
her jurisdiction has “all the arrest capabilities that a private citizen has”; thus, “if an arrest
by a private citizen would be lawful under the existing circumstances, the arrest by an
officer out of his jurisdiction would be lawful.” McDole, 226 Mont. at 172, 734 P.2d at
685. Here, we reasoned, the private citizen who observed McDole’s erratic driving could
have arrested him under § 46-6-502, MCA (1985); the private citizen involved in the
accident also could have arrested him under the statute; the arresting officer confirmed
the citizen reports by positively identifying the truck, with its warm hood, involved in the
erratic driving and accident; and the officer observed McDole step out of his house in an
apparently intoxicated condition, hold out his hands, and state: “Take me! Take me!”
Therefore, we concluded, “the trained Eureka police officer, armed with the citizen
reports and his own observations, also had the authority to make the arrest in his capacity
as a private citizen.” McDole, 226 Mont. at 173, 734 P.2d at 685.
¶39 Sunford. We applied this logic to an airport security officer in Sunford. While a
municipality or a county may appoint airport guards or police with full police powers, we
noted that the jurisdiction of such officers extends only to enforcing ordinances,
resolutions, rules, and orders enacted for the management, government, and use of the
airport. Sunford, 244 Mont. at 414, 796 P.2d at 1085 (citing § 67-10-301, MCA). Thus,
because the officer here had stopped and arrested Sunford for a traffic offense committed
outside airport boundaries, we considered whether he had made a valid citizen’s arrest.
Based on the officer’s observations that Sunford was speeding and, after being stopped,
appeared to be intoxicated, we concluded the officer had reasonable grounds to believe an
22
offense was being committed in his presence. Thus, “[b]ecause a private citizen could
have made a valid citizen’s arrest under these circumstances,” we held that the security
officer, although acting outside his jurisdiction, had made a lawful arrest. Sunford, 244
Mont. at 415, 796 P.2d at 1086.
¶40 Maney. A Chinook police officer (Gomke) stopped Maney’s vehicle about four
and one-half miles outside the Chinook city limits. Because his breath smelled of
alcoholic beverage, Gomke required Maney to perform field sobriety tests. Meanwhile, a
Blaine County deputy sheriff (Kovacich) arrived on the scene and witnessed the sobriety
maneuvers. Gomke and Kovacich agreed that Maney was impaired, so Gomke placed
Maney under arrest and immediately notified the Blaine County Sheriff’s Office that he
had a DUI suspect in custody. Gomke then transported Maney to the Sheriff’s Office in
Chinook. Kovacich followed. Once there, Gomke re-administered sobriety tests while
Kovacich observed. The tests again showed that Maney was impaired. When Maney
refused Gomke’s request to submit to a breathalyzer test, his driver’s license was
confiscated and suspended pursuant to § 61-8-402, MCA. Maney, 255 Mont. at 271-72,
842 P.2d at 705.
¶41 On appeal, the validity of the stop and Gomke’s authority to make an arrest were
not contested. Rather, Maney claimed his arrest was illegal because Gomke had not
transferred custody of him to another officer. Maney, 255 Mont. at 274, 842 P.2d at 706.
Recall that a year earlier, in 1991, the Legislature amended the private person arrest
statute to include the requirements of immediate notification and transfer of custody.
Importantly, Maney’s argument depended on the premise that these procedures applied to
23
out-of-jurisdiction peace officers. The Court did not address this antecedent issue,
however. It simply assumed the procedures applied. Maney, 255 Mont. at 274, 842 P.2d
at 706 (applying § 46-6-502(2), MCA (1991)). The Court then reasoned that Gomke did
not need to formally transfer custody in order to effectuate a valid citizen’s arrest because
“[a]s soon as Officer Gomke entered the Chinook city limits he was within his
jurisdiction and it would make no sense to require Officer Gomke to transfer his prisoner
to another officer who also had jurisdiction.” Maney, 255 Mont. at 274, 842 P.2d at 706.
