No. 13793 

IN THE 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: APR 24 1978 

ApP 3 I '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 in card games 

within premises not licensed for gambling. Defendant Robey 

also appeals from convictions in District Court, Flathead 

County, for operating an unlicensed premises for the purpose 

of conducting card games and for possession of illegal 

gambling paraphernalia. 

On the morning 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 at the Stagecoach Inn." The 

informant stated defendant Jimmy Robey would host the poker 

game that evening upstairs at the Stagecoach Inn. The 

informant also named various people who would participate in 

the game, all of whom the detectives knew as ','poker players, 

dealers, licensed establishment operators". Later that day, 

the same informant telephoned Detective Soderstrom and 

reaffirmed his earlier assertion that a poker game was to be 

held at the Stagecoach Inn in Somers, Montana. In the 

second telephone call, the informant stated the game would 

start between 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 to meet with him and the Flathead County 

attorney. The group met at about 9:00 to 10:OO p.m. The 

county attorney gave one of the detectives, Allan Harkins, 

$300 "flash money" to be used to attempt to buy into the 

supposed illegal poker game. 
The detectives, accompanied by one uniformed officer, 

arrived at the Stagecoach Inn parking lot shortly after midnight on December 2, 1976. While the three detectives 

remained in the parking lot, Detective Harkins entered the 

Stagecoach Inn where he assumed the role of a high rolling 

Alaskan in search of some gambling thrills. 

Although upon arrival at the Stagecoach Inn the detectives had seen approximately twenty cars in the parking lot, 

Detective Harkins observed only four people in the downstairs bar 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 his way to the bar. After approximately ten 

minutes, Harkins left the bar to report his findings to 

Detective Soderstrom. Soderstrom directed Harkins to return 

to the Inn and to attempt to enter the card game. 

Detective Harkins re-entered the Inn and told the 

barmaid that he was an Alaskan looking for a poker game. 

Defendant Robey, the owner of the Stagecoach Inn, entered 

the bar area while Harkins was telling his story to the 

barmaid, and told the barmaid "we don't play poker here." 

Harkins, who was in the bar from approximately 12:15 to 

1:45 a.m., observed a man twice carry trays of six drinks up 

the unmarked stairway and return with empty glasses. 

The detectives in the parking lot observed a man on two 

occasions move cars from the front parking lot of the Inn to 

some location behind the bar. About an hour and a half 

after their arrival at the 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 in 
an upstairs room. The detectives seized various checks, 

cash and I.O.U.'s, playing cards, poker chips, punch boards, 

and a felt covered poker table, all of which were found in 

the upstairs room of the Inn at the time of defendants1 

arrest. The detectives also took numerous photographs of 

the gambling paraphernalia they found in the room. The 

detectives had neither a warrant for defendants1 arrest nor 

a warrant to search the room. 

The Flathead County attorney filed two informations in 

District Court. 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 et seq., R.C.M. 1947. In count three of the 

second information each of the defendants, including Robey, 

was charged with participating in card games within premises 

licensed to dispense intoxicating beverages but not licensed 

for gambling as required by Regulation 3.10, Rules and 

Regulations of the Flathead County Gambling Commission. 

Defendants submitted a motion to dismiss 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 

defendants1 motion to suppress evidence seized in the course 

of the warrantless 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 were tried and convicted of participating in a 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, arrest defendants, and 

search the room? 

2. Were the detectives required by Montana statutory 

law or by the Montana or United States Constitutions to 

obtain an arrest warrant prior to defendants' arrest? 

3. Was the room in which the poker game was conducted 

a "private home" within the meaning of section 94-8-403, 

R.C.M. 1947? 

4. Was defendant Robey subjected to double jeopardy by 

being convicted of conducting a poker game on unlicensed 

premises and by subsequently being convicted of participating in the same game? 

5. Did the District Court commit numerous errors at 

trial denying defendants a fair trial? 

In our view, the first issue is dispositive of this 

appeal. United States constitutional requirements govern 

searches and arrests without warrants and furnish the 

answers to this issue. 

Here, there was neither probable cause to arrest these 

defendants nor to search the apartment under united States 

constitutional standards. These requirements for determining probable cause to search or arrest without a warrant 

are essentially the same. Spinelli v. 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 arrest warrant is obtained * * * ." 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 set out in Aguilar 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. District Court, (1975), 168 Mont. 357, 360-61, 

In invalidating a search warrant in Spinelli v. United 

States, supra, the United States Supreme Court applied the 

two-pronged test of Aguilar v. Texas, (1964), 378 U.S. 108, 

84 S.Ct. 1509, 12 L ed 2d 723, and first considered the 

weight of the informant's tip apart from other allegations 

of probable cause: 

"* * * Though the affiant swore that his 

confidant was 'reliable,' he offered the 

magistrate no reason in support of this 

conclusion.* * *" Spinelli, 393 U.S. at 416. 

In this case Detective Soderstrom stated "I have gotten 

information [from the informant] that was reliable" and that 

he had known the informant for a number of years. Detective 

Soderstrom later testified he did not believe the informant's 

tip alone provided probable cause to arrest, and the State, 

in a brief to the District Court, stated that the citizen 

who gave the tips was " * * * not known to be a reliable 

informant." 

