No. 12675 INTHE 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

## ,AssistantAttorney 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 WilliamA. Brolin argued and Joseph C. Connors

argued, Anaconda, Montana

Submitted: June 17, 1974 Decided

## :SEp3 1974 Filed: 

### SEP

### 3 1974Hon. 

### M. James Sorte, District Judge, sitting for Chief Justice James T. Harrison, delivered the Opinion of the Court.
This is an appealby 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 Leanwere charged by Information in four counts: interferencewith railroad property; interferencewith railroad property causing death;murder; and malicious destructionofproperty. In chronologicalorder these events occurred: OnMarch 28, 1972,at approximately 8:00 p.m. a large diesel switch engine owned and operated by theAnaconda Company at the Weed Concentrator in Butte,Montana,was left by the crew in a locked and secured position. The crew left the engine idlingwith the air set and three large slurry cars connected to itwhile 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 enginebut could not describe their physical characteristicsnor wearing apparel. Two employeeswere immediatelydispatched from the concentrator yard to look for any signs of the engine that had just left. Theywent out of the concentratorarea and drove down Continental Drivewhere they saw defendant Fetters'white Cadillac automobile parked in a turnout area of ContinentalDrive and Howard Street. The car was no longer there 30minutes 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 sixmiles 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 Johnsonwas thrownfrom 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 alsorequested salve for Fetters who had apparently burned some portion of hisbody. The Race Track Bar was approximately two blocks from where ~etters' carwas parked. Before defendants were arrested itwas also ascertained that theywere currently employed by the Anaconda Company atthe concentrator yard. Defendants had personal knowledge of how torun that particular engine; in fact, Fetterswas scheduled to operate the engine on the March 28, 1972, afternoon shift. Bothdefendants failed toreport towork that day. George Evans, security officer of the Anaconda Company, informed the investigating sheriff that he had observed two separate setsof footprints inthe snow directly across the roadway from where ~etters' Cadillac was seen earlier that evening, The footprints led toan area 60-70 feet into the concentrator area. Evans neither observed footprints on the south sideof 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 orboot with separate and definiteheel markings. Evans immediately covered the footprintswith cardboard boxes untilphotographs could be taken. Allof these factswere known to SilverBow County Attorney Lawrence Stimatz and SilverBow Sheriff Rock Cunningham. After analyzing allthe facts Stimatz directed law enforcement officers to arrest Fetters and Lean without a warrant. Stimatz testified atthe 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 tobe preserved. We wanted to look attheir shoes and we wanted tolookattheir clothes for grease spots or anything else that they might have had on them from being inside that train. IIFetterswas arrested without a warrant at 5:00 a.m. at his home onMarch 29, 1972. Lean was arrestedwithout a warrant at his home at 6:20 a.m. that samemorning. Both defendantswere taken from their homes to the sheriff's officewhere their clothing was taken from them. Theywere questioned,placed in jail,and released the afternoon of March 29, 1972,without being charged in justice court
or district court. Their personal belongingswhichwere seized by the sheriff's officerswere not returned to them. Defendantswere arrested again onMay 

### 19, 1972,and charged in justice court. On October 20, 1972,District Judge John

### B. McClernan granted defendantsfmotion to suppressall the physicial evidence and statementsobtained from and after the arrests. An appealwas 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 suppressionhearing. State of Montana v. Alan Fetters and Steve Lean, Mont

# . , 510 P.2d 1, 30 St.Rep. 543. Thereafter Judge McClernanwas disqualified and District Judge James D. Freebournheld a formal hearing and onNovember 26, 1973, ordered the suppression of the evidence seized as a result of the warrantless arrest. The order of Judge Freebournwas appealed to this Court, and following argument and considerationof 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 arrestwas unlawful? 2. Whether the search made incident to that arrestwas unlawful? As to the first issue, section 95-608,R.C.M. 1947, sets forth the instances inwhich 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) Hebelieves, on reasonable grounds, that a warrant for the ~erson's arrest has been issued in this state, or"(c) Hebelieves, on reasonable grounds, that a felony warrant for the person's arrest has been issued in another jurisdiction, or "(d) Hebelieves 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 defendantshad committed
an offense. In State v. Bennett, 158Mont. 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 arrestswere valid depends, in turn, upon whether at the moment the arrestswere made the officers had probable cause--i.e. whether at that moment the facts and circumstanceswithin their knowledge and ofwhich they had reasonable trustworthy informationwere sufficient to warrant a prudent man inbelieving 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, 338U.S. 160, 69 S.Ct. 1302, 

