No. 91-506 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsGEORGE FRED ALLEN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Leif B. Erickson, Judge presiding. 

COUNSEL OF RECORD: 

For Appelfant: 

Chris christensen, Attorney at Law, Kalispell, 

Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, John Paulson, 

Assistant Attorney General, Helena, Montana 

Ted 0. Lympus, County Attorney, Kalispell, Montana 

Filed: 

Submitted on Briefs: August 6, 1992 

Decided: December 18, 1992 
Justice Fred J. Weber delivered the Opinion of the Court. 

Following a jury trial in the District Court for the Eleventh 

~udicial District, Flathead County, defendant was convicted of 

criminal possession of dangerous drugs with intent to sell, in 

violation of 5 45-9-103(1), MCA. Defendant appeals. We affirm. 

The parties state the issue as whether the District Court 

properly denied defendant's motion to suppress. We restate the 

issues as follows. 

1. Were defendant's Fourth Amendment rights violated when 

law enforcement officers made a warrantless stop and search of his 

truck? 

A. Was there probable cause? 

B. Were there exigent circumstances? 

2. Did defendant consent to the search of his truck? 

3. Did the District Court err in denying defendant's motion 

to suppress? 

On Saturday, April 7, 1990, Sergeant Fisher of the Kalispell 

Police Department (KPD) called Officer Christensen at home and 

informed him that a woman, April Allen, had come to the police 

station with some information on drugs. Officer Christensen 

interviewed Ms. Allen early that afternoon. She told him that her 

father-in-law, defendant George Allen, had gone to Tucson, Arizona, 

to pick up a load of marijuana and was bringing it back that 

evening in an old yellow Ford pickup truck. She also informed the 

officers that defendant hid the marijuana in spare tires and that 

he broke down the spare tires in the basement of his residence. 

2 
Officer Christensen testified that although he had not previously 

spoken with Ms. Allen, the information she gave was similar to 

information he had received in the past from other informants. 

Officer Christensen helped organize a stakeout on ~ighway 2, 

west of ~alispell, to intercept defendant before he reached his 

home. Sergeant Fulton testified that Officer Christensen, Officer 

Sward and he were on the stakeout together from 5: 00 p.m. Saturday 

afternoon. He further testified that at 1:30 a.m., he advised 

Officer Sward to go home and get some rest because he had been up 

for almost 24 hours. Shortly before 2 a.m. on April 8, 1990, 

Officer Christensen and Sergeant Fulton observed defendant's yellow 

Ford truck drive by the stakeout location. The officers stopped 

the truck. Defendant testified that Officer Christensen was 

standing in the opposite lane of Highway 2, holding a gun on him 

when he ordered him to show his identification and to step out of 

the truck. 

Defendant was pat-searched when he exited the truck. He was 

then taken to the rear of the vehicle to stand in front of the 

police car's headlights. Sergeant Fulton was standing on the 

passenger side of the police car between the opened passenger door 

of the police car and the car itself with an AR-15 assault rifle 

pointed at defendant. 

Officer Christensen advised defendant that he had been stopped 

because they had received information that he was transporting 

marijuana back from Arizona. Officer Christensen then advised 

defendant of his Miranda rights. Defendant asked Officer 
Christensen if he was under arrest, to which Officer Christensen 

responded "not at this timef1. Defendant testified that he was 

asked to sign a search consent form and that he denied such consent 

to search, Officer Christensen testified that defendant verbally 

consented to the search but refused to sign the consent form. 

The officers at the scene radioed Officer Sward and requested 

that he return to the scene. Officer Rick Jensen also arrived at 

the scene with his dog (the Ifdrug dogfT) that was trained in the 

detection of marijuana. officer Jensen opened the topper on the 

truck, picked up the dog, and placed him inside. Officers Jensen 

and Sward then conducted a search of the vehicle. The drug dog 

showed a strong interest in a spare tire located in the truck box 

and on the right front tire of an '86 Mazda being towed by 

defendant on a trailer. Following the dogfs alert to the tire, 

Offices Christensen informed defendant that the truck, Mazda and 

trailer would be impounded. 

The investigatory stop took approximately 85 minutes. 

