No. 13926 INTHE SUPREME COURT OF THE STATE OF MONTANA 1978

STATE OF MONTANA, Plaintiff and Appellant,

TIMOTHY J. SCHOENDALLER and BEN01 SCHULTZ I Defendant and Respondent.

Appeal from: DistrictCourt of the Ninth Judicial District, Honorable R. D. McPhillips, Judge presiding. Counsel of Record: For Appellant: Hon. Mike Greely, Attorney General, Helena, Montana John P. 

### Moore, County Attorney, Cut Bank, Montana Larry Epstein argued, Deputy County Attorney, Cut Bank,

Montana For Respondent: Werner and Nelson, Cut Bank, Montana 

### James C. Nelson argued, Cut Bank, Montana Aronow, Anderson, Beatty & Lee, Shelby, Montana Bruce W. 

### Moerer argued, Shelby, Montana

Submitted: March 2, 1978 Decided: 

## -2 

## 1978 ,>.n\;



### .

## 2 :99Q Filed: ,\Iti

31&- erkMr. Justice Gene B. Daly delivered the Opinion of the Court.

The Stateof Montana appeals from an order of the 

### ~istrict Court, Glacier County, suppressing allevidence obtained inthe search of an automobile operated by Benoi Schultz and occupied by Timothy Schoendaller. The State further appeals from the order of the DistrictCourt dismissing criminal charges against Schoendaller. On the evening of February 

### 4, 1977, atapproximately 8:55 p.m., two on-duty Cut Bank citypolice officers, riding together intheir patrol car, observed two vehicles stopped inthe lanes of traffic on a street in the City of Cut Bank. The officers directed the vehicles to the side of the road and approached the drivers. One of the vehicles was driven by Schultz, accompanied by Schoendaller and a female juvenile. Officer LaBane told Schultz the vehicles were stopped forviolating a Cut Bank city ordinance which prohibited "stopping in themiddle of the street" to talk. While standing beside the open driver's window of the Schultz vehicle, Officer LaBane detected the odor of marijuana and incense. Based on this detection the officer directed the occupants toexit the automobile and enter the rear seat of the police patrol car. Officer LaBane then requested Officer Babb toplace his head inthe window of the Schultz automobile to see if he could detect the odor of marijuana. Upon obtaining Officer Babb's confirmation that he too detected the odor of marijuana, Officer LaBane requested Schultz's permission to search the automobile. When permissionwas denied, Officer LaBane proceeded to search the automobile. Marijuana, mellaril pills and drug smoking paraphernalia were found inthe rear seat of the automobile.A hashish pipe was found on the floor beside the front passenger seat. Officer LaBane returned tohis patrol car and formally arrested the defendants and female juvenile, based upon the evidence confiscated inhis search. A wrecker was dispatched topick up the car and 

### it was impounded atthe police station. Upon arrival atthe police station, Officer Babb conducted a body search of defendants which disclosed a "whiterock" marijuana pipe found in the pants pocket of Schoendaller. On February 8, 1977, defendants were charged injustice court, Glacier County, for themisdemeanor crime of criminal possession of dangerous drugs. The 

### DistrictCourt subsequently granted the Stateleave to fileInformations charging defendants. On February, 23, 1977, the Glacier County attorney filed Informations charging defendants with the crime of criminal possession of dangerous drugs (aquantity of marijuana weighing 

### less than 60 grams), a misdemeanor in violation of section 54-133, R.C.M. 1947. Defendants entered pleas of not guilty and enteredmotions to suppress 

### all evidence obtained by the policewithout a search warrant. The causes were consolidated for the purpose of hearing the motions to suppress. On April 6, 1977, the DistrictCourt conducted a hearing

on themotions to suppress. Briefs in support of and in opposition to the motions to suppress

### were submitted to the DistrictCourt. On July 11, 1977, the DistrictCourt issued its findings of fact, conclusions of law and order granting Schultz's motion to suppress on the grounds: 

## "** 

## * The seizing officer, by his testimony and conduct, did not have reasonable cause tobelieve the contents of the automobile offended against the 

### law. Therefore, probable cause sufficient for 

### a search, separate from probable cause for an 

### arrest, did not exist."On the 

### same day, the DistrictCourt issued 

### its findings of fact, conclusions of 

### law and order granting Schoendaller's motion to suppress and motion to dismiss on the same grounds and added: 

## "*

## * * To bring a charge against the defendant herein, more than mere presence in the place where a search 

### ismade without further proof of probable cause 

### is insufficient tojustify an arrest. " The State

### raises two issues for review: 1. Whether a police officer's detection of the odor of marijuana emanating from inside an automobile 

