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, G arrett 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 Att

orney, Virginia City, Montana

Submitted on Briefs: December 7 , 2011 Decided: December 20, 2011 Filed:

__________________________________________ Clerk December 20 20112

Justice James C. Nelson delivered the Opinion of the Court. ¶1 Late on e nightin July 200 9 , Jefferson County Reserve Deputy F rancine Janik came upon a car parked in a posted “d ay u se o nly” fishing access site in neighboring Madison County. The car’s driver, Floyd Thomas Updegraff, appeared motionless and unresponsive . Janik approach edt he vehicle and made contact with Updegraff . U pon doing so , she ascertained that Updegraff was intoxicated . Janik detained Updegraff and radioed for assistance from a secondJefferson 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) . Beforetrial, he filed a motion to dismiss or, alternative ly , to suppress the evidence ag ainst him on the ground that Deputy

Janik and Deputy Wharton had effected an illegal arrest. The District Court held a

n evidentiary hearing and denied the motion . The case then proceeded to trial , and t

he jury ultimately convicted Updegraff . ¶3 On appeal, Updegraff raises one issue: whether the District Court erred in denying his motionto dismiss/suppress . Hi s arg uments in the District Court and this Court boil down to the following

propositi on : either the deputies were acting “under color of law” as Jefferson County “peace officers,” in which case they had noauthority to make an arrest in Madison County, or the deputieswere acting as “private citizens,” in which case they failed to comply with the mandates and limit ed authority of the private person arrest statute ( § 46 - 6 - 502, MCA) . Either way, the arrest was illegal .3

¶4 The State, on the other hand, argues the arrest was lawful. The State contends that Janik was “still a peace officer” whenher duties broug ht her into Madison County and that her initial contact with Updegraff was justified under the community caretaker doctrine . 1 The State further contendsthat 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. F inally, the State acknowledgesthat Janik and Wharton followed certain “po lice procedures” in conjunction with Updegraff’sarrest, but the State ma intains that so - called “out -of - jurisdiction” peace officers are allowed to “employ their training, experience, and procedures when exercising citizen arrest authority.” ¶5 These argument s implicate two questions inaddressing the legality of Updegraff’s arrest: w hat authority the deputies had to make a warrantless arrest in another county, and what restrictionsapplied to the deputies’ actions incident to that arrest . As the State point s 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 ma y not use criminal procedure statutes and does not have authority to make an arrest in the capacity of a peace officerw hen outside the territorial jurisdictional limits of the law enforcement entity for which the 1 The commun ity 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. P rivate citizens, conversely, are not subject to the warrant requirement, see State v. Long , 216 Mont. 65, 700 P.2d 153 (1985), and thus a priv ate person would not need to inv oke 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.4

officer works. I

nstead, we hav

e analyzed arrests by out - of - jurisdictio n 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” andthat 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 detailede xamination of the law of private person arrests, we concl ude 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 analysi s for arrests by out - of - jurisdiction peace officers. B ased on the discussion below , and because it does not alter the outcome of this appeal, we hold that in order to make awarrantlessarrest, an out -of - jurisdictionofficer must meet the arrest standard that would apply t o a private personin 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 thisapproach 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 ev ents at issue here, she had served for ten years as a reser ve 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 arrest5

authority, as described in 46 - 6 - 210, only when authorized to perform these functions as a representative of

the law enforcement ag ency.” S ection 7 - 32 -201(6), MCA. The qualifications , training requirements, and limitations of reserve officer s are set forth in § § 7 - 32 - 213 , - 214, - 216, and - 217 , MCA. Up on 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 ev ening 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, shenoticed a southbound vehicle that appeared to be speeding. Janik followedthe vehicle, but the driv er 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 retur n to Jefferson County. ¶9 As she made her turn , Janik’s headlights illuminateda 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 driv e in and “make sure there was nothing going on that might need some attention.” Based onwhat she had heard over the radio traffic that evening, Janikb elieved there were no Madison County deputies, Montana Highway Patrol officers, or Fish, Wildlife, and Parksofficers in th earea at th e time. Thus, she did not contact any of these ag enciesregarding her situation . S he did call in to the Jefferson County dispatch er , however, who n oted “TS [ tra ffic stop] @ Cardwell Fishing Access”on the dispatch logs at 1:13 a.m.6

