State v. Davis, 80-148

• Decision Date: 17 December 1980
• Docket Number: No. 80-148,80-148
• Citation: 37 St.Rep. 1958,190 Mont. 285,620 P.2d 1209
• Parties: STATE of Montana, Plaintiff and Respondent, v. Stanley DAVIS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1209

620 P.2d 1209

190 Mont. 285

STATE of Montana, Plaintiff and Respondent, v. Stanley DAVIS, Defendant and Appellant.

No. 80-148.

Supreme Court of Montana.

Submitted on Briefs Aug. 28, 1980.

Decided Dec. 17, 1980.

Yardley & Yardley, Livingston, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Bruce Becker, County Atty., Livingston, for plaintiff and respondent.

HASWELL, Chief Justice.

Stanley Davis was charged in District Court, Sixth Judicial District, with four counts: (1) conspiracy to sell dangerous drugs, (2) attempted criminal sale of dangerous drugs, (3) criminal sale of dangerous drugs, and (4) attempted criminal possession of dangerous drugs. Following a jury trial, defendant was convicted of conspiracy to sell dangerous drugs and was sentenced to three years in prison.

At some time prior to August 8, 1979, Kenneth Huttinger (Informant) approached the Bozeman police about cooperating with them in apprehending James Amsk, who was allegedly selling drugs to Huttinger's girlfriend. A "buy" from Amsk was arranged by Informant to take place in Park County on August 8, 1979. Certain members of a police stakeout group observed the transaction from a prearranged lookout. They made no arrests and no warrants were issued at that time. Another person was present with Amsk at that transaction who was later identified as David Harper. The defendant was not present at this "buy."

During the August 8, 1979, meeting, Informant arranged with Amsk to make an additional purchase on the following day. The police were alerted to this activity and again staked out the park.

On August 9, 1979, defendant met Amsk in Livingston and drove with him, in Amsk's car, to Sacajawea Park. In the park they met Informant, and Amsk and Informant agreed to a "buy." Informant gave Amsk $465.00 and Amsk then agreed to return shortly with the drugs. At that time, Informant and defendant had no communication except for defendant's statement identifying himself to Informant. Amsk and defendant left the park together.

Informant gave a prearranged signal to the officers staking out the park and informed them that Amsk intended to return to the park shortly with the drugs. The officers returned to their stakeout positions.

Fifteen or twenty minutes later, defendant returned alone to the park. He indicated to Informant that Informant was to meet Amsk at the A & W Root Beer Stand in order to take delivery of the drugs. Defendant left his car at the park and got into Informant's car and drove to the A & W with him. The A & W parking lot was very crowded so defendant instructed Informant to drive to the motel parking lot next door and to honk his horn at a car being driven by Amsk and Harper. Informant stopped his car in the lot and went to Harper's car to get the drugs. Amsk instructed Informant to give 1000 hits of "speed" (amphetamines) to defendant, for defendant to dispose of. Informant returned to the car and gave defendant the "speed" which defendant put in his boot. Informant and defendant returned to the park to get defendant's car.

Upon reaching the park, Informant and defendant both got out of Informant's car and walked over to defendant's car. At that time, Informant gave the signal to certain police on the stakeout who in turn signaled to officers Malone and Bowman to make the arrest. Officer Malone arrested defendant and conducted a pat-down search. Defendant was taken to the jail in Park County and searched, at which time the alleged amphetamines were found in defendant's boot. Tests proved the substances to be noncontrolled substances.

Prior to trial, defendant moved to suppress all evidence taken from defendant's person following arrest, based on his allegation that the arrest was illegal. The motion to suppress was denied.

At the close of the State's case at trial, defendant moved to dismiss the first three counts. The motion was based on defendant's contention that the sale of dangerous drugs had been completed and the crimes consummated prior to any participation by defendant. This motion was denied.

The defendant raises several issues on appeal:

(1) Whether the officers had probable cause to arrest defendant, and whether the circumstances required his immediate arrest?

(2) Whether the defendant's motion to suppress should have been granted because the evidence was obtained after an illegal arrest?

(3) Whether the sale of dangerous drugs was completed prior to any participation by defendant Davis?

(4) Whether the court's denial of the motion to suppress and the motion to dismiss deprived defendant of a fair trial on the charge of conspiracy to sell dangerous drugs?

Officers Malone and Bowman of the Bozeman police force arrested defendant without a warrant. In order to make such an arrest, a police officer must satisfy the requirements of section 46-6-401, MCA. That statute provides in part:

"Circumstances in which a peace officer may make an arrest. A peace officer may arrest a person when:

"...

"(4) he believes on reasonable grounds that the person is committing an offense or that the person has committed an offense and the existing circumstances require his immediate arrest."

Appellant contends that the arresting officers did not observe him committing any offense, nor did they have any knowledge that a crime had been committed by defendant. Additionally, appellant argues that even if probable cause did exist to believe a crime had been committed, there were no existing circumstances requiring his arrest without a warrant.

We find that the arrest was based on probable cause and was lawful. Thus, the evidence seized after the arrest was admissible at trial. The district judge properly denied the motion to suppress.

In Montana, "reasonable grounds" to arrest are synonymous with "probable cause" to arrest. State v. Fetters (1974), 165 Mont. 117, 122, 526 P.2d 122, 125. As this Court stated in State v. Hamilton (1980), Mont., 605 P.2d 1121, 1125, 37 St.Rep. 70, 73:

" 'Probable cause to arrest without a warrant exists where the facts and circumstances within the officer's knowledge and of which he had reasonable trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.' "

Admittedly, Officers Malone and Bowman, the arresting officers, may not have had sufficient independent personal knowledge of an offense to establish probable cause. From Officer Malone's position in the stakeout, he was unable to observe any of defendant's actions in the park. He was not present at the A & W Root Beer Stand or at the motel parking lot. He concedes that he did not personally observe defendant commit any offense. Officer Bowman testified similarly.

The factual situation involved here is not an unusual one in this type of case. Several officers were working in cooperation with an informant in an ongoing undercover operation. Officers were staked out in various positions around the scene of the "buy" and communicated by means of radio and signals. No one officer may have had sufficient knowledge to establish probable cause, but if the information is considered collectively and is evaluated on the basis of the information available to the law enforcement officers as a group, it was sufficient to establish probable cause. Numerous jurisdictions hold that

" '... (P)robable cause is to be evaluated by the courts on the basis of the collective information of the police rather than that of only the officer who performs the act of arresting.' " State v. Shaw (1979), 3 Or.App. 346, 473 P.2d 159, 161.

See also Smith v. United States (D.C.Cir.1966), 358 F.2d 833, 835, cert. den., 386 U.S. 1008, 87 S.Ct. 1350, 18 L.Ed.2d 448; People v. Saars (1978), 196 Colo. 294, 584 P.2d 622 625; State v. Miller (1975), 112 Ariz. 95, 537 P.2d 965, 967.

We find this view to be persuasive. Many investigations and undercover operations could be needlessly frustrated if the participating officers were not able to rely on information provided by other officers working with them on a particular case.

Viewed in this way, we find that there were sufficient facts and circumstances within the officers' knowledge that they could reasonably believe that an offense was being or had been committed by defendant. Appellant argues that his mere presence at the scene of a crime does not establish probable cause for arrest. This is a correct statement of the law, State v. Hamilton, supra, Mont., 605 P.2d at 1125, 37 St.Rep. at 73, but the evidence shows more than defendant's mere presence.

Steve Markle, investigator for the Gallatin County Attorney's office, knew that a drug transaction had occurred between Informant and Amsk on August 8, 1979 and that another transaction was scheduled for August 9, 1979. From his dealings with Informant, Steve Markle knew the Informant to be reliable and Markle personally viewed part of the transactions. On August 9, from his stakeout position in the Livingston Armory, Markle saw through his spotting scope that Informant had made contact with Amsk and another unidentified person (defendant) at the scheduled time and that Informant had transferred money to Amsk; Amsk and the unidentified person left the meeting place; the unidentified person returned; Informant and the unidentified person left together, and returned to the scene together; and Informant gave a prearranged signal indicating the drug transaction had been completed. The information possessed by Markle was transmitted to Officers Bowman and Malone, the arresting officers, by radio.

Officers Bowman and Malone also knew that a drug transaction had occurred between Amsk, the informant and an unidentified person the previous day. They knew that Informant had delivered the money to Amsk and an unidentified person on August 9, 1979, and that Informant had given the prearranged signal to Markle that the drug transaction had been completed. They...