State v. Bennett

No. 12076

I N T E SUPREME C U T O THE STATE O M N A A
H OR F F OTN

T E STATE O M N A A
H F OTN,

P l a i n t i f f and A p p e l l a n t ,

R S M R BENNETT, NANCY WILLIAMS
OE A Y
and VERNON BROOKS,

Defendants and Respondents.

Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
Honorable Truman G. Bradford, Judge p r e s i d i n g .

Counsel of Record:

For Appellant:

Hon. Robert L. Woodahl, Attorney General, Helena,
Montana.
David Gliko, A s s i s t a n t Attorney General, appeared,
Helena, Montana.
J. Fred Bourdeau, County Attorney, Great F a l l s , Montana.
N e i l Ugrin, Deputy County Attorney, argued, Great F a l l s ,
Montana.

For Respondents:

Robert Tucker argued, Great F a l l s , Montana.
Gregory Warner argued, Great F a l l s , Montana.

Submitted: December 1, 1971

Decided: 7 - Im.
Filed : FEe 7 - 1p
9
Mr. J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e C o u r t .

T h i s a p p e a l i s t a k e n by t h e s t a t e o f Montana from a n

o r d e r s u p p r e s s i n g e v i d e n c e by t h e d i s t r i c t c o u r t i n t h e e i g h t h

j u d i c i a l d i s t r i c t , county o f Cascade. The e v i d e n c e s u p p r e s s e d

by t h e c o u r t w a s s e i z e d a t t h e t i m e o f t h e a r r e s t o f t h e t h r e e

d e f e n d a n t s Rosemary B e n n e t t , Nancy W i l l i a m s , and Vernon Brooks

on J a n u a r y 2 9 , 1971, i n G r e a t F a l l s , f o r t h e crime o f p o s s e s s i o n

o f dangerous d r u g s .

The a r r e s t o f d e f e n d a n t s and s e i z u r e of t h e e v i d e n c e was

made i n Apartment 4-W a t 913 Second Avenue North, i n G r e a t F a l l s ,

by D e t e c t i v e s James Cook and Robert D u l l . A t t h e t i m e of t h e

a r r e s t , t h e d e t e c t i v e s d i d n o t have a s e a r c h w a r r a n t n o r d i d t h e y

have a w a r r a n t t o a r r e s t , The arrest w a s accomplished by e n t r y

t h r o u g h an open door i n t o t h e a p a r t m e n t , which w a s r e n t e d by

two of t h e d e f e n d a n t s , Rosemary B e n n e t t and Nancy W i l l i a m s .

P r i o r t o t h e evening o f t h e arrest, D e t e c t i v e s Cook

and D u l l and D e t e c t i v e Ray Smith had c o l l e c t i v e l y exchanged i n -

f o r m a t i o n o b t a i n e d from a r e l i a b l e i n f o r m a n t c o n c e r n i n g p r e v i o u s

d r u g a c t i v i t y i n Apartment 4-W. A d d i t i o n a l l y , t h e owner o f t h e

a p a r t m e n t house, a M r s . Kinnison r e s i d i n g i n C a l i f o r n i a , had

t e l e p h o n e d D e t e c t i v e Smith g i v i n g i n f o r m a t i o n t h a t d r u g s p o s s i -

b l y were b e i n g used i n t h a t p a r t i c u l a r a p a r t m e n t . Independently,

o t h e r i n f o r m a t i o n from a p r e v i o u s l y used and r e l i a b l e i n f o r m a n t
1

was o b t a i n e d by D e t e c t i v e D u l l t h a t "Butch Brooks" w a s a d e a l e r

i n d r u g s and t h a t "he had a i l o a d o f a c i d . " D e t e c t i v e Cook t e s t i -

f i e d he had r e c e i v e d i n f o r m a t i o n P r o m a p r e v i o u s l y used and

r e l i a b l e i n f o r m a n t t h a t Brooks was g e n e r a l l y i n v o l v e d w i t h d r u g s .
Detective Cook also testified that another informer told him

Brooks had brought a supply of LSD to Great Falls, but Cook

was unable to testify as to the reliability of that informant.

Based on the landlady's complaint and information re-

ceived, Detectives Cook and Dull on the evening of the arrest

proceeded to conduct an investigation of Apartment 4-W. As

Detective Cook went inside the main lobby, a common entrance of

the apartment house, and into the manager's office, he observed

defendant Brooks enter the building and walk toward Apartment

4-W. Cook called Detective Dull on a portable radio; Dull enter-

ed the building and together they proceeded toward Apartment 4-W.

At this time, they were in the common lobby to the apartment

building and not in any individual apartment.

Upon reaching Apartment 4-W, the detectives found the

door to the apartment open and an ggder emanating therefrom,

which they testified was "burning marijuana". The detectives

entered the apartment, walked up a short stairway or flight of

stairs, and observed the three defendants sitting around a table

on which there was a marijuana roach (burned marijuana stub or

butt), and a clear plastic bag containing what they believed to

be marijuana. The defendants were immediately placed under

arrest and the marijuana roach was seized, along with the bag

of marijuana.

The controlling issue to be decided here is whether the

officers had probable cause, under the circumstances, to make an

arrest without a warrant, in a constitutionally protected area.

The lawfulness of defendants' arrests must be measured
by t h e s t a n d a r d s p r e s c r i b e d i n s e c t i o n 95-608, R.C.M. 1947,

t h e p e r t i n e n t p a r t o f which p r o v i d e s :

" A r r e s t by a peace O f f i c e r . A peace o f f i c e r
may a r r e s t a p e r s o n when:

" (d) H e b e l i e v e s on r e a s o n a b l e g r o u n d s , t h a t
t h e p e r s o n i s committing an o f f e n s e , o r t h a t
t h e p e r s o n h a s committed a n o f f e n s e and t h e
e x i s t i n g c i r c u m s t a n c e s r e q u i r e h i s immediate
arrest."

S e c t i o n 95-606 R.C .M. 1947, p r o v i d e s :

" A r r e s t w i t h o u t a w a r r a n t . A peace o f f i c e r
o r p e r s o n making a n a r r e s t w i t h o u t a w a r r a n t
must inform t h e p e r s o n t o b e a r r e s t e d of h i s
a u t h o r i t y , i f any, of t h e i n t e n t i o n t o a r r e s t
him and t h e c a u s e o f t h e a r r e s t , e x c e p t when ,
t h e p e r s o n t o b e a r r e s t e d i s a c t u a l l y engaged
i n t h e commission o f o r i n a n a t t e m p t t o commit
an o f f e n s e , o r i s pursued immediately a f t e r
i t s commission, o r a f t e r an e s c a p e , o r when
t h e g i v i n g of such i n f o r m a t i o n w i l l i m p e r i l
the arrest."

S e c t i o n 9 5 - 6 0 8 ( d ) , R.C.M. 1947, t o g e t h e r w i t h s e c t i o n

95-606, R.C.M. 1947, empowers a p o l i c e o f f i c e r t o a r r e s t w i t h o u t

a w a r r a n t , where s u f f i c i e n t p r o b a b l e c a u s e t o a r r e s t i s found.

P r o b a b l e c a u s e h a s been d e f i n e d as " r e a s o n a b l e ground f o r b e l i e f

o f g u i l t " and h a s been d i s t i n g u i s h e d a s b e i n g more t h a n b a r e

suspicion. B r i n e g a r v. United S t a t e s , 338 U.S. 1 6 0 , 69 S.Ct.

1302, 93 L ed 1879, 1890, r e h e a r i n g d e n i e d 338 U.S. 839, 70

S.Ct. 31, 94 L ed 513; Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223,

I n B r i n e g a r t h e s t a n d a r d of p r o b a b l e c a u s e i s d e s c r i b e d :

"Probable c a u s e e x i s t s where ' t h e f a c t s and c i r -
cumstances w i t h i n t h e i r [ t h e o f f i c e r s ' ] knowledge,
and o f which t h e y had r e a s o n a b l y t r u s t w o r t h y i n -
f o r m a t i o n , [ a r e ] s u f f i c i e n t i n themselves t o
w a r r a n t a man of r e a s o n a b l e c a u t i o n i n t h e b e l i e f
 that' an offense has been or is being committed.
Carroll v. United States, 267 U.S, 132, 69
L ed 543, 555, 45 S.Ct. 280, 39 ALR 790."

