No. 80-213 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

JAMES CLIFTON JENKINS, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade. 

Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: Marcia Birkenbuel, Great Falls, Montana 

For Respondent: J. Bourdeau, Great Falls, Montana 

and Mike Greely, Helena, Montana 

Submitted on briefs: February 1.8, 

1981 

Decided: June 10, 1981 

Filed 1 0 1981 : 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

James Clifton Jenkins was charged in August 1979 with two 

counts of robbery. He was tried by jury in the District Court 

of the Eighth Judicial District, Cascade County, the Honorable 

Joel Roth presiding. Jenkins was found guilty on both counts 

and sentenced to 20 years on each, the sentences to run consecutively. He appeals from both convictions. 

Pam Rains, manager of the Feedlot Restaurant in Great Falls, 

was alone in the restaurant and taking a break at 4:00 p.m. on 

August 18, 1979. She noticed a man outside who was looking 

through the front window of the restaurant. The man entered the 

restaurant and Rains went behind the counter to take his order. 

The man said: "Do as I say", and gave her a note which read: 

"Take all the money from the register and give it to me." The 

man placed a gun on the counter. Two people entered the restaurant before Rains gave the man any money. The man retrieved his 

note and left. Rains described him as a light-complected white 

male, 39 or 40 years old, 6' to 6'2", 150 pounds, clean shaven, 

with short receding hair of a sandy-grey color, wearing tan 

pants and an open-collared shirt with horizontal white and green 

stripes. 

A few minutes after the attempted robbery of the Feedlot, 

a man entered the Mode OIDay store in Great Falls. The store 

was not open for business, but Mavis Bean, who owned the store, 

and Teresa Bean, Mrs. Robert Anderson and Roberta King were 

inside unpacking a clothing shipment. The man, who was armed 

with a knife and gun, approached Teresa Bean and asked where 

the till was located. Mavis Bean told him they were not open 

for business and the man left the store. Mavis Bean described 

the man as Caucasion, 5'10" to 6'l", 37 to 40 years of age, 

with light receding hair, and wearing old denim pants and a 
striped T-shirt. Teresa Bean described the man as being 6' 

tall, slender, clean shaven, fair-complected, with light brown 

hair and a receding hairline and wearing jeans and a white 

sweater with short sleeves and aqua stripes. 

Great Falls police detectives Dave Warrington and Eugene 

Bernardi were involved in the robbery investigation. On August 

20 at 11:30 a.m., they entered the Lobby Bar in Great Falls and 

noticed James Clifton Jenkins. Warrington approached Jenkins 

and told him he fit the description of a robbery suspect. 

Jenkins had no identification and gave his name as Larry White. 

Jenkins was patted down in the waist area and asked if he would 

accompany the officers so that a witness could see him. Jenkins 

went with the officers voluntarily. He was not arrested or 

handcuffed. He was placed in the backseat of an unmarked police 

car, a yellow two-door Ford Fairmont. The three men then drove 

to the Mode 0' Day store. 

Mavis Bean was not at the store. Warrington telephoned 

Pam Rains at her home and requested that they meet at a certain 

parking lot so Rains could see Jenkins for identification purposes. The detectives and Jenkins drove across town to meet 

Rains. The police vehicle arrived at the parking lot first. 

When Rains arrived, Warrington got out of the car and went to 

Rains' vehicle, which was parked 60 feet away. Warrington told 

Rains he had two men seated in his car and asked her if she 

could identify either man as the robber. Detective ~ernardi is 

6'1" tall and weighs 200 pounds. He was sitting in the front 

seat. Jenkins is 5'9" tall and weighs 150 pounds and was in 

the backseat of the two-door vehicle. Rains approached the 

police car. When she was about 25 feet away,she pointed at 

Jenkins and said: "That's him." Warrington asked Rains to 

walk closer to the car. When she was 8-10 feet away, she 

stated that she was positive that the man in the backseat was 
the robber. 

