No. 13926 

IN THE 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: District Court 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&- 

erk 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

The State of Montana appeals from an order of the 

~istrict Court, Glacier County, suppressing all evidence 

obtained in the search of an automobile operated by Benoi 

Schultz and occupied by Timothy Schoendaller. The State 

further appeals from the order of the District Court dismissing criminal charges against Schoendaller. 

On the evening of February 4, 1977, at approximately 

8:55 p.m., two on-duty Cut Bank city police officers, riding 

together in their patrol car, observed two vehicles stopped 

in the 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 

for violating a Cut Bank city ordinance which prohibited 

"stopping in the middle 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 to exit the automobile and enter the rear seat of 

the police patrol car. Officer LaBane then requested Officer 

Babb to place his head in the 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 permission was denied, Officer LaBane proceeded to search the 

automobile. Marijuana, mellaril pills and drug smoking 

paraphernalia were found in the rear seat of the automobile. 
A hashish pipe was found on the floor beside the front 

passenger seat. Officer LaBane returned to his patrol car 

and formally arrested the defendants and female juvenile, 

based upon the evidence confiscated in his search. A 

wrecker was dispatched to pick up the car and it was impounded 

at the police station. Upon arrival at the police station, 

Officer Babb conducted a body search of defendants which 

disclosed a "white rock" marijuana pipe found in the pants 

pocket of Schoendaller. 

On February 8, 1977, defendants were charged in justice 

court, Glacier County, for the misdemeanor crime of criminal 

possession of dangerous drugs. The District Court subsequently granted the State leave to file Informations charging 

defendants. On February, 23, 1977, the Glacier County 

attorney filed Informations charging defendants with the 

crime of criminal possession of dangerous drugs (a quantity 

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 entered motions to suppress all 

evidence obtained by the police without a search warrant. 

The causes were consolidated for the purpose of hearing the 

motions to suppress. 

On April 6, 1977, the District Court conducted a hearing 

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

opposition to the motions to suppress were submitted to the 

District Court. On July 11, 1977, the District Court 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 to believe 

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 District Court 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 is made without further proof of 

probable cause is insufficient to justify 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 the warrantless search of the automobile 

and the subsequent arrest of the occupants on the basis of 

evidence seized in the search? 

2. Whether the presence of Schoendaller in the automobile constituted sufficient probable cause for (1) his 

arrest on the basis of evidence seized in the warrantless 

search of the automobile and (2) the subsequent search of 

his person at the 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, object or place may be made 

and instruments, articles or things may be 

seized in accordance with the provisions of 

this chapter when the search is made: 

"(a) As an incident to a lawful arrest. 

"(b) With the consent of the accused or 

of any other person who is lawfully in possession of the object or place to be searched, 

or who is believed upon reasonable cause to be 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 facts of the present case demonstrate a clear absence of 

either search and seizure incident to a lawful arrest, 

consent or search pursuant to a valid search warrant. 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 

rule of law applicable to the warrantless search and seizure 

of an automobile: 

"On reason and authority the true rule 

is that if the search and seizure without a 

warrant are made upon probable cause, that 

is, upon a belief, reasonably arising out of 

circumstances known to the seizing officer, 

that an automobile or other vehicle contains 

that which by law is subject to seizure and 

destruction, the search and seizure are valid. 

The Fourth Amendment is to be construed in 

the light of what was deemed an unreasonable 

search and seizure when it was adopted, and 

in a manner which will conserve public 

interests as well as 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 after judicial approval protects the 

seizing officer against a suit for damages. In 

cases where seizure is impossible except without 

warrant, the seizing officer acts unlawfully and 

at his peril unless he can show the court probable 

cause." Carroll v. United States, (1925), 267 

U.S. 132, 149, 156, 45 S.Ct. 280, 69 L.Ed. 543, 

549, 552. 

Carroll and its progeny 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 seizing officer 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 in the police officer's initial detention 

of defendants. Schultz was in violation of a Cut Bank city 

ordinance when he stopped his vehicle in the street for 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 in the past emanating from 

the automobile is sufficient probable cause for Officer 

LaBanels entry into the automobile, lacking any exigent 

circumstances, for the warrantless search of the automobile 

and the subsequent arrest of the occupants on the basis of 

evidence seized in the search. 

