No. 12910 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

- 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VS - 

LEON ALBERT PAULSON, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable C. B.Sande, Judge presiding. 

Counsel of Record: 

For Appellant : 

~obert L. Stephens, Jr. argued, Billings, Montana 

For Respondent: 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

Thomas A, Rudewitz, Assistant Attorney General, 

argued, Helena, Montana 

Harold F, Hanser, County Attorney, argued, Billings, 

Montana 

Submitted: June 18, 1975 

Decided :j4UB J 

r. .To' Filed: -1- jr~ 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Defendant Leon Albert Paulson appeals from a judgment 

entered on a jury verdict in the district court, Yellowstone 

County, convicting him of criminal possession of marijuana, 

a felony. 

On July 21, 1974, Craig Cunningham, a Yellowstone County 

deputy sheriff then attached to the city-county narcotic squad, 

received a telephone call from one Sergeant Wolf of the Metropolitan Narcotics Team, Tucson, Arizona. Wolf relayed information 

18 given him by an informant who was involved in making shipment 

cases almost exclusively for his department, and that his 

reliability had proven to be very high in the past." The Tucson 

If officer told Cunningham that in 1974 the informant had made more 

cases for them than he had the previous year, all involving shipIt ments of narcotics. The information was received via several 

telephone conversations over a period of time beginning shortly 

before noon and ending about five or six that Sunday afternoon, 

July 21. Cunningham was told a shipment of narcotics would be 

brought by airplane into Billings by a white male, in his early 

twenties, about six feet tall, with sandy colored hair; in his 

possession would be a brown Samsonite suitcase, double zippered 

with a single strap, with a claim check attached marked with a 

specific number; and the bag would contain about 30 pounds of 

marijuana . 

That evening at 7:30, the due time of the Western Airlines 

flight from the south, Officers Cunningham and Wickhorst, were at 

the Billings Logan International Airport and went to the baggage 

area where they identified the bag and sent it up the ramp to 

the claim area. Defendant Paulson picked up the bag and attempted 

to place it in a locker. Before he could get it entirely inside 
the locker, the officers approached and arrested him for possession of dangerous drugs. Paulson was read his rights and frisked 

for weapons. 

At the police station the suitcase was opened with a 

key provided by defendant, inside was found 25 pounds and 12 

ounces of what was later identified to be marijuana. 

The marijuana was identified by Cunningham, the arresting 

officer, through the use of the "valtox field drug testing kit", 

a set of commercial chemicals used by police departments. Although Cunningham was not a trained chemist, he had been trained 

in the use of the kit for field test purposes. At trial it was 

established that Cunningham had handled nearly 200 arrest cases 

for drugs and could identify such substance by sight and smell. 

The same was true of the other arresting officer, Wickhorst . The 

opinions of Cunninghim and Wickhorst were later corroborated by 

a state chemist, A. B. Meinikoff of Missoula, Montana. 

The case was set for trial September 11, 1974, but that 

trial date was vacated. The hearing on defendant's motion to 

suppress evidence was held on September 30, 1974. On October 4, 

1974, defendant filed an affidavit to disqualify the presiding 

judge, but was denied. This Court in response to a petition 

for supervisory control on October 11, 1974, sustained that 

denial. Trial was held, defendant convicted, and he now appeals. 

On appeal, defendant contends section 95-1806(f), R.C.M. 

1947, which authorizes the motion to suppress evidence illegally 

seized, is unconstitutional in that it places the "burden of proof" 

on the defendant. Here, the record is utterly devoid of a 

showing this statute was challenged before the district court. 

Rather, the facts show defendant, at the suppression hearing, 

went so far as to remind the court that he was the moving party 

and was required to put on his evidence first. On appeal, this 

Court can consider for review only those issues raised in the 
trial court. Spencer v. Robertson, 151 Mont. 507, 445 P.2d 48; 

Clark v. Worrall, 146 Mont. 374, 406 P.2d 822. 

Defendant next contends the district court abused its 

discretion in denying his affidavit of disqualification. As 

heretofore stated, that issue was presented to this Court by a 

petition for supervisory control on October 11, 1974, and denied. 

We find no reason to disturb that ruling. 

Defendant next alleges that during the course of 

trial, the state called one of the arresting officers to testify 

and 

on the identity of the evidence seized,/ defense counsel crossexamined vigorously for the purpose of establishing the tests used 

were unreliable. At that point the state offered to withdraw a 

portion of the evidence and have it flown to Missoula for identification by the state chemist. 

Defense counsel objected on grounds that (1) no 

state chemist had been endorsed on the Information; (2) his 

case had been prepared in reliance of the endorsements; and, 

(3) prejudice would inure to defendant resulting from actual 

surprise. The next day the state chemist did, in fact, testify 

in sponsorship of his test results. Defense counsel then requested 

a continuance for the purpose of rebutting that testimony; this 

was denied by the trial court. Defendant now alleges the trial 

court improperly allowed the state to endorse the witness after 

the trial began, and failure to grant his continuance was error. 

The statute in question, section 95-1503(d), R.C.M. 1947, 

states : 

"If the charge is by information or indictment, 

it shall include endorsed thereon, the names of 

the witnesses for the state, if known." (Emphasis 

added). 

From the record, there was no allegation the prosecutor 

was in violation of the statute, and it appears he had not planned 

on the additional witness at the time the original Information was 
filed. Neither is there any charge the prosecutor was attempting 

to gain undue advantage, or to fraudulently deceive opposing 

counsel. Thus, the real issue is the denial of the motion for 

continuance . Motions for continuance are addressed to the discretion 

of the trial court and the granting of a continuance has never 

been a matter of right. Williams v. United States, 203 F.2d 85. 

The district court cannot cverturned on appeal absence 

a showing of prejudice to the movant. State v, Kuilman, 111 Mont. 

~efendant's argument therefore must stand or fall on the 

issue of prejudice, for the district court can be said have 

abused its discretion only if its ruling was prejudicial. We have 

not found a single case, including those cited by defendant, in 

which the denial of a motion for continuance was reversed without 

a showing of resulting prejudice to the movant. In State v. 

Cooper, 146 Mont. 336, 342, 406 P.2d 691, this Court explained 

the purpose behind the statute with which we are now concerned: 

"R.C.M. 1947, section 94-6208 [section 95-1503 (d) 1, 

requires the county attorney to endorse upon the 

information at the time of filing 'the names of the 

1 witnesses for the state, if known. The purpose is 

to protect the defendant from surprise and unfair advantage and to afford him a fair opportunity to 

adequately defend himself." 

Clearly, this Court may not reverse the district court's ruling 

unless these important considerations have been offended by it. 

What then, is the proper standard for determining whether 

prejudice resulted under the circumstances of the ruling here? 

The New Mexico Supreme Court in State v. Edwards, 54 N.M. 189, 

217 P.2d 854, 856, spoke to this point in this language: 

"Whether names of witnesses may be endorsed during 

trial is a matter resting within the sound discretion 

of the court. It is not enough that a defendant claim 

surprise or prejudice in the calling of an adverse 

witness or one whose name does not appear upon the 

information charging him with crime. Nor is the mere 
admission of testimony of such witness, error; 

rather, error follows from a denial of an opportunity to rebut the objectionable evidence. When it 

is made to appear that testimony of the witness is 

such that it cannot be reasonably anticipated, postponement or continuance of the hearing is available to 

a defendant to meet it and if application therefor is 

denied, prejudice being shown, reversal will follow. I I 

(Emphasis supplied). 

Here, it is clear defendant could have reasonably anticipated the testimony of the state chemist, and further, that he had 

ample opportunity to rebut the evidence which, from his standpoint, was objectionable. Defense counsel obviously planned in 

advance to challenge the state's method of identification, as he 

arranged for two experts to support that challenge. He was also 

given a sample of the substance in question so that an independent 

test could be made. 

