No. 12910 INTHE 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

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

ClerkMr. JusticeJohn 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 tothe city-county narcotic squad, received a telephone call from one Sergeant Wolf of theMetropolitan Narcotics Team, Tucson, Arizona. Wolf relayed information

18 given him by an informant who was involved inmaking shipment
cases almost exclusively forhis department, and that his reliabilityhad proven tobe very high inthe past." The Tucson

If officer told Cunningham that in 1974 the informant had made more
cases for them than he had the previous year, allinvolving 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 sixthat Sunday afternoon, July 21. Cunningham was told a shipment of narcotics would be brought by airplane intoBillings by a white male, inhis early twenties, about sixfeet tall, with sandy colored hair; inhis possession would be a brown Samsonite suitcase, double zippered with a single strap, with a claim check attached marked with 

### a specific number; and thebag 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 thebaggage
area where they identified the bag and sent itup the ramp to the claim area. Defendant Paulson picked up the bag and attempted toplace it in a locker. Before he could get it entirely insidethe locker, the officers approached and arrested him for possession of dangerous drugs. Paulson was read his rights and frisked forweapons. Atthepolice station the suitcasewas opened with a key provided by defendant, insidewas found 25 pounds and 12
ounces of what was later identified tobe marijuana. The marijuana was identifiedby 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 theuse of the kit for field test purposes. Attrial itwas established that Cunningham had handled nearly 200 arrest cases fordrugs 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 statechemist, A. B. Meinikoff of Missoula, Montana. The casewas set for trial September 11, 1974, but that trialdatewas 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 thepresiding judge, but was denied. This Court inresponse to a petition for supervisory control on October 

### 11, 1974, sustained that denial. Trialwas 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, 

### isunconstitutional in that it places the "burden of proof"
on the defendant. Here, the record isutterly devoid of a showing this statutewas challenged before the district court. Rather, the facts show defendant, atthe suppression hearing, went so far as toremind the court that he was the moving party and was required to put on his evidence first. On appeal, this Court can consider forreview only those issues raised inthetrial court. Spencer v. Robertson, 151Mont. 507, 

### 445 P.2d 

### 48; Clark v. Worrall, 146Mont. 374, 406 P.2d 822. Defendant next contends the district court abused its discretion in denying his affidavit of disqualification. As heretofore stated, that issuewas 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 statecalled 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 stateoffered towithdraw a portion of the evidence and have it flown toMissoula for identificationby the statechemist. Defense counsel objected on grounds that (1) no statechemist had been endorsed on the Information; (2) his
case had been prepared inreliance of the endorsements; and, (3) prejudice would inure todefendant resulting from actual surprise. The next day the statechemist 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 trialcourt. Defendant now alleges the trial court improperly allowed the statetoendorse thewitness after the trialbegan, and failure togrant his continuance was error. The statute inquestion, section 95-1503(d), R.C.M. 1947, states:"If the charge isby information or indictment, it shall include endorsed thereon, thenames of thewitnesses for the state, ifknown." (Emphasis

added). From the record, therewas no allegation the prosecutor
was inviolation of the statute, and it appears he had not planned
on the additionalwitness atthe time the original Information wasfiled. Neither 

### is there any charge the prosecutor was attempting togain undue advantage, or to fraudulently deceive opposing counsel. Thus, the real issue 

### isthe denial of the motion for continuance

# . Motions forcontinuance are addressed to the discretion of the trialcourt 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, 

### 111Mont.

~efendant's argument therefore must stand or fallon the issue of prejudice, for the district court can be said have abused its discretion only if 

### itsruling was prejudicial. We have not found 

### a single case, including those citedby defendant, in which the denial of a motion for continuancewas reversed without
a showing of resulting prejudice tothe movant. In Statev. Cooper, 146 Mont. 336, 342, 406 P.2d 691, this Court explained the purpose behind the statutewith which we arenow concerned: "R.C.M. 1947, section 94-6208 [section 95-1503(d)

### 1, requires the county attorney to endorse upon the information atthe time of filing 'the names of the 1 witnesses for the state, ifknown. The purpose 

### is to protect the defendant from surprise and unfair advantage and toafford him a fairopportunity 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, 

### isthe proper standard fordetermining whether prejudice resulted under the circumstances of the ruling here? The New Mexico Supreme Court in Statev. Edwards, 54 N.M. 189, 217 P.2d 854, 856, spoke tothis point inthis language: "Whether names of witnesses may be endorsed during trialis a matter restingwithin the sound discretion of the court. It 

### isnot enough that a defendant claim surprise orprejudice inthe calling of an adverse witness or one whose name does not appear upon the information charging him with crime. Nor 

### is the mereadmission of testimony of such witness, error; rather, error follows from a denial of an opportunity to rebut the objectionable evidence. When it 

### ismade to appear that testimony of thewitness is such that it cannot be reasonably anticipated, postponement or continuance of the hearing 

### is available to a defendant tomeet it and if application therefor is denied, prejudice being shown, reversal

### willfollow. I I (Emphasis supplied). Here, it 

### is clear defendant could have reasonably anticipated the testimony of the statechemist, and further, that he had ample opportunity torebut the evidence which, from his standpoint, was objectionable. Defense counsel obviously planned in advance to challenge the state's method of identification, ashe arranged for two experts to support that challenge. He was also given a sample of the substance inquestion so that an independent test could be made. Defendant's third issue alleges the district court erred in several evidentiary rulings. First, he allegesno proper foundation was offered to support testimony that thepolice officers could identifymarijuana 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 theuse 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 isskilled therein." An individual may certainly qualify as an expert eitherby study or experience. State

### v. Keeland, 39 Mont. 506, 104 P. 513. The competency of a witness totestifyasan expert is a question for the trialcourt's discretion. Statev. Askin, 90 Mont. 394, 

### 3 P.2d 

### 654. In light of thebackground and experience of thesewitnesses here, itwas not error toallow the jury toconsider their opinions and substantial evidence exists to support their finding.Defendant maintains the police officer's testimony regarding his telephone conversations with the Tucson authoritieswas hearsay. This conclusion is not supported by law. The testimony
was introduced only for the purpose of demonstrating the existence of probable cause tomake the arrest without a warrant and subsequent search. The United States Supreme Court inKer v. California, 374 U.S. 23, 36, 83 S.Ct. 1623, 10L ed 2d 726, 739, speaking to the hearsay question held: 

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

### itsrole 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 corroboratedby the agents' observations as tothe accuracy of the informer's descr@ion of the accused and of his presence ata particular place, was sufficient toestablishprobable cause for an arrest without a warrant. II In the instant case, the facts came from official police reports. It 

### iswell settled that police officers may rely on information coming tothem from official sources aswell 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, 13L 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 trialcourt. Defendant bases his allegation of error regarding this denial on two grounds (1) the statuteunder which he was charged prohibits only the species of cannabis sativa 

### 1, and (2) the prosecution failed toprove that the substancepossessed by defendant was actually among those prohibited by statute. We disagree. Competent evidence was introduced attrial to establish that the substancewas in fact cannabis sativa 1. The jury chose tobelieve the state's witness, therewas ample evidence tojustify 

### its decision. In State v. Metcalf,, 153Plont. 369, 379, 457 P.2d 453, this Court held:IIIn thisjurfsdiction a directed verdict ina criminal case is given only where the state fails toprove its case and there 

### isno evidence upon which a jury could base 

### itsverdict. Statev. Yoss, 146Mont. 508, 409 P.2d 452; Statev. Willicombe, 130 Mont. 325, 301 P.2d 1116; Statev. Welch, 22 Monte 92, 55 P. 927." The district court was correct in denying the motion fordirected verdict

# . Finally, defendant challenges thewarrentless search and subsequent seizure asunsupported by probable cause or any other legal justification. The stateurges the search and seizurewas valid as incident to a lawful arrest. The Fourth Amendment to the United States Constitution tolerateswarrantless searches incident toa valid arrestwhere 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 factshere, the arrest
was amply justified by probable cause, therefore the search incident thereto was valid, The judgment 

### is affirmed.

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P We Concur: 

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