No. 13793 INTHE SUPREME COURT OF THE STATE OF MONTANA 1978

THE STATE OF MONTANA, Plaintiff and Respondent,

JIMMY RICHARD ROBEY, DAVID JOHN PETEREIAN, and JOAN SMITH TUTEN, Defendants and Appellants.

Appeal from: District Court of the Eleventh Jud.icia1 District, Honorable James M. Salansky, Judge presiding. Counsel of Record: For Appellants: Daley and Sherlock, Kalispell, Montana Patrick D. Sherlock argued, Kalispell, &Iontana For Respondent: Hon. Mike Greely, Atterney General, Helena, Montana Brenda Gilmer, Assistant Attorney General, argued,

Helena, Montana Patrick M. Sprinqer, County Attorney, Kalispell,

Montana Russell Jones, Deputy County Attorney, argued,

Kalispell

## , Montana

Submitted: January 20, 1978 Decided: 

# APR24

## 1978 ApP

## 3I

## 'I??? Filed:Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court.

Defendants Robey, Peterman and Tuten have filed consolidated appeals from their convictions in the District Court, Flathead County, for participating incard games within premises not licensed for gambling. Defendant Robey also appeals from convictions inDistrict Court, Flathead County, for operating an unlicensed premises for the purpose of conducting card games and for possession of illegal gambling paraphernalia. On themorning of December 1, 1976, an informer 

### telephoned the Flathead County sheriff's department and told Chief Detective Robert Soderstrom he suspected that "there would be 

### a game that evening atthe Stagecoach Inn." The informant stated defendant Jimmy Robey would host the poker game that evening upstairs atthe Stagecoach Inn. The informant also named various people who would participate in the game, allof whom the detectives knew as ','poker players, dealers, licensed establishment operators". Later thatday, the same informant telephoned Detective Soderstrom and reaffirmed his earlier assertion that a poker game was tobe held atthe Stagecoach Inn inSomers, Montana. In the second telephone call, the informant stated the game would startbetween 10:OO and 11:OO p.m. Shortly after the informant's second phone call, Detective Soderstrom summoned three other detectives to the sheriff's office tomeet with him and the Flathead County attorney. The group met atabout 9:00 to 10:OO p.m. The county attorney gave one of the detectives, Allan Harkins, $300 "flash money" tobe used to attempt tobuy into the supposed illegalpoker game.The detectives, accompanied by one uniformed officer, arrived 

### atthe Stagecoach Inn parking lotshortly aftermidnight on December 2, 1976. While the three detectives remained inthe parking lot, Detective Harkins entered the Stagecoach Inn where he assumed the roleof a high rolling Alaskan in search of some gambling thrills. Although upon arrival atthe Stagecoach Inn the detectives had seen approximately twenty cars in the parking lot, Detective Harkins observed only four people inthe downstairsbar area. Detective Harkins testified to hearing the sound of poker chips and voices emanating from an upstairs

room as he passed an unmarked stairway close to the entrance of the Inn on hisway tothe bar. After approximately ten minutes, Harkins leftthe bar to report his findings to Detective Soderstrom. Soderstrom directed Harkins toreturn tothe Inn and toattempt toenter the card game. Detective Harkins re-entered the Inn and told the barmaid that he 

### was anAlaskan looking for a poker game. Defendant Robey, the owner of the Stagecoach Inn, entered thebar area while Harkins 