Defendant was held at gun point for approximately 50 minutes. The 

truck was impounded but defendant was not arrested at that time. 

Officer Christensen gave defendant a ride home. 

Once at his residence, defendant was asked for permission to 

search his home. Again, the State maintains that he gave verbal 

permission to search but declined to sign a consent form; and 

again, defendant maintains that he gave no consent to search. 

Nonetheless, a search was conducted, and the officers found a tool 
used to break down tires in defendant's basement. The officers 

seized the tool. 

On Monday, April 9, 1990, Officer Christensen obtained a 

search warrant for defendant's truck. Inside the spare tire the 

officer found four garbage bags containing a total of 15.8 pounds 

of marijuana. 

Defendant was subsequently arrested and charged with criminal 

possession of dangerous drugs with intent to sell, in violation of 

§ 45-9-103 (1) , MCA. 

A suppression hearing was held on May 23 and May 24, 1991. 

Following the hearing, the District Court denied defendant's motion 

to suppress the evidence discovered as a result of the stop, 

search, and seizure of his vehicle. Defendant appeals, challenging 

the propriety of the stop and warrantless search of his truck on 

April 8, 1990, as well as the warrant search of his spare tire on 

April 9, 1990 

Were defendant's Fourth Amendment rights violated when law 

enforcement officers made a warrantless stop and search of his 

truck? 

With regard to the necessity of a warrant, ~rticle 11, Section 

11 of the Montana Constitution in pertinent part provides: 

Section 11. Searches and seizures. The people 

shall be secure in their persons, papers, homes and 

effects from unreasonable searches and seizures. No 

warrant to search any place . . . shall issue without 

describing the place to be searched . . . , or without 

probable cause, supported by oath or affirmation reduced 

to writing. 
The requirements for searches and seizures are set forth in .§ 46-5- 

101, MCA, which provides: 

Searches and seizures - when authorized. A search 

of a person, object, or place may be made and evidence, 

contraband, and persons may be seized in accordance with 

Title 46 when a search is made: 

(1) by the authority of a search warrant; or 

(2) in accordance with recognized exceptions to the 

warrant requirement. 

An exception to the warrant requirement is the uautornobile 

exception,'' which "requires two things (1) the existence of 

probable cause to search; and (2) the presence of exigent 

circumstances, that is, that it was not practicable under the 

circumstances to obtain a warrant." State v. Cripps (19781, 177 

Mont. 420, 422, 582 P. 2d 312, 319, citing State v. Amor (1974), 164 

Mont. 182, 520 P.2d 773; and Coolidge v. New Hampshire (1971), 403 

U.S. 443. 

A. Was there probable cause? 

Probable cause requires only a probability of criminal 

activity, not a prima facie showing. State v. Dess (1982), 201 

Mont. 456, 655 P.2d 149. In its order denying the motion to 

suppress, the District Court first set forth the relevant facts 

from which it concluded that the officers had probable cause to 

stop and search defendant's truck. Those facts were known to the 

officers at the time they stopped the truck, and were eventually 

included in Officer Christensen's application for a search warrant. 

The court stated that in October 1984, the Flathead County 

Sheriff Is Off ice received a report from the Rocky Mountain 

~nformation Network that defendant had drug connections in New York 
and New Jersey and that he was involved in drugs and prostitution. 

It further noted that in May of 1989, an anonymous informant 

reported to Officer Christensen that defendant was bringing kilos 

of marijuana back from Tucson, Arizona in spare tires and that 

defendant made deliveries in each state he passed through on his 

way back to Montana. 

The court further noted that Don Bird, a convicted drug user, 

stated to Officer Christensen that defendant was his supplier and 

that defendant brought back large quantities of marijuana from 

Arizona. Officer Christensen considered Bird to be reliable 

because of his familiarity with the drug scene and because other 

names he provided were of other drug users known as such to the 

police. Although Don Bird testified at the suppression hearing 

that he did not remember defendant ever supplying him with drugs, 

Officer Christensen testified that he was present at a recorded 

interview with Bird in which Bird stated that defendant had sold 

him marijuana on one occasion and that defendant was bringing 

marijuana back from Tucson. The tape recording was played for the 

District Court. 

