State v. Haller , 371 Mont. 86 ( 2013 )

July 23 2013
DA 12-0472
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 199
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DWAYNE BRUCE HALLER,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-32-2011-0000367-IN
Honorable Robert L. Deschamps, III, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Clinton H. Kammerer, Kammerer Law Offices, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Assistant
Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney; Susan E. Boylan, Deputy
County Attorney, Missoula, Montana
Submitted on Briefs: April 17, 2013
Decided: July 23, 2013
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Dwayne Bruce Haller (Haller) appeals from his convictions in the Fourth Judicial
District Court, Missoula County, of Driving Under the Influence of Alcohol – fourth offense,
a felony, and Driving Without a Valid Driver’s License. We affirm.
¶2 The issue on appeal is whether the District Court properly denied Haller’s motion to
vacate his convictions.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 Haller was arrested on August 3, 2011, on suspicion of driving under the influence of
alcohol. The next day, the State submitted a complaint and an affidavit of probable cause to
the Missoula County Justice Court. Based on the affidavit, the Justice of the Peace found
that there was probable cause and allowed the complaint to be filed. That same day, August
4, 2011, Haller made his initial appearance. At the initial appearance, as required by § 46-7-
102, MCA, the Justice Court informed Haller of the charges against him as well as his
various rights, including the right to counsel and the right to bail. The Justice Court also
scheduled a preliminary examination for August 18, 2011, during the initial appearance. For
reasons that are not clear from the record, that preliminary examination was not held. On
August 23, 2011, 19 days after Haller’s initial appearance, the State filed a motion, supported
by an affidavit of probable cause, that sought leave from the District Court to file an
information. The court granted the State’s motion, and the State filed its information
charging Haller with felony DUI and driving without a valid driver’s license the same day.
A jury found Haller guilty of both charges on February 29, 2012.
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¶4 On April 16, 2012, Haller filed a motion to vacate his convictions. Haller argued
primarily that his convictions should be vacated because he had not received an adversarial
probable cause hearing within 48 hours of his arrest. Alternatively, Haller argued that his
convictions should be vacated because the State failed to present any evidence at the
scheduled preliminary examination on August 18, 2011. The District Court denied Haller’s
motion on May 4, 2012. The court held a sentencing hearing on May 8, 2012, and issued its
written judgment on May 29, 2012.
STANDARD OF REVIEW
¶5 The grant or denial of a motion to dismiss in a criminal case is a question of law that
we review for correctness. State v. Robison, 2003 MT 198, ¶ 6, 317 Mont. 19, 75 P.3d 301.
We review a district court’s determination of what constitutes a reasonable time under § 46-
10-105, MCA, for an abuse of discretion. State v. Gatlin, 2009 MT 348, ¶ 15, 353 Mont.
163, 219 P.3d 874.
DISCUSSION
¶6 Section 46-6-311(1), MCA, provides that “[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.” To ensure that the officer correctly determined that
there was probable cause to make the arrest, the Fourth Amendment gives a criminal
defendant who has been arrested without a warrant the right to a prompt probable cause
determination by a neutral and detached magistrate. Gerstein v. Pugh, 420 U.S. 103, 124-25,
95 S. Ct. 854, 868-69 (1975). Section 46-11-110, MCA, also gives a defendant a right to a
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judicial determination of probable cause before the prosecution can be commenced in justice
court. A sworn affidavit submitted with a complaint is a proper basis for the probable cause
determination required by the Fourth Amendment. State v. Brown, 1999 MT 339, ¶ 15, 297
Mont. 427, 993 P.2d 672.
¶7 Following all arrests, an initial appearance must be conducted before the nearest and
most accessible judge without unnecessary delay. Section 46-7-101, MCA (emphasis
added). We have noted that this statute, together with the requirement to inform defendants
of their rights set out in § 46-7-102, MCA, is designed to “ensure that a criminal prosecution
begins promptly and with a recognition of the defendant’s essential rights.” State v. Strong,
2010 MT 163, ¶ 11, 357 Mont. 114, 236 P.3d 580. In addition, before leave to file an
information in district court can be granted, a separate determination of probable cause must
be made.
