No. 12675 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE STATE OF MONTANA, 

Plaintiff and Appellant, 

ALAN FETTERS and STEVE LEAN, 

Defendants and Respondents. 

Appeal from: District Court of the Second Judicial District, 

Honorable James D. Freebourn, Judge presiding. 

Counsel of Record: 

For Appellant : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

John P. Atkins , Assistant Attorney General, argued, 

Helena, Montana 

Larry Stimatz, County Attorney, argued, Butte, 

Montana 

J. Brian Tierney argued, Deputy County Attorney, 

Butte, Montana 

For Respondents: 

Scanlon, Brolin and Connors, Anaconda, Montana 

William A. Brolin argued and Joseph C. Connors 

argued, Anaconda, Montana 

Submitted: June 17, 1974 

Decided :SEp 3 1974 

Filed: SEP 3 1974 
Hon. M. James Sorte, District Judge, sitting for Chief Justice 

James T. Harrison, delivered the Opinion of the Court. 

This is an appeal by the state of Montana from an order 

of the district court of Silver Bow County granting defendants' 

motion to suppress evidence in a criminal case. 

Defendants Alan Fetters and Steve Lean were charged by 

Information in four counts: interference with railroad property; 

interference with railroad property causing death; murder; and 

malicious destruction of property. 

In chronological order these events occurred: 

On March 28, 1972, at approximately 8:00 p.m. a large diesel 

switch engine owned and operated by the Anaconda Company at the 

Weed Concentrator in Butte, Montana, was left by the crew in a 

locked and secured position. The crew left the engine idling with 

the air set and three large slurry cars connected to it while they 

went to lunch. 

At approximately 8:05 to 8:15 p.m. an employee saw the 

switch engine, without the slurry cars attached and without its 

light on, leave the concentrator yprd. He noticed two men in the 

engine but could not describe their physical characteristics nor 

wearing apparel. Two employees were immediately dispatched from 

the concentrator yard to look for any signs of the engine that had 

just left. They went out of the concentrator area and drove down 

Continental Drive where they saw defendant Fetters' white Cadillac 

automobile parked in a turnout area of Continental Drive and Howard 

Street. The car was no longer there 30 minutes later. The license 

number was reported and verified by local police as belonging to 

Fetters. 

At approximately 8:30 p.m. the switch engine smashed into 

the rear of a Butte, Anaconda and Pacific ore train in the Rocker 

Yards approximately six miles west of the concentrator. Two BA&P. 

employees, Jack Weist and Vern Johnson, were on the ore train at the 

time. Weist was killed instantly by the crash and Johnson was thrown 
from the caboose, which was shattered by the collision, and suffered 

a broken leg. 

The facts further show that defendants went into the Race 

Track Bar between 8:30 and 8:45 p.m., ordered drinks and also requested salve for Fetters who had apparently burned some portion of 

his body. The Race Track Bar was approximately two blocks from 

where ~etters' car was parked. 

Before defendants were arrested it was also ascertained that 

they were currently employed by the Anaconda Company at the concentrator yard. Defendants had personal knowledge of how to run 

that particular engine; in fact, Fetters was scheduled to operate 

the engine on the March 28, 1972, afternoon shift. Bothdefendants 

failed to report to work that day. 

George Evans, security officer of the Anaconda Company, informed the investigating sheriff that he had observed two separate 

sets of footprints in the snow directly across the roadway from 

where ~etters' Cadillac was seen earlier that evening, The footprints led to an area 60-70 feet into the concentrator area. Evans 

neither observed footprints on the south side of Continental Drive 

where the vehicle was parked nor within 300 yards or better from the 

switch engine. The tracks neither went from the car to the fence nor 

from the fence to the engine. The footprints revealed that they 

were made by a square-toe type shoe or boot with separate and definite heel markings. Evans immediately covered the footprints with 

cardboard boxes until photographs could be taken. 

