No. 

### 13061 INTHE 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 presiding 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. JusticeWesley Castles delivered the Opinion of the Court.
This 

### is a petition for

### writ of supervisory controlby a defendant charged by information with the crime of criminal saleof dangerous drugs. On May 6, 1975, a hearing was had on
a motion to suppress evidence. District Judge James Sorte, sittinginYellowstone County, denied themotion to suppress and this petition for a writof supervisory control followed. We issued an order settingan adversaryhearing 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 toappear amicus. We have thebenefit of a full transcript of thehearing
on the motion to suppress. Here relator's sole contention 

### is that the search of his person was invalid because it was made pursuant toan unlawful arrest. The basis for this assertion is that the officerswho arrestedwithout a warrant had no probable cause. Section 95-608, R.C.M. 1947, states:
II

A peace officer may arrest a person when: 

# "*

# * 9: "(d) He believes on reasonable grounds, that the person 

### iscommitting an offense, or that the person has committed an offense and the existing circumstances require his immediate arrest. 11 (Emphasis supplied). -Relator'sarrest on the night February Billingswas the culmination of a series of drug arrestsby the Billings police in an undercover operation with the assistance of officers from Missoula County. The initialdrug contact was with
one Charles Bertramwho resided in the Fishtail-Nye area. Bertram agreed tocooperate with the police officers. Missoula County Officer Lambert and Bertram went toTommy Allen atFishtail and purchased ten pounds of marijuana. Allen agreed topick up another twenty pounds. Allen was paid $810 inmarked money from theBillings police department. A meeting for later inthe evening
was setup atCoulson Park, on the outskirts of Billings. As scheduled, at8:25 p.m. that evening, Allen appeared atCoulson Park and offered to sellmarijuana. 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 relatorhad placed the money inhis boot; that relatorhad supplied him with the marijuana and took themoney; that therelator had done this at
a certain apartment of relator's girlfriend or atanother apartment where he would now be found. Within minutes the officers went tothe two apartments indicatedby Allen and relatorwas found, arrested, searched, and the marked money found inrelator's boot. 

### r el at or's position, as statedheretofore, 

### is that the arrestwas unlawful inthat the informant Allen was not known tothe police and thus was not known tobe reliable. The reliability and credibility of information is a fact question inany given situation. In a recent case, State

### v. Paschke, I4ont

# . , 527 P.2d 569, 31 St.Rep. 847, involving the question of probable cause for the issuance of a searchwarrant, this Court discussed the reliability of information, independent of 

### its source. We cited JusticeWhite's concurring opinion in Spinelliv. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L ed 2d 637, where itwas pointed out that admissions against interest are sufficient toestablishprobable 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 Led 2d 723. Here, Tommy Allen is a co-conspirator or even an accomplice. In Statev. Thorsness, Mont

# . , 528 P.2d 692,694, 31 St. Rep. 895, 897, in discussing the sufficiency of an affidavitto support a searchwarrant this Court said:
"In this case the establishment of probable cause sufficient toauthorize the issuance of a search warrant turns on the statement inthe affidavit that a 'source of known reliability' told police that Thorsness would be traveling through Missoula with Cocaine and other drugs inhis possession on August 

### 1, 1973. The quantum of information necessary topermit the use of such hearsay in establishing probable causewas set forth inAguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 LEd.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 Led 2d 697 [78 A.L.R.2d 2331, themagistrate must be informed of some of the underlying circumstances from which the informant concluded that thenarcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identityneed not be disclosed [citing case], was "credible" or his information "reliable. II 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 inhis possession on August 1. The affidavit contains no statement as tohow the informant received his information. It cannot be determined if the informant came by his information directly orwhether he merely relied upon rumor or reputation.

11

The deficiencyhere 

### is similar to that found in Spinelliv. United States, 393 U.S. 410, 416, 89 S. Ct. 584, 589, 21 L.Ed.2d 637, where the Court said:

If'* 5: 

# * The tipdoes not contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelliwas running a bookmaking operation. We arenot told how the

### FBI's source received his information--it isnot alleged that the informant personally observed Spinelliatwork 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 inwhich the information was gathered, it isespecially important that the tipdescribe the accused's criminal activity in sufficient detail that the magistrate may know that he isrelying 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 inmind, we examine this
case. Here, Allen personally dealt with relator. Allen was aco-conspirator. Allen's reliabilitywas that of an eyewitness and to apply any exclusionary rule or artificial standard for probable
cause flies inthe face of reasonable interpretation. Federal District Judge Battin in a memorandum and order dated April 11, 1975, in In theMatter 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 toarrest where the facts and circumstanceswithin the arresting officer

## 's knowledge and of which he has reasonably trustworthy information are sufficient towarrant the officer to conclude that an offense has been or 

### isbeing 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 circumstancesunder which the information
was supplied support 

### itsreliability: (I) The information was given by Allen afterhis arrest and afterhe had secured additional marijuana from a source of supply inBillings. (2) Allen had been given marked money---$810-- and did not have itwhen 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 Sortewas fully informed of allthe facts upon which the officers acted. He correctlyconcluded the arrest
was lawful. Accordingly, the petition for

### writof supervisory control

### is denied.,; /chief 

### Justice