No. 13595
I N THE SUPREME COURT O F THE STATE O MONTANA
F
1977
THE STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-vs-
ALBERT F. LENON,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e Eleventh J u d i c i a l
District,
Honorable R o b e r t S y k e s , Judge p r e s i d i n g .
Counsel o f Record:
For A p p e l l a n t :
Hash, J e l l i s o n & O ' B r i e n , K a l i s p e l l , Montana
James B a r t l e t t a r g u e d , K a l i s p e l l , Montana
F o r Respondent:
Hon. l4ike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , l b n t a n a
J . Mayo Ashley a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l ,
Helena, Montana
P a t r i c k S p r i n g e r , County A t t o r n e y , K a l i s p e l l ,
Montana
Submitted: September 2 1 , 1977
DecidedGT 26 1x
x
m 2s 191.
Filed.
Mr. Chief J u s t i c e P a u l G. H a t f i e l d d e l i v e r e d t h e Opinion o f
t h e Court.
Defendant a p p e a l s from a c o n v i c t i o n o f p o s s e s s i o n o f
dangerous d r u g s .
The s t a t e c h a r g e d d e f e n d a n t i n d i s t r i c t c o u r t , F l a t h e a d
County, w i t h t h e o f f e n s e o f f e l o n y p o s s e s s i o n o f dangerous d r u g s .
On J a n u a r y 28, 1976, Honorable Robert C. Sykes, a f t e r a h e a r i n g ,
d e n i e d d e f e n d a n t ' s motion t o s u p p r e s s h i s c o n f e s s i o n . On A p r i l
20, 1976, d e f e n d a n t was found g u i l t y o f t h i s o f f e n s e a t a j u r y
trial. On J u n e 2 , 1976, t h e c o u r t e n t e r e d judgment, sentenced
d e f e n d a n t t o f i v e y e a r s imprisonment, and t h e n suspended t h e
sentence. On J u n e 21, 1976, t h e c o u r t d e n i e d d e f e n d a n t ' s a l t e r -
n a t i v e motions f o r a c q u i t t a l o r f o r a new t r i a l .
The f a c t s b r o u g h t o u t a t t h e t r i a l which are r e l e v a n t
t o t h i s appeal a r e a s follows: On J u n e 11, 1975, K a l i s p e l l p o l i c e
o f f i c e r s o b t a i n e d a w a r r a n t t o s e a r c h a K a l i s p e l l house. The
o f f i c e r s e x e c u t e d t h e w a r r a n t s h o r t l y b e f o r e m i d n i g h t on F r i d a y ,
J u n e 1 3 , 1975. A s t h e y approached t h e h o u s e , t h e y o b s e r v e d a n
i n d i v i d u a l , 8 t o 10 f e e t i n f r o n t o f them, a p p r o a c h i n g t h e house
on t h e f r o n t walk. The o f f i c e r s , f e a r i n g t h a t t h e i n d i v i d u a l
would a l e r t t h e o c c u p a n t s o f t h e house a s t o t h e imminent s e a r c h ,
p u r s u e d t h e i n d i v i d u a l i n t o t h e house. Policeman Donald Hossack
t e s t i f i e d t h a t , from t h e l i g h t i n t h e house f o y e r , h e c o u l d
i d e n t i f y t h e i n d i v i d u a l by h i s h e i g h t , t y p e and c o l o r o f s h i r t ,
h a i r c o l o r and l e n g t h , b u i l d and t y p e of j e a n s . The i n d i v i d u a l
had a bundle o r bag under h i s arm, and s i l h o u e t t e d i n t h e house
l i g h t , i t a p p e a r e d t o be a brown p a p e r bag.
The o f f i c e r s e n t e r e d t h e house f o u r t o s i x s e c o n d s a f t e r
the individual did. Upon t h e i r e n t r y , t h e o f f i c e r s came f a c e -
t o - f a c e w i t h d e f e n d a n t , who matched t h e a p p e a r a n c e o f t h e i n d i v i d -
u a l t h e y saw e n t e r t h e house w i t h t h e bag o r bundle. Directly
b e h i n d d e f e n d a n t , a b o u t t h r e e o r f o u r s t e p s up t h e s t a i r w a y ,
was a brown p a p e r bag. The o f f i c e r s i n t h e i r s e a r c h , s e i z e d
v a r i o u s d r u g p a r a p h e r n a l i a and m a r i j u a n a i n t h e u p s t a i r s
rooms. The brown p a p e r bag d i r e c t l y behind d e f e n d a n t c o n t a i n e d
16 " l i d s " o f m a r i j u a n a , weighing a p p r o x i m a t e l y one ounce p e r
lid. The p o l i c e o f f i c e r s w r o t e an i n v e n t o r y o f t h e i t e m s s e i z e d ,
which t h e y l e f t a t t h e house, and r e t u r n e d t h e s e a r c h w a r r a n t
and an i n v e n t o r y o f t h e s e i z e d i t e m s t o t h e c o u r t . The p o l i c e
o f f i c e r s , however, f a i l e d t o make a r e t u r n o f t h e brown p a p e r
bag o f m a r i j u a n a t o t h e c o u r t which i s s u e d t h e s e a r c h w a r r a n t .
The o f f i c e r s t h e n a r r e s t e d d e f e n d a n t and t h e two p e o p l e
who were t h e s u b j e c t s o f t h e s e a r c h w a r r a n t . Defendant and t h e
two o t h e r a r r e s t e e s were r e a d t h e i r Miranda r i g h t s and t h e n
t r a n s p o r t e d t o t h e K a l i s p e l l C i t y j a i l f o r booking p u r p o s e s .
A t t h e p o l i c e s t a t i o n t h e o f f i c e r s gave d e f e n d a n t a form p r i n t e d
w i t h t h e Miranda warnings. Defendant s i g n e d t h a t form. The
Booking p r o c e d u r e w a s completed sometime between 2 : 3 0 and 3 : 0 0 a.m.
on S a t u r d a y , J u n e 1 4 , 1975, a t t h e F l a t h e a d County j a i l .
S h o r t l y b e f o r e 9:00 a . m . on S a t u r d a y , J u n e 1 4 , 1975,
O f f i c e r Hossack m e t i n t h e j a i l w i t h d e f e n d a n t . The o f f i c e r d i d
n o t remember whether he gave d e f e n d a n t a v e r b a l Miranda warning
a t t h e i r 9 : 0 0 a.m. meeting, although he has a n o t a t i o n i n h i s
records saying t h a t he d i d . The o f f i c e r gave d e f e n d a n t a "volun-
t a r y s t a t e m e n t " form w i t h a Miranda-like warning p r i n t e d a t t h e
top. Defendant t h e n , i n h i s own h a n d w r i t i n g , w r o t e t h a t h e had
t a k e n a s a c k c o n t a i n i n g m a r i j u a n a i n t o t h e house on t h e n i g h t he
was arrested. No lawyer was p r e s e n t a t t h e c o n f e s s i o n .
O f f i c e r Hossack t e s t i f i e d t h a t he d i d n o t know i f i n
f a c t d e f e n d a n t knew h e d i d n o t have t o make a s t a t e m e n t , d i d n o t
know whether d e f e n d a n t knew he c o u l d have a lawyer p r e s e n t , and
d i d n o t know whether d e f e n d a n t knew h i s s t a t e m e n t c o u l d be used
a g a i n s t him i n a c o u r t o f law. The o f f i c e r d i d s t a t e , though,
that he read defendant the top part of the "voluntary statement"
form which listed defendant's right to an attorney and his right
to remain silent.
Officer Hossack, who had been a "friendly acquaintance"
of defendant for ten to fifteen years, assured defendant that he
would bring him before a judge and get him admitted to bail as
soon as possible. The justice of the peace was out of town and
defendant did not have his initial appearance until the morning
of Monday, June 16, 1975. The officer testified that " * * *
for my own clarification and for a better case * * *" he thought
he told defendant to add in a statement that the sack was brown
colored. Defendant did write this into the confession and signed
it at the bottom.
Defendant raises the following issues on appeal:
1. Did the police have probable cause to arrest defen-
dant?
2. Did the "then existing circumstances" require de-
fendant's immediate arrest, as contemplated in section 95-608(d),
R.C.M. 1947?
3. Was defendant's confession voluntarily given?
4. Did the officers' failure to present defendant be-
fore a magistrate before interrogation render the confession in-
admissible?
5. Did Officer Hossackls statement at trial that he was
looking specifically for the brown paper bag before he went into
the house constitute reversible error?
6. Did the police officers' failure to make a return
of the brown paper bag of marijuana, render the seized evidence
inadmissible under section 95-712, R.C.M. 1947?
Defendant states that "good faith and mere suspicion"
by policemen as to a suspect's commission of an offense is
insufficient to establish probable cause to arrest. The mere
fact that a defendant is on the premises where the policemen
have reason to believe there are drugs will not justify an arrest.
State ex rel. Glantz v. District Court, 154 Mont. 132, 461 P.2d
193 (1969). There must be a showing of some connection with
illegal or criminal activity by a defendant on the premises be-
fore there is probable cause to arrest him. State v. Hull, 158
Mont. 6, 487 P.2d 1314 (1971).
Defendant argues that there were insufficient facts to
connect him with the brown paper bag of marijuana at the time
of the arrest. At most, the facts gathered by the peace officers
at the moment of arrest, gave reason for them to be suspicious
of the defendant.
Defendant is indubitably correct in his assertion that
"mere suspicion" is not the equivalent of probable cause to arrest.
State v. Lahr, Mont . , 560 P.2d 527, 34 St.Rep. 90 (1977).
A peace officer may legally arrest a person without a warrant,
however, when he "believes on reasonable grounds that the person
is committing an offense * * *". Section 95-608(d), R.C.M. 1947.
The "reasonable grounds" requirement of section 95-608(d) is
synonymous with "probable cause". State v. Fetters & Lean, 165
Mont. 117, 526 P.2d 122 (1974). "Probable cause to arrest without
a warrant exists where the facts and circumstances within the
officer's knowledge and of which he had reasonably trustworthy
information are sufficient in themselves to warrant a man of reason-
able caution in the belief that an offense has been or is being
committed." State v. Hill, Mont . 550 P.2d 390, 33 St.
Rep. 496 (1976).
Defendant matched the physical appearance as to cloth-
ing, statute, build and hairstyle of the individual that the
officers saw enter the house immediately before them; the individual
who entered the house carried a brown sack; the officers con-
fronted defendant immediately upon entering the house; the
officers discovered a brown paper bag full of marijuana on the
steps directly behind defendant. In this case the "facts and
circumstances within the [officers'] knowledge" could reason-
ably have led them to no other belief than that defendant was
committing the offense of possession of dangerous drugs.
Defendant next contends that, because the police officers
knew defendant to be a reputable Flathead County businessman
with no prior criminal record, the existing circumstances did
not require his immediate arrest. Section 95-608(d), R.C.M.
1947, allows a warrantless arrest only when the officer reason-
ably believes the suspect is committing an offense or " * * *
that the person has committed an offense and the existing circum-
stances require his immediate arrest." Defendant claims that
the police thus had the statutory duty to present facts estab-
lishing probable cause to a neutral magistrate who could then
judge the sufficiency of the probable cause to arrest.
Defendant's reasoning on this point is specious. Sec-
tion 95-608(d) provides for two distinct situations. Where an
officer reasonably believes that a person had in the past commit-
ted an offense, he may arrest the suspect without a warrant
only where the existing circumstances require his immediate
arrest. Where, however, the peace officer reasonably believes
that an individual is presently committing an offense, he may
arrest that person at that time, whether or not the existing
circumstances require the arrest. Defendant herein was charged
with the offense of possession of dangerous drugs, and at the
moment of his arrest the officers could reasonably believe that
defendant was committing that possessory offense by virtue of
his similarity in appearance to the person they had just seen
enter the house with the brown bag, and due to the fact that
the brown bag of marijuana was directly behind defendant on
the stairs. See People v. Berry, 17 I11.2d 247, 161 N.E.2d 315
(1959), overruled in part on other grnds.; People v. Watkins,
19111.2d 11, 166 N.E.2d 433 (1960).
If a defendant's confession is involuntary, it violates
his Fifth and Fourteenth Amendment privilege against self-
incrimination and may not be used as evidence at his criminal
trial without violating his Fourteenth Amendment right to due
process of law. Brown v. Mississippi, 297 U.S. 278, 80 L Ed
682, 56 S.Ct. 461 (1936). Voluntariness is the underlying test
of admissibility of statements, admissions or confessions.
Brown v. Illinois, 422 U.S. 590, 45 L Ed 2d 416, 95 S.Ct. 2254
(1975); State v. Zachmeier, 151 Mont. 256, 441 P.2d 737 (1968).
