Petition for Writ of Certiorari — Allen v. Montana (No. 09-239)

‘ol (‘) Supreme Court, U.S.

FILED

09-239 AUG 24 2009

No. __ OFFICE OF THE CLERK

In The

Supreme Court of the United States

Josh A. Allen,

Petitioner,

V.

State of Montana,

Respondent.

On Petition For Writ of Certiorari

To The Montana State Supreme Court

PETITION FOR WRIT OF CERTIORARI

Josh A. Ailen

Pro Se

P.O. Box 1621

Havre, Mt, 59501

(406)-269-2614

(406)-399-0326

QUESTIONS PRESENTED FOR REVIEW

1. Does a Citizen have a duty to identify himself to a

policeman when he knows or has reason to believe

that by identifying himself he will be revealing

information that will be used against him in a second

unrelated prosecution?

2. Can the State of Montana ignore established

federal case law by not allowing a Citizen to testify

in his own defense due to his religious beliefs?

3. Is M.C.A. 45-7-302: Obstructing a peace officer or

other public servant vague and ambiguous under the

14th amendment? Is it written so broadly that a

Citizen can be charged with a crime for exercising

bis Constitutional rights?

ll

PARTIES TO THE PROCEEDING

‘lhe Petitioner here is Josh Allen, pro se.

The Respondent here is Mike Mattioli Montana

State Assistant Attorney General.

11]

TABLE OF CONTENTS

Page

QUESTIONS PREGENTED.....00.sccccscrecessvsnvesvessencs 1

PARTIES TO THE PROCEEDING ............. eae eee 11

PETITION FOR A WRIT OF CERTIORARI ........... 1

CF ERI Ee SOUT T ocicninscvkadscduvacgusgpatererecissetenvecrees 1

SPIATEMENT OF JURISDICTION cicccssssccecvevsceness 1

STATUTORY PROVISIONS INVOLVED............... 1

STATEMEINE OF TIED CAS Give ccesccvecvecsercessstecveress 2

REASONS FOR GRANTING THE PETITION ......... 6

1. The Montana State Supreme Court erred in

its application of and blatantly ignored previous U.S.

Supreme Court decisions, the U.S. constitution, and

Montana Law in its answer to the question; Does a

Citizen have a duty to identify himself to a

policeman when he knows or has reason to believe

that by identifying himself he will be revealing

information that will be used against him in a second

URC OPRE PONCE ine scéssinrcsseessstrocsnnameceueatel 6

A. Petitioner was concerned that his name could be

the beginning link in a chain of evidence used to

connect him to a separate offense...........c cece eee ee ee eee 6

lV

TABLE OF CONTENTS-Continued

Page

B. Montana has no law requiring a citizen to

identify himself to a police officer. The Montana

State Supreme Court attempts to “bootstrap”

previous U.S. Supreme Court decision Haiibel v.

DOOR Gb DEINURIE TR oisoikcesxecevcceravesictsercssetaccen 9

C. M.C.A 45-7-302 Obstructing a peace officer 1s

vague and ambiguous in the same vein as Kolender

i, Ms davcucwace co 00c bee doxasuciciesvescaisee uriasaeeue ll

D. This was an arrest, not a detention................. 12

2. The Montana State Supreme Court ignored the

District court’s denial of Petitioner’s right to testify

in his own defense, due to his religious beliefs. This

decision is contrary to the 9» circuit federal court of

appeals decision in Gordon V. Idaho 778 F2d

Pee LP secs ccvneckuusieusasusas unkvbereersossaneage: 15

TABLE OF AUTHORITIES

APPENDIX

Montana State Supreme court decision filed March

Be rs 0 biel Gh cases cid uhunbredseebiehadadocssncusens App. l

Montana 12‘ judicial District court order denying

motion to dismiss filed March 27th 2008.......... App. 9

Montana 12» judicial District court judgment filed

PE EP Maiko sce ccekevnsesaceakbeccanevescectl App.18

Montana State Supreme refusal of petition for

rehearing filed May 12 2009...................08 App. 20

U.S. Constitutional Amendments I, V, VI, XIV

FES MEN RAE SENSE RETA TE NACE RAUL CoE EAD nR ig knee ee App.21

Notice of Refusal to Swear Or Affirm to Take An

SPN, FES By no vn ncced visas secencacetasacecadvcesd App.24

Page

Cases

Custody and Parental Right of D.S., 2005 MT 275

Rey cnt 1s ee 12

Berkemer v. McCarty, 468 U.S. 420, 439 (1984)..... 13

Boyd v. U.S._Supra; Brown v. Walker, 161 U.S.

NG ssi cicctvasusSexsnchabaaedeuer eases eoemeenrinisoreeas &

Dunaway v. New York, 442 U.S. 200, 211 n.12

Eo AES Pe aa EE RSPR DEN ee VObee ERG A ARCOM ry AL git ia

TABLE OF AUTHORITIES-Continued Page

Gordon v. Idaho, 778 F2d 1397 9% (1985)

federal circuit court of appeals oath issue..........5, 14

Hiibel v. Nevada 542 U.S. (2004).................. 00000. 4,7

Hoffman v. U.S. (CF 341 U.S. 479,486,71 CT.

ES Pe Btn a cpcadeccnsacudesseceuencsosacves 8

Kolender v. Lawson, 461 U.S. 352, 360n.9

RU A Ae here REDE Sgt ae oe me ee ee

Miller v. U.S. 230 F 486 at 489 (1956).................... 9

Miranda v. Arizona 384 U.S. 436 at 491 (1966)...8,13

Derry ¥. Cm, SEZ U.S. 1, 34 (EGGS)... 5s ccceccssesceses 13

William Malloy vs.Patrick J. Hogan, 378 U.S. 1, 8&4

TO Sea Nea eeyasncasasanws 8

CONSTITUTIONAL PROVISIONS

pe I I dc li say sdees se ivieuns sevens cascansg 0m

U.S. Const. amend V......... savy Oy 05 Oy bay By BA; ES

U.S. Const. amend VI...............:. puaccetcasiane te Ce ee

Cee, MHS, MIRO FLV 0... ccvecccsietviscseeet, LE, 24, 15

STATE STATUTES

NT I i ask snd cescapesantads eesewncsecies 3, 0, 24,02

Se Ie ok aro aue tsa vu teen ack tacasqine can ecaecsnn 9

OTHER AUTHORITIES

Holy Bible, James 5:12, Matthew 5:33-5:37....App. 24

Holy Bible, Book of proverbs 27:12..............04 App. 24

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Josh Allen respectfully requests

that a writ of certiorari issue to review the opinion of

the Montana State Supreme Court in this case and

that the opinion of the Montana State Supreme

Court be reversed.

OPINION BELOW

The opinion of The Montana State Supreme

Court, and that of the District Court, is available in

the Appendix.

STATEMENT OF JUSRISDICTION

The Montana State Supreme Court entered it’s

Appellate decision on March 24th 2009. The

Montana State Supreme Court denied Petitioner’s

motion for rehearing on May12th, 2009. Petitioner

filed for an extension to file a writ of certiorani, (ref.

doc.# 09a84) granted by Justice Kennedy on July 27%

2009, giving petitioner until August 25" 2009 to file

the writ. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. 1257.

CONSTITUTIONAL AND STATUTORY

PROVISIONS ARE CITED VERBATIM IN

APPENDIX

CONSTITUTIONAL PROVISIONS

U.S. Const. amend I, V, V1, ALV...........0000 App. 21-22

M.C.A. 45-7-302 Obstructing a police officer or other

Se MOWRINE. 5... asdnngaisapesend outa ceassiee eel uceeeel App. 22

M.C.A. 46-5-401 Investigative stop and frisk.App. 22

STATEMENT OF THE CASE

Petitioner, a resident of Montana, has had

prior to this case, numerous late-night run-ins with

law enforcement. Most of these occurred while

jogging. These situations involved an _ officer(s)

stopping and _ interrogated petitioner, always

demanding identification. This led petitioner on a

study of case law involving identification, including

Terry v. Ohio, Miranda v. Arizona, Brown v. Texas

etc.

The following is a statement of facts from the

petitioner's point of view, as petitioner wasn't

allowed to testify in District court and create any

contested issues of fact.

On March 22, 2007, Petitioner was walking

and jogging home from a Bar at about 2:00 a.m.

Petitioner was walking from out behind a building

when he saw a police car about one block away. The

cars turn signal was activated at the last second, and

the police car began to head toward petitioner.

Petitioner, wanting to avoid a late night

confrontation turned and walked back behind the

building he had just walked out from. Petitioner

went completely around the back of the building, and

proceeded to jog down an open alley (not lined with

buildings on both sides) in the same direction that he

had been walking before he saw the police car. After

about a half block of jogging, petitioner heard a siren

and car behind him. Petitioner stopped as the car

stopped and sheriff deputy Cory Matkin got out of

the car. The deputy ordered petitioner face down to

the ground, and immediately placed petitioner in

handcuffs. He then asked petitioner why he was

running. Petitioner replied he was jogging. The

deputy then asked petitioner his name. Petitioner

responded by asking if this was an arrest. The

deputy responded that it was a_ detention.

Petitioner, concerned that he had a warrant out for

his arrest for a speeding ticket, and believing this

was an arrest, chose to exercise his right to remain

silent and did not give the deputy his name, saying

he would exercise his right to silence. Petitioner

was frisked, and taken to the local jail. There,

petitioner was identified by his driver’s license.

Petitioner was charged with Obstructing a Peace

Officer, for refusing to identify himself, under

Montana Code Annotated (M.C.A.) 45-7-302,! a

misdemeanor, for which he served four and one half

days in jail. Petitioner refused to enter a plea before

the Justice of the Peace, instead entering an answer

to the complaint (doc.# 14), citing several similar

U.S. Supreme Court cases, and the fact that there

was no law in Montana requiring one to identify

oneself to a peace officer. During this tnrial,

petitioner was allowed to take the stand and testify

in his own defense without taking

' (1)The relevant section states that a person commits the

offense of obstructing a peace officer or other public servant if

the person knowingly obstructs, impairs, or hinders the

enforcement of the criminal law, the preservation of the peace,

or the performance of a governmental function, including

service of process.

(2) It is no defense to a prosecution under this section

that the peace officer was acting in an illegal manner, provided

that the peace officer was acting under the peace officer's

official authority

(3) A person convicted of the offense of obstructing a

peace officer or other public servant, including a person serving

process, shall be fined not to exceed $500 or be imprisoned in

the county jail for a term not to exceed 6 months, or both.

the oath or an affirmation, even though petitioner

did not give notice ahead of time, instead citing his

religious beliefs and relevant case law in favor of

them on the court room floor. The petitioner was

found guulty of obstruction, and given time served

and an $85.00 fine to cover court’ costs.

Petitioner filed a motion for trial de novo in

District Court. Petitioner then filed an answer to the

complaint and request for dismissal (docket# 36), on

1/07/2008. In this document (page 4) petitioner

raises the first federal question, stated exactly as it

is stated in this petition. The district court responds

by declaring that disclosure of a Defendant’s name is

not testimonial and therefore not in violation of

Miranda. See Appendix (App.) 6 para. 1l. The

Montana State Supreme Court responds to the same

question (app. 5 Para. 11) by citing Htibel v. Sixth

Jud. Dist. Ct. of Nevada, Humbolt Co., 542 US.

(2004) 2 -“A disclosure of a suspect’s name will not

implicate the self incrimination clause if it presents

no reasonable danger of incrimination.” The court’s

faulty logic in answering this question will be

exposed below in the reasons for granting the

petition. The second federal question is: can the

2 Nev. Rev. Stat. (NRS) §171.123(3) provides that:

“The officer may detain the person pursuant to this section only

to ascertain his identity and the suspicious circumstances

surrounding his presence abroad. Any person so detained shall

identify himself, but may not be compelled to answer any other

inquiry of any peace officer.” (continued on following page) 2It

was determined that by refusing to identify himself, Hiibel

violated NRS §199.280, which states:

“A person who, in any case or under any circumstances not

otherwise specially provided for, willfully resists, delays or

obstructs a public officer in discharging or attempting to

discharge any legal duty of his office shall be punished ...”

State of Montana ignore established federal case law,

and the first, fifth, sixth and fourteenth U.S.

Constitutianal amendments by not allowing a

Citizen to testify in his own defense due to his

religious beliefs? This issue was first raised when the

District court was notified of Petitioner’s stance on

the oath issue by way of His “notice of refusal to

swear or affirm to take an oath” (doc. #52) (app. 24-

25) filed almost one month ahead of trial. During the

trial, the Judge admits he didn't even bother to read

the notice (trial transcripts page 38-39), which was

well grounded in Federal case law at Gordon uv.

Idaho, 778 F2d 1397 9 (1985).

The district court decided this question at trial

by way of not allowing petitioner to testify (trial

transcripts page 38-41), Making the Montana rules

of evidence superior to the 9 circuit’s decision and

U.S. Supreme Court Decisions. The Montana State

Supreme Court answered the issue (App.7 para. 14)

exactly opposite to the intent of Gordon v. Idaho. 9th

fed.

The third federal question raised by petitioner

is whether M.C.A. 45-7-302, is unconstitutionally

vague and ambiguous in the same vein as

California’s Stop and identify statute which was

ruled unconstitutional in Kolender v. Lawson, 46]

J.S. 352 (1983). This was raised by petitioner in his

answer to the complaint page (doc.# page 5) and

refined in his appeal brief(s). The district court

answers (app.14 para.s). The Montana State

Supreme Court agreed with the District Court (app.6

para.12).

Petitioner timely filed a motion for rehearing,

which was denied on May 12, 2009. This timely

petition then followed.

REASONS FOR GRANTING THE PETITION

The Montana Supreme Court inconclusively

answers a question of national importance; which uf

answered, would help the general public better

understand what their Miranda rights are. The

Montana Supreme Court also decided important

legal questions pertaining to equal protection and

due process contrary to the 9» federal circuit.

1. The Montana State Supreme Court answers the

first federal question in an illogical manner,

inconsistent with U.S. Supreme Court case law, and

contrary to the intent of Montana law.

A. This petition for a writ of certiorari presents a

simple question: Does a Citizen have a duty to

identify himself to a policeman when he knows or

has reason to believe that by identifying himself he

will be revealing information that will be used

against him in a second unrelated prosecution? The

Montana Supreme Court (App. 2 para. 3) cites as a

finding of fact that Deputy Matkin wanted

petitioner's name for the purpose of looking for arrest

warrants. The petitioner stated that the reason he

didn’t give his name was that he was concerned that

he had a warrant for a speeding ticket (doc. 36 page,

4). This would obviously make petitioners name the

beginning link in a chain of evidence that could be

used against him to convict him of a_ scparate

offense. The Montana Supreme Court struck down

this defense (App. 5 para. 11), with the following:

“A disclosure of a suspect’s name will not

implicate the self-incrimination clause if it

presents “no reasonable danger of

incrimination.” Hiibel, 542 U.S. at 189, 1248.

Ct. at 2460. Allen asserted that he did not

provide his name because he was afraid he

would be arrested for outstanding speeding

tickets. However, this” allegation was

unsubstantiated, as a criminal history and

warrants check run on Allen after his arrest

showed no outstanding warrants or criminal

history. ‘This being so, the act of providing his

name provided no reasonable danger to Allen

that he would incriminate himself, nor would

it furnish a link in a chain of evidence which

could be later used to prosecute him. Hiibel,

542 U.S. at 190, 24 S. Ct. at 2461. Thus, the

disclosure of Allen’s name to Deputy Matkin,

under the circumstances of this case, would

not have been incriminating”.

This is backwards logic. According to the

Montana Court, a person would have to first prove

that there was a danger of incriminating oneself with

their name, in order to gain the fifth amendment

protection of not providing it due to its incriminating

nature. According to the logic put forth by the

Montana Court, one only has 5th amendment

protection if there is absolute proof beyond a shadow

of a doubt, that there is something incriminating

with which to need its protection. Which in turn

would imply that the person bring forth the

incriminating evidence to gain the protection of the

5t amendment. Obviously, by then the damage is

done. The U.S. Supreme Court declared that:

“The privilege afforded not only extends to

answers that would in themselves support

conviction under a federal criminal statute but

likewise embraces those which would furnish

a link in a chain of evidence needed to

prosecute the claimant for a_ federal

crime.....The claimant ts not required to prove

the precise danger since by so doing he would

be forced to disclose those very facts from

which the privilege protects. Hoffman v U.S.

(CF 341 U.S. 479,486,71 CT. 814,818,95 L Ed

1118. (1951)

“The (5 amendment privilege is not limited to

testimony, as ordinarily understood, but

extends to every means by which one may be

compelled to produce tnformation which_may

incriminate.” Boyd us. U.S._Supra; Brown vs

Walker, 161, U.S. 591. (1896)

The United States Supreme Court stated

further that all rights and_ safeguards

contained in the first eight amendments to the

federal constitution are equally applicable in

every state criminal action, “Because a denial

of them would be a denial of due process of

law.” William Malloy vs Patrick J. Hogan, 378

U.S. 1, 84 S. Ct. 1489. Argued March 5, 1964,

decided June, 15, 1964.

Where rights secured by the constitution are

involved, there can be no rulemaking or

legislation which would abrogate them.”

Miranda v. Arizona 384 U.S. 436 at 491.

(1966)

“The claim and exercise of a constitutional

right cannot be converted into a crime.” Miller

v. U.S. 2380 F 486 at 489.

Officer Matkin admits that he wants

Petitioner’s name in case he discovers some offense

later, in order to find him (App. 11 para.6). Petitioner

has brought up (doc. #36 page4) an extreme example

9

of a name being incriminating or being the beginning

link in a chain of evidence: if a Middle Eastern man

with a beard was stopped and questioned about his

name, and he said he was Osama Bin Laden, he

would be arrested immediately. Petitioner hopes it

is obvious to the learned court, all of the possible

occasions in which a name could easily be the

beginning link in a chain of evidence to convict him

of a separate offense. Petitioner would also ask the

Court to take notice that the factual circumstances

in Hitbel are arguably distinguishable from the :e of

Petitioner’s. They are different in that in F.zibel’s

case, officers were notified of a disturbance and

called out to a scene. In Petitioner’s case, the

officer's were acting in their own’ unfettered

discretion. Nevada law also specifically requires a

person to identify themselves to a peace officer, the

language in the Montana statute as discussed below,

indicates just the opposite. Petitioner resents the

repeated attempts to bootstrap Nevada law to him.

B. Montana, unhke other states has no specific law

requiring one to identify oneself to a peace officer on

demand. Petitioner brought this up during the

proceedings in justice court (doc.# 14.0) and the State

responded with M.C.A 46-5-401 as the law that

requires this (doc.# 15). © In fact the language in

M.C.A 46-5-401. Investigative stop and _frisk

indicates the intent of the lawmaker is not to require

a name when on foot.: (1) In order to obtain or verify

an account of the person’s presence or conduct or to

determine whether to arrest the person, a peace

officer may stop any person or vehicle that is

observed in circumstances that create’ a

particularized suspicion that the person or occupant

of a vehicle has committed, is committing or is about

to commit an offense.......... (2) A peace officer who

has lawfully stopped a person or vehicle under this

section may: (a) request the person’s name and

present address and an explanation of the person’s

actions and, if the person is a driver of a vehicle,

demand the person’s drivers license and the vehicle’s

registration and proof of insurance...........

The petitioner would ask the Court to take

note of two different words, request and demand, in

the same sentence, both pertaining to the reason for

the initial stop. The word demand is used when the

person is the driver of the vehicle. The word demand

if looked up in a legal dictionary, gives a

corresponding legal duty to supply what is

demanded. Defendant agrees 100% that due to the

contractual nature of having a drivers license that

the word demand is appropriate, and there is a legal

duty to supply it. This same contractual duty extends

to taking a breathalyzer when you have a driver's

license. However the word request is used in

circumstances other than driving such as _ the

Petitioner being on foot. A look at the word request

in a legal dictionary shows no corresponding legal

duty to supply that which is requested. Notice that

the person’s name, address and an explanation of the

person’s actions all fall under the word request. As

an example, if the person were engaged in an illegal

activity, and the officer requested an explanation of

his actions, that person would be under the 5th

amendment and would have no corresponding duty

to confess, and could not be punished for failing to

explain to the officer what he was doing. If the

lawmakers had intended to make it mandatory for

people to give their name to an officer, they would

have used the word demand instead of request.

1]

Petitioner has brought this up in the pleadings, in

his Answer and Demurr to complaint (doc# 36) and

at the preliminary hearing (page 40-43). Montana

has no law requiring one to identify oneself to an

officer, thus Petitioner is being punished for a

“noncrime” just as if he had plead into a fiction of

law

C. M.C.A. 45-7-302. Obstructing a peace officer or

other public servant, by way of allowing the State to

charge Petitioner with a crime for refusing to

identify himself, automatically implies that it

imposes a duty to identify oneself to a peace officer,

even though it doesn’t declare that in writing. Thus

even though it broadly defines obstruction, the

District Court and the State are construing it to

compel specific performance not — specifically

mentioned. This is what makes it vague and

ambiguous under the 14th amendment. M.C.A 45-7-

302. Obstructing peace officer or other public

servant, as being construed by the District court is

even more unconstitutionally vague than Kolender v.

Lawson, or Brown v. Texas, as at least the States

(California and Texas respectively) had laws on the

books to demand a name or I.D. The petitioner,

being a layman sees no standard of conduct in

rclation to providing ones name to a peace officer.

The requirement that “a person, who loiters and

wanders upon the streets, must present a “credible

and reliable identification” and account for their

presence when requested by a peace officer under

circumstances that would justify a Terry stop was

declared unconstitutionally vague. Kolender v.

Lawson, 461 U.S. 353 (1983) (order denying motion

to dismiss App. 14 para.8). The Statute was vague

under the 14t» amendment because it failed to clarify

12

what is contemplated by the requirement that a

suspect provide credible and reliable information.

What the Petitioner is trying to articulate is that at

least the California statute had some sort of a

requirement for I.D. where M.C.A 45-7-302 makes no

such requirement at all, and doesn’t specifically say

that failure to provide a name or I.D. is an

obstruction. It would seem to Petitioner, that if the

California statute is struck down because it doesn’t

have enough specificity in telling you exactly what

kind of I.D. is required, then M.C.A. 45-7-302 as it is

being applied to Petitioner in this case would have

even greater reason to be struck down, since it

mentions no form of I.D. at all. The District Court

cites Custody and Parental Rights of D.S., 2005 MT

275 P’s 15 & 16. “The person challenging a statue as

vague must prove that no standard of conduct is

specified at all”. Petitioner maintains that M.C.A 45-

7-302 doesn’t prove any standard of conduct at all in

regards to refusal to identifying oneself as a crime, or

a duty to identify oneself. Also cited in this

argument “A statute is void for vagueness in

Montana if it fails to give a person of ordinary

intelligence fair notice that contemplated conduct is

forbidden “. Petitioner is a person of ordinary

intelligence and would think he has the Miranda

right to silence, thus exercising that right is not a

crime. M.C.A. 45-7-302 is written so broadly that a

person who is guilty of murder, but refuses to confess

during an_ interrogation would be guilty” of

obstruction. However he would obviously be well

within his Fifth Amendment right to not confess.

D. The Petitioner was under arrest before being

asked his name, thus his Miranda right to silence

began at that time. Petitioner contends that being

13

placed in the dirt face down and handcuffed easily

meets any definition of arrest. The state contends

that this was just a terry stop and Matkin put

handcuffs on for his own protection, even thought

Matkin admits he had the Petitioner in custody

(police report). Matkin could have used the word

arrest just as easily as custody.

“A Terry stop or seizure cannot resemble a

traditional arrest” Dunaway v. New York, 442

U.S. 200, 212 (1979)

“There can be no doubt that the [ifth

Amendment privilege is available outside of

criminal court proceedings and serves to

protect persons in all settings in which their

freedom of action is curtailed in any

significant way from being compelled io

incriminate themselves.” Miranda v. Arizona,

384 U.S. 436,467 (1966).

“The Officer may ask the terry detainee a

moderate number of questions to determine

his identity and to try to obtain information

confirming or _ dispelling the _ officer’s

suspicions. But the detainee is not obliged to

respond” Berkemer v. McCarty, 468 U.S.

420,439 (1984).

The State insists that this was just a Terry Stop, and

not an arrest, but nowhere in Terry is mention made

of placing someone face down in the dirt in

handcuffs. The actions of Deputy Matkin converted

this into an arrest before any questions were asked.

Defendant, being a layman, and not a _ licensed

attorney who has gone to law school for 7 years,

understands the word anything in the Miranda

Warning to mean just that. The warning is designed

14

to make it easy for the average man on the street to

understand its meaning. If the Miranda Warning

has exceptions then it should be reworded, otherwise

the common man on the street will have to go to law

school to understand what those exceptions are and

when they apply.

2. The Montana Supreme Court denied Petitioner

equal protection and due process under the First,

Fifth, Sixth and Fourteenth Amendments of the U.S.

Constitution, by not allowing him to testify in his

own defense at trial. This petition for writ of

certiorari presents a simple question: may the State

of Montana deny a defendant equal protection and

due process by not allowing him to testify due to his

religious beliefs? Petitioner filed a document “notice

of refusal to swear an oath or affirm” nearly one

month ahead of trial, citing his religious beliefs and

relevant federal case Jaw, (App. 22). At trial, when

petitioner is not allowed to testify, Judge Rice admits

he didn’t even bother to read the notice (trial

transcripts page38-39). The Montana Supreme Court

claims that no denial of equal protection and due

process took place and that petitioner failed to

provide legal authority or argumerit to support his

contentions (App. 7 para. 14). Petitioner cites the

verse out of the bible that prohibits anything beyond

a yes or no answer. Petitioner then cites Gordon v.

Idaho, 778 F.2d 1397, 1400-01 9'» Cir.(1985). Gordon

also refused to take an oath or affirm due to religious

beliefs and wasn’t allowed to testify. The 9" circuit

ruled that the District Court erred by not probing to

find a way for Gordon to testify that would not offend

his religious beliefs, and subsequently reversed. In

Petitioner’s case, the District Judge had plenty of

time to read the notice, look up Gordon v. Idaho, and

1d

do the same thing to allow petitioner to testify. This

denial of equal protection and due process should by

itself be enough reason to reverse.

CONCLUSION

This petition presents an opportunity in which

to better understand Miranda rights, and further

define the Fifth, Sixth and Fourteenth Amendments

of the U.S. Constitution. The opinion below is clearly

erroneous as a matter of law, fails to comport with

reason, logic and common sense, conflicts with the 9t

Federal Circuit, intent of Montana lawmakers, and

most importantly previous case law of this Court. So

as to protect the Constitution and laws of the United

States, and prevent a slide down the slippery slope to

a police state, Petitioner prays that this Court issue

a writ of certiorari and vacate the judgment of the

Montana State Supreme Court.

Respectfully submitted,

Josh A. Allen pro se

P.O. Box 1621

Havre, MT 59501

(406) 265-2614

(406) 399-0326

App. 1]

DA 08-0249

IN THE SUPREME COURT OF THE STATE OF

MONTANA 2009 MT 90N

STATE OF MONTANA,

Plaintiff and Appellee,

Vv.

JOSH A. ALLEN,

Defendant and Appellant.

APPEAL FROM: District Court of the Twelfth

Judicial District, In and For the County of Hill,

Cause No. DC-2007-110 Honorable David G. Rice,

Presiding Judge

COUSEL OF RECORD:

For Appellant: Josh A. Allen, (self

represented), Havre, Montana

For Appellee: Hon. Steve Bullock, Montana

Attorney Gencral, Mark W. Mattioli, Assistant

Attorney General, Helena, Montana

Cyndee L. Peterson, Hill County Attorney, Lindsay

A. Osbourne, Deputy County Attorney, Havre,

Montana

Submitted on briefs: February 25, 2009

Decided: March 24 2009

Justice Patricia O. Cotter delivered the Opinion of

the Court.

l. Pursuant to Section I, Parayraph 3(d)(v),

Montana Supreme Court 1996 Internal Operating

Rules, as amended in 2003, the _ = following

memorandum decision shall not be cited = as

App. 2

precedent. It shall be filed as a public document

with the Clerk of the Supreme Court and its case

title, Supreme Court cause number and disposition

shall be included in this Court’s quarterly list of

noncitable cases published in the Pacific Reporter

and Montana Reports.

2. Josh A. Allen (Allen) appeals his conviction for

obstructing a peace officer, a misdemeanor in

violation of 45-7-302, MCA, in the Twelfth Judicial

District Court, Hill County. For the reasons set

fourth below, we affirm Allen’s conviction.

3. On March 22, 2007, at approximately 2:15

a.m., Hill County Deputy Sheriff Cory Matkin

(Deputy Matkin) was on routine patrol in Havre,

Montana. Deputy Matkin noticed a male, who later

turned out to be Allen, walk from the vicinity of

Kentucky Fried Chicken restaurant and duck out of

sight into a hedge at the corner of a nearby office

building. Deputy Matkin drove by the building and

saw the same person run into an alley at fairly high

speed. Deputy Matkin suspected that the person had

seen him and was running away to avoid detection

and contact with an officer, so he followed him in his

patrol car. As Deputy Matkin later testified, he

wanted to stop the individual to determine why he

was running from him, suspecting that his evasion

might be because of a warrant, violation of probation

or pretrial release conditions, or because he had

committed an offense in the area.

4. Deputy Matkin eventually caught up with

Allen, and activated the siren on his patrol car.

Allen stopped and dropped to the ground at Deputy

Matkin’s request. Deputy Matkin then placed Allen

in handcuffs, as his past experience with people who

run from officer suggested they were likely to fight.

App. 3

Allen made no threatening moves and did not

struggle with Deputy Matkin.

5, Deputy Matkin then asked Allen why he had

been running. Allen asked Deputy Matkin if he was

under arrest or being detained, and Deputy Matkin

responded that it was a detention. According to the

District Court’s factual findings in this matter, when

Allen was “told it was a detention, he said he was

exercising his right not to incriminate himself.”

When Deputy Matkin asked Allen his name, Allen

refused to provide it. Deputy Matkin informed Allen

that he was investigating his reason for running

from him, and that he was obstructing the

investigation by refusing to talk to him. When Allen

continued to refuse to provide his name, Deputy

Matkin arrested him for obstructing a peace officer.

6. Allen was subsequently convicted in justice

court, and appealed to the District Court for a de

novo bench trial. Prior to trial, Allen filed a motion

to dismiss the obstructing charge on the grounds

that Deputy Matkin lacked probable cause to arrest

him and that his constitutional rights under the

First, Fourth, Fifth and Fourteenth Amendments to

the United States Constitution were violated by his

arrest and the charge itself. The District Court

Denied the motion. The District Court concluded

that there was particularized suspicion to detain

Allen based on the circumstances of the case. The

District Court also reasoned that Allen’s running

from Deputy Matkin, couple with his refusal to

provide his name. after being told of the

investigation, provided probable cause to arrest and

charge him with obstructing. Additionally, the

District Court rejected Allen’s arguments that he

had a constitutional right not to provide Deputy

App. 4

Matkin with his name, and that the obstructing

statute was unconstitutionally vague.

7. At trial, Allen refused to take an oath or

affirm based on his personal religious beliefs, and

was not allowed to testify. Allen was subsequently

convicted at bench trial and this appeal followed.

8. Allen raises a number of issues on appeal

which we restate as follows. First, Allen asserts that

Deputy Matkin did not have particularized suspicion

to detain him or probable cause to arrest and charge

him. Second, Allen asserts that his refusal to

provide his name to Deputy Matkin was protected by

the self-incrimination clause of the Fifth Amendment

of the United States Constitution. Third, Allen

maintains that the obstructing statute under which

he was convicted is unconstitutionally vague. And

fourth, Allen maintains that he was denied equal

protection and due process when the District Court

refused to allow him to testify based on his refusal to

take an oath or affirm.

9, The grant or denial of a motion to dismiss in a

criminal case presents a question of law which we

review de novo. State v. Howard, 2008 MT 173,

Para.8, 343 Mont. 378, 184 P.3d 344. Our review ofa

motion to dismiss is plenary, and we dctermine

whether the district court’s conclusions of law are

correct. Howard, Para. 8. Any findings of fact in

support of a district court’s denial of a motion to

dismiss are reviewed under the clearly erroneous

standard. Howard, Para. 9

LO We conclude the District Court did not err in

denying Allen’s motion to dismiss. We agree with

the District Court that there was _ particularized

suspicion to justify the stop of Allen and probable

App. 5

cause to arrest him for obstructing. Particularized

suspicion 1s based on objective data from which an

officer can infer that the person stopped is or has

been engaged in wrongdoing. Brown. v. State, 2009

MT 64, Para. 20, Mont.___, =P.3d__. Whether

particularized suspicion is present is based on the

totality of the circumstances. State v. Fellers, 2004

MT 321, Para. 21, 324 Mont. 62, 101 P.3d 764.

Probable cause to arrest is established when the

facts and circumstances within an officer’s personal

knowledge are sufficient to warrant a reasonable

person to believe that someone is committing or has

committed and offense. State v. Williamson, 1998 MT

199, Para. 12, 290 Mont. 321, 965 P.2d 231. Here,

Allen’s evasive behavior at 2 a.m. provided sufficient

particularized suspicion for Deputy Matkin to detain

him, and his ensuing refusal to provide his name

supplied probable cause to arrest and charge him

with obstructing under these circumstances.

11. In this connection, we also agree with the

District Court that Allen’s mght against self-

incrimination did not protect him from having to

provide his name to Deputy Matking. The privilege

against self-incrimination protects an_ individual

from being compelled to implicitly or explicitly

disclose information or relate factual assertions of an

incrimination nature. Hiibel v. Sixth Jud. Dist. Ct.

of Nevada, Humbolt Co., 542 U.S. 177, 189, 124 S.

Ct. 2451, 2460 (2004). <A disclosure of a suspect’s

name will not implicate the self-incrimination clause

if it presents “no reasonable danger of

incrimination.” Hitbel, 542 U.S. at 189, 124 S. Ct. at

2460. Allen asserted that he did not provide his

name because he was afraid he would be arrested for

outstanding speeding tickets. However, this

App. 6

allegation was unsubstantiated, as a criminal history

and warrants check run on Allen after his arrest

showed no outstanding warrants or criminal histcry.

This being so, the act of providing his name provided

no reasonable danger to Allen that he would

incriminate himself, nor would it furnish a link in a

chain of evidence which could be later used to

prosecute him. Altibel, 542 U.S. at 190, 24 S. Ct. at

2461. Thus, the disclosure of Allen’s name to Deputy

Matkin, under the circumstances of this case, would

not have been incriminating.

12. We also agree with the District Court that the

obstructing statute under which Allen was charged

and convicted was not unconstitutionally vague.

This statute reads as follows:

Obstructing peace officer or other public

servant. (1) A person commits the offense of

obstructing a peace officer or public servant it the

person knowingly obstructs, impairs, or hinders the

enforcement of the criminal law, the preservation of

peace, or the performance of a governmental

function, including service of process. (2) It is no

defense to a prosecution under this section that the

peace officer was acting in an illegal manner,

provided that the peace officer was acting under the

peace officer's official authority.

Section 45-7-302)(1)and(2), MCA.

13. We presume statutes are constitutional, and

the party challenging a statute bears the burden of

proving the statute’s invalidity beyond a reasonable

doubt. Jn re Custody and Parental Rights of D.S.,

2005 MT 275, Para. 15, 329 Mont. 180, 122 P.3d

1239. A statute is vague on its face if it fails to give a

person of ordinary intelligence fair notice that her

App. 7

contemplated conduct is forbidden. Custody of D.S.,

Para. 16. The party challenging a statute for

vagueness faces a hig’ burden of proof in showing

that the statute specifies “no standard of

conduct....at all” which is prohibited. Custody of

D.S., Para. 16 (quotation omitted). We agree with

the District Court that Allen failed to meet his high

burden. The obstructing statute does give fair notice

to a person of ordinary intelligence of the prohibited

conduct and is not unconstitutionally vague.

14. Finally, we conclude that the District Court

did not deny Allen his equal protection or due

process when it required him to take an oath or

affirm as a precondition to testifying in court. M.R.

Evid. 603 states that “[blefore testifying, every

witness shall be required to declare that the witness

will testify truthfull, by oath or affirmation

administered in a form calculated to awaken the

witness’ conscience and impress the witness’ mind

with the duty to do so.” See also Gordon v. Idaho,

778 F.2d 1397, 1400-01 (9t» Cir. 1985) (discussing the

federal counterpart to M.R. Evid. 603). Allen has

simply failed to show that the imposition of the oath

or affirmation requirement of M.R. Evid. 603 has

denied him equal protection of the laws, due process,

or otherwise impinged upon his rights. While Allen

asserts that certain tenets of his faith prevent him

from complying with this rule, he has provided no

legal authority or argument to support his contention

that he should be completely excused from the oath

or affirmation requirement in M.R. Evid. 603 prior to

giving testimony in court.

15. We have determined to decide this case

pursuant to Section 1, Paragraph 3(d)(v) of our 1996

Internal Operating Rules, as amended in 2003,

App. 8

which provides for memorandum opinions. It is

manifest on the record before us that the District

Court did not err in its disposition of this matter

when it denied Allen’s motion to dismiss and

subsequently convicted him of _ obstructing.

Therefore, we affirm.

App. 9

Hon. David G. Rice 2008 March, 27

District Judge

Hill County Courthouse

Havre, MT 59501

Tel: 406-265-5481, Ext 231

MONTANA TWELFTH JUDICIAL DISTRICT

COURT, HILL COUNTY

THE STATE OF MONTANA )Cause No. DC-07-110

Plaintiff, )

Vs ) ORDER DENYING

JOSH ABEL ALLEN, ) MOTION TO

Defenaant. ) DISMISS

STATEMENT OF THE CASE: Defendant

appeals a conviction in Hill County Justice Court for

the offense of Obstructing a Peace Officer. He filed a

motion to dismiss the charge in this Court because

he feels the officer lacked probable cause and his 15,

4th 5th, and 14th Amendment rights were violated by

the charge. The State resists the motion and argues

that there was particularized suspicion for the stop,

probable cause for the arrest, and no reason to

dismiss the charge for constitutional reasons.

Essentially, Defendant argues that he could not be

required to give his name to the officer an if the

statute requires that, it 1s unconstitutionally vague.

The Court received evidence at a hearing on March

3, 2008. Hill County Deputy Sheriff Cory Matkin

App. 10

testified and was cross-examined by Defendant, who

appeared without counsel. Hill County Deputy

County Attorney Lindsay Osbourne appeared for the

State. Both parties filed briefs before the hearing so

the Court considers the matter submitted for

decision.

ISSUES:

1. Whether particularized suspicion justified

detention of Defendant.

2. Whether probable cause supported issuance of

the complaint.

a. Whether Defendant had a constitutional right

to refuse to give his name to an officer.

4. Whether 45-7-302, MCA, is unconstitutionally

vague.

FINDINGS OF FACT: In addition to any finding of

fact stated on the record at the hearing of this

motion, the Court enters the following findings:

1. Deputy Matkin was on patrol at about 2:15 a.m.

on March 22, 2007, in the west end of Havre, Hill

County, Montana. Matkin is an experienced officer

with a number of years of service and training for his

current position of Deputy Sheriff.

2. In the area of Kentucky Fried Chicken and the

professional office of Dr. Beardsley, Matkin saw a

male walk across from KFC and then duck out of

sight into a hedge at the northwest corner of the

professional building. As Matkin drove near the

building, the person ran along the north side, turned

south, and then ran west into the alley at a high

speed run.

App. 11

3. As Matkin suspected the person had seen him and

may be running to avoid detection and contact with

an officer, he drove around the professional building

and followed the person down the alley. Matkin

wanted to stop the person and determine why he was

running away. He suspected the person’s evasion

might be because of a warrant, probation conditions,

pretrial release conditions, or that he was an

offender for some offense in the area.

4. As Matkin caught up to the person behind KFC,

across the street from the professional building, he

hit his siren. The person then stopped and got on the

ground as requested by the deputy. He placed the

person in handcuffs as his experience with people

who run suggested they could be fighters. The

person made no threatening moves and did not

struggle with the officer.

5. When Matkin asked the person why he was

running away, he asked the deputy if this was a

detention or arrest. When he was told it was a

detention, he said he was exercising his right not to

incriminate himself. Matkin then asked his name to

check his status. Again the person refused to answer

saying that he was not talking to the officer.

6. Deputy Matkin then told the person that he was

investigating his reason for running and he was

obstructing that investigation by refusing to talk to

him. Matkin wanted to determine the person’s

identity and detain him if necessary. In addition, by

detaining him, he could check the area for evidence

of an offense and know his identity if later

investigation connected to him to any offense. Even

App. 12

after Matkin told the person he was obstructing him

by refusing to tell him his name, he refused to tell

him.

ry

7. Matkin then arrested the person for refusal to telt

him his name. He later found out the Defendant’s

name after he was taken to the detention center.

Deputy Matkin then issued him a ticket in violation

of 45-7-302 MCA, in Hill County Justice Court and

stated that Defendant obstructed a peace officer “by

fleeing from a deputy on foot and failing to identify

himself upon apprehension”. (See notice to Appear

and Complaint).

LEGAL PRINCIPLES:

1. The Court has jurisdiction over this matter.

Montana requires that a peace officer stop a person

only after the officer has developed a particularized

suspicion to warrant the stop.46-5-401 (1), MCA. To

paraphrase “particularized suspicion” , an officer

must have objective facts from which an experienced

officer can make inferences that lead to a suspicion

that a person has committed, is committing, or is

about to commit an offense. State v. Gopher, 193

Mont. 189, 194, 631 P.2d 293, 296 (1981). It

continues to be reaffirmed that the totality of the

circumstances surrounding the stop are to be

considered. State v. Grindeland, 2001 MT 196, 306

Mont. 262, 265, 32 P.3d 767.

2. “A peace officer who has lawfully stopped a person

or vehicle under this section may: (a) request the

person’s name and present address and an

explanation of the person’s action....”’46-5-401 (2) (a),

App. 13

MCA. There is no criminal penalty attached to this

statute.

3. “ A person commits the offense of obstructing a

peace officer or public servant if the person

knowingly obstructs, impairs, or hinders’ the

enforcement of the criminal law, the preservation of

the peace or the performance of a governmental

function, including service of process. 45-7-302 (1),

MCA.

4. “When a complaint is presented to a court

charging a person with the commission of an offense,

the court shall examine the complaint or any

affidavits, if filed, to determine whether probable

cause exists to allow the filing of a charge.” 46-11-

110 MCA. “The charge must be in writing and in the

name of the state or the appropriate county or

municipality and must specify the court in which the

charge is filed. The charge must be plain, concise,

and definite statement of the offense charged,

including the name of the offense, whether the

offense is a misdemeanor or felony, the name of the

person charged, and the time and place of the offense

as definitely as can be determined. The charge must

state for each count the official or customary citation

of the statute, rule regulation, or other provision of

laws that the defendant is allege to have violated.”

46-11-401, MCA.

5. “Probable cause to arrest is established if the facts

and circumstances within an officer's personal

knowledge....are sufficient to warrant a reasonable

person to believe that someone is committing or has

committed an offense”. State v. Williamson, 1998

MT 199 Para. 12.

App. 14

6. “ Sections 45-2-101 (34) (statutory definition of

“knowingly”) and 45-7-302 (1), MCA, require that an

individual obstructing a peace officer must engage

in conduct under circumstances that make him or

her aware that it is highly probable that such

conduct will impede the performance of a peace

officer’s lawful duty. In other words, the City had to

prove that Cameron was aware that his conduct

would hinder the execution of the Officer’s duties.”

City of Kalispell v. Cameron, 2002 MT 78, Para. 11.

“One may obstruct an officer by refusing a request to

state one’s name and _ address, to _ produce

identification, or to show a driver's license. However.

this assumes that the failure hindered the officer in

performing a duty.” 58 Am Jur 2d “Obstructing

Justice” 62.

7. In Brown v. Texas, 443 U.S. 47 (1979), a

conviction for Defendant’s failure to identify himself

was overturned because the officers who made the

arrest did not have any reasonable suspicion to

suspect Defendant of any criminal conduct.

8. The requirement that a person, who loiters and

wanders upon the streets, must present a “credible

and reliable identification” and account for their

presence when requested by a peace officer under

circumstances that justify a Terry stop was declared

unconstitutionally vague. Kolender v. Lawson, 461

U.S. 353 (1983). The statute was vague under the

14% Amendment because it failed to clarify what is

contemplated by the requirement that a_ suspect

provide credible and reliable identification. Too much

discretion was placed in officers so that the average

App. 15

person could not determine compliance with the law.

A statute is void for vagueness in Montana if it fails

to give a person of ordinary intelligence fair notice

that contemplated conduct is forbidden. The person

challenging a statute as vague must prove beyond a

reasonable doubt in that no standard of conduct is

specified at all. Custody and Parental Rights of D.S.,

2005 MT 275 Para. 15 &16.

9. The disclosure of a Defendant’s name and other

expressions of a voice is not testimonial and

therefore neither suppressible nor in violation of

Miranda. State v. Devlin, 1999 MT 90 Para. 21.

There is no violation of the right to remain silent,

unreasonable search and seizure, of violation of free

speech.

ANALYSIS: Defendant has requested dismissal of

the Complaint in a pre-trial setting. The Court can

easily find that particularized suspicion existed for

Deputy Matkin to stop Defendant. At that late hour,

a person who runs when a police car is present

warrants contact. While the person may not be

involved in any criminal activity, the officer has a

duty to be sure he is not wanted or in violation of

release conditions. In addition, the officer has a

legitimate reason to identify the person in case some

offense is later discovered. Deputy Matkin’s reasons

for stopping Defendant are very reasonable in lght

of his experience. While it is not an offense to run

unless Defendant knows that the officer is after him,

running from an officer is certainly a suspicious

activity at that time of night. All that must be found

for particularized suspicion is present as Deputy

Matkin pursued Defendant. Beyond that, once his

name was requested and he was told that Matkin

App. 16

was investigating his reason for running, he knew

that he could be charged with obstruction. There

does not need to be an actual crime for the officer to

do his duty in checking out the reason for

Defendant's furtive movements. The running couple

with refusal to give a name after being told of the

investigation establishes probable cause to charge

the offense. Whether Defendant is actually guilty

will be determined at trial. For now, a reasonable

person could easily find grounds to believe that

Defendant violated the statute by refusing to give his

name after being told that he was detained to learn

the reason for his running. He has no valid

constitutional right to refuse to merely give his

name. That was all that was asked.

Defendant’s challenge to the constitutionality

of the statute is not supported. The cases he cites do

not support his argument. Particularized suspicion

is present here so Brown does not apply. The

Supreme Court never reached the constitutionality of

the statute in Texas. The Montana statute clearly

requires the State to prove a person knowingly

violates the law by acts that obstruct, impair, or

hinder enforcement of the criminal law, preservation

of the peace, or the performance of a governmental

function. Nothing could be plainer for a person who

runs from an officer to know that the officer wants to

know why he is running. Whether he is actually

guilty is for trial. However, the officer must

establish the obstruction and show what is being

interfered with by a defendant's acts. There are a

number of cases like Cameron, where the acts of a

defendant do not reach that level and the charges

must be dismissed. That is not the case at this stage

of this pre-trial proceeding as the Court has not yet

App. 17

heard the State’s case. Defendant's citation to

Kolender is also not persuasive as the Montana

statute requires the officer to show that his activity

meets the statute and Defendant’s acts obstruct that

activity. The Montana statute has been in place for

many years without challenge to its constitutionality

for vagueness. In this case, it is not merely the

running that resulted in the charge, but the running

and later refusing to answer a simple question about

his name. While Defendant promptly stopped, and is

not guilty of anything at that stage, once he knew

that the officer was investigating his activity and

wanted to know his name, he was on notice that the

officer was performing his duty. Whether he

obstructed the officer’s duty is for trial. However for

now, the charge will not be dismissed.

CONCLUSIONS OF LAW:

1. Particularized suspicion was present for the stop

of Defendant and probable cause to charge him arose

after the stop.

2. Defendant had no constitutional right to refuse to

give his name to Deputy Matkin.

3. 45-7-302, MCA, is not unconstitutionally vague.

Based on the above Findings and Conclusions of

Law, Defendant's motion to dismiss is DENIED.

This matter will proceed to trial before the Court

without a jury.

DATED this 26'» day of March, 2008 District Judge

App. 18

Hon. David G. Rice 2008 March, 28

District Judge

Hill County Courthouse

Havre, MT 59501

Tel: 406-265-5481, Ext 231

MONTANA TWELFTH JUDICIAL DISTRICT

COURT, HILL COUNTY

THE STATE OF MONTANA )Cause No. DC-07-110

Plaintiff, )

Vs ) JUDGEMENT

JOSH ABEL ALLEN, )

Defendant. )

This matter came before the Court for bench

trial on March 27, 2008. Defendant appeared Pro Se

and the State was represented by Lindsay A.

Osbourne, Deputy Hill County Attorney.

Testimony was presented, and the court found

defendant guilty of Obstruction a Peace Officer, a

misdemeanor. Therefore,

IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED, as follows:

1. Defendant is guilty of the offense of Obstructing

a Peace Officer, a misdemeanor, in violation of

45-7-302, MCA.

App. 19

2. Imposition of sentence is deferred for six (6)

months, subject to the following conditions:

a. Defendant shall pay a fine of $100.00, with credit

for time previously served, thus discharging the fine.

b. Defendant shall pay the mandatory $15.00

prosecution fee, $50.00 victim’s fee and $20.00

surcharge.

c. Defendant shall remain law abiding.

d. Defendant must keep in contact with the Hill

County Attorney’s office and notify them of any

change of address.

3. Sentence is stayed pending appeal to the Montana

Supreme Court.

ORDERED from the bench the 27» day of March,

2008. Dated this 28th day of March, 2008.

JUDGE OF DISTRICT COURT

App. 20

IN THE SUPREME COURT OF THE STATE OF

MONTANA

DA 08-0249

FILED MAY 12, 2009

STATE OF MONTANA,

Plaintiff and Appellee

Vv.

JOSH A, ALLEN,

Defendant and Appellant.

Petitioner Josh A. Allen, appearing as a self-

represented litigant, has filed a_ Petition for

Rehearing in the captioned matter, and the State of

Montana has filed a response objecting to the

Petition. Due consideration having been given to the

Petition, IT IS HEREBY ORDERED that the

Petition for Rehearing is DENIED. IT IS FURTHER

ORDERED that the Clerk of this Court serve a copy

of this Order upon counsel of record and upon Allen

at his last known address. Dated this 12 day of May,

2009.

App. 21

lst Amendment U.S. Constitution. Congress shal]

make no law respecting an establishment of religion,

or prohibiting the free exercise thereof; or abridging

the freedom of speech, or of the press; or the right of

the people peaceably to assemble, and to petition the

Government for a redress of grievances.

5th Amendment U.S. Constitution. No person

shall be held to answer for a capital, or otherwise

infamous crime, unless on presentment. or

indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offense to be

twice put in jeopardy of hfe or limb; nor shall be

compelled in any criminal case tc be a witness

against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall

private property be taken for public use, without just

compensation.

6th Amendment U.S. Constitution. In all criminal

prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the

State and district where in the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature

and cause of the accusation; to be confronted with

the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defense

14t Amendment U.S. Constitution. Section 1. All

persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they

reside. No State shall make or enforce any law which

App. 22

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, lberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

45-7-302. Obstructing peace officer or other

public servant. (1) A person commits the offense of

obstructing a peace officer or public servant if the

person knowingly obstructs, impairs, or hinders the

enforcement of the criminal law, the preservation of

the peace, or the performance of a governmental

function, including service of process.

(2) It is no defense to a prosecution under this

section that the peace officer was acting in an illegal

manner, provided that the peace officer was acting

under the peace officer's official authority.

(3) A person convicted of the offense of obstructing

a peace officer or other public servant, including a

person serving process, shall be fined not to exceed

$500 or be imprisoned in the county jail for a term

not to exceed 6 months, or both.

46-5-401. Investigative stop and frisk. (1) In

order to obtain or verify an account of the person's

presence or conduct or to determine whether to

arrest the person, a peace officer may stop any

person or vehicle that is observed in circumstances

that create a particularized suspicion that the person

or occupant of the vehicle has committed, is

committing, or is about to commit an offense. If the

stop is for a violation under Title 61, unless

emergency circumstances exist or the officer has

reasonable cause to fear for the officer's own safety

or for the public's safety, the officer shall as promptly

as possible inform the person of the reason for the

stop.

App. 23

(2) A peace officer who has lawfully stopped a

person or vehicle under this section may:

(a) request the person's name and present address

and an explanation of the person's actions and, if the

person is the driver of a vehicle, demand the person's

driver's license and the vehicle's registration and

proof of insurance; and

(b) frisk the person and take other reasonably

necessary steps for protection if the officer has

reasonable cause to suspect that the person is armed

and presently dangerous to the officer or another

person present. The officer may take possession of

any object that is discovered during the course of the

frisk if the officer has probable cause to believe that

ihe object is a deadly weapon until the completion of

the stop, at which time the officer shall either

immediately return the object, if legally possessed, or

arrest the person.

(3) A peace officer acting under subsection (2)

while the peace officer is not in uniform shall inform

the person as promptly as possible under the

circumstances and in any case | 2fore questioning the

person that the officer is a peace officer.

App. 24

Josh A. Allen

P.O. box 1621

Havre, MT 59501

(406) 265-2614

MONTANA TWELFTH JUDICIAL DISTRICT, HILL

COUNTY HONORABLE DAVID G. RICE DISTRICT

JUDGE HILL COUNTY COURTHOUSE HAVRE,

MONTANA

THE STATE OF MONTANA )CAUSE NO. DC-07-

plaintiff ) 110

vs NOTICE OF REFUSAL TO

Josh A. Allen SWEAR OR AFFIRM OR

defendant TAKE AN OATH

COMES NOW the Defendant, Josh A. Allen, to

enter a NOTICE OF REFUSAL TO SWEAR OR

TAKE AN OATH, to wit: According to the

Defendant’s truly and sincerely held religious beliefs

from the bible the Defendant cannot swear or take

an oath. The Defendant cannot Affirm either, as this

is synonymous with swearing, this issue was taken

before the court in Gordon v. Idaho. The Defendant

would ask the court to accept this as dicta, and

respect the Defendant’s religious beliefs in this

preliminary hearing and trial. The bible instructs in

the book of James, 5:12 “But above all, my brethren,

do not swear, either by heaven or by earth or with any

other oath, but let your yes be yes and your no be no,

that you may not fall under condemnation”.

App. 25

This instruction ts repeated at Matthew 5:33-

5:37 “Again you have heard that it was said of the

men of old, ‘you shall not swear falsely, but shall

perform to the Lord what you have sworn.’ But I say

to you, Do not swear at all, either by heaven, jor it is

the throne of God, or by earth, for it is his footstool, or

by Jerusalem, for it ts the city of the great King. And

do not swear by your head, for your cannot make one

hair white or black. Let what you say be simply ‘Yes’

or ‘No’: anything more than this comes from evil.” The

Defendant does agree to tell the truth, and it should

be pointed out that swearing to tell the truth, or

taking an oath hasn’t stopped anyone from lying

anyway.

Dated this 29th day of February, 2008

Respectfully Submitted

Pro Se