NO. 89-513 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

CITY OF BILLINGS, 

Plaintiff and Appellant, 

-vsTIMOTHY J. WHALEN, 

-. . . Defendant, Respondent, and ~ross-~~~el~-~nt, -, 

t-% 

APPEAL FROM: District Court of the Thirteenth Judicial. .a ~isrict, -s 

In and for the County of Yellowstone, cz ~2 

The Honorable Robert Holmstrom, Judge &esiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Jennifer Anders, Asst. Atty. General, Helena 

Russell C. Fagg, City Prosecutor, Billings, Montana 

For Respondent: 

Michael J. Whalen, Billings, Montana 

Filed: 

Submitted on Briefs: Feb. 9, 1990 

a Decided: April 5, 1990 

Clerk 
Justice William E. Hunt, Sr., delivered the Opinion of the Court. 

Plaintiff and appellant, the City of Billings, appeals from 

an order of the District Court of the Thirteenth Judicial District, 

Yellowstone County, which granted the motion to suppress all 

evidence against the defendant, Timothy J. Whalen and denied the 

defendant's motion to dismiss the complaint for lack of speedy 

trial. We affirm the District Court order on the motion to 

suppress and dismiss defendant's cross-appeal of the order for lack 

of jurisdiction. The issues raised on appeal are: 

(1) Did the District Court err in granting defendant's motion 

to suppress evidence obtained from an illegal arrest in violation 

of 5 46-6-105, MCA? 

(2) Does this Court have jurisdiction over defendant s crossappeal to dismiss the complaint for lack of speedy trial? 

On October 28, 1988, at approximately 10:15 p.m., the 

defendant was driving north on North 31st Street in Billings, 

Yellowstone County, Montana. It was dark outside. As he reached 

8th Avenue North, defendant made a left-hand turn onto 8th Avenue 

and continued to travel along 8th Avenue in a westerly direction. 

While he was in the process of making his left-hand turn, defendant 

observed a police car traveling in an easterly direction on 8th 

Avenue. 

The officer driving the police car stated that defendant, "cut 

the corner," when making the left-hand turn. Such activity is a 

misdemeanor traffic violation. Because of this activity, the 

officer made a U-turn with his vehicle and followed defendant to 

his home which was approximately two blocks from the point 

defendant made the questioned left-hand turn. During the time the 

officer followed the defendant he did not observe anything unusual 

in defendant s manner of driving. At no time while he was 

following defendant did the officer activate the siren or the 

overhead lights on his vehicle. 
Defendant arrived at home and pulled into his driveway. He 

parked his car, walked to the front door, opened the outer or storm 

door and began to enter the house. While defendant was performing 

these activities he noticed the officer's police car pull into his 

driveway behind his parked car, still with no lights or siren. 

Defendant was in a position of straddling the threshold of his home 

when the officer approached defendant from behind and shouted or 

called to the defendant to hold on or wait. It is unclear from 

the record if at that point the officer physically restrained 

defendant from entering the house or if such restraint occurred 

after the officer asked defendant for his driver's license and 

defendant attempted to enter the house to obtain the license. In 

either event, the officer placed his hands on the defendant to 

prevent the defendant from entering the house. Defendant described 

the restraint as being pulled from the house and the officer 

described the restraint as "guidingw the defendant. 

The officer asked defendant for evidence of insurance and 

registration. As they walked toward defendant's car a second 

police vehicle had arrived. The officer asked defendant to perform 

certain field sobriety tests after which defendant was handcuffed 

and placed in the officer's police vehicle. Defendant was taken 

to the Yellowstone County Courthouse where a video tape DUI 

interview was conducted. 

Defendant was charged with a DUI offense. On December 30, 

1988, defendant was tried in City Court and was convicted on 

January 16, 1989. On January 16, 1989, the defendant appealed his 

conviction to District Court. On January 24, 1989, an omnibus 

hearing was set for April 18, 1989 and a trial date of May 8, 1989. 

The District Judge issued a new order setting the omnibus hearing 

for September 1, 1989 and trial for September 18, 1989. 

On August 31, 1989, defendant filed consolidated motions to 

suppress evidence and dismiss the complaint with an alternative 

request for an evidentiary hearing. On September 14, 1989, the 

District Court granted defendant's motion to suppress all evidence 

on the grounds that defendant was illegally arrested and denied 
defendant's motion to dismiss the complaint due to denial of speedy 

trial. The State appeals the District Court's order granting 

defendant's motion to suppress. Defendant cross-appeals the 

District Court order denying defendant's motion to dismiss. 

The first issue raised on appeal is whether there is 

sufficient evidence of the elements of 5 46-6-105, MCA, to support 

the District Court's conclusion that a violation of such statute 

occurred which resulted in the illegal arrest of the defendant. 

The statute states in relevant part: 

An arrest may be made on any day and at any time of the 

day or night, except that a person cannot be arrested in 

his home or private dwelling place at night for a 

misdemeanor committed at some other time and place unless 

upon the direction of a magistrate endorsed upon a 

warrant of arrest. 

Section 46-6-105, MCA. 

This statute is a codification of the Montana and United 

States Constitutional protection privacy that, It absent 

exigent circumstances, a warrantless arrest for a minor 

(misdemeanor or nonviolent) crime cannot be made in the defendant's 

home without a warrant." State v. Beach, 217 Mont. 132, 147, 705 

P.2d 94, 103 (1985); (citing Welsh v. Wisconsin, 466 U.S. 740, 104 

S.Ct. 2091, 80 L.Ed.2d 732 (1984); Payton v. NY, 445 U.S. 573, 100 

S.Ct. 1371, 63 L.Ed.2d 639 (1980) .) See U.S. Const. Amend. IV; 

1972 Mont. Const. Art. 11, Sec. 10. 

In order for 5 46-6-105, MCA to apply to the facts of this 

case it must be shown that the defendant was arrested in his home 

or private dwelling at night for a misdemeanor committed at some 

other time and place. It is undisputed that the encounter between 

the defendant and the officer occurred at night and would not have 

occurred but for an alleged misdemeanor violation. The remaining 
elements of arrest, home or dwelling place, and the commission of 

the misdemeanor at another time and place are in dispute. 

The first question to be answered is whether the encounter 

that occurred between the defendant and the officer rose to the 

level of an arrest. Section 46-6-101(1), MCA, defines an arrest 

as the "taking [of] a person into custody in a manner authorized 

by law.'' Section 46-6-104(1), MCA, requires that an arrest be 

"made by an actual restraint of the person to be arrested." 

(Emphasis added.) In the previous case of State v. Thornton, 218 

Mont. 317, 708 P.2d 273 (1985), this Court adopted three elements 

necessary to formulate an arrest. 

An arrest involves three elements: (1) authority to 

arrest; (2) assertion of that authority with intention 

to affect an arrest; and (3) restraint of the person 

arrested. 

Thornton, 708 P.2d at 277. 

In this case, the officer clearly had the authority to make 

an arrest. It appears that the officer went to defendant's home 

in order to make an arrest for the left-hand turn. 

The actual restraint by a person is based upon an objective 

analysis of the surrounding circumstances. 

The standard for an arrest when there is not a physical 

restraint of the defendant is whether a reasonable 

person, innocent of any crime, would have felt free to 

walk away under the circumstances. (Emphasis added.) 

Thornton, 708 P.2d at 277, 278. 

It is reasonable under the circumstances of this case that 

the defendant would not have felt free to leave the officer's 

presence regardless of whether the physical contact between the 
defendant and the officer rose to the level of physical contact. 

The officer testified that he made demands on the defendant and 

expected the defendant to obey these demands. These expectations 

by the officer give rise to the presumption that the officer acted 

in such a way as to make a reasonable person believe that he must 

obey. Defendant testified that he believed he must obey. The 

District Court found that the restraint rose to the level of an 

arrest. 

The second question is whether the arrest occurred at the home 

or dwelling of the defendant. A person's privacy is protected from 

search and seizure intrusions without a warrant if it is reasonable 

to expect privacy under the surrounding circumstances. Katz v. 

United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). 

A person has such a reasonable expectation of privacy while in his 

home. The U.S. Supreme Court has concluded that these privacy 

protections begin at the "firm line" drawn at the entrance to the 

home. Payton v. N.Y., 445 U.S. at 590, 100 S.Ct. at 1382, 63 

L.Ed.2d at 653. At the very least, under the Federal Constitution, 

if a person has substantially crossed this firm line, they have 

been deemed to have entered the home and it is reasonable to expect 

privacy. 

In this case, the District Court found ample support in the 

record to reach the conclusion that the defendant was "~traddling'~ 

the threshold to his home when he was confronted by the officer. 

Thus, defendant's body had broken the firm line defined at the 

home's entrance. There is substantial credible evidence to support 
the District Court's decision that the defendant had entered his 

home or dwelling place. 

The third and last element to be discussed regarding the 

application of 5 46-6-105, MCA, to this case is whether the 

misdemeanor offense occurred "at some other time and p1ace.I' 

Section 46-6-105, MCA. In this case, there is no question the 

misdemeanor offense of an allegedly illegal left-hand turn occurred 

other that at the defendant's home. 

The District Court conclusion that the officer violated 5 46- 

6-105, MCA, by arresting the defendant in his home at night without 

a warrant for a misdemeanor that was committed at some other time 

and place is supported by substantial credible evidence and applied 

correctly as a matter of law. Such violation resulted in an 

illegal arrest from which any resulting evidence must be suppressed 

as being "tainted." "Evidence . . . in order to be admissible, 

must be the product of a search, incident to a lawful arrest, since 

the officer had no search warrant." State v. Armstrong, 149 Mont. 

470, 478, 428 P.2d 611, 615 (1967) . 

Because this arrest was illegal, all evidence against 

defendant seized as a result of such arrest is inadmissible. 

The second issue to be addressed is whether this Court has 

juridiction over defendant's cross-appeal to dismiss the complaint 

for lack of speedy trial. "An appeal may be taken by the defendant 

only from a final iudment of conviction and orders after judgment 

. . .It (Emphasis added.) Section 46-20-104, MCA, see Rule l(d), 

M.R.App.P. 
Section 46-1-201, MCA, defines judgment as Ifan adjudication 

by the court that the defendant is suiltv or not suiltv . . . 11 

(Emphasis added.) In this case, there has been no determination 

by the District Court as to defendantfs guilt or innocence of the 

offense charged. The appeal is premature. 

The order of the District Court is affirmed and the crossappeal is dismissed without prejudice. , 

@@%&& Justices