No. 80-213 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

THE STATE OF MONTANA, Plaintiff and Respondent,

VS

# . JAMES CLIFTON JENKINS,Defendant and Appellant.

Appeal from: DistrictCourt 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 

# 10

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

James Clifton Jenkins was charged inAugust 1979 with two counts of robbery. Hewas tried by jury inthe DistrictCourt 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 torun consecutively. He appeals from both convictions. Pam Rains, manager of theFeedlot Restaurant inGreat Falls,

was alone inthe restaurant and taking a break at

### 4:00 p.m. on August 18, 1979. She noticed a man outside who was looking through the frontwindow 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 allthemoney from the register and give 

### it tome." The

man placed a gun on the counter. Two people entered the restaurantbefore Rains gave theman 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 shortreceding hair of a sandy-grey color, wearing tan pants and an open-collared shirtwith horizontal white and green stripes. A few minutes after the attempted robbery of the Feedlot,

a man entered the Mode OIDay store inGreat Falls. The store

was not open for business, butMavis 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 leftthe store. Mavis Bean described the man asCaucasion, 5'10" to 6'l", 37 to 40 years of age, with lightreceding hair, and wearing old denim pants and astriped T-shirt. Teresa Bean described the man asbeing 6' tall, slender, clean shaven, fair-complected, with lightbrown hair and a receding hairline and wearing jeans and a white sweater with short sleeves and aqua stripes. Great Fallspolice detectives Dave Warrington and Eugene Bernardi were involved inthe robbery investigation. On August 20 

### at 11:30 a.m., they entered the Lobby Bar inGreatFalls and noticed James Clifton Jenkins. Warrington approached Jenkins and told him he fitthe description of a robbery suspect. Jenkins had no identificationand gave his name asLarry White. Jenkins was patted down inthe waist area and asked if he would accompany the officers so thata witness could see him. Jenkins went with the officers voluntarily. Hewas not arrested or handcuffed. He was placed inthe backseat of an unmarked police car, a yellow two-door Ford Fairmont. The threemen then drove to the Mode 0'Day store. Mavis Bean 

### was not atthe store. Warrington telephoned Pam Rains ather home and requested that they meet ata certain parking lot so Rains could seeJenkins for identificationpurposes. The detectives and Jenkins drove across town to

### meet Rains. The police vehicle arrived atthe parking lotfirst. When Rains arrived, Warrington got outof the car and went to Rains' vehicle, which was parked 60 feetaway. Warrington told Rains he had two men seated inhis car and asked her if she could identify eitherman as the robber. Detective ~ernardi 

### is 6'1" tall and weighs 200 pounds. Hewas sitting inthe front seat. Jenkins is 5'9" tall and weighs 150pounds 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 feetaway, she stated that she was positive that the man inthe backseat wasthe 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 incustody, Jenkins gave a signed consent to search his apartment. A shortsleeve, open-collared shirt, off-white with aqua-green stripes,



### was found atthe apartment. A photographic array containing Jenkins' photograph was shown to three of the witnesses to the robbery atthe Mode OIDayand to the two customers of the Feedlot. Mavis Bean, Teresa Bean and 

### Mrs. Robert Anderson all identified the photograph of Jenkins as theman who tried torob the store. The Feedlot customers were unable tomake a positive identification. Mavis Bean, Teresa Bean and Pam Rains also identified the shirt seized as the one worn by theman who attempted torob them. Jenkins was then charged with the attempted robbery of the Mode OIDay. Jenkins entered pleas of "notguilty" toboth counts and moved to suppress identification testimony on the grounds that 

### itwas the fruitof an illegal arrestand made pursuant to a suggestive one-man show up. The motion to suppress

### was denied. Jenkins was triedby jury on November 19-21, 1979. The jury returned verdicts of guiltyon both counts. Jenkins was sentenced to 20 years imprisonment on each count, the sentences torun consecutively. Hewas also designated 

### a dangerous offender, section 46-18-404, MCA, and a persistent felony offender, section 46-18-501, MCA, and found tobe ineligible for parole

or participation i-nthe prison furlough program. Jenkins raises two issueson appeal: 1. Was the identificationtestimony derived from the transportation of Jenkins for the purpose of exhibiting him to a witness suppressiblebecause his Fourth Amendment right tobe

secure inhisperson againstunreasonable seizures had been violated?2. Was the identification atthe parking lot, and the subsequent identification attrial, suppressible because Jenkins' FifthAmendment due process rightshad been violated? Jenkins argues that although he was not formally arrested before Rains identified him, the police conduct was indistinguishable from arrestunder the standard of Dunaway v. 

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

### isbased upon the assertion that his journey with the officerswas involuntarybecause, inview of allthe circumstances surrounding the incident, a reasonable person would have believed thathe was not free to leave. United Statesv. Mendenhall (1980), 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497. Jenkins further contends thatbecause the pol-icelacked probable

cause for the "arrest", the fruits thereof should have been suppressed by the DistrictCourt. Not every confrontation initiatedby a police officermust be based on probable cause. Terry v. Ohio (1968), 392 U.S. 

### I-, 20 L.Ed.2d 889, 88 S.Ct. 1868. To justify intrusionupon the constitutional rights of a citizen, "the police officer must be able topoint to specific and articulable factswhich, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at21. ~etectives Warrington and Bernardi 

### were able topoint to specific and articulable factswhich 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 inthe Lobby Bar, just two days after the robberies, they observed a man who fit the descriptionof the suspect. They approached theman. Warrington told him that there had been two attempted robberies two days before and that

### itwas Warrington's opinion that theman resembled the person who had committed the crimes. When Warrington asked the man his name, he responded that 

### itwas Larry White. The man had no identification. Warrington patted theman inthe

### waistarea to determine if he had any weapons. Under the facts outlined above, the police conduct was reasonable and not violative of Jenkins' FourthAmendment rights. The policemust be allowed toapproach and question persons who fairlyresemble descriptions of perpetrators of criminal acts. While the pat down of Jenkins was intrusive, 

### itwas justifiedbecause itwas limited to a search for weapons, Jenkins fitthe description of the robber, and the robber had been armed with a knife and a gun. Police officersarenot required to take unnecessary risks inthe performance of their duties. "[Tlheremust be a narrowly drawn authority topermit a reasonable search forweapons for the protection of the pol-ice officer, where he has reason tobelieve that he 

### isdealing with an armed and dangerous individual, regardless of whether he has probable cause toarrest." 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 tobe determined by the totalityof the circumstances. Mendenhall, supra, 446 U.S. at557. The 

### ~istrict Judge had the opportunity to observe Warrington, Bernardi and Jenkins atthe 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 thatJenkins replied thathe 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 thathe 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 

### iswhether his presence therewas voluntary. The fact that he was there 

### is littleor no evidence that he was inany way coerced. Mendenhall, supra, 446 U.S. at559. We find that the record supports the DistrictCourt's conclusion thatJenkins agreed to accompany the officers and had not been "arrested" prior to his formal arrestupon identificationby Rains. Jenkins was not illegally seized, and the identification testimony was not suppressible because obtained inviolation of his Fourth Amendment rights. Jenkins' second issue concerns the identificationby Rains inthe parking lotand the subsequent identificationof him at trial. He contends that he was denied due process because the show up was unnecessarily suggestive and conducive to 

### irreparablemisidentification. Stovall v. Denno (1967), 388 U.S. 293, 302, 18 L.Ed.2d 1199, 1206, 87 S.Ct. 1967, 1972. The 

### test we mustuseinresolving this issue 

### is two-pronged. First,


### was the identificationprocedure impermissibly suggestive; and, if so, did 

### ithave such a tendency to give 

### rise to a substantial likelihood of irreparable misidentification that to allow the witness tomake an in-court identification would violatedue process. Neilv. 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 StatesSupreme 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 thesuggestive procedure against factors tobe 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 factorsare: (1)the opportunity of the witness toview the criminal atthe time of the crime, (2) thewitness' degree of attention, (3) the accuracy of the witness' prior description, (4) the level of certainty demonstrated by the witness atthe confrontation, and (5) the length of time between the crime and the confrontation. Neil v. Biggers, supra, 409 U.S. at199. Rains had a clear view of Jenkins before he entered the restaurant. She viewed him face-to-face across the counter, ingood light, during the robbery attempt. He was the only other person inthe restaurant, so her level of attentionwas high. With the exception of height, her description was accurate. The record reveals that she was quite certain thatJenkins was the

man who tried to rob her, and only two days had passed between the crime and the confrontation. Wecannot conclude that the identificationof Jenkins by Rains was so unreliable as to constitute a violationof due process. Considering the totality of the circumstances, we hold thatwhile the identification procedure was suggestive, 

### itdid not createa situation in which therewas a substantial likelihood of misidentification. We affirm.

We concur: 

# 4;&4, 

# W,&\ Chief Justice