Defendant's third issue alleges the district court erred 

in several evidentiary rulings. First, he alleges no proper foundation was offered to support testimony that the police officers 

could identify marijuana by sight and smell. We disagree. Both 

men stated they had been assigned to the city-county narcotics 

squad for over two years, and had attended law enforcement seminars 

on that precise subject. They had made about two hundred arrests 

involving marijuana and had further tested the substance through 

the use of their field kits. 

Section 93-401-27, R.C.M. 1947, provides a witness may 

11 give his opinion of a question or science, art,or trade, when 

he is skilled therein." An individual may certainly qualify as an 

expert either by study or experience. State v. Keeland, 39 Mont. 

506, 104 P. 513. The competency of a witness to testify as an 

expert is a question for the trial court's discretion. State v. 

Askin, 90 Mont. 394, 3 P.2d 654. In light of the background and 

experience of these witnesses here, it was not error to allow the 

jury to consider their opinions and substantial evidence exists 

to support their finding. 
Defendant maintains the police officer's testimony regarding 

his telephone conversations with the Tucson authorities was 

hearsay. This conclusion is not supported by law. The testimony 

was introduced only for the purpose of demonstrating the existence 

of probable cause to make the arrest without a warrant and subsequent search. 

The United States Supreme Court in Ker v. California, 374 

U.S. 23, 36, 83 S.Ct. 1623, 10 L ed 2d 726, 739, speaking to the 

hearsay question held: 

"* >k *That this information was hearsay does not 

destroy its role in establishing probable cause. 

Brinegar v. United States, 338 U.S. 160, 93 L ed 1879, 

69 S.Ct. 1302 * * " n. In Draper v. United States, 

358 U.S. 307, 3 L ed 2d 327, 79 S.Ct. 329, (1959), we 

held that information from a reliable informer corroborated by the agents' observations as to the accuracy of 

the informer's descr@ion of the accused and of his 

presence at a particular place, was sufficient to establish probable cause for an arrest without a warrant. I I 

In the instant case, the facts came from official police 

reports. It is well settled that police officers may rely on 

information coming to them from official sources as well as 

other known reliable sources. People v. Schellin, 227 Cal,App,(2d) 

245, 38 Cal.Reptr. 593, 597, cert. denied 397 U.S. 1003, 85 S.Ct. 

726, 13 L ed 2d 704 (1965); People v. Melchor, 237 Cal.App.2d 

685, 47 Gal-Reptr. 235; Walker v. State, 237 Md. 516, 206 A.2d 795. 

A motion for directed verdict was entertained and denied 

by the trial court. Defendant bases his allegation of error 

regarding this denial on two grounds (1) the statute under which 

he was charged prohibits only the species of cannabis sativa 1, 

and (2) the prosecution failed to prove that the substance possessed by defendant was actually among those prohibited by statute. 

We disagree. Competent evidence was introduced at trial to establish that the substance was in fact cannabis sativa 1. The 

jury chose to believe the state's witness, there was ample evidence 

to justify its decision. In State v. Metcalf,, 153 Plont. 369, 379, 

457 P.2d 453, this Court held: 
I I In this jurfsdiction a directed verdict in a 

criminal case is given only where the state fails 

to prove its case and there is no evidence upon 

which a jury could base its verdict. State v. Yoss, 

146 Mont. 508, 409 P.2d 452; State v. Willicombe, 

130 Mont. 325, 301 P.2d 1116; State v. Welch, 22 

Monte 92, 55 P. 927." 

The district court was correct in denying the motion for directed 

verdict . 

Finally, defendant challenges the warrentless search and 

subsequent seizure as unsupported by probable cause or any other 

legal justification. The state urges the search and seizure was 

valid as incident to a lawful arrest. 

The Fourth Amendment to the United States Constitution 

tolerates warrantless searches incident to a valid arrest where 

the existence of probable cause supports police conduct. See: 

United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L ed 2d 

653; Ker v. California, supra. Under the facts here, the arrest 

was amply justified by probable cause, therefore the search incident thereto was valid, 

The judgment is affirmed. 

\ 

P 

We Concur: /".. 

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Chief Justice 

Justices.