### No. 13434 INTHE SUPREME COURT OF THE STATE OFMONTANA 1976

STATE OF MONTANA, Plaintiff and Appellant,
-vs

# - STEVENALLEN BROUGH

# , Defendant and Respondent.
Appeal from: District Court of theTwelfth Judicial District, Honorable 

### B. W. 

### Thomas, Judgepresiding. Counsel of Record

### : ForAppellant: 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 JohnWarner argued, Havre, Montana

Submitted: October 12, 

### 1976 Decided 

### : 

## NOQ29

## 1976 Filed:

## FiQt2$4 

## 1976Mr. Justice Frank I. Haswell delivered the Opinion of the Court. The State of Montana appeals from an order of the district court, HillCounty, the Hon. B. W. Thomas res siding, suppressing
as evidence marijuana found inthe trunk of defendant's 

### car. The court found the evidence was seized in an illegal search without a search warrant, that the Statehad failed toprove defendant's consent tothe searchwas voluntary, and that there
was no probable cause for a search of the car without a warrant. Weaffirm. Officer Gilliesof the Havre Police Department stopped a
car for speeding 45m.p.h. ina 25 m.p.h. speed zone at2:20
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 stereoon the back seat, and
a screwdriver, pliers and wrench on the floor inthe back. The C-B radio matched the description of several C-B radios that had been reported stolen. Defendant Brough and the passenger inhis car, Cross,
were taken intocustody on suspicion of possessing stolenproperty. The car was impounded inthe police garage. Defendant Brough and Cross sat inthe 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 inadjoining cells. Both were given the Miranda warning. During this 

### timedefendant Brough placed a tinfoil packet on thebooking counter, said he did not know what it was, and it subsequently 

### was determined tocontain no dangerous drug
or anything illegal.Defendant Brough was not allowed topost bond on the traffic charge although the officers

### were authorized toreceive bond. Hisappearance was set for the following Monday. Officer Gillkstwiceasked defendant Brough toconsent toa search of his car and Brough 

### was told he would remain injail until his
car was searched either with his consent orwith a searchwarrant and that he would get outof jail if he consented tothe search. Brough did not consent atthis 

### time. Brough 

### was not allowed tomake a phone call. Brough's father came tothepolice stationabout 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 courtmade an express finding that Brough 

### was held incommunicado injail.The next morning defendant Brough was taken to

### a small cubicle inthepolice stationby Sgt. Stremcha and Officer Stinson for thepurpose of getting his consent toa search of his car. Brough was told that if he did not consent, a search warrant would be secured anyway his carwould be searched, and that Brough's consent would save them 

### time and paper work. Brough
was reluctant but finallygave his consent. Marijuana 

### was found in the trunk of the car. After consent was given, Brough 

### was allowed topost $100 bond on the trafficcharge and was released from jail. Later the reckless driving chargewas reduced tocareless driving and Brough pled guilty to it. The issue on appeal 

### iswhether themarijuana was properly suppressed as illegallyobtained. No searchwarrant was ever obtained. The Statecontends the consent was valid, orthat lacking consent, therewas probable cause for the searchof thecar's trunk without a warrant. The firstdetermination iswhether 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 factsof that case lack the coercive tenor of the policeprocedure here. Kotwicki was a transient picked up on the interstatehighway for speeding, 

### was offered bond but could not pay, was allowed touse thephone, and was only tobe jailed until his friend arrived with the $15 bond money. Hisperson
was searched before being placed ina jail 

### cell, and he spontaneously admitted a plastic bag found inhis shoe contained marijuana. When asked if hiscar could be searched, he spontaneously admitted 

### it was fullof marijuana. Heacknowledged a written statement of his right torefuse consent to the search. The prosecution has theburden of proving by 

### clear positiveevidence that the individual freely and intelligentlygave hisunequivocal and specific consent to search, uncontaminated by any duress orcoercion, actual or implied. Statev. LaFlamme, Mont

# . , 551 P.2d 1011, 33 St.Rep. 632, 634, and cases cited therein. Aswas 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 theproduct of duress or coercion, express or implied, is a question of fact tobe determined from the totalityof all the circumstances. 

## * 

## * *" The evidence asrecited herein was sufficient to support the finding of the district court of lack of voluntariness. The Statenext contends that even if the consent was invalid, therewas probable cause to searchwithout 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 inthe Havre area; that these radios aremore easily stolen without detection of the thief inthe earlymorning before sunrise; that Brough was out driving at2:20 a.m.; that he was speeding; that when Officer Gillies turned on his red lights topull him over, Brough continued to pass several cars; that when Brough finally stopped, he immediately emerged from the auto; that Officer Gilliesobserved 

### 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 inthe back seatwere 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 theftwas tobe found in Brough's vehicle. Weaffirm the district court's finding that the police suspicions asto the possible stolen character of the C-B radio and stereowhich they could see indefendant'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 factswere 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 toany crime. The C-B radio and car stereowere mounted inthe car and attached with screws. Brough claims the C-B radio and car stereo are his and the tape player inthe backseat belongs tohis brother. No one elsehad claimed them or identified them asbeing 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 Statev. Spielmann, 163 Mont. 199, 516 P.2d 617, and Chambersv. 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. Sincewe 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). SeeWhite 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, sittinginplace of Mr. JusticeWesley Castles.INTHE SUPREME COURT OF THE STATE OF MONTANA

No. 13434
STATE OF MONTANA, Plaintiff and Appellant,
vs. STEVEN ALLEN BROUGH, Defendant and Respondent. CURKOFSUPREME COURT: S.'UUF; Q&MONTANA ORDER AMENDING OPINION

The following amendment of the above named opinion decided on November 29, 1976, ishereby ordered:
Beginning with the eighth line from the bottom of the 6th page please amend the opinion toread as follows:
"garage and admittedly having time toobtain 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