                                 No, 12302

          EN THE SUPREME COURT O THE STATE O M N A A
                                F           F OTN

                                    1972



THE STATE O MONTANA, e x r e l . , MICHAEL ALAN WILSON
           F
and GREGORY JAMES HOFFER,

                         Relator,



THE DlSTRICT COURT O THE FIRST JUDICIAL DISTRICT
                      F
OF THE STATE O MONTANA, I N AND FOR TIIE COUNTY O
                 F                               F
LEWIS AND CLARK, AND THE HONORABLE GORDON R. BENNETT,
PRESIDING J U D G E ,

                         Respondents.



3 r i g i n a l Proceedings.

dounsel of Record :

          For Appellant:

              Robert J. S e w e l l , Jr.   , Helena,   Montana, argued.



              Robert L. Woodahl, A t t o r n e y G e n e r a l , Helena, Montana 59601,
              J. C. Weingartner a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l ,
                Helena, Montana 59601.
              Lief B. Erickson a r g u e d , Deputy County A t t o r n e y , Helena,
                Montana 59601.
              Thomas F. Dowling, County A t t o r n e y , Helena, Montana 59601.



                                                        Submitted:     June 2 1 , 1972

                                                          Decided :

Filed :


                                                          Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

        This is an original proceeding wherein relators Michael
Alan Wilson and Gregory James Hoffer seek a writ of supervisory
control, on application from the district court of the first
judicial district, county of Lewis and Clark, Hon. Gordon R.
Bennett presiding.
        The facts are: At approximately 1:57 a.m., Monday, May
1, 1972, Michael Alan Wilson was apprehended in the company of
Gregory James Hoffer by four Helena city police officers in the
lumber yard of the Peterson Lumber Company in the city of Helena.
The officers were responding to a telephone call indicating that
a disturbance was in progress at the lumber company. After their
apprehension, Wilson and Hoffer were transported to the Helena
police station where they were booked for first degree burglary
of Peterson Lumber Company.
        Shortly after 2:00 a.m., Wilson called his wife to inform
her that he had been arrested and would be held in jail overnight.
At approximately 3:15 a.m., Mrs. Wilson called the police station
and inquired as to the whereabouts of the family car, a red
Volkswagen.   She spoke with Sgt. Sanguine, one of the arresting
officers, who asked Wilson where the car was located as his wife
was inquiring. Wilson told the officer the location of the car.
Sgt. Sanguine then informed Mrs. Wilson the car had been impounded
and she would have to see the chief of police the next morning.
The officers then returned to the scene, located the vehicle,
drove it to the police garage and there it remained until May 3,
1972.
        At approximately 4:08 a m the morning of the arrest,
                               ..
while on routine patrol, Sgt. Sanguine noted that an overhead
*.                                                                .-.   ,   .
 garage door at the Mt. Helena Distributing Co. was damaged.
 Further investigation revealed that a panel had been broken out
 and from the appearance of the premises entry had been gained.
 The owner was notified and a preliminary inventory indicated
 that three cases of beer had been taken from a truck immediately
 inside the door.       The cases could be readily identified by a
 serial number which was marked on each of the cases, since none
 of the beer with that number had been distributed to retail
 outlets. These serial numbers allegedly match the serial numbers
 on three cases of beer found in the Wilson vehicle.
            On May 1, 1972, the county attorney's office was granted
     leave to file an Information charging Wilson and Hoffer with
 the crime of "burglary" of Mt. Helena Distributing Co.        On May 3,
     1972, the Helena city police department obtained a search warrant
     for the Wilson vehicle to search for and seize various items
 allegedly connected with the burglary of Mt. Helena Distributing
 Co., for which Wilson and Hoffer had been charged in district
     court, and for items taken in other break-ins which had occurred
     in recent weeks.   The search was conducted, a return filed,
 and various items of property were ordered retained as evidence
 by the Helena police department.
             On May 4, 1972, Wilson appeared in district court and
     entered a plea of "not guilty" to the Information filed against
 him.      The trial court had previously appointed Robert J. Sewell,
     Jr. to represent both defendants.   On May 8, 1972, a trial date
     for Wilson was set for May 22, 1972.   On   May 12, Sewell filed
     five motions.   Here, we note that the motions filed by counsel
 were filed under the case title "The State of Montana vs. Gregory
     James Hoffer and Michael Alan Wilsonft,
                                           but were addressed to the
     court only in the name of Wilson.   We shall consider them as motions
     filed for both defendants.   These motions were:
                                                                  *       -.
         1.    Motion to suppress evidence illegally obtained.
         2.   Motion for continuance.
         3. Motion to quash Information.
         4 Motion to quash search warrant.
          .
         5. Motion for severance of defendants.
         On   May 15, 1972, the trial court set the time for arraign-
ment of Gregory James Hoffer for May 22, 1972, and on the following
day changed the trial date for Wilson "without date".
         Following the filing of briefs, Judge Bennett heard
arguments on the motions on June 2, 1972, and denied all five
motions, as against both defendants.       It is from denial of these
motions that application is now made to this Court for a writ of
supervisory control.
         First, we direct our attention to whether or not the trial
court erred in denying defendants' motion to quash the Information
as it concerns defendant Hoffer. We have carefully reviewed the
record as it concerns Hoffer and fail to find that a showing was
made for probable cause to grant a leave to file an Information
against him for the Mt. Helena Distributing Co, burglary.        Section
95-1301, R.C.M.    1947. At the time of the filing of the leave to
file an Information no affidavit was made by the county attorney
indicating what evidence he had against Hoffer that would warrant
an Information charging him with the burglary of the Mt. Helena
Distributing Co.        State ex rel. Wicks v. Dist. Ct.     Mont     .        9


      P,2d        ,   20 St.Rep. 506; Petition of Gray, 155 Mont. 510,
473 P.2d 532.
        Hoffer was arrested with Wilson at the Peterson Lumber
Company and booked by the Helena police department on the charge
of burglary of the lumber company, but that charge is not before
us.   The evidence concerning the burglary of the Mt, Helena Dis-
tributing co. was obtained from ~ilson's car, impounded several
hours after the arrest at the Peterson Lumber Company.      Other than
being with Wilson when he was arrested, we find no evidence in the
record involving Hoffer on the charge before the trial court, the
burglary of Mt, Helena Distributing Co.      State v. Logan, 156 Mont.
48, 473 P.2d 833; State v. Dunn, 155 Mont. 319, 472 P.2d 288;
State ex rel. Glantz v. Dist. Ct., 154 Mont. 132, 461 P.2d 193.
The proceedings against relator Hoffer should be dismissed since
probable cause for his arrest for burglary of the Mt. Helena
Distributing Co. did not exist.
          Relators in petitioning this Court for a writ of super-
visory control raise four issues for consideration.      In view of
our preceding discussion as to relator Hoffer we consider relators'
issue No. 4, that the motion for severance of defendants for
trial purposes should have been granted, to be moot,
          We now consider the remaining issues as they concern
relator Wilson.      Those issues are:
          1 Whether the Information should be quashed on the
           .
basis :
           a.    there was no probable cause for granting motion
to file;
           b.    it does not state a public offense;
           c.    the charge stated is not stated in such language
that a person of "common understanding" could determine what
was charged, or
           d.    the time of the offense is not stated as definitely
as can be done.
          2. Whether the search warrant issued by the district court
should be quashed on the basis that there was no probable cause for
its issuance.
          3.    Whether all evidence seized should be suppressed on
the basis that it was seized pursuant to an invalid search warrant
and not seized as an incident to a lawful arrest.
            I s s u e 1.   Relator argues t h e Information on f i l e should
be quashed on the grounds t h a t i t does n o t s t a t e a public offense;
i t does not conform t o t h e requirements of Montana law regarding
charging of an offense; and leave was granted t o f i l e t h e Informa-
t i o n without s u f f i c i e n t probable cause being shown f o r i t s issuance.
           W f i n d no merit t o t h e contention t h e Information was
            e
n o t proper.      The question of charging a p a r t i c u l a r degree of
burglary has been decided by t h i s Court i n previous cases.                        State
v. Board, 135 Mont. 139, 337 P.2d 924.                   This Court has h e l d t h a t
t h e r e i s no n e c e s s i t y t o s p e c i f y t h e degree of crime i n t h e charge.
However, on a s p e c i f i c charge of f i r s t degree burglary, t h e r e may
n o t be a c o n J i c t i o n f o r second degree burglary.
           The Court f i n d s t h a t t h e county a t t o r n e y presented s u f f i c i e n t
evidence t o t h e t r i a l c o u r t t o warrant t h e g r a n t i n g of leave t o
f i l e an Information charging r e l a t o r Wilson with b u r g l a r y , and
s a t i s f i e d t h e judge t h a t t h e r e was s u f f i c i e n t probable cause.
           Burglary, a s s e t f o r t h i n s e c t i o n 94-901, R.C.M.         1947, i s
t h e crime which must be charged.              The question of degree need n o t
be charged.        Whether i t i s f i r s t o r second degree burglary i s a
question f o r t h e j u r y , based on t h e evidence.            Relator a l l e g e s
t h a t he w i l l be s u r p r i s e d by t h e evidence i f t h e time of t h e crime
i s not specifically stated.             The Court f i n d s t h a t r e l a t o r has
a v a i l a b l e t o him s e v e r a l means of discovery which he may u t i l i z e
t o prevent s u r p r i s e .
           The test of t h e s u f f i c i e n c y o f an Information i s whether
a person of common understanding would know what i s intended t o be
charged.      O r , s t a t e d another way, whether t h e defendant i s apprised
of t h e charges brought a g a i n s t him and whether he w i l l be suprised
and unable t o prepare a defense.               S t a t e v. Bogue, 142 Mont. 459,
384 P. 2d 749.
           W hold t h a t t h e Information and charge a g a i n s t Wilson
            e
now under c o n s i d e r a t i o n , meet t h e s u f f i c i e n c y t e s t and a r e i n
conformance with t h e requirements of s e c t i o n 95-1503, R.C,M.
1947,     It must be kept i n mind t h a t s e c t i o n 95-1503 i s a g e n e r a l
s t a t u t e covering a l l c r i m i n a l charges and cannot be r e l i e d on
by r e l a t o r a s r e q u i r i n g more p a r t i c u l a r i t y where a burglary
charge i s a l l e g e d , than when any o t h e r felony i s a l l e g e d .                18
Montana Law Review 86, 89.
            I s s u e 2.    Section 95-704, R.C.M.             1947, provides t h a t a
judge may i s s u e a search warrant i f s u f f i c i e n t f a c t s a r e presented
showing probable cause,              I n t h i s i n s t a n c e t h e r e was s u f f i c i e n t
probable cause t o support t h e d e c i s i o n t o i s s u e t h e search warrant.
The t h i n g t o be searched was p a r t i c u l a r l y described, i.e. "1967
Volkswagen 2-door, r e d i n c o l o r , no l i c e n s e p l a t e s , Vehicle Iden-
t i f i c a t i o n No. 117 537 00     **    *It,    The t h i n g s t o be s e i z e d were
p a r t i c u l a r l y described, i.e. "3 12-packs Olympia b e e r , Code
#LO96   **    *It,   etc.     Probable cause was shown---that                    the three
12-packs of Olympia beer and one c a s e of Lucky beer were taken
from a truckload shipment bearing s i m i l a r l y marked c a s e s and they
had been seen i n t h e Volkswagen by observation through t h e window,
           I n a d d i t i o n , a hearing on t h e a p p l i c a t i o n f o r issuance of
a search warrant was had i n t h e d i s t r i c t c o u r t ,              Captain Laible
of t h e Helena p o l i c e department t e s t i f i e d i n support of t h e
a p p l i c a t i o n f o r a search warrant,        W f i n d t h a t t h e a f f i d a v i t pre-
                                                      e
sented t o t h e d i s t r i c t judge with t h e a p p l i c a t i o n f o r a search
warrant, p l u s t h e testimony i n support of i t s issuance, provided
s u f f i c i e n t probable cause and was proper i n every r e s p e c t ,                   The
requirements s e t down by t h i s Court i n S t a t e v. T r o g l i a , 157 Mont,
22, 482 P,2d 143, have been complied with.
           W f u r t h e r n o t e and c i t e with approval from t h e r e c e n t
            e
opinion United S t a t e s v. Mitchell, 458 F.2d 960, 961, Ninth C i r c u i t
Court of Appeals, April 11, 1972, where that court reversed an
order suppressing evidence.        4



         Mitchell was arrested   for speeding in the early hours
February 5, 1971. He was driving an out-of-state car and at the
time was a parolee.   Because he was unable to post bond he was
confined in the city jail.    Following standard police procedure,
a patrolman was instructed to take the car to the city impounding
lot.   Upon entering the car the patrolman noted a partially opened
sample case on the front seat on the passenger side. He also
observed some valuable watches on the seat and on the floor.
Upon arrival at the lot, the officer put the watches in the sample
case and in the process noted a weapon in the case. When charged
with possession of a weapon by a felon, Mitchell moved to suppress
its admission into evidence.
         In reversing the order of suppression, the Circuit Court
discussed several recent United States Supreme Court cases which
found that this type of search is not illegal. Coolidge v. New
Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L ed 2d 564; Harris v.
United States, 390 U S 234, 88 S.Ct. 992, 19 L ed 2d 1067; Chime1
                    ..
v. California, 395 U.S. 752, 89 Sect. 2034, 23 L ed 2d 685; Preston
v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L ed 2d 777.
            Mitchell, the Circuit Court said, relying     Harris :
        "This reasoning might easily lead to a conclusion
        that reasonable measures taken to protect an im-
        pounded car and personal property in plain sight
        within it are not a search within the scope of the
        Fourth Amendment. However, it is not necessary for
        us to reach the issue of whether this police conduct
        was a search, It is enough to hold that under the
        facts of this case the action of the patrolman in
        safeguarding valuable property in plain sight in a
        lawfully impounded car was reasonable, and hence not
        prohibited by the Fourth Amendment. That amendment,
        of course, does not prohibit all searches; it for-
        bids only unreasonable searches, United States v,
        Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L ed 653;
        United States v, Novick, 450 F.2d 1111 (9th Cir. 1971)     ."
See also State v. Houchin, 149 Mont. 503, 428 P.2d 971.
r -    ...                                                             C     *   -
                 Issue 3.    Finding that the search warrant was proper in
        all respects, we summarily dispose of relator's third issue that
        the seizure of the evidence cannot be considered as incident to
        a lawful arrest.     Based on our decision that the search warrant
        was valid, we hold this issue to be no longer germane.
                 As to relator Wilson, the law and the proceedings of the
        district court are sustained and the petition for a writ of
        supervisory control is denied in all particulars.
                 As to relator Hoffer, it is hereby ordered that the
        cause be returned to the district court with instructions to dismiss
        the criminal charges against him in its cause No. 3687, State of
        Montana v. Michael Alan Wilson and Gregory James Hoffer.




                                                Associate Justices




      //     Chief Justice




        ..............................
             Associate Justices.
