MONTANA CRIMINAL LAW

1. MONTANA CRIMINAL LAW

2. Montana Constitution • More protective of the rights of its citizens than the US Constitution. • Montana Supreme Court has repeatedly “refused to march lockstep with the United States Supreme Court’s pronouncements concerning” the federal constitution. Kafka v. Mont. Dep’t of Fish, Wildlife & Parks, 2008 MT 460, ¶165. • Example: Montana’s individual right to privacy is express (see Art II, Section 10) and significantly more restrictive than the right to privacy implied in the US Constitution.

3. Investigative Tools • Investigative subpoenas are issued upon showing that the prosecutor has a duty to investigate EXCEPT when constitutionally protected material such as medical records – then PROBABLE CAUSE is required. §46-4-301, et. seq. • Affidavit is prepared by prosecutor • May require production of records papers or other things. • Contempt is punishment for failure to comply BUT subject may receive immunity if compelled to testify.

4. Custodial Interrogation §46-4-401 • Must be recorded • Unrecorded statements may be admissible if voluntary and reliable OR one of the following: • Statement made as part of routine booking process • Subject refuses to talk if recorded • Unforeseeable equipment failure • Exigent circumstances prevent recording • Statements surreptitiously recorded • Statements made in compliance with law of another state where interrogation conducted NOTE: if custodial interrogation not recorded, court may give a cautionary instruction Investigative Tools, Cont.

5. Search & Seizure • A search occurs when the State infringes upon an individual’s reasonable expectation of privacy. Factors considered in determining whether an individual has a reasonable expectation of privacy (State v. Goetz and Hamper, 2008 MT 296, ¶ 27): • Does the individual express a subjective expectation of privacy? • Is this subjective expectation of privacy reasonable? • What is the nature of the state’s intrusion? In analyzing whether a SEIZURE has occurred, our Court recognizes the difficulty in assessing whether a reasonable person would feel free to leave because there is already a level of pressure or coercion to stay when an officer approaches an individual and begins questioning. So – an encounter between an officer and an individual is a seizure ONLY if the officer “adds to those inherent pressures by engaging in conduct significantly beyond that accepted in social intercourse.” Warrantless searches are per se unreasonable. Montana’s heightened privacy expectations require analysis of the above factors under the Montana constitution, not the federal constitution. Goetz, ¶23. Montana has more restrictive exceptions to warrant requirements. -No automobile exception -A dog sniff is a search requiring particularized suspicion -Particularized suspicion is required to search garbage -No curtilage -Warrant is required to record face to face or telephonic conversations with one party consent.

6. Search Warrants §46-5-101, et seq. • Either district court judge, justice of the peace or municipal court judge may issue • A warrant signed by a district court judge is valid throughout the state • JP or municipal court warrant only valid in geographical jurisdiction • Acting JP must properly appointed or warrant not valid. • Must be served within 10 days • Warrant served by showing original to person or at place to be searched and leaving a copy. • Reasonable force may be utilized in serving warrant. Persons on premises may be detained and searched but in least intrusive manner. • Grounds per §46-5-221 • Probable cause an offense has been committed • Probable cause that evidence, contraband or persons to be found in location described • Particularly describes location to be searched; and • Particularly describes items or persons to be seized.

7. TERRY STOP – Stop and Frisk • Particularized suspicion is required for Terry stop – the seizure is constitutionally reasonable, although there is no warrant, so long as the officer has reasonable suspicion that the person may be involved in criminal activity and so long as the stop is limited in scope and only as long as necessary to effectuate purpose. State v. Spaulding, 2011 MT 204, ¶18; §46-5-401(1), MCA. • The rationale for a warrantless search in this situation is that “necessarily swift action predicated upon the on-the-spot observations of the officer on the beat…historically has not been, as a practical matter cannot be, subjected to warrant procedure.” • “Particularized suspicion” is a factually driven inquiry dependent upon the totality of the circumstances. In evaluating the totality of the circumstances, a court should consider the quantity, or content, and quality, or degree of reliability of the information available to the officer. • Being in a high-crime zone and mere possible violations of the law are NOT sufficient to establish particularized suspicion. See State v. Graham (holding that two people, fully clothed, parked in a remote location, kissing passionately with one on top of the other while possibly morally offensive to the officer, was not criminal activity and therefore there was no particularized suspicion of an investigative stop).

8. ARREST • Miranda warning required before custodial interrogation. • Person may not be arrested in home at night for misdemeanor occurring at another place or time without a warrant. • Issuance of arrest warrant requires probable cause that person identified in warrant has committed offense. • WARRANTLESS ARREST: officer must believe person is committing or has committed offense and existing conditions require arrest. • NOTE: Arrest is the preferred response in partner or family member assault cases involving injury to the victim, use or threatened use of a weapon, etc. The officer must determine predominate aggressor in Partner Family Member Assault complaint using factors set forth in §46-6-311(2)(b) and may arrest only the predominant aggressor. • Regardless of whether arrest made with or without warrant, person must be brought before nearest and most accessible judge without unnecessary delay. • Defendant must be advised of certain rights: charge or charges, right to counsel, right to assigned counsel if indigent, right to pre-trial release or bond, conviction may result in loss of rights including rights regarding firearms, right to judicial determination of probable cause. • RIGHT TO COUNSEL: if a felony or a misdemeanor for which incarceration is a sentencing option.

