No. 80-315 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

STATE OF MONTANA, Plaintiff and Respondent,

VS

# . JOHN STEMPLE, JR-I Defendant and Appellant.

Appeal from: DistrictCourt of the FirstJudicial District, Inand for the County of Lewis and Clark Honorable Peter G. Meloy, Judge presiding. Counsel of Record: For Appellant: Petaja and Smoyer, Helena, Montana Charles Petaja argued, Helena, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Charles Graveley argued, County Attorney, Helena, Montana

Submitted: October 28, 1981 Decided: 

### JUI'I 

## 2115% Filed:Mr. Justice Daniel J. Shea delivered the Opinion of the Court.

John Stemple, Jr. (defendant)appeals a conviction in Lewis and Clark County District Court, of possession of dangerous drugs with intent to sell, a felony. Defendantraises several issues. He raises two search and seizure issues relating to the stop and search of his vehicle. He contends that the police did not have probable

cause to stophis vehicle, and he contends that his consent to searchhis pickupwas not voluntarily given. He also contends that certain evidence introduced at trialwas fruit of the poisonous tree (thatis, the illegal stop or the illegal search) and therefore was illegally admitted in evidence. He also contends thathis conviction is unsupported by substantial evidence, this contention being based on the fact that defendantwas not caughtwith the marijuana in his actualpossession. Finally, he contends that admission of evidence seized as the result of another searchwas prejudicial and that he is entitled to a new trial. We affirm on all issues except the last. We hold that the evidencewas admitted in flagrant violation of the standardswe set forth in Statev. Just (1979), 

### -Mont

# . - 

### , 602 P.2d 957, 36 St.Rep. 1535,and further, that themanner inwhich this evidence was used against defendant denied him a fair trial. In late December 1979,Detectives McCormick and Hammerbacker, of the Lewis and Clark County Sheriff's Department received information that there was some drug-related activity at a residence located at 1014 Elm Street in Helena. Upon surveillance of the residence, the detectives noticed an unusual amount of traffic coming and going from the residence and an out of statevehicle parked in front of the house.On themorning of January 11, 1980,detectives !%cCormick and Hammerbacker stated that they observed a man they believed to be coming out of the residenceplacing a partially-filled green garbagebag into the tool compartment of a two-tone Dodgepickup truck parked near the house. Thisman was later identified as the defendant. After placing the bag in the tool compartment,the defendant then returned to the house at 1014Elm. 

### A short time later, the defendant appeared at the door of the house and looked in the direction of the detectives' unmarked car and then disappeared back inside the house. Shortly before noon, the defendant came out of the house and entered the truck,driving off at a normal speed. The detectives followed. At this point, the defendant's vehicle accelerated and made several rapid and evasive turns. The detectives temporarily lost sight of the vehicle and radioed other units in the area to stop the defendant's truck. Almost immediately after the radio report formore help, the truck was stoppedby deputy John Risken. The detectives arrived on the scene only seconds after the defendantwas stopped. The total time that had elapsed between when they had first lost sight of the vehicle and when they arrived at where itwas eventually stoppedwas from 30 to 90 seconds. ~etective Hammerbacker informed the defendant that he

was suspected of having 

### a large amount of marijuana in the tool compartment, and asked permission to search the vehicle. The defendant consented,and told the officers that if any marijuana was found he would smoke it all. The officers then opened the tool compartment, but failed to find the green garbage bag, or any other evidence of marijuana. ~fter releasing the defendant, the officers searched the shortdistance that the defendant had travelled after eluding the detectives. Almost immediately a green garbage bag was found nearbywhich contained about ten pounds of marijuana. The detectives then obtained a warrant for the defendant's arrest, and also a search warrant for 1014 Elm and the outof-state carparked in front of the house. The search of the house and car at 1014 Elm revealed a large amount of marijuana and assorted paraphernalia. The defendant,upon learning of thewarrant forhis arrest, contacted his lawyer who accompanied him to the courthouse,where he was arrested. THE STOP OF DEFENDANT'S VEHICLE In State

### v. Gopher (1981),

### -Mont

# . , 631 P.2d 293, 

### - 38 St.Rep. 1078, this Court set forth the standards by which

we judgevehicular stops. In Gopher,we stated: 

# ".

.. The State's burden has two elements: (1) objectivedata fromwhich an experienced officer can make certain inferences;and (2) a resulting suspicion that the occupant of a certainvehicle is or has been engaged in wrongdoing orwas a witness to criminal activity. 

# .

# ." 631 P.2d at 296, 38 St.Rep. at 1081. The defendant's behavior clearly justified the stop. He placed a green bag in the back of his pickup. In driving away from the residence at 1014 Elm, he made several sharp turns in rapid succession at a relativelyhigh speed on icy

or snow-packed roads. He failed to use proper turn signals, and failed to pull over after the officers had activated their flashing light on top of their car. This dangerous and evasive driving, combinedwith the surveillance observations, provided a sufficient objective basis to give the officers a reasonable suspicion that the defendantwas engaged in wrongdoing. THE SEARCH OF DEFENDANT'S VEHICLE The defendant contends his consent to search his truck

was involuntary because the officers failed to inform him ofhis right to refuse consent and therefore he could not intelligently give his consent. The United States Supreme Court has expressly rejected such an argument in Schneckloth

v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854, and we seeno reason to impose a stricter standard under our own constitution. Thevoluntariness of consent is a question of fact, to be determined from the totality of the circumstances. The defendant's knowledge of his right to refuse the search is not controlling,but it is a factor to be taken into account. Bustamonte, supra. The defendant also contends that the presence of five police officerswas so inordinately coercive that the defendant's consentwas not truly voluntary. The defendant's offer to smoke any marijuana found in his vehicle belies his claim that he was intimidated by the presence of the officers because he opened the tool box to facilitate the search. Not a scrap of evidence suggests that defendant's consentwas coerced. The totality of the circumstance clearly establishes the defendant's voluntary consent to the search of his vehicle. PROBABLE CAUSE FORARREST--FRUIT OF THE POISONOUS TREE The argument that the arrestwas without probable cause, and the argument that the bag found nearby was fruit of the poisonous tree, must, of course,be based on a holding that the stop and searchwas illegal. Defendant's argument fails because of our holding that the stop and searchwas legal. SUBSTANTIAL EVIDENCE Defendant's contention that his convictionwas unsupported by substantial evidence is grounded primarily on the fact that no direct evidencewas presented to show that the defendanthad actual physical possession of themarijuana. This contention is withoutmerit.The officers sawdefendantplace a green garbage bag in the tool compartmentof his truck. Defendant eluded the officers,momentarily. The officers stopped defendant's truck and defendant consented to a search of his truck. The search revealed the green garbage bag was no longer in the tool compartment. The officer retraced the route of the defendant's vehicle and the officers discovered a bag similar to the one seen in the defendant's possession. It contained marijuana. Itwas clear that the bag had been recently thrown there because a recent snowfall had not covered it up, nor were there any footprints near the bag. Defendant seems to argue that a conviction cannot be upheld unless the defendant has physical possession of the contraband at the time of his arrest. But "[e]xclusive, immediatepersonal possession is not essential to establish constructivepossession." State v. rowb bridge (1971),157 Mont. 527, 487 P.2d 530, 532. The facts were sufficient to sustain the verdict. FAILURE TO COMPLY WITH STATEV. JUST The search of 1014 Elm and the car parked in front resulted in the seizure of a large amount ofmarijuana, scales forweighing it, and bags for packaging it. This search also resulted in the arrest of the occupant of the house, Michael Isom. The search and arrest were later found to be illegal. See, State

### v. Isom (1982),

### -Mont. 

### - I 641P.2d 417, 39 St.Rep. 137. Throughout the defendant's trial, testimony, exhibits and other evidence were permitted, over defendant's repeated objection concerning the search of 1014 Elm. Seven large garbage bags full of marijuana seized at 1014 Elm were present in the courtroom, although never introduced inevidence. Photographs of various paraphernalia, including a scale and screen seized at 1014 Elm were admitted in evidence. The testimony of the officers is repletewith references to the search at 1014 Elm and the arrest of Michael Isom. Of the 44 exhibits entered into evidence, 31 of them had been seized in the search of the house at 1014 Elm and the car parked in front. The State's position at trialwas that the evidence from 1014 Elmwas relevant to show a common scheme or plan. Notwithstanding this contention, the Statemade absolutely

no effort to complywith the testwe set forth in Statev. Just, supra,before evidence of other crimes or evidence of a common scheme or plan can be introduced. We stated in Just that a failure to comply with these standards would require reversal. 602P.2d at 961. Furthermore, the prosecutor, in arguing for the admission of this evidence, repeatedly promised the court that he would offer a cautionary instruction relating to this evidence. This promisewas not kept. Assuming the evidence to be otherwise admissible,we must reverse the conviction because of the failure to complywith the Just standards. But neither arewe convinced that the evidencewas admissible in the manner it was used. Rule 403,Mont.R.Evid., prohibits the introduction of evidencewhere its probative value is substantially outweighedby the "dangerof unfair prejudice, confusion of the issues, or misleading the jury



# .

# .." The defendantwas chargedwith possession of ten pounds ofmarijuana with intent to sell. But the jury viewed evidence of 80 to 90pounds of marijuana seized in the search of the house at 1014Elm. The defendant did not reside there, nor did he have any connection to the carparked in front. Although the State should be permitted to show a connection between the marijuana traced to the defendant and the marijuana found in the search of 1014 Elm, the amount of evidence used to demonstrate this connection,and the manner inwhich itwas used,was highly prejudicial to the defendant. But the connection between themarijuana found at the house and that traced to the defendant is obviously a circumstantial factor for the jury to consider in determiningwhether defendant placed marijuana in his pickup truck when he came out of the house at 1014 Elm. If themarijuana was packaged similariy,there is indeed the greater likelihood that itwas marijuana that the defendantplaced in the back of his pickup. The State could, however,prove this connection without using the tactics employed in this case. The judgment is vacated and the cause remanded for a new trial.

We Concur:

- Chief ~ustice



# Qe % Justices 

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