State v. Gopher

• Decision Date: 09 July 1981
• Docket Number: No. 80-485,80-485
• Citation: 631 P.2d 293,193 Mont. 189,38 St.Rep. 1078
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Michael GOPHER, Defendant and Appellant.
• Court: Montana Supreme Court

Page 293

631 P.2d 293

193 Mont. 189

The STATE of Montana, Plaintiff and Respondent, v. Michael GOPHER, Defendant and Appellant.

No. 80-485.

Supreme Court of Montana.

Submitted June 11, 1981.

Decided July 9, 1981.

John C. Koch, argued, Great Falls, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Mark J. Murphy, argued, Asst. Atty. Gen., Helena, J. Fred Bourdeau, County Atty., Great Falls, Randall A. Snyder, argued, Deputy County Atty., Great Falls, for plaintiff and respondent.

HARRISON, Justice.

Defendant was charged with felony burglary and felony theft. After a hearing on May 9, 1980, defendant's motion to suppress illegally seized evidence was denied. A jury trial was held on August 18, 1980, and defendant was convicted on both counts. Defendant appeals, submitting that the Cascade County District Court erred in denying his motion to suppress.

At about 5:00 a. m. on March 15, 1980, a silent burglar alarm went off at the Warehouse Pawn Shop in Great Falls, Montana. Officer Stan Johnston arrived at the scene about a minute later. His investigation revealed a broken window, two large rocks on the floor, a number of empty spaces in a rifle rack, and a fresh set of tire tracks in the parking lot. While investigating he noticed a singular vehicle driving slowly past the scene and observed that the occupants exhibited an unusual curiosity in the crime site.

Johnston testified that he knew from past experience that it was not uncommon for burglars to return to the scene of the crime after simply breaking a window. If the break-in was undiscovered, they would then enter and take the goods. On the basis of these facts, Johnston called an assisting officer (Sharpe) and requested him to stop the vehicle. Officer Sharpe stopped and approached the vehicle shining his flashlight into the passenger compartment. He noticed several rifles on the floor. While examining the license of the driver, defendant Michael Gopher, the officer noticed the passenger's arm dropping toward the guns. When the officer drew his weapon and ordered the occupants of the car to get out of the vehicle, the driver accelerated and headed north. A subsequent pursuit by police terminated with the arrest of both persons in the car.

The sole issue before this Court is whether the trial court erred when it refused defendant Gopher's motion to suppress evidence he alleges was illegally seized.

The gist of defendant's argument is that the officer who initially "stopped" his car did not have probable cause to do so. He maintains that the authorities must have probable cause to believe he had committed a criminal act and sufficient cause to arrest him to justify the search. See section 46-5-101(1), MCA. Without probable cause, there can be no lawful arrest, and without the lawful arrest, a search cannot be properly made as being incident to the arrest. See section 46-6-401(4), MCA. Officer Sharpe, defendant maintains, must have had knowledge of sufficient facts to believe defendant had committed the burglary and that he must be immediately arrested. Gopher emphasizes that the facts sufficient to properly arrest a defendant must be known at the moment of the arrest and not discovered during or after the arrest. State v. Rader (1978), 177 Mont. 252, 581 P.2d 437. Citing Rader, defendant concludes that this Court has made a clear statement to the effect that stop and frisk principles do not apply to a defendant in a vehicle. 581 P.2d at 440.

At the outset we recognize the Rader rule regarding stop and frisk. Although dictum, such a clear expression by this Court prohibiting application of stop and frisk rules to automobiles cannot be ignored.

We also recognize that the facts known to Officer Johnston at the time he directed Officer Sharpe to stop defendant's automobile fall short of probable cause. We, therefore, must determine whether Rader should continue to be the law in this State and, if not, what standard should be applied in circumstances such as exist before us here.

The State maintains that the "stop and frisk" doctrine should apply to vehicular stops, citing Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. In Terry, the Supreme Court ruled that it can be constitutionally permissible for an officer to stop and search a person, even in the absence of probable cause. 392 U.S. at 15, 88 S.Ct. at 1876. This type of encounter must be reviewed as to its "reasonableness," and take into account the police interest involved and existence of specific and articulable facts.

The most recent post-Terry decision regarding stop and frisk is United States v. Cortez (1981), --- U.S. ----, 101 S.Ct. 690, 66 L.Ed.2d 621. In Cortez, the Supreme Court ruled that objective facts and circumstantial evidence suggesting that a particular automobile is involved in some sort of criminal activity is sufficient to warrant a limited investigatory stop. Chief Justice Burger writes:

"The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions inferences and deductions that might well elude an untrained person.

"The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." 101 S.Ct. at 695, 66 L.Ed.2d at 629.

It should be noted here that Officer Johnston is an experienced and knowledgeable member of the Great Falls police department, having been with the force for over twelve years. This is an important element of the Cortez analysis, which emphasizes that experienced law enforcement authorities are allowed to draw certain conclusions which...