06/28/2016
DA 15-0444 Case Number: DA 15-0444
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 159N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DAWNALEE ELLIS-PETERSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 13-346 Honorable Russell C. Fagg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Benjamin J. LaBeau, LaBeau Law Firm, L.L.C., Billings, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana
Scott D. Twito, Yellowstone County Attorney, Victoria Callender, Deputy Yellowstone County Attorney, Billings, Montana
Submitted on Briefs: April 27, 2016
Decided: June 28, 2016
Filed:
__________________________________________ Clerk Justice Patricia Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 On April 29, 2013, at approximately 7:15 in the morning, Officers Edwards and
Beck of the Billings Police Department were dispatched to investigate a report about an
intoxicated woman riding a horse. The officers found the woman, Dawnalee
Ellis-Peterson (Ellis-Peterson), walking alongside her horse, and they observed that she
was stumbling and had difficulty maintaining her balance. Officer Edwards was close
enough to Ellis-Peterson to notice that her breath smelled of alcohol, and both officers
noticed that her speech was slurred. Based on her behavior, the officers suspected that
Ellis-Peterson was intoxicated, but because she was not committing a crime, they allowed
her to leave the area. The officers observed that she was physically unable to mount her
horse, and after repeated unsuccessful attempts to stay on the horse, she led it away from
the area. During this encounter, Officers Beck and Edwards checked Ellis-Peterson’s
identification and learned that her driver’s license was suspended.
¶3 Approximately two hours later, around 9:40 a.m., an unidentified female called
911 and complained to the dispatcher that she should be able to ride a horse without
being pulled over by police. The dispatcher informed Officers Edwards and Beck of the
call and asked them to perform a welfare check on the woman. The officers responded to
2 her residence, but were initially unable to make contact with the woman. They knocked
on the front and back doors of the house and on several windows and stood on the porch
and called to her. After a few minutes without a response from the woman, the officers
started to walk away from the home when a neighbor, Lori Miller (Miller), informed the
officers that the woman was indeed inside. The officers renewed their attempts to contact
the woman and were eventually successful.
¶4 The woman appeared in the window, and the officers immediately recognized her
as Ellis-Peterson. She was stumbling inside the house and had to prop herself up on the
window as she spoke to the officers. She still spoke with a heavy slur, and it was the
officers’ impression that she was intoxicated. When the officers inquired about her
welfare, she responded that she was “okay,” was “just drunk,” and would like to be left
alone. The officers determined that she was not in need of their help, so they began
walking away. As they were leaving, Ellis-Peterson opened the door and appeared,
naked, to yell incoherently at them.
¶5 The officers did not react to Ellis-Peterson, but instead went to speak to the
neighbor, Miller, who was still standing nearby. Because Ellis-Peterson appeared to the
officers to be extremely intoxicated, the officers asked Miller to call 911 if she observed
Ellis-Peterson leave in a vehicle. Approximately 20 minutes later, at 10:11, Miller called
911 to report that Ellis-Peterson had just left her residence in a green Toyota pickup and
was heading southbound on Jefferson. The 911 dispatcher gave officers a description of
the vehicle and the license plate numbers, and because Officer Beck was nearby, he
3 responded to the area almost immediately. Officer Edwards also responded to the area as
a “cover” or “backup” officer.
¶6 As soon as Officer Beck saw Ellis-Peterson drive by his location, he activated his
lights and began following her. Ellis-Peterson drove past many places where it would
have been safe to pull over but she did not stop, so Officer Beck activated his siren.
Ellis-Peterson continued driving until she pulled into the parking lot of Cabela’s,
meandered through the parking lot past available parking places, and then parked
incorrectly in a parking space near the front of the store. Officer Beck approached the
vehicle, and because the window was not rolled down, he opened the driver’s side door.
He immediately smelled a strong odor of alcohol. Officer Beck determined that
Ellis-Peterson was a threat to public safety because she had been initially uncooperative
in pulling over, because she was driving on a suspended license, and because he had
personal knowledge that she was likely intoxicated. Officer Beck arrested Ellis-Peterson
for driving under the influence. He did not have her perform any field sobriety tests at
this point because he was “extremely comfortable” that the information he had was
sufficient to justify the arrest.
¶7 On May 10, 2013, Ellis-Peterson was charged with felony driving under the
influence (DUI), misdemeanor driving while license is suspended or revoked, and
misdemeanor driving without liability protection in place. On July 23, 2013,
Ellis-Peterson filed a motion to suppress all evidence gained after her arrest, arguing that
her arrest was illegal because Officer Beck did not have probable cause to arrest her for
DUI. The District Court denied her motion after holding a hearing. Ellis-Peterson then
4 entered a plea agreement with the state, whereby she pled guilty to DUI and the state
moved to dismiss the two misdemeanor offenses. Ellis-Peterson reserved her right to
appeal the District Court’s order denying her motion to suppress evidence. The District
Court sentenced her to 13 months with the Department of Corrections, followed by a
four-year suspended sentence. Ellis-Peterson now appeals the denial of her motion to
suppress evidence. We review a district court’s denial of a motion to suppress evidence
to determine whether its findings of fact are clearly erroneous and its conclusions of law
are correct. State v. Braulick, 2015 MT 147, ¶ 13, 379 Mont. 302, 349 P.3d 508.
¶8 “A peace officer may arrest a person when a warrant has not been issued if the
officer has probable cause to believe that the person is committing an offense or that the
person has committed an offense and existing circumstances require immediate arrest.”
Section 46-6-311(1), MCA. We have said before that one of the “existing
circumstances” referred to in § 46-6-311(1), MCA, is “concern for the safety of the
offender or the public.” Muller v. State, 2012 MT 66, ¶ 14, 364 Mont. 328, 274 P.3d 737
(internal quotations omitted).
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06/28/2016
DA 15-0444 Case Number: DA 15-0444
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 159N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DAWNALEE ELLIS-PETERSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 13-346 Honorable Russell C. Fagg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Benjamin J. LaBeau, LaBeau Law Firm, L.L.C., Billings, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana
Scott D. Twito, Yellowstone County Attorney, Victoria Callender, Deputy Yellowstone County Attorney, Billings, Montana
Submitted on Briefs: April 27, 2016
Decided: June 28, 2016
Filed:
__________________________________________ Clerk Justice Patricia Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 On April 29, 2013, at approximately 7:15 in the morning, Officers Edwards and
Beck of the Billings Police Department were dispatched to investigate a report about an
intoxicated woman riding a horse. The officers found the woman, Dawnalee
Ellis-Peterson (Ellis-Peterson), walking alongside her horse, and they observed that she
was stumbling and had difficulty maintaining her balance. Officer Edwards was close
enough to Ellis-Peterson to notice that her breath smelled of alcohol, and both officers
noticed that her speech was slurred. Based on her behavior, the officers suspected that
Ellis-Peterson was intoxicated, but because she was not committing a crime, they allowed
her to leave the area. The officers observed that she was physically unable to mount her
horse, and after repeated unsuccessful attempts to stay on the horse, she led it away from
the area. During this encounter, Officers Beck and Edwards checked Ellis-Peterson’s
identification and learned that her driver’s license was suspended.
¶3 Approximately two hours later, around 9:40 a.m., an unidentified female called
911 and complained to the dispatcher that she should be able to ride a horse without
being pulled over by police. The dispatcher informed Officers Edwards and Beck of the
call and asked them to perform a welfare check on the woman. The officers responded to
2 her residence, but were initially unable to make contact with the woman. They knocked
on the front and back doors of the house and on several windows and stood on the porch
and called to her. After a few minutes without a response from the woman, the officers
started to walk away from the home when a neighbor, Lori Miller (Miller), informed the
officers that the woman was indeed inside. The officers renewed their attempts to contact
the woman and were eventually successful.
¶4 The woman appeared in the window, and the officers immediately recognized her
as Ellis-Peterson. She was stumbling inside the house and had to prop herself up on the
window as she spoke to the officers. She still spoke with a heavy slur, and it was the
officers’ impression that she was intoxicated. When the officers inquired about her
welfare, she responded that she was “okay,” was “just drunk,” and would like to be left
alone. The officers determined that she was not in need of their help, so they began
walking away. As they were leaving, Ellis-Peterson opened the door and appeared,
naked, to yell incoherently at them.
¶5 The officers did not react to Ellis-Peterson, but instead went to speak to the
neighbor, Miller, who was still standing nearby. Because Ellis-Peterson appeared to the
officers to be extremely intoxicated, the officers asked Miller to call 911 if she observed
Ellis-Peterson leave in a vehicle. Approximately 20 minutes later, at 10:11, Miller called
911 to report that Ellis-Peterson had just left her residence in a green Toyota pickup and
was heading southbound on Jefferson. The 911 dispatcher gave officers a description of
the vehicle and the license plate numbers, and because Officer Beck was nearby, he
3 responded to the area almost immediately. Officer Edwards also responded to the area as
a “cover” or “backup” officer.
¶6 As soon as Officer Beck saw Ellis-Peterson drive by his location, he activated his
lights and began following her. Ellis-Peterson drove past many places where it would
have been safe to pull over but she did not stop, so Officer Beck activated his siren.
Ellis-Peterson continued driving until she pulled into the parking lot of Cabela’s,
meandered through the parking lot past available parking places, and then parked
incorrectly in a parking space near the front of the store. Officer Beck approached the
vehicle, and because the window was not rolled down, he opened the driver’s side door.