The District Court found that another confidential informant 

had reported in early 1989 that defendant had supplied the 

informant with marijuana which defendant had brought back from 

Arizona. 

Finally, the District Court found that on April 7, 1990, 

Officer Christensen met with Ms. Allen, who told him that defendant 

would be coming in from Arizona that evening with a large quantity 
of marijuana in a spare tire in the back of a yellow Ford pickup 

belonging to defendant. 

In conclusion, the District Court stated: 

Here, the police had specific information from 

various informants that Defendant Allen regularly 

transported large quantities of drugs from Tucson to 

Kalispell. A family member, who spent a great deal of 

time with the Defendant and would be in a unique position 

to know, contacted the police, gave them the description 

of Allen's pickup truck and the approximate time and 

place of his arrival into the Flathead. She also stated 

that Allen would be transporting marijuana in the spare 

tire of this vehicle. The police verifiedthat Defendant 

owned a pickup matching the description given as well as 

his resident address. The police were present at the 

time and place as stated by the family member, and 

Defendant appeared, driving a vehicle matching the 

description given. At this point, the police had 

probable cause to believe that illegal activity was 

occurring and were therefore entitled to conduct the 

search which led to discovery of the spare tire 

containing the marijuana which is the subject of the 

suppression motion. The search being proper, the fruits 

of the search are admissible. 

We agree with the District Court's conclusion that the 

evidence clearly established probable cause. We hold that the 

officers had probable cause to believe that defendant was 

transporting contraband, and had probable cause to stop defendant's 

vehicle. 

B. Were there exigent circumstances? 

Defendant maintains that his Fourth Amendment right to be free 

from unreasonable search and seizure was violated when the police 

stopped him on ~ighway 2 without a warrant, held him at gun point, 

searched his truck and impounded it. He maintains that the police 

had ample time to obtain a search warrant the night of the stop, 

and the officer's failure to obtain a warrant under these 
circumstances violated his constitutional rights. He contends that 

since there were three officers on the stakeout until 1:30 a.m., 

one of them could have obtained a search warrant before sending 

Officer Sward home at 1:30 a.m. to "get some rest." He maintains 

that there were no exigent circumstances which would justify a 

warrantless stop and search since the officers had all the 

information they needed to obtain a warrant hours before the stop. 

The State contends that a warrantless search was justified by 

exigent circumstances: (1) that there was not time to secure a 

warrant; and (2) that there were not enough officers available to 

safely conduct the stakeout. Relying in part on Officer 

Christensen's testimony, the State maintains that it would have 

taken four hours or more to obtain a search warrant since it was 

Saturday and thus more difficult to find a judge and the county 

attorney. Officer Christensen testified he thought it was more 

important to set up the stakeout as soon as possible. He further 

testified that there were not enough officers available at the time 

to get a warrant and organize a stakeout in time. He testified he 

was concerned about defendant's reputed dangerousness and believed 

that it was necessary to have more than one officer available at 

the stop. 

In the recent case of California v. Acevedo (1991), 111 S.Ct. 

1982, the United States Supreme Court considered various cases 

which had addressed warrantless searches of automobiles and luggage 

and other containers in automobiles. The court referred to Carroll 
v. United States (1924), 267 U.S. 132, where the Supreme Court in 

pertinent part stated: 

It therefore held that a warrantless search of an 

automobile based upon probable cause to believe that the 

vehicle contained evidence of crime in the light of an 

exigency arising out of the likely disappearance of the 

vehicle did not contravene the Warrant Clause of the 

Fourth Amendment. (Citation omitted.) 

The court refined the exigency requirements in 

Chambers v. Maroney . . . when it held that the existence 

of exigent circumstances was to be determined at the time 

the automobile is seized. (Citation omitted.) 

Acevedo, 111 S.Ct. at 1986. The court discussed the various cases 

and concluded that it was appropriate to have one clear-cut rule to 

govern automobile searches and stated in pertinent part: 

We conclude that it is better to adopt one clear-cut rule 

to govern automobile searches and eliminate the warrant 

requirement for closed containers set forth in Sanders. 

VI 

The interpretation ofthe Carroll doctrine set forth 

in Ross now applies to all searches of containers found 

in an automobile. In other words, the police may search 

without a warrant if their search is supported by 

probable cause. The court in Ross put it this way: 

"The scope of a warrantless search of an 

automobile . . . is not defined by the nature 

of the container in which the contraband is 

secreted. Rather, it is defined by the object 

of the search and the places in which there is 

probable cause to believe that it may be 

found." (Citation omitted.) 

The police may search an automobile and the containers 

within it where they have probable cause to believe 

contraband or evidence is contained. 

Acevedo, 111 S.Ct. at 1991. 

The Acevedo court defined exigent circumstances as those 

circumstances where it is not practicable to secure a warrant 
because the vehicle in question can be quickly moved out of the 

locality or jurisdiction in which the warrant must be sought. 

Acevedo, 111 S.Ct. 1982, citing Carroll v. United States (1925), 

267 U.S. 132, 153 

In this case the police set up a stakeout and stopped 

defendant's vehicle on the highway a few miles from his home. The 

defendant's daughter-in-law had indicated to the police that the 

defendant would arrive some time during the evening but the police 

did not know exactly the time when the defendant would arrive. The 

stakeout started at 5 p.m. on Saturday and continued until just 

before 2 a.m. the following morning. Three officers manned the 

stakeout until 1:30 a.m. when one officer was allowed to go home 

and get rest because he had been up for almost 24 hours. The 

contention of the defendant is that since there were three officers 

on the stakeout until 1:30 a.m., one of the officers could have 

obtained a search warrant. He therefore contends there were no 

exigent circumstances which would justify the warrantless search. 

The contentions of the defendant disregard salient facts 

presented by the prosecution. Officer Christensen testified that 

defendant was extremely dangerous. His testimony included the 

following: 

g. And why would you have had your gun drawn? 

A. I have talked to a number of people about Mr. Allen 

and they indicated that he was--had mob connections 

in New York and that he was involved with Mexican 

Mafia in Arizona. And everybody I talked to 

believed that Mr. Allen was a dangerous person and 

everyone I talked to refused to have their name 

used because they felt that he was extremely 

dangerous. And I took them at their word. 
Q. You mean people who had provided you with 

information? 

A. People who had provided me with information. 

Q. Expressed a fear of him? 

A. Yes, agreat fear. 

The stakeout took place on Saturday evening and night. Officer 

Christensen testified that obtaining a search warrant on Saturday 

evening or Saturday night would have taken approximately four 

hours. We conclude there were exigent circumstances which made it 

impracticable to secure a search warrant. 

We hold that defendant's Fourth Amendment rights and Montana 

constitutional rights were not violated when law enforcement 

officers made a warrantless stop and search of his truck. 

I1 

Did defendant consent to the search of his truck? 

Because we held that there was probable cause to search 

defendant's truck, the issue of consent is irrelevant and we need 

not discuss it. State v. Evjen (1988), 234 Mont. 516, 765 P.2d 

708. 

I11 

 id the ~istrict Court err in denying defendant's motion to 

suppress? 

Based on our holding on the first issue, we conclude that the 

District Court correctly denied defendant's motion to suppress. 

IV 

We note that defendant has raised several other issues on 

appeal. However, we find it unnecessary to review any of these 

12 
issues due to their lack of merit or the fact that some of them 

were raised for the first time on appeal and therefore, not 

properly before this Court. 

AEf irmed . 

We Concur: , 

Justices 
Justice Karla M. Gray, dissenting. 

I respectfully dissent from the opinion of the majority. The 

facts of this case do not meet the "exigent circumstancesn test for 

the so-called automobile exception to the search warrant 

requirement. I would reverse the District Court's denial of 

appellant's motion to suppress. 

The majority correctly notes our definition of "exigent 

circumstances," namely, that it was not practicable to obtain a 

warrant under the circumstances. State v. Cripps (1978), 177 Mont. 

410, 422, 582 P.2d 312, 319. "Practicable" is defined by both 

Webster's Third International Dictionary and Black's Law Dictionary 

(Rev. 4th Ed.) as possible to perform or capable of being done or 

accomplished. The term certainly does not mean, and has never been 

construed to mean, merely convenient. The majority's conclusion 

that the facts of this case meet the exigent circumstances test 

renders that test null and void insofar as it has heretofore 

protected the Fourth Amendment rights of Montanans. The 

constitutional requirement for search warrants has given way to a 

"convenience" analysis. I cannot agree. 

The relevant and undisputed facts relied on by the majority 

are as follows. Early in the afternoon of April 7, 1989, officers 

received a tip from appellant's daughter. The tip was consistent 

with earlier information received by law enforcement, but never 

acted upon, that appellant was involved with drugs. A procedure 

was in place for obtaining warrants on weekends. It would have 

taken approximately four hours to obtain a search warrant, given 

14 
the fact that April 7 was a Saturday. The officers did not attempt 

to obtain a warrant. Instead, by 5:00 p.m., three officers had 

established a stakeout. Because appellant was considered 

dangerous, law enforcement believed it necessary to have "more than 

onen officer present at the stakeout. The officer in charge 

believed that it was more important to set up the stakeout than to 

obtain a warrant. The three officers remained at the stakeout from 

5:00 p.m. until 1:30 a.m., at which point one of the officers was 

allowed to leave. Appellant drove past the stakeout location at 

approximately 2:00 a.m., and was stopped; his automobile 

subsequently was searched at the scene. 

The majority relies on specific facts and arguments to support 

its conclusion that these facts meet the exigent circumstances 

test: that there was not time to obtain a warrant; that more than 

one officer was needed at the stakeout; and that the officer 

believed it was "more importantv to set up the stakeout than to 

obtain a warrant. The majority's reliance is flawed. 

First, it is simply not the case, and the record does not 

support the assertion, that there was insufficient time to obtain 

the warrant. Rather, the record makes it clear that a procedure 

was in place for obtaining warrants on weekends and that it would 

have taken approximately four hours to do so. In other words, 

given that four hours elapsed from the time the tip was received 

until the stakeout was in place, the search warrant could have been 

obtained by the time the stakeout was established. Second, the 

officer's belief that more than one officer was needed at the 
stakeout location adds nothing to the exigencyof the circumstances 

here. In fact, by 5:00 p.m., three officers were at the stakeout 

and remained there in excess of eight hours, at which time one was 

allowed to leave. No testimony supports the need for three 

officers at the stakeout: nor does anything in the record or in the 

majority's analysis support the notion that all three officers were 

needed for the entire time between receipt of the tip and 5:00 p.m. 

to the extent that no one was available to obtain a warrant. 

Finally, the majority's reliance on the officer's belief that it 

was "more important1' to set up the stakeout than to obtain a 

warrant, as somehow helping to create exigent circumstances here, 

is chilling indeed. I do not question the officer's belief; I do 

submit that the relative priorities placed on such matters by law 

enforcement officers is based on considerations unrelated to this 

Court's obligation to uphold the public's constitutional right to 

be free from unreasonable searches. 

The facts of this case are clear that there was sufficient 

time and sufficient staff available to obtain a warrant. Under 

these facts, the "exigent circumstances1' test was not met and 

appellant's Fourth Amendment rights were violated. 
Justice William E. Hunt, Sr., dissenting. 

I dissent. The facts of this case do not justify a 

warrantless search. The officers had ample time and resources to 

obtain a search warrant from either the two District Court Judges 

located in the county, or from the Justice of the Peace. The fact 

that the officer who remained did not request additional assistance 

after letting one of the officers go home, demonstrates that the 

officers were not in great fear for their safety. The Constitution 

should not be suspended merely because it might take some extra 

effort on the part of the authorities to obtain a warrant. The 

Constitution applies seven days a week, twenty-four hours a day, 

holidays included. 

I would reverse the District Court and suppress the evidence 

obtained by the illegal search. 
December 18, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

CHRIS CHRISTENSEN 

Attorney at Law 

P.O. Box 1954 

Kalispell, MT 59903-1954 

George Fred Allen 

700 Conley Lake Rd. 

Deer Lodge, MT 59722 

HON. MARC RACICOT, Attorney General 

John Paulson, Assistant 

Justice Building 

Helena, MT 59620 

Ted 0. Lympus, County Attorney 

Flathead County 

P.O. Box 1516 

Kalispell, MT 59903-1516 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA