No. 83-267
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
STATE OF MONTANA,
Plaintiff and Respondent,
JAMES ANDREW BRADFORD and
DAVID ALLEN OPPELT,
Defendant and Appellant.
APPEAL FROM: The District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable H. William Coder, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Marcia Birkenbuel argued for Oppelt, Great Falls,
Montana
For Respondent:
Eon. Mike Greelys Attorney General, Helena, Montana
Dorothy McCarter argued, Asst. Atty. General, Helena
J. Fred Bourdeau, County Attorney, Great Falls, Montana
Submitted: February 28, 1984
Decided: May 24, 1984
dig; i "j. tY84
Filed:
-
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
James Andrew Bradford and David Allen Oppelt were
convicted of criminal mischief, criminal trespass to
vehicles, attempt, and felony theft by a jury in the
District Court of the Eighth Judicial District, Cascade
County. Only defendant Oppelt appeals his conviction. We
affirm.
At approximately 5 : 0 0 a.m. on August 9, 1982, the
night clerk at the Heritage Inn in Great Falls received a
phone call from a guest who had just observed two persons
breaking into a vehicle located on the Inn's parking lot.
The clerk immediately notified Roy Cisneros, a private
security guard employed by the Inn, and the two men went to
Cisneros' truck and drove around the hotel to the southwest
parking lot. Cisneros parked the truck and both he and the
clerk approached the area just outside the room of the guest
who had reported the break-in.
Cisneros and the clerk observed a man later identified
as Robert Ruiz standing next to a vehicle in the lot. They
approached Ruiz and questioned him about his presence in the
lot. Ruiz told them that he was preparing to jog, and was
waiting for a friend to join him. Cisneros was suspicious,
and asked Ruiz to position himself for a pat-down search.
In the course of that search, Cisneros discovered a .22
caliber semiautomatic pistol in Ruiz's front waistband, and
removed it. At that point, Cisneros observed a second
individual, later identified as James Andrew Bradford, lying
under a vehicle approximately forty-five feet away.
Bradford apparently realized that Cisneros had seen him, and
t r i e d t o r o l l away.
C i s n e r o s asked t h e c l e r k t o hold Ruiz w h i l e he went
a f t e r Bradford. He t o l d B r a d f o r d t o s t o p . Bradford then
began t o r e a c h f o r h i s back p o c k e t . C i s n e r o s gave a second
command t o s t o p , and u n s n a p p e d t h e h o l s t e r t o h i s s e r v i c e
weapon. Bradford froze, and Cisneros approached him,
o r d e r i n g him t o assume t h e p o s i t i o n f o r a pat-down. In the
frisk, Cisneros seized a five inch hunting knife and
s c a b b a r d from B r a d f o r d ' s back p o c k e t . H e placed Bradford i n
h a n d c u f f s , and t o o k him back t o t h e a r e a w h e r e t h e c l e r k was
holding Ruiz.
Cisneros called h i s dispatcher f o r assistance. A few
minutes later he noticed a third individual, later
i d e n t i f i e d a s t h e a p p e l l a n t , David A l l e n O p p e l t , inside the
glass-enclosed s e c t i o n of the Inn, a b o u t t o come down t h e
stairway leading t o the parking l o t . ( T h e g u e s t who made
t h e phone c a l l t e s t i f i e d a t t r i a l t h a t h e had s e e n a t h i r d
man i n t h e p a r k i n g l o t d u r i n g t h e b r e a k - i n . T h i s t h i r d man,
who apparently disappeared before Cisneros and the clerk
arrived on the scene, had a physical appearance matching
Oppelt's.) O p p e l t was coming down t h e s t e p s u n t i l b o t h h e
and C i s n e r o s e s t a b l i s h e d m u t u a l e y e c o n t a c t . A t t h i s point,
Oppelt turned and proceeded to run back up the stairs.
C i s n e r o s i n s t r u c t e d t h e c l e r k t o f o l l o w O p p e l t and a s k him
t o come t o t h e p a r k i n g l o t f o r q u e s t i o n i n g .