In State v. Spielmann, Christenson, (1973), 163 Mont. 

199, 205, 516 P.2d 617, this Court cited with approval the 

following definition of 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 in believing that the 

offense has been or is being committed. On the 

other hand, probable cause means more than a 

bare suspicion, the line between mere suspicion and probable cause 'must be drawn by an 

act of judgment formed in the light of the 

particular situation and with account taken 

of all the circumstances.'" United States v. 

Thompson, (3rd Cir. 1970), 420 F.2d 536, 539. 

The State has 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 lawfully within the country, entitled to use the 

public highways, have a right to free passage without 

interruption or search unless a competent official authorized 

to search has probable cause for believing that vehicles are 
carrying contraband or illegal merchandise. Carroll v. 

United States, supra. The border patrol cases are not persuasive 

when applied to the facts of the present case in light of 

right to privacy and search and seizure protections guaranteed 

by the United States Constitution and the 1972 Montana 

Constitution. 

Additional case authority cited by the State involves 

warrantless searches conducted after investigatory officials 

under different circumstances detected the odor of presently 

burning marijuana. Here, Officer LaBane testified at the 

suppression hearing: "I asked for Mr. Schultz's driver's 

license and at the same time I smelled a strong odor of 

marijuana in the car along with that of some incense or 

something, and * * * ." Officer LaBane further testified 

that although marijuana has a very distinctive odor, he 

could not determine whether defendants were smoking marijuana 

when the police officers came upon them or whether marijuana 

had been smoked in the automobile within the previous hour 

or more. Officer LaBane did agree that the mere odor of 

marijuana might linger in an automobile for more than a day. 

The police conducted their warrantless search on the 

basis of "* * * a strong odor of marijuana in the car along 

with that of some incense or something* * *" and lacking any 

exigent circumstances, such perception falls closer to the 

realm of bare suspicion than probable cause. We do not deny 

police officers the right to rely on their sense of smell to 

confirm their observations. However, to hold that an odor 

alone, absent evidence of visible contents, is deemed equivalent to plain view might very easily mislead officers into 

fruitless invasions of privacy where there is no contraband. 
There is very little dispute concerning the applicable 

law in this matter. 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 to observe the demeanor and conduct of 

each witness. As a result the law instructs this Court that 

the District Court's judgment comes to us with a presumption 

of correctness and the State here must overcome this presumption 

by a preponderance of the evidence. This burden has not been 

met. 

Therefore we must conclude the police officers did not 

have sufficient probable cause to search the automobile 

driven by Schultz. Evidence unconstitutionally seized 

during the search was properly suppressed by the District 

Court. Since the subsequent arrest of Schoendaller and the 

search of his person was the fruit of the unlawful search 

and seizure, the District Court properly suppressed evidence 

seized from Schoendaller and properly granted Schoendaller's 

motion to dismiss. 

The orders of the District Court 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 in the vacant seat 

of the Court. 
Mr. Justice John C. Harrison dissenting: 

I dissent. This Court has twice in the recent past dealt 

with cases considering whether the odor of marihuana constitutes 

probable cause for arrest and search. State v. Hull, (1971), 

158 Mont. 6, 487 P.2d 1314; State v. Bennett, (1972), 158 Mont. 

496, 493 P.2d 1077. While in Hull the officers had been notified 

that a pot party was in progress, a fact not present in the 

instant case, one of the controlling factors in this Court's 

affirming the conviction was the aroma of burning or burnt 

marihuana emanating from the residence. There, like here, no 

marihuana or hashish was visible when the officers went into 

the home. 

In Bennett, 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 or burnt 

marihuana gives officers probable cause to search and arrest. 

California, in an 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, in a case where 

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). 

In Arizona the court allowed the search of ax automobile 

trunk from which a "very faint1' odor of marihuana was detected. 

State v. Zamora, (1977), 114 Ariz. 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 is in 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 to use not only good judgment 

in handling 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, in my opinion, make their 

difficult task even more difficult. 

I would overrule the District Court and reinstate the 

State's criminal charge.