### was telling his story to the barmaid, and told the barmaid "we don't play poker here." Harkins, who was inthe bar from approximately 12:15 to 1:45 a.m., observed a man twice carry trays of sixdrinks up the unmarked stairway and return with empty glasses. The detectives inthe parking lotobserved a man on two occasions move cars from the frontparking lotof the Inn to

some location behind thebar. About an hour and a half after their arrival atthe Stagecoach Inn parking lot, at approximately 1:45 a.m., the detectives and the uniformed officer entered the Inn, ran up the stairs, entered an upstairs doorway and arrested eleven people playing poker inan upstairs room. The detectives seized various checks, cash and I.O.U.'s, playing cards, poker chips, punch boards, and a feltcovered poker table, allof which were found in the upstairs room of the Inn atthe time of defendants1 arrest. The detectives also took numerous photographs of the gambling paraphernalia they found inthe room. The detectives had neither a warrant for defendants1arrestnor

a warrant to search the room. The Flathead County attorney filed two informations in DistrictCourt. In counts one and two of one information, the county attorney charged defendant Robey with operating

an unlicensed premises for the purpose of conducting card games and with possession of illegal gambling paraphernalia, both violations of Flathead County Gambling Commission Regulations, enacted pursuant to the Montana Card Games Act, section 62-701 etseq., R.C.M. 1947. In count three of the second information each of the defendants, including Robey,

was charged with participating incard games within premises licensed todispense intoxicatingbeverages but not licensed for gambling asrequired by Regulation 3.10, Rules and Regulations of the Flathead County Gambling Commission. Defendants submitted a motion todismiss based on a claim that the acts charged took place within a private residence, and 

### were thereby excluded by section 94-8-403, R.C.M. 1947, from the coverage of the Montana Card 

### Games Act

or local gambling regulations. The court denied the motion, ruling as a matter of law that Robeyls upstairs apartment

was not a private residence. The District Court also denied defendants1motion to suppress evidence seized inthe course of thewarrantless search of obey's apartment.obey 

### was tried before a jury and convicted of operating an unlicensed premises and possession of illegal gambling paraphernalia. In a separate nonjury trial, defendants Robey, Peterman and Tuten 

### weretried and convicted of participating ina card game on an unlicensed premises. Defendants raise the following specifications of error
on appeal: 1. 

### Did the detectives have probable cause to enter the upstairs room of the Stagecoach Inn, arrestdefendants, and search the room? 2. 

### Were thedetectives required by Montana statutory law orby theMontana orUnited StatesConstitutions to obtain an arrestwarrant prior todefendants' arrest? 3. Was 

### the room inwhich the poker game was conducted

a "private home" within themeaning of section 94-8-403, R.C.M. 

### 1947? 4. 

### Was defendant Robey subjected todouble jeopardy by being convicted of conducting a poker game on unlicensed premises and by subsequentlybeing convicted of participating inthe same game? 5. 

### Did the District

### Court commit numerous errors at trialdenying defendants a fair trial? In our view, the firstissue is

### dispositive of this appeal. United States constitutional requirements govern searches and arrestswithout warrants and furnish the

answers tothis issue. Here, 

### therewas neither probable cause toarrest these defendants nor to search the apartment under united States constitutional standards. These requirements for determining probable cause to search or arrestwithout a warrant



### are essentially the same. Spinelliv. United States, (1969),393 U.S. 410, 417, 89 S.Ct. 584, 21 L ed 2d 637. The probable cause requirements for a warrantless arrest, if not

more stringent, 

### " 

## * 

## * * surely cannot be less stringent than where an arrestwarrant 

### isobtained 

## * * * 

# ." Wong Sun v. United States, (1963), 371 U.S. 471, 479-80, 83 S.Ct. 407, 9 L ed 2d 441. This Court has noted that 

### " 

## * * * when hearsay information forms the justification for a finding of probable

cause

## * * * the two-pronged test setout inAguilar v. Texas, 378 U.S. 108, 

### 114, 84 S.Ct. 1509, 1514, 12 L ed 2d 723, must be applied and satisfied

## * * * 

# ." State ex 

### rel. Townsend v. DistrictCourt, (1975), 168Mont. 357, 360-61,

In invalidating a searchwarrant inSpinelliv. United States, supra, the United States Supreme Court applied the two-pronged testof Aguilar v. Texas, (1964), 378 U.S. 108, 84 S.Ct. 1509, 12L ed 2d 723, and firstconsidered the weight of the informant's tipapart from other allegations of probable cause: 