The c l e r k f o l l o w e d O p p e l t up t h e s t a i r s a n d down t h e
h a l l w a y s of t h e Inn. O p p e l t was e i t h e r r u n n i n g o r t a k i n g
l o n g s t r i d e s down t h e h a l l w a y s . A f t e r O p p e l t had t r a v e r s e d
a d i s t a n c e of a b o u t two c i t y b l o c k s , t h e c l e r k c a u g h t up
w i t h O p p e l t and t o l d him t h a t C i s n e r o s w a n t e d t o q u e s t i o n
him. Oppelt voluntarily accompanied the clerk Sack to the
lot where Cisneros was waiting.
As Oppelt approached, Cisneros asked him if he had any
identification, and Oppelt responded that he had none.
Cisneros noticed that the left front pocket of Oppelt's
brown vinyl jacket was "full" and "bulged to the side."
Concerned that Oppelt might be armed, Cisneros told him to
place his hands on a nearby vehicle so that Cisneros could
conduct a search. Oppelt said, "no," but Cisneros repeated
his order to have him place his hands on the vehicle. At
this point Oppelt complied and Cisneros patted him down to
see if he had a knife or other weapon. Cisneros discovered
that the bulge was created by several coins, tie tacks, and
pieces of jewelry. Cisneros handcuffed Oppelt and notified
police to come and make an arrest.
When the police arrived to arrest Ruiz, Bradford and
Oppelt, they also looked into the vehicle that the hotel
guest had seen the suspects looking into prior to the
investigation by Cisneros and the clerk. Officer Wayne
Doeden of the Great Falls Police Department observed that
the wing window had been entered and the glove box had been
opened. Various items from the box had been spilled on the
floor of the car. When looking up and away from the car,
Doeden saw another vehicle which he had seen Oppelt in
previously. Doeden looked in this car as well, and spotted
in plain view a knife, tools and what appeared to be either
a holster or a handgun on the car floor. The vehicle was
impounded and a search warrant was obtained. Officers
discovered a watch, a ring, several guns and knives, jewelry
and a mobile phone. These items were eventually identified
a s p r o p e r t y s t o l e n from s e v e r a l p a r k e d c a r s i n t h e l o t s o f
t h e V i l l a g e Motor I n n and the Holiday Inn, both i n Great
Falls. Most of t h e v i c t i m s o f t h e s e r o b b e r i e s l i v e d o u t o f
state.
I n v e s t i g a t o r s a l s o found w a l l e t s belonging t o Bradford
and Oppelt in the impounded vehicle. The auto was
registered in the name of Oppelt's half-sister. An
i n v e s t i g a t i o n was a l s o a u t h o r i z e d f o r t h e f i r s t v e h i c l e , i n
which police lifted fingerprints matching those of
Bradford.
On August 1 9 , 1 9 8 2 , B r a d f o r d and O p p e l t were c h a r g e d
with three counts of criminal trespass to vehicles, two
c o u n t s o f f e l o n y t h e f t , two c o u n t s o f misdemeanor t h e f t , and
one count of felony criminal mischief. Both men,
represented by separate counsel, plead not guilty t o all
counts. Ruiz, a juvenile, was apparently not charged.
O p p e l t moved t o d i s m i s s s i x o f t h e e i g h t c o u n t s a g a i n s t him,
and t o s u p p r e s s t h e e v i d e n c e s e i z e d f r o m h i s p e r s o n d u r i n g
t h e pat-down s e a r c h , a l l e g i n g t h a t h i s r i g h t t o p r i v a c y had
been violated by the search. After a hearing and upon
submission of briefs, the trial court denied t h e motion.
J u d g e Coder c o n c l u d e d t h a t , while Cisneros' a c t i o n s had t o
be measured against constitutional standards, there was
nothing to suggest that Oppelt had been under a full
custodial arrest or that he had been the victim of an
unreasonable search.
I n t h e meantime, t h e S t a t e had g i v e n n o t i c e t h a t i t
was p r e p a r i n g t o f i l e a n amended i n f o r m a t i o n and s u p p o r t i n g
affidavit. The new i n f o r m a t i o n r e v i s e d t h e c h a r g e s a g a i n s t
b o t h B r a d f o r d and O p p e l t . They w e r e now c h a r g e d w i t h f i v e
counts of misdemeanor criminal trespass to vehicles, one
consolidated count of felony theft, one of attempt, and one
of felony criminal mischief. The parties went to trial on
these charges.
At the conclusion of the State's case-in-chief,
Oppelt's attorney moved to dismiss the charges against him.
The motion was denied. The court did dismiss, without
objection by the State, one charge of criminal trespass to
vehicles. The court also reduced the felony criminal
mischief charge to a misdemeanor, again without objection by
the State. The other charges were allowed to stand.
The defendants' case revolved almost exclusively
around an alibi defense supplied by Robert Ruiz. Ruiz
insisted that he alone was responsible for the thefts, and
that Bradford and Oppelt had been called around 5 a.m. to
come to the Heritage Inn and help him start his stalled car.
Ruiz had no explanation for Oppelt's presence in the hotel.
The jury returned guilty verdicts on all charges.
Oppelt was sentenced to twenty years in prison and was
designated a persistent felony offender. Bradford received
a similar sentence, but he has not appealed his conviction.
Oppelt raises the following issues:
(1) Whether the trial court erred in denying Oppelt's
motion to suppress evidence seized from his person by a
private security guard in a "stop-and-frisk" during an
investigation of possible trespass and theft on hotel
property patrolled by the security guard?
(2) Whether the amended information charging Oppelt
with criminal trespass to vehicles, criminal mischief,
attempt and felony theft was supported by a showing of
CORRECTION. In preparing this opinlon for pub-
lication, we noted in our verification of titles and
Hon. L. C. G u l b r a n d s o n citations the matters listed below. Corrections have
J u s t i c e , Supreme C o u r t been made on our copy of the opinion.
Room 436 J u s t i c e B l d g .
215 N o r t h S a n d e r s
H e l e n a , Montana 59620
August 2 , 1984
S t a t e v. B r a d f o r d , N o . 83-267, May 2 4 , 1 9 8 4
P a g e 7 , l i n e 1 2 - - D u r a n v. B u t t r e y Foods, Inc. s h o u l d r e a d D u r a n v.
B u t t r e y Food, I n c .
WEST PUBLISHING COMPANY
Box 3526
St. Paul, MN 55165
probable cause in the State's affidavit?
(3) Whether the trial court erred in denying Oppelt's
motion to dismiss charges against him at the close of the
State's case, and whether there was sufficient evidence to
instruct the jury on accountability and common scheme?
The gist of Oppelt's argument on the first issue is
that the constitutional right to privacy, Mont. Const. art.
11, sec. 10, as construed in this Court's decisions in State
v. Van Haele (Mont. 1982), 649 P.2d 1311, 39 St.Rep. 1586;
State v. Hyem (Mont. 1981), 630 P.2d 202, 38 St.Rep. 891;
Duran v. Buttrey ~ood$, Inc. (Mont. 1980), 616 P.2d 327, 37
St.Rep. 1545; State v. Helfrich (1979), 183 Mont. 484, 600
P.2d 816; and State v. Coburn (1974), 165 Mont. 488, 530
P.2d 442, bars the kind of stop and search involved in his
case, therefore mandating suppression of the evidence seized
from his person.
This is the first time that a stop-and-frisk operation
by a private security guard in Montana has been challenged.
The search and seizure involved here is very similar to the
one held lawful for police to perform. See Terry v. Ohio
(1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Oppelt
maintains that the issue of whether a Terry stop-and-frisk
can be conducted by a private security guard must be settled
by reference to this Court's line of cases extending the
protections of the exclusionary rule to private searches.
We disagree. Regardless of any argument supporting the
possible relevance of our earlier decisions respecting
private searches, we hold that a private security guard may
conduct the kind of "stop-and-frisk" involved in the instant
case during an investigation of possible trespass and theft
on property patrolled and protected by the security guard.
In the immediate case, the search of Oppelt is
justified as action taken to protect the hotel and its
occupants against trespassers in the process of committing
an offense. A person has a right to use "any necessary
force" to protect himself or his employer, or his or her
employer's property, from wrongful injury. Section
49-1-103, MCA. See also Mont. Const. art 11, sec. 3
(constitutional right to protect self and property); Section
45-3-102, MCA (authorization to use reasonable force to
defend self); Section 45-3-104, MCA (authorization to use
reasonable force to defend property). A reasonable
construction of these constitutional and statutory
provisions compels the concl.usion that Cisneros had legal
authority to protect the hotel property, to investigate the
circumstances surrounding Oppelt's presence there, and to
use "reasonable force" to protect himself during the course
of his investigation. "Reasonable force" under the facts of
this case includes the right of the security guard to
conduct a Terry "stop-and-frisk."
Oppelt responds that Cisneros did not have "probable
cause" to believe that he was trespassing or committing some
other offense, so as to justify the search. "Probable case"
is not the correct standard. All Cisneros needed to have
was a "reasonable suspicion" that something illegal was
taking place and that Oppelt might be armed. Given that he
had just seized two armed individuals lurking around a hotel
p a r k i n g l o t a t f i v e o ' c l o c k i n t h e m o r n i n g , and t h a t O p p e l t
was h e a d i n g t o w a r d t h e l o t u n t i l h e saw C i s n e r o s , t h e n i g h t
c l e r k , a n d t h e two d e t a i n e e s , a f t e r w h i c h t i m e h e t u r n e d and
walked o r r a n i n t h e o p p o s i t e d i r e c t i o n , and t h a t O p p e l t ' s
j a c k e t p o c k e t b u l g e d t o t h e s i d e , w e f i n d t h a t C i s n e r o s had
a r e a s o n a b l e s u s p i c i o n t o i n v e s t i g a t e O p p e l t ' s p r e s e n c e and
c o n d u c t a pat-down s e a r c h f o r weapons.
Oppelt's challenge to the amended information and
supporting affidavit appears to flow from a narrow
c o n c e p t i o n of p r o b a b l e c a u s e . Whether t h i s conception is
justified d e p e n d s on t h e n a t u r e o f the facts cited in the
affidavit in support of the information and case law
c o n s t r u i n g t h e scope of probable cause.
O p p e l t c h a l l e n g e s t h e c r i m i n a l t r e s p a s s c h a r g e s on t h e
g r o u n d s t h a t t h e v a r i o u s s t o l e n items d o n o t l i n k him t o t h e
crimes. His theory is that there i s no proof that he
e n t e r e d t h e v e h i c l e s , even i f h i s co-defendant, Bradford, o r
t h e j u v e n i l e , Ruiz, d i d s o e n t e r . H e further challenges the
f e l o n y t h e f t c h a r g e on t h e g r o u n d s t h a t m o s t o f t h e items
w e r e n o t " c o n n e c t e d " t o h i s p r e s e n c e a t t h e h o t e l when h e
was s e i z e d . The r e m a i n i n g i t e m s w e r e a l l e g e d l y n o t v a l u e d ,
t h u s making p r o o f o f a f e l o n y t h e f t i m p o s s i b l e . Similarly,
Oppelt insists that the attempt and criminal mischief
charges are tied t o damage to a mobile telephone i n one
v e h i c l e and that there i s no n e c e s s a r y c o n n e c t i o n b e t w e e n
him a n d t h e v e h i c l e .
An affidavit in support of a motion to file an
information need n o t make out a prima facie case that a
d e f e n d a n t committed a n o f f e n s e . A mere p r o b a b i l i t y t h a t h e
committed t h e o f f e n s e is s u f f i c i e n t . Similarly, evidence t o
establish probable cause need not be as complete as the
evidence necessary to establish guilt. See State v.
Hamilton ( 1 9 8 0 ) , 1 8 5 Mont. 522, 605 P.2d 1121, c e r t . den.
447 U.S. 9 2 4 , 1 0 0 S.Ct. 3 0 1 7 , 65 L.Ed.2d 1117. I n S t a t e v.
Riley (Mont. 1982), 649 P.2d 1273, 39 S t . R e p . 1491, this
Court observed t h a t t h e d e t e r m i n a t i o n whether a motion to
f i l e an i n f o r m a t i o n i s s u p p o r t e d by p r o b a b l e c a u s e i s l e f t
t o t h e sound d i s c r e t i o n of t h e t r i a l c o u r t . Thus, t h e s c o p e
of r e v i e w is o n e o f d e t e c t i n g a b u s e i n t h e e x e r c i s e of t h a t
discretion.
The first criminal trespass c h a r g e was c o n n e c t e d to
t h e f a c t t h a t t h e items s t o l e n f r o m t h e f i r s t c a r w e r e f o u n d
on O p p e l t ' s person during the search. This is c l e a r l y a
basis for probable c a u s e t h a t O p p e l t was in that vehicle.
Although the remaining trespass charges involve evidence
f o u n d i n t h e s u s p e c t ' s c a r , b u t n o t on O p p e l t ' s p e r s o n , the
State alleged in its affidavit t h a t Oppelt and the other
suspects had participated and assisted each other in a
common c r i m i n a l scheme. T h i s C o u r t h a s h e l d t h a t more t h a n
a mere p r e s e n c e at the s c e n e of a crime is necessary to
establish criminal responsibility. S t a t e v. Hammons (Mont.
1 9 8 3 ) , 664 P.2d 9 2 2 , 40 S t . R e p . 884. In the instant case,
h o w e v e r , t h e S t a t e was a b l e t o e s t a b l i s h O p p e l t ' s p r e s e n c e ,
t h e s t o l e n a r t i c l e s on h i s p e r s o n , h i s u n u s u a l b e h a v i o r , a n d
h i s connection t o the other suspects. A t t h i s s t a g e of the
criminal proceedings, t h i s was a l l t h a t was n e c e s s a r y f o r a
v a l i d showing o f p r o b a b l e c a u s e .
Oppelt c i t e s S t a t e ex r e l . W i l s o n v. D i s t r i c t Court
(1972), 1 5 9 Mont. 439, 498 P.2d 1217, in s u p p o r t of his
a r g u m e n t t h a t h e c a n n o t b e c h a r g e d w i t h o u t a more p o s i t i v e
connection t o t h e evidence. A l t h o u g h a r g u a b l y c l o s e on some
facts, Wilson is nevertheless distinguishable. In that
c a s e , t h e t r i a l c o u r t found p r o b a b l e c a u s e t o l i n k a s u s p e c t
to a burglary of a beer distributer's business. The
e v i d e n c e , h o w e v e r , was f o u n d i n a c a r b e l o n g i n g t o a n o t h e r
individual. Although t h a t i n d i v i d u a l and t h e s u s p e c t had
b e e n c h a r g e d w i t h a n o t h e r b u r g l a r y a t a lumber y a r d , this
C o u r t h e l d t h a t t h i s was n o t enough t o e s t a b l i s h p r o b a b l e
c a u s e on t h e b e e r t h e f t . I n t h e i n s t a n t c a s e , t h e r e i s more
evidence than the fact that Oppelt was arrested with
B r a d f o r d and R u i z . His suspicious behavior a t the scene,
t h e p r e s e n c e of h i s w a l l e t i n t h e impounded c a r w i t h m o s t o f
the stolen items, his identification with the car on a
p r e v i o u s o c c a s i o n , and h i s f a m i l i a l r e l a t i o n s h i p t o B r a d f o r d
and R u i z offer enough e v i d e n c e t o w a r r a n t a finding that
O p p e l t p r o b a b l y was a participant in a common scheme o f
the£ts.
Probable cause for theft also was sufficiently
established. The items f o u n d o n O p p e l t ' s p e r s o n a l o n e w e r e
reported to have a value of more than $150, clearly
establishing sufficient grounds for a charge of felony
theft. T h e r e was a l s o a f a i r p r o b a b i l i t y o f a t t e m p t and
criminal mischief shown on Oppelt's part, given the
s i m u l t a n e o u s p r e s e n c e o f d e f e n d a n t s a t t h e crime s c e n e and
t h e e v i d e n c e of o t h e r t h e f t s .
From t h e f a c t s and c o n t r o l l i n g c a s e l a w , w e c o n c l u d e
t h a t t h e a f f i d a v i t of p r o b a b l e c a u s e is sound. The t r i a l
court did not abuse its discretion in denying Oppelt's
motion to dismiss.
Having failed to convince the trial court that the
State lacked probable cause to charge Oppelt, defense
counsel still had the opportunity to challenge the State's
evidence at trial. The following discussion essentially
summarizes the facts and issues developed during the trial.
A guest at the Heritage Inn testified that he had seen
two individuals, later identified as Bradford and Ruiz,
breaking into cars in the Inn's parking lot. He also had
seen another individual walking around the cars. His
testimony at trial indicated that the physical description
of this third individual matched that of Oppelt. The
security guard had apprehended Ruiz, who had been standing
by a car, and then had retrieved Bradford, who had been
hiding under another car and trying to roll away. The
security guard had seen Oppelt inside the glass enclosure of
the motel. After Oppelt had spotted the guard with Ruiz and
Bradford, he had withdrawn in the opposite direction. After
Oppelt had been apprehended and patted down, his pockets
were found to contain what were believed to be stolen
articles. Indeed, these articles had been taken that same
night from a vehicle parked at the Holiday Inn. Four
vehicles in two motel parking lots had been forcibly entered
and various items had been stolen from three of the cars.
Most of the items were found in an automobile parked at the
Heritage Inn. This car was registered to Oppelt's
sister-in-law, and Oppelt had been observed using the car on
a previous occasion. The car also contained wallets
belonging to Bradford and Oppelt. It was established that
Oppelt, Bradford and Ruiz are related. There was testimony
even from defense witnesses that Bradford and Oppelt were
together during the time of the break-ins. Defendant
Bradford's fingerprints had been found in one of the
burglarized vehicles. The record also discloses that the
break-ins had been similar in all significant aspects and
followed one another, evidencing a continuing criminal
design: they had taken place the same night and early
morning at motels in Great Falls, the vehicles had been
forced open through the wing windows, and items had been
taken, with firearms having been removed from at least two
vehicles. All the vehicles were from out of town, and the
items stolen were either on the three suspects or in the car
that was used by Ruiz and Oppelt at different times.
Proof of common scheme as defined in Section
45-2-101(7), MCA, requires a showing of "a series of acts or
omissions motivated by a purpose to accomplish a single
criminal objective or by a common purpose or plan which
results in the repeated commission of the same offense or
affects the same person or the same persons or the property
thereof." Criminal accountability for conduct of another is
established if there is evidence of the party's aiding or
abetting the criminal act, or of agreeing or attempting to
aid the other in the planning or commission of the offense.
See Section 45-2-302(3), MCA. Although mere presence at the
scene of a crime is not enough to establish accountability,
the accused need not take an active part in any overt
criminal acts to be adjudged criminally liable for the acts.
State v. Hart (Mont. 1981), 625 P.2d 21, 38 St.Rep. 133.
The evidence set forth above tends to support both
common scheme and accountability. Oppelt urges this Court
to focus only upon three facts: (1) that he was arrested at
the hotel; (2) that stolen items were found on his person;
(3) that his wallet was found in the impounded vehicle along
with several stolen items. Although these three facts alone
warrant serious suspicion about Oppelt's conduct, they do
not comprise the complete series of events. When considered
with the similar pattern of break-ins involving several
cars, Oppelt's unusual behavior the night of the thefts, his
relationship to Bradford and Ruiz, and the discovery of
Bradford's fingerprints, it can be said that there was
sufficient evidence to go to the jury on the question of
Oppelt's involvement in a common scheme of thefts. The same
evidence warrants a reasonable inference that, even if he
had not broken into any or all of the vehicles himself, he
was a partner in the commission of those offenses. Under
the circumstances, the instructions on common scheme and
accountability were proper.
The orders denying Oppelt's motion to suppress
evidence, denying his motion to dismiss the amended
information, and denying his motion to dismiss charges
following presentation of the State's case are affirmed.
The convictions on the aforementioned charges of criminal
mischief, criminal trespass to vehicles, attempt, and felony
theft are likewise affirmed.
/
Justice
We concur:
PAL J,
Chief Justice
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