State v. Lenon

• Decision Date: 16 November 1977
• Docket Number: No. 13595,13595
• Citation: 570 P.2d 901,34 St.Rep. 1153,174 Mont. 264
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Albert F. LENON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 901

570 P.2d 901

174 Mont. 264

The STATE of Montana, Plaintiff and Respondent, v. Albert F. LENON, Defendant and Appellant.

No. 13595.

Supreme Court of Montana.

Submitted Sept. 21, 1977.

Decided Oct. 26, 1977.

Rehearing Denied Nov. 16, 1977.

Hash, Jellison & O'Brien, Kalispell, James Bartlett, argued, Kalispell, for defendant and appellant.

Michael T. Greely, Atty. Gen., Helena, J. Mayo Ashley, argued, Asst. Atty. Gen., Helena, Patrick Springer, County Atty., Kalispell, for plaintiff and respondent.

HATFIELD, Chief Justice.

Defendant appeals from a conviction of possession of dangerous drugs.

The state charged defendant in district court, Flathead County, with the offense of felony possession of dangerous drugs. On January 28, 1976, Honorable Robert C. Sykes, after a hearing, denied defendant's motion to suppress his confession. On April 20, 1976, defendant was found guilty of this offense at a jury trial. On June 2, 1976, the court entered judgment, sentenced defendant to five years imprisonment, and then suspended the sentence. On June 21, 1976, the court denied defendant's alternative motions for acquittal or for a new trial.

The facts brought out at the trial which are relevant to this appeal are as follows: On June 11, 1975, Kalispell police officers obtained a warrant to search a Kalispell house. The officers executed the warrant shortly before midnight on Friday, June 13, 1975. As they approached the house, they observed an individual, 8 to 10 feet in front of them, approaching the house on the front walk. The officers, fearing that the individual would alert the occupants of the house as to the imminent search, pursued the individual into the house. Policeman Donald Hossack testified that, from the light in the house foyer, he could identify the individual by his height, type and color of shirt, hair color and length, build and type of jeans. The individual had a bundle or bag under his arm, and silhouetted in the house light, it appeared to be a brown paper bag.

The officers entered the house four to six seconds after the individual did. Upon their entry, the officers came face-to-face with defendant, who matched the appearance of the individual they saw enter the house with the bag or bundle. Directly behind defendant, about three or four steps up the stairway, was a brown paper bag. The officers in their search, seized various drug paraphernalia and marijuana in the upstairs rooms. The brown paper bag directly behind defendant contained 16 "lids" of marijuana, weighing approximately one ounce per lid. The police officers wrote an inventory of the items seized, which they left at the house, and returned the search warrant and an inventory of the seized items to the court. The police officers, however, failed to make a return of the brown paper bag of marijuana to the court which issued the search warrant.

The officers then arrested defendant and the two people who were the subjects of the search warrant. Defendant and the two other arrestees were read their Miranda rights and then transported to the Kalispell City jail for booking purposes. At the police station the officers gave defendant a form printed with the Miranda warnings. Defendant signed that form. The Booking procedure was completed sometime between 2:30 and 3:00 a.m. on Saturday, June 14, 1975, at the Flathead County jail.

Shortly before 9:00 a.m. on Saturday, June 14, 1975, Officer Hossack met in the jail with defendant. The officer did not remember whether he gave defendant a verbal Miranda warning at their 9:00 a.m. meeting, although he has a notation in his records saying that he did. The officer gave defendant a "voluntary statement" form with a Miranda -like warning printed at the top. Defendant then, in his own handwriting, wrote that he had taken a sack containing marijuana into the house on the night he was arrested. No lawyer was present at the confession.

Officer Hossack testified that he did not know if in fact defendant knew he did not have to make a statement, did not know whether defendant knew he could have a lawyer present, and did not know whether defendant knew his statement could be used against him in a court of law. The officer did state, though, that he read defendant the top part of the "voluntary statement" form which listed defendant's right to an attorney and his right to remain silent.

Officer Hossack, who had been a "friendly acquaintance" of defendant for ten to fifteen years, assured defendant that he would bring him before a judge and get him admitted to bail as soon as possible. The justice of the peace was out of town and defendant did not have his initial appearance until the morning of Monday, June 16, 1975. The officer testified that " * * * for my own clarification and for a better case * * *" he thought he told defendant to add in a statement that the sack was brown colored. Defendant did write this into the confession and signed it at the bottom.

