NO. 88-226 

IN THE STJPREME COURT OF THE STATE OF MORTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDANIEL EVJEN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C.R. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

K. M. Bridenstine, Polson, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert F.W. Smith, Asst. Atty. General, Helena 

Larry Nistler, County Attorney, Polson, Montana 

Submitted on Briefs: Aug. 4, 1988 

Decided: November 17, 1988 

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Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Daniel Evjen appeals his felony conviction in the 

District Court, Twentieth Judicial District, Lake County, of 

criminal possession of drugs with intent to sell on the 

grounds that the District Court erred in not suppressing 

evidence seized at the time of his arrest. On his 

conviction, Evjen was sentenced to 10 years imprisonment. We 

determine that the District Court properly denied Evjen's 

motion to suppress the evidence and we affirm his conviction. 

Evjen's principal issue is that the trial court erred by 

refusing to suppress, and later admitting into evidence, 

certain tangible items seized in a warrantless search of an 

unoccupied motor vehicle on private property. The State 

contends that Evjen was under arrest at the time of the 

search of the motor vehicle, that the search was conducted 

incident to a valid arrest, and that the search comes within 

the automobile exception to the warrant requirement. 

On the night of November 16, 1987, and the very early 

morning hours of November 17, Daniel Evjen, Darryl Cline, and 

Earlyn Mellstead were patrons of the Rocking G Bar near 

Polson, Montana. They had come to the bar in a Chevrolet 

pickup truck which was parked in the Rocking G parking lot 

near the building. Evjen had been a passenger in the motor 

vehicle. 

While these patrons were in the bar, Officer Bruce 

Phillips of the Lake County Sheriff's office received a 

telephone tip from one Bill Morrison, an informant considered 

reliable, that certain individuals were selling drugs in the 

Rocking G parking lot. Officer Phillips and Officer Bill 

Pray went to the parking l.ot, met with Morrison, and there 
learned from him that he had not in fact seen the drugs but 

that he had learned of them from Jessica Mangels, who was 

also in the bar. At about that time, the officers saw 

Jessica Mangels leave the area. Officer Phillips followed 

her and talked to her at a nearby trailer house. 

Jessica Mangels was known to Officer Phillips because 

she had been a reliable informant in the past. She told 

Officer Phillips that before he arrived, she had been taken 

to an older red and white pickup truck by the shorter of two 

men in a group of three, a tall man, the short man, and a 

woman. In the truck, Jessica was shown a zip-lock baggie, 

full of what appeared to be marijuana. The baggie had been 

removed from a blue duffel bag. Jessica told Officer 

Phillips that she and the shorter man had smoked a marijuana 

cigarette and had discussed the sale and price of some 

marijuana. 

After talking to Mangels, Officer Phillips returned to 

the parking lot to Officer Pray, who, with Morrison, were 

watching the truck that matched the description that Manqels 

had given. 

While they were discussing whether Morrison should go 

into the bar and attempt to make a buy, the trio, Evjen, 

Cline and Earlyn Mellstead left the Rocking G bar to proceed 

toward the pickup. Officers Phillips and Pray were at that 

time standing between the motor vehicle and these three 

persons. The officers stopped them a distance from the motor 

vehicle and they were not allowed to approach the motor 

vehicle closer than several feet. Officer Phillips asked 

Cline for permission to search the pickup. Cline refused. 

Nevertheless, Phillips searched the passenger compartment of 

the pickup, and found a substantial quantity of marijuana in 

a ziplock baggie within a blue duffel bag. The three were 

then placed under arrest. 
In contending that the warrantless search was unlawful, 

and that consequently his conviction was improper, Evjen 

relies on these factors: that at the time of the search, 

Evjen was not under arrest; that Officer Phillips testified 

at the suppression hearing that unless he had found drugs, he 

would not have placed Evjen and his companions under arrest; 

and that there were no exigent circumstances because Officers 

Phillips and Pray had detained and prevented the three 

persons from entering the pickup truck. Because of their 

detention, Evjen contends that the three persons did not have 

an opportunity to gain possession of a weapon or destructable 

evidence from the truck, the conditions usually required for 

the warrantless search of an automobile. 

In essence, Evjen is contending that the officers did 

not have reasonable cause to make an arrest, before the 

search, that they did not make an arrest, and that therefore 

the warrantless search is improper absent an arrest. 

The State contends that under State v. Thornton (Mont. 

1985), 708 P.2d 273, 45 St.Rep. 1614, Evjen was under arrest 

because he understood that he was not free to leave the 

parking lot. It further contends that under § 46-5-101(1), 

MCA, the search of the vehicle here was proper as an incident 

to a lawful arrest. The State further contends that the 

warrantless arrest here was based on probable cause, the 

informant's tip, and so was based on reasonable grounds 

citing State v. Ribera (1979), 183 Mont. 1, 7, 597 P.2d 1164, 

1168. 

