No. 13595 

IN THE 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 26 1xx 

Filed. m 2s 191. 
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of 

the Court. 

Defendant appeals from a conviction of possession of 

dangerous drugs. 

The state charged defendant in district court, Flathead 

County, with the offense of felony possession of dangerous drugs. 

On January 28, 1976, Honorable Robert C. Sykes, after a hearing, 

denied defendant's motion to suppress his confession. On April 

20, 1976, defendant was found guilty of this offense at a jury 

trial. On June 2, 1976, the court entered judgment, sentenced 

defendant to five years imprisonment, and then suspended the 

sentence. On June 21, 1976, the court denied defendant's alternative motions for acquittal or for a new trial. 

The facts brought out at the trial which are relevant 

to this appeal are as follows: On June 11, 1975, Kalispell police 

officers obtained a warrant to search a Kalispell house. The 

officers executed the warrant shortly before midnight on Friday, 

June 13, 1975. As they approached the house, they observed an 

individual, 8 to 10 feet in front of them, approaching the house 

on the front walk. The officers, fearing that the individual 

would alert the occupants of the house as to the imminent search, 

pursued the individual into the house. Policeman Donald Hossack 

testified that, from the light in the house foyer, he could 

identify the individual by his height, type and color of shirt, 

hair color and length, build and type of jeans. The individual 

had a bundle or bag under his arm, and silhouetted in the house 

light, it appeared to be a brown paper bag. 

The officers entered the house four to six seconds after 

the individual did. 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 or bundle. Directly 

behind defendant, about three or four steps up the stairway, 
was a brown paper bag. The officers in their search, seized 

various drug paraphernalia and marijuana in the upstairs 

rooms. The brown paper bag directly behind defendant contained 

16 "lids" of marijuana, weighing approximately one ounce per 

lid. The police officers wrote an inventory of the items seized, 

which they left at the house, and returned the search warrant 

and an inventory of the seized items to the court. The police 

officers, however, failed to make a return of the brown paper 

bag of marijuana to the court which issued the search warrant. 

The officers then arrested defendant and the two people 

who were the subjects of the search warrant. Defendant and the 

two other arrestees were read their Miranda rights and then 

transported to the Kalispell City jail for booking purposes. 

At the police station the officers gave defendant a form printed 

with the Miranda warnings. Defendant signed that form. The 

Booking procedure was completed sometime between 2:30 and 3:00 a.m. 

on Saturday, June 14, 1975, at the Flathead County jail. 

Shortly before 9:00 a.m. on Saturday, June 14, 1975, 

Officer Hossack met in the jail with defendant. The officer did 

not remember whether he gave defendant a verbal Miranda warning 

at their 9:00 a.m. meeting, although he has a notation in his 

records saying that he did. The officer gave defendant a "voluntary statement" form with a Miranda-like warning printed at the 

top. Defendant then, in his own handwriting, wrote that he had 

taken a sack containing marijuana into the house on the night he 

was arrested. No lawyer was present at the confession. 

Officer Hossack testified that he did not know if in 

fact defendant knew he did not have to make a statement, did not 

know whether defendant knew he could have a lawyer present, and 

did not know whether defendant knew his statement could be used 

against him in a court of law. The officer did state, though, 
that he read defendant the top part of the "voluntary statement" 

form which 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 fifteen years, 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 

defendant did not have his initial appearance until the morning 

of Monday, June 16, 1975. The officer testified that " * * * 

for my own clarification and for a better case * * *" he thought 

he told defendant to add in a statement that the sack was brown 

colored. Defendant did write this into the confession and signed 

it at the bottom. 

Defendant raises the following issues on 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 defendant before a magistrate before interrogation render the confession inadmissible? 

5. Did Officer Hossackls statement at 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 is 
insufficient to establish probable cause to arrest. The mere 

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 connection with 

illegal or criminal activity by a defendant on the premises before there is probable cause to arrest him. State v. Hull, 158 

Mont. 6, 487 P.2d 1314 (1971). 

Defendant argues that there were insufficient facts to 

connect him with the brown paper bag of marijuana at the time 

of the arrest. At most, the facts gathered by the peace officers 

at the moment 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 "believes on reasonable grounds that the person 

is committing an offense * * *". Section 95-608(d), R.C.M. 1947. 

The "reasonable grounds" requirement of section 95-608(d) is 

synonymous with "probable cause". State v. Fetters & Lean, 165 

Mont. 117, 526 P.2d 122 (1974). "Probable cause to arrest without 

a warrant exists where the facts and circumstances within the 

officer's knowledge and 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 is being 

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 immediately before them; the individual 
who entered the house carried a brown sack; the officers confronted defendant immediately upon entering the house; the 

officers discovered a brown paper bag full of marijuana on the 

steps directly behind defendant. In this case the "facts and 

circumstances within the [officers'] knowledge" could reasonably have led them to no other belief than that defendant was 

committing the offense of possession of dangerous drugs. 

