# Petition for Writ of Certiorari — Allen v. Montana (No. 09-239) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0860%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2009 ## Text ‘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).