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State v. Kallowat12/21/2000
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DISCUSSION
6 The issue on appeal is whether the person who arrested Kallowat had probable cause to do so?
7 The district court's denial of a motion to dismiss is based on a legal conclusion which we review to determine if it was correct. State v. Bullock (1995), 272 Mont. 361, 368, 901 P.2d 61, 66.
8 According to Montana law, a police officer can stop a citizen based on particularized suspicion in order to determine whether there is probable cause to arrest. Section 46-6-311(1), MCA (1997). However, "a private person may arrest another when there is probable cause to believe that the person is committing or has committed an offense and the existing circumstances require the person's immediate arrest. Section 46-6-502(1), MCA (1997). Therefore, although an officer may stop a person based solely on particularized suspicion, a private person or an out-of-jurisdiction police officer may only arrest or detain a person based on probable cause and finding the existing circumstances require immediate arrest. Kallowat contends that probable cause did not exist until Ostrander removed him from his vehicle and that by that time his rights had already been violated. In addition, he contends that even if there was probable cause there were no circumstances which required his immediate arrest.
9 We conclude sufficient facts were evident to Ostrander to provide probable cause for Kallowat's arrest. Kallowat's vehicle was parked on the sidewalk. Kallowat and his passengers were passed out and Kallowat could not be immediately revived. The keys were in the ignition and the radio was on. A bottle of alcoholic beverages was between Kallowat's legs. Furthermore, the facts demonstrated a need for immediate action. Ostrander had no way to know how soon Kallowat would awaken and attempt to operate his vehicle. Kallowat had what could be used as a weapon in his possession. Immediate restraint until a tribal officer could take custody was the only reasonable course of action.
10 For these reasons, we affirm the order and judgment of the District Court.
We Concur:
JIM REGNIER
JAMES C. NELSON
W. WILLIAM LEAPHART
KARLA M. GRAY
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