Of course, the trouble with this analysis is that the statute contemplates immediate
transfer of custody; it does not allow a private citizen to retain custody of an arrestee after
a peace officer has arrived—a point we later discussed in Hendrickson. Here, a Blaine
County deputy sheriff arrived on the scene in time to witness Maney perform sobriety
maneuvers. The transfer of custody to the deputy could have, and presumably should
have, occurred at this time—again, assuming this statutory requirement applied to Gomke
in the first place.
¶42 Hendrickson. A Belgrade police officer (Woodland) was in Bozeman delivering a
prisoner to the Gallatin County Detention Center when he noticed a motorcyclist who
appeared to be having difficulty controlling his motorcycle. Woodland contacted the
Bozeman Police Department and advised the dispatcher that he was following a possibly
intoxicated driver. Woodland was told that he could make a traffic stop. Upon doing so,
he approached the driver (Hendrickson) and asked a series of routine questions, including
a request for registration, license, and proof of insurance. Woodland observed several
factors indicative of intoxication, including slurred speech, a strong odor of alcohol, and
24
bloodshot eyes. Shortly thereafter, two Bozeman police officers (Keim and McManis)
arrived on the scene. While Keim and McManis watched, Woodland had Hendrickson
perform a series of field sobriety tests. Woodland then placed Hendrickson under arrest
and transported him to the Detention Center. Once there, Woodland read Hendrickson
the implied consent advisory and asked him to submit to a breath test. Hendrickson
initially refused but later agreed to take the test. Although Keim and McManis were
present, a Bozeman police sergeant authorized Woodland to write the citation charging
Hendrickson with DUI. Hendrickson, 283 Mont. at 107-08, 939 P.2d at 986-87.
¶43 In addressing the lawfulness of these actions, this Court first held that “[u]nder
§ 46-6-502(1), MCA, Woodland was within his authority as a private citizen to observe
Hendrickson’s erratic driving, to perform the traffic stop as requested, and to relate his
observations of Hendrickson’s slurred speech, odor of alcohol and blood shot eyes.”
Hendrickson, 283 Mont. at 109, 939 P.2d at 987. The Court observed, however, that
§ 46-6-502(2), MCA, “requires a private citizen to immediately notify local authorities
and relinquish custody to the officer or agency with jurisdiction.” Hendrickson, 283
Mont. at 110, 939 P.2d at 988. Assuming again, without discussion, that this rule applied
to out-of-jurisdiction officers, the Court concluded that the holding in Maney “is too
broad in the scope of authority that it grants to a citizen’s arrest pursuant to § 46-6-502,
MCA. Absent any exigent circumstances, when a citizen or out-of-jurisdiction peace
officer, acting as a citizen, makes a stop or arrest, his or her authority to proceed ceases
once a peace officer with jurisdiction arrives at the scene.” Hendrickson, 283 Mont. at
110-11, 939 P.2d at 988 (emphasis in original). Applying this rule, the Court held that
25
Woodland exceeded his authority as a citizen when, after the arrival of the
Bozeman police officers, instead of relinquishing custody to the officers, he
conducted field sobriety tests, detained and arrested Hendrickson and
requested that he submit to a breathalyzer. We conclude that any evidence
obtained by Woodland (including the initial refusal and/or results of the
breathalyzer test) after the police officers arrived was obtained illegally and
must be suppressed as requested by Hendrickson.
Hendrickson, 283 Mont. at 111, 939 P.2d at 988-89 (expressly overruling Maney on this
point). The Court noted that “there were no exigent circumstances requiring Woodland
to engage in investigating and charging Hendrickson.” Hendrickson, 283 Mont. at 111,