Jenkins was then told he was under arrest for the attempted 

robbery of the Feedlot. He was transported to the Great Falls 

Police Department and photographed there. While in custody, 

Jenkins gave a signed consent to search his apartment. A shortsleeve, open-collared shirt, off-white with aqua-green stripes, 

was found at the apartment. A photographic array containing 

Jenkins' photograph was shown to three of the witnesses to the 

robbery at the Mode OIDay and to the two customers of the Feedlot. Mavis Bean, Teresa Bean and Mrs. Robert Anderson all 

identified the photograph of Jenkins as the man who tried to rob 

the store. The Feedlot customers were unable to make a positive 

identification. Mavis Bean, Teresa Bean and Pam Rains also identified the shirt seized as the one worn by the man who attempted 

to rob them. Jenkins was then charged with the attempted 

robbery of the Mode OIDay. 

Jenkins entered pleas of "not guilty" to both counts and 

moved to suppress identification testimony on the grounds that 

it was the fruit of an illegal arrest and made pursuant to a 

suggestive one-man show up. The motion to suppress was denied. 

Jenkins was tried by jury on November 19-21, 1979. The jury 

returned verdicts of guilty on both counts. Jenkins was sentenced to 20 years imprisonment on each count, the sentences 

to run consecutively. He was also designated a dangerous offender, section 46-18-404, MCA, and a persistent felony offender, 

section 46-18-501, MCA, and found to be ineligible for parole 

or participation i-n the prison furlough program. 

Jenkins raises two issues on appeal: 

1. Was the identification testimony derived from the transportation of Jenkins for the purpose of exhibiting him to a 

witness suppressible because his Fourth Amendment right to be 

secure in his person against unreasonable seizures had been violated? 
2. Was the identification at the parking lot, and the 

subsequent identification at trial, suppressible because 

Jenkins' Fifth Amendment due process rights had been violated? 

Jenkins argues that although he was not formally arrested 

before Rains identified him, the police conduct was indistinguishable from arrest under the standard of Dunaway v. 

New York (1979), 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824. 

This contention is based upon the assertion that his journey with 

the officers was involuntary because, in view of all the circumstances surrounding the incident, a reasonable person would 

have believed that he was not free to leave. United States v. 

Mendenhall (1980), 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497. 

Jenkins further contends that because the pol-ice lacked probable 

cause for the "arrest", the fruits thereof should have been 

suppressed by the District Court. 

Not every confrontation initiated by a police officer must 

be based on probable cause. Terry v. Ohio (1968), 392 U.S. I-, 

20 L.Ed.2d 889, 88 S.Ct. 1868. To justify intrusion upon the 

constitutional rights of a citizen, "the police officer must be 

able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably 

warrant that intrusion." Terry, 392 U.S. at 21. ~etectives 

Warrington and Bernardi were able to point to specific and 

articulable facts which reasonably warranted the intrusion that 

Jenkins now questions. They were assigned to investigate the 

robberies of the Feedlot and the Mode O'Day. They were familiar 

with the descriptions of the robber. While in the Lobby Bar, 

just two days after the robberies, they observed a man who fit 

the description of the suspect. They approached the man. Warrington told him that there had been two attempted robberies 

two days before and that it was Warrington's opinion that the 
man resembled the person who had committed the crimes. When 

Warrington asked the man his name, he responded that it was 

Larry White. The man had no identification. Warrington patted 

the man in the waist area to determine if he had any weapons. 

Under the facts outlined above, the police conduct was 

reasonable and not violative of Jenkins' Fourth Amendment rights. 

The police must be allowed to approach and question persons 

who fairly resemble descriptions of perpetrators of criminal 

acts. While the pat down of Jenkins was intrusive, it was justified because it was limited to a search for weapons, Jenkins 

fit the description of the robber, and the robber had been 

armed with a knife and a gun. Police officers are not required 

to take unnecessary risks in the performance of their duties. 