Defendant raises the following issues on appeal:

1. Did the police have probable cause to arrest defendant?

2. Did the "then existing circumstances" require defendant's immediate arrest, as contemplated in section 95-608(d), R.C.M.1947?

3. Was defendant's confession voluntarily given?

4. Did the officers' failure to present defendant before a magistrate before interrogation render the confession inadmissible?

5. Did Officer Hossack's statement at trial that he was looking specifically for the brown paper bag before he went into the house constitute reversible error?

6. Did the police officers' failure to make a return of the brown paper bag of marijuana render the seized evidence inadmissible under section 95-712, R.C.M.1947?

Defendant states that "good faith and mere suspicion" by policemen as to a suspect's commission of an offense is insufficient to establish probable cause to arrest. The mere fact that a defendant is on the premises where the policemen have reason to believe there are drugs will not justify an arrest. State ex rel. Glantz v. District Court, 154 Mont. 132, 461 P.2d 193 (1969). There must be a showing of some connection with illegal or criminal activity by a defendant on the premises before there is probable cause to arrest him. State v. Hull, 158 Mont. 6, 487 P.2d 1314 (1971).

Defendant argues that there were insufficient facts to connect him with the brown paper bag of marijuana at the time of the arrest. At most, the facts gathered by the peace officers at the moment of arrest, gave reason for them to be suspicious of the defendant.

Defendant is indubitably correct in his assertion that "mere suspicion" is not the equivalent of probable cause to arrest. State v. Lahr, Mont., 560 P.2d 527, 34 St.Rep. 90 (1977). A peace officer may legally arrest a person without a warrant, however, when he "believes on reasonable grounds, that the person is committing or has committed an offense * * *". Section 95-608(d), R.C.M.1947. The "reasonable grounds" requirement of section 95-608(d) is synonymous with "probable cause". State v. Fetters & Lean, 165 Mont. 117, 526 P.2d 122 (1974). "Probable cause to arrest without a warrant exists where the facts and circumstances within the officer's knowledge and of which he had reasonably 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." State v. Hill, Mont., 550 P.2d 390, 33 St.Rep. 496 (1976).

Defendant matched the physical appearance as to clothing, stature, build and hairstyle of the individual that the officers saw enter the house immediately before them; the individual who entered the house carried a brown sack; the officers confronted defendant immediately upon entering the house; the officers discovered a brown paper bag full of marijuana on the steps directly behind defendant. In this case the "facts and circumstances within the (officers') knowledge" could reasonably have led them to no other belief than that defendant was committing the offense of possession, of dangerous drugs.

Defendant next contends that, because the police officers knew defendant to be a reputable Flathead County businessman with no prior criminal record, the existing circumstances did not require his immediate arrest. Section 95-608(d), R.C.M.1947, allows a warrantless arrest only when the officer reasonably believes the suspect is committing an offense or " * * * that the person has committed an offense and the existing circumstances require his immediate arrest." Defendant claims that the police thus had the statutory duty to present facts establishing probable cause to a neutral magistrate who could then judge the sufficiency of the probable cause to arrest.

Defendant's reasoning on this point is specious. Section 95-608(d) provides for two distinct situations. Where an officer reasonably believes that a person had in the past committed an offense, he may arrest the suspect without a warrant only where the existing circumstances require his immediate arrest. Where, however, the peace office reasonably believes that an individual is presently committing an offense, he may arrest that person at that time, whether or not the existing circumstances require the arrest. Defendant herein was charged with the offense of possession of dangerous drugs, and at the moment of his arrest the officers could reasonably believe that defendant was committing that possessory offense by virtue of his similarity in appearance to the person they had just seen enter the house with the brown bag, and due to the fact that the brown bag of marijuana was directly behind defendant on the stairs. See People v. Berry, 17 Ill.2d 247, 161 N.E.2d 315 (1959), overruled in part on other grnds., People v. Watkins, 19 Ill.2d 11, 166 N.E.2d 433 (1960).

If a defendant's confession is involuntary, it violates his Fifth and Fourteenth Amendment privilege against self-incrimination and may not be used as evidence at his...