### 93 

### L ed 1879. Evidence required to establish guilt isnot necessary to prove probable cause for an arrest. On the other hand, good faith or mere suspicionon the part of the arresting officers is not enough. And while a searchwithout a warrant is, within limits,permissible if incident to a lawful arrest, if an arrest without a warrant is to support an incidental search, itmust be made with probable cause. An arrest is not justifiedby what the subsequent searchdiscloses. Henry v. United States, 361U.S. 98, 80 S.Ct, 168, 

### 4L ed 2d 134;Carroll v. United States, 267 U.S. 132,Allof the recent Montana cases interpreting "probable cause"
asused in section 95-608(d), R.C.M. 1947, dealwith a defendant's possession or saleof dangerous drugs. InBennett, this Court held therewas sufficient probable cause tojustify 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 indrugs and, when the officerswent to the apartment to investigate, they observed the accused enter the apartment and walk toward apartment 4-W. At this time they were inthe 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 tobe searched for possession of dangerous drugs. The other defendant, Linda Pickett, happened tobe 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 itwas there that an immeasurable quantity of marijuana was found on her person. This Court said:

'I* 

# * * There isample authority for the proposition that themere fact a person ison premises where officers have reason tobelieve there are drugs willnot justify his arrest or a search of his person. [Citing cases]" In another recent Montana case, Statev. Bentley, 156Mont. 129, 134, 477 P.2d 345, the defendant assaulted a citizen and before he sped off inhis 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 latermade 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 citizenunder 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 takenby themselves (like the telephones in the Spinelli case) do not constitute sufficient evidence of a crime to issue a searchwarrant for burglar tools or illegal drugs, and a judge's personal inferences that respondent is a burglar addsnothing toward probable cause of the commission of a crime on these facts.II 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 knewhow to
run the switch engine mere speculation, not sufficient constituteprobable 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 redefinedby 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 casebecause 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 seizurewas before the district court on two occasions. Inboth instances,and with different judges ruling, the evidencewas 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:
1IIn Stromberg v. Seaton Ranch Co., Mont

# . 502 P.2d 41, 48, 29 St.Rep. 848, this Court stat-; pertinent rule of appeal and errorwhich must be applied to the factual issues raised on appeal: "'As is indicated in the summary of the facts, therewas anunusual amount of evidence presented to the trial judge which resulted innumerous conflicts in the evidence, He was the onewho 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 statedby 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 conclusionsreached, 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 itwhen viewed in the light most favorable to the prevailing party

# ** *"I. This is in conformity with the rule established inMorrison


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

# . , 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 ofwitnesses and the weight to be given their testimony are for the trial court. [citation omitted]. This courtwill 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, findingswill not be disturbed.

[citation omitted]" Theremay be a difference of opinion as towhether the factsknown to the officers prior to the arrest constitute probable
cause. However,wewill 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. -JamesSorte,District Judge, sitting for Chief Justice James

### T. Harrison.

We Concur:

Justices. 

# 1

### Mr. Justice Castles dissenting: I dissent. The following factswere 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. Thesemen couldnot be identified. 3. 

### Itwas determined that only certain people who had a working knowledge of how the engine ran, could have activated the engine. Theywould have had to have knowledge of how to uncouple the cars,put the bus bar in,release the air, activate the switch fromwithin the engine,and several other steps. 

### 4. Other employees attempted to intercept or follow the engine. These employees, as they left the Concentratoryards, 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' automobilewas gone. 

### 6. At approximately 8:45 p.m. defendants came into the Race Track Bar which is located three blocks from where the carwas 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 automobilewhich
was parked on Continental Drive to a fencewhich surrounds the Concentrator, and then to the area where the engine was parked. 8. That both defendants were employees of the Anaconda Company andwere employed at the Concentrator. Both defendantswere scheduled towork 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 Fetterswasscheduled to operate the engine that afternoon; thatboth defendants knew exactlywhat time the employees left for lunch
on the afternoon shift; thatboth defendants knew where the engine
was leftduring the lunch period and how the engine was secured during this period; that both defendants werepositively identified asbeing in the Race Track Bar which is approximately two
or threeblocks ata time approximately 45 minues after the theft. Taken together, allof these factors establish inmy opinion probable cause for the arrest on reasonable grounds. I would reverse the trialjudge.

Mr. Justice John Conway Harrison dissenting: I dissent and concur with the foregoing dissenting opinion of Justice Castles.



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