NO. 88-226
IN THE STJPREME COURT OF THE STATE OF MORTANA
1988
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DANIEL EVJEN,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C.R. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
K. M. Bridenstine, Polson, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Robert F.W. Smith, Asst. Atty. General, Helena
Larry Nistler, County Attorney, Polson, Montana
+
0 55 Submitted on Briefs: Aug. 4, 1988
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Ii- C? Decided: November 17, 1988
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Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Daniel Evjen appeals his felony conviction in the
District Court, Twentieth Judicial District, Lake County, of
criminal possession of drugs with intent to sell on the
grounds that the District Court erred in not suppressing
evidence seized at the time of his arrest. On his
conviction, Evjen was sentenced to 10 years imprisonment. We
determine that the District Court properly denied Evjen's
motion to suppress the evidence and we affirm his conviction.
Evjen's principal issue is that the trial court erred by
refusing to suppress, and later admitting into evidence,
certain tangible items seized in a warrantless search of an
unoccupied motor vehicle on private property. The State
contends that Evjen was under arrest at the time of the
search of the motor vehicle, that the search was conducted
incident to a valid arrest, and that the search comes within
the automobile exception to the warrant requirement.
On the night of November 16, 1987, and the very early
morning hours of November 17, Daniel Evjen, Darryl Cline, and
Earlyn Mellstead were patrons of the Rocking G Bar near
Polson, Montana. They had come to the bar in a Chevrolet
pickup truck which was parked in the Rocking G parking lot
near the building. Evjen had been a passenger in the motor
vehicle.
While these patrons were in the bar, Officer Bruce
Phillips of the Lake County Sheriff's office received a
telephone tip from one Bill Morrison, an informant considered
reliable, that certain individuals were selling drugs in the
Rocking G parking lot. Officer Phillips and Officer Bill
Pray went to the parking l.ot, met with Morrison, and there
learned from him that he had not in fact seen the drugs but
that he had learned of them from Jessica Mangels, who was
also in the bar. At about that time, the officers saw
Jessica Mangels leave the area. Officer Phillips followed
her and talked to her at a nearby trailer house.
Jessica Mangels was known to Officer Phillips because
she had been a reliable informant in the past. She told
Officer Phillips that before he arrived, she had been taken
to an older red and white pickup truck by the shorter of two
men in a group of three, a tall man, the short man, and a
woman. In the truck, Jessica was shown a zip-lock baggie,
full of what appeared to be marijuana. The baggie had been
removed from a blue duffel bag. Jessica told Officer
Phillips that she and the shorter man had smoked a marijuana
cigarette and had discussed the sale and price of some
marijuana.
After talking to Mangels, Officer Phillips returned to
the parking lot to Officer Pray, who, with Morrison, were
watching the truck that matched the description that Manqels
had given.
While they were discussing whether Morrison should go
into the bar and attempt to make a buy, the trio, Evjen,
Cline and Earlyn Mellstead left the Rocking G bar to proceed
toward the pickup. Officers Phillips and Pray were at that
time standing between the motor vehicle and these three
persons. The officers stopped them a distance from the motor
vehicle and they were not allowed to approach the motor
vehicle closer than several feet. Officer Phillips asked
Cline for permission to search the pickup. Cline refused.
Nevertheless, Phillips searched the passenger compartment of
the pickup, and found a substantial quantity of marijuana in
a ziplock baggie within a blue duffel bag. The three were
then placed under arrest.
In contending that the warrantless search was unlawful,
and that consequently his conviction was improper, Evjen
relies on these factors: that at the time of the search,
Evjen was not under arrest; that Officer Phillips testified
at the suppression hearing that unless he had found drugs, he
would not have placed Evjen and his companions under arrest;
and that there were no exigent circumstances because Officers
Phillips and Pray had detained and prevented the three
persons from entering the pickup truck. Because of their
detention, Evjen contends that the three persons did not have
an opportunity to gain possession of a weapon or destructable
evidence from the truck, the conditions usually required for
the warrantless search of an automobile.
In essence, Evjen is contending that the officers did
not have reasonable cause to make an arrest, before the
search, that they did not make an arrest, and that therefore
the warrantless search is improper absent an arrest.
The State contends that under State v. Thornton (Mont.
1985), 708 P.2d 273, 45 St.Rep. 1614, Evjen was under arrest
because he understood that he was not free to leave the
parking lot. It further contends that under § 46-5-101(1),
MCA, the search of the vehicle here was proper as an incident
to a lawful arrest. The State further contends that the
warrantless arrest here was based on probable cause, the
informant's tip, and so was based on reasonable grounds
citing State v. Ribera (1979), 183 Mont. 1, 7, 597 P.2d 1164,
1168.
The disposition of this cause does not require a long
discussion. Officer Phillips, before the warrantless search,
had received specific information from an eye witness that an
ongoing crime was being committed in which the pickup truck
was involved. Though Officer Phillips may not have believed
that he had probable cause at that point to make an arrest
(it appears he did have probable cause), he at least had a
reasonable suspicion that a crime was being committed, and
that the pickup was involved. In Terry v. Ohio (19681, 392
U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the officer in that
case, at that time, having a reasonable suspicion that a
crime was ongoing based on specific and articulable facts,
was held entitled to make an investigatory stop of the
defendants. Here the governmental interest in enforcing the
law outweighed the interests of the driver and passengers of
the pickup in remaining secure from detention.
The resolution of this case does not depend upon whether
the officers had made an actual arrest of Evjen, but whether
under the "probable cause exception" the officers had
probable cause to search the motor vehicle without a warrant.
In State v. Spielmann, Christensen (1973), 163 Mont.
199, 516 P.2d 617, we adopted for Montana law purposes t.he
probable cause exception for motor vehicles developed in
Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280,
69 L.Ed 543, and Chambers v. Maroney (1970), 399 U.S. 42, 48,
90 S.Ct. 1975, 26 L.Ed.2d 419. In quoting from Chambers,
supra, this Court said:
Arguably, because of the preference for a
magistrate's judgment, only the immobilization of
the car should be permitted until the search
warrant is obtained; arguably, only the "lesser"
intrusion is permissible until the magistrate
authorizes the "greater." But which is the
"greater" and which is the "lesser" intrusion is
itself a debatable question and the answer may
depend on a variety of circumstances. For
constitutional purposes, we see no difference
between, on the one hand, seizing and holding a car
before presenting the probable cause issue to a
magistrate and on the other hand, carrying out an
immediate search without a warrant. Given probable
cause to search, either course is reasonable under
the Fourth Amendment.
163 Mont. at 205, 516 P.2d at 621.
It was also stated in Chambers and adopted by this Court
in Spielmann, that the right to search and the validity of
the seizure are not dependent upon the right to arrest: they
are dependent on the reasonable cause the seizing officer has
for belief that the contents of the automobile offend against
the law. 163 Mont. at 205; Chambers, 399 U . S . at 49.
Here, Officer Phillips had specific information from a
reliable informant that she had been in the pickup, saw drugs
therein, and she had described three persons who had come in
the truck. When Officer Phillips returned, the information
given him by the informant was confirmed in that three
persons did approach the truck. There is no question that
Officer Phillips had probable cause to search the truck at
that time. The alternatives were to hold the truck until a
magistrate or judge could issue a search warrant, or allow
the three persons to get into their truck and drive away with
the contraband evidence. Because the officers had probable
cause to search the vehicle, the search was not unreasonable
under the Fourth Amendment, even though an actual arrest of
the defendant had not been made.
We are aware of the holding in U . S . v. Parr (9th Cir.
1988), 843 F.2d 1228. There, evidence obtained under a
warrantless search of an automobile before arrest of the
defendant was held inadmissible. The holding is based upon
two principal grounds: (1) that the stop was for a traffic
violation; and, (2) there was no probable cause to suspect
there was contraband in the vehicle. Those grounds
distinguish the Parr case from this case involving Evjen and
Parr is not applicable authority here.
An analogy to this case might be found in U.S. v. Sharpe
(1985), 470 U . S . 675, 105 S.Ct. 1568, 84 L.Ed.2d 605. In
Sharpe, the officer, following two vehicles traveling in
tandem, decided an investigative stop was proper and radioed
the South Carolina State Highway Patrol for assistance. When
they attempted to stop the vehicles, one of them was pulled
over to the side of the road, but the pickup continued on
pursued by the state officer. The state officer stopped the
truck, questioned the driver, and told him that he would be
held until the other officer arrived. The other officer
arrived at the scene about 15 minutes after the truck had
been stopped. He confirmed his suspicion that the pickup
truck was overloaded and approaching the rear of the pickup
and camper, he reported smelling marijuana. At that point,
he obtained the keys from the ignition of the pickup, opened
the rear of the camper without the driver1s permission and
found a number of burlap wrapped bales which contained
marijuana. Sharpe went to the United States Supreme Court on
the question whether the detention of the driver of the
pickup for 15 minutes was too long as a Terry stop. The
propriety of the search of the truck at the same time was
never questioned. In this case, the propriety of the Terry
stop was not questioned, but the search of the vehicle is
questioned. Under the circumstances here, the officers had
the right to make an investigatory stop of the three persons
as they approached the pickup truck. Moreover, the officers
had reasonable cause based on the informant's tip, verified
by the appearance of the three persons, to search the
passenger compartment of the pickup truck. The District
Court was correct in refusing to suppress the evidence. The
k. a
conviction is affirmed.
'\l& Justice
Justices