No. 05-567 IN THE SUPREME COURT OF THE STATE OF MONTANA 2006 MT 219

_______________________________________ STATE OF MONTANA, Plaintiff and Respondent,

v. EDWARD ELLINGTON, Defendant and Appellant.

______________________________________ APPEAL FROM: District Court of th e Eighteenth Judicial District, In and for the County of Gallatin, Cause No. DC 05-81 The Honorable Holly Brown, Judge presiding.

COUNSEL OF RECORD: For Appellant: Robert J. Quinn, Quinn Law Office, Bozeman, Montana For Respondent: Hon. Mike McGrath, Attorney Genera l; John Paulson, Assistant Attorney General, Helena, Montana Marty Lambert, County Attorn ey; Todd Whipple, Deputy County Attorney, Bozeman, Montana

____________________________________ Submitted on Briefs: July 26, 2006 Decided: September 6, 2006 Filed:

______________________________________ ClerkJustice Brian Morris delivered the Opinion of the Court. ¶1 Edward Ellington (Ellington) appeals from an order of the Eighteenth Judicial District, Gallatin County, denying his motion to suppress physical evidence seized from him by law enforcement officers. We reverse and remand. ¶2 Ellington presents the followi ng dispositive issue on appeal: ¶3 Whether law enforcement offi cers possessed the requisite probable cause to arrest Ellington. FACTUAL AND PROCED URAL BACKGROUND ¶4 Police obtained a search warrant to se arch Stacy Wizenburg’s (Wizenburg) car based on suspicion that she was engaged in the distribution of dangerous drugs. Detective Travis Swandal of the Gallatin County Sheriff’s Department observed Wizenburg’s car in the parkin g lot of Lucky Lil’s casino on West Main in Bozeman. Detective Swandal observed El lington leave the casino and approach the driver’s side window of Wizenburg’s car. Ellington was standing by Wize nburg’s car and talking with its occupants as Detective Swandal approach ed the car to serve the warrant. Ellington stepped away from Wizenburg’s car and began walking toward the casino when he saw Detective Swandal approaching. ¶5 Detective Swandal stopped Ellington and informed him that he was detaining Ellington pending a drug investigation involving Wizenburg’s car. An officer frisked Ellington for weapons, handcuffed him, and placed him in the backseat of Swandal’s patrol car. Officers did not discover any we apons or contraband on Ellington during the frisk. Officers informed Ellingt on that they were going to transport him to the Law and

2Justice Center for questioning. Ellington as ked whether he could drive himself to the Law and Justice Center and was in formed that he could not. ¶6 Detective Swandal transported Ellington to the Law and Justice Center and placed him in an interview room. He informed Ellington that he was not unde r arrest and began to remove Ellington’s handcuffs. Detectiv e Swandal noticed that Ellington’s fist was clenched and asked him to ope n his hand. When Ellington refused to unclench his fist, Detective Swandal physically opened Ellington’s hand an d discovered a baggie of methamphetamine. Detective Swandal then info rmed Ellington that he was under arrest for possession of methamphetamine and took him to the Gallatin County Detention Facility for booking. ¶7 The State charged Ellington with possession of dangerous drugs in violation of § 45-9-102, MCA. Ellington filed a motion to suppress the baggie of methamphetamine, arguing that officers lacked suffi cient cause to take him into custody and that he was the subject of an illegal arrest. The State c ountered that § 46-5-228, MCA, provided the authority for officers to detain Ellington temporarily pursuant to their search warrant, and that officers had a particularized suspicion sufficient to justify his detention under § 46-5- 401, MCA. The State further argued that offi cers had probable cause to make an arrest. Ellington filed a reply, wherein he challenge d the constitutionality of § 46-5-228, MCA. The State did not respond to this argument. ¶8 The District Court held an evidentiary h earing and denied Ellin gton’s motion. The District Court did not address Ellington’s co nstitutional challenge to § 46-5-228, MCA. Ellington entered a guilty plea to the charge a nd reserved his right to appeal the District

3Court’s denial of his motion to suppress. The District Court sentenced Ellington as a persistent felony offender to eight years at the Montana State Prison. Ellington appeals. STANDARD OF REVIEW ¶9 We review a district court’s denial of a motion to suppress to determine whether its findings of fact prove clearly erroneous and whether its interpretation and application of the law remain correct. State v. Pierce , 2005 MT 182, ¶ 12, 328 Mont. 33, ¶ 12, 116 P.3d 817, ¶ 12. A court’s findings prove clea rly erroneous if they are not supported by substantial evidence, the cour t misapprehended the effect of the evidence, or we are convinced by our review of th e record that the district court made a mistake. Pierce , ¶ 12. DISCUSSION ¶10 Ellington argues that the District Cour t erred in determin ing that officers possessed the requisite particularized suspic ion to detain and search him outside the casino. He further argues that officers arre sted him and th at they lacked probable cause to do so. He finally ar gues that the United States Supreme Court’s ruling in Ybarra v. Illinois , 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed .2d 238 (1979), renders § 46-5-228, MCA, unconstitutional. ¶11 The State counters that Detective Swanda l had a particularized suspicion that Ellington was engaged in wrongdoing sufficient to search and temporarily detain him. The State further asserts that Ellington’s tem porary detention did not constitute an arrest. The State finally argues that Ellington failed to present his constitutional challenge to § 46-5-228, MCA, to the District Court and is therefore barred from asserting it on appeal.