## "** * Though the affiant swore that his confidant was 'reliable,' he offered the magistrate no reason insupport of this conclusion.* 

## * *" Spinelli, 393 U.S. at416. 

### In this case Detective Soderstrom stated "Ihave gotten information [from the informant] thatwas reliable" and that he had known the informant for a number of years. Detective Soderstrom later testified he did not believe the informant's tipalone provided probable cause toarrest, and the State, ina brief tothe DistrictCourt, stated that the citizen who gave the tipswas 

### " 

## * * * not known tobe a reliable informant." It 

### is the second prong of the Aguilar test, however, which the arrestmost completely failed to satisfy.

### " 

## * * * The tipdoes not contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelliwas running a bookmaking operation. We arenot told how the FBI's source received his information--it 

### isnot alleged that the informant personally observed Spinelli atwork or that he had ever placed a betwith him. Moreover, if the informant came by the information indirectly, he did not explain why his sources 

### were reliable. 

## * * * " Spinelli, 393 U.S. at416. Here, Detective Soderstrom testified neither did he himself know how the informant acquired the information nor did the informant 

### tell him where he had acquired his information. Under such circumstances, there is no way of determining whether the informant was simply repeating a casual

rumor orwhether his tipwas based on personal observations. Nor did the informant describewith particularity the accused's activities on the night of the 

### arrest so as to permit corroboration of the details togive 

### rise to the inference that the informant had gained his information in

### a reliableway. In Draper v. United States, (1959), 358 U.S. 307, 79 S.Ct. 329, 3 L ed 2d 327, the informant reported the defendant had gone toChicago the day before by train and he would return toDenver by trainwith three ounces of heroin

on one of two specifiedmornings. The informant inDraper alsodescribed the clothes the defendant would be wearing and the bag he would be carrying, and stated that he habitually "walked 

### real fast". When the police investigation corroborated these details they could reasonably conclude the informant had personal knowledge of defendant's habits and criminal activity. In contrast, the informant inthis case stated merely that therewould be a poker game hosted by Robey upstairs at the Stagecoach Inn startingbetween 10:OO and 11:OO p.m. It 

### is not particularly surprising that Robey would be attheInn since he owned the Inn and lived upstairs. The police arrived atthe Inn too latetocorroborate the alleged starting time. The only information gathered in the police investigationwhich was more indicative of a poker game than merely a private party was Detective Harkins' statement that he became suspicious when he heard what he thought tobe the sound of poker chips being shuffled upstairs 

### as he entered thebar. Given the fact the door tothe upstairs apartment where defendants 

### wereplaying cards 

### is approximately 30 feet from the bottom of the stairs, this evidence loses much of 

### itsvitality. The weight of the poker chips testimony under these circumstances, 

### ishardly enough togive rise toprobable

cause toenter the apartment and arrest defendants. The actions of the arresting officers indicate they themselves were highly doubtful therewas probable cause to enter Robey's room and arrest defendants. The officers quitecorrectly did not believe therewas probable cause to arrest as is evidenced by Detective Soderstrom's testimony that he did not feel the informant's tipprovided probable

cause toarrest. Nor did the arresting officers by their actions appear tobelieve therewas probable cause to arrest when Detective Harkins returned to the parking lot, after having been inthe bar for about tenminutes, and related to the detectives that therewere few people in the downstairs bar area, but he had heard what he thought tobe the sound of poker chips and had seen drinks being carried upstairs. Detective Soderstrom, upon receiving this information, merely instructed Detective Harkins toreturn to the bar and attempt toenter a poker game. Detective h ark ins re-entered the bar, and he remained there inexcess of an hour--without reporting any additional observations to the arrestingofficers--in an unsuccessful attempt tojoin the supposed card game. The arrestingofficers themselves, while sitting inthe parking lotobserving the bar, saw nothing thatwould add to probable cause. The State emphasizes the officers' observation of a man who twice moved cars from the front lotto the

rear of the bar. This, however, 

### ishardly an action in which poker players rather than party-goers aremore likely to engage. It appears from the evidence that the officers stormed the 

### stairs todefendant Robey's apartment and arrested defendants at1:45 a.m., not because of an accumulation of factors creating probable cause, but merely because the bar would soon close and the doors would then be locked. 