¶10 As she drove toward the parked vehicle, Janik could see that some one(Updegraff) wass itting in the driver’s seat. Hish ead was laid back against the seat, his eyes were closed, and Janik could see no movement . Sheshined her headlights into the veh icle, but Updegraff did not respond. She turned on her top red - and -blue rotating lights, but that also f ailed to rouse him. She approached the vehicle, announced that she was a deputy, and asked if he was alright. Still hedid not respond. Janik then went up to the car door window, knocked on it v ery loudly, and ag

ain asked if ev

erything was alright. F inally, Updegraff woke up. With slurred words, he stated , “Yeah, I think I’m alright.” ¶11 Janik observed that Updegraff seemedd isoriented and confused. S he identified herself as a deputy and asked what he was doing there . Updegraff respondedthat he was

“trying to do the rig

ht thing ”and “sleep it off.” He indicated that he was coming f rom Bozeman , had pulled off the roa d at Cardwell, and would be head in g 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 seethat hiskeys were in the ignition. ¶12 Janik asked Updegraff to step out of thev ehicle. He complied. Janik smelled the “strong” odor of an alcoholic beverage emanating from both the car and Updegraff’s person. She asked his name butwas unable to understand his answer, so sh e 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 mo ve ments were “real staggery,” and he had to use the car to keep himself up. His eyes were bloodshot and watery.7

¶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 vehicleand 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 not ed that one of hisbeer cans was now lying on the groundthree feet from the driver’s side door. ¶14 Dep uty Wharton isa 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.” Whart on made contact with Updegraff and detected a distinct odor of an al coholic beverage coming from

U pdeg raff . He also observed multiple beer cans in Updegraff’s vehicle . Wharton read Updegra ff the implied consent advisory (s ee§ 61 - 8 -402, MCA) and asked hi m to provide a sample for a preliminary breath test . Updegraff ref used . 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 M adison County) is about 5 6 miles south from the fishing access. Wharton conceded that he could have driven8

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 citation sfor va rious 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 thearrest

—that aMadison County official became involvedin the case . On that date, the Madison County Attorney requested leave of the District Court to file an information charging Updegraf f 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 “ Dismi ssal of C itations ”in Jefferson County Justice Court on July 29. ¶17 At the hearing on Updegraff’s motionto dismiss/ suppress , the prosecutor assumed that becausethe events in question occurred in Madison County, the Jefferson County deputies acted as “privat e persons . ” 2The prosecutor thus presented the District Court with a so me what convoluted theory as to why Updegraff’s arrest and transport ation to Boulder were legal under th e private person arreststatute , 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, ev

en if that party is the go vernment 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 go vernment, we are not bound by the government’s erroneous view of the law. The policy is long standing and applied whether it is the go vernment or a private party which has made the erroneous concession.” (citation and internal quotation marks omitted)).9 (1) A private person ma y arrest another when there is probable cause to believe that the person is committing or has committed an offense and the existing c ircumstances require the person’ s immediate arrest. The private person may use reasonable force to detain the arrested p erson. (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 e lements, thestatute 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 av ailable law enforcement agency or peace officer and (h ) give custody of the person arrested to the agency or o fficer . I

n 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 h is intoxicated condition, thestrong 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 f urther argued that Updegraff’s articulateddesire to continu e on his way gave the deputies grounds to make an immediate arrest. ¶19 The reasonableness of the force used had not been disputedb y the defense , b ut s atisfying the remaining elements of the statute presented a bitof ac hallenge . For one thing, the statute authorizes a private person to make “an arrest . ”I t says nothing about th ep rivate person conduct ing the sort of DUI investigation that occurred here