The disposition of this cause does not require a long 

discussion. Officer Phillips, before the warrantless search, 

had received specific information from an eye witness that an 

ongoing crime was being committed in which the pickup truck 

was involved. Though Officer Phillips may not have believed 

that he had probable cause at that point to make an arrest 
(it appears he did have probable cause), he at least had a 

reasonable suspicion that a crime was being committed, and 

that the pickup was involved. In Terry v. Ohio (19681, 392 

U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the officer in that 

case, at that time, having a reasonable suspicion that a 

crime was ongoing based on specific and articulable facts, 

was held entitled to make an investigatory stop of the 

defendants. Here the governmental interest in enforcing the 

law outweighed the interests of the driver and passengers of 

the pickup in remaining secure from detention. 

The resolution of this case does not depend upon whether 

the officers had made an actual arrest of Evjen, but whether 

under the "probable cause exception" the officers had 

probable cause to search the motor vehicle without a warrant. 

In State v. Spielmann, Christensen (1973), 163 Mont. 

199, 516 P.2d 617, we adopted for Montana law purposes t.he 

probable cause exception for motor vehicles developed in 

Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280, 

69 L.Ed 543, and Chambers v. Maroney (1970), 399 U.S. 42, 48, 

90 S.Ct. 1975, 26 L.Ed.2d 419. In quoting from Chambers, 

supra, this Court said: 

Arguably, because of the preference for a 

magistrate's judgment, only the immobilization of 

the car should be permitted until the search 

warrant is obtained; arguably, only the "lesser" 

intrusion is permissible until the magistrate 

authorizes the "greater." But which is the 

"greater" and which is the "lesser" intrusion is 

itself a debatable question and the answer may 

depend on a variety of circumstances. For 

constitutional purposes, we see no difference 

between, on the one hand, seizing and holding a car 

before presenting the probable cause issue to a 

magistrate and on the other hand, carrying out an 

immediate search without a warrant. Given probable 

cause to search, either course is reasonable under 

the Fourth Amendment. 
163 Mont. at 205, 516 P.2d at 621. 

It was also stated in Chambers and adopted by this Court 

in Spielmann, that the right to search and the validity of 

the seizure are not dependent upon the right to arrest: they 

are dependent on the reasonable cause the seizing officer has 

for belief that the contents of the automobile offend against 

the law. 163 Mont. at 205; Chambers, 399 U.S. at 49. 

Here, Officer Phillips had specific information from a 

reliable informant that she had been in the pickup, saw drugs 

therein, and she had described three persons who had come in 

the truck. When Officer Phillips returned, the information 

given him by the informant was confirmed in that three 

persons did approach the truck. There is no question that 

Officer Phillips had probable cause to search the truck at 

that time. The alternatives were to hold the truck until a 

magistrate or judge could issue a search warrant, or allow 

the three persons to get into their truck and drive away with 

the contraband evidence. Because the officers had probable 

cause to search the vehicle, the search was not unreasonable 

under the Fourth Amendment, even though an actual arrest of 

the defendant had not been made. 

We are aware of the holding in U.S. v. Parr (9th Cir. 

1988), 843 F.2d 1228. There, evidence obtained under a 

warrantless search of an automobile before arrest of the 

defendant was held inadmissible. The holding is based upon 

two principal grounds: (1) that the stop was for a traffic 

violation; and, (2) there was no probable cause to suspect 

there was contraband in the vehicle. Those grounds 

distinguish the Parr case from this case involving Evjen and 

Parr is not applicable authority here. 

An analogy to this case might be found in U.S. v. Sharpe 

(1985), 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605. In 

Sharpe, the officer, following two vehicles traveling in 
tandem, decided an investigative stop was proper and radioed 

the South Carolina State Highway Patrol for assistance. When 

they attempted to stop the vehicles, one of them was pulled 

over to the side of the road, but the pickup continued on 

pursued by the state officer. The state officer stopped the 

truck, questioned the driver, and told him that he would be 

held until the other officer arrived. The other officer 

arrived at the scene about 15 minutes after the truck had 

been stopped. He confirmed his suspicion that the pickup 

truck was overloaded and approaching the rear of the pickup 

and camper, he reported smelling marijuana. At that point, 

he obtained the keys from the ignition of the pickup, opened 

the rear of the camper without the driver1 s permission and 

found a number of burlap wrapped bales which contained 

marijuana. Sharpe went to the United States Supreme Court on 

the question whether the detention of the driver of the 

pickup for 15 minutes was too long as a Terry stop. The 

propriety of the search of the truck at the same time was 

never questioned. In this case, the propriety of the Terry 

stop was not questioned, but the search of the vehicle is 

questioned. Under the circumstances here, the officers had 

the right to make an investigatory stop of the three persons 

as they approached the pickup truck. Moreover, the officers 

had reasonable cause based on the informant's tip, verified 

by the appearance of the three persons, to search the 

passenger compartment of the pickup truck. The District 

Court was correct in refusing to suppress the evidence. The 

conviction is affirmed. '\l& 

Justice 

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Justices