No. 13491 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsGEORGE BENBO , 

Defendant and Appellant. 

Appeal from: District Court of the Twelfth Judicial District, 

Honorable B. W. Thomas, Judge presiding. 

Counsel of Record: 

For Appellant: 

Donald A. Ranstrom argued, Chinook, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Allen Chronister argued, Assistant Attorney General, 

Helena 

William Solem, County Attorney, Chinook, Montana 

Submitted: April 13, 1977 

Decided : 

3CT 26 19771 

Filed: 3C) 26 'Yfl 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

~efendant George Benbo appeals from a conviction of felony 

theft under section 94-6-302(3), R.C.M. 1947, following a jury trial 

in the district court, Blaine County. 

On August 20, 1975, a complaint was signed and arrest warrant issued from the Cascade county justice court charging defendant 

with two counts of felony theft under section 94-6-302(1) (a), R.C.M. 

1947. Defendant was arrested in Blaine County, and without being 

arraigned there, he was immediately taken by the police to Yellowstone 

County to recover the stolen items. From there he was taken to 

Cascade County. He was later tried and convicted in Blaine County. 

Defendant's appeal contends the trial court should have 

granted a motion to suppress evidence and that he was denied effective assistance of counsel by his retained counsel at the pretrial 

and trial level. He contends the trial court should have granted 

his motion to suppress because the complaint and arrest warrant 

issued from Cascade County were defective because the Cascade County 

justice of the peace had no jurisdiction to issue them. He relies 

on section 95-1503(c)(4), R.C.M. 1947, which provides: "A charge 

shall * * * [state] the time and place of the offense as definitely 

as can be done * * *." He also contends the trial court should 

have granted the motion to suppress evidence of statements he allegedly made to the police while on the way to Yellowstone County 

fromBlaineCounty to recover the stolen guns. In this regard, he 

contends the police violated his rights under section 95-901(a), 

R.C.M. 1947, and 95-603 (d) (3), R.C.M. 1947, which provide that upon 

an arrest the person must be taken "without unnecessary delay" for 

an initial appearance before a judge in the county where the arrest 

is made. 

The facts leading up to defendant's arrest and conviction 

are : 
On August 8, 1975, approximately 30 handguns were stolen 

from the Coast to Coast hardware store in Great Falls, Montana, 

Cascade County. A semi-automatic rifle was also stolen from the 

weapons room of the Great Falls police department. Defendant was 

not involved in either burglary. 

The day after the burglaries, defendant was approached in 

Chinook, Montana, by John Bauman, his nephew by marriage. Bauman 

and his brother had earlier purchased the stolen weapons. Bauman 

asked defendant if he would be interested in buying some "merchandise" 

without indicating the nature of the "merchandise1'. Defendant indicated he would look at the "merchandise". At his own request, Bauman 

borrowed defendant's pickup truck, drove it to the point near Great 

Falls where the handguns had been cached, picked up the guns and 

returned to Chinook. On August 10, after examining the weapons at 

Bauman's brother's home in Chinook, defendant bought the handguns 

and took the semi-automatic rifle to sell on consignment. Defendant 

later brought the weapons to Billings, Montana. 

On August 19, 1975, the Bauman brothers were arrested in 

Chinook by officers of the Great Falls police department. The officers learned the weapons had been sold in Chinook to defendant, 

George Benbo. 

On August 20, 1975, a complaint was presented in Great Falls 

justice court, charging defendant with two counts of felony theft 

under section 94-6-302(1)(a), R.C.M. 1947, alleging the offenses 

had been committed in Great Falls. A warrant for defendant's arrest 

was issued by a Great Falls justice of the peace. 

