No. 80-315
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
1981
STATE O MONTANA,
F
P l a i n t i f f and R e s p o n d e n t ,
VS .
J O H N STEMPLE, J R - I
D e f e n d a n t 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 F i r s t J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Lewis and C l a r k
H o n o r a b l e P e t e r G. Meloy, J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
P e t a j a and Smoyer, H e l e n a , Montana
C h a r l e s P e t a j a a r g u e d , H e l e n a , Montana
F o r Respondent:
Hon. Mike 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 , Montana
C h a r l e s G r a v e l e y a r g u e d , County A t t o r n e y , H e l e n a , Montana
Submitted: October 2 8 , 1981
Decided :
JUI'I 2 1 15%
Filed:
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
John Stemple, Jr. (defendant) appeals a conviction in
Lewis and Clark County District Court, of possession of
dangerous drugs with intent to sell, a felony.
Defendant raises several issues. He raises two search
and seizure issues relating to the stop and search of his
vehicle. He contends that the police did not have probable
cause to stop his vehicle, and he contends that his consent
to search his pickup was not voluntarily given. He also
contends that certain evidence introduced at trial was fruit
of the poisonous tree (that is, the illegal stop or the
illegal search) and therefore was illegally admitted in
evidence. He also contends that his conviction is unsupported
by substantial evidence, this contention being based on the
fact that defendant was not caught with the marijuana in his
actual possession. Finally, he contends that admission of
evidence seized as the result of another search was prejudicial
and that he is entitled to a new trial. We affirm on all
issues except the last. We hold that the evidence was
admitted in flagrant violation of the standards we set forth
in State v. Just (1979), - Mont . -, 602 P.2d 957, 36
St.Rep. 1535, and further, that the manner in which this
evidence was used against defendant denied him a fair trial.
In late December 1979, Detectives McCormick and Hammerbacker,
of the Lewis and Clark County Sheriff's Department received
information that there was some drug-related activity at a
residence located at 1014 Elm Street in Helena. Upon surveillance
of the residence, the detectives noticed an unusual amount
of traffic coming and going from the residence and an out of
state vehicle parked in front of the house.
On the morning of January 11, 1980, detectives !%cCormick
and Hammerbacker stated that they observed a man they believed
to be coming out of the residence placing a partially-filled
green garbage bag into the tool compartment of a two-tone
Dodge pickup truck parked near the house. This man was
later identified as the defendant. After placing the bag in
the tool compartment, the defendant then returned to the
house at 1014 Elm. A short time later, the defendant appeared
at the door of the house and looked in the direction of the
detectives' unmarked car and then disappeared back inside
the house. Shortly before noon, the defendant came out of
the house and entered the truck, driving off at a normal
speed. The detectives followed. At this point, the defendant's
vehicle accelerated and made several rapid and evasive
turns. The detectives temporarily lost sight of the vehicle
and radioed other units in the area to stop the defendant's
truck. Almost immediately after the radio report for more
help, the truck was stopped by deputy John Risken. The
detectives arrived on the scene only seconds after the
defendant was stopped. The total time that had elapsed
between when they had first lost sight of the vehicle and
when they arrived at where it was eventually stopped was
from 30 to 90 seconds.
~etectiveHammerbacker informed the defendant that he
was suspected of having a large amount of marijuana in the
tool compartment, and asked permission to search the vehicle.
The defendant consented, and told the officers that if any
marijuana was found he would smoke it all. The officers
then opened the tool compartment, but failed to find the
green garbage bag, or any other evidence of marijuana. ~ f t e r
releasing the defendant, the officers searched the short
distance that the defendant had travelled after eluding the
detectives. Almost immediately a green garbage bag was
found nearby which contained about ten pounds of marijuana.
The detectives then obtained a warrant for the defendant's
arrest, and also a search warrant for 1014 Elm and the out-
of-state car parked in front of the house. The search of
the house and car at 1014 Elm revealed a large amount of
marijuana and assorted paraphernalia. The defendant, upon
learning of the warrant for his arrest, contacted his lawyer
who accompanied him to the courthouse, where he was arrested.
THE STOP OF DEFENDANT'S VEHICLE
In State v. Gopher (1981), - Mont . -, 631 P.2d 293,
38 St.Rep. 1078, this Court set forth the standards by which
we judge vehicular stops. In Gopher, we stated:
". . .The State's burden has two elements: (1)
objective data from which an experienced
officer can make certain inferences; and (2)
a resulting suspicion that the occupant of
a certain vehicle is or has been engaged in
wrongdoing or was a witness to criminal
activity. . ."631 P.2d at 296, 38 St.Rep. at 1081.
The defendant's behavior clearly justified the stop. He
placed a green bag in the back of his pickup. In driving
away from the residence at 1014 Elm, he made several sharp
turns in rapid succession at a relatively high speed on icy
or snow-packed roads. He failed to use proper turn signals,
and failed to pull over after the officers had activated
their flashing light on top of their car. This dangerous
and evasive driving, combined with the surveillance observations,
provided a sufficient objective basis to give the officers a
reasonable suspicion that the defendant was engaged in
wrongdoing.
THE SEARCH OF DEFENDANT'S VEHICLE
The defendant contends his consent to search his truck
was involuntary because the officers failed to inform him of
his right to refuse consent and therefore he could not
intelligently give his consent. The United States Supreme
Court has expressly rejected such an argument in Schneckloth
v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d
854, and we see no reason to impose a stricter standard
under our own constitution. The voluntariness of consent is
a question of fact, to be determined from the totality of
the circumstances. The defendant's knowledge of his right
to refuse the search is not controlling, but it is a factor
to be taken into account. Bustamonte, supra.
The defendant also contends that the presence of five
police officers was so inordinately coercive that the defendant's
consent was not truly voluntary. The defendant's offer to
smoke any marijuana found in his vehicle belies his claim
that he was intimidated by the presence of the officers because
he opened the tool box to facilitate the search. Not a
scrap of evidence suggests that defendant's consent was
coerced. The totality of the circumstance clearly establishes
the defendant's voluntary consent to the search of his
vehicle.
PROBABLE CAUSE FOR ARREST--FRUIT OF THE POISONOUS TREE
The argument that the arrest was without probable
cause, and the argument that the bag found nearby was fruit
of the poisonous tree, must, of course, be based on a holding
that the stop and search was illegal. Defendant's argument
fails because of our holding that the stop and search was
legal.
SUBSTANTIAL EVIDENCE
Defendant's contention that his conviction was unsupported
by substantial evidence is grounded primarily on the fact
that no direct evidence was presented to show that the
defendant had actual physical possession of the marijuana.
This contention is without merit.
The officers saw defendant place a green garbage bag in
the tool compartment of his truck. Defendant eluded the
officers, momentarily. The officers stopped defendant's
truck and defendant consented to a search of his truck. The
search revealed the green garbage bag was no longer in the
tool compartment. The officer retraced the route of the
defendant's vehicle and the officers discovered a bag similar
to the one seen in the defendant's possession. It contained
marijuana. It was clear that the bag had been recently
thrown there because a recent snowfall had not covered it
up, nor were there any footprints near the bag.
Defendant seems to argue that a conviction cannot be
upheld unless the defendant has physical possession of the
contraband at the time of his arrest. But "[e]xclusive,
immediate personal possession is not essential to establish
constructive possession." State v. rowb bridge (1971), 157
Mont. 527, 487 P.2d 530, 532. The facts were sufficient to
sustain the verdict.
FAILURE TO COMPLY WITH STATE V. JUST
The search of 1014 Elm and the car parked in front
resulted in the seizure of a large amount of marijuana,
scales for weighing it, and bags for packaging it. This
search also resulted in the arrest of the occupant of the
house, Michael Isom. The search and arrest were later found
to be illegal. See, State v. Isom (1982), - Mont. -I
641 P.2d 417, 39 St.Rep. 137.
Throughout the defendant's trial, testimony, exhibits
and other evidence were permitted, over defendant's repeated
objection concerning the search of 1014 Elm. Seven large
garbage bags full of marijuana seized at 1014 Elm were
present in the courtroom, although never introduced in
evidence. Photographs of various paraphernalia, including a
scale and screen seized at 1014 Elm were admitted in evidence.
The testimony of the officers is replete with references to
the search at 1014 Elm and the arrest of Michael Isom. Of
the 44 exhibits entered into evidence, 31 of them had been
seized in the search of the house at 1014 Elm and the car
parked in front.
The State's position at trial was that the evidence
from 1014 Elm was relevant to show a common scheme or plan.
Notwithstanding this contention, the State made absolutely
no effort to comply with the test we set forth in State v.
Just, supra, before evidence of other crimes or evidence of
a common scheme or plan can be introduced. We stated in
Just that a failure to comply with these standards would
require reversal. 602 P.2d at 961. Furthermore, the prosecutor,
in arguing for the admission of this evidence, repeatedly
promised the court that he would offer a cautionary instruction
relating to this evidence. This promise was not kept.
Assuming the evidence to be otherwise admissible, we must
reverse the conviction because of the failure to comply with
the Just standards.
But neither are we convinced that the evidence was
admissible in the manner it was used. Rule 403, Mont.R.Evid.,
prohibits the introduction of evidence where its probative
value is substantially outweighed by the "danger of unfair
prejudice, confusion of the issues, or misleading the jury
. . ." The defendant was charged with possession of ten
pounds of marijuana with intent to sell. But the jury
viewed evidence of 80 to 90 pounds of marijuana seized in
the search of the house at 1014 Elm. The defendant did not
reside there, nor did he have any connection to the car
parked in front. Although the State should be permitted to
show a connection between the marijuana traced to the defendant
and the marijuana found in the search of 1014 Elm, the amount
of evidence used to demonstrate this connection, and the manner
in which it was used, was highly prejudicial to the defendant.
But the connection between the marijuana found at the house and
that traced to the defendant is obviously a circumstantial factor
for the jury to consider in determining whether defendant placed
marijuana in his pickup truck when he came out of the house at
1014 Elm. If the marijuana was packaged similariy, there is
indeed the greater likelihood that it was marijuana that the
defendant placed in the back of his pickup. The State could,
however, prove this connection without using the tactics employed
in this case.
The judgment is vacated and the cause remanded for a new
trial.
We Concur:
-
Chief ~ustice
Qe %4
Justices