¶8 There are three different procedures by which the State can obtain the requisite
probable cause determination before filing charges in district court: 1) a preliminary
examination; 2) direct application to the district court for leave to file an information; or 3)
indictment by a grand jury.1 Section 46-10-105, MCA. The State may utilize whatever
process it wishes; a defendant is not entitled to any specific procedure. State v. Farnsworth,
240 Mont. 328, 332, 783 P.2d 1365, 1368 (1989). Montana has adopted a flexible standard
that requires the district court determination to be made within “a reasonable time” after the
defendant’s initial appearance. State v. Higley, 190 Mont. 412, 419, 621 P.2d 1043, 1048
(1980); see also § 46-10-105, MCA.
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¶9 Citing County of Riverside v. McLaughlin, 500 U.S. 44, 53, 111 S. Ct. 1661, 1668
(1991), Haller argues that he was entitled to a preliminary examination within 48 hours of his
arrest. Because a preliminary examination was not held within 48 hours of his arrest, Haller
argues the State had to prove that the time that it took for him to receive a probable cause
determination was reasonable. Haller’s argument conflates the two procedures that require a
finding of probable cause and is clearly contrary to Montana’s established criminal
procedure framework. Although both procedures require a judicial determination of
probable cause, they are distinct procedures and serve different purposes.
¶10 Haller received a prompt judicial determination of probable cause as required by the
Fourth Amendment the day after he was arrested. On August 4, 2011, based on the State’s
affidavit of probable cause, the Justice Court issued an order that found that there was
probable cause and allowed the State to file a complaint. That probable cause determination
was sufficiently prompt and fulfilled the Fourth Amendment’s requirement.
¶11 Whether the time between Haller’s initial appearance in Justice Court and when the
District Court granted the State leave to file an information was reasonable is a separate
matter and depends upon the specific facts and circumstances of the case. See Gatlin, ¶ 15;
Robison, ¶ 12; State v. McElderry, 284 Mont. 365, 370, 944 P.2d 230, 232-33 (1997). The
State argues that under § 46-11-203, MCA, the time between the initial appearance and the
probable cause determination is reasonable if it files an information within 30 days.
¶12 Section 46-11-203(1), MCA, provides that:
After a finding of probable cause following a preliminary examination or
1
The defendant may also waive his right to a determination of probable cause. See § 46-10-105(1), MCA.
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waiver of a preliminary examination or after leave of court has been granted,
the prosecutor shall file within 30 days in the proper district court an
information charging the defendant with the offense or any other offense
supported by probable cause.
(Emphasis added). However, that statute establishes the time limit for filing an information
after a judicial determination of probable cause has been made before charges can be
initiated in the district court. It does not establish 30 days as a presumptively reasonable
time for obtaining a probable cause determination after the initial appearance in justice court.
¶13 We ultimately do not reach the question of whether the 19-day delay between Haller’s
initial appearance and when the District Court granted the State leave to file an information
was reasonable. The issue before us on appeal is whether the District Court erred by denying
Haller’s motion to vacate his convictions. Significantly, Haller did not object to the 19-day
delay until after his trial. In essence, Haller’s motion was a motion to dismiss that he filed
after he was tried and convicted by a jury. A party must raise any defense, objection, or
request that is capable of determination without trial of the general issue at or before the pre-
trial omnibus hearing. Section 46-13-101(1), MCA. A defendant who does not timely raise
an objection that can be determined before trial waives that objection. State v. Cotterell,
2008 MT 409, ¶ 80, 347 Mont. 231, 198 P.3d 254; § 46-13-101(2), MCA. Haller thus
waived his right to complain that 19 days was an unreasonable time for the State to initiate
filing charges in the District Court by failing to object or file a motion to dismiss before his
trial.
¶14 Lastly, Haller argues that his convictions should have been vacated because the State
did not present any evidence to establish probable cause at the preliminary examination
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scheduled for August 18, 2011. It does not appear from the record, however, that a
preliminary examination was held on August 18. Haller contends that the hearing was
cancelled because the State failed to appear. As noted above, the State may initiate a
prosecution in district court without a preliminary examination. State v. Strobel, 268 Mont.
129, 133, 885 P.2d 503, 505 (1994). Here, the State supported its motion seeking leave to
file the information with an affidavit of probable cause. The District Court found that
sufficient probable cause existed and allowed the State to file the information. As such,
Haller’s allegation is unsubstantiated, has no support in the record, and is not well taken.
¶15 For the reasons stated above, the motion to vacate Haller’s convictions was properly
denied. The District Court did not abuse its discretion. The final judgment is affirmed.
/S/ MIKE McGRATH
We concur:
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ BRIAN MORRIS
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