On the afternoon of August 20, three Great Falls police 

officers drove to Chinook. The proceeded from there with a ~laine 

County deputy sheriff to a ranch south of Chinook in Blaine County 

where defendant was working. They arrived at the ranch at about 

8 o'clock that evening. Defendant identified himself, was placed 
under arrest, and given copies of the complaint and the arrest 

warrant, both of which he read. Defendant was told he had the 

right to remain silent and that anything he said could and would 

be used against him. He also was told he had the right to an attorney and if he could not afford an attorney, one would be provided 

for him. Defendant acknowledged he understood these rights. 

The officers told defendant they knew he had the guns and 

recovery of the guns would be in his best interest. Defendant admitted he had the guns and stated they were at his house in Billings. 

After the officers explained a warrant could be obtained allowing 

them to search the house, defendant indicated a search warrant would 

not be necessary, that he would voluntarily give them the guns. 

The officers then decided to go directly to Billings with 

defendant rather than returning immediately to Great Falls. Defendant went inside the ranch house to get his personal gear and returned 

with a small satchel. One of the officers opened the satchel and 

found a .36 caliber black powder pistol, one of the weapons taken 

in the Coast to Coast store burglary. 

The three Great Falls officers, with defendant in custody, 

left the ranch for Billings at about 9 o'clock p.m. The officers 

testified defendant was very cooperative and relaxed throughout the 

trip and that he freely engaged in a conversation covering a variety 

of topics. One of the officers testified he considered the conversation to be an interrogation of defendant, and conceded that although 

defendant was asked several times if he was "aware of his rights" 

the full "Miranda" warning was given only once, before the trip 

began. 

Defendant and the police officers arrived in ~illings 

shortly after midnight. After picking up a Yellowstone county 

deputy sheriff, they proceeded to defendant's house. ~efendant 

showed the officers the suitcase in which the pistols were kept, and 
told them the rifle was under the bed. The officers recovered the 

weapons, loaded them into the patrol car, and after stopping for a 

meal, drove to Great Falls, arriving there at 5:30 on the morning 

of August 21. 

The record does not disclosewhen, or whether, defendant 

was given an initial appearance before a judge in Cascade County. 

The action against defendant in that county was dismissed by the 

county attorney on September 3, 1975. The information under which 

defendant's conviction was obtained was filed in Blaine County on 

October 16, 1975. Defendant was found guilty on March 24, 1976. 

Following denial of his motion for a new trial, he appealed. 

By his motion to suppress, defendant sought to exclude all 

evidence gathered by the Great Falls police from the time he was 

arrested at the ranch. This included the gun found in the satchel, 

the guns recovered from his Billings house, and statements he allegedly made during the trip from the ranch to Great Falls, concerning his belief or knowledge that the guns had been stolen when 

he purchased them. After a hearing, the district court denied the 

motion. At trial all of the guns were admitted into evidence, and 

two of the arresting officers testified defendant told them he knew 

or believed the guns were stolen. In his testimony, defendant denied 

making any statements to the officers concerning the origin of the 

guns. 

Defendant first contends the motion to suppress should have 

been granted because the complaint issued from the Cascade county 

justice court was defective. The complaint states defendant committed felony theft on August 10, 1975, in Great ~alls, cascade 

County. Defendant contends the police knew at the time they applied 

for the arrest warrant out of Cascade County that he had nothing to 

do with the burglaries committed there and he had purchased the guns 

in Blaine County. Therefore, defendant argues the complaint fails 
to meet the requirement of section 95-1503(c)(4), R.C.M. 1947, that 

a charging document must state "the time and place of the offense 

as definitely as can be done." 

Here, however, the purpose of the complaint was not to 

charge the offense but to establish the basis for an arrest warrant. 

While the police knew defendant had purchased the guns in Blaine 

County, they also knew his truck was used to retrieve the handguns 

that had been hidden in Cascade County. One of the arresting officers testified the complaint and arrest warrant were issued out of 

Cascade County for that reason. 

