No. 80-315 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

JOHN STEMPLE, JR-I 

Defendant and Appellant. 

Appeal from: District Court of the First Judicial District, 

In and 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 2 1 15% 

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. 

Defendant raises 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 stop his vehicle, and he contends that his consent 

to search his pickup was not voluntarily given. He also 

contends that certain evidence introduced at trial was fruit 

of the poisonous tree (that is, the illegal stop or the 

illegal search) and therefore was illegally admitted in 

evidence. He also contends that his conviction is unsupported 

by substantial evidence, this contention being based on the 

fact that defendant was not caught with the marijuana in his 

actual possession. Finally, he contends that admission of 

evidence seized as the result of another search was prejudicial 

and that he is entitled to a new trial. We affirm on all 

issues except the last. We hold that the evidence was 

admitted in flagrant violation of the standards we set forth 

in State v. Just (1979), - Mont . - , 602 P.2d 957, 36 

St.Rep. 1535, and further, that the manner in which 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 

state vehicle parked in front of the house. 
On the morning of January 11, 1980, detectives !%cCormick 

and Hammerbacker stated that they observed a man they believed 

to be coming out of the residence placing a partially-filled 

green garbage bag into the tool compartment of a two-tone 

Dodge pickup truck parked near the house. This man was 

later identified as the defendant. After placing the bag in 

the tool compartment, the defendant then returned to the 

house at 1014 Elm. 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 for more 

help, the truck was stopped by deputy John Risken. The 

detectives arrived on the scene only seconds after the 

defendant was stopped. The total time that had elapsed 

between when they had first lost sight of the vehicle and 

when they arrived at where it was eventually stopped was 

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 short 
distance that the defendant had travelled after eluding the 

detectives. Almost immediately a green garbage bag was 

found nearby which 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 car parked 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 the warrant for his 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 judge vehicular stops. In Gopher, we stated: 

". . . The State's burden has two elements: (1) 

objective data from which an experienced 

officer can make certain inferences; and (2) 

a resulting suspicion that the occupant of 

a certain vehicle is or has been engaged in 

wrongdoing or was 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 relatively high 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, combined with the surveillance observations, 

provided a sufficient objective basis to give the officers a 

reasonable suspicion that the defendant was 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 of 
his 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 see no reason to impose a stricter standard 

under our own constitution. The voluntariness 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 officers was so inordinately coercive that the defendant's 

consent was 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 consent was 

coerced. The totality of the circumstance clearly establishes 

the defendant's voluntary consent to the search of his 

vehicle. 

PROBABLE CAUSE FOR ARREST--FRUIT OF THE POISONOUS TREE 

The argument that the arrest was 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 search was illegal. Defendant's argument 

fails because of our holding that the stop and search was 

legal. 

SUBSTANTIAL EVIDENCE 

Defendant's contention that his conviction was unsupported 

by substantial evidence is grounded primarily on the fact 

that no direct evidence was presented to show that the 

defendant had actual physical possession of the marijuana. 

This contention is without merit. 
The officers saw defendant place a green garbage bag in 

the tool compartment of 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. It was 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, 

immediate personal possession is not essential to establish 

constructive possession." 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 STATE V. JUST 

The search of 1014 Elm and the car parked in front 

resulted in the seizure of a large amount of marijuana, 

scales for weighing 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 

641 P.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 in 
evidence. Photographs of various paraphernalia, including a 

scale and screen seized at 1014 Elm were admitted in evidence. 

The testimony of the officers is replete with 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 trial was that the evidence 

from 1014 Elm was relevant to show a common scheme or plan. 

Notwithstanding this contention, the State made absolutely 

no effort to comply with the test we set forth in State v. 

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. 602 P.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 promise was not kept. 

Assuming the evidence to be otherwise admissible, we must 

reverse the conviction because of the failure to comply with 

the Just standards. 

But neither are we convinced that the evidence was 

admissible in the manner it was used. Rule 403, Mont.R.Evid., 

prohibits the introduction of evidence where its probative 

value is substantially outweighed by the "danger of unfair 

prejudice, confusion of the issues, or misleading the jury 

. . ." The defendant was charged with possession of ten 

pounds of marijuana with intent to sell. But the jury 

viewed evidence of 80 to 90 pounds of marijuana seized in 

the search of the house at 1014 Elm. The defendant did not 

reside there, nor did he have any connection to the car 
parked 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 

in which it was used, was highly prejudicial to the defendant. 

But the connection between the marijuana found at the house and 

that traced to the defendant is obviously a circumstantial factor 

for the jury to consider in determining whether defendant placed 

marijuana in his pickup truck when he came out of the house at 

1014 Elm. If the marijuana was packaged similariy, there is 

indeed the greater likelihood that it was marijuana that the 

defendant placed 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 4