—i.e.,10

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 collectevidence found therein . In this regard , the District Court expressed concernthat allowing private citizens to conduct criminal investigations may implicate the arrestee’s constitutional rightsand would be “bad policy”in any event. Another problem inthe statute’s applicationwas the deputies ’ apparent failure to “ immediately notify the nearest available law enforcement ag ency or peace officer and g

ive custody of the person arrested to the officer or agency. ” S ection 46 - 6 - 502(2), MCA . It seems peculiar to question compliance with this requirement in the present case , w

here the two deputies were the nearest

—and evident ly only

— peace officers av

ailable. It appears, however, that Updegraff, the prosecutor, and the District Court all assumed that “the nearest av ailable law enforcement ag ency or peace officer” meant “the nearest available law enforcement agency or peace off icer wi th in that jurisdiction ”

—

meaning, here, Madison County. ¶20 To get aroundthese 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), w

here the C ourt stated : “A bsent 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 . ” ( Emphas is in original.) Here, the prosecutor argued, the DUI investigationb y Janik and Wharton , the ir s earch of U

p degraff’s car, their decision to transporth im t o Boulder rather than Virginia City , and their failure to immediately notify and give11

custody of hi m to Madison County law enforcement were all justifiedunder theso - 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 , esp ecially, the lack of available Madison County officers in the area. ¶21 In responseto the searg uments , Updegraff ma intained that it is illegal for a peace officer to make an arrest, in the capacity of apeace officer, outside his or her territorial jurisdiction, which seemingly is what transpired here. Updegraff also maintained that the private person arrest statute hadnot been satisfied. First, he contended that Janik needed to hav e probable cause of an offense in order to approach his parked vehicle in th e first place . I n his view, however, Janik did not hav e probable cause to believe that he was committing or had committed any offenseuntil after she made contact with him. Second, reg arding the deputies’ actions incident to the arrest , Updegraff agreed with the c ourt 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 couldnot be excused by “exigent circumstances.”He noted that neither Janik nor Wharton had even attempt edto 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 p resumed that the Jefferson County deputies were “merely private citizens ”w hile they were in Madison County. Proceeding on that premise, the court determinedthat 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 to12

form probable cause of DUI , especially if considered together with Janik’s observations . 3 Next, the court concluded that Updegraff’s expressed des ire to drive away ga ve Wharton reason to make an immediate arrest. Also , the court notedt hat evidence of alcohol consumption in the bloodstream dissipates over time, and the court reasoned that in order to securet

his ev idence , it was necessary to take U pdegraff into custody so that testing could be donewithout 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 al so noted that the private person arrest statute does not authorize criminal investigations in conjunction with an arrest . However, the court read Hendrickson as allowing apriv ate person to delay transfer of custody and to conduct an investigation if

there are “exigent circumstances.” Here , the court concluded, the lack of av ailable 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 investigat e 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 v iew doctrine,” “inventory searches,” and “searches incident to a lawful arrest” apply to arrests under the private person arrest statute . Hee lected, 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 decisionin 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 knowled ge, in the assessment of probable cause under the statute. See Schubert , ¶¶ 17 - 22.13

dependent on evidence which Janik had discovered and seized from Updegraff’s car. The District Court granted themotion , and the case proceeded to trial on the DUI, littering, and open - container charges. Ultimately, the jury convicted on all three offenses . **STANDARD S**  **OF REVIEW** ¶24 We rev

iew the denial of a motion to dismiss in a criminal casede nov o . 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 f act 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, treat ing the events described abovea s two “private persons” merely making an “ arrest ” is difficult to square withreality. Janik and Wharton were peace offic ers and conducted themselves as such. Janik activated her vehicle’s top red - and -blue rotating lightsand 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 insistedthat he turn over his keys . Wharton read Updegraff the implied consent advisory and asked him to provide a breath sample. W harton handcuffed Updegraff, advised him that he was under arrest , and placed him in a patrol car . Meanwhile, Janik searched Updegraff’s veh icle . 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 questionabl e whether he would have been so compliant had these truly been “private persons.”14

