l t 4 ORIGINAL 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

OP 24-0341 

DAWSON DENNIS PATRICK, DYLAN 

TODD LEE OVITT, SAMUAL MURRELL 

GREEN, JOHN ARISPE, JOHN ANTHONY 

BLACKBURN, JAMES HORODYSKI, 

JAMES LONDON, HARLEY MCDONALD, 

TROY PARKER, BRANDON ROSENHAHN, 

and ANDREW SUITONU, 

Petitioners, 

v. 

MONTANA FOURTH JUDICIAL DISTRICT 

COURT, MINERAL COUNTY, HONORABLE 

SHANE A. VANNATTA, Presiding, 

Respondent. 

ORDER 

FILED 

AUG 1 3 2024 

Bowen Greenwood 

Clerk of Supreme Court 

State of Montane 

Petitioners are eleven individuals who faced criminal charges in the Mineral County 

Justice Court. In the cases of Dawson Dennis Patrick, Dylan Todd Lee Ovitt, and Samual 

Murrell Green, the Justice Court granted motions to suppress evidence on the basis that the 

investigations into their respective alleged offenses were carried out by a Mineral County 

Sheriff s Deputy who was not qualified to be a peace officer at the time of the investigation 

and arrest. The State appealed the Justice Court's respective orders to the District Court, 

where the matters were assigned to District Court Judge Hon. Shane A. Vannatta. The 

District Court reversed the Justice Court's orders granting suppression of evidence in these 

three cases. 

In the cases of John Arispe, John Anthony Blackburn, James Horodyski, James 

London, Harley McDonald, Troy Parker, Brandon Rosenhahn, and Andrew Suitonu, the 

Justice Court dismissed the matters without prejudice. The State appealed those orders to 

the District Court, where the matters were assigned to District Court Judge Hon. John W. 

Larson. Those appeals remain pending in the District Court. 

08/13/2024

Case Number: OP 24-0341
On May 29, 2024, Petitioners petitioned this Court for writ of supervisory control, 

alleging the District Court erred in reversing the Justice Court's orders in the cases of 

Patrick, Ovitt, and Green. At our invitation, the State and Judge Vannatta both responded. 

The State opposes Petitioners' requested relief while Judge Vannatta reiterates the basis 

for his rulings. 

Supervisory control is an extraordinary remedy that may be invoked when the case 

involves purely legal questions and urgent or emergency factors make the normal appeal 

process inadequate. M. R. App. P. 14(3). The case must meet one of three additional 

criteria: (a) the other court is proceeding under a mistake of law and is causing a gross 

injustice; (b) constitutional issues of state-wide importance are involved; or (c) the other 

court has granted or denied a motion for substitution of a judge in a criminal case. 

M. R. App. P. 14(3)(a)-(c). Whether supervisory control is appropriate is a case-by-case 

decision. Stokes v. Mont. Thirteenth Jud. Dist. Ct., 2011 MT 182, ¶ 5, 361 Mont. 279, 259 

P.3d 754 (citations omitted). Consistent with Rule 14(3), it is the Court's practice to refrain 

from exercising supervisory control when the petitioner has an adequate remedy of appeal. 

E.g., Buckles v. Seventh Jud. Dist. Ct., No. OP 16-0517, 386 Mont. 393, 386 P.3d 545 

(table) (Oct. 18, 2016); Lichte v. Mont. Eighteenth Jud. Dist. Ct., No. OP 16-0482, 385 

Mont. 540, 382 P.3d 868 (table) (Aug. 24, 2016). 

As a preliminary matter, we conclude only the matters concerriing Patrick, Ovitt, 

and Green may be further considered by this Court. M. R. App. P. 14(6) provides in part, 

"If a petition for an extraordinary writ or for a writ of supervisory control is filed with 

respect to any proceeding pending in the district court, the petition and any exhibits relating 

to a ruling of the district court must be served upon the district judge against whose ruling 

it is directed and upon all parties." This Court lacks jurisdiction to entertain the claims of 

the other petitioners since the Petition was not served upon Judge Larson. B.D. & J.D. v. 

