City of Missoula v. Iosefo

August 5 2014
DA 13-0536
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 209CITY OF MISSOULA,
Plaintiff and Appellee,
v.
MARTIN MULIPA IOSEFO,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-13-92
Honorable Edward P. McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
James P. O’Brien, O’Brien Law Office, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Gary Henricks, Missoula City Attorney’s Office, Missoula, Montana
Submitted on Briefs: May 28, 2014
Decided: August 5, 2014
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Martin Mulipa Iosefo appeals the Fourth Judicial District Court’s order affirming the
Missoula Municipal Court’s denial of his motion to suppress evidence based on a lack of
probable cause for his arrest. The only issue on appeal is whether an off-duty officer arrested
Iosefo without probable cause. We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 Mark Fiorentino, an off-duty police officer, arrested Iosefo shortly after 3:00 a.m. on
August 26, 2012. Black Knight Security had employed Fiorentino to work as a security
guard at the River City Roots festival, held in Missoula on August 25-26, 2012. Fiorentino
had seen Iosefo enter the festival area through the exit of a parking garage and drive through
yellow caution tape into the pedestrian area of the festival. When Iosefo attempted to turn
around, he collided with a heavy plastic barricade and damaged the vehicle.
¶3 Fiorentino approached Iosefo’s vehicle, but Iosefo continued his attempt to drive
through the area. When Iosefo eventually stopped, Fiorentino instructed him to remain in his
vehicle. Iosefo disobeyed Fiorentino’s directive by exiting his vehicle and walking away.
When Fiorentino attempted to contain him, Iosefo pulled away and began waving his arms
and yelling.
¶4 Fiorentino called 911, and the police arrived within minutes. The dispatcher asked
whether Fiorentino thought Iosefo was intoxicated, and Fiorentino replied, “Um, I can’t tell.
He backed-in the barricade here at the . . . .” Fiorentino did not finish his reply because he
turned his attention back to Iosefo, who refused to stay in one place until the police arrived.
Fiorentino recalled later that Iosefo had seemed “agitated” and “hyper.” While they waited,
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Fiorentino tried unsuccessfully to handcuff Iosefo and threatened to “put Iosefo on the
ground.” Fiorentino also threatened to put Iosefo at gunpoint. Apparently, the threat failed
to stop Iosefo from moving around. City police officers arrived and immediately assumed
custody of Iosefo. Iosefo was charged in Municipal Court with careless driving for striking
the barricade, with aggravated DUI, and with unlawful breath test refusal under a City
ordinance.
¶5 Iosefo filed a motion to suppress on November 16, 2012, arguing that Fiorentino
lacked probable cause to effectuate a citizen’s arrest. The Municipal Court denied the
motion on January 23, 2013. Iosefo pleaded guilty to driving under the influence of alcohol,
reserving the right to appeal the suppression order. The other charges were dropped. The
Municipal Court sentenced Iosefo to one year in jail, with all but ten days suspended, and
ordered him to pay a fine.
¶6 Iosefo appealed to District Court on February 15, 2013. The District Court affirmed
the Municipal Court’s denial of Iosefo’s motion to supress.
STANDARD OF REVIEW
¶7 On appeal from a municipal court, the district court functions as an intermediate
appellate court. City of Bozeman v. Cantu, 2013 MT 40, ¶ 10, 369 Mont. 81, 296 P.3d 461.
This Court reviews cases that originate in municipal court “as if the appeal originally had
been filed in this Court,” examining the record independently of the district court’s decision
and applying the appropriate standard of review. Cantu, ¶ 10; City of Helena v. Broadwater,
2014 MT 185, ¶ 8, __ Mont. __, __ P.3d __.
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¶8 We review the denial of a motion to suppress to determine whether the trial court’s
findings of fact are clearly erroneous and whether it correctly applied those findings as a
matter of law. City of Missoula v. Fergunson, 2001 MT 69, ¶ 6, 305 Mont. 36, 22 P.3d 198.
The interpretation and construction of a statute present a question of law, which we review
de novo. State v. Brown, 2009 MT 452, ¶ 6, 354 Mont. 329, 223 P.3d 874.
DISCUSSION
¶9 A law enforcement officer outside of his jurisdiction “may make an arrest under
circumstances which would authorize a private citizen to do so.” State v. Updegraff, 2011
MT 321, ¶¶ 45-46, 363 Mont. 123, 267 P.3d 28. Montana’s citizen’s arrest statute provides:
(1) 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. The private
person may use reasonable force to detain the arrested person.
(2) A private person making an arrest shall immediately notify the nearest
available law enforcement agency or peace officer and give custody of the
person arrested to the officer or agency.
Section 46-6-502, MCA. Thus, an off-duty officer may use reasonable force to arrest a
person only “if 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.”
Updegraff, ¶ 52.
¶10 Probable cause for an arrest exists “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 another person is committing or has committed an offense.”
State v. Williamson, 1998 MT 199, ¶ 21, 290 Mont. 321, 965 P.2d 231. The probable cause
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determination “must be based on an assessment of all relevant circumstances, evaluated in
light of the knowledge of a trained law enforcement officer.” Williamson, ¶ 21. Mere
suspicion is not enough to establish probable cause to believe that another person is
committing or has committed an offense. Williamson, ¶ 21.
