United States v. Mark Allen Shephard

Opinion by Judge REINHARDT.

The issue in this case is whether Montana law enforcement officers who arrest probationers for violating the terms of their probation must do so in accordance with Mont. Code Ann. § 46-23-1012 . We hold that they must, and reverse Shephard’s conviction.

I.

On July 7,1989, an informant told Missou-la County Sheriff Deputy Willis Hintz that Mark Allen Shephard, on probation for a state felony, was not complying with the condition of his probation that required him to attend regular meetings in Helena, Montana. He also told Hintz that Shephard had written some bad cheeks. Hintz informed Shephard’s probation officer, who orally authorized Hintz to arrest Shephard.

Hintz and another deputy went to the house where Shephard was staying, knocked at the door, and were told to come in. They opened the door, saw Shephard among a group of people in the living room, and asked him to step outside with them. Outside, they told him that he was under arrest for probation violation. Shephard asked Hintz to go back inside to retrieve his wallet for him. Leaving Shephard outside with the other deputy, Hintz entered the apartment. In Shephard’s bedroom, Hintz saw the…