-
In Beck probable cause was discussed as follows:

"The constitutional validity of the search
in this case, then, must depend upon the con-
stitutional validity
of the petitioner's arrest. Whether that arrest
was constitutionally valid depends in turn upon
whether, at the moment the arrest was made,
the officers had probable cause to make it--
whether at that moment the facts and circum-
stances within their knowledge and of which they
had reasonably trustworthy information were
sufficient to warrant a prudent man in believ-
ing that the petitioner had committed or was
committing an offense. Brinegar v. United
States, 338 U.S. 160, 175-176, 93 L ed 1879,
1890, 69 S Ct 1302; Henry v. United States,
361 U.S. 98, 102, 4 L ed 2d 134, 138, 80 S Ct
168. 'The rule of probable cause is a practical,
nontechnical conception affording the best com-
promise that has been found for accomodating * * *
often opposing interests. Requiring more would
unduly hamper law enforcement, To allow less
would be to leave law-abiding citizens at the
mercy of the officers' whim or caprice.' Brine-
gar v. United States, supra, 338 U.S. at 176, 93
L ed at 1891." (Emphasis supplied.)

With the foregoing as background, defendants argue that

the facts of the present case known by the detectives prior to

the arrests, did not constitute sufficient probable cause to

make the arrests. They argue at length that the detectives

relied principally upon the odor of drugs to base their probable

cause to make the arrests, and that such probable cause does

not constitute a legally recognized basis of probable cause to

arrest. Defendants rely on Johnson v. United States, 333 U.S.

Johnson examined the lawfulness of an arrest for posses-

sion of opium, when such warrantless arrest was based upon in-

formation given by a confidential informer pertaining to the use
of narcotics in a hotel room. Upon investigation four exper-

ienced narcotics agents confirmed that information, in recognizing

the distinctive and unmistakable order of opium emanating from

the room. An arrest was made and a search'conducted incidental

to the arrest, which uncovered opium and smoking apparatus.

The United States Supreme Court held in Johnson:

" * * * Thus the Government guiCe properly
stakes the right to arrest, not on the in-
formerls tip and the smell the officers
recognized before entry, but on the know-
ledge that she was alone in the room, gained
only after, and wholly by reason of, their
entry of her home. It was therefore their
observations inside of her quarters, after
they had obtained admission under color of
their police authority, on which they made
the arrest.

"Thus the Government is obliged to justify
the arrest by the search and at the same time
to justify the search by the arrest. This
will not do. An officer gaining access to
private living quarters under color of his
office and of the law which he personifies
must then have some valid basis in law for
the intrusion. Any other rule would under-
mine 'the right of the people to be secure
in their persons, houses, papers and effects,'
and would obliterate one of the most funda-
mental distinctions between our form of
government, where officers are under the
law, and the police-state where they are the
law. " (Emphasis supplied. )

Johnson carefully stressed the importance of testing

evidence before a magistrate and the necessity of obtaining a

search or arrest warrant prior to entry, arrest and search. An

additional point stressed in Johnson was the necessity of look-

ing to the law of the respective states:
"Since it was without warrant, it [the arrest]
could be valid only if for a crime committed
in the presence of the arresting officer or
for a felony of which he had reasonable cause
to believe defendant guilty." (Bracketed
 material added.) (Footnote at p. 441,
92 L ed: "State law determines the valid-
ity of arrests without warrant, United
States v. Di Re, 332 U.S. 581, ante, 210,
68 S Ct 222, decided January 5, 1948.")

The rationale of Johnson is that regardless of the in-

formation the officers had from all sources and the immediate

smell of opium emanating from the room, the arrest was finally

based on what was observed after entry. This reasoning would

restrict the warrentless arrest to acts committed within the

officers view outside any constitutionally protected area, and

provides for no exceptions.

Since Johnson in 1948, courts have recognized exceptional

circumstances which permit entry and arrest and expand the nar-

row view adopted in Johnson. Ker v. California, 374 U.S, 23,

83 S.Ct. 1623, 10 L ed 2d 726 (1963), involved a warrantless

arrest for possession of marijuana where probable cause to arrest

was founded upon police observation of the suspect, information

from a reliable informant, and an address uncovered by research

into the registry of an automobile license plate. The police

officers went to the apartment building and obtained a passkey

from the building manager which enabled the officers to enter

the apartment unannounced, thereby-effecting the arrest and

search incidental to the arrest.

In Ker the defense contended that the lawfulness of
the petitioners' arrests, even if they were based upon probable

cause, was vitiated by the method of entry, to which the United

States Supreme Court answered in Section 111 of its opinion:

"This Court, in cases under the Fourth
Amendment, has long recognized that the
lawfulness of arrests for federal offenses
i s t o b e d e t e r m i n e d by r e f e r e n c e t o s t a t e
law i n s o f a r a s it i s n o t v i o l a t i v e o f t h e
F e d e r a l C o n s t i t u t i o n . Miller v. United
S t a t e s , s u p r a ; United S t a t e s v . D i R e ,
332 U.S. 581 (1948); Johnson v . United
S t a t e s , 333 U . S . 1 0 , 15, n. 5 (1948).
A f o r t i o r i , t h e l a w f u l n e s s o f t h e s e arrests
by s t a t e o f f i c e r s f o r s t a t e o f f e n s e s i s t o
b e determined by C a l i f o r n i a law. C a l i f o r n i a
P e n a l Code, S844, p e r m i t s peace o f f i c e s t o
b r e a k i n t o a d w e l l i n g p l a c e f o r t h e purpose
of arrest a f t e r demanding a d m i t t a n c e and
e x p l a i n i n g t h e i r purpose. Admittedly t h e
o f f i c e r s d i d n o t comply w i t h t h e terms of
t h i s s t a t u t e since they entered q u i e t l y
and w i t h o u t announcement, i n o r d e r t o p r e v e n t
t h e d e s t r u c t i o n o f contraband. The C a l i f o r n i a D i s t r i c t
C o u r t of Appeal, however, h e l d t h a t t h e c i r -
cumstances h e r e came w i t h i n a j u d i c i a l excep-
t i o n which had been e n g r a f t e d upon t h e s t a t u t e
by a series of d e c i s i o n s , see, e . g . , People v.
Ruiz, 146 CaP. App. 2d 630, 304 P.2d 175 (1956) ;
P e o p l e v. Maddox, 46 Cal.2d 301, 294 P.2d 6 ,
c e r t . d e n i e d , 352 U.S. 858 (1956) , and t h a t
t h e noncompliance was t h e r e f o r e l a w f u l .

"Since t h e p e t i t i o n e r s ' f e d e r a l c o n s t i t u t i o n a l
p r o t e c t i o n from u n r e a s o n a b l e s e a r c h e s and
s e i z u r e s by p o l i c e o f f i c e r s i s h e r e t o b e
determined by whether t h e s e a r c h w a s i n c i -
d e n t t o a lawful a r r e s t , we a r e warranted i n
examining t h a t a r r e s t t o d e t e r m i n e w h e t h e r ,
n o t w i t h s t a n d i n g i t s l e g a l i t y under s t a t e l a w ,
t h e method of e n t e r i n g t h e home may o f f e n d
f e d e r a l c o n s t i t u t i o n a l standards of reasonable-
n e s s and t h e r e f o r e v i t i a t e t h e l e g a l i t y of a n
accompanying s e a r c h . W e f i n d no such o f f e n s i v e -
n e s s on t h e f a c t s h e r e . Assuming t h a t t h e o f -
f i c e r s ' e n t r y by u s e of a key o b t a i n e d from
t h e manager i s t h e l e g a l e q u i v a l e n t o f a
" b r e a k i n g , " see Keiningham v. United S t a t e s ,
1 0 9 U.S. App. D.C. 272, 276, 287 F.2d 1 2 6 , 130
(C.A.D.C. C i r . 1960) , it h a s been r e c o g n i z e d
from t h e e a r l y common l a w t h a t such b r e a k i n g
i s p e r m i s s i b l e i n e x e c u t i n g a n arrest under
c e r t a i n c i r c u m s t a n c e s . See Wilgus, A r r e s t
Without a Warrant, 22 Mich. L. Rev. 541,
798, 800-806 ( 1 9 2 4 ) . Indeed, 1 8 U.S.C. S3109,
d e a l i n g w i t h t h e e x e c u t i o n of s e a r c h w a r r a n t s
by f e d e r a l o f f i c e r s , a u t h o r i z e s b r e a k i n g o f
d o o r s i n words v e r y s i m i l a r t o t h o s e of t h e
C a l i f o r n i a s t a t u t e , both s t a t u t e s including a
 requirement of notice of authority and
purpose. * * *
I1
Finally, the basis of the judicial ex-
ception to the California statute, as
expressed by Justice Traynor in People v.
Maddox, 46 Cal.2d, at 306, 294 P.2d, at 9,
effectively answers the petitioners' con-
tention :

"'It must be borne in mind that the primary
purpose of the constitutional guarantees
is to prevent unreasonable invasions of the
security of the people in their persons,
houses, papers, and effects, and when an
officer has reasonable cause to enter a dwell-
ing to make an arrest and as an incident to
that arrest is authorized to make a reasonable
search, his entry and his search are not unreason-
able. Suspects have no constitutional right
to destroy or dispose of evidence, and no basic
constitutional guarantees are violated because
an officer succeeds in getting to a palce where
he is entitled to be more quickly than he would,
had he complied with section 844. Moreover,
since the demand and explanation requirements
of section 844 are a codification of the common
law, they may reasonably be interpreted as
limited by the common law rules that compliance
is not required if the officer's peril would
have been increased or the arrest frustrated
had he demanded entrance and stated his purpose.
v.
(~ead Case, 4 Conn. 166, 170 110 Am. Dec.
l 6 1 ; see Rest., Torts, S 206, corn. d. 1 Without
i-
the benefit of hindsight and ordinarily on the
spur of the moment, the officer must decide
these questions in the first instance.'"
(Emphasis supplied.)

The language in - becomes somewhat stronger when we
Ker

recognize that after entry by the officers Mrs. Ker, who was

present, was also placed under arrest, which strikes directly

- -
at the rationale of Johnson.
Section 95-608 (d) , R.C.M. 1947, requires, along with

probable cause, that "existing circumstances require his immediate

arrest." Within the constitutional guarantees of the Fourth
Amendment of t h e United S t a t e s C o n s t i t u t i o n , t h e p r o c e d u r e s o f

s t a t e l a w govern t h e c i r c u m s t a n c e s which e x i s t i n each i n d i v i -

d u a l case prompting t h e a r r e s t . B a s i c a l l y t h e immediacy of

an arrest w i l l r e s t , a s it always h a s , on t h e " r e a s o n a b l e grounds"

f o r t h e b e l i e f t h a t an o f f e n s e i s b e i n g committed " o r t h a t t h e

p e r s o n h a s committed an o f f e n s e and t h e e x i s t i n g c i r c u m s t a n c e s

r e q u i r e h i s immediate arrest."

Montana law d o e s n o t have t h e s t a t u t o r y mandate c o n t a i n e d

i n C a l i f o r n i a P e n a l Code, 5844, r e q u i r i n g t h e o f f i c e r s t o f i r s t

demand a d m i t t a n c e and g i v e an e x p l a n a t i o n o f purpose. Neverthe-

less, t h e Montana C r i m i n a l Law Commission comment t o s e c t i o n

95-606, R.C.M. 1947, r e c o g n i z e d a s i m i l a r p r o c e d u r e f o r w a r r a n t -

less arrests w i t h t h e c o r r e s p o n d i n g e x c e p t i o n s r e c o g n i z e d i n

California. The Commission c i t e d S t a t e v. Gay, 18 Mont. 51,

4 4 P. 4 1 1 ; S t a t e v . Bradsahw, 53 Mont. 9 6 , 1 6 1 P. 710; and quoted

#
d i r e c t l y from A l t i z e r v. S t a t e , -21 0kl.Cr.App. 229, 205 P. 1106,

"From t h e f o r e g o i n g p r o v i s i o n s it i s s e e n t h a t
t h e f i r s t d u t y o f an o f f i c e r i n a t t e m p t i n g t o
make an a r r e s t w i t h o u t a w a r r a n t (where t h e
a r r e s t e d p e r s o n i s n o t arrested d u r i n g t h e
a c t u a l commission o f t h e o f f e n s e o r h a s e s c a p e d
and i s immediately pursued) i s t o inform t h e
person t o b e a r r e s t e d of h i s a u t h o r i t y i n s o
a c t i n g and t h e c a u s e f o r s o a c t i n g . I f t h i s
s i m p l e p r o v i s i o n of t h e s t a t u t e w e r e more
c l o s e l y observed by a r r e s t i n g o f f i c e r s ( a s it
s h o u l d b e ) , w e a r e convinced t h a t t h e r e would
be much less t r o u b l e i n making arrests w i t h o u t
a warrant. "

A r e c e n t case b e f o r e t h i s C o u r t , S t a t e v . H u l l , -
Mont. - 487 P.2d 1314, 28 St.Rep.
, 721, r a i s e d t h e i d e n t i c a l

i s s u e of p r o b a b l e c a u s e t o a r r e s t a b s e n t a s e a r c h w a r r a n t o r a
warrant of a r r e s t . -
I n H u l l , p r i o r i n f o r m a t i o n from a r e l i a b l e

i n f o r m a n t was c o l l e c t e d , t o g e t h e r w i t h a p o l i c e i n v e s t i g a t i o n ,

t o g i v e t h e p o l i c e o f f i c e r s t h e f o l l o w i n g p i c t u r e as d e s c r i b e d

t h i s Court :

"Here a ' p o t p a r t y ' was i n p r o g r e s s , d e f e n d a n t
was a g u e s t a t t h i s p a r t y and a p a r t i c i p a n t
t h e r e i n , and t h e aroma o f b u r n i n g o r b u r n t
m a r i j u a n a w a s emanating from t h e p r e m i s e s , a l l
of which was known t o t h e o f f i c e r s p r i o r t o
t h e i r e n t r y , a r r e s t , and s e a r c h o f t h e p a r t y -
90erSa A s s u c h , t h e d e f e n d a n t ' s c o n n e c t i o n
w i t h t h e i l l e g a l a c t i v i t i e s t h e n and t h e r e i n
p r o g r e s s e x t e n d s beyond h i s mere p r e s e n c e on
t h e premises where o f f i c e r s have r e a s o n t o
b e l i e v e t h e r e a r e d r u g s . " (Emphasis s u p p l i e d . )

Defendants h e r e i n d i c a t e i n t h e i r argument t h a t Johnson

i s t h e l a t e s t c a s e ( F e d e r a l 1948) i n v o l v i n g " s m e l l " and must

control. F i r s t , t h e problem p r e s e n t e d h e r e i n v o l v e s a much

wider area o f c o n s i d e r a t i o n t h a n j u s t l o o k i n g t o c a s e s i n v o l v -

i n g a s m e l l f a c t o r i n t h e p r o b a b l e c a u s e d e t e r m i n a t i o n , as h a s

been d i s c u s s e d . Second, t h i s case i n v o l v e s more f a c t s t h a n

j u s t t h e s m e l l of t h e drug, p r i o r t o e n t r y .

I n holding t h a t t h e r e w a s s u f f i c i e n t probable cause t o

make a w a r r a n t l e s s a r r e s t i n - t h i s C o u r t was aware and
Hull,

gave c o n s i d e r a t i o n t o t h e g u a r a n t e e s of t h e F o u r t h and F o u r t e e n t h

Amendments o f t h e United S t a t e s C o n s t i t u t i o n . The C o u r t was

e q u a l l y aware o f t h e now w e l l r e c o g n i z e d e x c e p t i o n s t h a t have

been adopted i n Montana s i n c e Johnson and approved by t h e United

S t a t e s Supreme C o u r t .

Considering a l l t h e f a c t s here involved, we f i n d t h e

arrests t o b e w i t h i n t h e e x c e p t i o n s d i s c u s s e d .
 Accordingly, the order of the district court suppress-

ing the evidence is reversed. The cause is remanded for further

proceedings.