### 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 19

## 198tMr. 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 identificationresulting from a photographic lineup. Because of the challenges made by the defendant, 

### we 

### set forth a detailed description of the evidence received attrial. On June 13, 1980, Paul Gjefle was working alone atthe Laurel Kwik-Way store atapproximately 10:OO 

### a.m., when he



### was approached by an armed man who demanded money. When Gjefle expressed disbelief, theman 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 asrunning to a car identified 

### as a red Mustang. She remembered 

### a partial licenseplate number of 3-1125. On the evening of June 17, 1980, atapproximately 11:OO p.m., 

### a singlemale 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 atthe FirstAvenue Billings IGA, atabout 2:00 a.m., on June 18, 1980. Minutes later a deputy sheriff inthe 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 atan 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 tobe the defendant, lying motionless across the front seat. The deputy ordered the defendant toremove himself from the car, whereupon the deputy noticed, inplain view, a paper sack with an IGA 

### logo, together with a pistol and some articlesof clothingwhich 

### were similar to those reportedly worn by the robber. The defendant was then placed under arrestand the evidence inplain 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 atthe 

### timeof trial? 3. 

### Whether defendant should have been granted a mistrialbecause defendant was seen by certainjurors, leaving the courthouse, while inhandcuffs? 4. 

### Whether there was sufficient evidence to support the verdict? Defendant contends that the arresting officer did not have probable cause tobelieve that the defendant, when arrested, had committed a 

### crime. 

### Defendant argues: "However, suspicion of an officer alone unsubstantiated by some evidence upon which tobase belief that a 

### crime is

### orhas been committed by the suspect is 

### not enough toestablish probable cause no matter

### what a subsequent searchmay 

### re-veal." Defendant citesand reliesupon Statev. Rader (1978), 177Mont. 252, 581 P.2d 437. In Statev. Gopher (1981), Mont. 

## , 631 P.2d 293, 38 St.Rep. 1078, 

### we discarded the dictum inRader, cast aside the former requirement of "probable cause", and adopted the "particularized suspicion" 

### test found inUnited States

v. Cortez (1981), U.S. 

## , 101S.Ct. 690, 66 L.Ed.2d 621. Statev. Gopher, supra, published since trial of the



### case atbar, disposes of the defendant's contention here. In Statev. Gopher, supra, Justice Harrison, speaking for a unanimous court, said: "Itshould be noted here that Officer Johnston 

### is an experienced and knowledgeable member of the GreatFalls police department, having been with the force for over twelve years. This 

### is an important element of the Cortez analysis, which emphasizes thatexperienced law enforcement authorities areallowed todraw certain conclusions which laymen could not properly draw indetermining if 

### a specificvehicular stop 

### is legallyvalid." 631 P.2d at295, 38 St.Rep. at1080. In Gopher defendant's vehicle

### was stopped after the officer noticed 

### itproceeding inan unusually slowmanner, past the scene of the crime, atan earlymorning hour. In the instant case, SergeantBrennan, 

### a veteran of 9 years of experience with theYellowstone County sheriff's office, received 

### a radio 

### call that an armed robbery had occurred 

### atthe FirstAvenue IGA store. He

### was informed that the suspect had fled north and 

### westfrom the rear of the IGA. Approximately threeminutes afterreceiving the radio call, Sergeant Brennan observed a 

### smallred 

### car traveling west on 6thAvenue North 

### atan extremely slow pace." Unlike the facts of the arrest inGopher, SergeantBrennan did not have to stop defendant's vehicle. Rather defendant took evasive action by shutting off his lights and pulling over against the curbwhere defendant proceeded to reclinemotionless inthe front seatof the car. Under the 

### test adopted inStatev. Gopher, supra, this experienced law enforcement officer had a "particularized suspicion" sufficient toeffectuate a lawful 

### arrest. The evidence seized

was inplain view. The 

### trial courtproperly denied defendant's motion to suppress. Defendant urges error inthe admission of two photographic lineups. A photographic lineupwas shown to Eileen Yansness, the clerk atthe Billings Kwik-Way. She looked at

an array of 

### 7 photographs and identified the defendant's photograph asbeing, "the best one". The other photographic lineup contained an array of 6photographs and was shown to Paul Gjefle and Frances Campbell. Mrs. Campbell picked the defendant's photograph from the array but

### was not positive inher 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 thatphotographs 

### 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 inState

### v. Mont. Pendergrass (1980)

## , 

## - - , 615 P.2d 201, 37 St-Rep. 1370. The determining factor iswhether the array 

### isunduly suggestive. The photographic lineups inquestion are partof 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 inhandcuffs. Defendant was viewed momentarily by certainjurors when being taken from the courtroom back to confinement. The viewing took place outside the courtroom. Statev. Baugh (1977), 174 Mont. 456, 463, 571 P.2d 779, 783, dealtwith the issue of jurors viewing the defendant, incourt, inhandcuffs. This Court there said: 

### "

# . . . Most courts now agree with

### Sawyer that a defendant isnot denied a fair trial and 

### is not entitled to a mistrial solelybecause 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 issuehas 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: