No. 14644 

IN THE SUPREME COURT OF THE STATE OF MXPANA 

19 79 

STATE OF MXTANA, 

Plaintiff and Respondent, 

-vsJULIAN RIBERA, 

Defendant and Appellant. 

Appeal £ram: District Court of the Wlfth Judicial District, 

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, County Attorney, 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 in the District Court of the Twelfth Judicial 

District, Hill County, 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 secretary wrote the following under the student's description: 

"Mr. Owens-- 

A student just informed me that he saw a 

man trying to sell drugs to kids in the west 

parking lot. 

B.P." 

Owens went to the 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 in the parking lot. The last four digits of 

the license matched those on the note. 

Owens returned to his office and called the Havre 

Police Department. He identified himself, reported the 

incident, and asked that police be sent to the school. 

After reporting the incident he returned to the west foyer 

of the building and continued to watch. 

After a short time the suspect got into the car along 

with two companions, and they drove away. Owens again 
called the police to tell them the suspect was leaving in a 

car with two others. This information was relayed by radio 

to the two officers who were responding to the call. 

The officers met the car along the way and stopped it. 

A pat-down search was made of defendant and five "Baggies" 

of what later proved to be marijuana were found in a 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 five Baggies of marijuana which had been placed in a 

brown paper bag in the backseat. 

Defendant's arrest and the subsequent search were 

accomplished without a warrant. He filed a motion to suppress as evidence at trial both 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 his motion to suppress at trial and 

also moved for an acquittal on Count I1 charging him with 

attempted sale. This latter motion, which was also denied, 

alleged that the evidence presented by the State was insufficient to show a direct unequivocal act committed by defendant toward the commission of a sale. The State had presented three high school students as witnesses. Kathy 

Barlow testified: "He asked us if we wanted to buy a bag." 

She further testified that although defendant did not explain his meaning, she understood him to mean a bag of 

marijuana. He did not show her the marijuana. 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 for review 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 

fruit of an illegal arrest? 

3. Whether defendant committed a direct unequivocal 

act sufficient to support his conviction of the crime of 

attempted sale of dangerous drugs? 

PROBABLE CAUSE 

Defendant argues that the officers did not have probable cause to stop the automobile in which defendant was 

riding because when Owens called the police, he did not 

identify the source of his information and the dispatcher 

asked him no questions. 

The State responds by arguing that the police were 

informed of the "underlying circumstances" giving rise to 

Owens' tip to an 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 

the police during his first call: 

"I said I have information from one of my students 

that he was approached in the west parking lot to 

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 

get down here as fast as possible." 
Officer Fisher, the dispatcher who received the call, gave 

somewhat less extensive testimony regarding this same exchange: 

"Q. And can you state what Mr. Owens said to you? 

A. Yes. He told me that there was an older model 

car, white, sitting in the west parking lot of the 

high school selling drugs to kids. 

"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 to him? A. No. To some kids. 

"Q. And --- did he give any information about, -- to advise you ----- of how he knew that? A. - No." (Emphasis 

added. ) 

Included in Finding of Fact No. 1 is the following: 

"He then returned to his 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. At the 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 

in pertinent part that: 

"A search of a person, object or place may be made 

and instruments, articles, or things may be seized 

in accordance with the provisions of this chapter 

when the search is made: 

"(a) As an incident to a 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 to justify the arrest. 

State v. Lahr (1977), Mont. , 560 P.2d 527, 34 

In State ex rel. Townsend v. Dist. Court (1975), 168 

Mont. 357, 360-61, 543 P.2d 193, 195, this Court stated: 

"It cannot 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 search warrant, 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: 

II 1 . . . the magistrate must be informed of some 

of the underlying circumstances from which the 

informant concluded that the narcotics were where 

he claimed they were, and some of the underlying 

circumstances from which the officer concluded 

that the informant, whose identity need not be 

disclosed, [citation omitted] was "credible" or 

his information "reliable.""' 

The argument in the instant case centers on the first prong 

of this test: whether the officers who arrested defendant 

were "informed of some of the underlying circumstances from 

which the informant concluded [that defendant was selling 

drugs to students]." As previously outlined, the testimony 

varies on this point. 

Our review of the record in this case does not establish a sufficient basis for finding that defendant's arrest 

was supported by probable cause. The testimony of the 

arresting officers, as well as the police dispatcher, reveals that they did not have sufficient knowledge of the 

underlying circumstances of Owens1 tip to establish probable 

cause to arrest defendant. 

In a situation where police officers expect to make a 

warrantless arrest, the arrest must be based on probable 
cause. When that probable cause is based on a tip, springing from an informant's personal observation, the informant's reliability becomes significant. Where the reliability of the informant is assured, as in this case, but 

where his information is based on someone else's statements, 

the police must make some further inquiry of the informant 

regarding the underlying circumstances of his conclusion 

that it is probable that an offense is being or has been 

cornmi tted. 

While Owens did not have to reveal to the police the 

identity of the student who gave him the note, the police 

should have asked Owens a few questions such as whether he 

knew the student, whether the student had been personally 

approached by the suspect or whether the student had overheard an offer or actually seen any drugs. 

In view of the fact that Owens personally observed no 

conduct on the part of the suspect which could be classified 

as criminal conduct, this brief inquiry by the police would 

have reduced the possibility of a misunderstanding and 

satisfied certain minimum standards for establishing probable cause. 

Without these additional facts establishing probable 

cause to arrest, the District Court should have suppressed 

the evidence seized as a result of the arrest, that being 

the contraband found on defendant's person. Mapp v, 0hio 

(1961), 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L-Ed-2d 

1081, 1090. Defendant's conviction, therefore, is reversed, 

and the case is remanded for a new trial. We will address 

the two remaining issues, however, for the benefit of the 

District Court. 
SUBSEQUENTLY SEIZED EVIDENCE 

Defendant argues that the marijuana seized from Berger's 

car should have been suppressed under the "fruit of the 

poisonous tree" doctrine, as having been discovered as a 

result of defendant's "illegal" arrest. 

The State answers this contention with two arguments. 

First, the State contends that defendant has not established 

that the search invaded defendant's Fourth Amendment rights. 

Second, the State contends that the search of Berger's car 

was not the fruit of an illegal arrest within the meaning of 

Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 

The District Court made a specific conclusion of law 

with respect to this issue: 

"7. The search of the Berger car was legally made 

pursuant to the valid consent of the owner of the 

car. In any event, defendant is without standing 

to challenge that search." 

Addressing first the question of defendant's standing 

to challenge the search of Berger's car, we find that he was 

without standing to challenge the search. The State places 

great emphasis on a recent United States Supreme Court case 

in support of the position that defendant lacks standing to 

object to this 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 in Jones v. United States (1960), 362 

U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697: 

"In Jones, the Court set forth two alternative 

holdings: it established a rule of 'automatic' 

standing to contest an allegedly illegal search 

where the same possession needed to establish 

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 legality by way of a motion 

to suppress.' 362 U.S. at 264, 267." Rakas, 

U.S. at - , 99 S.Ct. at 426, 58 L.Ed.2d 

at 395-96. 
Though the Court in Rakas apparently restricted the application of the second alternative holding in Jones, it went 

on to explain at Footnote No.4 that: 

"We have not yet had occasion to decide whether 

the automatic standing rule of Jones survives 

our decision in Simmons 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 to assert the Fourth 

Amendment rights of another." 

In Brown, 411 U.S. at 228, 93 S.Ct. at 1569, 36 L.Ed.2d at 

213, the Supreme Court had stated: 

". . . under the Simmons doctrine the defendant 

is permitted to establish 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 fails to suppress the evidence, his 

testimony on that score is not directly admissible against him in the trial. Thus, petitioners in this case could have asserted, at 

the pretrial suppression hearing, a possessory 

interest in the goods at Knuckle's store without any danger of incriminating themselves. 

They did not do so. 

"But it is not necessary for us now to determine whether our decision in Simmons, supra, 

makes Jones' 'automatic' standing unnecessary. 

We reserve that question for a case where possession at the time of the contested search 

and seizure is 'an essential element of the offense . . . charged.'" 

We now determine whether the search of Berger's car, 

conducted pursuant to his consent, violated the Fourth 

Amendment as the "fruit of the poisonous tree" under Wong 

Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 

L.Ed.2d 441. In Wong - 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 taint of initial illegality may be purged: 

"We need not hold that all evidence is 'f ruit of 

the poisonous tree' simply because it would not 

have come to light but for the illegal actions 
of the police. Rather, the more apt question in 

such a case is 'whether, granting establishment 

of the primary illegality, the evidence to which 

instant objection is made has been come at by 

exploitation of that illegality or instead by 

means sufficiently distinguishable to be 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 to attenuate the taint of the illegal 

arrest? 

It is clear that a showing of "voluntariness" on 

Berger's part is not sufficient to attenuate 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 State must show that Berger's 

consent was "sufficiently an act of free will to purge 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 State has 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 that he therefore had no reason to deny consent. He 

expected the search of his car to establish his innocence 

and gave his consent with that in mind. Finally, three 

factors combine in the instant case to establish that 

Berger's consent was "sufficiently an act of free will to 

purge the taint." First, there is an absence of any evidence of any threats, promises, or coercion by police officers. Second, there is evidence that Berger's consent was 

knowing, in that he was advised of his right to refuse to 
give his consent. Third, Berger had thought he had everything to gain from the search of his car since to his knowledge the search would yield no drugs and thus advance his 

ultimate vindication. 

OVERT ACT REQUIREMENT 

Defendant argues that mere conversation is not a direct 

unequivocal act directed toward the commission of the offense sufficient to sustain a conviction for attempted sale 

of dangerous drugs. Furthermore, he argues that an overt 

act must go far enough toward the accomplishment of the 

offense to amount to commencement of its consummation. 

Since defendant never displayed any marijuana to any of the 

three students he offered to sell a "bag" to, he argues that 

at no time did he have the "apparent ability" to complete a 

sale. 

The State contends that defendant's actions were more 

than mere acts of preparation, rather they were acts of 

perpetration. The only thing standing between defendant and 

a completed sale was 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 act towards 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 "there must be some appreciable 

fragment of the crime committed, and it must be in such 

progress that it will be consummated unless interrupted by 
circumstances independent of the will of the attempter." 

State v. Rains (1917), 53 Mont. 424, 164 P. 540. 

In this case it is clear that defendant intended to 

make a sale of drugs. He made offers to three students and 

had the drugs in his possession at the time of the offers. 

Further, testimony indicated that defendant was traveling 

from Chinook to Sidney when the side trip to Havre 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 State v. 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