United States v. Clark, Crim. No. 272.

• Decision Date: 29 December 1964
• Docket Number: Crim. No. 272.
• Citation: 247 F. Supp. 958
• Parties: UNITED STATES of America, Plaintiff, v. William Edward CLARK, Defendant.
• Court: U.S. District Court — District of Montana

247 F. Supp. 958

UNITED STATES of America, Plaintiff, v. William Edward CLARK, Defendant.

Crim. No. 272.

United States District Court D. Montana, Billings Division.

December 29, 1964.

Moody Brickett, U. S. Atty., Butte, Mont., and Clifford E. Schleusner, Asst. U. S. Atty., Billings, Mont., for plaintiff.

Howard C. Foreman, Billings, Mont., for defendant.

JAMESON, District Judge.

The defendant has moved in the alternative for a new trial or judgment of acquittal.

In support of the motion for new trial, it is urged that the court erred in overruling the defendant's motion for the return of seized property and the suppression of evidence, in overruling the defendant's motion for discovery and inspection, and in overruling the defendant's objections to the testimony of the witnesses Vanover, Talbot, and Olson.

Defendant first attacks the validity of his arrest by the witness Vanover, a police officer of the City of Billings.

As the Supreme Court said in the recent case of Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142, "When the constitutional validity of an arrest is challenged, it is the function of a court to determine whether the facts available to the officers at the moment of the arrest would `warrant a man of reasonable caution in the belief' that an offense has been committed. Carroll v. U. S., 267 U.S. 132, 162 45 S.Ct. 280, 288, 69 L.Ed. 543."

In the absence of an applicable federal statute, the law of the state where an arrest takes place determines its validity. United States v. Di Re, 1948, 332 U.S. 581, 589, 68 S.Ct. 222, 92 L.Ed. 210; Burks v. United States, 9 Cir. 1961, 287 F.2d 117, 122.

Section 94-6003, R.C.M. 1947, reads in pertinent part:

"Arrests by Peace Officers. A peace officer * * * may, without a warrant, arrest a person — 1. For a public offense committed or attempted in his presence"

* * *

The Montana court has held that the proper construction of this statute "when applied to an officer, is that the facts and circumstances must be such that upon them alone he would be justified in making a complaint upon which a warrant might issue; in other words, the facts and circumstances must be sufficient to justify the conclusion of the officer that there is probable cause for the belief that an offense is being committed in his presence; and in that case the term `probable cause' is defined as `the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of'.

* * *

An arrest without a warrant is illegal when it is made upon mere suspicion or belief, unsupported by facts, circumstances, or credible information calculated to produce such suspicion or belief * * *." State ex rel. Sadler v. District Court et al., 1924, 70 Mont. 378, 387, 225 P. 1000, 1002.

Essentially the same test was applied in Burks v. United States, supra, in construing an identical California statute, the court saying in part: "What is required are circumstances represented to the officers through the testimony of their senses sufficient to justify them in a good faith belief that the defendant is violating the law." (Citing cases).

Vanover testified that he arrested the defendant for "failure to yield the right of way to another oncoming vehicle, and no valid driver's license". He testified that he was riding a motorcycle following a vehicle headed north; that Clark was headed south and made a left hand turn in front of the other car; that the car headed north "was just entering the cross walk, the corner of the intersection"; that the driver had to "slam on the brakes to avoid a collision".

The statutes of Montana and the ordinances of the City of Billings contain identical provisions with respect to a vehicle turning left at an intersection. They read:

"The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, but said driver, having so yielded and having given a signal when and as required by this act, may make such left turn and the drivers of all other vehicles approaching the intersection from said opposite direction shall yield the right of way to the vehicle making the left turn. The provisions of this section shall not be applicable where it is otherwise directed by appropriate signs or signals." (R.C.M. 1947, § 32-2171; Ordinances, City of Billings, § 21-171).

After stopping the defendant, Vanover asked Clark for his driver's license. Clark had no driver's license or other identification; nor did he have any registration papers for the vehicle or other evidence of ownership. He told Vanover that "the last time he saw it would be on the back seat between the window and the back seat, the ledge on the back of the vehicle. It was not there, however".

Clark was taken to the police station to post bond, driving the car and following Vanover on the motorcycle. Clark "parked the car in the rear of the stattion and went upstairs, and the citation was issued him and booked at that time". This was approximately a half hour after he was first stopped. He did not have money to post bond and was taken into custody.

Vanover testified that he searched and examined the car "in a sense" at the time Clark was stopped and when Clark "was looking for these papers". He attempted at that time to search the trunk of the car, but was unable to do so because Clark did not have any key that fit either the trunk or the ignition. The car was never out of Vanover's view from the time he stopped Clark until the car was parked at the station.

Vanover testified further that he had made a record of the license number of the car on the citation. After refreshing his recollection from the citation, he gave the license number. He did not get the serial number of the car.

The contention that the arrest was invalid is, in my opinion, without merit. When Vanover stopped Clark he had reasonable cause to believe that Clark was violating a statute of the State of Montana and an ordinance of the City of Billings.

Any "search" of the vehicle by Officer Vanover was incidental to a lawful arrest. The rule here applicable was summarized in Taglavore v. United States, 9 Cir. 1961, 291 F.2d 262, 265, as follows:

"Normally one's person or property may not be searched unless the authorities conducting the search have a search warrant which has been issued by a magistrate upon at least a showing of probable cause. Certain well-established exceptions exist to this basic rule. One such exception, within which the Government claims the instant case falls, is that incident to a valid arrest the person arrested may be searched without warrant. Thus where one has been legally arrested for the commission of a crime his person and, in most cases, his immediate surroundings at the time of arrest may be properly searched. The main purpose of this exception is to facilitate discovery of various elements and evidence of the crime for which the accused is being arrested, and also to remove weapons or other instrumentalities which might be used to resist the officers or for

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