In any event, the charging document was the Information 

filed in Blaine County subsequent to the dismissal of the Cascade 

County action, and its sufficiency is not questioned. The fact that 

the complaint places the offense in Cascade County does not invalidate either the complaint itself or the arrest warrant issued and 

served upon the complaint. 

Defendant's second challenge to the district court's denial 

of his motion to suppress is grounded on the failure of the arresting officers to take him before a Blaine County judge promptly after 

his arrest. 

Section 95-901(a), R.C.M. 1947, sets forth the duty of a 

person making an arrest to provide the arrested person with an initial appearance. In relevant part ik provides: 

" * * * If an arrest is made in a county other than 

the one in which the warrant was issued the arrested 

person shall be taken without unnecessary delay before the nearest and most accessible judge in the 

county where the arrest was made." 

Identical language, imposing the same duty, is found in section 95- 

603 (d) (3) , R.C.M. 1947. 

Defendant was arrested in Blaine County on the Cascade County 

warrant, taken from there to Yellowstone County and finally jailed 

in Cascade County. It does not appear the arresting officers made 
any attempt to bring defendant before any judge for the initial 

appearance required by section 95-901(a), R.C.M. 1947, and 95- 

603 (d) (3), R.C.M. 1947. 

The question becomes whether this failure to provide defendant with a prompt initial appearance is to have the effect of 

excluding the guns recovered and statements allegedly made after his 

arrest. 

The key requirement of these statutes is that an arrested 

person is to be taken before a judge "without unnecessary delay". 

The Revised Commission Comment to section 95-901 indicates the provision for an appearance before a judge in the county where the arrest 

is made is designed to reduce the time between the arrest and initial 

appearance. The Comment states: 

" * * * [This provision] allows a first appearance in 

the county where the arrest is made rather than 

forcing the arrested person to be removed to another 

county for the purpose of stating the charge and 

setting bail. I' 

This Court has considered the effect of a delay between arrest and initial appearance in a variety of factual situations. In 

Cline v. Tait, 113 Mont. 475, 129 P.2d 89 (1942), a false imprisonment action turned on whether a sheriff's failure to promptly take 

the plaintiff before a judge rendered the detention unlawful. This 

Court held that while the reasonableness of the length of the delay 

was a jury question, it was not unreasonable as a matter of law to 

wait until ordinary working hours before providing an initial appearance. The judgment was reversed, and following retrial, this 

Court again considered the question of the reasonableness of a delay 

between arrest and initial appearance. In Cline v. Tait, 116 Mont. 

571, 155 P.2d 752 (1945), emphasis was placed on evidence tending 

to show the sheriff did not intend to provide the plaintiff with 

a prompt initial appearance, rather than the time that transpired 

between arrest and initial appearance. 
In two cases concerning the admissibility of confessions 

made during a delay between arrest and initial appearance, this 

Court held such confessions are not rendered inadmissible solely by 

reason of the delay. In State v. Nelson, 139 Mont. 180, 189, 362 

P.2d 224 (1961), this Court, quoting from the New Jersey Supreme 

Court case, State v. Pierce, 4 N.J. 252, 72 A.2d 305, stated: 

"'A confession is not rendered inadmissible solely 

by reason of a delay in taking the arrested person 

before a magistrate but that circumstance becomes 

an important factor to be given serious consideration in determining whether or not the confession 

was voluntarily made. The mere failure to follow 

the procedural rule, however, does not of itself 

destroy the voluntariness of the confession if the 

abuses the rule seeks to prevent did not in fact 

take place. ' 'I 

In State v. White, 146 Mont. 226, 235, 405 P.2d 761 (1965), 

this Court cited Nelson with approval in holding that failure to 

meet the statutory requirement of a prompt initial appearance is 

not determinative of the admissibility of a confession made in the 

interim between arrest and initial appearance. 

The state contends defendant voluntarily agreed to turn over 

the stolen guns and voluntarily admitted he knew they were stolen 

when he purchased them, and the delay between his arrest and initial 

appearance therefore cannot have the effect of causing the guns and 

statements to be excluded. 

Under this reasoning, the statutory requirement of an initial appearance without unnecessary delay after an arrest is practically meaningless. Only when a defendant can affirmatively 

show statements, admissions, or confessions attributed to him were 

either not made at all, or were involuntarily made, would the failure to provide him with a prompt initial appearance be taken into 

account. This would put an almost impossible burden on a defendant. 

Furthermore, there would be no incentive for arresting officers 

to conform their procedures to statutory guidelines. 
Assurance that statements are voluntarily made is not the 

only objective of the requirement of a prompt initial appearance. 

In Nelson this Court considering a statute which required that a 

person arrested without a warrant was to be provided with an initial 

appearance without unnecessary delay, stated: 

"The purpose of this statute is to insure 

that the person arrested is advised of the charge 

against him in order to enable him to prepare a 

defense, and to protect him from being held incommunicado for protracted periods of time." 139 

Mont. 188. 

The full range of protections afforded a prisoner at an initial appearance is set forth in section 95-902, R.C.M. 1947. The 

duty of the court is: 

"The judge shall inform the defendant: 

" (a) Of the charge against him; 

" (b) Of his right to counsel; 

" (c) Of his right to have counsel assigned by a 

court of record, in accordance with the provisions 

of section 95-1001; 

"(d) That he is not required to make a statement 

and that any statement made by him may be offered 

in evidence at his trial; 

"(e) Admit the defendant to bail in accordance with 

the provisions of this code." 

It is necessary the defendant be informed of these rights 

by the court. The fact that an arrested person is read his "Miranda" 

rights by the arresting officers, as in the present case, does not 

release the officers from their obligation to provide that person 

with an initial appearance before a judge. Miranda v. Arizona, 

384 U.S. 436, 86 S.Ct. 1602, 16 L Ed 2d 694, 717 (1966); Commonwealth 

v. Tingle, 451 Pa. 241, 301 A.2d 701, 703 (1973). 

As the Montana cases cited above indicate, this Court has 

not previously emphasized the importance of the statutory requirement 

of a prompt initial appearance. 

In false imprisonment cases, this requirement has been con- 
sidered in the context of the reasonableness of the length of the 

delay between arrest and initial appearance. Cline v. Tait, 113 

Mont. 475, 129 P.2d 89 (1942); Cline v. ~ait, 116 Mont. 571, 155 

P.2d 752 (1945); Rounds v. Bucher, 137 Mont. 39, 349 P.2d 1026 

In cases involving confessions made during the interim between arrest and initial appearance, the requirement of a prompt 

initial appearance has been considered in the context of the voluntariness of the confession. State v. Nelson, supra; State v. White, 

supra. 

In a criminal case not involving the admissibility of a confession, a 21 day delay between arrest and initial appearance was 

found to have not prejudiced the defendant in the presentation of 

his defense at trial. The delay was treated as having no effect 

on the defendant's conviction, and this Court indicated the only 

remedy available to the defendant was a possible false imprisonment 

action. State v. Johnston, 140 Mont. 111, 114, 367 P.2d 891 (1962). 

By their terms sections 95-603(d)(3), R.C.M. 1947, and 95- 

901(a), R.C.M. 1947, impose a duty on persons making an arrest to 

take their prisoner "without unnecessary delay before the nearest 

and most accessible judge" in the county where the arrest is made. 

It is time to recognize the importance of this requirement. 