939 P.2d at 989.
¶44 Williamson. Lastly, Williamson involved another traffic stop and ensuing arrest
by a Chinook police officer (Weber) outside the city limits. The stop was based on a
citizen informant’s report of a “possible drunk driver.” Williamson, ¶¶ 3-5, 22. The
initial question on appeal was whether this report alone was sufficient grounds for Weber
to stop Williamson—a question that turned on the applicable standard. Ordinarily, an
officer needs only particularized suspicion to make an investigatory stop. Williamson,
¶¶ 11, 13 (citing § 46-5-401, MCA). But Chinook had not extended the jurisdiction of its
police to five miles beyond the city limits under § 7-32-4301, MCA, and thus “Weber
was acting outside his jurisdiction as a City of Chinook police officer when he stopped
Williamson.” Williamson, ¶ 14. In this regard, the Court observed that since the scope of
a peace officer’s authority “is limited by the territorial jurisdictional limits of the law
enforcement entity for which the officer works,” Williamson, ¶ 15, an officer outside his
or her territorial jurisdiction “may not use criminal procedure statutes expressly limited in
application to ‘peace officers,’ ” such as the investigatory stop statute with its
26
particularized suspicion standard, Williamson, ¶ 16. Yet, on the other hand, although an
out-of-jurisdiction officer “is not authorized to make arrests in the capacity of a peace
officer,” Williamson, ¶ 15, the Court noted that the officer “may make an arrest under
circumstances which would authorize a private citizen to do so,” Williamson, ¶ 16. Thus,
the Court held that Weber had to meet the “probable cause” standard of the private
person arrest statute. Williamson, ¶¶ 16, 20; see also State v. Reiner, 2003 MT 243, ¶ 18,
317 Mont. 304, 77 P.3d 210. Ultimately, the Court concluded that Weber did not have
probable cause to stop Williamson. Williamson, ¶¶ 35-36; see also e.g. State v. May,
2004 MT 45, ¶¶ 18-20, 320 Mont. 116, 86 P.3d 42.
¶45 Summary. In sum, McDole and its progeny stand for two key principles. First,
the scope of a peace officer’s authority is limited by the territorial jurisdictional limits of
the law enforcement entity for which the officer works, which means an officer outside
his or her territorial jurisdiction may not make arrests as a peace officer and may not use
criminal procedure statutes expressly limited in application to “peace officers.” Second,
Montana recognizes two exceptions to this general rule: (a) an out-of-jurisdiction officer
may use his or her authority as a peace officer if authorized to do so by statute6 and (b) an
out-of-jurisdiction officer may make an arrest under circumstances which would
6
Aside from § 7-32-4301(2), MCA (granting a city or town council power to
authorize arrests within five miles of the city or town limits), we note that § 44-11-101,
MCA, provides, in part, that a peace officer or law enforcement entity of any county or
municipality may request the assistance of a peace officer from another law enforcement
entity within the State, and that a peace officer, while in the jurisdiction of the requesting
officer or entity, and while on such request for assistance, “has the same powers, duties,
rights, privileges, and immunities as a peace officer of the requesting entity.” Also, we
note that peace officers of another state, of the United States, or of the District of
Columbia who enter Montana have the arrest authority granted by § 46-6-411, MCA.
27
authorize a private citizen to do so. We reaffirm these principles in the present case. In
so doing, however, we note that while the first exception has not presented analytical
problems, the second exception has resulted in some incorrect assumptions regarding the
private person arrest statute. Because that statute, as explained above, was not intended
to apply to sworn peace officers, it is necessary to address our discussions of the statute
in Maney, Hendrickson, and Williamson and to clarify the authority of out-of-jurisdiction
peace officers to make arrests under the second exception.
Arrests by Out-of-Jurisdiction Officers: Clarification of Authority
¶46 As stated, a peace officer outside his or her territorial jurisdiction may make an
arrest under circumstances which would authorize a private citizen to do so. Regrettably,
this has been characterized inaccurately as “acting as a private citizen under the authority
of § 46-6-502, MCA.” Hendrickson, 283 Mont. at 109-10, 939 P.2d at 988; see also
Williamson, ¶ 16 (“[A] peace officer such as Weber, when acting outside his territorial
jurisdiction and as a private citizen, may arrest another under the citizen’s arrest statute
. . . .” (emphasis added)); Maney, 255 Mont. at 276, 842 P.2d at 707 (“Once Officer
Gomke left his jurisdiction he could make arrests only as a private person.” (emphasis
added)); McDole, 226 Mont. at 173, 734 P.2d at 686 (“We conclude that the Eureka
police officer, acting in his capacity as a private citizen, made a valid arrest of Mr.
McDole.” (emphasis added)). Based on this characterization, it was then assumed that an
out-of-jurisdiction officer’s actions must comply with the private person arrest statute in
toto. Hence, given the statute’s requirement of immediate transfer of custody, the Court
in Hendrickson held that because Officer Woodland did not relinquish custody of
28
Hendrickson when the Bozeman police officers “with jurisdiction” arrived at the scene,
any evidence obtained by Woodland from that point forward was obtained illegally and
had to be suppressed. Hendrickson, 283 Mont. at 110-11, 939 P.2d at 988-89.
¶47 In retrospect, the problem with this holding is that the statute requires “[a] private
person making an arrest” to immediately notify and give custody of the arrestee to “the
nearest available law enforcement agency or peace officer.” Section 46-6-502(2), MCA.
As discussed, this requirement is designed to get the arrestee out of the private person’s
hands as soon as practically possible and into the hands of trained law enforcement
personnel. There are no territorial jurisdictional requirements here; “nearest” available
peace officer really does mean nearest available peace officer (see ¶ 32 n. 4, supra).
Thus, because Hendrickson was already in the custody of the “nearest” available peace
officer (Woodland), the purposes of the statute—taking a person into custody in the
interest of public safety, and promptly turning that person over to law enforcement—
were already fulfilled. Had Woodland truly been a “private person,” then Hendrickson’s
holding that he had to relinquish custody of Hendrickson immediately upon the Bozeman
officers’ arrival would make sense. But the holding does not make sense, and is not
mandated by the statute, where the arrestee is already in the custody of a peace officer.
The rule requiring transfer of custody was not intended to require the suppression of
evidence, otherwise lawfully obtained, merely because the nearest available peace officer
who takes custody of the arrestee, gathers evidence incident to the arrest, and processes
the arrestee is a peace officer who happens to be outside his or her jurisdiction at the
time. While there may be laws and protocols governing the transfer of custody of an
29
arrestee between peace officers of different jurisdictions and governing the authority of a
peace officer to gather evidence and conduct investigations, the private person arrest
statute is not one of them.
¶48 As a practical matter, the legal fiction that a sworn peace officer “acts as a private
citizen” belies common sense. Obviously, peace officers do not suddenly forget all their
training and experience simply because they cross an imaginary jurisdictional line in the
sand. To the contrary, peace officers rely on their training and experience when
rendering aid or addressing a potential threat to public safety, regardless of geographical
location, as the officers’ actions in McDole, Sunford, Maney, Hendrickson, Williamson,
and the present case reflect. Furthermore, the notion that an out-of-jurisdiction officer
acts as a “private citizen” is incongruous with the fact that a peace officer is always a
peace officer. As we explained in Maney:
A peace officer is “any person who by virtue of the person’s office
or public employment is vested by law with a duty to maintain public order
and make arrests for offenses while acting within the scope of the person’s
authority.” Section 46-1-202(17), MCA. A person who is employed as a
law enforcement officer falls within this definition even when outside the
geographical area in which the officer has jurisdiction. A person is a peace
officer by virtue of holding the particular job. A law enforcement officer is
in fact still a peace officer even when making an arrest under authority of
the citizen’s arrest statute.
Maney, 255 Mont. at 275, 842 P.2d at 707 (paragraph break omitted).