¶26 The District Court endeavored to apply the private personarreststatute 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 fita 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 intendedto apply to actu al priv ate 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 Eng land to drop wha

tever they were doing when the “hue and cry”was raised and to “

j oin immediately in the pursuit.” [ M. Cherif Bassiouni, Citizen’s Arrest

9 ( 1 977).] P rofessor Wilg us 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 handeds layer 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 hang

ed 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 w

ithout 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).15

¶28 Reg

arding felonies, the rationale for allowing arrest s 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 publ ic safety,” whilearrest sin misdemeanor cases involving breaches of the peace werej ustified by “the necessity for prompt on -the - spot action in suppressing and prev enting 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, f ailing in this, should bring him to justice.’ ” ( citing Bishop, New Crim inal

P rocedurev

ol. 1, § 171)). It is important to notet hat the common law rules were dev

eloped at a time when “the apprehension of criminals by private individuals was the norm rather than the exception as it is today. W hile ‘[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 e llipsis 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 felonie s. 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 ne glect.’ ”); Crawford, 44 S.W.2d at 288 (“ ‘Any private person . . . that is present when any felony is committed is bound by the law to16

arrest the felon on pain of fine and imprisonment if he escapes through the neg ligence of the standers - by.’ ”); accord B rooks , 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 t erritorial days. Section 64 of the Criminal Practice Act, passed by the legislative assembly in Virginia City on January 12, 1 872 , providedthat an arrest could be made by a peace officer under a warrant, by a peace officer without a warrant, or by a priv ate 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 aprivate person could make an arrest: “ First. F or 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 ma y flee before he can be arrested by a proper officer.” Before ma king an arrest, the private personwas requiredto “stat e 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. S ection 71. Thep rivate person wasalso required, “without unnecessary delay, [to] take him before a magistrate or deliver him to a peace officer.”Section 69. ¶30 In 1895, the Legi slature renumbered these sections and made some amendments not materialtothis discussion. The statutes were again renumbered for the 1907, 1921, and 1947 Codes . I

n 1967, the Legislature overhauled the criminal procedure laws and, of17

relevance here, enacted the following private person arrest statute:“A private person ma y 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 b elieves, on reasonable grounds, that the person arrested has committed it. ” Laws of Montana, 1967, ch. 196, § 1 ( paragraph breaks om

itted) , codified at

§ 95 - 611, RCM , derived from f

ormer § 94 - 6004 , RCM . This statute modifiedthe law “by restricting the p ower 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 strictl y 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 speci fically authorizing a mer chant 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 sto p and detain an individual suspected of shoplifting for up to 30 minutes without making an arrest).18

¶32 The last significant amendments to the statutory scheme occurred in 1991 . First, thef elony/misdemeanor distinction and the “in his presence” lang uag e weredeleted , as were the merchant - specific rules. I n 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 requirementthat “the existing circumstances require the person’s immediate arrest” was added. SeeLaws 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 . SeeL aws 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 f or an initial appearance” (emphasis added)). Similarly , prov

ision was made for the arrestee to be delivered to a peace officer, instead of a judge. SeeLaws of Montana, 1991, ch. 800, § 40; § 46 - 6 - 502(2), MCA (2011) (“A private person ma king an arrest shall immediately notify the nearest available law enforcement agency or peace officerand give custody of the person arre sted 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 purpose so f 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 ag ency 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 theassumption that a private person making an arrest under the statute must immediately notify and givecustody 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 co unty” requirement for notification and transfer of custody.19

whereby a person, who is not a peace of ficer, ma y 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 personthe rig ht “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 ov er in Montana . ”). Nor does the statute authorizet he private person to conduct forensic testsor 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 person s 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 s af eg uards of the criminal justice system to take effect . ¶34 Given this purpose, it does not make sense to apply the statute to peace officers. Inf act , the 1991 Commission Comments to § 46 - 6 - 502, MCA, state that the prov isions allowing a warrantless arrest b y a police officer are “parallel” to , but “distinct” from, those allowing an arrest by a private citizen. The requirement in the private personarrest statute that custody of the arrestee be given to “the nearest available law enforcement ag ency 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 statutory20

mandatesin 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, i f thearrest 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 serv ed by the statute has already beenf ulfilled : 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 Offi**  **cers : Caselaw**  ¶36 The question remains as to the authority of an out - of - jurisdiction peace officer to ma ke an arrest. The foundation of o ur present jurisprudence on this subject is State v. McDole , 226 Mont. 169, 734 P.2d 683 (1987) . We followed McDolein 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. Wi lliamson , 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 s econd witness reported that McDole had hit her vehicle while she was stopped at a stop sign in21

the city limits and then had backed up and left the scene of the accident. A Eureka police officer drov

e 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 ! T ake me !” The officer obliged, placedM cDoleunder arrest , and took him to the station . McDole, 226 Mont. at 170, 1 72 - 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 withouta 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 ma y authorize its police force to make arrests within five miles of thecity or townlimits . 5 Eureka , however, had not enacted such an ordinance . McDole , 226 Mont. at 171, 734 P.2d at 684. Accordingly , we considered a se cond 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 withcrime: (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.”22

Mont. at 172, 734 P.2d at 685. In this regard, we observedthat anofficer 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 re asoned, 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 th e

statute ; th e arresting officer confirmed the citizenreports 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 ! T ake 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 . W hile a municipality or a county may appoint airport guards or police with full police powers, we notedthat the jurisdiction of such officers extends only to enforcing o rdinances, resoluti ons, rules, and orders enacted for the management, go vernment, 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 thatS unford was speeding and, after being stopped, appeared to be intoxicated, we concluded t he officer had reasonable grounds to believe an23

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 p olice o fficer ( Gomke ) stopped Maney’s vehicle about four and one -half miles outside the Chinook city limits . B ecause hisb reath smelled of alcoholic beverage, Gomke required Maney to perform field sobriety tests . Meanwhile, a Blaine County d eputy sheriff ( Kovacich ) arrived onthe sceneand 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 DUIsuspect in custody. Gomke then transported Maney to the Sheriff’ s O ffice in Chinook . Kovacich followed. Once there , Gomke re - administered sobriety tests while Kovacich observed. The tests again showe d 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 2 71 - 72, 842 P.2d at 705. ¶41 On appeal, the validity of the st op and Gomke’s authority to make anarrest were not contested. Rather, Maney claimed his arrest was illegalb ecause Gomke had not transferred custody of him to another officer. Maney , 255 Mont. at 2 74, 842 P.2d at 706. Recall that a year earlier, in 199 1, the Legislature amended the private person arrest statutet o include the requirements of immediate notification and transfer of custody. Importantly , Maney’s arg ument dependedon the premise that the se procedures appl ied to24

out -of - jurisdiction peace of

ficer s . The Court did not address this antecedent issue , however. I

t simply as sumed theprocedures applied . Maney , 255 Mont. at2 74, 842 P.2d at 706 (applying

§ 46 - 6 - 502(2), MCA (1991 ) ) . The Court then reasoned that Gomke did not need to formally trans fer 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 w

ho 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 aprivate citizen to retain custody of anarrestee after a pe ace officer has arrived

—a point we later discussedin 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 couldh ave , andp resumably should have , occurred at this time

—again, assuming this statutory requirement applied to Gomke in the first place. ¶42 **Hendrickson .**  A Belgrade p olice o fficer ( 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 advisedthe dispatcher that he was following a possibly intoxicated driver. Woodland was told that he could makea 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, and25

bloodshot eyes. Shortly thereafter, two Bozeman p olice o fficers ( Keim and McManis) arrived on the scene. W hile Keim and McManis watched, Woodland had Hendrickson perform a series of field sobriety tests. Woodland then place d Hendrickson under arrest and transported him

