                                                                                        December 4 2007


                                         DA 06-0298

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2007 MT 312


STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JOHANNES ROOKHUIZEN, III,

              Defendant and Appellant.

APPEAL FROM:          District Court of the Thirteenth Judicial District,
                      In and For the County of Yellowstone, Cause No. DC 2005-0032
                      Honorable Gregory R. Todd, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Jim Wheelis, Chief Appellate Defender, Joslyn M. Hunt,
                      Assistant Appellate Defender, Helena, Montana

               For Appellee:

                      Hon. Mike McGrath, Montana Attorney General, John Paulson,
                      Assistant Attorney General, Helena, Montana

                      Dennis Paxinos, Yellowstone County Attorney, Rod Souza,
                      Deputy County Attorney, Billings, Montana



                                                  Submitted on Briefs: April 18, 2007

                                                             Decided: December 4, 2007


Filed:

                      __________________________________________
                                        Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1     Johannes Rookhuizen, III (Rookhuizen) entered a plea of guilty to the crime of felony

criminal endangerment, reserving his right to appeal the Thirteenth Judicial District Court’s

denial of his motion to suppress evidence. We affirm.

                                          ISSUE

¶2     The issue on appeal is whether the District Court erred in denying Rookhuizen’s

Motion to Suppress.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     Rookhuizen was charged with felony burglary in September 2004 and posted bond in

October 2004. The Billings Municipal Court subsequently issued an arrest warrant when

Rookhuizen failed to make a scheduled court appearance. Two bail agents, Youngbill

Runningfisher and Richard Longshaw, were dispatched on January 7, 2005, to pick up

Rookhuizen pursuant to the warrant. Runningfisher and Longshaw went to the home of

Angela Stockfish, Rookhuizen’s girlfriend and co-signer of Rookhuizen’s bail bond. She

told them he was not there but that she would have him call them. During this meeting,

Stockfish purportedly gave Runningfisher the name and telephone number of her landlord,

Ms. Bratcher, and told Runningfisher that he could search her house later and could contact

Ms. Bratcher for entry. Rookhuizen called the bail agents shortly after they spoke with

Stockfish and scheduled a meeting for later that day; however, he failed to show up for the

meeting.

¶4     The following day, Runningfisher and Longshaw, wearing law enforcement uniforms,

returned to Stockfish’s residence. It was apparent to the bail agents through shadows and



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voices that both a man and a woman were in the house. When the agents knocked on the

door, no one answered but the lights were turned off quickly and the television volume was

turned up.   Runningfisher therefore called the landlord, Ms. Bratcher, who arrived

approximately twenty minutes later with keys to the residence. While she waited in the car

the two agents entered the home. Runningfisher testified that he and Longshaw loudly

announced their entry and their identities at which time Stockfish came from another room.

She asked if they were armed—which they were not—and asked to see their paperwork. She

told the agents that Rookhuizen was not there but the record is unclear whether she asked

them to leave. While Longshaw continued talking to Stockfish, Runningfisher walked

through the house investigating a noise in a back room. When he opened a bedroom door, he

encountered Rookhuizen, who immediately picked up a large revolver, pointed it at

Runningfisher and threatened to kill him. Both Runningfisher and Longshaw then walked

backward out of the house while Rookhuizen kept the gun on them. Stockfish and

Rookhuizen got into a car and quickly drove away while the bail agents called 9-1-1 and

reported the incident. Shortly thereafter, an officer who had been dispatched to respond to

the incident observed Stockfish’s car traveling at a high rate of speed. The officer stopped

the car and discovered Rookhuizen was no longer in the vehicle. The officer drove to the

only open business between Stockfish’s house and where Stockfish was stopped and found

Rookhuizen. The officer arrested Rookhuizen on the outstanding warrant.

¶5     Rookhuizen initially was charged with two counts of felony assault with a weapon.

During the criminal proceedings before the District Court, Rookhuizen filed a motion to

suppress the evidence that he had held the bail officers at gunpoint. He argued that the bail


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agents were unlawfully in Stockfish’s house and therefore any evidence obtained during their

illegal presence should be suppressed. The District Court denied the motion. Preserving his

right to appeal the District Court’s denial of his suppression motion, Rookhuizen ultimately

entered a plea of guilty to criminal endangerment.

                                STANDARD OF REVIEW

¶6     We review a district court’s denial of a motion to suppress to determine whether

the district court’s findings of fact are clearly erroneous and whether the district court’s

interpretation and application of the law is correct. State v. Clifford, 2005 MT 219, ¶ 25,

328 Mont. 300, ¶ 25, 121 P.3d 489, ¶ 25.

                                       DISCUSSION

¶7     Did the District Court err in denying Rookhuizen’s Motion to Suppress?

¶8     Rookhuizen argued to the District Court that the bond agents illegally entered

Stockfish’s home without a warrant and therefore he was justified in defending himself with

deadly force. He maintained that all evidence resulting from the unlawful entry should be

suppressed. The District Court concluded that suppression of the evidence was not required.

Relying on State v. Christensen, 244 Mont. 312, 797 P.2d 893 (1990), the court explained

that the protections of the Fourth Amendment to the U.S. Constitution and Article II, § 10 of

the Montana Constitution protect citizens from government action only, and not the actions

of private citizens. The court continued that even if the bail agents’ actions could be

considered state action, (assuming solely for argument’s sake that these bond agents were

essentially deputized sheriffs), the evidence need not be suppressed because it was not

incriminating evidence of some other crime; rather, it was a violent crime perpetrated against


                                              4
the agents. The District Court also cited Montana’s common law principle that “a citizen is

not privileged to use self-defense against a police officer to resist an arrest, even if it is

invalid one.” The court determined that the State had alleged sufficient facts to warrant a

trial; therefore, Rookhuizen could present his case to a jury. After this ruling, Rookhuizen

entered a guilty plea, reserving his appeal on the suppression issue.

¶9     On appeal, Rookhuizen again argues the unlawful nature of the bail agents’ entry and

presence in Stockfish’s house and his right to suppression of the incriminating evidence

obtained therein. He maintains that the agents were state actors, thus requiring consent or a

search warrant. He argues in the alternative that if they were not state agents, then as private

citizens operating under the citizens’ arrest authority, they needed probable cause or exigent

circumstances—neither of which were present at the time of entry.

¶10    The State counters that under State v. Courville, 2002 MT 330, 313 Mont. 218, 61

P.3d 749 and State v. Ottwell, 239 Mont. 150, 779 P.2d 500 (1989), the District Court

correctly denied Rookhuizen’s motion to suppress. The State also opines that we need not

address Rookhuizen’s questions relating to the scope of authority available to bail agents nor

his arguments that the agents required consent, a search warrant, probable cause or exigent

circumstances prior to entering the residence, as these arguments are immaterial to our

determination of the correctness of the District Court’s action.

¶11    In Courville, two officers in separate cars were patrolling an area where there had

been reports of underage drinking. Upon coming across a party they were told that two

trucks had recently left and possibly contained underage individuals who had been drinking.

A short time later, two trucks pulled onto the main road where the officers were also


                                               5
traveling. The officers pursued them. The trucks took different directions and a single

officer followed each of them. One truck, driven by Courville, ultimately stopped. The

officer approached and removed Courville from the truck. While a pat-down search was

being conducted, Courville struck the officer and delivered numerous damaging blows to his

head and face. He then obtained the officer’s gun and struck him with it before fleeing the

scene. Courville was apprehended a few hours later.

¶12    At his trial, Courville argued that because the officer did not have particularized

suspicion to stop him, the stop was unlawful and evidence of the incident must be

suppressed, and the charges dismissed. Among other things, the State countered that the

evidence was properly admitted because criminal conduct committed in response to a Fourth

Amendment violation is admissible.

¶13    We agreed with the State. Reaffirming Ottwell, a case with a similar fact pattern in

which the defendant pointed a gun at state officials who allegedly improperly entered her

hotel room without a search warrant, we held that Courville’s attack on the officer was an

unlawful response regardless of whether the officer had violated his federal or state

constitutional rights. We continued that excluding evidence of his criminal conduct “would

simply encourage violence towards law enforcement officers attempting to do their duties in

the field.” Courville, ¶ 24. We concluded that the evidence of Courville’s criminal conduct

committed against the officer was “so attenuated from the claimed improper investigatory

stop that the evidence of his conduct lost its primary constitutional taint—if, indeed there

ever was any—and that the evidence is, therefore, not subject to the exclusionary rule.”




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Courville, ¶ 25. We therefore affirmed the District Court’s denial of Courville’s motion to

suppress the evidence.

¶14    The analyses in Courville and Ottwell apply to this case. As determined by the

District Court, it is not necessary to decide whether the bail officers’ actions constituted state

action or to define the scope of their authority. It is sufficient to note that if the bail agents

were not state actors, suppression is not required. Moreover, even if the bail agents could be

considered state actors, under Ottwell and Courville, Rookhuizen’s response to their

presence was unlawful and therefore not subject to the exclusionary rule.

                                       CONCLUSION

¶15    For the foregoing reasons, we affirm the District Court.


                                                                   /S/ PATRICIA COTTER

We Concur:

/S/ KARLA M. GRAY
/S/ JIM RICE
/S/ JAMES C. NELSON
/S/ JOHN WARNER




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