No. 13739 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

STATE OF MONTANA, Plaintiff and Appellant,
VS

# . NORMAN BENJAMIN MARSHALL, Defendant and Respondent.
Appeal from: District Court of the First Judicial District, Honorable Peter G. Meloy, Judge presiding. Counsel of Record: For Appellant: Hon. Mike Greely,Attorney General, Helena,Montana Thomas Budewitz, County Attorney, Townsend, Montana Robert Yunck argued, Cut Bank, Montana For Respondent: Hooks and Sherlock, Townsend, Montana Patrick F. Hooks argued, Townsend, Montana
Submitted: September 15, 1977

-. Decided:

### h; v - Filed:

### Mr. Justice Gene B. Daly delivered the Opinion of the Court.
The state of Montana brings this appeal from an order of the District Court, BroadwaterCounty, suppressing certain evidence the state sought to introduce in the trial of defendant, Norman Benjamin Marshall, charged with possession of dangerous drugs. The evidence inquestion 

### is a container of marijuana seized from under the seat of a truck driven by defendant. The order suppressing the evidence did not specify findings of fact
or conclusions of law, and therefore the issue 

### iswhether the search of the truck drivenby defendant and the seizure of dangerous drugs found thereinwas lawful. On Saturday afternoon, October 16, 1976, OfficerWalrod, driving on Highway 

### 287 north of Townsend, Montana, saw a truck driven by Marshall with two companions, Larry Wing and Miss Cathy Cross. Walrod knew Wing did some fishingand they were headed toward the Missouri River. He then radioed the fish and game warden, because he "thought they might be doing some fishing and itmight not hurt tocheck them out." There was no evidence any of the three occupants of the truck ever got near the river and the fishand game warden, JimBird, admitted he didnot check them out for fishing. Warden Bird was dispatched by Walrod to check the truck and 

### its occupants. Warden Bird testified that ashe drove up the Indian Creek Road he approached the 

### tsuek which was stopped on the road and thought Cathy Cross said, from his lipreading, "Here comes Jim Bird", Bird statedhe thought they were allhiding something so he went up on a hillabout 

### 200 yards distant and looked atthem through a 

### 60 power spotting scope. In answer toquestions fromthe trialjudge, Bird statedhe was looking in the rearwindow of the truck atthe occupants frombehind and admitted he could not seebelow the seat level. The significant fact of ~ird's testimony, relied upon by the state, ishis statement: 

### "*

# *

# * I saw Mr. Marshall get something from right here (indicating) and reach down underneath the vehicle or underneath the seatwith his lefthand, leaning towards Cathy Cross, and stuff it under the seat, and I informed OfficerWalrod of thiswhen I calledhim on the radio." Warden Bird admitted that allhe saw was an 

### arm movement and he could not seewhat the objectwas from his position. Further, Bird testified he saw the occupants smoking, but did not know whether it was a pipe, 

### a cigarette orwhat, but as far
ashe knew it could have been tobacco. Walrod testified Bird radioed him about the driver leaning over and putting something under the seat and that they were smoking something. Atthat time Walrod did not have any idea how far away Bird was from the vehicle. There were no reports of any fishing violation. Acting solely on the information supplied by radio from Bird, Walrod drove toa point near the intersection of the highway and the Indian Creek Road and stopped the vehicle. Walrod thenwent up to the truck, statedhe detected an odor of marijuana and ordered Marshall toget out of the truck and empty hispockets. Before this Court concerns itself with the issue of the search and seizure, we face the threshold questionwhich is: Was the ''stop" of the defendant supported by probable cause and thus reasonable and therefore constitutional? A recent decision of this Court which is very close in point of fact and law 

### is Statev. Lahr, 

# - Mont

# . , 560 

### P. 2d 527, 

### 34 St.Rep. 

### 90 (1977). There, an officerwas watching thedefendant and two other persons through binoculars. As inthe instant case, the officerwas aware of the individual's reputation
as a known drug user, The officer testified a package appeared hands to chang& he had no idea what kind of package, only that the circumstances were somewhat suspicious and he saw something, but he didnot know what itwas. In 

# - Lahr the observing officer radioed another officerwho stopped the vehicle on an alleged drivingviolation. While making the arrest on the driving violation, the officer saw marijuana on the console of defendantb
car and defendant was arrested for illegalpossession of dangerout drugs. The defendant was never charged with a driving violation. Again, compare with the instant case. Here, OfficerWalrod didnot even look for a pretext. He stopped the carwhen it
came down the Indian Creek Road and clearly thiswas before he could detect any smell of marijuana. This Court, in -2 Lahr held thatneither officerhad probable cause to arrest the defendant and stated: "The evidence required toestablishguilt 

### isnot necessary to prove probable cause for an arrest, however good faith or mere suspicion on the part of arresting officers 

### isnot enough. 

# ** * Furthermore, an arrest 

### isnotjustified by what the subsequent search discloses," 

### 34 St.Rep. 

### 93. Warden Bird inthe instant case had only his suspicions, relatedheretofore. OfficerWalrod, the arrestingofficer,
was not present atthe scene and had only the suspicions that Warden Bird toldhim over the radio. Thereafter, based solely
on Warden Bird's conjecture and speculation the automobile being driven by defendant Marshall down a country road on a Saturday afternoon was stopped, The stopof the automobile and subsequent events were without probable cause, therefore the District Court'

### s order to suppress the evidence 

### isaffirmed.We Concur:

\. - -_i <d - - Chief Justice K