### is sufficient probable cause for thewarrantless search of the automobile and the subsequent arrestof the occupants on the basis of evidence seized inthe search? 2. Whether the presence of Schoendaller in the automobile constituted sufficientprobable cause for 

### (1)his arreston the basis of evidence seized inthe warrantless search of the automobile and (2) the subsequent search of his person atthe police station and the seizure of evidence? The law of search and seizure 

### is codified 

### as Chapter 7, Title 95, Revised Codes of Montana. Section 95-701, R.C.M. 1947, specifically provides: "Searches and seizures--when authorized. A search of a person, objector place may be made and instruments, articles or things may be seized inaccordance with the provisions of this chapter when the search 

### ismade: "(a) As an incident toa lawful arrest. "(b) With the consent of the accused or of any other person who 

### is lawfully inpossession of the object or place tobe searched, orwho isbelieved upon reasonable cause tobe in such lawful possession by the person making the search. 

### "(c) By the authority of a search warrant. 

### "(d) Under the authority and within the scope of a right of lawful inspection granted by law."

### The factsof the present case demonstrate a clear absence of either search and seizure incident toa lawful arrest, consent or searchpursuant toa valid searchwarrant. Thus, the question becomes whether the instant search and seizure 

### is authorized under subparagraph (d), 

### " 

## * 

## * * within the scope of a right of lawful inspection granted by law." The United States Supreme Court long ago announced the ruleof law applicable tothe warrantless search and seizure of an automobile: "On reason and authority the true rule 

### is that if the search and seizurewithout 

### a warrant 

### aremade upon probable cause, that 

### is, upon a belief, reasonably arising outof circumstances known tothe seizing officer, that an automobile orother vehicle contains thatwhich by 

### law

### is subject to seizure and destruction, the search and seizure 

### are valid. The Fourth Amendment 

### is tobe construed in the lightof what 

### was deemed an unreasonable search and seizurewhen 

### itwas adopted, and ina 

### manner which 

### willconserve public interests 

### as wellas the interests and rights of individual citizens. 

## "*

## * * In cases where the securing of a warrant 

### is reasonably practicable, 

### it must be used, and when properly supported by affidavit and issued afterjudicial approval protects the seizing officer against 

### a suitfor damages. In cases where seizure 

### is impossible except without warrant, the seizing officer actsunlawfully and athis peril unless he can show the courtprobable cause." Carroll v. United States, (1925), 267 U.S. 132, 149, 156, 45 S.Ct. 280, 69 L.Ed. 543, 549, 552. Carroll and 

### itsprogeny clearly distinguish the right to search an automobile and 

### seize evidence from the right to arrest: 

## "** * The right to search and the validity of the seizure are 

### not dependent on the right to arrest. They are 

### dependent on the reasonable cause the seizingofficer has for belief that the contents of the automobile offend against the law." 267 U.S. 158, 159.See also: Chambers v. Maroney, (1970), 399 U.S. 42, 90 S.Ct. 1975, 26 L ed 2d 419; Coolidge 

### v. New Hampshire, (1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L ed 2d 564. We find no error inthe police officer's initialdetention of defendants. Schultz was inviolation of a Cut Bank city ordinance when he stopped his vehicle inthe streetfor the purpose of conversing with the driver of another vehicle, similarly blocking the street. The crucial question is whether the officer's detection of the old odor of incense and marijuana smoked sometime inthe past emanating from the automobile 

### is sufficientprobable cause for Officer LaBanels entry into the automobile, lacking any exigent circumstances, for the warrantless search of the automobile and the subsequent arrestof the occupants on the basis of evidence seized inthe search. In Statev. Spielmann, Christenson, (1973), 163Mont. 199, 205, 516 P.2d 617, this Court citedwith approval the following definitionof probable cause: "One need not have evidence which would justify conviction; probable cause exists if the facts and circumstances known to the officer would warrant a prudent man inbelieving that the offense has been or is being committed. On the other hand, probable cause means more than a bare suspicion, the linebetween mere suspicion and probable cause 'must be drawn by an actof judgment formed inthe light of the particular situation and with account taken of allthe circumstances.'" United Statesv. Thompson, (3rd Cir. 1970), 420 F.2d 536, 539. The Statehas cited some border patrol cases which involve smoke and burning marijuana but these are easily distinguishable by virtue of the circumstances existing at national borders in

### terms of national self-protection. ~ut those lawfullywithin the country, entitled touse the public highways, have 

### a right to freepassage without interruptionor search unless a competent official authorized to search has probable cause for believing thatvehicles are