"[Tlhere must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the pol-ice 

officer, where he has reason to believe that he is dealing 

with an armed and dangerous individual, regardless of whether 

he has probable cause to arrest." Terry, supra, 392 U.S. at 

27. The initial encounter between Jenkins and the detectives was 

lawful. 

Whether Jenkins' consent to accompany the detectives 

was voluntary is to be determined by the totality of the circumstances. Mendenhall, supra, 446 U.S. at 557. The ~istrict 

Judge had the opportunity to observe Warrington, Bernardi and 

Jenkins at the suppression hearing and evaluate their testimony. 

Warrington testified that after the pat down, he asked Jenkins 

if he would "mind going" with the officers. Warrington further 

testified that Jenkins replied that he did not mind because they 

had the wrong man. The rest of the detectives' testimony indicated that Jenkins was not handcuffed, further searched, or 

otherwise coerced until after Rains made her identification. 
When Jenkins asked the detectives if he was under arrest, they 

replied that he was not. Jenkins argues that his placement in 

the backseat of a two-door police vehicle was a restriction 

amounting to a seizure. However, the point is whether his 

presence there was voluntary. The fact that he was there is 

little or no evidence that he was in any way coerced. Mendenhall, supra, 446 U.S. at 559. We find that the record supports 

the District Court's conclusion that Jenkins agreed to accompany 

the officers and had not been "arrested" prior to his formal 

arrest upon identification by Rains. Jenkins was not illegally 

seized, and the identification testimony was not suppressible 

because obtained in violation of his Fourth Amendment rights. 

Jenkins' second issue concerns the identification by Rains 

in the parking lot and the subsequent identification of him at 

trial. He contends that he was denied due process because the 

show up was unnecessarily suggestive and conducive to irreparable misidentification. Stovall v. Denno (1967), 388 U.S. 

293, 302, 18 L.Ed.2d 1199, 1206, 87 S.Ct. 1967, 1972. The 

test we mustuse in resolving this issue is two-pronged. First, 

was the identification procedure impermissibly suggestive; and, 

if so, did it have such a tendency to give rise to a substantial 

likelihood of irreparable misidentification that to allow the 

witness to make an in-court identification would violate due 

process. Neil v. Biggers (1972), 409 U.S. 188, 198, 34 L.Ed.2d 

401, 410-1.1, 93 S.Ct. 375, 381. The procedure used to identify 

Jenkins was undoubtedly suggestive, and one-on-one confrontations have been widely and properly condemned by the United 

States Supreme Court. However, under the second prong of the 

test we employ, we must consider whether the totality of the 

circumstances gives rise to a substantial likelihood of misidentification. We must weigh the corruptive effect of the 
suggestive procedure against factors to be considered in 

evaluating the likelihood of misidentification. Manson v. 

~rathwaite (1977), 432 U.S. 98, 53 L.Ed.2d 140, 97 S.Ct. 2243. 

The factors are: (1) the opportunity of the witness to view 

the criminal at the time of the crime, (2) the witness' degree 

of attention, (3) the accuracy of the witness' prior description, 

(4) the level of certainty demonstrated by the witness at the 

confrontation, and (5) the length of time between the crime and 

the confrontation. Neil v. Biggers, supra, 409 U.S. at 199. 

Rains had a clear view of Jenkins before he entered the restaurant. She viewed him face-to-face across the counter, in good 

light, during the robbery attempt. He was the only other person in the restaurant, so her level of attention was high. With 

the exception of height, her description was accurate. The 

record reveals that she was quite certain that Jenkins was the 

man who tried to rob her, and only two days had passed between 

the crime and the confrontation. We cannot conclude that the 

identification of Jenkins by Rains was so unreliable as to 

constitute a violation of due process. Considering the totality 

of the circumstances, we hold that while the identification 

procedure was suggestive, it did not create a situation in 

which there was a substantial likelihood of misidentification. 

We affirm. 

We concur: 

4;&4, W,&\ Chief Justice