The Supreme Court of Pennsylvania has developed a test for determining whether evidence obtained during a delay between arrest 

and initial appearance will be excluded. In Commonwealth v. Futch, 

447 Pa. 389, 290 A.2d 417, 419 (1972), that court stated: 

"This Court has similarly been conscious 

of the possible adverse effects of police conduct 

which deviates from the unequivocal language of 

Rule 118 [which requires an initial appearance 

without unnecessary delay]. We have held that 

failure to comply with Rule 118 does not ipso 

facto render inadmissible evidence obtained by the 

police during the 'unnecessary delay' and that it 

is incumbent upon defendant to show some prejudice 
from the delay. [Citing cases.] While this Court 

has never articulated precisely what constitutes 

'prejudice' in the context of 'unnecessary delay' 

proscribed by Rule 118, we think it appropriate 

to follow the federal amroach L a. and exclude all 

evidence obtained during 'unnecessary delay' except that which * * * has no reasonable relationship to the delay whatsoever." (Emphasis and 

paraphrased material added.) 

Having considered the language of sections 95-603(d)(3), 

R.C.M. 1947, and 95-901(a), R.C.M. 1947, and the purposes for their 

requirement of a prompt initial appearance that have been articulated by this and other courts, we approve the test set forth above. 

Henceforth, the effect of a failure to take a person before 

a judge without unnecessary delay after his arrest is to be determined as follows: When a defendant bases a motion to suppress 

evidence upon a claim that he was not provided a prompt initial 

appearance, the burden is first on the defendant to show the delay 

was unnecessary. The district court should focus on the diligence 

of the persons who made the arrest in bringing the defendant before 

the nearest and most accessible judge. While the length of the 

time between arrest and initial appearance is not determinative 

of the "necessity" of the delay, it is a factor to be considered. 

Once a defendant has established the delay was unnecessary, 

the burden shifts to the prosecution. The state must show the 

evidence obtained during the delay was not reasonably related to 

the delay. Absent such a showing the evidence will be excluded. 

Applying this test to the facts of the instant case, we 

conclude the pistol found in defendant's satchel before the trip 

to Billings began was properly admitted. The recovery of this 

pistol was in no way related to the delay between arrest and initial appearance caused by the failure of the arresting officers to 

take defendant before the nearest and most accessible judge subsequent to his arrest. 

The weapons taken from defendant's Billings house and the 
statements he allegedly made while being taken from the ranch where 

he was arrested and ultimately to Great Falls, however, should have 

been excluded. The delay was unnecessary. The arresting officers 

made no attempt to find an available judge in Blaine County after 

the arrest there. They made no attempt to find a judge in Yellowstone County after they had taken defendant to Billings to recover 

the stolen guns. The officers took no action indicating in any way 

they intended to provide defendant with a prompt initial appearance. 

There is no record that defendant was brought before a judge for an 

initial appearance after he was taken to Great Falls. 

The statements allegedly made by defendant during the trip 

from the ranch to Billings concerning his knowledge or belief that 

the guns were stolen were reasonably related to the delay between 

arrest and initial appearance. The fact that defendant was cooperative after his arrest does not operate as a waiver of his right to 

an initial appearance and cannot be used to excuse the officers' 

failure to bring him without unnecessary delay before the nearest 

and most accessible judge. It is bare conjecture to claim that 

defendant's waiver of his right to remain silent and his right to 

counsel at that point reflects what he would have said had he been 

promptly brought before a judge. One of the purposes of the initial 

appearance is to give a defendant the opportunity to be judicially 

informed of the charge against him. Here, the Cascade County complaint which defendant read immediately after his arrest, alleged 

he had stolen the guns in Great Falls. Only after defendant was 

told by the arresting officers that they knew he had not taken the 

guns did defendant admit to having them. The effect of this assurance 

is unknown, but a judge's explanation of what the complaint on its 

face indicated would have eliminated any possible doubt concerning 

the nature or gravity of the offense charged. 

Since we hold for the above reasons that the district court 
should have granted defendant's motion to suppress the evidence 

gathered in Billings and statements defendant allegedly made to 

the arresting officers, it is unnecessary to determine whether 

defendant's conviction should be reversed on the ground of inadequacy of counsel. 

The judgment is reversed and defendant granted a new trial 

in accordance with this opinion. 

We Concur: