No. 12675
I N T E SUPREME C U T O THE STATE O M N A A
H OR F F OTN
THE STATE O MONTANA,
F
P l a i n t i f f and A p p e l l a n t ,
A A FETTERS and STEVE LEAN,
LN
Defendants and Respondents.
Appeal from: D i s t r i c t Court o f t h e Second J u d i c i a l D i s t r i c t ,
Honorable James D. Freebourn, Judge p r e s i d i n g .
Counsel o f Record:
For Appellant :
Hon. Robert L. Woodahl, Attorney General, Helena,
Montana
John P. Atkins , A s s i s t a n t Attorney General, argued,
Helena, Montana
Larry S t i m a t z , County Attorney, argued, B u t t e ,
Montana
J. B r i a n Tierney argued, Deputy County Attorney,
B u t t e , Montana
For Respondents:
Scanlon, B r o l i n and Connors, Anaconda, Montana
William A. B r o l i n argued and Joseph C. Connors
argued, Anaconda, Montana
Submitted: June 1 7 , 1974
Decided :SEp 3 1974
Filed: SEP 3 1974
Hon. M. James Sorte, District Judge, sitting for Chief Justice
James T. Harrison, delivered the Opinion of the Court.
This is an appeal by the state of Montana from an order
of the district court of Silver Bow County granting defendants'
motion to suppress evidence in a criminal case.
Defendants Alan Fetters and Steve Lean were charged by
Information in four counts: interference with railroad property;
interference with railroad property causing death; murder; and
malicious destruction of property.
In chronological order these events occurred:
On March 28, 1972, at approximately 8:00 p.m. a large diesel
switch engine owned and operated by the Anaconda Company at the
Weed Concentrator in Butte, Montana, was left by the crew in a
locked and secured position. The crew left the engine idling with
the air set and three large slurry cars connected to it while they
went to lunch.
At approximately 8:05 to 8:15 p.m. an employee saw the
switch engine, without the slurry cars attached and without its
light on, leave the concentrator yprd. He noticed two men in the
engine but could not describe their physical characteristics nor
wearing apparel. Two employees were immediately dispatched from
the concentrator yard to look for any signs of the engine that had
just left. They went out of the concentrator area and drove down
Continental Drive where they saw defendant Fetters' white Cadillac
automobile parked in a turnout area of Continental Drive and Howard
Street. The car was no longer there 30 minutes later. The license
number was reported and verified by local police as belonging to
Fetters.
At approximately 8:30 p.m. the switch engine smashed into
the rear of a Butte, Anaconda and Pacific ore train in the Rocker
Yards approximately six miles west of the concentrator. Two BA&P.
employees, Jack Weist and Vern Johnson, were on the ore train at the
time. Weist was killed instantly by the crash and Johnson was thrown
from t h e caboose, which was s h a t t e r e d by t h e c o l l i s i o n , and s u f f e r e d
a broken leg.
The f a c t s f u r t h e r show t h a t defendants went i n t o t h e Race
Track Bar between 8:30 and 8:45 p.m., ordered d r i n k s and a l s o r e -
quested s a l v e f o r F e t t e r s who had a p p a r e n t l y burned some p o r t i o n of
h i s body. The Race Track Bar was approximately two b l o c k s from
where ~ e t t e r s 'c a r was parked.
Before defendants were a r r e s t e d i t was a l s o a s c e r t a i n e d t h a t
t h e y were c u r r e n t l y employed by t h e Anaconda Company a t t h e con-
c e n t r a t o r yard. Defendants had p e r s o n a l knowledge of how t o run
t h a t p a r t i c u l a r engine; i n f a c t , F e t t e r s was scheduled t o o p e r a t e
t h e engine on t h e March 28, 1972, a f t e r n o o n s h i f t . Bothdefendants
f a i l e d t o r e p o r t t o work t h a t day.
George Evans, s e c u r i t y o f f i c e r of t h e Anaconda Company, i n -
formed t h e i n v e s t i g a t i n g s h e r i f f t h a t he had observed two s e p a r a t e
s e t s of f o o t p r i n t s i n t h e snow d i r e c t l y a c r o s s t h e roadway from
where ~ e t t e r s 'C a d i l l a c was seen e a r l i e r t h a t evening, The f o o t -
p r i n t s l e d t o an a r e a 60-70 f e e t i n t o t h e c o n c e n t r a t o r a r e a . Evans
n e i t h e r observed f o o t p r i n t s on t h e south s i d e of C o n t i n e n t a l Drive
where t h e v e h i c l e was parked nor w i t h i n 300 yards o r b e t t e r from t h e
switch engine. The t r a c k s n e i t h e r went from t h e c a r t o t h e fence n o r
from t h e fence t o t h e engine. The f o o t p r i n t s r e v e a l e d t h a t they
were made by a square-toe type shoe o r boot w i t h s e p a r a t e and de-
f i n i t e h e e l markings. Evans immediately covered t h e f o o t p r i n t s w i t h
cardboard boxes u n t i l photographs could be taken.
A l l of t h e s e f a c t s were known t o S i l v e r Bow County Attorney
Lawrence Stimatz and SilverBow S h e r i f f Rock Cunningham. After
a n a l y z i n g a l l t h e f a c t s Stimatz d i r e c t e d law enforcement o f f i c e r s
t o a r r e s t F e t t e r s and Lean without a warrant.
Stimatz t e s t i f i e d a t t h e h e a r i n g on t h e motion t o suppress
t h e evidence:
I'We were q u i t e i n t e r e s t e d i n l o c a t i n g and a r r e s t i n g
F e t t e r s and Lean. W thought a crime had been com-
e
m i t t e d and t h a t t h e s e men had done i t and t h a t c e r t a i n
evidence had t o b e preserved. W wanted t o look a t t h e i r
e
shoes and we wanted t o l o o k a t t h e i r c l o t h e s f o r g r e a s e
s p o t s o r anything e l s e t h a t they might have had on them
from being i n s i d e t h a t t r a i n . II
Fetters was arrested without a warrant at 5:00 a.m. at his
home on March 29, 1972. Lean was arrested without a warrant at
his home at 6:20 a.m. that same morning. Both defendants were taken
from their homes to the sheriff's office where their clothing was taken
from them. They were questioned, placed in jail, and released the
afternoon of March 29, 1972, without being charged in justice court
or district court. Their personal belongings which were seized by
the sheriff's officers were not returned to them. Defendants were
arrested again on May 19, 1972, and charged in justice court.
On October 20, 1972, District Judge John B. McClernan granted
defendantsf motion to suppress all the physicial evidence and
statements obtained from and after the arrests.
An appeal was taken from that order and this Court vacated
the district court's order on May 15, 1973, because there had never
been a proper formal suppression hearing. State of Montana v. Alan
Fetters and Steve Lean, Mont . , 510 P.2d 1, 30 St.Rep. 543.
Thereafter Judge McClernan was disqualified and District Judge
James D. Freebourn held a formal hearing and on November 26, 1973,
ordered the suppression of the evidence seized as a result of the
warrantless arrest.
The order of Judge Freebourn was appealed to this Court,
and following argument and consideration of the case, this Court
reset the matter for a second argument.
Two issues are presented for review:
1. Whether the district court erred in finding that the
arrest was unlawful?
2. Whether the search made incident to that arrest was
unlawful?
As to the first issue, section 95-608, R.C.M. 1947, sets forth
the instances in which a person may be arrested. It provides:
If
A peace officer may arrest a person when:
"a
() He has a warrant commanding that such person be
arrested, or
"(b) He believes, on reasonable grounds, that a
warrant for the ~erson'sarrest has been issued in
this state, or
"c
() He believes, on reasonable grounds, that a
felony warrant for the person's arrest has been
issued in another jurisdiction, or
"d
() He believes on reasonable grounds, that the
person is committing an offense, or that the per-
son has committed an offense and the existing
circumstances require his immediate arrest."
(Emphasis added)
The state contends the arrests in the instant case were
justified under section 95-608(d), R.C.M. 1947, because the officers
did have reasonable grounds to believe the defendants had committed
an offense. In State v Bennett, 158 Mont. 496, 499, 493 P.2d 1077,
.
this Court held that probable cause has been defined as "'reasonable
grounds for belief of guilt. 1 1 1 Reasonable grounds and probable cause
are synonymous.
The validity of the search and seizure of defendants'
clothing, shoes, and all other physical evidence and statements
obtained from and after the arrests must depend upon the validity
of defendants' arrest. Whether the arrests were valid depends, in
turn, upon whether at the moment the arrests were made the officers
had probable cause--i.e. whether at that moment the facts and cir-
cumstances within their knowledge and of which they had reasonable
trustworthy information were sufficient to warrant a prudent man
in believing defendants had committed or were committing an
offense and the circumstances required their immediate arrests.
Section 95-608(d), RCM
... 1947; State v. Bennett, supra; Brinegar
v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L ed 1879.
Evidence required to establish guilt is not necessary to
prove probable cause for an arrest. On the other hand, good
faith or mere suspicion on the part of the arresting officers is
not enough. And while a search without a warrant is, within
limits, permissible if incident to a lawful arrest, if an arrest
without a warrant is to support an incidental search, it must be
made with probable cause. An arrest is not justified by what the
subsequent search discloses. Henry v United States, 361 U S 98,
. ..
80 S.Ct, 168, 4 L ed 2d 134; Carroll v. United States, 267 U S
.. 132,
A l l of t h e r e c e n t Montana c a s e s i n t e r p r e t i n g "probable cause"
a s used i n s e c t i o n 95-608(d), R.C.M. 1947, d e a l with a defendant's
possession o r s a l e of dangerous drugs. I n Bennett, t h i s Court
held t h e r e was s u f f i c i e n t probable cause t o j u s t i f y t h e a r r e s t
without a warrant. I n Bennett, however, o f f i c e r s had received
information from t h e owner of t h e apartment and a l s o a r e l i a b l e
informant t h a t drugs were being used i n t h e apartment. They a l s o
had information t h a t t h e one accused was a d e a l e r i n drugs and,
when t h e o f f i c e r s went t o t h e apartment t o i n v e s t i g a t e , they observed
t h e accused e n t e r t h e apartment and walk toward apartment 4-W. At
t h i s time they were i n t h e common lobby and a s they proceeded toward
t h e apartment they found t h e door open and a marijuana odor emanating
therefrom.
On t h e o t h e r hand, i n S t a t e ex r e l . Glantz v. Dist.Court,
154 Mont. 132, 139, 461 P.2d 193, t h i s Court r u l e d t h a t no probable
cause e x i s t e d f o r d e f e n d a n t ' s a r r e s t and dismissed t h e proceedings
a g a i n s t her. I n Glantz t h e o f f i c e r s had a search warrant naming
two p a r t i c u l a r people and a p a r t i c u l a r premises t o be searched f o r
possession of dangerous drugs. The o t h e r defendant, Linda P i c k e t t ,
happened t o be on t h e premises a t t h e time of t h e search and she
was a l s o a r r e s t e d . She was taken t o t h e p o l i c e s t a t i o n and sub-
sequently searched and i t was t h e r e t h a t an immeasurable q u a n t i t y
of marijuana was found on h e r person. This Court s a i d :
'I* ** There i s ample a u t h o r i t y f o r t h e proposi-
t i o n t h a t t h e m e r e f a c t a person i s on premises
where o f f i c e r s have reason t o b e l i e v e t h e r e a r e
drugs w i l l n o t j u s t i f y h i s a r r e s t o r a search of
h i s person. [Citing c a s e s ] "
I n another r e c e n t Montana case, S t a t e v. Bentley, 156 Mont.
129, 134, 477 P.2d 345, t h e defendant a s s a u l t e d a c i t i z e n and before
he sped off i n h i s c a r , someone spotted a pillow and bags i n t h e
trunk of h i s c a r . He was a r r e s t e d and t h e c a r taken t o t h e p o l i c e
station. A a p p l i c a t i o n f o r a search warrant was l a t e r made and
n
granted a f t e r t h e p o l i c e judge received information t h a t defendant
was a b u r g l a r and used drugs. I n Bentley, t h i s Court s a i d :
11
Montana cannot guarantee less protection for a
citizen under its laws than is demanded by the
Constitution of the United States. Therefore, the
mere presence of a pillow and bags in the trunk
of a car taken by themselves (like the telephones
in the Spinelli case) do not constitute sufficient
evidence of a crime to issue a search warrant for
burglar tools or illegal drugs, and a judge's
personal inferences that respondent is a burglar
adds nothing toward probable cause of the commission
of a crime on these facts. I I
Thus, in the instant case, as in Glantz and Bentley, the
mere presence of defendant's car in the area, footprints in the
general vicinity, or any personal inferences that the officers may
have had about defendants because they missed work and knew how to
run the switch engine mere speculation, not sufficient con-
stitute probable cause to arrest as determined by the district
court.
We do not believe it necessary to go into a more detailed
analysis of probable cause. It has been defined, interpreted and
redefined by many federal and state cases cited earlier in this
opinion. The state asks the Court to consider United States v.
Edwards, U.S. , 94 S.Ct. 1234, 39 L ed 2d 771. That case
must be distinguished from this case because the custodial search
without a search warrant was made after a lawful arrest.
Here, the question of the validity of the initial arrest and
subsequent search and seizure was before the district court on two
occasions. In both instances, and with different judges ruling,
the evidence was ordered suppressed.
In Patterson v. Halterman, Mont . 9 505 P.2d 905, 30
St. Rep. 139, 144, this Court stated the rule of appeal and error:
1I
In Stromberg v Seaton Ranch Co.,
. Mont . 502
P.2d 41, 48, 29 St.Rep. 848, this Court sa-
tt;
pertinent rule of appeal and error which must be applied
to the factual issues raised on appeal:
"'As is indicated in the summary of the facts,
there was an unusual amount of evidence presented to the
trial judge which resulted in numerous conflicts in the
evidence, He was the one who had the only opportunity
to see and hear all witnesses. Each party makes a strong
argument that these facts and circumstances favor his
position. Yet, as has been stated by this Court too
many times to require citation, it is not this Court's
province to review the record of the trial court to
determine whether or not we agree with the conclusions
reached, if supported by the evidence. We must indulge
the presumption that the judgment of the district court
is correct and will not be disturbed unless there is a
clear preponderance of evidence against it when viewed
in the light most favorable to the prevailing party * * *I
".
This is in conformity with the rule established in Morrison
v. City of Butte, 150 Mont. 106, 431 P.2d 79, and quoted in Raucci
V. Davis, Mont . , 505 P.2d 887, 30 St.Rep. 133, 135:
'"~hus, there is a conflict in the testimony from
which different conclusions could be drawn. The
credibility of witnesses and the weight to be given
their testimony are for the trial court. [citation
omitted]. This court will not overturn the holding
or findings of a trial court unless there is a de-
cided preponderance of the evidence against them, and,
when the evidence furnishes reasonable grounds for
different conclusions, findings will not be disturbed.
[citation omitted]"
There may be a difference of opinion as to whether the
facts known to the officers prior to the arrest constitute probable
cause. However, we will not substitute our judgment for that of
the district court when there are reasonable grounds for its ruling.
In light of our ruling on the first issue that the arrest
was unlawful, it is not necessary to discuss the second issue
concerning the search that followed the arrest.
The district court's order suppressing evidence is affirmed.
Hon. M. -James Sorte, District
Judge, sitting for Chief Justice
James T. Harrison.
We Concur:
Justices. 1
Mr. Justice Castles dissenting:
I dissent.
The following facts were known at the time of the arrest:
1. An employee of the Concentrator saw the engine going
through a switch. It then sped up and darted out of the yards.
2 This employee saw two men inside the engine compartment.
.
These men could not be identified.
3. It was determined that only certain people who had a
working knowledge of how the engine ran, could have activated the
engine. They would have had to have knowledge of how to uncouple
the cars, put the bus bar in, release the air, activate the switch
from within the engine, and several other steps.
4 Other employees attempted to intercept or follow the
.
engine. These employees, as they left the Concentrator yards,
noticed an automobile belonging to the Defendant Fetters parked
alongside the road just outside a fence that surrounds the
Concentrator.
5. These two employees, upon their return to the Concentrator
around 8:45 p.m., found that Fetters' automobile was gone.
6. At approximately 8:45 p.m. defendants came into the Race
Track Bar which is located three blocks from where the car was
seen. Mr. Lean asked the bartender for some salve and stated that
Mr. Fetters had burned himself.
7. That two sets of footprints, which were made in the snow,
were discovered. These footprints led from the automobile which
was parked on Continental Drive to a fence which surrounds the
Concentrator, and then to the area where the engine was parked.
8. That both defendants were employees of the Anaconda
Company and were employed at the Concentrator. Both defendants were
scheduled to work the afternoon shift on the day in question;
that one of the defendants reported off for that day and the other
defendant dumped a shift; that both defendants had personal knowledge
of how to run this particular engine; that defendant Fetters was
scheduled t o operate t h e engine t h a t afternoon; t h a t both
defendants knew e x a c t l y what time t h e employees l e f t f o r lunch
on t h e afternoon s h i f t ; t h a t both defendants knew where t h e engine
was l e f t during t h e lunch period and how t h e engine was secured
during t h i s period; t h a t both defendants w e r e p o s i t i v e l y i d e n t i -
f i e d a s being i n t h e Race Track Bar which i s approximately two
o r t h r e e blocks a t a time approximately 45 minues a f t e r t h e t h e f t .
Taken t o g e t h e r , a l l of t h e s e f a c t o r s e s t a b l i s h i n m opinion
y
probable cause f o r t h e a r r e s t on reasonable grounds.
I would r e v e r s e t h e t r i a l judge.
M r . J u s t i c e John Conway Harrison d i s s e n t i n g :
I d i s s e n t and concur with t h e foregoing d i s s e n t i n g
opinion of J u s t i c e C a s t l e s .
/ I Justice.
I