Defendant next contends that, because the police officers 

knew defendant to be a reputable Flathead County businessman 

with no prior criminal record, the existing circumstances did 

not require his 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 statutory duty 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. Defendant herein 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 offense by virtue of 

his similarity in appearance to the person they had just seen 
enter the house with the brown bag, and due to the fact that 

the brown bag of marijuana was directly behind defendant on 

the stairs. See People v. Berry, 17 I11.2d 247, 161 N.E.2d 315 

(1959), overruled in part on other grnds.; People v. Watkins, 

19111.2d 11, 166 N.E.2d 433 (1960). 

If a defendant's confession is involuntary, it violates 

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, 422 U.S. 590, 45 L Ed 2d 416, 95 S.Ct. 2254 

(1975); State v. Zachmeier, 151 Mont. 256, 441 P.2d 737 (1968). 

The question of voluntariness largely depends upon the facts of 

each case, no single fact being dispositive. Brown v. Illinois, 

45 L Ed 2d at 427; State v. Chappel, 149 Mont. 114, 423 P.2d 

47 (1967). The determination of voluntariness, rather, depends 

upon the "totality of 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 factual determination, addressed to the 

discretion of the trial court. State v. White, 146 Mont. 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, 113 Mont. 
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 confession was derived from the officer's and not from defendant's 

thought processes. Defendant maintains 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 defendant his Miranda rights on the morning of the 

confession and did not know whether 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 circumstances was 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 State v. 

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 to 
forced, involuntary, and therefore, inadmissible confessions. 

Rather than making threats, the officer in this case merely 

asked defendant if he would make a statement. The officer 

testified that he made no promises contingent upon 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 interrogation began at 9:00 a.m. and defendant wrote 

and signed his confession by 9:lO a.m. The officer's suggestion 

that defendant add the sentence that the sack he carried into 

the house "was a grocery sack of brown color" is not, under the 

facts of this case, sufficient to show that the confession was 

involuntary. In the absence of coercive circumstances, the key 

is whether 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 sub nom., United States v. St. Jean, 

483 F.2d 1399 (2nd Cir. 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 say may be used as evidence against 
him 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, he may 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 

objection be 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 EIossackls statement at 

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 know whether defendant in 

fact appreciated all his rights. Defendant's contention is without merit. 

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 form which 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 interrogating officer failed to couple the written warning 

with a verbal warning the next morning 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, (5th Cir. 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 rights when he told 

Officer Hossack on the morning of the confession that he did not 

want to call a lawyer. Under the "totality of the circumstances", 

defendant understood 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, 

12 Washburn 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 judge properly admitted 

the written confession into evidence at trial. 

Defendant also 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: 

"Any person making an arrest without 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." 

Defendant was arrested sometime around midnight, Friday, 
June 13, 1975, confessed at 9:00 a.m., Saturday, June 14, 1975, 

and was brought for his initial appearance on Monday morning, 

June 16, 1975. Officer Hossack testified that he tried several 

times to telephone the justice of the peace before he learned 

that the justice was out of town for the weekend. 

We disapprove of the police procedure used in this case. 

In addition to the justice of the peace before whom defendant 

was brought, Flathead County has one other justice of the peace 

and the eleventh judicial district of which Flathead County is 

a part, has two district court judges. The testifying officer 

failed to show that the police tried to contact any of these 

judges to arrange an initial appearance. In the proper case, 

unexcused delay might lead to protracted confinement of a defendant, contribute to prompting a confession, and warrant the suppression of the confession. This, however, is not such a case. 

Defendant failed to prove that his failure to be presented 

before a magistrate until the Monday morning after his Friday 

night arrest constituted "unnecessary delay", since the justice 

of the peace was out of town until Monday, and there was no evidence that there was any other judge available in the county over 

the weekend. See State v. Benbo, - Mont . -I - P.2d t 

NO. 13491 (Mont. filed October 26, 1977.). 

Defendant's fifth contention of error is that, because 

Officer Hossack testified at the suppression hearing that he had 

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

was reversible error for him to testify at trial that he was specifically looking for the brown paper bag before he entered the house 

to execute the search warrant. 

It is difficult to ascertain the inconsistency between 

Officer Hossack's statement at the suppression hearing and his 

testimony at trial. Although it is true that he did not know the 
contents of the bag at the time the individual carried it into 

the house, the officer certainly could still be looking for the 

bag as he entered so that he could check its contents. 

Furthermore, defendant showed no prejudice from the 

statement and failed to object to the statement at trial. Objections first raised 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, requires police 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 of marijuana 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 95-717 was taken 

has stated that " * * * faili~re to 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). Defendant has 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 of marijuana. 
The judgment of the district court is affirmed. 

Chief Justice 

We concur: 

.............................