                                                                                               May 13 2008


                                           DA 07-0310

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2008 MT 173



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JOSEPH EVERETTE HOWARD,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC 2005-585
                        Honorable Robert L. Deschamps, III, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Jim Wheelis, Chief Appellate Defender, Lisa S. Korchinski, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Hon. Mike McGrath, Montana Attorney General, Jesse A. Laslovich,
                        Assistant Attorney General, Helena, Montana

                        Fred Van Valkenburg, Missoula County Attorney, Dale Mrkich, Deputy
                        County Attorney, Missoula, Montana



                                                     Submitted on Briefs: March 5, 2008

                                                                Decided: May 13, 2008


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     In December 2005 Joseph Everette Howard (Howard) was charged with felony

operating a vehicle with a blood alcohol level of .08 or greater (DUI), misdemeanor

operating a vehicle without proof of liability insurance, and misdemeanor failure to obey

a traffic signal. He pleaded not guilty and counsel was appointed to represent him. In

March 2006 Howard filed a Motion to Dismiss/Suppress. The court held a hearing on the

Motion in June 2006, and in August 2006, the court denied Howard’s Motion.             In

December 2006 Howard moved to have his case dismissed for lack of a speedy trial. At

the conclusion of a hearing on this motion, the District Court denied it.        Howard

subsequently entered guilty pleas to Counts I and III and Count II was dismissed. He

reserved his right to appeal both denied motions and filed a timely appeal. We affirm the

District Court’s denial of Howard’s motion to dismiss relative to DeWitt’s authority. We

remand the matter to the District Court for further analysis of Howard’s claim that he was

deprived of a speedy trial.

                                         ISSUES

¶2     A restatement of the issues on appeal is:

¶3     Did the District Court err in denying Howard’s motion to dismiss on the ground

that Officer DeWitt lacked authority to execute the stop?

¶4     Did the District Court err in denying Howard’s motion to dismiss for lack of a

speedy trial?

                  FACTUAL AND PROCEDURAL BACKGROUND




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¶5    On Saturday, November 12, 2005, at approximately 2:30 a.m., University of

Montana (UM) Security Officer DeWitt noticed a vehicle stop at a red traffic light at the

intersection of Arthur Avenue and South 6th Street East in Missoula. The car then

proceeded through the light while the light was still red. DeWitt pursued the vehicle and

activated his emergency overhead lights. The car did not stop immediately but rather

continued northbound across the Madison Street Bridge and finally stopped near the

intersection of Madison and Front Street.       DeWitt approached the stopped car and

determined that it was driven by Howard. While speaking with him, DeWitt noticed that

Howard smelled of alcohol. The officer executed a records search and learned that

Howard was on probation for felony DUI and criminal possession of dangerous drugs.

Howard acknowledged that he was on probation and admitted that he had consumed

approximately six beers. DeWitt conducted a preliminary breath test (PBT) analysis

which revealed Howard’s blood alcohol concentration was .291.           DeWitt arrested

Howard and transported him to the Missoula County Detention Center. At the Detention

Center, Howard consented to perform field sobriety tests and according to DeWitt failed

these tests. Howard refused further breath analysis.

¶6    The State filed an Affidavit and Information on December 7, 2005, and at his

December 20, 2005 arraignment, Howard pleaded not guilty. The court set a scheduling

conference for March 14, 2006. At the conference on March 14, Howard filed a Motion

to Dismiss/Suppress, claiming DeWitt did not have the authority as a campus security

officer to stop him at an off-campus location. The State was ordered to respond by

March 28 but subsequently was granted additional time. While its response was due on


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April 17, it did not file it until May 9, 2006. Also on May 9 the court held a status

conference. Howard was given one week to reply to the State’s response to his motion to

dismiss. He also requested a hearing on the motion. The District Court held a hearing on

Howard’s motion on June 13, 2006, at the conclusion of which the parties requested time

to submit supplemental briefs. Howard filed his brief on July 5 and the State filed its on

July 31, 2006. On August 28, 2006, the District Court denied Howard’s motion.

¶7     Upon request by the parties, the court held a status hearing on September 19,

2006, and set a trial date of December 20, 2006. On December 12, Howard filed a

Motion to Dismiss for Lack of a Speedy Trial. A hearing was held on this Motion on

December 18 at the conclusion of which the District Court denied the Motion. On

December 19 Howard entered into a plea agreement wherein he reserved his right to

appeal the two denied motions. The District Court entered its written judgment on

February 21, 2007, and Howard timely appealed.

                              STANDARDS OF REVIEW

¶8     The grant or denial of a motion to dismiss in a criminal case is a question of law

which we review de novo on appeal.          Our standard of review is plenary, and we

determine whether a district court’s conclusion is correct. State v. Ashmore, 2008 MT 14,

¶ 7, 341 Mont. 131, ¶ 7, 176 P.3d 1022, ¶ 7 (citation omitted).