t o the Detention Center. Once there , Woodland read Hendrickson the implied c onsent advisory and asked him to submit to a breath test. Hendrickson initially refused but later agreed to take the test. Althoug h Keim and McManis were present, a Bozeman police sergeant authorized Woodland to write thec itation charging Hendrickson with DUI. Hendrickson , 283 Mont. at 107 - 08, 939 P.2d at 986 - 87. ¶43 In addressing the lawfulnesso f these actions, thisC ourt 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 andb lood shot eyes.” Hendrickson , 283 Mont. at 109, 939 P.2d at 987. The Court observed, h owever, that § 46 - 6 - 502(2), MCA, “requires a private citizen to immediately notify local authorities and relinquish custody to the officer or ag ency with jurisdiction .” Hendrickson , 283 Mont. at 110, 939 P.2d at 98 8 . Assuming again, without discussion, that th is ruleapplie d to out -of - jurisdiction officers , the Court concluded thatthe holding in Maney“ is too broad in the scope of authority that it grants to a citiz en’s arrest pursuant to § 46 - 6 - 502, MCA. A

bsent 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 arri ves at the scene .” Hendrickson , 283 Mont. at 110 - 11, 939 P.2d at 988 (emphasis in original). Applying this rule, the Court held that26

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 suppresse d as requested by Hendrickson. Hendrickson , 283 Mont. at 111, 939 P.2d at 988 - 89 (expressly overruling Maneyon this point) . The Court noted that “there were no exigent circumstances requiring Woodland to eng ag e in investigating and charging Hendrickson .” Hendrickson , 283 Mont. at 111, 939 P.2d at 989. ¶44 **Williamson .** L astly, Wi lliamson 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 “possibledrunk driver . ” Wi lliamson , ¶¶ 3 - 5, 22. The initial question on appeal was whether this report alone was sufficient grounds for Weber to stopWilliamson

—a que stion that turned on the applicable standard . Ordinarily , an officer needs on ly particularized suspicion to ma ke an investigatory stop . Wi lliamson , ¶ ¶ 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 C hinook police officer when he stopped Williamson . ” Wi lliamson , ¶ 14 . In this regard, the Court observedthat 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 , ” Wi lliamson , ¶ 15, an officer out side 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 its27

particularized suspicion standard , Wi lliamson , ¶ 16. Yet, o n the other hand , although an out -of - jurisdiction officer “is not authorized to make arrests in the c apacity of a peace officer,” Wi lliamson , ¶ 15, the Court noted that the officer “may ma ke 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. Wi lliamson , ¶ ¶ 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. Wi lliamson , ¶ ¶ 35 - 36 ; see also e.g. State v. May , 2004 MT 45, ¶¶ 1 8 - 20, 320 Mont. 116, 86 P.3d 42 . ¶45 **Summary.** I

n sum, McDoleand its progeny stand for two key principles. F irst, the scope of a peace officer’s authority is limited by the territorial jurisdictional limits of th e law enforcement entity for which the officer works, which means anofficer outside his or her territorialjurisdiction may not make arrests asa 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) a n out -of - jurisdiction officer ma y usehis or her authority as a peace officer if authorized to do so by statute6 and (b) an out -of - jurisdiction officer ma y ma ke an arrest under circumstances whichwould 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 ma y request the assistance of a peace officer from another law enforcement entity within the S tate, 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 thatp eace 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.28

authorize a private citizen to do so . We reaffirm these principles in the present case. I n so doing, however, we note that while the first exception has not presented analytical problems, the second exception has resulted in some inc orrect assumptions reg arding the private person arrest statute . Becauset hat statute, as explained above, was not intended to a pply to sworn peace officers, it is necessary to address our discussionsof the statute in Maney , Hendrickson , and Wi lliamson and to clarify the authority of out - of - jurisdiction peace officer s to make arrest sunder the second exception . **Arrests by Out -**  **of**

**- Jurisdiction Officers:**  **Clarification of Authority** ¶46 As stated , a peace officer outside his or her territorial jurisdiction ma y ma ke 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 at9 88; s ee also Wi lliamson , ¶ 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.2 d at 707 (“Once Officer Gomke left his jurisdiction he could make arrests only as a pri vate 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 pri vate citizen , mad e a valid arrest of Mr. McDole.” (emphasis added)) . B ased on this characterization, it was thenassumed that an out -of - jurisdiction officer ’sactions must comply with the private person arrest statute in toto . Hence , giventhe statute’s requirement of immediate transfer of custody, the Court in Hendrickson held that because Officer Woodland did not relinquish custody of29

