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, Broadwa t er County, suppressing certain 

evidence the state sought to introduce in the trial of defendant, 

Norman Benjamin Marshall, charged with possession of dangerous 

drugs. The evidence in question 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 is whether the 

search of the truck driven by defendant and the seizure of 

dangerous drugs found therein was lawful. 

On Saturday afternoon, October 16, 1976, Officer Walrod, 

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 fishing and 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 it might not hurt to check them out." There was no 

evidence any of the three occupants of the truck ever got near 

the river and the fish and game warden, Jim Bird, admitted he 

did not check them out for fishing. Warden Bird was dispatched 

by Walrod to check the truck and its occupants. 

Warden Bird testified that as he drove up the Indian Creek 

Road he approached the tsuek which was stopped on the road and 

thought Cathy Cross said, from his lip reading, "Here comes Jim 

Bird", Bird stated he thought they were all hiding something so 

he went up on a hill about 200 yards distant and looked at them 

through a 60 power spotting scope. In answer to questions from 
the trial judge, Bird stated he was looking in the rear window 

of the truck at the occupants from behind and admitted he could 

not see below the seat level. The significant fact of ~ird's 

testimony, relied upon by the state, is his statement: 

"* * * I saw Mr. Marshall get something from right 

here (indicating) and reach down underneath the 

vehicle or underneath the seat with his left hand, 

leaning towards Cathy Cross, and stuff it under the 

seat, and I informed Officer Walrod of this when I 

called him on the radio." 

Warden Bird admitted that all he saw was an arm movement 

and he could not see what the object was from his position. 

Further, Bird testified he saw the occupants smoking, but did 

not know whether it was a pipe, a cigarette or what, but as far 

as he 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. At that 

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 to a point near the intersection of the 

highway and the Indian Creek Road and stopped the vehicle. 

Walrod then went up to the truck, stated he detected an odor 

of marijuana and ordered Marshall to get out of the truck and 

empty his pockets. 

Before this Court concerns itself with the issue of the 

search and seizure, we face the threshold question which 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 State v. Lahr, - Mon t . , 560 P. 

2d 527, 34 St.Rep. 90 (1977). There, an officer was watching the 
defendant and two other persons through binoculars. As in the 

instant case, the officer was 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 did not know what it was. In - Lahr the observing officer 

radioed another officer who stopped the vehicle on an alleged 

driving violation. While making the arrest on the driving 

violation, the officer saw marijuana on the console of defendantb 

car and defendant was arrested for illegal possession of dangerout drugs. The defendant was never charged with a driving violation. Again, compare with the instant case. Here, Officer Walrod 

did not even look for a pretext. He stopped the car when it 

came down the Indian Creek Road and clearly this was before he 

could detect any smell of marijuana. This Court, in -2 Lahr held 

that neither officer had probable cause to arrest the defendant 

and stated: 

"The evidence required to establish guilt is not 

necessary to prove probable cause for an arrest, 

however good faith or mere suspicion on the part of 

arresting officers is not enough. * * * Furthermore, 

an arrest is not justified by what the subsequent 

search discloses ," 34 St .Rep. 93. 

Warden Bird in the instant case had only his suspicions, 

related heretofore. Officer Walrod, the arresting officer, 

was not present at the scene and had only the suspicions that 

Warden Bird told him 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 stop of the automobile and subsequent events were without 

probable cause, therefore the District Court' s order to suppress 

the evidence is affirmed. 
We Concur: 

\. - -_ i <d - - 

Chief Justice K