No. 13434 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vs - 

STEVEN ALLEN BROUGH , 

Defendant and Respondent. 

Appeal from: District Court of the Twelfth Judicial District, 

Honorable B. W. Thomas, Judge presiding. 

Counsel of Record : 

For Appellant: 

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

Montana 

John F. North argued, Assistant Attorney General, 

Helena, Montana 

Ronald W. Smith argued, County Attorney, Havre, 

Montana 

For Respondent : 

Weber, Bosch, Kuhr and Dugdale, Havre, Montana 

John Warner argued, Havre, Montana 

Submitted: October 12, 1976 

Decided : NOQ 2 9 1976 

Filed : 

FiQt 2 $4 1976 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

The State of Montana appeals from an order of the district 

court, Hill County, the Hon. B. W. Thomas res siding, suppressing 

as evidence marijuana found in the trunk of defendant's car. 

The court found the evidence was seized in an illegal search 

without a search warrant, that the State had failed to prove defendant's consent to the search was voluntary, and that there 

was no probable cause for a search of the car without a warrant. 

We affirm. 

Officer Gilliesof the Havre Police Department stopped a 

car for speeding 45 m.p.h. in a 25 m.p.h. speed zone at 2:20 

a.m. on January 31, 1976, a Saturday. Defendant Brough, the 

driver, a Havre resident and former high school classmate of 

Officer Gillie~~irnmediately got out of the car. Officer Gillies 

recognized Brough and called him by name. Gillies shone his flashlight inside the car and observed a C-B radio and car stereo on 

the floor on the driver's side, a stereo on the back seat, and 

a screwdriver, pliers and wrench on the floor in the back. The 

C-B radio matched the description of several C-B radios that had 

been reported stolen. 

Defendant Brough and the passenger in his car, Cross, 

were taken into custody on suspicion of possessing stolen property. The car was impounded in the police garage. Defendant 

Brough and Cross sat in the police car outside the police station 

for 15-20 minutes alone and handcuffed. Then they were taken 

into the police station, relieved of their personal possessions, 

and placed in adjoining cells. Both were given the Miranda 

warning. During this time defendant Brough placed a tinfoil 

packet on the booking counter, said he did not know what it was, 

and it subsequently was determined to contain no dangerous drug 

or anything illegal. 
Defendant Brough was not allowed to post bond on the 

traffic charge although the officers were authorized to receive 

bond. His appearance was set for the following Monday. Officer 

Gillkstwice asked defendant Brough to consent to a search of 

his car and Brough was told he would remain in jail until his 

car was searched either with his consent or with a search warrant 

and that he would get out of jail if he consented to the search. 

Brough did not consent at this time. 

Brough was not allowed to make a phone call. Brough's 

father came to the police station about 4:00 a.m. and (1) was 

not allowed to see his son, (2) was not informed of the charge 

against his son, and (3) was not informed of the amount of bail. 

Brough was not informed of his father's visit. The district 

court made an express finding that Brough was held incommunicado 

in jail. 

The next morning defendant Brough was taken to a small 

cubicle in the police station by Sgt. Stremcha and Officer 

Stinson for the purpose of getting his consent to a search of 

his car. Brough was told that if he did not consent, a search 

warrant would be secured anyway his car would be searched, and 

that Brough's consent would save them time and paper work. Brough 

was reluctant but finally gave his consent. Marijuana was found 

in the trunk of the car. 

After consent was given, Brough was allowed to post $100 

bond on the traffic charge and was released from jail. Later 

the reckless driving charge was reduced to careless driving and 

Brough pled guilty to it. 

The issue on appeal is whether the marijuana was properly 

suppressed as illegally obtained. No search warrant was ever 

obtained. The State contends the consent was valid, or that 

lacking consent, there was probable cause for the search of the 
car's trunk without a warrant. 

The first determination is whether Brough's consent was 

voluntarily given. We affirm the district court's ruling that 

the consent was coerced. 

The case of State ex rel. Kotwicki v. District Court, 

166 Mont. 335, 532 P.2d 694 (1975), involved a similar situation, 

however, the facts of that case lack the coercive tenor of the 

police procedure here. Kotwicki was a transient picked up on 

the interstate highway for speeding, was offered bond but could 

not pay, was allowed to use the phone, and was only to be jailed 

until his friend arrived with the $15 bond money. His person 

was searched before being placed in a jail cell, and he spontaneously admitted a plastic bag found in his shoe contained 

marijuana. When asked if his car could be searched, he spontaneously admitted it was full of marijuana. He acknowledged a 

written statement of his right to refuse consent to the search. 

