State v. Ribera, 14644
| Decision Date | 18 July 1979 |
| Docket Number | No. 14644,14644 |
| Citation | 597 P.2d 1164,36 St.Rep. 1292,183 Mont. 1 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Julian RIBERA, Defendant and Appellant. |
| Court | Montana Supreme Court |
Morrison, Ettien & Barron, Havre, Kathleen H. Richardson, argued, Havre, for defendant and appellant.
Mike Greely, Atty. Gen., Helena, Chris D. Tweeten, Asst. Atty. Gen., Helena, (argued), Ronald Smith, County Atty., argued, Havre, for plaintiff and respondent.
Defendant, Julian Ribera, Jr., appeals from his conviction of one count of possession of dangerous drugs and one count of attempted sale of dangerous drugs following a nonjury trial in the District Court of the Twelfth Judicial District, Hill County, the Honorable B. W. Thomas presiding.
On February 24, 1978, James Owens, assistant principal of Havre High School, received a note from his secretary which she had just received from a student. The student had written the following description along with the last four digits of a license number on the paper:
"short dark-skinned blue coat
shoulder length hair beard & mustache.
peachy dark.
3759"
The secretary wrote the following under the student's description:
"Mr. Owens
A student just informed me that he saw a man trying to sell drugs to kids in the west parking lot.
B.P."
Owens went to the doorway of the west foyer of the school where he could see the parking lot. He saw a man who fit the description on the note talking to some students. He also saw a car in the parking lot. The last four digits of the license matched those on the note.
Owens returned to his office and called the Havre Police Department. He identified himself, reported the incident, and asked that police be sent to the school. After reporting the incident he returned to the west foyer of the building and continued to watch.
After a short time the suspect got into the car along with two companions, and they drove away. Owens again called the police to tell them the suspect was leaving in a car with two others. This information was relayed by radio to the two officers who were responding to the call.
The officers met the car along the way and stopped it. A pat-down search was made of defendant and five "Baggies" of what later proved to be marijuana were found in a pocket of his coat. The three were taken to the police station while one of the officers followed in their car.
At the station the police received the oral and written consent of the owner and driver of the car, Kenneth Berger, to search his car. The subsequent search yielded an additional five Baggies of marijuana which had been placed in a brown paper bag in the backseat.
Defendant's arrest and the subsequent search were accomplished without a warrant. He filed a motion to suppress as evidence at trial both the marijuana seized from his coat pockets and that seized from the backseat of Berger's car. Following an evidentiary hearing, the court entered findings of fact, conclusions of law and an order denying defendant's motion.
Defendant renewed his motion to suppress at trial and also moved for an acquittal on Count II charging him with attempted sale. This latter motion, which was also denied, alleged that the evidence presented by the State was insufficient to show a direct unequivocal act committed by defendant toward the commission of a sale. The State had presented three high school students as witnesses. Kathy Barlow testified: "He asked us if we wanted to buy a bag." She further testified that although defendant did not explain his meaning, she understood him to mean a bag of marijuana. He did not show her the marijuana. The testimony of the other high school students was substantially similar. No one testified that they saw any marijuana at the school.
Defendant presents three issues for review which can be stated as follows:
1. Whether the arrest of defendant was supported by probable cause?
2. Whether the subsequently seized evidence was the fruit of an illegal arrest?
3. Whether defendant committed a direct unequivocal act sufficient to support his conviction of the crime of attempted sale of dangerous drugs?
Defendant argues that the officers did not have probable cause to stop the automobile in which defendant was riding because when Owens called the police, he did not identify the source of his information and the dispatcher asked him no questions.
The State responds by arguing that the police were informed of the "underlying circumstances" giving rise to Owens' tip to an extent sufficient to support a finding of probable cause.
Both parties cite Owens' testimony from the transcript of the suppression hearing regarding the information he gave the police during his first call:
Officer Fisher, the dispatcher who received the call, gave somewhat less extensive testimony regarding this same exchange:
Included in Finding of Fact No. 1 is the following:
Finding of Fact No. 6 included the following:
Section 95-701, R.C.M.1947, now section 46-5-101 MCA, provides in pertinent part that:
If the arresting officers did not have probable cause to stop the automobile, no evidence discovered as a result of a search of defendant can be used to justify the arrest. State v. Lahr (1977), Mont., 560 P.2d 527, 34 St.Rep. 90.
In State ex rel. Townsend v. Dist. Court (1975), 168 Mont. 357, 360-61, 543 P.2d 193, 195, this Court stated:
The argument in the instant case centers on the first prong of this test: whether the officers who arrested defendant were "informed of some of the underlying circumstances from which the informant concluded (that defendant was selling drugs to students)." As previously outlined, the testimony varies on this point.
Our review of the record in this case does not establish a sufficient basis for finding that defendant's arrest was supported by probable cause. The testimony of the arresting officers, as well as the police dispatcher, reveals that they did not have sufficient knowledge of the underlying circumstances of Owens' tip to establish probable cause to arrest defendant.
In a situation where police officers expect to make a warrantless arrest, the arrest must be based on probable cause. When that probable cause is based on a tip, springing from an informant's personal observation, the informant's reliability becomes significant. Where the reliability of the informant is assured, as in this case, but where his information is based on someone else's statements, the police must make some further inquiry of the informant regarding the underlying circumstances of his conclusion that it is probable that an offense is being or has been committed.
While Owens did not have to reveal to the police the identity of the student who gave him the note, the police should have asked Owens a few questions such as whether he knew the student, whether the student had been personally approached by the suspect or whether the student had overheard an offer or actually seen any drugs.
In view of the fact that Owens personally observed no conduct on the part of the suspect which could be classified as criminal conduct, this brief inquiry by the police would have reduced the possibility of a misunderstanding and satisfied certain minimum standards for establishing probable cause.
Without these additional facts establishing probable cause to arrest, the District Court should have suppressed the evidence seized as a result of the arrest, that being the contraband found on defendant's person. Mapp v. Ohio (1961), 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090. D...
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State v. Laster
...of a prior illegality unless the voluntary consent was sufficiently attenuated from the prior illegality. See State v. Ribera , 183 Mont. 1, 10, 597 P.2d 1164, 1170-71 (1979) (citing Brown , 422 U.S. at 598-99, 95 S. Ct. at 2259 ); Murray , 487 U.S. at 536-37, 108 S. Ct. at 2533 (in re inde......
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...particular constitutional interest infringed by the prior illegality. Hudson, 547 U.S. at 593, 126 S.Ct. at 2164. Accord Ribera, 183 Mont. at 10, 597 P.2d at 1169. The rule thus does not apply if the same evidence subsequently discovered and acquired "from an independent source," or inevita......
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