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 the 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 General; John Paulson, Assistant Attorney 

General, Helena, Montana 

Marty Lambert, County Attorney; Todd Whipple, Deputy County 

Attorney, Bozeman, Montana 

____________________________________ 

 Submitted on Briefs: July 26, 2006 

Decided: September 6, 2006 

Filed: 

______________________________________ 

Clerk 
Justice 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 following dispositive issue on appeal: 

¶3 Whether law enforcement officers possessed the requisite probable cause to arrest 

Ellington. 

FACTUAL AND PROCEDURAL BACKGROUND 

¶4 Police obtained a search warrant to search 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 parking lot of Lucky Lil’s casino on West Main in Bozeman. 

Detective Swandal observed Ellington leave the casino and approach the driver’s side 

window of Wizenburg’s car. Ellington was standing by Wizenburg’s car and talking with 

its occupants as Detective Swandal approached 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 weapons or contraband on Ellington during the 

frisk. Officers informed Ellington that they were going to transport him to the Law and 

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Justice Center for questioning. Ellington asked whether he could drive himself to the 

Law and Justice Center and was informed 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 under arrest and began 

to remove Ellington’s handcuffs. Detective Swandal noticed that Ellington’s fist was 

clenched and asked him to open his hand. When Ellington refused to unclench his fist, 

Detective Swandal physically opened Ellington’s hand and discovered a baggie of 

methamphetamine. Detective Swandal then informed 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 sufficient cause to take him into custody and that he was the 

subject of an illegal arrest. The State countered 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 officers had probable cause to make an arrest. 

Ellington filed a reply, wherein he challenged the constitutionality of § 46-5-228, MCA. 

The State did not respond to this argument. 

¶8 The District Court held an evidentiary hearing and denied Ellington’s motion. The 

District Court did not address Ellington’s constitutional challenge to § 46-5-228, MCA. 

Ellington entered a guilty plea to the charge and reserved his right to appeal the District 

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Court’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 clearly erroneous if they are not supported by 

substantial evidence, the court misapprehended the effect of the evidence, or we are 

convinced by our review of the record that the district court made a mistake. Pierce, ¶ 

12. 

DISCUSSION 

¶10 Ellington argues that the District Court erred in determining that officers 

possessed the requisite particularized suspicion to detain and search him outside the 

casino. He further argues that officers arrested him and that they lacked probable cause 

to do so. He finally argues 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 Swandal had a particularized suspicion that 

Ellington was engaged in wrongdoing sufficient to search and temporarily detain him. 

The State further asserts that Ellington’s temporary 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. 

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¶12 We will address Ellington’s arrest arguments 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 arrested or by the person’s submission to the custody of the 

person making the arrest.” An arrest involves: (1) the authority to arrest, (2) the assertion 

of that authority to effect an arrest, and (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” means 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 the Law and Justice Center. We 

focus our inquiry, therefore, on whether Detective Swandal asserted his authority to arrest 

with intent to effect the arrest. 

¶14 We accord “arrest” a broad definition determined by whether a reasonable person, 

innocent of any crime, would have felt free to walk away under the circumstances. Van 

Dort, ¶ 14. Here the circumstances suggest that 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 Swandal 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 

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Swandal 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 Ellington was not under 

arrest would undermine the reasonableness standard annunciated in Van Dort that 

requires consideration of a variety of factors, including an officer’s actions. Van Dort, ¶ 

16. Here, these factors demonstrate that Detective Swandal satisfied the requirement of 

an assertion of authority to arrest with the intent to effect an arrest. We turn then to the 

question of whether Detective Swandal had probable cause to arrest Ellington. 

¶16 An officer must have probable cause 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 circumstances within an officer’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 Swandal’s knowledge at the time he stopped 

Ellington consisted of seeing Ellington leave the casino and begin talking with the 

occupants of Wizenburg’s car. Detective Swandal suspected that Wizenburg was selling 

drugs out of her car. Detective Swandal saw Ellington walk away from the car as he 

approached. Detective Swandal stopped Ellington based on these facts alone. Detective 

Swandal did not yet know whether there were any drugs in Wizenburg’s car and he did 

not witness Ellington and the occupants of the car exchange any items consistent with a 

drug sale. 

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¶18 These facts fail to establish probable cause to arrest. Although Detective Swandal 

may have suspected that Ellington was involved in criminal activity, mere suspicion 

cannot establish probable cause. Williamson, ¶ 12. Witnessing Ellington talking to the 

occupants of a vehicle that Detective Swandal had a warrant to search and then 

witnessing Ellington walk away from the vehicle as he approached do not warrant 

Detective Swandal’s belief that Ellington was committing or had committed a crime. 

¶19 We thus conclude that Detective Swandal arrested Ellington without probable 

cause. An unlawful arrest renders evidence 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 detained Ellington outside the casino, 

frisked him, and found no contraband. The temporary detention should have ended at 

that point. The discovery of the contraband occurred, however, only after the officers 

had arrested Ellington and transported him to the Law and Justice Center. 

¶20 The State’s alternative argument that § 46-5-228, MCA, supports Ellington’s 

detention provides the State with no safe harbor. 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, however, to escalate any reasonable detention 

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and search of Ellington into a full-fledged arrest absent a finding 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 proceedings 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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