NO. 88-226
IN THE STJPREMECOURT OF THE STATE OF MORTANA
1988

STATE OF MONTANA, Plaintiffand Respondent,-vsDANIEL EVJEN,Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District, Inand for the County of Lake, TheHonorableC.R. McNeil, Judgepresiding.
COUNSELOF RECORD:
ForAppellant:


### K. M. Bridenstine,Polson,Montana
ForRespondent:
Hon. Mike Greely,Attorney General, Helena,Montana Robert

### F.W. Smith,Asst. Atty. General,Helena LarryNistler, CountyAttorney, Polson,Montana

Submitted onBriefs: Aug. 4, 1988 Decided: November 17, 1988 

### + 0 4 55

I C I-i C? l-4 I.' "- 

### ,.; Feeds 

### -.
, ' A 1 

# - p- -- LL 4 lay e 

### 8 x 2: CS *f ,-"L C2: 0 Clerk m 

### x
I\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,Evjenwas sentenced to 10 years imprisonment. We determine that the District Court properly denied Evjen's motion to suppressthe evidence andwe affirm his conviction. Evjen'sprincipal issue is that the trial court erredby 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 thewarrant requirement. On the night of November 16, 1987, and the very early morning hours of November 17,DanielEvjen,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 informantconsidered reliable, that certain individualswere selling drugs in the Rocking G parking lot. Officer Phillips and Officer Bill Pray went to the parking l.ot,met with Morrison, and therelearned 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 toher at a nearby trailerhouse. 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 shorterman had smoked amarijuana 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 toproceed 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 fromthemotor 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 ofmarijuana in
a ziplock baggie within 

### a blue duffel bag. The three were thenplaced under arrest.In contending that the warrantless searchwas 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 thatunlesshehad founddrugs,he would not have placed Evjen and his companions under arrest; and that therewere no exigent circumstancesbecause Officers Phillips and Pray had detained and prevented the three persons from entering the pickup truck. Because of their detention,Evjen contends that the threepersons did nothave an opportunityto gainpossession of aweapon or destructable evidence from the truck, the conditions usually required for the warrantless searchof 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 notmake 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,Evjenwas 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 searchof thevehicleherewasproper 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 Statev. Ribera (1979),183Mont. 1, 7, 597 P.2d 1164, 1168.The disposition of this cause does not require a long discussion. Officer Phillips,before thewarrantless search, had received specific information froman eye witness that an ongoing crime was being committed in which the pickup truck
was involved. Though Officer Phillipsmay 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 resolutionof this casedoesnotdepend 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 themotor vehiclewithout awarrant. 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), 267U.S. 132, 45 S.Ct. 280, 69 L.Ed 543,and Chambersv. 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 onehand, 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 awarrant. Givenprobable cause to search, either course is reasonable under the FourthAmendment.163Mont. at 205, 516 P.2d at 621. Itwas also stated in Chambers and adoptedby 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 seizingofficer has for belief that the contents of the automobile offend against the law. 163Mont. at 205; Chambers,399 U.S. at 49. Here, Officer Phillips had specific information from a reliable informant that shehad been in the pickup, saw drugs therein, and she had described three personswho 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 awaywith the contraband evidence. Because the officers had probable
cause to search the vehicle, the searchwas not unreasonable under the Fourth Amendment, even though an actual arrest of the defendanthad notbeenmade. We are aware of the holding in U.S. v. Parr (9thCir. 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 stopwas 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 applicableauthorityhere. An analogy to this casemight be found inU.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 intandem,decided an investigative stopwas 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 smellingmarijuana. 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. Sharpewent to theUnited States SupremeCourt 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 tomake an investigatory stop of the threepersons
as they approached thepickup 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& k.

# a JusticeJustices