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No, 96-140 IN THE SUPREME COURT OF THE STATE OF MONTANA 1997
STATE OF MONTANA, Plaintiffand Appellant,
v. ORVALLEE HENDRICKSON, Defendant and Respondent.

APPEAL FROM: District Court ofthe Eighteenth Judicial District, In and for the County ofGallatin, The Honorable Larry W. Moran, Judge presiding.
COUNSEL OF RECORD: ForAppellant: SusanL. Wordal, City Prosecutor, Bozeman, Montana ForRespondent: AllenBeck, Attorney at Law, Billings, Montana

Submitted onBriefs: May 8, 1997 Decided: June 10, 1997 Filed: 

## 7 ClerkJustice W. William Leaphart delivered the Opinion ofthe Court.
The State ofMontana (State) appeals from the Eighteenth Judicial District Court's order dismissing charges ofDriving Under the Influence, a violation of§ 61-8-401, MCA, against Orval Lee Hendrickson (Hendrickson). We reverse in part, affirm in part, and remand. We address the following issue on appeal: Did the District Court err in dismissing the charges because Officer John Woodland ofthe Belgrade Police Department did not have jurisdiction to arrest a suspect and continue investigation ofthe offense within the city limits ofBozeman? 

### BACKGROUND Officer John Woodland (Woodland), a member ofthe Belgrade Police Department,
was in Bozeman delivering a prisoner to the Gallatin County Detention Center. While traveling through Bozeman, he observed a motorcycle approaching his police vehicle while he was stopped at a stop light. Woodland observedthe rider, lateridentified as Hendrickson, having difficulty controlling his motorcycle. Woodland followed Hendrickson down Main Streetto Fifth Street, where Hendrickson stopped at a green light. WoodlandcontactedtheBozemanPoliceDepartmentandinformedthe dispatcherthat he was following amotorcycle with a driver who possibly was intoxicated. After witnessing Hendrickson's continued difficulty controlling his vehicle, Woodland advised the Bozeman Police Department dispatcher of the situation and asked the dispatcher for assistance.
2Woodlandwas given authorizationbyEd Benz ofthe BozemanPolice Department to effect
a traffic stop on Hendrickson. Woodland stopped Hendrickson and momentarily waited for assistance. While waiting for assistance, Woodland approached the driver and asked a series of routine questions, including a request for registration, license and proof of insurance. Woodland observed a number offactors indicative ofintoxication including slurred speech,
a strong odor ofalcohol, and bloodshot eyes. Shortly after Woodland made these initial observations, a Bozeman Police Departmentpatrol car arrived on the scene with uniformed officers Steve Keirn (Keirn) andDavidMcManis (McManis). While Keirn exitedthe vehicle McManis setup the video camera in the Bozeman Police Departmentpatrol car. While McManis and Keirn watched, Woodlandhad Hendrickson perform a series of field sobriety tests. After the tests were completed, Keirn had Hendrickson perform the Horizontal GazeNystagmus test. Hendrickson was not cooperative and Keirn abandonedthe test. Atthe conclusion ofthese tests, WoodlandplacedHendricksonunder arrestwhile Keirn secured the motorcycle. Woodland transported Hendrickson to the Gallatin County Detention Center. At the Detention Center, Woodland read Hendrickson the Implied. Consent Law and asked him ifhe would submit to a breath test and Hendrickson refused. Woodland asked again about anhourlater at whichtime Hendrickson agreedto take the test. Although Keirn and McManis were present, Sergeant Mel McCarver authorized Woodland to write the citation charging Hendrickson with Driving Under the Influence in violation of
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### § 61-8-401, MCA. Hendrickson was tried and convicted in City Court ofDriving Underthe Influence ofAlcohol in violation of

### § 61-8-401, MCA. He appealed the matter to District Court where he filed a Motion to Dismiss the Complaint or, in the alternative, Suppress Evidence obtained as a result ofthe arrest. The DistrictCourt dismissed the charges andthe State appealed. DISCUSSION The standard ofreview ofadistrict court's conclusions oflaw is whether the court's interpretation ofthe law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469,898 P.2d 680,686. In Montana, police officers are given authority to arrest a person without an arrest warrant pursuantto 

### § 46-6-311(1), MCA, which provides: (1) A peace officermay arrest aperson when a warrant has notbeen issued if the officer has probable cause to believe that the person is committing an offense orthatthepersonhas committed an offense and existing circumstances require immediate arrest. An individual citizen may affect an arrestunder the following circumstances: (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. (2) A private person making an arrest shall immediately notify the nearest available law enforcement agency orpeace officer and give custody of the person arrested to the officer or agency. Section 46-6-502, MCA. In addition, this Courthas held thatpeace officers do not lose their status as private citizens when they are outside oftheirjurisdiction. State v. McDole (1987),
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### 226 Mont. 169, 172, 734 P.2d 683, 685. Section 46-6-502, MCA, authorizes arrest by private citizens when there is probable cause to believe that the person is committing an offense. We have held that a peace officer outside his orherjurisdiction can still perform
an arrest as a private citizen. McDole, 734 P.2d at 685. In the present case, the District Court concluded that Woodland was outside his jurisdiction as a peace officer and that he exceeded his authority as a private citizen. In granting Hendrickson's motion to dismiss, the District Court stated: It's clear to me that Officer Woodland was not given any authority to arrest. The granting ofthe authorityto make atraffic stop does notmake the authority to arrest, necessarily. And yet he proceeded in the presence ofBozeman police officers to do several things, which wouldbe incidentto an arrest: First, he arrested the defendant. He did not tum him over to the Bozeman police authorities. He thence proceeded to act as apolice officer in the sense that he went through the various and sundry DUI field sobriety maneuvers. Then he took the defendant down to the detention center and then issued a ticketbased on Belgrade city forms. Although the District Court was correct in concluding that Woodland over-stepped his authority when he failed to give custody ofHendrickson to the Bozeman City Police once Keirn and McManis arrived, Woodland's actions prior to their arrival were within his authority as a private citizen. Because § 

### 46-6-502(2) required Woodland to relinquish custody to the Bozeman law enforcement authorities, his actions before the arrival ofKeirn and McManis and after their arrival will be analyzed separately. Woodland's authority as a private citizen

5Under 

### § 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 ofHendrickson's slurred speech, odor ofalcohol andbloodshot eyes. In McDole, a Eureka police department officer responded to a call based upon reports of possibleDUI andleavingthe scene ofan accidentbyMcDole inthe city ofEureka. McDole, 734 P.2d at 684. Afterthe officer arrived at McDole's residence, outside the city ofEureka, McDole walked out ofhis house and said, "Take me! Take me!" This statement combined with the Eurekapolice officer's own observations led him to believe that McDole mayhave been driving underthe influence ofalcohol. The Eureka police officerproceeded to arrest McDole, take him to the police department and give him a breath test. McDole, 734 P.2d at 684-85. In McDole, this Courtheld that a police officer outside his orherjurisdictionhas not lost his orher status as a citizen. McDole, 734 P.2d at 685. This Court explained "ifan arrestbya private citizen wouldbe lawful underthe existing circumstances, the arrest by an· officer out ofhisjurisdiction wouldbe lawful." McDole, 734 P.2d at 685. As in McDole, Woodland was clearly outside his jurisdiction when he stopped Hendrickson. When Woodland stopped Hendrickson and observed behavior indicative ofintoxication, he was acting as a private citizen under the authority of

### § 46-6-502, MCA. Woodland's actions following arrival ofOfficers Keirn and McManis Section 46-6-502(2), MCA, requires a private citizen to immediately notify local authorities andrelinquish custody to the officer or agency withjurisdiction. In support ofits
6argument that Woodland acted within his authority in conducting field sobriety tests, effecting an arrest and requesting a breathalyser, the State relies on our decision in Maney
v. State (1992), 255 Mont. 270, 842 P.2d 704, in which we affirmed an arrest where a Chinook Citypolice officer, after observing Maney driving erratically intown, followed him out oftown (outside the officer'sjurisdiction) where he observed further erratic driving. He then stopped Maney and conducted field sobriety tests in the presence ofa sheriffs deputy whohadarrived onthe scene. Maney, 842 P.2d at 705. The Chinookcitypolice officerthen transportedManeyto the Blaine County Sheriffs Office in Chinookwhere he requestedthat Maney take a breathalyser. Maney refused. His license was suspended as a result. Maney,· 842 P.2d at 705. On appeal, Maney relied on § 46-6-502(2), MeA, for his contention that the officer's arrest andrequest forbreathalyserwere illegal due to failure ofthe police officer to relinquish custody ofManeyto the sheriffs deputy who hadjurisdiction outside the city limits. Maney, 842 P.2d at 706. We determined that the officermaking the arrest was still
apeace officer for purposes ofthe implied consent statute even though he made the arrest as
a private citizen. Maney, 842 P.2d at 707. We noted that the police officer immediately notified the Blaine County Sheriffs Office andpromptly transported Maney to the sheriffs office for booking. "As soon as Officer Gomke entered the Chinook city limits he was within hisjurisdiction and it would make no sense to require Officer Gomke to transfer his prisonerto another officer who also hadjurisdiction." Maney, 842 P.2d at 706.

7The Maney decision does not specifically address the question ofwhether Officer Gomke's authority as a private citizen ceased upon the arrival of the sheriff's deputy, although the decision, bynecessary implication, certainly suggests that his authority did not
cease. Rather, Officer Gomke was allowed to continue with the field sobriety tests in the presence ofthe sheriff's deputy, to then transport Maney to the City of Chinook where Gomke hadjurisdiction, and then to request a breathalyser. Maney, 842 P.2d at 706. We
now conclude thatthis Court's holding in Maney is too broad in the scope ofauthority that it grants to a citizen's arrest pursuant to 

### § 46-6-502, MCA. Absent any exigent circumstances, when a citizen or out-of-jurisdictionpeace officer, actingas a citizen, makes
a stop orarrest, his orher authority to proceed ceases once a peace officer withjurisdiction arrives at the scene. Woodland exceededhis authority as a citizen when, after the arrival ofthe Bozeman police officers, instead ofrelinquishing custody to the officers, he conducted field sobriety tests, detained and arrested Hendrickson andrequested that he submit to a breathalyser. We concludethat any evidence obtainedbyWoodland (including the initialrefusal and/orresults ofthe breathalysertest) after the police officers arrived was obtained illegally and must be suppressed as requested by Hendrickson. To the extent that Maney suggests a contrary result, itis overruled. The State contends that Woodland had authority to assist peace officers from other jurisdictions. Section 46-6-402, MCA, provides that a peace officer making an arrest may
8,

## .
command the aid ofpersons 18 years ofage or older. In the present case, however, the Bozemanpolice officers did not command aid in "making a lawful arrest." Rather, it was Woodland acting as a citizen who was seeking assistance. In State v. Williams (1995), 273 Mont. 459, 904 P.2d 1019, this Courtheld that a peace officer from onejurisdiction could assist apeace officerin anotherifhis assistance were requested. Williams, 904 P.2d at 1022- 23. However, unlike the facts before this Court in Williams, there were no exigent circumstances requiring Woodland to engage in investigating and charging Hendrickson. See Williams, 904 P.2d at 1022. The Bozeman police officers arrived on the scene a relatively short time afterWoodlandhad stoppedHendrickson and had already commenced the field sobriety testing and arrest process. These officers were fully capable ofconducting the investigation and arrest on their own. This is not a situation where officers within their jurisdiction were pursuing a suspect or investigating a crime and, due to exigent circumstances, called upon Officer Woodland's assistance. Rather, this situation was initiatedbyWoodland as a result ofWoodland's observations while outside hisjurisdiction. Section 46-6-502(2), MCA, required Woodland to immediately notify the local authorities and relinquish custody ofHendrickson to Bozeman City Police. Indeed, beyondmaking the traffic stop, Woodland was not compelledto render assistance in this case. Once Keirn and McManis ofthe Bozeman City Police Department arrived, they had the authority and duty, to conduct any investigation and arrest.

9We hold that Woodland acted outside the authority given to a private citizen under § 46-6-502, MCA, by failing to tum Hendrickson over to the Bozeman City Police once Officers Keirn and McManis arrived on the scene. Woodland had no authority to conduct field sobriety tests, detain and arrest Hendrickson or request a breathalyser test once the Bozeman City Police were available to complete these tasks. Therefore, we affirm the District Court's conclusion that "[t]he field sobriety tests and so forth were illegal and unlawful." We hold that all evidence obtainedbyWoodland after Keirn and McManis had arrived on the scene must be suppressed. However, the fact that Woodland's arrest of Hendrickson was illegal and that evidence obtained incident to that arrest is inadmissable, does not mean that the charges against Hendrickson mustbe dismissed. An illegal arresthas no impact on a subsequentprosecution based upon evidence not taintedbythe illegality. The State canpursue a prosecution despite the manner ofthe arrest
so long as the evidence remaining is otherwise admissible. State v. Sor-Lokken (1991), 247 Mont. 343, 348,805 P.2d 1367,1370-71; State v. Woods (1983), 203 Mont. 401, 662 P.2d 579. Woods cited United States v. Crews (1980), 445 U.S. 463, 100 S.Ct. 1244,63 L.Ed.2d 537, in which the Court stated: "An illegal arrest, without more, has neverbeen viewed as
abarto subsequentprosecution, nor as a defense to a valid conviction." Crews, 445 U.S. at 474. The illegality ofthe detention does not deprive the government ofthe opportunity to prove guilt through the introduction ofevidence wholly untainted by police misconduct. Crews, 445 U.S. at 475. The fact thatWoodlandexceededhis authoritybynot relinquishing
10custody to the Bozeman City Police does not mean that his observations priorto that time cannot form the basis for a charge against Hendrickson. Woodland's Affidavit ofProbable Cause sets forth in great detail his observations ofHendrickson's difficulties while trying to
maneuverhis motorcycle in traffic, his slurred speech, red and watery eyes and the smell of alcohol on his breath. Even when the statement in the Affidavit that Hendrickson failed 5 of 5 field sobriety tests is excised, the balance ofthe Affidavit is sufficient to establish probable cause to charge Hendrickson with DUI. Accordingly, we affirm the District Court's conclusion that the tests conducted by Woodland were illegal and the results ofthose tests cannot be used against Hendrickson. However, we reverse the District Court's dismissal ofcharges against Hendrickson and remand this matterto the District Court for trial on the merits.

Justice We concur:

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