No. 80-459 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS. 

TERRY JOHN SCHATZ, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone 

Honorable Diane G. Barz, Judge presiding. 

Counsel of Record: 

For Appellant: 

John L. Adams, Jr. argued, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mark Murphy argued, Assistant Attorney General, Helena, 

Montana 

Harold Hanser, Gounty Attorney, Billings, Montana 

Submitted: September 18, 1981 

Decided : flcr 1 9 198t 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

Defendant appeals from his conviction on three counts 

of robbery for which he was sentenced to 30 years, 30 years 

and 40 years to run consecutively. We affirm. 

Defendant raises issues concerning sufficiency of the 

evidence, challenges evidence seized from defendant's vehicle, 

and questions witness identification resulting from a photographic lineup. Because of the challenges made by the 

defendant, we set forth a detailed description of the evidence received at trial. 

On June 13, 1980, Paul Gjefle was working alone at the 

Laurel Kwik-Way store at approximately 10:OO a.m., when he 

was approached by an armed man who demanded money. When 

Gjefle expressed disbelief, the man struck him in the face 

with a pistol. Gjefle then placed money from the cash register 

into a paper sack. The armed robber fled on foot. Frances 

Campbell, a witness living near the store, noticed a man 

acting peculiarly and described him as running to a car 

identified as a red Mustang. She remembered a partial 

license plate number of 3-1125. 

On the evening of June 17, 1980, at approximately 11:OO 

p.m., a single male person armed with a pistol robbed the 

Billings Kwik-Way store. The clerk, Eileen Yansness, gave 

the police a description of the suspect. 

A third robbery was committed at the First Avenue 

Billings IGA, at about 2:00 a.m., on June 18, 1980. Minutes 

later a deputy sheriff in the vicinity, received a radio 

report of the robbery which indicated that the robber had 

fled north on North 22nd Street. While attempting to determine a probable get-away route, the deputy noticed a red 
Mustang headed north at an unusually slow speed. The deputy 

began to follow. The suspect car suddenly turned, parked 

and turned off its lights. The deputy parked and approached 

the suspect vehicle. The deputy noticed a person, later 

determined to be the defendant, lying motionless across the 

front seat. The deputy ordered the defendant to remove 

himself from the car, whereupon the deputy noticed, in plain 

view, a paper sack with an IGA logo, together with a pistol 

and some articles of clothing which were similar to those 

reportedly worn by the robber. The defendant was then 

placed under arrest and the evidence in plain view was 

seized. 

The following issues are raised on appeal: 

1. Whether the District Court properly denied defendant's motion to suppress the evidence seized from the 

vehicle? 

2. Whether evidence of a photographic lineup was correctly admitted at the time of trial? 

3. Whether defendant should have been granted a mistrial because defendant was seen by certain jurors, leaving 

the courthouse, while in handcuffs? 

4. Whether there was sufficient evidence to support the 

verdict? 

Defendant contends that the arresting officer did not 

have probable cause to believe that the defendant, when 

arrested, had committed a crime. Defendant argues: "However, suspicion of an officer alone unsubstantiated by some 

evidence upon which to base belief that a crime is or has 

been committed by the suspect is not enough to establish 

probable cause no matter what a subsequent search may re- 
veal." Defendant cites and relies upon State v. Rader 

(1978), 177 Mont. 252, 581 P.2d 437. 

In State v. Gopher (1981), Mont. , 631 P.2d 

293, 38 St.Rep. 1078, we discarded the dictum in Rader, cast 

aside the former requirement of "probable cause", and adopted 

the "particularized suspicion" test found in United States 

v. Cortez (1981), U.S. , 101 S.Ct. 690, 66 L.Ed.2d 

621. State v. Gopher, supra, published since trial of the 

case at bar, disposes of the defendant's contention here. 

In State v. Gopher, supra, Justice Harrison, speaking 

for a unanimous court, said: "It should be noted here that 

Officer Johnston is an experienced and knowledgeable member 

of the Great Falls police department, having been with the 

force for over twelve years. This is an important element 

of the Cortez analysis, which emphasizes that experienced 

law enforcement authorities are allowed to draw certain 

conclusions which laymen could not properly draw in determining if a specific vehicular stop is legally valid." 631 

P.2d at 295, 38 St.Rep. at 1080. 

In Gopher defendant's vehicle was stopped after the 

officer noticed it proceeding in an unusually slow manner, 

past the scene of the crime, at an early morning hour. 

In the instant case, Sergeant Brennan, a veteran of 9 

years of experience with the Yellowstone County sheriff's 

office, received a radio call that an armed robbery had 

occurred at the First Avenue IGA store. He was informed 

that the suspect had fled north and west from the rear of 

the IGA. Approximately three minutes after receiving the 

radio call, Sergeant Brennan observed a small red car 

traveling west on 6th Avenue North at an extremely slow 

pace." Unlike the facts of the arrest in Gopher, Sergeant 
Brennan did not have to stop defendant's vehicle. Rather 

defendant took evasive action by shutting off his lights and 

pulling over against the curb where defendant proceeded to 

recline motionless in the front seat of the car. Under the 

test adopted in State v. Gopher, supra, this experienced law 

enforcement officer had a "particularized suspicion" sufficient to effectuate a lawful arrest. The evidence seized 

was in plain view. The trial court properly denied defendant's motion to suppress. 

Defendant urges error in the admission of two photographic lineups. A photographic lineup was shown to Eileen 

Yansness, the clerk at the Billings Kwik-Way. She looked at 

an array of 7 photographs and identified the defendant's 

photograph as being, "the best one". The other photographic 

lineup contained an array of 6 photographs and was shown to 

Paul Gjefle and Frances Campbell. Mrs. Campbell picked the 

defendant's photograph from the array but was not positive 

in her identification. Mr. Gjefle correctly selected the 

defendant's picture from the array. Mrs. Campbell made no 

in-court identification. Mr. Gjefle and Eileen Yansness made 

positive in-court identifications. The law enforcement 

officers, who showed the photographic lineups to the various 

witnesses, testified that photographs were selected of other 

persons having similar physical characteristics to the 

defendant. They also testified that the defendant's photograph was not indicated to those making the identification. 

The question here raised was disposed of in State v. 

Pendergrass (1980) , - Mont. - , 615 P.2d 201, 37 St-Rep. 

1370. The determining factor is whether the array is unduly 

suggestive. The photographic lineups in question are part 
of this record and have been reviewed by the Court. We do 

not find them to be unduly suggestive. 

Defendant contends prejudice resulted from jurors 

seeing defendant in handcuffs. Defendant was viewed momentarily by certain jurors when being taken from the courtroom 

back to confinement. The viewing took place outside the 

courtroom. 

State v. Baugh (1977), 174 Mont. 456, 463, 571 P.2d 

779, 783, dealt with the issue of jurors viewing the defendant, 

in court, in handcuffs. This Court there said: 

" . . . Most courts now agree with Sawyer that 

a defendant is not denied a fair trial and is 

not entitled to a mistrial solely because he 

was momentarily and inadvertently seen in 

handcuffs by jury members." 

This language was quoted with approval and relied upon in 

State v. Pendergrass, supra. Here there was no showing of 

prejudice to the defendant resulting from the momentary 

viewing. 

Defendant had contended that if physical evidence 

seized from defendant's car was suppressed, then there would 

be insufficient evidence to support the conviction. This 

issue has been rendered moot by our ruling that the evidence 

was admissible. There was sufficient evidence to create a 

jury issue on each count. 

The judgment of the District Court is affirmed. 
We concur: