No. 14644 IN

### THE SUPREME

### COURT OF

### THE 

### STATE OF MXPANA 1979



### STATE OFMXTANA, Plaintiff and Respondent,

-vsJULIAN RIBERA, Defendant and Appellant.

Appeal 

### £ram: DistrictCourt of theWlfthJudicialDistrict, Honorable B. W. Thamas, Judge presiding. Counsel of Record: For Appellant: Wrrison, EXtien and Barron, 

### Havre, Mntana 

### Kathleen H. Richardson argued, Hawe, Wntana For Respondent: Hon. Mike Greely, Attorney 

### General, Helena, Wntana Chris D. 

### -ten argued, Assistant Attorney 

### General,

Helena, Wntana Ronald Smith, CountyAttorney, 

### argued, Havre, mntana

Sdxdtted: June 

### 4, 1979

- - -.,,2
,

# . Filed: 

# yJ!-- 

## -Mr. Justice John Conway Harrison delivered the Opinion of the Court. Defendant, Julian Ribera, Jr., appeals from his conviction of one count of possession of dangerous drugs and one count of attempted 

### sale of dangerous drugs following a nonjury trial inthe DistrictCourt of the Twelfth Judicial 

### District, HillCounty, the Honorable B. W. Thomas presiding. On February 

### 24, 1978, 

### James Owens, assistant principal of Havre High School, received a note from his secretary which she had just received from a student. The student had written the following description along with the last four digits of a license number on the paper: "short dark-skinned blue coat shoulder length hair beard & mustache. peachy dark. 3759" The secretarywrote the following under the student's description: "Mr. Owens-- A student just informed 

### me that he saw 

### a man trying to 

### sell drugs tokids inthe

### west parking lot. 

### B.P." Owens went tothe doorway of the

### west foyer of the school where he could 

### see the parking lot. He saw a man who fit the description on the note talking to some students. He also saw a car inthe parking lot. The 

### last four digits of the licensematched those on the note. Owens returned tohis officeand called the Havre Police Department. He identified himself, reported the incident, and asked that police be sent tothe school. After reporting the incident he returned to the 

### west foyer of the building and continued towatch. After a short

### time the suspect got into the car along with two companions, and they drove away. Owens again

### called the police totell 

### them the suspect

### was leaving ina

carwith two others. This information was relayed by radio to the two officerswho were responding to the call. The officersmet the car along the way and stopped it. A 

### pat-down search 

### wasmade of defendant and five "Baggies" of what later proved tobe marijuana were found ina pocket of his coat. The three were taken to the police station while one of the officers followed in their car. At

### the station the police received the oral and written consent of the owner and driver of the car, Kenneth Berger, to search his car. The subsequent search yielded an additional fiveBaggies of marijuana which had been placed in a brown paper bag inthe backseat. Defendant's 

### arrest and the subsequent search 

### were accomplished without a warrant. He 

### filed a motion to suppress as evidence attrialboth the marijuana seized from his coat pockets and that seized from the backseat of Berger's car. Following an evidentiary hearing, the court entered findings of fact, conclusions of law and an order denying defendant's motion. Defendant renewed hismotion to suppress attrial and alsomoved for an acquittal on Count I1 

### charging him with attempted sale. This lattermotion, which was also denied, alleged that the evidence presented by the Statewas insufficient to show a directunequivocal actcommitted by defendant toward the commission of a sale. 

### The State

### had presented three high school students aswitnesses. Kathy Barlow testified: "He asked us if 

### wewanted tobuy a bag." She further testified that although defendant did not explain hismeaning, she understood him tomean a bag of marijuana. He

### did not show her themarijuana. The testi-

### mony of the other high school students was substantially similar. 

### No one testified that they saw any marijuana at the school. Defendant presents three issues forreview which can be stated as follows: 1. 

### Whether the 

### arrest of defendant 

### was supported by probable cause? 2. 

### Whether the subsequently seized evidence

### was the fruitof an illegal arrest? 3. 

### Whether defendant committed a direct 

### unequivocal act sufficient to support his conviction of the crime of attempted saleof dangerous drugs?

PROBABLE 

### CAUSE Defendant argues that the officers did not have probable cause to stop the automobile inwhich defendantwas riding because when Owens called thepolice, he did not identify the source of his information and the dispatcher asked him no questions. The Stateresponds by arguing that thepolicewere 

### informed of the "underlying circumstances" giving rise 

### to Owens' tiptoan extent sufficient to support a finding of probable cause. Both parties cite Owens' testimony from the transcript of the suppression hearing regarding the information he gave thepolice during his firstcall: "I 

### said I 

### have information from one of my students thathe was approached inthe west

### parking lotto buy drugs. Here is 

### the description of the individual. Here is 

### the license number of the car. I 

### just saw this individual out there. Ask 

### you to getdown here as fastas 

### possible."Officer Fisher, the dispatcher who received the call, gave somewhat 

### less extensive testimony regarding this same exchange: "Q. And can you statewhat 

### Mr. Owens said toyou? A. Yes. He told me that there

### was an older model car, white, sitting in the 

### westparking lotof the high school selling drugs tokids.

"Q. Did you ask Mr. Owens any questions? A. No. He had the license number and he said he did. 12- 3759. I gave that to them and they left. "Q. And he gave you a description of the individual? A. Yes. The one that

### was selling the drugs was wearing a blue jacket. Long dark hair. Dark complected. "Q. And did he advise you that the individual was selling drugs tohim? A. No. To some kids. "Q. And did he give any information about, toad

### --- 

### -- vise

### you of how he knew that? A. No." (Emphasis 

### ----- - added.) Included inFinding of Fact No. 

### 1is the following: "He then returned tohis office and called the Havre Police Department. He identified himself, reported the incident and asked that police be sent to the school. He then returned to the foyer 

# . . 

# ." Finding of Fact No. 6 included the following: "6. Atthe 

### time the Berger car was stopped by officers Brown and Harada, personnel of the Havre Police Department possessed the following information:

"(c). Owens' report was based on information which he had received from a student." Section 95-701, R.C.M. 1947, now section 46-5-101 MCA, provides inpertinent part that: "A search of a person, object or place may be made and instruments, articles, or things may be seized inaccordance with the provisions of this chapter when the search ismade: 

### "(a) As an incident toa lawful arrest."If the arresting officers did not have probable cause to stop the automobile, no evidence discovered as

### a result of a search of defendant can be used tojustify the arrest. State v. Lahr (1977), Mont. 

## , 560 P.2d 527, 34

In Stateex 

### rel. Townsend v. Dist. Court (1975), 168 Mont. 357, 360-61, 543 P.2d 193, 195, this Court stated: "Itcannot be disputed that hearsay information may be considered to establish probable cause. [Citations omitted.] But when hearsay information forms the justification for a finding of probable cause and the issuance of a searchwarrant, the two-pronged 

### test 

### set out inAguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12L.Ed.2d 723, must be applied and satisfied:

II 1

# . . . themagistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics

### werewhere he claimed they 

### were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, [citationomitted] was "credible" or his information "reliable.""' The argument in the instant case centers on the firstprong of this 

### test: whether the officers who arrested defendant



### were "informed of some of the underlying circumstances from which the informant concluded [thatdefendant was selling drugs to students]." As previously outlined, the testimony varies on thispoint. Our review of therecord in this case does not establisha sufficientbasis for finding that defendant's arrest

was supported by probable cause. The testimony of the arresting officers, aswell asthe police dispatcher, 

### reveals that they did not have sufficient knowledge of the underlying circumstances of Owens1 tip toestablishprobable

cause to 

### arrest defendant. In a situationwhere police officers expect tomake a warrantless 

### arrest, the 

### arrest must be based on probablecause. When that probable cause 

### isbased on a tip, springing from an informant's personal observation, the informant's reliability becomes significant. Where the 

### reliability of the informant is assured, asinthis case, but where his information 

### isbased on someone 

### else's statements, the police must make some further inquiry of the informant regarding the underlying circumstances of his conclusion that it 

### isprobable that an offense 

### isbeing or has been cornmitted. While Owens did not have toreveal to the police the identity of the student who gave him the note, the police should have asked Owens a few questions such aswhether he knew the student, whether the student had been personally approached by the suspect orwhether the student had overheard an offer oractually seen any drugs. Inview of the fact that Owens personally observed no conduct on thepart of the suspectwhich could be classified

ascriminal conduct, this brief inquiry by the police would have reduced the possibility of a misunderstanding and satisfied certainminimum standards for establishing probable cause. Without these additional facts establishing probable

cause to arrest, the DistrictCourt should have suppressed the evidence seized 

### as a result of the 

### arrest, thatbeing the contraband found on defendant's person. Mapp 

### v, 0hio (1961), 367 U.S. 643, 655, 81S.Ct. 1684, 1691, 6 L-Ed-2d 1081, 1090. Defendant's conviction, therefore, isreversed, and the 

### case is remanded for a new trial. Wewilladdress the two remaining issues, however, for the benefit of the DistrictCourt.SUBSEQUENTLYSEIZED EVIDENCE Defendant argues that themarijuana seized from Berger's



### car should have been suppressed under the "fruitof the poisonous 

### tree" doctrine, ashaving been discovered 

### as a result of defendant's "illegal" arrest. The State answers this contention with two arguments. First, the State contends thatdefendant has not established that the search invaded defendant's Fourth Amendment rights. Second, the Statecontends that the search of Berger's 

### car

was not the fruitof an illegal arrestwithin themeaning of Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct.

The DistrictCourt made a specific conclusion of law with respect to this issue: "7. The search of the Berger carwas legally made pursuant to the valid consent of the owner of the car. In any event, defendant 

### iswithout standing to challenge that search." Addressing firstthe question of defendant's standing to challenge the search of Berger's car, 

### we find that he was without standing tochallenge the search. The Stateplaces great emphasis on a recent United States Supreme Court case insupport of theposition that defendant lacks standing to object tothis search. In Rakas 

### v. Illinois (1978), U.S. 

## , 99 S.Ct. 421, 58 L.Ed.2d 387, the Supreme Court examined the rule of standing enunciated inJones v. United States (1960), 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697: "InJones, the Court 

### set forth two alternative holdings: it established a rule of 'automatic' standing tocontest an allegedly illegal search where the same possession needed toestablish standing 

### is an essential element of the offense charged; and second, 

### it stated that 'anyone legitimately on premises where a search occurs may challenge 

### its legalityby way of a motion to suppress.' 362 U.S. at264, 267." Rakas, U.S. at

### - 

## , 99 S.Ct. at426, 58 L.Ed.2d at395-96.Though the Court inRakas apparently restricted the application of the second alternative holding inJones, 

### it went
on to explain atFootnote No.4 that: "We have not yethad occasion todecide whether the automatic standing rule of Jones survives our decision inSimmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). See Brown v. United States, 411 U.S. 223, 228- 229, 93 S.Ct. 1565, 1568-1569, 36 L.Ed.2d 208 (1973). Such a rule 

### is, of course, one which may allow a defendant toassert the Fourth Amendment rights of another." InBrown, 411U.S. at228, 93 S.Ct. at1569, 36 L.Ed.2d at 213, the Supreme Court had stated: 

# ".

. 

# . under the Simmons doctrine the defendant 

### ispermitted toestablish the requisite standing-by claiming 

## 'possession' of incriminating evidence. If he 

### is granted standing on the basis of such evidence, he may then nonetheless press for 

### its exclusion; but, whether he succeeds or failsto suppress the evidence, his testimony on that score 

### isnot directly admissible againsthim inthe trial. Thus, petitioners inthis case could have asserted, at the pretrial suppression hearing, a possessory interest inthe goods atKnuckle's storewithout any danger of incriminating themselves. They did not do so. "But 

### it is not necessary forus now todetermine whether our decision inSimmons, supra, makes Jones' 'automatic' standing unnecessary. Wereserve thatquestion for 

### a case where possession atthe 

### time of the contested search and seizure is 'an essential element of the offense 

# . 

# .. charged.'" We now determinewhether the search of Berger's car, conducted pursuant tohis consent, violated the Fourth Amendment as the "fruitof thepoisonous tree" under Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. InWong - Sun, the Supreme Court held the "poisonous tree" rule applicable to the evidentiary fruits of unconstitutional arrests. The Court went on, though, to indicate that the taintof initial illegalitymay be purged: "We need not hold that all evidence 

### is 'fruitof the poisonous 

### tree' simply because 

### it would not have come to lightbut for the illegal actionsof the police. Rather, the more aptquestion in such 

### a case 

### is 'whether, granting establishment of the primary illegality, the evidence towhich instant objection 

### ismade has been come atby exploitation of that illegality or instead by means sufficientlydistinguishable tobe purged of the primary taint." Wong Sun, 371 U.S. at 487-88. - Thus, under Wong Sun, two questions must be answered: 

### (1) Was the arrest a cause-in-fact of the later discovery of evidence; and (2) if so, was there an intervening cause or event sufficient toattenuate the taint of the illegal arrest? It 

### is clear that a showing of "voluntariness" on Berger's part 

### is not sufficient toattenuate the taint. See Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854. Rather, adopting the rationale of Brown v. Illinois (1975), 422 U.S. 590, 598-99, 95 S.Ct. 2254, 45 L.Ed.2d 416, the Statemust show thatBerger's consent 

### was "sufficiently an actof free

### will topurge the primary taint." While this 

### is an admittedly heavy burden, there 

### is sufficient evidence in the record of the instant

case to find that the Statehas 

### met

### it. Berger, the party who gave consent, testified that his consent was voluntary and uncoerced. Moreover, Berger testified that he was unaware that any drugs 

### were in the car and thathe therefore had no reason todeny consent. He expected the search of his 

### car toestablish his innocence and gave his consent with that inmind. Finally, three factors combine inthe instant case toestablish that Berger's consent 

### was "sufficiently an actof freewillto purge the taint." First, there 

### is an absence of any evidence of any threats, promises, or coercion by police offi

### cers. Second, there 

### is evidence thatBerger's consent was knowing, inthat he was advised of his right torefuse togive his consent. Third, Berger had thought he had everything togain from the search of his car since tohis knowledge the searchwould yield no drugs and thus advance his ultimate vindication.

OVERT ACT REQUIREMENT Defendant argues that

### mere conversation 

### is not a direct unequivocal actdirected toward the commission of the offense sufficient to sustain a conviction for attempted sale of dangerous drugs. Furthermore, he argues that an overt actmust go far enough toward the accomplishment of the offense toamount tocommencement of 

### its consummation. Since defendant never displayed any marijuana to any of the three students he offered to sella "bag" to, he argues that atno 

### time did he have the "apparent ability" to complete a sale.The State contends thatdefendant's actions

### were more than 

### mere acts of preparation, rather they 

### were acts of perpetration. The only thing standing between defendant and

a completed salewas his inability to find a willing buyer. Section 94-4-103, R.C.M. 1947, now section 45-4-103 MCA, provides: "A person commits the offense of attempt, when, with the purpose to commit a specific offense, he does any acttowards the commission of such offense." This Court has stated than an overt act "must reach far enough toward the accomplishment of the desired result to amount to the commencement of the consummation." In addition, the Court stated that "theremust be some appreciable fragment of the 

### crimecommitted, and 

### it must be in such progress that 

### it

### willbe consummated unless interrupted bycircumstances independent of the 

### willof the attempter." Statev. Rains (1917), 53 Mont. 424, 164 P. 540. In this case 

### it is clear that defendant intended to make a sale of drugs. Hemade offers to three students and had the drugs inhis possession atthe 

### timeof the offers. Further, testimony indicated that defendant was traveling from Chinook to Sidney when the side trip toHavre 

### was taken. The extraordinary trip, approaching students and making verbal offers to sell drugs 

### are sufficient acts to constitute the 

### crime of attempt consistent with the rationale of Statev. Rains, supra. The case is reversed and remanded for further proceedings consistent with this opinion.

We concur: 

### ~A&J,u@&

Chief Justlce

- of Mr. Justice Sheehy