All of these facts were known to Silver Bow County Attorney 

Lawrence Stimatz and SilverBow Sheriff Rock Cunningham. After 

analyzing all the facts Stimatz directed law enforcement officers 

to arrest Fetters and Lean without a warrant. 

Stimatz testified at the hearing on the motion to suppress 

the evidence: 

I 'We were quite interested in locating and arresting 

Fetters and Lean. We thought a crime had been committed and that these men had done it and that certain 

evidence had to be preserved. We wanted to look at their 

shoes and we wanted to lookat their clothes for grease 

spots or anything else that they might have had on them 

from being inside that train. II 
Fetters was arrested without a warrant at 5:00 a.m. at his 

home on March 29, 1972. Lean was arrested without a warrant at 

his home at 6:20 a.m. that same morning. Both defendants were taken 

from their homes to the sheriff's office where their clothing was taken 

from them. They were questioned, placed in jail, and released the 

afternoon of March 29, 1972, without being charged in justice court 

or district court. Their personal belongings which were seized by 

the sheriff's officers were not returned to them. Defendants were 

arrested again on May 19, 1972, and charged in justice court. 

On October 20, 1972, District Judge John B. McClernan granted 

defendantsf motion to suppress all the physicial evidence and 

statements obtained from and after the arrests. 

An appeal was taken from that order and this Court vacated 

the district court's order on May 15, 1973, because there had never 

been a proper formal suppression hearing. State of Montana v. Alan 

Fetters and Steve Lean, Mont . , 510 P.2d 1, 30 St.Rep. 543. 

Thereafter Judge McClernan was disqualified and District Judge 

James D. Freebourn held a formal hearing and on November 26, 1973, 

ordered the suppression of the evidence seized as a result of the 

warrantless arrest. 

The order of Judge Freebourn was appealed to this Court, 

and following argument and consideration of the case, this Court 

reset the matter for a second argument. 

Two issues are presented for review: 

1. Whether the district court erred in finding that the 

arrest was unlawful? 

2. Whether the search made incident to that arrest was 

unlawful? 

As to the first issue, section 95-608, R.C.M. 1947, sets forth 

the instances in which a person may be arrested. It provides: 

If A peace officer may arrest a person when: 

"(a) He has a warrant commanding that such person be 

arrested, or 

"(b) He believes, on reasonable grounds, that a 

warrant for the ~erson's arrest has been issued in 

this state, or 
"(c) He believes, on reasonable grounds, that a 

felony warrant for the person's arrest has been 

issued in another jurisdiction, or 

"(d) He believes on reasonable grounds, that the 

person is committing an offense, or that the person has committed an offense and the existing 

circumstances require his immediate arrest." 

(Emphasis added) 

The state contends the arrests in the instant case were 

justified under section 95-608(d), R.C.M. 1947, because the officers 

did have reasonable grounds to believe the defendants had committed 

an offense. In State v. Bennett, 158 Mont. 496, 499, 493 P.2d 1077, 

this Court held that probable cause has been defined as "'reasonable 

grounds for belief of guilt. 111 Reasonable grounds and probable cause 

are synonymous. 

The validity of the search and seizure of defendants' 

clothing, shoes, and all other physical evidence and statements 

obtained from and after the arrests must depend upon the validity 

of defendants' arrest. Whether the arrests were valid depends, in 

turn, upon whether at the moment the arrests were made the officers 

had probable cause--i.e. whether at that moment the facts and circumstances within their knowledge and of which they had reasonable 

trustworthy information were sufficient to warrant a prudent man 

in believing defendants had committed or were committing an 

offense and the circumstances required their immediate arrests. 

Section 95-608(d), R.C.M. 1947; State v. Bennett, supra; Brinegar 

v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L ed 1879. 

Evidence required to establish guilt is not necessary to 

prove probable cause for an arrest. On the other hand, good 

faith or mere suspicion on the part of the arresting officers is 

not enough. And while a search without a warrant is, within 

limits, permissible if incident to a lawful arrest, if an arrest 

without a warrant is to support an incidental search, it must be 

made with probable cause. An arrest is not justified by what the 

subsequent search discloses. Henry v. United States, 361 U.S. 98, 

80 S.Ct, 168, 4 L ed 2d 134; Carroll v. United States, 267 U.S. 132, 
All of the recent Montana cases interpreting "probable cause" 

as used in section 95-608(d), R.C.M. 1947, deal with a defendant's 

possession or sale of dangerous drugs. In Bennett, this Court 

held there was sufficient probable cause to justify the arrest 

without a warrant. In Bennett, however, officers had received 

information from the owner of the apartment and also a reliable 

informant that drugs were being used in the apartment. They also 

had information that the one accused was a dealer in drugs and, 

when the officers went to the apartment to investigate, they observed 

the accused enter the apartment and walk toward apartment 4-W. At 

this time they were in the common lobby and as they proceeded toward 

the apartment they found the door open and a marijuana odor emanating 

therefrom. 

On the other hand, in State ex rel. Glantz v. Dist.Court, 

154 Mont. 132, 139, 461 P.2d 193, this Court ruled that no probable 

cause existed for defendant's arrest and dismissed the proceedings 

against her. In Glantz the officers had a search warrant naming 

two particular people and a particular premises to be searched for 

possession of dangerous drugs. The other defendant, Linda Pickett, 

happened to be on the premises at the time of the search and she 

was also arrested. She was taken to the police station and subsequently searched and it was there that an immeasurable quantity 

of marijuana was found on her person. This Court said: 

'I* * * There is ample authority for the proposition that the mere fact a person is on premises 

where officers have reason to believe there are 

drugs will not justify his arrest or a search of 

his person. [Citing cases]" 

In another recent Montana case, State v. Bentley, 156 Mont. 

129, 134, 477 P.2d 345, the defendant assaulted a citizen and before 

he sped off in his car, someone spotted a pillow and bags in the 

trunk of his car. He was arrested and the car taken to the police 

station. An application for a search warrant was later made and 

granted after the police judge received information that defendant 

was a burglar and used drugs. In Bentley, this Court said: 
11 Montana cannot guarantee less protection for a 

citizen under its laws than is demanded by the 

Constitution of the United States. Therefore, the 

mere presence of a pillow and bags in the trunk 

of a car taken by themselves (like the telephones 

in the Spinelli case) do not constitute sufficient 

evidence of a crime to issue a search warrant for 

burglar tools or illegal drugs, and a judge's 

personal inferences that respondent is a burglar 

adds nothing toward probable cause of the commission 

of a crime on these facts. I I 

Thus, in the instant case, as in Glantz and Bentley, the 

mere presence of defendant's car in the area, footprints in the 

general vicinity, or any personal inferences that the officers may 

have had about defendants because they missed work and knew how to 

run the switch engine mere specula tion, not sufficient constitute probable cause to arrest as determined by the district 

court. 

We do not believe it necessary to go into a more detailed 

analysis of probable cause. It has been defined, interpreted and 

redefined by many federal and state cases cited earlier in this 

opinion. The state asks the Court to consider United States v. 

Edwards, U.S. , 94 S.Ct. 1234, 39 L ed 2d 771. That case 

must be distinguished from this case because the custodial search 

without a search warrant was made after a lawful arrest. 

Here, the question of the validity of the initial arrest and 

subsequent search and seizure was before the district court on two 

occasions. In both instances, and with different judges ruling, 

the evidence was ordered suppressed. 

In Patterson v. Halterman, Mont . 9 505 P.2d 905, 30 

St. Rep. 139, 144, this Court stated the rule of appeal and error: 

1 I In Stromberg v. Seaton Ranch Co., Mont . 502 

P.2d 41, 48, 29 St.Rep. 848, this Court stat-; 

pertinent rule of appeal and error which must be applied 

to the factual issues raised on appeal: 

"'As is indicated in the summary of the facts, 

there was an unusual amount of evidence presented to the 

trial judge which resulted in numerous conflicts in the 

evidence, He was the one who had the only opportunity 

to see and hear all witnesses. Each party makes a strong 

argument that these facts and circumstances favor his 

position. Yet, as has been stated by this Court too 

many times to require citation, it is not this Court's 

province to review the record of the trial court to 

determine whether or not we agree with the conclusions 
reached, if supported by the evidence. We must indulge 

the presumption that the judgment of the district court 

is correct and will not be disturbed unless there is a 

clear preponderance of evidence against it when viewed 

in the light most favorable to the prevailing party * * *"I. 

This is in conformity with the rule established in Morrison 

v. City of Butte, 150 Mont. 106, 431 P.2d 79, and quoted in Raucci 

V. Davis, Mon t . , 505 P.2d 887, 30 St.Rep. 133, 135: 

'"~hus, there is a conflict in the testimony from 

which different conclusions could be drawn. The 

credibility of witnesses and the weight to be given 

their testimony are for the trial court. [citation 

omitted]. This court will not overturn the holding 

or findings of a trial court unless there is a decided preponderance of the evidence against them, and, 

when the evidence furnishes reasonable grounds for 

different conclusions, findings will not be disturbed. 

[citation omitted]" 

There may be a difference of opinion as to whether the 

facts known to the officers prior to the arrest constitute probable 

cause. However, we will not substitute our judgment for that of 

the district court when there are reasonable grounds for its ruling. 

In light of our ruling on the first issue that the arrest 

was unlawful, it is not necessary to discuss the second issue 

concerning the search that followed the arrest. 

The district court's order suppressing evidence is affirmed. 

Hon. M. -James Sorte, District 

Judge, sitting for Chief Justice 

James T. Harrison. 

We Concur: 

Justices. 1 
Mr. Justice Castles dissenting: 

I dissent. 

The following facts were known at the time of the arrest: 

1. An employee of the Concentrator saw the engine going 

through a switch. It then sped up and darted out of the yards. 

2. This employee saw two men inside the engine compartment. 

These men could not be identified. 

3. It was determined that only certain people who had a 

working knowledge of how the engine ran, could have activated the 

engine. They would have had to have knowledge of how to uncouple 

the cars, put the bus bar in, release the air, activate the switch 

from within the engine, and several other steps. 

4. Other employees attempted to intercept or follow the 

engine. These employees, as they left the Concentrator yards, 

noticed an automobile belonging to the Defendant Fetters parked 

alongside the road just outside a fence that surrounds the 

Concentrator. 

5. These two employees, upon their return to the Concentrator 

around 8:45 p.m., found that Fetters' automobile was gone. 

6. At approximately 8:45 p.m. defendants came into the Race 

Track Bar which is located three blocks from where the car was 

seen. Mr. Lean asked the bartender for some salve and stated that 

Mr. Fetters had burned himself. 

7. That two sets of footprints, which were made in the snow, 

were discovered. These footprints led from the automobile which 

was parked on Continental Drive to a fence which surrounds the 

Concentrator, and then to the area where the engine was parked. 

8. That both defendants were employees of the Anaconda 

Company and were employed at the Concentrator. Both defendants were 

scheduled to work the afternoon shift on the day in question; 

that one of the defendants reported off for that day and the other 

defendant dumped a shift; that both defendants had personal knowledge 

of how to run this particular engine; that defendant Fetters was 
scheduled to operate the engine that afternoon; that both 

defendants knew exactly what time the employees left for lunch 

on the afternoon shift; that both defendants knew where the engine 

was left during the lunch period and how the engine was secured 

during this period; that both defendants were positively identified as being in the Race Track Bar which is approximately two 

or three blocks at a time approximately 45 minues after the theft. 

Taken together, all of these factors establish in my opinion 

probable cause for the arrest on reasonable grounds. 

I would reverse the trial judge. 

Mr. Justice John Conway Harrison dissenting: 

I dissent and concur with the foregoing dissenting 

opinion of Justice Castles. 

/ I Justice. I