City of Whitefish v. Large11/25/2003
r, it is not disputed that the arrest was for a misdemeanor she committed elsewhere. The only matter in contention is whether or not for the purposes of § 46-6-105, MCA, Large's carport should have been considered part of her home so as to have precluded the officers from arresting her there without a warrant.
Although we are not aware of any decision addressing the question of whether a carport is considered part of the "home," there are a few decisions which provide some guidance. In Whalen, the defendant was arrested as he was straddling the threshold to the entrance of his home. City of Billings v. Whalen (1990), 242 Mont. 293, 295, 790 P.2d 471, 473. Since constitutional privacy protections begin at the "firm line" drawn at the entrance to the home, we concluded that the defendant was within the home when his body crossed that line and thus the warrantless misdemeanor arrest was illegal. Whalen, 242 Mont. at 298, 790 P.2d at 475. But when a sheriff arrested a defendant on the walkway outside of his home after responding to a report of drunken driving, we concluded the statute did not apply. State v. Ellinger (1986), 223 Mont. 349, 354, 725 P.2d 1201, 1204.
At common law, a police officer was forbidden to make an arrest for a misdemeanor committed outside of the officer's presence unless the officer had a warrant. Payton v. New York (1980), 445 U.S. 573, 591 n.30, 100 S.Ct. 1371, 1382 n.30, 63 L.Ed.2d 639, 653 n.30. A similar rule was codified in Montana requiring an endorsement by a magistrate to allow for nighttime arrests for misdemeanor offenses. Section 94-6003, RCM (1947); see e.g., State ex rel. Sadler v. Dist. Ct. et al. (1924), 70 Mont. 378, 387, 225 P. 1000, 1002. The law was changed in 1967 to allow warrantless arrests for misdemeanors at night, with an exception for the home or private dwelling place. Ch. 196, Sec. 1, 1967 Leg., § 95-607 RCM (1947) (now codified at § 46-6-105, MCA). The Commission Comments to the statute indicate:
his restriction was imposed to prevent the police from harassing a person or searching his home on the pretext of arresting him for a misdemeanor committed at some other time and place. Allowing the police to arrest for a misdemeanor at night can be an effective law enforcement tool provided it is not used as a sham to torment a citizen in his home.
Although carports may be structurally contiguous with the rest of a house or private dwelling, presence in the carport does not equate to presence in the "home." A carport does not afford the privacy and sanctuary associated with a house. Furthermore, although the view of the carport from the street was obstructed, there was nothing to prevent other condominium unit owners and their visitors from viewing the interior of Large's carport.
Large relies heavily on the statutory language "private dwelling," asserting that because the lot-lines of her condominium unit include her carport, she was necessarily within her private dwelling. While lot lines do give certain and concrete ownership rights recognized by law, see, Montana Unit Ownership Act, Title 70, Chapter 23, Montana Code Annotated, the right to be free from misdemeanor arrest at night is specifically reserved for the home, not the coterminous property appurtenant to the home. Furthermore, the protected interest in a condominium carport might best be recognized as a common element the use of which is reserved for a specific unit owner, rather than as part and parcel of the unit itself.
Sections 70-23-102(7)(c) and -102(8), MCA. Lastly, while there will certainly be an overlap between one's home and lot-lines of the property, merely being within the latter does not inexorably lead to a conclu
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