The question of voluntariness largely depends upon the facts of
each case, no single fact being dispositive. Brown v. Illinois,
45 L Ed 2d at 427; State v. Chappel, 149 Mont. 114, 423 P.2d
47 (1967). The determination of voluntariness, rather, depends
upon the "totality of circumstances". Clewis v. Texas, 386 U.S.
707, 18 L Ed 2d 423, 87 S.Ct. 1338 (1967).
The trial judge, at the January 28, 1975 hearing on
defendant's m ~ t i o nto suppress, determined that defendant had
voluntarily given his written confession to the offense o f posses-
sion of dangerous drugs. The issue of the voluntariness of a
confession is largely a factual determination, addressed to the
discretion of the trial court. State v. White, 146 Mont. 226,
405 P.2d 761 (1965), cert. den. 384 U.S. 1023, 16 L Ed 2d 1026,
86 S.Ct. 1955 (1966). The trial court's judgment as to volun-
tariness of a confession will not be reversed on appeal unless
it is clearly against the weight of the evidence, State v. Smith,
164 Mont. 334, 523 P.2d 1395 (1974); State v. Rossell, 113 Mont.
457, 127 P.2d 379 (1942).
Defendant argues that several factors created a "totality
of circumstances" under which his confession was involuntary.
Defendant asserts that because Officer Hossack testified that he
may have instructed defendant to add to his confession the state-
ment that the sack (which he had previously admitted having car-
ried into the house) was a grocery sack of brown color, the con-
fession was derived from the officer's and not from defendant's
thought processes. Defendant maintains that he confessed due to
hope of leniency through subservience to the directions of the
police officer, and that the officer had incorrectly informed him
that the other two suspects arrested on the night of the search
had already confessed. Finally, defendant points out that the
interrogating officer testified that he did not remember whether
he orally read defendant his Miranda rights on the morning of the
confession and did not know whether defendant understood his rights.
We cannot overemphasize our strong condemnation of police
practices wherein an officer instructs a suspect to add certain
words to his confession "for a better case" or wherein a police
officer misinforms a defendant as to other arrestees having given
confessions, as is alleged here. We cannot, however, upon a re-
view of the entire record, state that the totality of the cir-
cumstances was such as to overbear defendant's will and create
"' * * * any fair risk of a false confession?'" State v. Robuck,
126 Mont. 302, 308, 248 P.2d 817 (1952), citing from State v.
Sherman, 35 Mont. 512, 90 P, 981, 119 Am.St.Rep. 869,
The evidence at trial indicated that there was an atmos-
phere of cordiality between defendant and Officer Hossack at the
time of interrogation. This is in marked contrast to the physical
brutality in Brown v. Mississippi, 297 U.S. 278, 80 L Ed 2d 682,
56 S.Ct. 461 (1936) or the mental coercion in Payne v. ~rkansas,
356 U.S. 560, 2 L Ed 2d 975, 78 S.Ct. 844 (1958) which led to
forced, involuntary, and therefore, inadmissible confessions.
Rather than making threats, the officer in this case merely
asked defendant if he would make a statement. The officer
testified that he made no promises contingent upon defendant's
giving a confession, and defendant, who chose not to take the
stand, presented no evidence to rebut the officer's assertion.
Nor was there any other evidence of coercion in this
case. Defendant is an adult male and successful businessman
who presumably could well comprehend the import of his actions.
The police did not subject defendant to the "third degree".
Rather, the interrogation began at 9:00 a.m. and defendant wrote
and signed his confession by 9:lO a.m. The officer's suggestion
that defendant add the sentence that the sack he carried into
the house "was a grocery sack of brown color" is not, under the
facts of this case, sufficient to show that the confession was
involuntary. In the absence of coercive circumstances, the key
is whether a defendant voluntarily sees the facts as the officer
reflects them. See United States v. Del Porte, 357 F.Supp. 969
(S.D. N.Y. 1973), aff'd sub nom., United States v. St. Jean,
483 F.2d 1399 (2nd Cir. 1973). In this case, defendant in his
confession had already admitted that he had carried a sack con-
taining marijuana into the house. The additional sentence,
written at the officer's suggestion, merely described the color
of that sack.
Despite the voluntary character of defendant's confession
under traditional principles, defendant's confession would have
to be excluded if the requirements of Miranda v. Arizona, 384 U.S.
436, 16 L Ed 2d 694, 86 S.Ct. 1602 (1966) were not met by the
police officers. Under Miranda, a defendant, prior to in-custody
interrogation, must be apprised that he has the right to remain
silent; that anything he does say may be used as evidence against
him in a court of law; that he has the right to consult a
lawyer and have the lawyer present with him during interroga-
tion; and that, if he is indigent, he may obtain court appointed
counsel. In interpreting Miranda, the Supreme Court has stated
that:
" * * * unless law enforcement officers give
certain specified warnings before question-
ing a person in custody, * * * any statement
made by the person in custody cannot over his
objection be admitted in evidence against him
as a defendant at trial, even though the state-
ment may in fact be wholly voluntary. See
Michigan v. Tucker, 417 U.S. 433, 41 L Ed 2d
182, 94 S.Ct. 2357." Michigan v. Mosley, 423
U.S. 96, 46 L Ed 2d 313, 319, 96 S.Ct. 321
(1975).
See also, Doyle v. Ohio, 426 U.S. 610, 49 L Ed 2d 91, 96 S.Ct.
Defendant states that Officer EIossackls statement at
trial that he did not remember whether he gave defendant a verbal
~irandawarning on the morning of defendant's confession, should
alone vitiate the confession. Defendant also points to the
officer's testimony that he did not know whether defendant in
fact appreciated all his rights. Defendant's contention is with-
out merit.
The police verbally advised defendant of his Miranda
rights at the time of defendant's arrest. When the police trans-
ported defendant to the police station, they again gave defen-
dant his Miranda warning, this time on a printed form which de-
fendant signed. Finally, defendant wrote his confession on a
form upon which the Miranda warning was printed. Defendant does
not claim that either of the two Miranda warnings given to him
on the night of his arrest were in any way insufficient. He
merely claims that the confession should be suppressed because
the interrogating officer failed to couple the written warning
with a verbal warning the next morning when defendant confessed.
In this case, the time between the first verbal Miranda
warning and the confession was less than nine hours. Such a
brief time lapse between the verbal warning and the confession
did not by itself, under the facts of this case, create a duty
to verbally repeat those warnings. United States v. Hopkins,
433 F.2d 1041, (5th Cir. 1970) cert.den., 401 U.S. 1013, 28
L Ed 2d 550, 91 S. Ct. 1252 (1971). Rather, defendant gave
every indication that he understood his rights when he told
Officer Hossack on the morning of the confession that he did not
want to call a lawyer. Under the "totality of the circumstances",
defendant understood his rights, confessed voluntarily, and there
was no need to repeat the Miranda warning. See, Comment, -
The
Need to Repeat Miranda Warnings at Subsequent Interrogations,
12 Washburn L.J. 222 (1973). The issue in this case is whether
defendant fact understood his rights, and not, as defendant
claims, whether the interrogating police officer thought that
defendant understood his rights. The ultimate responsibility
for resolving this issue lies not with the interrogating officer,
but with the courts. Miranda, 16 L Ed 2d at 730, n. 55. We
find that the requirements of Miranda were met, that defendant
voluntarily confessed and that the trial judge properly admitted
the written confession into evidence at trial.
Defendant also claims that his confession should have
been suppressed because of what he asserts was "unnecessary
delay" between the time he was arrested and the time he was
brought before a judge for his initial appearance.
Section 95-901(b), R.C.M. 1947, provides:
"Any person making an arrest without a warrant
shall take the arrested person without unneces-
sary delay before the nearest or most accessible
judge in the same county and a complaint, stat-
ing the charges against the arrested person,
shall be filed forthwith."
Defendant was arrested sometime around midnight, Friday,
June 1 3 , 1975, c o n f e s s e d a t 9:00 a.m., S a t u r d a y , J u n e 1 4 , 1975,
and w a s b r o u g h t f o r h i s i n i t i a l a p p e a r a n c e on Monday morning,
J u n e 1 6 , 1975. O f f i c e r Hossack t e s t i f i e d t h a t he t r i e d s e v e r a l
t i m e s t o t e l e p h o n e t h e j u s t i c e o f t h e p e a c e b e f o r e he l e a r n e d
t h a t t h e j u s t i c e w a s o u t o f town f o r t h e weekend.