¶9     We review a district court’s ruling on a criminal defendant’s motion to suppress

evidence to determine whether the court’s findings of fact are clearly erroneous and

whether the court correctly applied those findings as a matter of law. A court’s findings

of fact are clearly erroneous if they are not supported by substantial credible evidence,


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the court has misapprehended the effect of the evidence, or our review of the record

convinces us that a mistake has been committed. State v. Ruggirello, 2008 MT 8, ¶ 15,

341 Mont. 88, ¶ 15, 176 P.3d 252, ¶ 15 (citation omitted).

¶10    We review the factual findings underlying a district court’s speedy trial ruling to

determine whether those findings are clearly erroneous. State v. Ariegwe, 2007 MT 204,

¶ 119, 338 Mont. 442, ¶ 119, 167 P.3d 815, ¶ 119 (citation omitted). The court’s findings

are clearly erroneous if they are not supported by substantial credible evidence, if the

court has misapprehended the effect of the evidence, or if a review of the record leaves

this Court with the definite and firm conviction that a mistake has been made. Ariegwe,

¶ 119 (citation omitted). However, whether the defendant has been denied a speedy

trial—i.e., whether the factual circumstances, when evaluated pursuant to the four-factor

balancing test, amount to a speedy trial violation—is a question of constitutional law.

Ariegwe, ¶ 119 (citations omitted). We review a trial court’s conclusions of law de novo

to determine whether the court’s interpretation and application of the law are correct.

Ariegwe, ¶ 119 (citation omitted).

                                     DISCUSSION

¶11    Did the District Court err in denying Howard’s motion to dismiss on the ground
       that Officer DeWitt lacked authority to execute the stop?

¶12    Howard argues that the District Court erred in denying his motion to dismiss or

suppress. He asserts the District Court erroneously based its denial on the Uniform Act

on Close Pursuit (the “Act”). Howard maintains the Act was not intended to authorize

traffic stops such as the one in this case but rather was developed to allow peace officers



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of one state engaged in close pursuit with the intent to arrest, to cross state lines in

continued pursuit.     Howard also asserts that the statutes and the memoranda of

understanding relied upon by the State do not extend DeWitt’s authority, as a University

security officer, to the place where Howard stopped his vehicle, and that DeWitt did not

have the authority to conduct an investigation or field sobriety tests or to arrest him.

¶13    The State concurs that the Act is inapplicable in this case but argues that the

District Court nonetheless reached the right decision in denying Howard’s motion to

dismiss based on the authority vested in DeWitt under the memoranda of understanding

among the University of Montana, the Missoula Police Department and the Missoula

County Sheriff’s Department.

¶14    Section 20-25-321(1)(a) and (b), MCA, give UM security officers the following

jurisdiction: (1) within campus boundaries, (2) over an area within one mile of the

exterior boundaries of the campus “for campus-related activities,” and (3) over other

properties owned, operated, controlled, or administered by the university. Additionally,

§ 20-25-321(3), MCA, provides that any university system security department may enter

into an agreement with law enforcement agencies that specifies the geographic and

subject matter jurisdiction of the campus security officers in areas outside the areas

described in subsections (1)(a) and (b) above.

¶15    Additionally, § 20-25-322, MCA, allows universities to enter into an agreement

with the city or county, under which the campus security officer is authorized to issue

citations for moving traffic violations which occur within the boundaries of the campus

or on streets or alleys contiguous to the campus.


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¶16    In accordance with these statutes, in July 1993 UM entered into such an agreement

with the City and County of Missoula and their respective police departments. Under this

agreement campus security officers had the authority to issue citations for moving traffic

violations that occurred “within the boundaries of the campus or on streets or alleys

contiguous thereto.”     In July 2005 U M entered into a second agreement with the

Missoula Police Department and the Missoula County Sheriff’s Department.                  The

relevant portion of the 2005 agreement provides:

       The [campus security officers’] primary focus is the University of Montana
       campus properties, as they are defined in this agreement, and campus
       related activities within one mile of the exterior boundaries of each campus.
       Under this agreement and under Montana law, the [Missoula Police
       Department] extends the jurisdiction of the [campus security officers]. The
       [campus security officers’] jurisdiction is extended to the City limits of
       Missoula for the enforcement of all traffic and criminal offenses that occur
       in the [campus security officer’s] presence and poses an imminent threat to
       public safety.

¶17    It is undisputed that Howard’s failure to obey the traffic signal at the intersection

of Sixth and Arthur constituted a “traffic offense” as provided in the two agreements.

Additionally, it is undisputed that this intersection is located on streets that are contiguous

to the campus; therefore the offense “occurred” within DeWitt’s jurisdiction. Lastly, it is

undisputed that the traffic offense occurred in the presence of DeWitt.

¶18    Howard argues that because the offense occurred at 2:30 a.m. when there was little

traffic on the road, it did not pose an “imminent threat to public safety.” The State

counters that, in accordance with the agreements, the offense occurred within DeWitt’s

jurisdiction and Howard’s failure to respond to the patrol car’s flashing emergency lights

until approximately one mile off-campus does not defeat the officer’s jurisdiction. The


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State also argues that Howard’s failure to obey traffic signals, regardless of the amount of

traffic, presented an imminent threat to public safety. In this connection, DeWitt testified

that, based on his experience, observing a vehicle run a red light at two-thirty in the

morning is an indicator of a possible DUI which always presents an imminent threat to

public safety.

¶19    We agree with the State. At the time of the offense, Howard was on roads

contiguous to the university campus, meaning he committed this offense within the

narrowest geographic parameters of DeWitt’s jurisdiction.          Additionally, Howard’s

traffic violation presented an imminent threat to public safety. While there may not have

been heavy vehicle traffic at two-thirty on that particular morning as DeWitt testified,

various employees typically get off work at that time. Additionally, it is reasonable that

students or other pedestrians could have been walking in the area at two-thirty on a

Saturday morning. We are also persuaded by DeWitt’s explanation that after observing

Howard run the red light, he pursued Howard both for the traffic violation and his

concern that Howard may have been drinking. From a public policy perspective, to

conclude that DeWitt lost jurisdiction because Howard failed to stop until he was beyond

the campus parameters would encourage violators to simply drive beyond a defined

jurisdictional boundary to escape potential penalty for a violation.

¶20    While relying on an inapplicable statute, the District Court nonetheless correctly

concluded that DeWitt had the authority to stop, investigate and arrest Howard. As we

have held before, we will affirm a district court’s decision when it reaches the correct

result for the wrong reasons. Mary J. Baker Revoc. Trust v. Cenex Harvest, 2007 MT


                                             8
159, ¶ 80, 338 Mont. 41, ¶ 80, 164 P.3d 851, ¶ 80 (citation omitted). The court’s denial

of Howard’s motion to dismiss for want of jurisdiction was not error.

¶21    Did the District Court err in denying Howard’s motion to dismiss for lack of a
       speedy trial?

¶22    Howard argues that the District Court erred when it denied his motion to dismiss

on the ground that the State failed to provide him with a speedy trial. We note that when

Howard argued for dismissal before the District Court he primarily relied upon the

speedy trial analyses set forth in City of Billings v. Bruce, 1998 MT 186, 290 Mont. 148,

965 P.2d 866, overruled in part by Ariegwe, and Barker v. Wingo, 407 U.S. 514, 92 S. Ct.

2182 (1972). He maintained that he satisfied the four-prong test established in those

cases in that he was in jail for a total of 403 days before his trial; the State was

responsible for 354 days of delay; he timely asserted his right to a speedy trial; and he

was prejudiced by his delayed trial. He submits that the District Court should have

dismissed his case.

¶23    The State countered before the District Court that under the test established in

Barker, Howard was responsible for more delay days than he claimed and he was not

unduly prejudiced by the delay. As a result, the balancing test actually weighed in favor

of the State.

¶24    The District Court did not issue a written order denying Howard’s motion to

dismiss for lack of a speedy trial; rather, it ruled from the bench at the conclusion of a

hearing on the motion which was conducted on December 18, 2006. Without specifying

the number of delay days attributable to each party, the court ruled that both parties bore



                                            9
responsibility for delays in moving the matter forward. The court also concluded that

Howard was not “overwhelmingly” prejudiced by the delay in that Howard presented no

evidence that his defense was impaired or that he suffered loss of witnesses.

¶25    Subsequently, in August 2007 we rendered our decision in Ariegwe in which we

established a new framework for analyzing speedy trial claims and overruled in part our

decision in Bruce. Since that time, we have remanded speedy trial questions to the

district courts when the trial court did not have an opportunity to apply the Ariegwe

analysis to the claim before it. State v. Smith, 2008 MT 7, 341 Mont. 82, 176 P.3d 258;

State v. Madplume, 2008 MT 37, 341 Mont. 321, 176 P.3d 1071. We conclude this

remains the appropriate method to resolve such cases; therefore we remand this matter to

the District Court for analysis of Howard’s speedy trial claim under Ariegwe.

                                     CONCLUSION

¶26    For the foregoing reasons, we affirm the District Court’s denial of Howard’s

Motion to Dismiss/Suppress relative to DeWitt’s authority.           We dismiss without

prejudice and remand to the District Court for a speedy trial analysis under Ariegwe.



                                                 /S/ PATRICIA COTTER



We concur:

/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JAMES C. NELSON



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