Hendrickson when the Bozeman police officers “with jurisdiction” arriv edat the scene , any ev idence obtained by Woodland from that point forwardwas obtained illegally and had to be suppressed . Hendrickson , 283 Mont. at 110 - 11, 939 P.2d at 988 - 89. ¶47 In retrospect, t

he problem with this holding is thatthe statute requires “[a] private person making an arrest” to immediately notify an d 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 intot he hands of trained law enforcement personnel. There are no territorial jurisdictionalrequirementsh ere ; “nearest” available peace officer really does mean nearest available peace officer (s ee ¶ 32 n . 4 , supra ) . Thus, becauseHendrickson was already in the custody of the “nearest” available peace officer (Woodland), the purpose so f 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 tru ly 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. B ut 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 notintended to require the suppression of ev idence, otherwise lawfully obtained, merely because the nearest available peace officer who takes custody of the ar restee, gathers ev

idence 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 govern ing the transfer of custody of an30

arrestee between pe ace officers of different jurisdictions and go verning the authority of a peace officer to gather ev idence 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. T o 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 , Wi lliamson , and the present case reflect. Furthermore , the noti on that ano ut - 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.” S ection 46 - 1 - 202(17), MCA. A person who is employed as a law enforcement officer falls within this definitio n ev en 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 ev en when making an arrest under authority of the citizen’s arrest statute. Maney , 255 Mo nt. at 275 , 842 P.2d at 707(paragraph break omitted). ¶49 Addressing this pointin Wi lliamson , t he Court observed that “[a] law enforcement officer is always a peace officer, no matter his or her g eog raphical locat ion, because the officer is always a person ‘vested by law with a duty to maintain public order and make arrests for offenses.’ ” Wi lliamson , ¶ 19 (quoting § 46 - 1 - 202(16), MCA (1993)). At the31

same time, however, “an officer ma y only assert his or her aut hority as a peace officer when ‘acting within the scope of [his or her] authority.’ ” Wi lliamson , ¶ 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 .” Wi lliamson , ¶ 19. While the distinction between “being” a peace officer and “acting” as one might seem so me what abstract , the critical point is simply this: although a peace officer is always a peace officer, his or her authority to act in th at c apacityi s restrictedt o the territorial jurisdictional limit s 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 i s th at 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 prov ided by law). On the other hand, they are not truly “private persons.” To the contrary, they are “always” peace officers, no matter their geo graphical 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 l egislative guidance on this issue, we will proceed to32

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 ma ke 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 arresteddefendant.” ) . This is not to say that the officer morphs into a “private person” acting under the priv

ate person arrest statute. It is only to say that if the circumstances would givea priv

ate person sufficient grounds to makean arrest, then the offic er ma y do so as well . Thestatute merely supplies the standard necessary to ma ke the arrest . At present, itis “probable cause to believe that the person is committing or has committed an offense and the existing circumstances require the person ’ s immedi ate arrest . ” Section 46 - 6 - 502(1), MCA. S ubsection (2)’s procedural requirementsdo not a pply because the person making the arrest is a peace officer, not “[ a ] p rivate person. ” In effecting the arrest, the officer is notp reclude df rom conducting an inve stigation 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 abide s 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 to33

that of a “private person.” The HendricksonC ourt 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 - juris diction 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 ma y notmake an arrest in the capacity of a peace officer(unless otherwise authorized to do so by statute). The officer ma y make an arrest , howev

er, if the circumstances would give a private person sufficient grounds to make an arrest , i.e., if there is probable cause to believe that ap erson is committing or has committed an o ffense and the existing circumstances require the person’s immediate arrest . I f 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 reg ard will be judgedunder 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 ma ke an arrest if the circumstances would allow a private person to do the same , b ut 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 o fficer; 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 leav es open the possibility that the Legislature may devise a34

statutory scheme that specifically address es the authority and limitations of a peace off icer to act when out side his or her territorial jurisdiction. **Analysis of Updegraff’s Arrest** ¶54 As noted at the outset, our clarificatio ns 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 larg ely 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 o ffense (DUI) based on the beer cans, his admissions, and thed eputies’ 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 proce ed on his way to Butte ; (e) the deputies used reasonable force to detain Updegraff

