No. 13595 INTHE SUPREME COURT OF THE STATE OF MONTANA 1977

THE STATE OF MONTANA, Plaintiff and Respondent,

-vsALBERT F. LENON, Defendant and Appellant.

Appeal from: District Court of the Eleventh Judicial District, Honorable Robert Sykes, Judge presiding. Counsel of Record: For Appellant: Hash, Jellison & O'Brien, Kalispell, Montana James Bartlett argued, Kalispell, Montana For Respondent: Hon. l4ike Greely, Attorney General, Helena, lbntana J. Mayo Ashley argued, Assistant Attorney General,

Helena, Montana Patrick Springer, County Attorney, Kalispell,

Montana

Submitted: September 21, 1977 DecidedGT

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# 1xx m2s 191. Filed.Mr. Chief JusticePaul G. Hatfield delivered the Opinion of the Court. Defendant appeals from a conviction of possession of dangerous drugs. The statecharged defendant indistrictcourt, Flathead County, with the offenseof felony possession of dangerous drugs. On January 28, 1976, Honorable Robert C. Sykes, aftera hearing, denied defendant's motion to suppress his confession. On April 20, 1976, defendant was found guiltyof this offense ata jury trial. On June 2, 1976, the court entered judgment, sentenced defendant tofiveyears imprisonment, and then suspended the sentence. On June 21, 1976, the court denied defendant's alternativemotions for acquittal orfor a new trial. The factsbrought out atthe trialwhich are relevant tothis appeal areas follows: On June 11, 1975, Kalispell police officersobtained a warrant to search a Kalispell house. The officers executed the warrant shortly before midnight on Friday, June 13, 1975. As they approached thehouse, they observed an individual, 8 to 10 feet infrontof them, approaching thehouse

on the frontwalk. The officers, fearing that the individual would alert the occupants of the house astothe imminent search, pursued the individual intothehouse. Policeman Donald Hossack testified that, from the light inthe house foyer, he could identify the individual by hisheight, type and color of shirt, hair color and length, build and type of jeans. The individual had a bundle orbag under his arm, and silhouetted inthe house light, it appeared tobe a brown paper bag. The officersentered thehouse four tosix seconds after the individualdid. Upon their entry, the officers came faceto-face with defendant, who matched the appearance of the individual they saw enter the house with the bag orbundle. Directly behind defendant, about threeor four stepsup the stairway,was a brown paper bag. The officers intheir search, seized various drug paraphernalia and marijuana inthe upstairs

rooms. The brown paper bag directlybehind defendant contained 16 "lids"of marijuana, weighing approximately one ounce per lid. The police officerswrote an inventory of the items seized, which they leftatthe house, and returned the searchwarrant and an inventory of the seized itemstothe court. The police officers, however, failed tomake a return of the brown paper bag of marijuana tothe courtwhich issued the searchwarrant. The officersthen arresteddefendant and the two people who were the subjects of the searchwarrant. Defendant and the two other arresteeswere read theirMiranda rights and then transported tothe Kalispell Cityjail forbooking purposes. Atthe police station the officersgave defendant a form printed with theMiranda warnings. Defendant signed that form. The Booking procedure was completed sometime between 2:30 and 3:00 a.m.

on Saturday, June 14, 1975, atthe Flathead County jail. Shortly before 9:00 a.m. on Saturday, June 14, 1975, Officer Hossack metinthejail with defendant. The officer did not remember whether he gave defendant 

### a verbal Miranda warning attheir 9:00 a.m. meeting, although he has a notation inhis records saying thathe did. The officer gave defendant a "voluntary statement" form with a Miranda-like warning printed atthe top. Defendant then, inhis own handwriting, wrote thathe had taken a sack containing marijuana intothe house on the night he

was arrested. No lawyer was present atthe confession. Officer Hossack testified thathe didnot know if in factdefendantknew he didnot have tomake a statement, did not know whether defendant knew he could have a lawyer present, and didnot know whether defendant knew his statement could be used againsthim ina court of law. The officer did state, though,that he read defendant the top part of the "voluntary statement" formwhich listed defendant's right to an attorney and his right to remain silent. Officer Hossack, who had been a "friendly acquaintance" of defendant for ten to fifteenyears, assured defendant that he would bring him before a judge and get him admitted to bail as

soon as possible. The justice of the peace was out of town and defendantdid not have his initial appearance until themorning of Monday, June 16, 1975. The officer testified that 

### " 

## * * * formy own clarification and for a better case 

## * * *" he thought he told defendant to add in a statement that the sack was brown colored. Defendantdid write this into the confession and signed it at the bottom. Defendant raises the following issueson appeal: 1. Did the police have probable cause to arrest defendant? 2. Did the "then existing circumstances" require defendant's immediate arrest, as contemplated in section 95-608(d), R.C.M. 1947? 3. Was defendant's confession voluntarily given? 4. Did the officers' failure to present defendantbefore a magistrate before interrogation render the confession inadmissible? 5. Did Officer Hossacklsstatementat trial that he was looking specifically for the brown paper bag before he went into the house constitute reversible error? 6. Did the police officers' failure to make a return of the brown paper bag of marijuana, render the seized evidence inadmissible under section 95-712,R.C.M. 1947? Defendant states that "good faith and mere suspicion" by policemen as to a suspect's commission of an offense isinsufficientto establish probable cause to arrest. Themere fact that a defendant is on the premises where the policemen have reason to believe there are drugs will not justify an arrest. State ex rel. Glantz v. District Court, 154 Mont. 132, 461 P.2d 193 (1969). There must be a showing of some connectionwith illegal or criminal activity by a defendant on the premises before there is probable cause to arresthim. Statev. Hull, 158 Mont. 6, 487 P.2d 1314 (1971). Defendantargues that therewere insufficient facts to connect him with the brown paper bag ofmarijuana at the time of the arrest. At most, the facts gathered by the peace officers at themoment of arrest, gave reason for them to be suspicious of the defendant. Defendant is indubitably correct in his assertion that "mere suspicion" is not the equivalent of probable cause to arrest. State

### v. Lahr, Mont

# . , 560 P.2d 527, 34 St.Rep. 90 (1977). A peace officer may legally arrest a person without a warrant, however, when he "believeson reasonable grounds that the person is committing an offense

## * * 

## *". Section 95-608(d), R.C.M. 1947. The "reasonablegrounds" requirement of section 95-608(d) is synonymouswith "probable cause". State v. Fetters& Lean, 165 Mont. 117, 526 P.2d 122 (1974). "Probable cause to arrestwithout

a warrant exists where the facts and circumstanceswithin the officer's knowledgeand of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or isbeing committed." State v. Hill, Mont

# . 550 P.2d 390, 33 St. Rep. 496 (1976). Defendant matched the physical appearance as to clothing, statute,build and hairstyle of the individual that the officers saw enter the house immediatelybefore them; the individualwho entered the house carried a brown sack; the officers confronted defendant immediatelyupon entering the house; the officers discovered a brown paper bag full ofmarijuana on the steps directly behind defendant. In this case the "factsand circumstances within the [officers'] knowledge" could reasonably have led them to no other belief than that defendantwas committing the offense of possession of dangerous drugs. Defendant next contends that,because the police officers knewdefendant to be a reputable Flathead County businessman with no prior criminal record, the existing circumstances did not requirehis immediate arrest. Section 95-608(d), R.C.M. 1947,allows a warrantless arrest only when the officer reasonably believes the suspect is committing an offense or 

### " 

## * * * that the person has committed an offense and the existing circumstances require his immediate arrest." Defendant claims that the police thus had the statutoryduty to present facts establishing probable cause to a neutral magistrate who could then judge the sufficiency of the probable cause to arrest. Defendant's reasoning on this point is specious. Section 95-608(d) provides for two distinct situations. Where an officer reasonably believes that a person had in the past committed an offense,he may arrest the suspect without a warrant only where the existing circumstances require his immediate arrest. Where, however, the peace officer reasonably believes that an individual is presently committing an offense, he may arrest that person at that time,whether or not the existing circumstances require the arrest. Defendantherein was charged with the offense of possession of dangerous drugs, and at the moment of his arrest the officers could reasonably believe that defendant was committing that possessory offenseby virtue of his similarity in appearance to the person they had just seenenter the house with the brown bag, and due to the fact that the brown bag ofmarijuana was directly behind defendant on the stairs. See People v. Berry, 17 I11.2d 247, 161N.E.2d 315

(1959),overruled in part on other grnds.; Peoplev. Watkins, 19111.2d 11, 166 N.E.2d 433 (1960). If a defendant's confession is involuntary, itviolates his Fifth and Fourteenth Amendment privilege against selfincrimination and may not be used as evidence at his criminal trial without violating his Fourteenth Amendment right to due process of law. Brown v. Mississippi, 297 U.S. 278, 80 L Ed 682, 56 S.Ct. 461 (1936). Voluntariness is the underlying test of admissibility of statements, admissions or confessions. Brown v. Illinois, 422U.S. 590, 45 L Ed 2d 416, 95 S.Ct. 2254

(1975);State v. Zachmeier, 151Mont. 256, 441 P.2d 737 (1968). The question of voluntariness largely depends upon the factsof each case,no single fact being dispositive. Brown v. Illinois, 45 

### L Ed 2d at 427; Statev. Chappel, 149 Mont. 114, 423 P.2d 47 (1967). The determination of voluntariness, rather,depends upon the "totalityof circumstances". Clewis

### v. Texas, 386 U.S. 707, 18 

### L Ed 2d 423, 87 S.Ct. 1338 (1967). The trial judge, at the January 28, 1975 hearing on defendant's m~tion to suppress, determined that defendant had voluntarily given his written confession to the offense of possession of dangerous drugs. The issue of the voluntariness of a confession is largely a factualdetermination,addressed to the discretion of the trial court. State

### v. White, 146Mont. 226, 405 P.2d 761 (1965), cert. den. 384 U.S. 1023, 16 L Ed 2d 1026, 86 S.Ct. 1955 (1966). The trial court's judgment as to voluntariness of a confession will not be reversed on appeal unless it is clearly against the weight of the evidence, State

### v. Smith, 164 Mont. 334, 523 P.2d 1395 (1974);State v. Rossell, 113Mont.457, 127 P.2d 379 (1942). Defendant argues that several factors created a "totality of circumstances" under which his confession was involuntary. Defendant asserts that because Officer Hossack testified that he may have instructed defendant to add to his confession the statement that the sack (which he had previously admitted having carried into the house) was a grocery sack of brown color, the confessionwas derived from the officer's and not from defendant's thought processes. Defendantmaintains that he confessed due to hope of leniency through subservience to the directions of the police officer,and that the officer had incorrectly informed him that the other two suspects arrested on the night of the search had already confessed. Finally,defendant points out that the interrogating officer testified that he did not remember whether he orally read defendanthis Miranda rights on the morning of the confession and did not knowwhether defendant understood his rights. We cannot overemphasize our strong condemnation of police practices wherein an officer instructs a suspect to add certain words to his confession "for a better case" or wherein a police officer misinforms a defendant as to other arrestees having given confessions, as is alleged here. We cannot, however, upon 

### a review of the entire record, state that the totality of the circumstanceswas such as to overbear defendant's will and create "'

## * * 

## * any fair risk of a false confession?'" State

### v. Robuck, 126 Mont. 302, 308, 248 P.2d 817 (1952),citing from Statev. Sherman, 35 Mont. 512, 90 P, 981, 119 Am.St.Rep. 869, The evidence at trial indicated that there was an atmosphere of cordiality between defendant and Officer Hossack at the time of interrogation. This is in marked contrast to the physical brutality in Brown v. Mississippi, 297 U.S. 278, 80 L Ed 2d 682, 56 S.Ct. 461 (1936)or the mental coercion in Payne v. ~rkansas, 356 U.S. 560, 2 L Ed 2d 975, 78 S.Ct. 844 (1958)which led toforced, involuntary, and therefore, inadmissible confessions. Rather than making threats, the officer in this casemerely asked defendant if he would make a statement. The officer testified that he made no promises contingentupon defendant's giving a confession,and defendant, who chose not to take the stand,presented no evidence to rebut the officer's assertion. Nor was there any other evidence of coercion in this

case. Defendant is an adult male and successful businessman who presumably could well comprehend the import of his actions. The police did not subject defendant to the "third degree". Rather, the interrogationbegan at 9:00 a.m. and defendant wrote and signed his confession by 9:lO a.m. The officer's suggestion that defendantadd the sentence that the sack he carried into the house "wasa grocery sack of brown color" is not,under the factsof this case, sufficient to show that the confessionwas involuntary. In the absence of coercive circumstances,the key iswhether a defendant voluntarily sees the facts as the officer reflects them. See United States

### v. Del Porte, 357 F.Supp. 969

(S.D. 

### N.Y. 1973), aff'd subnom., United Statesv. St. Jean, 483 F.2d 1399 (2ndCir. 1973). In this case,defendant in his confession had already admitted that he had carried a sack containing marijuana into the house. The additional sentence, written at the officer's suggestion, merely described the color of that sack. Despite the voluntary character of defendant's confession under traditional principles, defendant's confession would have to be excluded if the requirements of Miranda v. Arizona, 384 U.S. 436, 16 L Ed 2d 694, 86 S.Ct. 1602 (1966)were not met by the police officers. Under Miranda, a defendant,prior to in-custody interrogation, must be apprised that he has the right to remain silent; that anything he does saymay be used as evidence againsthim in a court of law; that he has the right to consult a lawyer and have the lawyer present with him during interrogation; and that, if he is indigent,hemay obtain court appointed counsel. In interpreting Miranda, the Supreme Court has stated that: 

### " 

## * * 

## * unless law enforcement officers give certain specified warnings before questioning a person in custody,

## * * * any statement made by the person in custody cannot over his objectionbe admitted in evidence against him as a defendant at trial, even though the statement may in fact be wholly voluntary. See Michigan v. Tucker, 417 U.S. 433, 41 L Ed 2d 182, 94 S.Ct. 2357." Michigan v. Mosley, 423 U.S. 96, 46 

### L Ed 2d 313, 319, 96 S.Ct. 321

(1975). See also,Doyle 

### v. Ohio, 426 U.S. 610, 49 L Ed 2d 91, 96 S.Ct.

Defendant states that Officer EIossacklsstatementat trial that he did not remember whether he gave defendant a verbal ~iranda warning on the morning of defendant's confession, should alone vitiate the confession. Defendant also points to the officer's testimony that he did not knowwhether defendant in fact appreciated all his rights. Defendant's contention iswithoutmerit. The police verbally advised defendant of his Miranda rights at the time of defendant's arrest. When the police transported defendant to the police station, they again gave defendant his Miranda warning, this time on a printed formwhich defendant signed. Finally, defendant wrote his confession on a form upon which the Miranda warning was printed. Defendant does not claim that either of the two Miranda warnings given to him

on the night of his arrest were in any way insufficient. He merely claims that the confession should be suppressed because the interrogatingofficer failed to couple the written warning with a verbal warning the nextmorning when defendant confessed.In this case, the time between the first verbal Miranda warning and the confession was less than nine hours. Such a brief time lapse between the verbal warning and the confession did not by itself,under the facts of this case, create a duty to verbally repeat those warnings. United States

### v. Hopkins, 433 F.2d 1041, (5thCir. 1970) cert.den., 401 U.S. 1013, 28 

### L Ed 2d 550, 91 S. Ct. 1252 (1971). Rather, defendant gave every indication that he understood his rightswhen he told Officer Hossack on the morning of the confession that he did not want to call a lawyer. Under the "totalityof the circumstances", defendantunderstood his rights, confessed voluntarily, and there

was no need to repeat the Miranda warning. See,Comment, 

### - The Need to Repeat Miranda Warnings at Subsequent Interrogations, 12Washburn L.J. 222 (1973). The issue in this case is whether defendant fact understood his rights, and not, as defendant claims,whether the interrogating police officer thought that defendant understood his rights. The ultimate responsibility for resolving this issue lies not with the interrogating officer, but with the courts. Miranda, 16 

### L Ed 2d at 730,n. 55. We find that the requirements of Miranda were met, that defendant voluntarily confessed and that the trial judgeproperly admitted the written confession into evidence at trial. Defendantalso claims that his confession should have been suppressed because of what he asserts was "unnecessary delay" between the time he was arrested and the time he was brought before a judge for his initial appearance. Section 95-901(b), R.C.M. 1947,provides: "Anyperson making an arrestwithout 

### a warrant shall take the arrested person without unnecessary delay before the nearest or most accessible judge in the same county and a complaint, stating the charges against the arrested person, shall be filed forthwith." Defendantwas arrested sometime aroundmidnight, Friday,June 13, 1975, confessed at 9:00 a.m., Saturday, June 14, 1975, and wasbrought forhis initial appearance on Monday morning, June 16, 1975. Officer Hossack testified thathe tried several times totelephone the justice of the peace before he learned that the justice was outof town for the weekend. We disapprove of the police procedure used inthis

### case. Inaddition tothe justice of the peace before whom defendant

was brought, Flathead County has one otherjustice of the peace and the eleventh judicial districtof which Flathead County is

a part, has two districtcourt judges. The testifying officer failedto show that the police tried to contact any of these judges toarrange an initialappearance. In theproper case, unexcused delaymight lead toprotracted confinement of a defendant, contribute toprompting a confession, and warrant the suppression of the confession. This, however, is not such a case. Defendant failedtoprove that his failure tobe presented before a magistrate untiltheMonday morning afterhis Friday night arrestconstituted "unnecessary delay", since the justice of the peace was outof town untilMonday, and there was no evidence that there was any otherjudge available inthe county over the weekend. See State

### v. Benbo, 

# - Mont

# . -I 

## - P.2d t NO. 13491 (Mont. filedOctober 26, 1977.). Defendant's fifthcontention of error is that, because Officer Hossack testified atthe suppression hearing that he had

no prior knowledge of the contents of thebrown paper bag, it

was reversible error for him totestify attrialthathe was specifically looking for the brown paper bag before he entered the house toexecute the searchwarrant. It isdifficulttoascertain the inconsistency between Officer Hossack's statement atthe suppression hearing and his testimony attrial. Although it is true thathe didnot know thecontents of the bag at the time the individual carried it into the house, the officer certainly could stillbe looking for the bag as he entered so that he could check its contents. Furthermore, defendant showed no prejudice from the statementand failed to object to the statement at trial. Objections firstraised on appeal will not be considered by this Court. State v. Armstrong, Mont. 

## , 562 P.2d 1129, 34 St.Rep. 213 (1977);State v. Braden, 163 Mont. 124, 515 P.2d 692 (1973). Section 95-712,R.C.M. 1947, requirespolice officers to make a return of the search warrant and all things seized to the judge who issued the warrant. In this case, the police returned the warrant and an inventory of the items seized to the judge. The "things seized" however, were not returned. Defendant asserts that the failure of the officers to make a return to the judge of the brown paper bag ofmarijuana per se rendered that item inadmissible as evidence at trial. The Illinois Supreme Court, in interpreting its return of seized evidence statute, the section from which 95-717was taken has stated that 

### " 

## * * * faili~reto comply with statutory requirements concerning the steps to be taken after the warrant has been served does not render the search warrant or the search conducted pursuant thereto invalid 

## * * 

## *." People

### v. Hawthorne, 45 I11.2d 176, 258 N.E.2d 319, 322 (1970), cert. den., 400 U.S. 878, 27 L Ed 2d 115, 91 S.Ct. 119 (1970). Defendanthas the burden of affirmatively showing that an irregularity in the search and seizure affected his substantial rights. Section 95-717,R.C.M. 1947; State v. Watkins, 156 Mont. 456, 481 P.2d 689 (1971). Defendant in this instance failed to demonstrate any prejudice to his substantial rights by the officers' failure to make a return of the brown paper bag ofmarijuana.The judgment of the district court is affirmed.

Chief Justice We concur:



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