No. 92-060
IN THE SUPREME COURT OF THE STATE OF MONTANA
,- ..
STATE OF MONTANA,
Plaintiff and Respondent,
MELVIN GEORGE DOW,
Defendant and Appellant
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Philip Walsh, Bozeman, Montana
For Respondent:
Marc Racicot, Attorney General, Paul D. Johnson,
Assistant Attorney General, Helena, Montana; Mike
Salvagni, Gallatin County Attorney, Martin Lambert,
Deputy County Attorney, Bozeman, Montana
Submitted on Briefs: November 18, 1992
Decided: December 30, 1992
Filed:
Justice Fred J. Weber delivered the opinion of the Court.
A jury in the District Court for the Eighteenth Judicial
District, Gallatin County, convicted Melvin George Dow of robbery
and sexual intercourse without consent. Dow appeals. We affirm.
The issues are:
1. Did the District Court err in denying Dow's two pre-trial
motions to suppress evidence and statements obtained from him
before and after his arrest?
2. Were Dow's constitutional rights violated by application
of § 46-13-302(4), MCA (l989), which places the burden of proof
upon a defendant moving to suppress evidence?
3. Was the evidence sufficient to convict Dow of robbery?
Late on the evening of Christmas Day 1990, a woman was
assaulted as she walked home from a movie in downtown Bozeman, Mon-
tana. Her assailant grabbed her from behind, told her he had a gun
and not to "get dumb," and walked her into a dimly-lit alleyway.
The victim repeatedly asked him what he wanted. When she asked if
he wanted her money, he said he did. At his direction, she removed
her money from her purse and wallet and handed it to him. The vic-
tim then asked if she could go. The assailant replied, "No, there
is one more thing." He raped her, then allowed her to leave.
The victim walked home and immediately called the police.
Investigating officers escorted her back to the scene of the crime,
where two sets of footprints were clearly visible in fresh snow.
The officers determined that one set of footprints was the victim's
and that the footprints corroborated her story. The second set of
footprints was made by a person wearing footwear which left a
distinctive zigzag design in the prints.
One officer took the victim to the hospital for a rape exam-
ination and another began following the assailant's footprints
away from the crime scene. There were few other tracks in the new
snow. In some places, the footprints indicated that the person was
traveling at a run and, in others, the person had doubled back over
his own tracks or walked within vehicle tracks. The footprints
eventually led to Room No. 11 of the Alpine Motel, several blocks
from the crime scene.
When the police officer arrived at the motel, the lights were
on in Room No. 11 and noise from a television or radio could be
heard from within. After radioing for backup assistance and ascer-
taining at the motel office that one male was registered in Room
No. 11, the officer knocked on the door. It was opened by Dow,
clad only in his underwear.
Dow's appearance matched the description the victim had given
of her assailant. Announcing himself as a police officer, the
officer entered the room. Dow's boots were drying on a radiator.
The pattern on the soles of the boots matched the zigzag pattern in
the tracks the officer had been following. A pair of wet jeans
were hanging in the open closet. After the design on the soles of
Dow's boots was compared with the footprints leading from the scene
of the crimes, Dow was arrested.
Prior to trial, Dow moved to have evidence seized from his
motel room suppressed on grounds that a search warrant was required
before police officers could enter the room. He also moved to
suppress a tape-recorded statement he gave shortly after his
arrest. After briefing and evidentiary hearings, the District
Court denied both motions.
Did the District Court err in denying Dowts two pre-trial
motions to suppress evidence and statements obtained from him
before and after his arrest?
Dow points out that under the Fourth Amendment to the United
States Constitution and Article 1 1 Section 11 of the Montana
Constitution, warrantless felony arrests in the home are presump-
tively unreasonable and prohibited. He further points out that a
person staying in a hotel or motel room is afforded the same
constitutional protection as a person living in a home or other
dwelling. U.S. v. Diaz (7th Cir. l987), 814 F.2d 454, 457-58, cert
d e n i e d , 4 8 4 U.S. 8 5 7 ; S t a t e v. Otwell ( 1 9 8 9 ) , 239 Mont. 150, 779
P.2d 500. He claims that no justification is present for breaching
the prohibition against a warrantless intrusion into his motel
room, and that the evidence seized from the room and his post-
arrest statements should be suppressed as fruits of an illegal
entry.
The State maintains that police officers had probable cause to
enter Dawis motel room and arrest him. The State further maintains
that the officers were justified in entering the motel room without
a warrant under the hot pursuit and exigent circumstances excep-
tions to the general prohibition against warrantless entries.
Exception is made to the warrant requirement where exigent
circumstances and probable cause are present. Warden v. Hayden
(19671, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782; State v. Sor-
enson (1979), 180 Mont. 269, 590 P.2d 136- Probable cause exists
if the facts and circumstances within the officer's
personal knowledge, or imparted to the officer by a
reliable source, are sufficient to warrant a reasonable
person to believe that the suspect has committed an
offense. (Citations omitted.)
State v. Schoffner (1991), 248 Mont. 260, 264, 811 P.2d 548, 551.
Dow does not seriously argue that the officer who knocked on
his motel room door lacked probable cause to arrest him. When Dow
opened the door to his room in response to the officer's knock, the
facts known by the officer were: the victim had promptly reported
a rape and robbery by an armed gunman; tracks in the snow at the
scene corroborated her report; the only fresh set of tracks leading
from the crime scene other than the victim's led to D o w l s motel
room and indicated that he was trying to avoid being followed; Dow
was the only person registered in Room No. 11; and Dow matched the
physical description of the assailant. We conclude that the
officer had probable cause to arrest Dow. We therefore proceed to
consideration of whether exigent circumstances were present.
In Havden, the United States Supreme Court recognized a
particular type of exigent circumstance, when police in immediate
pursuit tracked an armed robber to his home and entered the home
without a warrant. The Court stated
[The police] acted reasonably when they entered the house
and began to search for a man of the description they had
been given and for weapons which he had used in the
robbery or might use against them. The Fourth Amendment
does not require police officers to delay in the course
of an investigation if to do so would gravely endanger
their lives or the lives of others. Speed here was
essential, and only a thorough search of the house for
persons and weapons could have insured that Hayden was
the only man present and that the police had control of
all weapons which could be used against them or to effect
an escape.
...
Here, the seizures occurred prior to or
immediately contemporaneous with Hayden1sarrest, as part
of an effort to find a suspected felon, armed, within the
house into which he had run only minutes before the
police arrived. The permissible scope of search must,
therefore, at the least, be as broad as may reasonably be
necessary to prevent the dangers that the suspect at
large in the house may resist or escape.
Havden, 387 U.S. at 298-99. While hot pursuit requires "some sort
of a chase, ... it need not be an extended hue and cry 'in and
about [the] public streets.'" United States v. Santana (1976), 427
U.S. 38, 43, 9 6 S.Ct. 2 4 0 6 , 2410, 49 L.Ed.2d 3 0 0 , 305.
This Court has recognized the theory of hot pursuit, but in
each Montana case in which the theory has been raised, it has been
deemed nonapplicable. In Sorenson, 590 P.2d at 139, this Court
stated that the theory is not available to peace officers unless a
felony has been committed and the suspect is fleeing. Dow claims
the Sorenson opinion limits the definition of hot pursuit so that
the facts of this case are outside that definition.
In Sorenson, police officers received a report of a boy who
had threatened to shoot h i s h i g h school principal. The boy was
housesitting for Sorenson. While looking for the boy at Sorenson's
house, officers found evidence of use and possession of illegal
drugs. Eleven days later, t h e officers obtained a search warrant
for Sorenson's house and charged Sorenson with drug offenses. They
attempted to use a theory of hot pursuit to justify admission into
evidence of items seized in the search of the house. This Court
held that hot pursuit did not apply. Sorenson, 590 P.2d at 139.
The piggy-backing of nonrelated offenses by separate persons
is not present in this case as it was in Sorenson. Further, at the
time officers entered Sorenson's home without a warrant, no crime
had been committed and they were not in pursuit of a felon.
In State v . District Court of Eighth Jud. ~ i s t .(1978), 176
Mont. 257, 577 P.2d 849, which Dow cites, this Court h e l d that a
warrantless entry into an apartment approximately two hours after
a murder was not justified under a theory of hot pursuit. In that
case, however, the investigating officers were engaged in a general
investigation, not tracking the culprit from the scene of the
crime .
Dow also cites Welsh v. Wisconsin (1984), 466 U.S. 740, 104
S.Ct. 2091, 80 L.Ed. 2d 732. In that case, police officers received
a late-evening report of a car which had proceeded erratically on
a highway and then into a field, after which the driver left the
car on foot. Officers obtained the registration for the car and
determined that it was owned by Welsh and that Welsh's home was
near the field in which the car had been abandoned. The officers
went to Welsh's home, where they arrested him for operating a motor
vehicle while under the influence of an intoxicant. The Court held
that the entry into Walshls home was not justified as hot pursuit.
Welsh, 466 U.S. at 753-54.
In Welsh, the Court relied heavily on the nature of the
offense -- a civil forfeiture traffic offense for which imprison-
ment was not possible. There, the exigencies were insufficient to
overcome the warrant requirement, in the context of an arrest for
a mere civil traffic offense. In this case, in contrast, the
offenses were two felonies. Moreover, in the present case, there
was a significant continuing threat to the public safety as long as
the assailant remained at large because, unlike Welch, the
assailant had not abandoned his weapon. Also, in the present case,
the officers did not have the assailant's address -- the only way
of tracking him was to follow his footprints from the scene of the
crime .
We recognize that nearly two hours is a long "hot pursuit."
However, the doctrine of "fresh pursuit1I has been applied to a 75-
minute pursuit of a suspect following a shooting. People v.
Johnson (Cal. 1981), 637 P.2d 676. An Illinois court of appeals
determined that "warm pursuit" justified entry into a private yard
and garage several hours after multiple rapes were committed.
People v. Morrow (Ill. App. 1982), 433 N.E.2d 985, 992. The court
relied upon the limited scope of the search and the serious nature
of the crime. I.
d
Footprints in fresh snow present a rare situation in which the
physical trail of an offender can clearly be followed away from the
scene of a crime after the offender has left that scene. The Court
of Appeals of Idaho has used the broader theory of exigent circum-
stances to justify admission of evidence seized about an hour after
a robbery, following the tracking of footprints in fresh snow from
the scene of the crime to a house in which defendants were
arrested. State v. Campbell (Idaho App. 1983), 662 P.2d 1149.
Here, the victim reported the two felony crimes immediately
after they occurred. When an officer began following Dowls
footprints thirty to forty-five minutes after the crimes were
committed, it was reasonable to assume that the suspect, who left
the scene on foot, might still be in flight. The officer continu-
ously followed the distinctive footprints until he reached the
motel room and called for backup, knocking on the door of Dow's
motel room less than two hours after the crimes were committed. It
was not known whether Dow was aware that the officer, who had been
using a bright flashlight, was outside his motel room. It was not
known whether Dow was alone, and he was believed to have a gun. In
this case, the crimes were serious and the scope of the warrantless
search was narrow -- officers obtained a search warrant before
conducting more than a "plain viewn search of Dow's motel room.
We conclude that exigent circumstances were present in this
case as described under Havden, Santana, and Welsh. We hold that
the entry into Dow's motel room was justified under the hot pursuit
exception to the warrant requirement under both the Montana and the
United States Constitutions. We further hold that the District
Court did not err in denying Dow's motions to suppress evidence.
Were Dow's constitutional rights violated by application of §
46-13-302(4), MCA (1989), which places the burden of proof upon a
defendant moving to suppress evidence?
Section 46-13-302(4), MCA (1989), provided that, in a hearing
concerning suppression of evidence, "[tlhe burden of proving that
the search and seizure were unlawful shall be on the defendant."
Dow argues that he was deprived of his right of due process as a
result of application of the statute.
At the first suppression hearing, Dowtscounsel requested that
the State present its evidence first. That request w a s granted and
the State proceeded. Dow then presented his evidence and argu-
ments. The record demonstrates that Dow had the opportunity t o
present all evidence which he desired to have the court consider.
In its ruling, the District Court made no reference to burden of
proof as between the parties and in addition made no reference to
5 46-13-302 (4) , MCA (1989).
The record demonstrates this is not a "close" case in which
the application of a particular burden of proof would affect the
outcome. The record is devoid of any substantial evidence to
support Dowls theory of suppression. We conclude that there is no
reason to consider the constitutional theory presented by Dow.
I11
Was the evidence sufficient to convict Dow of robbery?
Dow maintains that there is insufficient evidence that he
obtained unauthorized control over t h e victim's money. Specifical-
ly, he argues that he could not have obtained unauthorized control
over the victim's money because she voluntarily gave it t o him. H e
further claims he made no threat which communicated a specific
request for money.
Our standard of review is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the c r i m e beyond
a reasonable doubt, State v. Paulson (1991), 250 Mont. 3 2 , 46, 817
P.2d 1137, 1146. The victim testified that Dow grabbed her from
behind, told her he had a gun, and forced her into a dimly-lit
alleyway. Under these circumstances, the victim asked Dow what he
wanted of her. When she asked if he wanted her money, he said he
did. She handed Dow her purse, but he indicated that he wanted
only the money, not the whole purse. At his direction, she removed
her money from her purse and wallet. When she asked if she could
go, he replied, "No, there is one more thing." This statement
clearly implies that Dow had two things on his mind when he forced
the victim into the alleyway. One thing was to rob her; the I1one
more thing" was to rape her. Threat is implicit when a lone and
unarmed woman on foot is forced into a dimly-lit alley by a man
claiming to have a gun and the man then answers I1yesl1 to her
question as to whether he wants her money.
We conclude that a rational finder of fact could have found
that Dow obtained unauthorized control over the victim's property.
We therefore hold that the evidence was sufficient to support Dow's
conviction of robbery.
Affirmed.
We Concur:
December 30, 1992
CERTIFICATE O F SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Philip F. Walsh
Lineberger, Walsh & McKenna
P.O. Box 6400
Bozeman, MT 59771-6400
Hon. Marc Racicot, Attorney General
Paul D. Johnson, Assistant
Justice Bldg.
Helena, MT 59620
A. Michael Salvagni, County Attorney
Marty Lambert, Deputy
615 S. 16th, Law & Justice Center
Bozeman, MT 59715
ED SMITH
CLERK O F THE SUPREME COURT
STATE O F MONTANA