; and although they didn ot (f) immediately notify ( g) an in -

jurisdiction law enfo rcement agency or peace officer and (h) g

ive custody of Updegraff to that agency or officer, these omissions areexcused 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 out side their jurisdiction and, thus, could not make an arrest in their capacity as peace officers . B ut they could make an arrest if the circumstances would have justified a private person35

in ma king an arrest, i.e., if there was probable cause to believe that Updegraff was committing or had committed an offense and the existing circumstances require d his immediate arrest. A s a preliminary matter, we note that the Cardwell Bri dge Fishing Access is under the control of and administered by the Montana Department of Fish, Wildlife, and Parks. SeeAdmin. R. M. 12.8.107, 12.8.704. Itis a posted “day use only” area. Thus, by

b eing parked thereat night , it seemsthat Updegraff wa sc ommitting a misdemeanor. See§ § 23 - 1 - 102(4), - 106, MCA. I f 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 baseour holding on it. Rather , the State maintains that Janik’s initial contact with Updegraff was justified under the community caretaker doctrineand that her subsequent observations ga ve rise to “probable cause of a criminal offense involving an immediate, real danger to Updegraff and other mo torists.” ¶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 , thisdoctrine is applicable to peace officers , and Wi lliamson held that out -of - jurisdiction officers cannot use criminal procedure lawsthat are expressly limited in application to “peace officers.” Under the facts of the present case, however, we conclude th atthe community caretaker doctrine isnot encompassed within Wi lliamson ’s hold ing. ¶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 onthe driver’s welfare. A private citizen, who is not subject to the warrant requirement36

in the first place, may simply approach the vehicleand 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 ma y 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 offic er may not approach the vehicle unless the officer has probable cause of an offense . We hold, therefore, that if the factswould justify an in - jurisdiction officer in contact ing a parked vehicle under the community caretaker doctrine, then an out -of - juris diction officer may do the same. ¶58 Under the community caretaker doctrine, an officer ma y 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 av

ehicle parked on the roadway in a public fishing access site marked “ day use only. ”I

t was 1:00 in the morning. When sheshined her headlights into the vehicle, the driver was motionless and unresponsive . S he activated her overheadred - and -blue rotating lights, but that failed to rouse him. S he 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 concludethat 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 t he keys in the37

ignition . Updegraff admitte d that he was on his way from Bozeman to Butteand 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 observ

ed 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 k

nowledge, or related to the personby a reliable source, are sufficient to warrant a reasonable person to believe that someone is committing or has committed an offense. Wi lliamson , ¶ 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

h ad committed DUI. L ikewise, the facts and circumstances observed by Wharton, together with the facts and circumstances related to him by Janik (“a reliable source”), ga ve Wharton probable cause to conclude the same . U pdegraff’s articulated desire to co ntinue on his way in his intoxicated condition ga ve the deputiesg rounds to ma ke an immediate arrest. Accordingly , we holdthat the arrest was lawful. ¶61 Updegraff’s only challenge reg arding the ev

ents incident to his arrest is that the deputies failed to co mply with, and exceed edthe scope of, the private person arrest statute. As we have held, however, this statute does not apply herebeyond 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.38 **CONCLUSION** ¶62 The circumstances existing when Janik initially encountered and approached Updegraff’s vehicle ga ve her sufficient grounds to conducta welfare check. Janik’s and Wharton’sensuing obser vations would have justified a private person in ma king an arrest . Thus , it was lawful for Janik and Wharton , acting as out - of - jurisdiction peace officers , to ma ke an arrest. Accordingly, the District Court did not err in denying Updegraff’s motion to di smiss/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 asapplication of the workers’ compensation lawsand issues reg arding 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