State v. Evjen
| Decision Date | 17 November 1988 |
| Docket Number | No. 88-226,88-226 |
| Citation | 765 P.2d 708,234 Mont. 516 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Daniel EVJEN, Defendant and Appellant. |
| Court | Montana Supreme Court |
K.M. Bridenstine, Polson, for defendant and appellant.
Mike Greely, Atty. Gen., Robert F.W. Smith, Asst. Atty. Gen., Helena, Larry Nistler, Co. Atty., Polson, for plaintiff and respondent.
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 lot, 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 Mangels 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 Sec. 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 (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the officer in that case, at...
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...McCarthy, 852 P.2d at 113; citing California v. Acevedo (1991), 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619; and State v. Evjen (1988), 234 Mont. 516, 765 P.2d 708. One recognized exception to the warrant requirement is the stop and frisk. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, ......
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State v. Allen
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