He immediately smelled a strong odor of alcohol. Officer Beck determined that
Ellis-Peterson was a threat to public safety because she had been initially uncooperative
in pulling over, because she was driving on a suspended license, and because he had
personal knowledge that she was likely intoxicated. Officer Beck arrested Ellis-Peterson
for driving under the influence. He did not have her perform any field sobriety tests at
this point because he was “extremely comfortable” that the information he had was
sufficient to justify the arrest.
¶7 On May 10, 2013, Ellis-Peterson was charged with felony driving under the
influence (DUI), misdemeanor driving while license is suspended or revoked, and
misdemeanor driving without liability protection in place. On July 23, 2013,
Ellis-Peterson filed a motion to suppress all evidence gained after her arrest, arguing that
her arrest was illegal because Officer Beck did not have probable cause to arrest her for
DUI. The District Court denied her motion after holding a hearing. Ellis-Peterson then
4 entered a plea agreement with the state, whereby she pled guilty to DUI and the state
moved to dismiss the two misdemeanor offenses. Ellis-Peterson reserved her right to
appeal the District Court’s order denying her motion to suppress evidence. The District
Court sentenced her to 13 months with the Department of Corrections, followed by a
four-year suspended sentence. Ellis-Peterson now appeals the denial of her motion to
suppress evidence. We review a district court’s denial of a motion to suppress evidence
to determine whether its findings of fact are clearly erroneous and its conclusions of law
are correct. State v. Braulick, 2015 MT 147, ¶ 13, 379 Mont. 302, 349 P.3d 508.
¶8 “A peace officer may arrest a person when a warrant has not been issued if the
officer has probable cause to believe that the person is committing an offense or that the
person has committed an offense and existing circumstances require immediate arrest.”
Section 46-6-311(1), MCA. We have said before that one of the “existing
circumstances” referred to in § 46-6-311(1), MCA, is “concern for the safety of the
offender or the public.” Muller v. State, 2012 MT 66, ¶ 14, 364 Mont. 328, 274 P.3d 737
(internal quotations omitted). “Probable cause to arrest is established if the facts and
circumstances within an officer’s personal knowledge, or related to the officer by a
reliable source, are sufficient to warrant a reasonable person to believe that someone is
committing or has committed an offense.” State v. Ditton, 2009 MT 57, ¶ 21, 349 Mont.
306, 203 P.3d 806 (quoting State v. Williamson, 1998 MT 199, ¶ 12, 290 Mont. 321, 965
P.2d 231) (internal quotations omitted). “The probable cause determination must be
based on an assessment of all relevant circumstances, evaluated in light of the knowledge
5 of a trained law enforcement officer.” City of Missoula v. Iosefo, 2014 MT 209, ¶ 10,
376 Mont. 161, 330 P.3d 1180 (quoting Williamson, ¶ 21) (internal quotations omitted).
¶9 We are satisfied that Officer Beck had probable cause to arrest Ellis-Peterson
without a warrant. Prior to arresting Ellis-Peterson, Officer Beck had had two
interactions with her earlier in the day. During all three encounters, Officer Beck
personally observed Ellis-Peterson exhibiting signs of intoxication: she stumbled, had
trouble keeping her balance, slurred her speech, and smelled strongly of alcohol. During
their second interaction, a mere 20 minutes before her arrest, she even told Officers Beck
and Edwards that she was drunk. Officer Beck’s training as a law enforcement officer
would have enabled him to recognize these behaviors as signs of intoxication, and to
conclude that it would be a crime for Ellis-Peterson to drive a vehicle in such a state.
¶10 Field sobriety testing would perhaps have provided further support for Officer
Beck’s strong and reasonable assumption that Ellis-Peterson was intoxicated, but we have
said before that “[s]obriety testing is not a prerequisite to finding probable cause,” In re
License Suspension of Cybulski, 2008 MT 128, ¶ 29, 343 Mont. 56, 183 P.3d 39, and “the
absence of such tests do not fatally flaw the probable cause determination,” State v.
Hafner, 2010 MT 233, ¶ 16, 358 Mont. 137, 243 P.3d 435 (citing Cybulski, ¶ 29)
(internal quotations omitted). Even without field sobriety testing, all the facts and
circumstances within Officer Beck’s personal knowledge were sufficient to warrant his
belief that Ellis-Peterson was committing the crimes of driving under the influence and
driving on a suspended license. His determination that an intoxicated driver with a
suspended license is a public safety threat was an “existing circumstance” that justified
6 an immediate arrest without a warrant. Because Officer Beck had probable cause to
arrest Ellis-Peterson, the District Court did not err in denying her motion to suppress
evidence obtained after her arrest.
¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review.
¶12 Affirmed.
/S/ PATRICIA COTTER
We Concur:
/S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON