                               No. 13739
             IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1977


STATE OF MONTANA,
                        Plaintiff and Appellant,
            VS   .
NORMAN BENJAMIN MARSHALL,
                       Defendant and Respondent.


Appeal from:         District Court of the First Judicial District,
                     Honorable Peter G. Meloy, Judge presiding.
Counsel of Record:
         For Appellant:
            Hon. Mike Greely, Attorney General, Helena, Montana
            Thomas Budewitz, County Attorney, Townsend, Montana
            Robert Yunck argued, Cut Bank, Montana
     For Respondent:
            Hooks and Sherlock, Townsend, Montana
            Patrick F. Hooks argued, Townsend, Montana


                                  Submitted:        September 15, 1977
                                               -.

                                    Decided: h;      v   -

Filed:
M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court.

      The s t a t e of Montana b r i n g s this appeal from an order of

t h e D i s t r i c t Court, Broadwa t e r County, suppressing c e r t a i n

evidence t h e s t a t e sought t o introduce i n t h e t r i a l of defendant,

Norman Benjamin Marshall, charged with possession of dangerous

drugs.     The evidence i n q u e s t i o n i s a c o n t a i n e r of marijuana

seized from under t h e s e a t of a t r u c k driven by defendant.                The

order suppressing t h e evidence did not s p e c i f y f i n d i n g s of f a c t

o r conclusions of law, and t h e r e f o r e t h e i s s u e i s whether t h e

search of t h e t r u c k driven by defendant and t h e s e i z u r e of

dangerous drugs found t h e r e i n was lawful.

      O Saturday afternoon, October 16, 1976, O f f i c e r Walrod,
       n

d r i v i n g on Highway 287 n o r t h of Townsend, Montana, saw a t r u c k

driven by Marshall with two companions, Larry Wing and M i s s

Cathy Cross.       Walrod knew Wing d i d some f i s h i n g and they were

headed toward t h e Missouri River.                He then radioed t h e f i s h

and game warden, because he "thought they might be doing some

f i s h i n g and i t might not h u r t t o check them out."          There was no

evidence any of t h e t h r e e occupants of t h e t r u c k ever g o t n e a r

t h e r i v e r and t h e f i s h and game warden, J i m B i r d , admitted he

d i d n o t check them out f o r f i s h i n g .     Warden Bird was dispatched

by Walrod t o check t h e t r u c k and i t s occupants.

      Warden Bird t e s t i f i e d t h a t a s he drove up t h e I n d i a n Creek

Road he approached t h e tsuek which was stopped on t h e road and

thought Cathy Cross s a i d , from h i s l i p reading, "Here comes J i m

Bird",    Bird s t a t e d he thought they were a l l hiding something s o

he went up on a h i l l about 200 yards d i s t a n t and looked a t them

through a 60 power s p o t t i n g scope.           I n answer t o questions from
t h e t r i a l judge, Bird s t a t e d he was looking i n t h e r e a r window

of t h e t r u c k a t t h e occupants from behind and admitted he could

n o t s e e below t h e s e a t l e v e l .   The s i g n i f i c a n t f a c t of ~ i r d ' s

testimony, r e l i e d upon by t h e s t a t e , i s h i s statement:

       "*   **      I saw M r . Marshall g e t something from r i g h t
       h e r e ( i n d i c a t i n g ) and reach down underneath t h e
       v e h i c l e o r underneath t h e s e a t w i t h h i s l e f t hand,
       leaning towards Cathy Cross, and s t u f f i t under t h e
       s e a t , and I informed O f f i c e r Walrod of t h i s when I
       c a l l e d him on t h e radio."

       Warden Bird admitted t h a t a l l he saw was an arm movement

and he could n o t s e e what t h e o b j e c t was from h i s p o s i t i o n .

F u r t h e r , Bird t e s t i f i e d he saw t h e occupants smoking, b u t d i d

not know whether it was a pipe, a c i g a r e t t e o r what, b u t a s f a r

a s he knew i t could have been tobacco.                   Walrod t e s t i f i e d Bird

radioed him about t h e d r i v e r leaning over and p u t t i n g something

under t h e s e a t and t h a t they were smoking something.                    A t that

time Walrod d i d n o t have any idea how f a r away Bird was from t h e

vehicle.      There were no r e p o r t s of any f i s h i n g v i o l a t i o n .

       Acting s o l e l y on t h e information supplied by r a d i o from

Bird, Walrod drove t o a p o i n t near t h e i n t e r s e c t i o n of t h e

highway and t h e Indian Creek Road and stopped t h e v e h i c l e .

Walrod then went up t o t h e truck, s t a t e d he d e t e c t e d an odor

of marijuana and ordered Marshall t o g e t out of the t r u c k and

empty h i s pockets.

       Before t h i s Court concerns i t s e l f with t h e i s s u e of t h e

search and s e i z u r e , we f a c e t h e threshold question which i s :

Was t h e ''stop" of t h e defendant supported by probable cause and

thus reasonable and t h e r e f o r e c o n s t i t u t i o n a l ?

       A r e c e n t decision of t h i s Court which i s very c l o s e i n

p o i n t of f a c t and law i s S t a t e v. Lahr,        - t.
                                                            Mon                  ,   560 P.

2d 527, 34 St.Rep. 90 (1977).                 There, an o f f i c e r was watching t h e
defendant and two o t h e r persons through b i n o c u l a r s .                   A s i n the

i n s t a n t c a s e , t h e o f f i c e r was aware of t h e i n d i v i d u a l ' s r e p u t a t i o n

a s a known drug u s e r , The o f f i c e r t e s t i f i e d a package appeared
          hands
t o chang& he had no idea what kind of package, only t h a t t h e

circumstances were somewhat suspicious and he saw something,

b u t he d i d n o t know what i t was.                    -
                                                      I n Lahr t h e observing o f f i c e r

radioed another o f f i c e r who stopped t h e v e h i c l e on an a l l e g e d

driving violation.             While making t h e a r r e s t on t h e d r i v i n g

v i o l a t i o n , t h e o f f i c e r saw marijuana on t h e console of defendantb

car and defendant was a r r e s t e d f o r i l l e g a l possession of danger-

out drugs.          The defendant was never charged w i t h a d r i v i n g v i o l a -

tion.     Again, compare with t h e i n s t a n t case.                  Here, O f f i c e r Walrod

d i d n o t even look f o r a p r e t e x t .         He stopped t h e c a r when i t

came down t h e Indian Creek Road and c l e a r l y t h i s was b e f o r e he

could d e t e c t any smell of marijuana.                   This Court, i n -Lahr
                                                                             2                   held

t h a t n e i t h e r o f f i c e r had probable cause t o a r r e s t t h e defendant

and s t a t e d :

              "The evidence required t o e s t a b l i s h g u i l t i s n o t
        necessary t o prove probable cause f o r an a r r e s t ,
        however good f a i t h o r mere suspicion on t h e p a r t of
        a r r e s t i n g o f f i c e r s i s not enough.     *** Furthermore,
        an a r r e s t i s n o t j u s t i f i e d by what t h e subsequent
        search d i s c l o s e s ," 34 S t .Rep. 93.

        Warden Bird i n t h e i n s t a n t case had only h i s s u s p i c i o n s ,

related heretofore.              O f f i c e r Walrod, t h e a r r e s t i n g o f f i c e r ,

was n o t p r e s e n t a t t h e scene and had only t h e suspicions t h a t

Warden Bird          t o l d him over t h e radio.            T h e r e a f t e r , based s o l e l y

on Warden B i r d ' s c o n j e c t u r e and s p e c u l a t i o n t h e automobile

being driven by defendant Marshall down a country road on a

Saturday afternoon was stopped,

        The s t o p of t h e automobile and subsequent events were without

probable cause, t h e r e f o r e t h e D i s t r i c t Court' s order t o suppress

t h e evidence i s affirmed.
W Concur:
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