No. 13061 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

STATE OF MONTANA EX REL 

ALLAN LEE GOULDING, 111, 

Petitioner, 

THE DISTRICT COURT OF THE THIRTEENTH 

JUDICIAL DISTRICT OF THE STATE OF MONTANA, 

and the HONORABLE Me JAMES SORTE, as 

pres iding JUDGE THEREOF, 

ORIGINAL PROCEEDING: 

Counsel of Record : 

For Petitioner : 

Berger, Anderson, Sinclair and Murphy, Billings, 

Montana 

James J. Sinclair argued, Billings, Montana 

For Respondents: 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

John F. North, Assistant Attorney General, appeared, 

Helena, Montana 

Harold F. Hanser, County Attorney, argued, Billings, 

Montana 

For Amicus Curiae: 

Thomas C. Honzel, argued, Helena, Montana 

Submitted: June 24, 1975 

I)ec ided : , '~ild 3 2% 397% ,, , 

.:. : , 3'(& 

Filed : 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is a petition for writ of supervisory control by 

a defendant charged by information with the crime of criminal 

sale of dangerous drugs. On May 6, 1975, a hearing was had on 

a motion to suppress evidence. District Judge James Sorte, 

sitting in Yellowstone County, denied the motion to suppress and 

this petition for a writ of supervisory control followed. 

We issued an order setting an adversary hearing to 

determine whether this Court should accept jurisdiction. The 

district court appeared by brief and oral argument, as did the 

Montana County Attorneys Association, after leave by this Court 

to appear amicus. 

We have the benefit of a full transcript of the hearing 

on the motion to suppress. Here relator's sole contention is that 

the search of his person was invalid because it was made pursuant 

to an unlawful arrest. The basis for this assertion is that the 

officers who arrested without a warrant had no probable cause. 

Section 95-608, R.C.M. 1947, states: 

I I A peace officer may arrest a person when: 

"* * 9: 

"(d) He believes on reasonable grounds, that 

the person is committing an offense, or that the 

person has committed an offense and the existing 

circumstances require his immediate arrest. 11 

(Emphasis supplied). 

-Relator's arrest on the night February 

Billings was the culmination of a series of drug arrests by the 

Billings police in an undercover operation with the assistance of 

officers from Missoula County. The initial drug contact was with 

one Charles Bertram who resided in the Fishtail-Nye area. Bertram 

agreed to cooperate with the police officers. Missoula County 

Officer Lambert and Bertram went to Tommy Allen at Fishtail and 

purchased ten pounds of marijuana. Allen agreed to pick up another twenty pounds. Allen was paid $810 in marked money from the 
Billings police department. A meeting for later in the evening 

was set up at Coulson Park, on the outskirts of Billings. As 

scheduled, at 8:25 p.m. that evening, Allen appeared at Coulson 

Park and offered to sell marijuana. He was arrested and searched. 

He did not have the marked money but told the officers that he had 

obtained the marijuana from relator; had paid him with the money 

he had received from Bertram and Lambert; that relator had placed 

the money in his boot; that relator had supplied him with the 

marijuana and took the money; that the relator had done this at 

a certain apartment of relator's girlfriend or at another apartment where he would now be found. Within minutes the officers 

went to the two apartments indicated by Allen and relator was 

found, arrested, searched, and the marked money found in relator's 

boot. 

r el at or's position, as stated heretofore, is that the 

arrest was unlawful in that the informant Allen was not known 

to the police and thus was not known to be reliable. 

The reliability and credibility of information is a fact 

question in any given situation. In a recent case, State v. 

Paschke, I4on t . , 527 P.2d 569, 31 St.Rep. 847, involving 

the question of probable cause for the issuance of a search warrant, 

this Court discussed the reliability of information, independent 

of its source. We cited Justice White's concurring opinion in 

Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L ed 2d 

637, where it was pointed out that admissions against interest are 

sufficient to establish probable cause, even though related 

through a hearsay source. Here the statements of Tommy Allen are 

directly against interest. See: United States v. Harris, 403 

U.S. 573, 91 S.Ct. 2075, 29 L ed 2d 723. Here, Tommy Allen is a 

co-conspirator or even an accomplice. 