¶49 Addressing this point in Williamson, the Court observed that “[a] law enforcement
officer is always a peace officer, no matter his or her geographical location, because the
officer is always a person ‘vested by law with a duty to maintain public order and make
arrests for offenses.’ ” Williamson, ¶ 19 (quoting § 46-1-202(16), MCA (1993)). At the
30
same time, however, “an officer may only assert his or her authority as a peace officer
when ‘acting within the scope of [his or her] authority.’ ” Williamson, ¶ 19 (brackets in
original) (quoting § 46-1-202(16), MCA (1993)). The Court posited, therefore, that there
is a distinction “between ‘being’ a peace officer and ‘acting’ as a peace officer; a law
enforcement officer is a peace officer at all times pursuant to Maney, but may act as a
peace officer only when acting within the scope of his or her authority.” Williamson,
¶ 19. While the distinction between “being” a peace officer and “acting” as one might
seem somewhat abstract, the critical point is simply this: although a peace officer is
always a peace officer, his or her authority to act in that capacity is restricted to the
territorial jurisdictional limits of his or her employing agency (unless otherwise provided
by law). This does not mean, however, that the peace officer “acts as a private citizen”
when making an arrest. The assumption underlying the analyses in Maney, Hendrickson,
and Williamson is that if a peace officer lacks authority to act in the capacity of a peace
officer, then the only other alternative is that the peace officer acts in the capacity of a
private person. This is untrue.
¶50 Out-of-jurisdiction peace officers are in a category not specifically covered by any
statutory provision. On one hand, these individuals have no authority to make arrests in
their capacity as peace officers (unless otherwise provided by law). On the other hand,
they are not truly “private persons.” To the contrary, they are “always” peace officers, no
matter their geographical location. Moreover, as already discussed, the private person
arrest statute was not intended to apply to sworn peace officers. Given the orphan status
of these individuals, and absent legislative guidance on this issue, we will proceed to
31
apply the principle that “a peace officer acting outside the territorial limits of his [or her]
authority does not have less authority to arrest than a person who is a private citizen.”
People v. Wolf, 635 P.2d 213, 216 (Colo. 1981) (emphasis added); cf. McDole, 226 Mont.
at 172, 734 P.2d at 685 (an out-of-jurisdiction officer may make a warrantless arrest
“under circumstances which would authorize a private citizen to make the arrest”);
Sunford, 244 Mont. at 415, 796 P.2d at 1086 (“Because a private citizen could have made
a valid citizen’s arrest under these circumstances, the District Court did not err in
concluding that the security officer, although acting outside his jurisdiction, lawfully
arrested defendant.”). This is not to say that the officer morphs into a “private person”
acting under the private person arrest statute. It is only to say that if the circumstances
would give a private person sufficient grounds to make an arrest, then the officer may do
so as well. The statute merely supplies the standard necessary to make the arrest. At
present, it is “probable cause to believe that the person is committing or has committed an
offense and the existing circumstances require the person’s immediate arrest.” Section
46-6-502(1), MCA. Subsection (2)’s procedural requirements do not apply because the
person making the arrest is a peace officer, not “[a] private person.” In effecting the
arrest, the officer is not precluded from conducting an investigation at the scene,
gathering evidence, and transporting the arrestee to the nearest detention facility—
functions the officer has been trained to do—provided that the officer abides by
constitutional and statutory mandates applicable to warrantless arrests.
¶51 To recap, then, the private person arrest statute applies only to actual “private
persons” (non-peace officers) and those whose arrest authority is, by statute, limited to
32
that of a “private person.” The Hendrickson Court implied that there might be “exigent
circumstances” where a private person would not need to comply with the requirements
of the statute. This speculation was unnecessary, and we repudiate it. The plain language
of the statute controls and must be followed.
¶52 Second, an out-of-jurisdiction officer is still a “peace officer”; the officer does not
morph into a “private person.” But because the officer is outside his or her territorial
jurisdiction, the officer may not make an arrest in the capacity of a peace officer (unless
otherwise authorized to do so by statute). The officer may make an arrest, however, if
the circumstances would give a private person sufficient grounds to make an arrest, i.e., if
there is probable cause to believe that a person is committing or has committed an
offense and the existing circumstances require the person’s immediate arrest. If this
standard is met, the officer may follow the procedures applicable to peace officers in
processing the arrest, and the lawfulness of the officer’s actions in this regard will be
judged under the constitutional and statutory rules applicable to peace officers.