## "** * mere unconfirmed suspicion 

### is not the criteriaupon which probable cause 

### isbased. Something more was needed, and even the agents recognized this.* 

## * 

## *" United Statesv. Jackson, (6thCir. 1976), 533 F.2d 314, 319. Nor did the factthe police officers saw gambling paraphernalia and a card game inprogress as they entered defendant Robey's room provide probable cause tojustify an otherwise illegal arrest, search and seizure. "Thus the Governiient 

### is obliged tojustify the 

### arrest by the search and atthe same time tojustify the searchby the 

### arrest. This 

### willnot do. An officer gaining access toprivate living quarters under color of his office and of the law which he personifiesmust then have some valid basis inlaw for the intrusion. Any other rule would undermine 'the right of the people to be secure intheir persons, houses, papers, and effects,' and would obliterate one of themost fundamental distinctionsbetween our form of government, where officers are under the law, and the police-state where they 

### are the law." Johnson v. United States, (1948), 333 U.S. 10, 16-17, 68 S.Ct. 367, 92 L.ed. 436.This Court has previously applied the same analysis of United Statesconstitutional requirements ina case involving

an illegal entry without a search warrant into a private residence where contraband was discovered. "As an entry is lawful orunlawful atthe 

### time it 

### ismade, the subsequent search has the same legal character as the entrywhich made it possible. (Citationomitted.) Thus where, as here, the entry into defendant's residencewas unlawful, the searchwas likewise unlawful as 

### it was the product of the illegal entry. And a search 

### is lawful orunlawful when 

### it startsand does not change that character from 

### its success. (Citationomitted.) Thus a search unlawful in its inception 

### isnot validated by what it turns up. (Citationomitted.) 

## * 

## * * " Statev. Langan, (1968), 151Mont. 558, 567, 445 P.2d 565. Because there

### was no probable cause either to search without a warrant or to

### arrest defendants without a warrant, the arrests and seizure of the evidence incident tothe arrestsviolated theFourth Amendment, United StatesConstitution. Accordingly, the evidence seized should have been suppressed, and 

### its introduction at

### trial constituted reversible error. Absent the evidence illegally seized, there

### was insufficient evidence to support the convictions. Thus a new trial cannot be granted, and the casemust be dismissed. Statev. Langan, supra. In view of our holding, the remaining specifications of

error need not be discussed astheir determination would not affect the result inthis case. Reversed and dismissed. 

# 2W-k Chief Justice 

# b?@d&

Mr. Justice John C, Sheehy ~ustices did not participate. in this 

### -10- case.

### Mr. John Conway Harrison dissenting: 

### I dissent. Here the informant gave Detective Soderstrom

'1

### the names of kno-m poker players, dealers and licensed establishment operators" who were to later participate inthe game atthe Stagecoach Inn. This added to the fact that on the same call the informant told the police the game was on for that night, plus the arrival of the cars atthe inn and the later sound of poker chips coming from the second floor, allare inmy opinion sufficient cause to sustain the convictions

# . In Draper 

### v. United States (1959), 358 

### U.S. 307, 313, 

### 79 S.Ct. 329, 3

### L ed 2d 327, 332, the Court speaking towhether there was probable cause noted: 

# "*** Probable cause existswhere 'the facts, and circumstances within [the arresting officers

# '] 

### knowledge and of which they had reasonable trustworthy information [are] sufficient in themselves towarrant a man of reasonable caution in the belief that' an offense has been or 

### isbeing committed." 

### I would affirm the convictions.