Thirteenth Jud. Dist, No. OP 21-0335, 405 Mont. 536, 495 P.3d 4'17 (Jul. 20, 2021). 

Moreover, as Judge Larson has made no rulings, Petitioners cannot establish that he is 

proceeding under a mistake of law. 

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As to further consideration of this Petition concerning Patrick, Ovitt, and Green, the 

issue presented is purely one of law: whether the District Court erred in reversing the 

Justice Court's orders granting PetitiOners' motions to suppress on the basis that the 

officers were not qualified to act as peace officers at the time of investigation and arrest. 

Petitioners argue that we should accept this petition as a matter of judicial economy. 

However, we have frequently explained that conserving resources, without more, provides 

insufficient grounds to justify supervisory control where a party can seek review of the 

lower court's ruling on appeal and there is no evidence that relief on appeal would be 

inadequate. Yellowstone Elec. Co. v. Mont. Seventh Jud. Dist. Ct, No. OP 19-0348, 397 

Mont. 552, 449 P.3d 787 (table) (Aug. 6, 2019). Thus, the basis of judicial economy, 

without more, would not justify our further consideration on petition for writ. 

The State argues that denials of motions to suppress in criminal cases are a common 

occurrence that do not merit consideration of supervisory control. The State further asserts 

that Petitioners each have an adequate remedy on appeal and this Court does not exercise 

supervisory control for the mere convenience of the parties. 

"[A] writ of supervisory control is not to be used as a means to circumvent the appeal 

process: Only in the most extenuating circumstances will such a writ be granted." State 

ex rel. Ward v. Schmall, 190 Mont. 1, 617 P.2d 140 (1980). In this case, we have 

determined supervisory control is appropriate because Petitioners' respective cases may 

otherwise have different outcomes—including settlements that would preclude appeal—

and the outcome ofTetitioners' cases may affect other prosecutions, including those cases 

pending before Judge Larson. 

We thus further entertain this petition for the underlying matters of Patrick, Ovitt, 

and Green. In each case, Patrick, Ovitt, and Green were arrested by Mineral County 

Sheriff s Deputy David Kunzelman after Kunzelman conducted a DUI investigation. In 

Patrick's case, Mineral County Sheriff s Deputy Eric Lindauer assisted in the traffic stop 

and detention, which occurred on August 14, 2022. Lindauer also observed Ovitt's arrest 

on August 26, 2022. In Green's case, Mineral County Sheriff s Deputy Shawn Visintin 

arrived on scene after Kunzelman initiated a traffic stop and provided Kunzelman with 

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backup on May 6, 2022. 

At the time of these arrests, Kunzelman, Lindauer, and Visintin (collectively 

"Deputies") had not completed their mental health evaluations by a qualified provider as 

required for appointment as a peace officer under § 7-32-303(2)(g), MCA. The statute 

provides, in relevant part: 

(2) A sheriff of a county . . . may not appoint a person as a peace officer who 

does not meet the qualifications provided in this subsection (2). . . . A peace 

officer must: 

(g) be free of any mental condition that might adversely affect 

performance of the duties pf a peace officer, as determined after: 

(i) a mental health evaluation performed by a licensed 

physician or a mental health professional who is licensed by 

the state under Title 37, who is acting within the scope of the 

person's licensure when performing a mental health 

evaluation, who is not the applicant's personal physician or 

licensed mental health professional, and who is selected by the 

employing authority; or 

(ii) satisfactory completion of a standardized mental health 

evaluation instrument determined by the employing authority 

to be sufficient to examine for any mental conditions within the 

meaning of this subsection (2)(g), if the instrument is scored 

by a licensed physician or a mental health professional acting , 

within the scope of the person's licensure by a state. 

Prior to the investigations and arrests at issue, Deputies had undergone mental health 

evaluations performed by a physician assistant. However, a physician assistant is neither 

a "physician" nor a "mental health professional" as defined by § 37-3-102(12), MCA, and 

§ 53-21-102(11), MCA, respectively. The State does not dispute that the evaluations 

conducted by a physician assistant did not comply with the statutory requirement. 

Kunzelman completed a statutorily compliant mental health evaluation on 

October 2, 2022, and ceased employment with Mineral County on December 30, 2022. 

4 
Lindauer, who remains employed as a Mineral County Sheriff's Deputy, completed his 

statutorily compliant mental health evaluation on March 23, 2023. Visintin is no longer 

employed with Mineral County and it is unclear from the rec,ord before us if he completed 

the requisite mental health evaluation prior to the termination of his employment. 

In all three cases, defense counsel moved to suppress evidence Kunzelman obtained 

on the basis that he was not qualified to act as a peace officer at the time of his investigation 

and arrest of Patrick, Ovitt, and Green. The Justice Court granted the motions over the 

State's objection, concluding that Kunzelman had forfeited the authority and arrest powers 

of a peace officer by failing to meet the minimum statutory requirements. Section 7-32-

303(5), MCA ("Any peace officer appointed after September 30, 1983, who fails to meet 

the minimum requirements as set forth in [§ 7-32-303(2), MCA,] . . . forfeits the position, 

authority, and arrest powers accorded a peace officer in this state."). 

The State appealed the Justice Court's orders granting suppression to the District 

Court. Neither the State nor the defendants disagreed with the Justice Court's findings; the 

District Court solely considered whether the Justice Court erred as a matter of law in 

suppressing the evidence based on the officers' undisputed lack of qualifications. 

The District Court issued similar rulings in the three cases. First, it rejected 

Petitioners' argument that Deputies, having failed to meet the requirements of § 7-32-

303(2)(g), MCA, could only legally conduct the stop'S at issue by following § 46-6-502, 

MCA, which governs arrests by a private person. Relying on State v. Updegraff, 2011 MT 

321,363 Mont. 123, 267 P.3 d 28, the court determined that, "[a]lthough there were issues 

with completion of the qualification process," Deputies were certified peace officers 

because both the Montana Peace Officer Standards and Training Council (POST) and the 

Mineral County Sheriff had certified thein as such. 

In Updegraff, a Jefferson County reserve deputy came upon a car that was parked, 

at night, in a day-use-only fishing access site in Madison County. She made contact with 

the driver, concluded that he was intoxicated, and called a Jefferson County Deputy for 

assistance. Updegraff, ¶ 1. The deputy arrested Updegraff for DUI while the reserve 

deputy searched Updegraff s car and collected evidence. Updegraff, ¶ 14. Updegraff was 

5 
then charged in the Madison County District Court. The court denied his motion to 

suppress, in which he had argued the Jefferson County officers had effected an illegal 

arrest. Updegraff, ¶ 2. On appeal, Updegraff argued his arrest was illegal because the 

officers were acting either: (1) under color of law as Jefferson County peace officers, in 

which case they had no authority to make an arrest in Madison County; or (2) as private 

citizens, in which case they failed to comply with § 46-6-502, MCA, which controls arrests 

by private citizens. Updegraff¶ 3. We concluded: 

[T]he 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. . . . [T]o 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 . . . if this standard is met, 

the officer may then follow the procedures applicable to peace officers in 

procSsing the arrest. 

Updegraff, ¶ 6. We found it made no sense to attempt to apply the private citizen arrest 

statute to peace officers because a peace officer is always a peace officer, regardless of 

whether they are located within their jurisdiction, because the officer is always vested by 

law with a duty to maintain public order and make arrests for offenses. Updegraff, In 34, 

48-49 (citation and internal quotation omitted). 

In the cases involving Patrick, Ovitt, and Green, the District Court found Deputies 

were "similarly situated" to the reserve officer in Updegraffbecause "[t]hey were certified 

peace officers performing law enforcement duties, not 'private persons'." The court noted 

that the qualification for appointment as a reserve officer does not include a mental health 

evaluation under § 7-32-303(2)(g), MCA. It thus reasoned that, "if a reserve officer in 

Updegraff was properly characterized as a 'peace officer' for purposes of conducting a 

DUI investigation and detaining Mr. Updegraff, the Deputies here — with the same 

qualifications — must be appropriately characterized as 'peace officers'." 

The court found further support in State v. Robertson, 2019 MT 99, 395 Mont. 370, 

440 P.3d 17. In that case, the defendant alleged the arresting officer's wellness 

examination did not fulfill the requirements of § 7-32-303(2)(g)(i), MCA, and he argued 

6 
the District Court should not have allowed the officer to testify at trial because the officer 

was not properly certified as a peace officer. Robertson, ¶ 12. On appeal, this Court held 

that Robertson had failed to prove the peace officer's wellness examination did not meet 

certification requirements, but in any event, the officer could testify as to his personal 

knowledge regardless of certification status. Robertson, ¶ 23. The District Court found 

that Robertson provides "insight into the technical non-compliance" with the statute. The 

District Court reasoned that, since the officer was allowed to testify as to his personal 

observations regardless of his certification status, Kunzelman would be qualified to testify 

in these cases. 

Ultimately, the court concluded suppression was not warranted because Patrick, 

Ovitt, and Green suffered no prejudice from the officers' failure to meet the certification 

requirements since the officers were "free of any mental condition that would adversely 

affect [their] performance." Iri its response to the present petition, the court reiterated its 

reasoning for denying the motions to suppress: "Petitioners' failure to articulate the 

prejudice suffered since the subject deputies were eventually certified, appointed, and free 

of any mental condition that would adversely affect their performance when they 

encountered the subject Petitioners." 

Petitioners argue Deputies forfeited their position, authority, and arrest powers 

pursuant to § 7-32-303(5), MCA, and they therefore lacked the authority to investigate and 

arrest Petitioners. Pointing out that the District Court did not consider the implications of 

§ 7-32-303(5), MCA, in its orders denying their respective motions, Petitioners argue the 

court's reliance on Updegraff and Robertson is misplaced. Petitioners argue that the 

officers in Updegraff were properly certified peace officers who, the Court determined, did 

not lose their authority to investigate and arrest by traveling outside their jurisdiction, while 

the officers in the present cases were not properly certified—and thus had no authority to 

investigate and arrest in any jurisdiction because they were not "peace officers" pursuant 

to the statute. 

The State responds that the District Court correctly concluded Deputies met the 

requirements of reserve deputies under § 7-32-213, MCA. It maintains the same rationale 

7 
that allowed an out-of-jurisdiction reserve deputy to investigate and detain the suspect in 

Updegraff should apply in the present cases. The State further relies on Wood v. 

Butorovich, 220 Mont. 484, 716 P.2d 608 (1986), and argues the District Court's ruling is 

supported by the de facto officer doctrine. In Wood, relying on Kansas caselaw, we held a 

de facto officer's acts are valid insofar as they involve the interest of the public and a third 

person: 

A person who assumes and performs the duties of a public officer under color 

of authority and is recognized and accepted as a rightffil holder of the office 

by' all who deal with him is a de facto officer, even though there may be 

defects in the manner of his appointment, or he was not eligible for the office, 

or failed to conform to some condition precedent to assuming the office. ' 

Wood, 220 Mont. at 488-89, 716 P.2d 611 (citations and quotation omitted). 

However, the de facto officer doctrine cannot override a statute to the contrary. In 

the present matter, neither the District Court in its orders nor the State in its response brief 

consider § 7-32-303(5), MCA. The cases upon which they rely also do not apply or 

interpret § 7-32-303(5), MCA. The statute provides, in relevant part, that an officer who 

fails to meet the minimum requirements of § 7-32-303(2), MCA, "forfeits the position, 

authority, and arrest powers accorded a peace officer in this state." Unlike Updegraff, in 

the cases at issue here, the officers failed to meet the minimum requirements of § 7-32-

303(2), MCA—the reserve officer was not subject to those requirements and the other 

responding officer presumably met those requirements; merely being physically outside 

his jurisdiction did not somehow negate his qualifications. See Updegraff ¶ 49. We 

determined in Updegraffthat the out-of-jurisdiction officers had authority because "a peace 

officer is always a peace officer." Updegraff, ¶ 48 (emphasis in original). In this case, 

Deputies were not "peace officers" because their failure to meet the statutory minimum 

requirements forfeited that authority. Section 7-32-303(5), MCA. In Robertson, we adreed 

with the district court that Robertson had failed to prove that the arresting officer failed to 

meet the minimum requirements of § 7-32-303(2), MCA, and thus § 7-32-303(5), MCA, 

was not at issue. Robertson, ¶ 23. Finally, Wood concerned the apparent authority of 

commission members whose appointments had expired, not law enforcement officers. 

8 
Wood, 220 Mont. at 487, 716 P.2d at 610. This caselaw, relied upon by the District Court 

and the State, cannot overcome the clear statutory authority of § 7-32-303(5), MCA, which 

-requires the opposite result. 

Because Deputies did not meet the minimum requirements of § 7-32-303(2), MCA, 

they forfeited their "position, authority, and arrest powers" pursuant to § 7-32-303(5), 

MCA. Therefore, they were not "peace officers" within the meaning of the statute when 

they investigated and arrested Patrick, Ovitt, and Green. We do not agree with the District 

Court that Petitioners needed to demonstrate they suffered prejudice because of Deputies' 

status. Unlike Updegraff, Petitioners were investigated and arrested by individuals who 

had forfeited the "powers accorded a peace officer in this state." Petitioners need not 

further prove they suffered prejudice. 

If Deputies had forfeited their "peace officer" powers, then their authority to arrest 

was limited to that afforded a private person. In Updegraff, we explained the private person 

arrest statute applies to non-peace officers and "those whose arrest authority is, by statute, 

limited to that of a private person." Updegraff, ¶ 6. Section 46-6-502, MCA, therefore 

applies here. It provides: 

(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. 

Although the statute authorizes a private person to make an arrest, it does not authorize a 

private person to investigate, search, or collect evidence. Updegraff, ¶ 19. Moreover, it 

requires the person making the arrest to immediately notify law enforcement and turn over 

custody of the arrestee. Section 46-6-502(2), MCA. There is no credible argument that 

Deputies acted within the statutory authority to arrest afforded to private persons in the 

cases at issue. 

9 
We conclude the exercise of supervisory control is appropriate in this instance 

because the District Court is proceeding under a mistake of law that, if uncorrected, will 

cause significant injustice. State ex rel. Dusek v. Eighth Jud. Dist. Ct., 2003 MT 303, 

6-7, 318 Mont. 166, 79 P.3d 292. The District Court erred when it reversed the Order 

Granting Motion to Suppress issued by the Mineral County Justice Court in the cases 

involving Patrick, Ovitt, and Green. We therefore agree these Petitioners are entitled to 

relief in this matter. 

IT IS THEREFORE ORDERED that the Petition for Writ of Supervisory Control is 

ACCEPTED and GRANTED as to Petitioners Dawson Dennis Patrick, Dylan Todd Lee 

Ovitt, and Samual Murrell Green. 

IT IS FURTHERE ORDERED that the Petition for Writ of Supervisory Control is 

DENIED as to Petitioners John Arispe, John Anthony Blackburn, James Horodyski, James 

London, Harley McDonald, Troy Parker, Brandon Rosenhahn, and Andrew Suitonu. 

IT IS FURTHER ORDERED that the Findings of Fact, Conclusions of Law, and 

Order Reversing issued by the District Court are REVERSED in the following cases: State 

v. Patrick, DC-23-35 (TK-595-2022-0001683); State v. Ovitt, DC 23-34 (TK-595-2022-

0001772); and State v. Green, DC 23-36 (TK-595-2022-0000884). 

The Clerk is directed to provide immediate notice of this Order to counsel for 

Petitioner, all parties in the Fourth Judicial District Court, Mineral County, Cause Nos. 

DC-23-35, DC-23-34, DC-23-36, DC-24-5, DC-24-6, DC-24-10, DC-24-4, DC-24-8, DC24-9, DC-24-7, DC-24-13, and DC-24-12, and the Honorable Shane A. Vannatta and 

Honorable John W. Larson, presiding. 

Dated this /3 day of August, 2024. 

/ 14q 7 

Chief Justice 

4"' 6 ./ 4" 4 

10 
al m J..4.. 

Justices 

Justice Beth Baker would deny the Petition for Supervisory Control. 

11