¶53 This approach honors the purposes of the private person arrest statute and the
jurisdictional limits of a peace officer’s authority. It permits an out-of-jurisdiction peace
officer to make an arrest if the circumstances would allow a private person to do the
same, but it does not depend on the dubious fiction that the officer “acts as a private
citizen.” It recognizes that a law enforcement officer is always a peace officer; preserves
the officer’s ability to retain evidence of offenses that may be discovered in the course of
processing the arrest; avoids application of procedural rules that were not designed to
apply to peace officers; and leaves open the possibility that the Legislature may devise a
33
statutory scheme that specifically addresses the authority and limitations of a peace
officer to act when outside his or her territorial jurisdiction.
Analysis of Updegraff’s Arrest
¶54 As noted at the outset, our clarifications of the authority of an out-of-jurisdiction
officer do not alter the outcome of this appeal. Indeed, it would be possible to conclude,
based on Hendrickson (on which the District Court and the parties largely relied), that
Updegraff’s arrest was lawful under the private person arrest statute as follows: (a) there
was an arrest; (b) the deputies were outside their territorial jurisdiction and, thus, were
acting as private citizens; (c) there was probable cause to believe that Updegraff had
committed an offense (DUI) based on the beer cans, his admissions, and the deputies’
observations of his intoxicated condition; (d) the existing circumstances required
Updegraff’s immediate arrest given his intoxicated condition and his statement that he
wanted to proceed on his way to Butte; (e) the deputies used reasonable force to detain
Updegraff; and although they did not (f) immediately notify (g) an in-jurisdiction law
enforcement agency or peace officer and (h) give custody of Updegraff to that agency or
officer, these omissions are excused by exigent circumstances: the late hour, the fact that
they were barely across the county line, and the lack of available Madison County
officers in the area. For the reasons discussed, however, we no longer will follow this
approach.
¶55 Instead, following the approach detailed above, Janik and Wharton were outside
their jurisdiction and, thus, could not make an arrest in their capacity as peace officers.
But they could make an arrest if the circumstances would have justified a private person
34
in making an arrest, i.e., if there was probable cause to believe that Updegraff was
committing or had committed an offense and the existing circumstances required his
immediate arrest. As a preliminary matter, we note that the Cardwell Bridge Fishing
Access is under the control of and administered by the Montana Department of Fish,
Wildlife, and Parks. See Admin. R. M. 12.8.107, 12.8.704. It is a posted “day use only”
area. Thus, by being parked there at night, it seems that Updegraff was committing a
misdemeanor. See §§ 23-1-102(4), -106, MCA. If so, Janik had probable cause of an
offense upon seeing his parked car. The State, however, has not relied on this theory, and
we accordingly do not base our holding on it. Rather, the State maintains that Janik’s
initial contact with Updegraff was justified under the community caretaker doctrine and
that her subsequent observations gave rise to “probable cause of a criminal offense
involving an immediate, real danger to Updegraff and other motorists.”
¶56 The community caretaker doctrine permits a brief warrantless seizure of a person
in order to check on the person’s welfare. State v. Spaulding, 2011 MT 204, ¶ 18, 361
Mont. 445, 259 P.3d 793. As Updegraff pointed out in the District Court, this doctrine is
applicable to peace officers, and Williamson held that out-of-jurisdiction officers cannot
use criminal procedure laws that are expressly limited in application to “peace officers.”
Under the facts of the present case, however, we conclude that the community caretaker
doctrine is not encompassed within Williamson’s holding.
¶57 As noted above (see ¶ 4 n. 1, supra), a private person does not need to satisfy the
community caretaker doctrine in order to make contact with a parked vehicle and check
on the driver’s welfare. A private citizen, who is not subject to the warrant requirement
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in the first place, may simply approach the vehicle and ask the driver if he or she needs
assistance (assuming the private citizen is not otherwise trespassing). It would make little
sense to hold that while a private person may conduct a welfare check on a parked
vehicle, and while an in-jurisdiction peace officer may do the same if the criteria of the
community caretaker doctrine are met, an out-of-jurisdiction officer may not approach
the vehicle unless the officer has probable cause of an offense. We hold, therefore, that if
the facts would justify an in-jurisdiction officer in contacting a parked vehicle under the
community caretaker doctrine, then an out-of-jurisdiction officer may do the same.
¶58 Under the community caretaker doctrine, an officer may stop and investigate if
there are objective, specific, and articulable facts from which an experienced officer
would suspect that a citizen is in need of help or is in peril. Spaulding, ¶ 21. Here, Janik
came upon a vehicle parked on the roadway in a public fishing access site marked “day
use only.” It was 1:00 in the morning. When she shined her headlights into the vehicle,
the driver was motionless and unresponsive. She activated her overhead red-and-blue
rotating lights, but that failed to rouse him. She approached the vehicle, announced that
she was a Jefferson County deputy, and asked if he was alright. Still he did not respond.
Under these circumstances, we conclude that Janik had objective, specific, and articulable
facts from which an experienced officer would suspect that a citizen may be in need of
help. Janik had reason to make further inquiry into the driver’s welfare.
¶59 Janik made contact with Updegraff and initially observed the beer cans in his car,
his slurred speech, his disorientation and confusion, his bloodshot and watery eyes, the
odor of an alcoholic beverage emanating from the car and his person, and the keys in the
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ignition. Updegraff admitted that he was on his way from Bozeman to Butte and that he
was “trying to do the right thing” and “sleep it off.” Updegraff had difficulties standing
up outside the car and trouble finding his driver’s license in his wallet. When Wharton
arrived, he observed Updegraff “stumbling” around his car. Wharton smelled the odor of
an alcoholic beverage coming from Updegraff and saw multiple beer cans in the car.
¶60 Probable cause to arrest is established if the facts and circumstances within the
person’s personal knowledge, or related to the person by a reliable source, are sufficient
to warrant a reasonable person to believe that someone is committing or has committed
an offense. Williamson, ¶ 12 (citing Jess v. State, 255 Mont. 254, 261, 841 P.2d 1137,
1141 (1992), and State v. Schoffner, 248 Mont. 260, 264, 811 P.2d 548, 551 (1991)); see
also State v. Schubert, 2010 MT 255, ¶¶ 18-22, 358 Mont. 286, 244 P.3d 748. Here, the
facts and circumstances observed by Janik gave her probable cause to believe that
Updegraff had committed DUI. Likewise, the facts and circumstances observed by
Wharton, together with the facts and circumstances related to him by Janik (“a reliable
source”), gave Wharton probable cause to conclude the same. Updegraff’s articulated
desire to continue on his way in his intoxicated condition gave the deputies grounds to
make an immediate arrest. Accordingly, we hold that the arrest was lawful.
¶61 Updegraff’s only challenge regarding the events incident to his arrest is that the
deputies failed to comply with, and exceeded the scope of, the private person arrest
statute. As we have held, however, this statute does not apply here beyond supplying the
“probable cause” standard for making the arrest, which the deputies satisfied. Updegraff
presents no other ground for concluding that his arrest was unlawful.
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CONCLUSION
¶62 The circumstances existing when Janik initially encountered and approached
Updegraff’s vehicle gave her sufficient grounds to conduct a welfare check. Janik’s and
Wharton’s ensuing observations would have justified a private person in making an
arrest. Thus, it was lawful for Janik and Wharton, acting as out-of-jurisdiction peace
officers, to make an arrest. Accordingly, the District Court did not err in denying
Updegraff’s motion to dismiss/suppress.
¶63 In closing, we note that the Legislature could further clarify this area of the law by
enacting statutes specifically dealing with the authority of out-of-jurisdiction officers to
conduct investigations and arrests. Enactment of these statutes may clarify other
potential problems, such as application of the workers’ compensation laws and issues
regarding liability.
¶64 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
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