4¶12 We will address Ellington’s arrest argumen ts first, as their resolution proves dispositive. Section 46-6-104(1), MCA, provides that an “arrest is made by an actual restraint of the person to be a rrested or by the person’s s ubmission to the custody of the person making the arrest.” An arrest involves: (1) the authority to a rrest, (2) the assertion of that authority to effect an arrest, a nd (3) the restraint of the person arrested. State v.
Van Dort , 2003 MT 104, ¶ 12, 315 Mont. 303, ¶ 12, 68 P.3d 728, ¶ 12. ¶13 The “authority to arrest” me ans simply that the person making the arrest has the authority to do so, assuming for the moment that probable cause to arrest has been established. Van Dort , ¶ 12. Detective Swandal clearly had the authority to arrest Ellington. Officers restrained Ellington when they frisked him, handcuffed him, placed him in the back of the patrol car, and transported him to th e Law and Justice Center. We focus our inquiry, therefore, on whether Detective Swandal asserted his authority to arrest with intent to eff ect the arrest. ¶14 We accord “arrest” a broad de finition determined by whet her a reasonable person, innocent of any crime, would have felt free to walk away under the circumstances. Van
Dort , ¶ 14. Here the circumstances suggest th at a reasonable person, free of any crime, would have believed that he was under arrest, despite Detective Swandal’s statement to the contrary. Indeed, the State concedes as much, stating that “[i]t is true that Ellington was not free to walk away from Detective Sw andal under the circumstances.” Ellington was stopped by Detective Swandal as he was walking towards the casino, frisked, handcuffed, and placed in the back of a patrol car. When asked if he could drive his own car to the Law and Justice Center, officers informed him that he could not. Detective

5Swandal then transported Ellington to the Law and Justice Center and placed him in an interview room. ¶15 Reliance solely on Detective Swandal’s statement that Elli ngton was not under arrest would undermine the reasona bleness standard annunciated in Van Dort that requires consideration of a variety of fa ctors, including an officer’s actions. Van Dort , ¶ 16. Here, these factors demonstrate that De tective Swandal satisfied the requirement of an assertion of authority to arre st with the intent to effect an arrest. We turn then to the question of whether Detective Swandal ha d probable cause to arrest Ellington. ¶16 An officer must have probable caus e to justify a warrantless arrest. State v. Williamson , 1998 MT 199, ¶ 12, 290 Mont. 321, ¶ 12, 965 P.2d 231, ¶ 12. Probable cause exists where the facts and circumstan ces within an office r’s personal knowledge prove sufficient to warrant a reasonable person to believe that someone is committing or has committed an offense. Williamson , ¶ 12. Probable cause cannot be based on an officer’s mere suspicion of criminal activity. Williamson , ¶ 12. ¶17 The information within Detective Swanda l’s knowledge at the time he stopped Ellington consisted of seeing Ellington l eave the casino and begin talking with the occupants of Wizenburg’s car. Detective Sw andal suspected that Wizenburg was selling drugs out of her car. Detective Swandal sa w Ellington walk away from the car as he approached. Detective Swanda l stopped Ellington based on th ese facts alone. Detective Swandal did not yet know whether there were any drugs in Wizen burg’s car and he did not witness Ellington and the occupants of th e car exchange any items consistent with a drug sale.

6¶18 These facts fail to establish probable cause to arrest. Although Detective Swandal may have suspected that Ellington was invol ved in criminal activity, mere suspicion cannot establish pr obable cause. Williamson , ¶ 12. Witnessing Elli ngton talking to the occupants of a vehicle that Detective Sw andal had a warrant to search and then witnessing Ellington walk away from the ve hicle as he approach ed do not warrant Detective Swandal’s belief that Ellington wa s committing or had committed a crime. ¶19 We thus conclude that Detective Swa ndal arrested Ellington without probable cause. An unlawful arrest renders eviden ce seized as a product of that arrest inadmissible. City of Billings v. Whalen , 242 Mont. 293, 298, 790 P.2d 471, 475 (1990). Because we conclude that Ellington’s arrest was unlawful, we need not address whether officers possessed the requisite particularized suspicion to detain and search him outside the casino. In this regard, we note that the officers detain ed Ellington outside the casino, frisked him, and found no co ntraband. The temporary dete ntion should have ended at that point. The discovery of the contraband occurred, however, only after the officers had arrested Ellington and transporte d him to the Law and Justice Center. ¶20 The State’s alternative argument that § 46-5-228, MCA, sup ports Ellington’s detention provides the State with no safe har bor. As we noted, the officers’ temporary detention and frisk of Ellington outside the casino revealed no contraband. Section 46-5- 228, MCA, provides that an officer serving a search warrant “may reasonably detain and search any person on the premises being searched at the time of the search.” Nothing in § 46-5-228, MCA, authorized the officers, howe ver, to escalate any reasonable detention

7and search of Ellington into a full-fledged arrest absent a fi nding of probable cause. We therefore hold that the District Court erred when it denied Ellington’s motion to suppress. ¶21 Reversed and remanded for further proceed ings consistent with this opinion.

/S/ BRIAN MORRIS

We Concur:

/S/ JAMES C. NELSON /S/ PATRICIA COTTER /S/ JOHN WARNER /S/ W. WILLIAM LEAPHART

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