W d i s a p p r o v e o f t h e p o l i c e p r o c e d u r e used i n t h i s case.
e
I n a d d i t i o n t o t h e j u s t i c e o f t h e peace b e f o r e whom d e f e n d a n t
was b r o u g h t , F l a t h e a d County h a s one o t h e r j u s t i c e of t h e p e a c e
and t h e e l e v e n t h j u d i c i a l d i s t r i c t o f which F l a t h e a d County i s
a p a r t , h a s two d i s t r i c t c o u r t judges. The t e s t i f y i n g o f f i c e r
f a i l e d t o show t h a t t h e p o l i c e t r i e d t o c o n t a c t any o f t h e s e
judges t o a r r a n g e a n i n i t i a l a p p e a r a n c e . I n t h e proper case,
unexcused d e l a y might l e a d t o p r o t r a c t e d confinement o f a d e f e n -
d a n t , c o n t r i b u t e t o prompting a c o n f e s s i o n , and w a r r a n t t h e sup-
p r e s s i o n of t h e c o n f e s s i o n . T h i s , however, i s n o t s u c h a c a s e .
Defendant f a i l e d t o prove t h a t h i s f a i l u r e t o b e p r e s e n t e d
b e f o r e a m a g i s t r a t e u n t i l t h e Monday morning a f t e r h i s F r i d a y
n i g h t a r r e s t c o n s t i t u t e d "unnecessary delay", s i n c e t h e j u s t i c e
of t h e peace was o u t of town u n t i l Monday, and t h e r e was no e v i -
dence t h a t t h e r e was any o t h e r judge a v a i l a b l e i n t h e c o u n t y o v e r
t h e weekend. See S t a t e v. Benbo, - .
Mont -I -P.2d t
NO. 13491 (Mont. f i l e d October 2 6 , 1977.).
Defendant's f i f t h contention o f e r r o r i s t h a t , because
O f f i c e r Hossack t e s t i f i e d a t t h e s u p p r e s s i o n h e a r i n g t h a t he had
no p r i o r knowledge o f t h e c o n t e n t s o f t h e brown p a p e r b a g , it
was r e v e r s i b l e e r r o r f o r him t o t e s t i f y a t t r i a l t h a t h e was s p e c i f i -
c a l l y l o o k i n g f o r t h e brown p a p e r bag b e f o r e he e n t e r e d t h e house
t o execute t h e search warrant.
I t i s d i f f i c u l t t o a s c e r t a i n t h e i n c o n s i s t e n c y between
O f f i c e r H o s s a c k ' s s t a t e m e n t a t t h e s u p p r e s s i o n h e a r i n g and h i s
testimony a t t r i a l . Although it i s t r u e t h a t he d i d n o t know t h e
contents of the bag at the time the individual carried it into
the house, the officer certainly could still be looking for the
bag as he entered so that he could check its contents.
Furthermore, defendant showed no prejudice from the
statement and failed to object to the statement at trial. Ob-
jections first raised on appeal will not be considered by this
Court. State v. Armstrong, Mont. , 562 P.2d 1129, 34
St.Rep. 213 (1977); State v. Braden, 163 Mont. 124, 515 P.2d
692 (1973).
Section 95-712, R.C.M. 1947, requires police officers
to make a return of the search warrant and all things seized
to the judge who issued the warrant. In this case, the police
returned the warrant and an inventory of the items seized to
the judge. The "things seized" however, were not returned. De-
fendant asserts that the failure of the officers to make a return
to the judge of the brown paper bag of marijuana per se rendered
that item inadmissible as evidence at trial.
The Illinois Supreme Court, in interpreting its return
of seized evidence statute, the section from which 95-717 was taken
has stated that " * * * faili~reto comply with statutory requirements
concerning the steps to be taken after the warrant has been served
does not render the search warrant or the search conducted pursuant
thereto invalid * * *." People v. Hawthorne, 45 I11.2d 176, 258
N.E.2d 319, 322 (1970), cert. den., 400 U.S. 878, 27 L Ed 2d 115,
91 S.Ct. 119 (1970). Defendant has the burden of affirmatively
showing that an irregularity in the search and seizure affected
his substantial rights. Section 95-717, R.C.M. 1947; State v.
Watkins, 156 Mont. 456, 481 P.2d 689 (1971). Defendant in this
instance failed to demonstrate any prejudice to his substantial
rights by the officers' failure to make a return of the brown
paper bag of marijuana.
The judgment of the district court is affirmed.
Chief J u s t i c e
We concur:
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