It is the second prong of the Aguilar test, however, 

which the arrest most completely failed to satisfy. 
" * * * The tip does not contain a sufficient 

statement of the underlying circumstances from 

which the informer concluded that Spinelli was 

running a bookmaking operation. We are not 

told how the FBI's source received his information--it is not alleged that the informant 

personally observed Spinelli at work or that 

he had ever placed a bet with him. Moreover, 

if the informant came by the information 

indirectly, he did not explain why his sources 

were reliable. * * * " Spinelli, 393 U.S. at 416. 

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 or whether his tip was based on personal observations. 

Nor did the informant describe with particularity the 

accused's activities on the night of the arrest so as to 

permit corroboration of the details to give rise to the 

inference that the informant had gained his information in a 

reliable way. 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 to Chicago the day before by train and he 

would return to Denver by train with three ounces of heroin 

on one of two specified mornings. The informant in Draper 

also described 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 in this case stated merely 

that there would be a poker game hosted by Robey upstairs at 

the Stagecoach Inn starting between 10:OO and 11:OO p.m. It 

is not particularly surprising that Robey would be at the 
Inn since he owned the Inn and lived upstairs. The police 

arrived at the Inn too late to corroborate the alleged 

starting time. The only information gathered in the police 

investigation which 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 to be the 

sound of poker chips being shuffled upstairs as he entered 

the bar. Given the fact the door to the upstairs apartment 

where defendants were playing cards is approximately 30 feet 

from the bottom of the stairs, this evidence loses much of 

its vitality. The weight of the poker chips testimony under 

these circumstances, is hardly enough to give rise to probable 

cause to enter the apartment and arrest defendants. 

The actions of the arresting officers indicate they 

themselves were highly doubtful there was probable cause to 

enter Robey's room and arrest defendants. The officers 

quite correctly did not believe there was probable cause to 

arrest as is evidenced by Detective Soderstrom's testimony 

that he did not feel the informant's tip provided probable 

cause to arrest. Nor did the arresting officers by their 

actions appear to believe there was probable cause to arrest 

when Detective Harkins returned to the parking lot, after 

having been in the bar for about ten minutes, and related to 

the detectives that there were few people in the downstairs 

bar area, but he had heard what he thought to be the sound 

of poker chips and had seen drinks being carried upstairs. 

Detective Soderstrom, upon receiving this information, 

merely instructed Detective Harkins to return to the bar and 

attempt to enter a poker game. Detective h ark ins re-entered 

the bar, and he remained there in excess of an hour--without 

reporting any additional observations to the arresting 
officers--in an unsuccessful attempt to join the supposed 

card game. 

The arresting officers themselves, while sitting in the 

parking lot observing the bar, saw nothing that would add to 

probable cause. The State emphasizes the officers' observation of a man who twice moved cars from the front lot to the 

rear of the bar. This, however, is hardly an action in 

which poker players rather than party-goers are more likely 

to engage. It appears from the evidence that the officers 

stormed the stairs to defendant Robey's apartment and arrested defendants at 1:45 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 criteria upon 

which probable cause is based. Something more was needed, 

and even the agents recognized this.* * *" United States v. 

Jackson, (6th Cir. 1976), 533 F.2d 314, 319. 

Nor did the fact the police officers saw gambling 

paraphernalia and a card game in progress as they entered 

defendant Robey's room provide probable cause to justify an 

otherwise illegal arrest, search and seizure. 

"Thus the Governiient is obliged to justify 

the arrest by the search and at the same 

time to justify the search by the arrest. 

This will not do. An officer gaining access to private living quarters under color 

of his office and of the law which he personifies must then have some valid basis 

in law for the intrusion. Any other rule 

would undermine 'the right of the people to 

be secure in their persons, houses, papers, 

and effects,' and would obliterate one of 

the most fundamental distinctions between 

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 States constitutional requirements in a case involving 

an illegal entry without a search warrant into a private 

residence where contraband was discovered. 

"As an entry is lawful or unlawful at the 

time it is made, the subsequent search has the 

same legal character as the entry which made it 

possible. (Citation omitted.) Thus where, as 

here, the entry into defendant's residence was 

unlawful, the search was likewise unlawful as it 

was the product of the illegal entry. And a 

search is lawful or unlawful when it starts and 

does not change that character from its success. 

(Citation omitted.) Thus a search unlawful in 

its inception is not validated by what it turns 

up. (Citation omitted.) * * * " State v. Langan, 

(1968), 151 Mont. 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 to the 

arrests violated the Fourth Amendment, United States Constitution. 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 case must be dismissed. State v. 

Langan, supra. 

In view of our holding, the remaining specifications of 

error need not be discussed as their determination would not 

affect the result in this 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 in the game at the 

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 at the inn and the later sound of 

poker chips coming from the second floor, all are in my 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 to whether 

there was probable cause noted: 

"* * * Probable cause exists where 'the facts, and 

circumstances within [the arresting officers ' ] 

knowledge and of which they had reasonable trustworthy information [are] sufficient in themselves 

to warrant a man of reasonable caution in the 

belief that' an offense has been or is being committed." 

I would affirm the convictions.