No. 13361 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

THE STATE OF MONTANA ex rel. 

RON SANFORD, 

Relator, 

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. 

ORIGINAL PROCEEDING : 

Counsel of Record : 

For Relator : 

Moses, Kampfe, Tolliver and Wright, Billings, 

Montana 

Pablo Perhacs argued, Billings, Montana 

For Respondents: 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

Arthur W. Ayers, Jr. argued, County Attorney, 

Red Lodge, Montana 

Submitted: May 25, 1976 

Decided : JUL -8 1976 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

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 29, 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 and Mankin v. Dist. Ct. 

(1975) I 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, 33 L ed 2d 101, 116, 92 S.Ct. 

2182. 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 approximately 

10 months, from relator's arraignment on June 26, 1975 to April 

20, 1976, the date set for trial. Both United States and Montana 

courts have previously held that a delay of one year between arrest 

and trial presents a claim of prima facie merit. See State v. 

Steward, supra, and cases cited therein. We now hold that a delay 

of 10 months between ardgnment and trial establishes a prima facie 

case of denial of the right to a speedy trial. 

The record here discloses no reason for the delay chargeable to relator. Relator requested of three different judges that 

his motion be set for hearing: at the time of arraignment, June 

26, 1975; on June 27, 1975; and again on January 28, 1976. It 

was finally heard and denied on February 19, 1976. In any event 

the trial date of April 20, 1976 was set prior to disposition of 

any of relator's motions. The burden of justifying the delay 

rests with the prosecution. U.S. v. Rucker, 464 F.2d 823. 

It is true that relator made no specific demand that 
his case be set for trial. On the other hand, relator did nothing that can be construed as a waiver of his right to a speedy 

trial. On March 25, 1976, he moved to dismiss for denial of 

a speedy trial. 

Has relator been prejudiced by the delay? We quote 

from Barker: 

" * * * Prejudice, of course, should be assessed 

in the light of the interests of defendants 

which the speedy trial right was designed to protect. This Court has identified three such 

interests: (i) To prevent oppressive pretrial 

incarceration; (ii) To minimize anxiety and concern of the accused; (iii) To limit the possibility 

that the defense will be impaired. * * *" 

The first interest is not present in this case. The 

second is clearly present here. The third cannot be established 

with any degree of certainty where, as here, there has been no 

trial. State v. Steward, supra. 

Considering the totality of the circumstances and considerations in the balancing test, it appears to us that there 

has been an excessive delay in bringing relator to trial in this 

case; that no valid reason exists for such delay; that the delay 

is not chargeable to relator; and that some prejudice has resulted 

to relator by reason of the delay. 

Accordingly, we hold that relator's motion to dismiss 

for denial of a speedy trial should have been granted. We order 

dismissal of this case with prejudice. 

Justice 

We concur: 

,,---,,,-- ----L--------a--d---v 

Hon. Gordon Bennett, district v 

Judge, sitting in place of Mr. 

Chief Justice James T. Harrison. -5-