The prosecution has the burden of proving by clear positive evidence that the individual freely and intelligently gave 

his unequivocal and specific consent to search, uncontaminated 

by any duress or coercion, actual or implied. State v. LaFlamme, 

Mont . , 551 P.2d 1011, 33 St.Rep. 632, 634, and cases 

cited therein. As was stated in Schneckloth v. Bustamonte, 412 

U.S. 218, 36 L Ed 2d 854, 863, 93 S.Ct. 2041 (1973): 

" * * * the question whether a consent was in 

fact 'voluntary' or was the product of duress or 

coercion, express or implied, is a question of 

fact to be determined from the totality of all 

the circumstances. * * *" 

The evidence as recited herein was sufficient to support 

the finding of the district court of lack of voluntariness. 

The State next contends that even if the consent was invalid, there was probable cause to search without a warrant. 

In support of its contention the State offers the follow- 
ing statements of fact and inferences: That many C-B radios 

had been stolen out of vehicles in the Havre area; that these 

radios are more easily stolen without detection of the thief 

in the early morning before sunrise; that Brough was out driving 

at 2:20 a.m.; that he was speeding; that when Officer Gillies 

turned on his red lights to pull him over, Brough continued to 

pass several cars; that when Brough finally stopped, he immediately emerged from the auto; that Officer Gillies observed a 

C-B radio and car stereo on the floor of the car on the driver's 

side in a vertical position as if they had been supported by 

Brough's leg; that in the back seat, partially covered, was a 

stereo tape player of the variety not usually found mounted in 

automobiles, and; also in the back seat were tools of the type 

commonly used in burglaries. The State argues that from all 

these facts a reasonable prudent man would infer that a theft 

had been committed and that evidence of the theft was to be found 

in Brough's vehicle. 

We affirm the district court's finding that the police 

suspicions as to the possible stolen character of the C-B radio 

and stereo which they could see in defendant's car, as well as 

the possible burglar tools, do not provide probable cause for 

a search of the trunk of the vehicle. 

The following additional facts were before the Court. 

There was no high speed chase or attempt to flee. The officers 

had no reports of thefts occurring that night or descriptions 

tying defendant to any crime. The C-B radio and car stereo were 

mounted in the car and attached with screws. 

Brough claims the C-B radio and car stereo are his and 

the tape player in the backseat belongs to his brother. No one 

else had claimed them or identified them as being stolen. 

The screwdriver, pliers and wrench found on the 
floor in the back seat of Brough's automobile add nothing to 

the State's claims as they are as equally usable for noncriminal 

purposes as they are for burglar tools. 

In both State v. Spielmann, 163 Mont. 199, 516 P.2d 

617, and Chambers v. Maroney, 399 U.S. 42, 26 L Ed 2d 419, 90 

S.Ct. 1975, the officers had information from eyewitnesses at 

the scene of the crime which was particular and reliable, wliich 

matched the defendants, their clothing and automobile when they 

were intercepted a short time after the crime. 

This case is also distinguished from Hooks v. State of 

Oklahoma, 394 F.Supp. 1262 (1975), involving the search of a 

car stopped for speeding at 4:00 a.m. after it attempted to 

elude the pursuit. The officers saw four new tires in the back 

seat still bearing price tags. When the occupants gave an incredible account of them, the officers opened the trunk and 

found five more tires and a tool box later determined to be 

stolen from a service station that night. 

Since we affirm the district court's finding of lack 

of probable cause for the search, it is unnecessary to decide 

the question of whether the officers could proceed without a 

search warrant after impounding the car overnight at the police 

garage and admittedly having time to obtain a warrant under the 

recent decision of Texas v. White, 423 U.S. 67, 46 L Ed 2d 209, 

96 S.Ct. 304 (1975). See White v. State, (Tex.Crim.App. (1974)) 

521 S.W.2d 255, 257, the same case, rehearing denied, holding 

the exigencies required for a warrantless search of the car were 

not present 30 to 50 minutes after the car had been taken to the 

station and the defendant arrested. 

The order of the district court is affirmed. 

Justice 

-6- 
,/ ~fh-ief Justice 

 on. &~d~ L. ~c~inndn, District 

Judge, sitting in place of Mr. 

Justice Wesley Castles. 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 13434 

STATE OF MONTANA, 

Plaintiff and Appellant, 

vs. 

STEVEN ALLEN BROUGH, 

Defendant and Respondent. CURK OF SUPREME COURT: 

S.'UUF; Q& MONTANA 

ORDER AMENDING OPINION 

The following amendment of the above named opinion 

decided on November 29, 1976, is hereby ordered: 

Beginning with the eighth line from the bottom of the 6th 

page please amend the opinion to read as follows: 

"garage and admittedly having time to obtain a warrant 

in light of the recent decision of Texas v. White, 

423 U.S. 67, 46 L Ed 2d 209, 96 S.Ct. 304 (1975), 

reversing White v. State, (Tex.Crim.App. (1974) ) 521 

S.W.2d 255, 257, which had held the exigencies required 

for a warrantless search of the car were not present 

30 to 50 minutes after the car had been taken to the 

station and the defendant arrested." / 

DATED this 7th da 

Chief Justice