9. Arrest, cont. • Bail is available in all but capital offenses. • Court may impose any condition that will reasonably ensure the defendant’s appearance or the safety of any person or the community. • Restrictions include prohibitions on the use of alcohol, travel outside the country or state, contact with victims or witnesses, possession of weapons. Must remain law abiding.

10. Commencement of the Prosecution • By Complaint (in justice court). • By Information (filed in district court) • By Indictment (returned by a grand jury).

11. Montana’s protection against double jeopardy is greater than that provided by the US Constitution. • §46-11-504(1): when conduct constitutes an offense within a different jurisdiction, a prosecution in that different jurisdiction bars a subsequent prosecution in Montana for an offense that arose out of the same transaction. • Three part test found at State v. Cline and discussed in your materials. Double Jeopardy in Montana

12. The Court can (and will) reject plea agreements. If it does so, the court must allow the defendant to withdraw his guilty plea. Guilty Pleas in Montana

13. Discovery • Required disclosure by the prosecution upon request: the names, addresses and statements of all persons whom the prosecutor may call as witnesses, all statements of the defendant and any person who will be tried with her, all written reports or statements of experts who have personally examined the defendant or any evidence in the particular case, all evidence the prosecutor may use at trial, all information that tends to mitigate or negate the defendant’s guilt as to the offense charged. Also shall inform the defendant whether the case involved an informant and the informants identity if entitled. • Required disclosure by the defendant: disclosure shall appear in a lineup; shall speak for identification of witnesses, must be fingerprinted, palm printed, footprinted or voice printed, shall pose for photos not involving reenactment, shall try on clothing, shall permit taking of samples of hair, blood saliva, urine, shall provide handwriting samples; or shall submit to reasonable physical or medical inspection (not including psychiatric or psychological). • Must provide prosecutor with written notice of defendant’s intention to introduce evidence of good character, or defenses of alibi, compulsion, entrapment, justifiable use of force or mistaken identity. • Must provide notice (within 10 days of receiving report of mental condition) provide prosecutor with written notice of intent to introduce defense of mental disease or defect, lack of state of mind that is essential element of the crime charged. • Statements of individuals whom the defendant intends to call including experts and the results of their tests, examinations, etc. • All evidence intends to use.

14. Montana Rules of Evidence apply in criminal proceedings unless otherwise stated.

15. Criminal Offenses Mental States – Conduct or Result Oriented

16. Purposely:aperson acts purposely with respect to a result or to conduct described by a statute defining an offense if it is the person’s conscious object to engage in that conduct or cause that result. • Knowingly: a person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when the person is aware of the person’s own conduct or that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when the person is aware that it is highly probable that the result will be caused by the person’s conduct. When knowledge of the existence of a particular fact is an element of an offense, knowledge is established if a person is aware of a high probability of its existence. • Negligence is defined criminally as the conscious disregard of a risk that the result will occur or that the cirumstance exists. The risk must be of a nature and degree that to diregard it involves a gross deviation from the standard of conduct that a reasonable person would aboserve in the actor’s situation. “Gross Deviation” means a deviation that is considerably greater than lack of ordinary care. Criminal Offenses Mental States

17. Accountability: persons aiding and abetting or soliciting a crime are legally accountable and subject to the same punishment as the person who commits the offense. §33-2-301. • Justifiable Use of Force: an affirmative defense. NOTE: in order to rely upon the defense, the defendant must first admit the act charged (and that defendant acted purposely or knowingly). • Note that the investigation by officers must be conducted so as to disclose all evidence, including testimony concerning the alleged offense and that might support the apparent or alleged justifiable use of force.

18. Your materials provide you with the statutory citation for various criminal offenses. • Three amendments or revisions: • HB 104: amends §45-5-102 and 45-5-103 to include purposely or knowingly causing the death of an unborn fetus with knowledge that the woman is pregnant – exempts abortion providers and other medical professionals, as well as the pregnant woman. • HB 478: revises the laws related to human trafficking by criminalizing the transport of persons across state lines for the purpose of commercial sexual activity and establishes the crimes of subjecting a child to sexual servitude and patronizing a child. Effective 7/1/13. • SB 160: creates the offense of criminal child endangerment, making it clear that the following acts constitute child abuse punishable by law: failing to obtain medical care when a child is critically injured; leaving a child in the care of a known abuser or sexual predator; driving drunk or under the influence of drugs or alcohol with child in the car; or failing to provide adequate nutrition to a child that results in a medical diagnosis of failure to thrive. Effective immediately upon enactment on April 25, 2013. • HB 446: amended the offense of disorderly conduct by deleting the discharge of firearms as a basis for a disorderly conduct offense. • HB 140: criminalizes new designer drugs such as “bath salts” and “spice” which mimic dangerous drugs so that any drug with a molecular structuresimilarto these compounds is also illegal under Montana law. END…