¶11 The Municipal Court held that Fiorentino, the off-duty officer, had probable cause to
arrest Iosefo under the circumstances, remarking that “[i]t is hard to imagine how Fiorentino
could have improved in his compliance with the expectations of § 46-6-502.” The District
Court affirmed. Iosefo contends that the arrest was invalid for two reasons: Fiorentino
lacked authority to arrest Iosefo for a non-jailable offense, and Fiorentino acted upon a
particularized suspicion instead of probable cause.
¶12 We apply the plain language of the statute to determine whether the citizen’s arrest
was lawful; we cannot “insert what has been omitted.” Section 1-2-101, MCA. The
citizen’s arrest statute does not limit the type of offense upon which a citizen or out-of-
jurisdiction officer may act in effecting an arrest. The plain language of the citizen’s arrest
statute requires only probable cause of “an offense.” Section 46-6-502, MCA.
¶13 Iosefo argues that our decision in Bauer constrains all citizens’ arrests to jailable
offenses. State v. Bauer, 2001 MT 248, 307 Mont. 105, 36 P.3d 892. We held in Bauer that
“it is unreasonable for a police officer to effect an arrest and detention for a non-jailable
offense when there are no circumstances to justify an immediate arrest.” Bauer, ¶ 33. At
issue in Bauer was the statute governing warrantless arrests by peace officers, which
provides:
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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 determined that a peace officer’s warrantless arrest was
unlawful where no “special circumstances[,] such as a concern for the safety of the offender
or the public,” existed that could justify subjecting a person “to the indignity of an
arrest . . . .” Bauer, ¶ 33. Both the statute governing warrantless arrests by a peace officer
and the citizen’s arrest statute demand probable cause of “an offense” and “existing
circumstances [that] require immediate arrest,” not that the offense is “jailable.” Thus,
Fiorentino needed probable cause of an offense, not necessarily a jailable one. Bauer
interpreted the language “existing circumstances require immediate arrest” to mean that, in
the case of a non-jailable offense, there must be circumstances such as a concern for the
safety of the offender or the public to justify the arrest. Bauer, ¶ 33. Here, Iosefo’s
dangerous conduct necessitated an immediate arrest.
¶14 Iosefo is incorrect when he argues that Fiorentino acted upon a mere particularized
suspicion. Iosefo claims that probable cause did not exist until after Fiorentino effected his
arrest, relying on Fiorentino’s statement to the dispatcher that he could not tell whether
Iosefo was intoxicated. Iosefo seems to argue that probable cause could be found only if
Fiorentino had made observations that he was driving under the influence, such as “beer cans
strewn about the vehicle,” “slurred speech,” “bloodshot eyes,” “an odor of alcohol,” or “any
other indicia of impairment.” Iosefo emphasizes that his behavior prior to the arrest was, at
most, merely suspicious. To support this argument, Iosefo relies on the District Court’s use
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of particularized suspicion language when it found that Fiorentino “observed behavior that
caused him to suspect” that Iosefo was somehow impaired. Iosefo further suggests that the
arrest was made for the sole reason that Fiorentino could investigate this suspicious behavior
to determine whether a DUI was being committed.
¶15 This argument fails because Fiorentino’s observations were not limited to behavior
that led him to suspect that Iosefo was impaired—he also witnessed Iosefo enter a parking
garage going the wrong direction, drive through yellow caution tape, drive erratically into an
area restricted for pedestrian use, and collide with a barricade in that area. This was not
merely “suspect” or “suspicious” behavior; it was potentially dangerous behavior that would
cause a reasonable person to believe that Iosefo was committing or had committed any of
several offenses, including careless driving. The circumstances required an immediate arrest
to protect pedestrians and property. Thus, authority to arrest existed regardless of whether
Fiorentino believed that Iosefo was driving while intoxicated.
¶16 We recognize that Fiorentino could not arrest Iosefo only to investigate a suspicion of
impaired driving. The citizen’s arrest statute “contemplates a public safety purpose, not a
criminal investigation purpose.” Updegraff, ¶ 33. Iosefo’s conduct, however, posed
legitimate safety concerns to himself and the public that meet the citizen’s arrest provision
that the circumstances must require immediate arrest. In light of the imminent risks to
pedestrians and property posed by Iosefo’s continued presence behind the wheel, the
Municipal Court properly determined that the circumstances required his immediate arrest
here.
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¶17 Finally, although Iosefo attempts to portray Fiorentino’s methods of arrest as
“vigilantism,” the Municipal Court properly concluded that the force used to detain Iosefo
was reasonable. Fiorentino did not draw his weapon and we are not confronted with a
scenario where a citizen has elected to “[take] the law into his own hands.” Although
Fiorentino possessed only the authority provided by the citizen’s arrest statute, we do not
need to ignore that Fiorentino is a trained officer of the law. See Updegraff, ¶ 48
(“Obviously, peace officers do not suddenly forget all their training and experience simply
because they cross an imaginary jurisdictional line in the sand.”). In compliance with the
statute, Fiorentino immediately notified proper authorities of the situation. On-duty
Missoula police officers took control within minutes. Fiorentino’s threats served briefly to
detain Iosefo under circumstances where he was being unpredictable, unruly, and potentially
endangering other citizens as well as himself. The force used by Fiorentino was reasonable
in this situation—we need not speculate as to the potential of threats by another citizen under
other circumstances.
CONCLUSION
¶18 Fiorentino had probable cause to arrest Iosefo and the existing circumstances required
his immediate arrest.
¶19 Affirmed.
/S/ BETH BAKER
We Concur:
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
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/S/ LAURIE McKINNON
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