In State v. Thorsness, Mon t . , 528 P.2d 692,694, 

31 St. Rep. 895, 897, in discussing the sufficiency of an affidavit 
to support a search warrant this Court said: 

"In this case the establishment of probable cause 

sufficient to authorize the issuance of a search 

warrant turns on the statement in the affidavit 

that a 'source of known reliability' told police 

that Thorsness would be traveling through Missoula 

with Cocaine and other drugs in his possession on 

August 1, 1973. The quantum of information necessary 

to permit the use of such hearsay in establishing 

probable cause was set forth in Aguilar v. Texas, 

378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L Ed.2d 

723, 729: 

"'Although an affidavit may be based on 

hearsay information and need not reflect the direct 

personal observations of the affiant, Jones v. United 

States, 362 U.S. 257, 80 S.Ct. 725, 4 L ed 2d 697 

[78 A.L.R.2d 2331, the magistrate must be informed 

of some of the underlying circumstances from which 

the informant concluded that the narcotics were where 

he claimed they were, and some of the underlying circumstances from which the officer concluded that the 

informant, whose identity need not be disclosed [citing 

case], was "credible" or his information "reliable. I I 

9: * *' [Emphasis supplied]. 

 he affidavit here contains no underlying 

circumstances upon which the informant based his 

conclusion that Thorsness would be traveling through 

Missoula with cocaine or other drugs in his possession 

on August 1. The affidavit contains no statement as 

to how the informant received his information. It 

cannot be determined if the informant came by his information directly or whether he merely relied upon 

rumor or reputation. 

11 The deficiency here is similar to that found 

in Spinelli v. United States, 393 U.S. 410, 416, 89 S. 

Ct. 584, 589, 21 L.Ed.2d 637, where the Court said: 

If'* 5: * The tip does not contain a sufficient 

statement of the underlying circumstances from which 

the informer concluded that Spinelli was running a 

bookmaking operation. We are not told how the FBI's 

source received his information--it is not alleged that 

the informant personally observed Spinelli at work or 

that he had ever placed a bet with him. Moreover, if 

the informant came by the information indirectly, he 

did not explain why his sources were reliable. [Citing 

case] In the absence of a statement detailing the manner 

in which the information was gathered, it is especially 

important that the tip describe the accused's criminal 

activity in sufficient detail that the magistrate may 

know that he is relying on something more substantial 

than a casual rumor circulating in the underworld or 

an accusation based merely on an individual's general 

reputation. 111 

With this discussion of the law in mind, we examine this 

case. Here, Allen personally dealt with relator. Allen was a 
co-conspirator. Allen's reliability was that of an eyewitness and 

to apply any exclusionary rule or artificial standard for probable 

cause flies in the face of reasonable interpretation. 

Federal District Judge Battin in a memorandum and order 

dated April 11, 1975, in In the Matter of the Petition of Jon 

William Paschke and John Arnold Mason, CV-74-101-BLG, -- U.S. 

District Court, D. Mont., noted: 

 ro rob able cause exists to arrest where the facts 

and circumstances within the arresting officer ' s 

knowledge and of which he has reasonably trustworthy 

information are sufficient to warrant the officer to 

conclude that an offense has been or is being committed. 

Carroll v. United States, 267 U.S. 132, 162. In short, 

probable cause is a reasonable ground for belief of 

guilt. The question of proof for the establishment of 

probable cause is certainly less than that required 

for conviction. 1 II 

We find the circumstances under which the information 

was supplied support its reliability: (I) The information was given 

by Allen after his arrest and after he had secured additional 

marijuana from a source of supply in Billings. (2) Allen had 

been given marked money---$810-- and did not have it when arrested 

a relatively short time later. (3) Allen kept his appointment 

for delivery of more marijuana. (4) A.llen admitted his own 

participation. (5) Allen indicated the location of the apartment 

where relator could be found. 

Here, Judge Sorte was fully informed of all the facts 

upon which the officers acted. He correctly concluded the arrest 

was lawful. Accordingly, the petition for writ of supervisory control is denied. 
,; /chief Justice