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State v. May3/2/2004
their assertion of authority to make a private person arrest by detaining May satisfy the first two Widenhofer arrest factors.
As to the third arrest factor, the State points out that the record does not suggest May sought to leave the visitors center. However, the record also supports a conclusion that, under all the facts and circumstances of May's detainment, a reasonable person would not have felt free to walk away. It is undisputed that the Malmstrom visitors center is a law enforcement facility. Indeed, Highway Patrol Officer Gasvoda testified at the District Court hearing that the woven mat at the entrance to the visitors center displays a prominent shield insignia and block lettering reading "LAW ENFORCEMENT." Further, during the time the airmen detained May, they retained possession of her driver's license, registration and proof of insurance. Without her driver's license, registration and proof of insurance, May could not legally have driven away. Under these facts and circumstances, we conclude the airmen's detention of May constituted an arrest by private citizens.
We now turn to the question of whether there was adequate cause for the airmen to detain and arrest May. Pursuant to § 46-6-502, MCA, a private person may arrest another only if there is probable cause to believe that the person being arrested is committing or has committed an offense and the existing circumstances require the person's immediate arrest. The test applicable to a private citizen arrest is whether a reasonable person, under personally known facts and circumstances, is warranted in believing that someone is committing or has committed an offense. State v. Williamson , 1998 MT 199, 16, 290 Mont. 321, 16, 965 P.2d 231, 16 (citations omitted). In the present case, the offense at issue is DUI.
Here, the record indicates the airmen's sole basis for detaining May was the smell of alcohol. The airmen reported no driving behavior or other indicators that May was even intoxicated, much less driving while impaired. The State does not claim that the odor of alcohol--standing alone--constituted probable cause for May's arrest. In State v. Olson (1979), 180 Mont. 151, 589 P.2d 663, we held that the odor of burning marijuana, standing alone, did not establish probable cause to issue a search warrant. We hold that the odor of alcohol emanating from May's person, standing alone, was insufficient to establish probable cause for her arrest by private citizens.
Because we have concluded the prosecution did not establish probable cause for the airmen's detention of May, which constituted an arrest, we hold that her arrest was illegal. As a result, all evidence obtained as a result of the arrest must be suppressed. See State v. New (1996), 276 Mont. 529, 535, 917 P.2d 919, 922-23.
We reverse the District Court's denial of the motion to suppress and remand for further proceedings consistent with this Opinion.
KARLA M. GRAY
We concur:
PATRICIA O. COTTER
JOHN WARNER
JAMES C. NELSON
JIM REGNIER
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