### carrying contraband or illegalmerchandise. Carrollv. United States, supra. The border patrol cases arenot persuasive when applied to the factsof the present case inlight of right toprivacy and search and seizureprotections guaranteed by the United StatesConstitution and the 1972Montana Constitution. Additional case authority citedby the State involves warrantless searches conducted after investigatory officials under differentcircumstances detected the odor of presently burning marijuana. Here, Officer LaBane testified atthe suppression hearing: "I 

### asked for Mr. 

### Schultz's driver's license and atthe same time I 

### smelled a strong odor of marijuana inthe car along with

### thatof some incense or something, and 

## * 

## * * 

# ." Officer LaBane further testified that although marijuana has a very distinctive odor, he could not determinewhether defendants were smoking marijuana when thepolice officerscame upon them orwhether marijuana had been smoked inthe automobile within the previous hour

ormore. Officer LaBane did agree that themere odor of marijuana might linger inan automobile formore than a day. The police conducted theirwarrantless search on the basis of 

## "** 

## * a strong odor of marijuana inthe car along with that of some incense or something* 

## * 

## *" and lacking any exigent circumstances, such perception fallscloser to the realm of bare suspicion than probable cause. We 

### do not deny police officers theright torely on their sense of smell

### to confirm their observations. However, tohold that an odor alone, absent evidence of visiblecontents, is

### deemed equivalent toplain view might very easilymislead officers into fruitless invasions of privacy where there is 

### no contraband.

### There is

### very littledispute concerning the applicable law inthismatter. However, close question presents itself

on the facts involved. Again, this Court is 

### faced with a cold record, while the District Court heard the evidence and had the opportunity toobserve the demeanor and conduct of each witness. As 

### a result the law instructs this Court that the District Court's judgment comes tous with a presumption of correctness and the Stateheremust overcome thispresumption by a preponderance of the evidence. This burden has not been met. Thereforewe must conclude the police officers did not have sufficientprobable cause to search the automobile drivenby Schultz. Evidence unconstitutionally seized during the searchwas properly suppressed by the District Court. Since the subsequent arrestof Schoendaller and the search of his person was the fruitof the unlawful search and seizure, the District Court properly suppressed evidence seized from Schoendaller and properly granted Schoendaller's motion todismiss. The orders of the DistrictCourt granting defendant's motions to suppress and Schoendaller's motion to dismiss are affirmed.

/ 

### Justice

We Concur:

Chief Justicg 

# 4

I



### Hon.' L. Cf; 

### Gulbrandson, District Judge, sitting inthe vacant seat of the Court.

### Mr. Justice John C. 

### Harrison dissenting: I 

### dissent. This Court has twice inthe recent past dealt with cases considering whether the odor of marihuana constitutes probable cause for arrest and search. Statev. Hull, (1971), 158Mont. 6, 487 P.2d 1314; Statev. Bennett, (1972), 158Mont. 496, 493 P.2d 1077. While inHull the officershad been notified that a pot party was inprogress, a factnot present in the instant case, one of the controlling factors in this Court's affirming the conviction was the aroma of burning orburnt marihuana emanating from the residence. There, likehere, no marihuana or hashish was visiblewhen the officers went into the home. InBennett, the officers smelled the marihuana when they entered the apartment building, and before going upstairs to the apartment occupied by the defendants. While 

# - Hull and Bennett differ factually from the instant case, I 

### believe they have until

now stood for the proposition that the odor of burning orburnt marihuana gives officers probable cause to search and arrest. California, inan opium case, found sufficient cause to search and arrest in People v. Bock Leung Chew, (1956), 142 Cal. App.2d 400, 298 P.2d 118. Also California, ina casewhere the smell of marihuana odors came from a hotel room, the court upheld a conviction. Vaillancourt v. Superior Court for County of Placer, 273 Cal.App.2d 791, 78 Calif. Rptr. 615 (1969). InArizona the court allowed the search of ax automobile trunk from which a "very faint1'odor of marihuana was detected. State v. Zamora, (1977), 114Ariz. 75, 559 P.2d 195, 197. This

case, like the one before us, was an automobile case and I 

### would adhere to the rule established there, that:

# "*** The odor of marijuana isin itself enough to provide probable cause to initiate a search. 

# *

# ** Nor 

### is there any requirement that it

### be a strong odor.11 

### Police officers have touse not only good judgment inhandling cases of this type, but must rely much on their three senses 

## - sight, smell and hearing. To limit

### them to sight and hearing, and not smell

### will, inmy opinion, make their difficulttask even more difficult. 

### I would overrule the District Court and reinstate the State's criminal charge.