No. 92-060 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

,- .. 

STATE OF MONTANA, 

Plaintiff and Respondent, 

MELVIN GEORGE DOW, 

Defendant and Appellant 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Larry W. Moran, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Philip Walsh, Bozeman, Montana 

For Respondent: 

Marc Racicot, Attorney General, Paul D. Johnson, 

Assistant Attorney General, Helena, Montana; Mike 

Salvagni, Gallatin County Attorney, Martin Lambert, 

Deputy County Attorney, Bozeman, Montana 

Submitted on Briefs: November 18, 1992 

Decided: December 30, 1992 

Filed: 
Justice Fred J. Weber delivered the opinion of the Court. 

A jury in the District Court for the Eighteenth Judicial 

District, Gallatin County, convicted Melvin George Dow of robbery 

and sexual intercourse without consent. Dow appeals. We affirm. 

The issues are: 

1. Did the District Court err in denying Dow's two pre-trial 

motions to suppress evidence and statements obtained from him 

before and after his arrest? 

2. Were Dow's constitutional rights violated by application 

of § 46-13-302(4), MCA (l989), which places the burden of proof 

upon a defendant moving to suppress evidence? 

3. Was the evidence sufficient to convict Dow of robbery? 

Late on the evening of Christmas Day 1990, a woman was 

assaulted as she walked home from a movie in downtown Bozeman, Montana. Her assailant grabbed her from behind, told her he had a gun 

and not to "get dumb," and walked her into a dimly-lit alleyway. 

The victim repeatedly asked him what he wanted. When she asked if 

he wanted her money, he said he did. At his direction, she removed 

her money from her purse and wallet and handed it to him. The victim then asked if she could go. The assailant replied, "No, there 

is one more thing." He raped her, then allowed her to leave. 

The victim walked home and immediately called the police. 

Investigating officers escorted her back to the scene of the crime, 
where two sets of footprints were clearly visible in fresh snow. 

The officers determined that one set of footprints was the victim's 

and that the footprints corroborated her story. The second set of 

footprints was made by a person wearing footwear which left a 

distinctive zigzag design in the prints. 

One officer took the victim to the hospital for a rape examination and another began following the assailant's footprints 

away from the crime scene. There were few other tracks in the new 

snow. In some places, the footprints indicated that the person was 

traveling at a run and, in others, the person had doubled back over 

his own tracks or walked within vehicle tracks. The footprints 

eventually led to Room No. 11 of the Alpine Motel, several blocks 

from the crime scene. 

When the police officer arrived at the motel, the lights were 

on in Room No. 11 and noise from a television or radio could be 

heard from within. After radioing for backup assistance and ascertaining at the motel office that one male was registered in Room 

No. 11, the officer knocked on the door. It was opened by Dow, 

clad only in his underwear. 

Dow's appearance matched the description the victim had given 

of her assailant. Announcing himself as a police officer, the 

officer entered the room. Dow's boots were drying on a radiator. 

The pattern on the soles of the boots matched the zigzag pattern in 

the tracks the officer had been following. A pair of wet jeans 
were hanging in the open closet. After the design on the soles of 

Dow's boots was compared with the footprints leading from the scene 

of the crimes, Dow was arrested. 

Prior to trial, Dow moved to have evidence seized from his 

motel room suppressed on grounds that a search warrant was required 

before police officers could enter the room. He also moved to 

suppress a tape-recorded statement he gave shortly after his 

arrest. After briefing and evidentiary hearings, the District 

Court denied both motions. 

Did the District Court err in denying Dowts two pre-trial 

motions to suppress evidence and statements obtained from him 

before and after his arrest? 

Dow points out that under the Fourth Amendment to the United 

States Constitution and Article 11 Section 11 of the Montana 

Constitution, warrantless felony arrests in the home are presumptively unreasonable and prohibited. He further points out that a 

person staying in a hotel or motel room is afforded the same 

constitutional protection as a person living in a home or other 

dwelling. U.S. v. Diaz (7th Cir. l987), 814 F.2d 454, 457-58, cert 

denied, 484 U.S. 857; State v. Otwell (1989), 239 Mont. 150, 779 

P.2d 500. He claims that no justification is present for breaching 

the prohibition against a warrantless intrusion into his motel 

room, and that the evidence seized from the room and his post- 
arrest statements should be suppressed as fruits of an illegal 

entry. 

The State maintains that police officers had probable cause to 

enter Dawis motel room and arrest him. The State further maintains 

that the officers were justified in entering the motel room without 

a warrant under the hot pursuit and exigent circumstances exceptions to the general prohibition against warrantless entries. 

Exception is made to the warrant requirement where exigent 

circumstances and probable cause are present. Warden v. Hayden 

(19671, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782; State v. Sorenson (1979), 180 Mont. 269, 590 P.2d 136- Probable cause exists 

if the facts and circumstances within the officer's 

personal knowledge, or imparted to the officer by a 

reliable source, are sufficient to warrant a reasonable 

person to believe that the suspect has committed an 

offense. (Citations omitted.) 

State v. Schoffner (1991), 248 Mont. 260, 264, 811 P.2d 548, 551. 

Dow does not seriously argue that the officer who knocked on 

his motel room door lacked probable cause to arrest him. When Dow 

opened the door to his room in response to the officer's knock, the 

facts known by the officer were: the victim had promptly reported 

a rape and robbery by an armed gunman; tracks in the snow at the 

scene corroborated her report; the only fresh set of tracks leading 

from the crime scene other than the victim's led to Dowls motel 

room and indicated that he was trying to avoid being followed; Dow 

was the only person registered in Room No. 11; and Dow matched the 
physical description of the assailant. We conclude that the 

officer had probable cause to arrest Dow. We therefore proceed to 

consideration of whether exigent circumstances were present. 

In Havden, the United States Supreme Court recognized a 

particular type of exigent circumstance, when police in immediate 

pursuit tracked an armed robber to his home and entered the home 

without a warrant. The Court stated 

[The police] acted reasonably when they entered the house 

and began to search for a man of the description they had 

been given and for weapons which he had used in the 

robbery or might use against them. The Fourth Amendment 

does not require police officers to delay in the course 

of an investigation if to do so would gravely endanger 

their lives or the lives of others. Speed here was 

essential, and only a thorough search of the house for 

persons and weapons could have insured that Hayden was 

the only man present and that the police had control of 

all weapons which could be used against them or to effect 

an escape. . . . Here, the seizures occurred prior to or 

immediately contemporaneous with Hayden1s arrest, as part 

of an effort to find a suspected felon, armed, within the 

house into which he had run only minutes before the 

police arrived. The permissible scope of search must, 

therefore, at the least, be as broad as may reasonably be 

necessary to prevent the dangers that the suspect at 

large in the house may resist or escape. 

Havden, 387 U.S. at 298-99. While hot pursuit requires "some sort 

of a chase, . . . it need not be an extended hue and cry 'in and 

about [the] public streets.'" United States v. Santana (1976), 427 

U.S. 38, 43, 96 S.Ct. 2406, 2410, 49 L.Ed.2d 300, 305. 

This Court has recognized the theory of hot pursuit, but in 

each Montana case in which the theory has been raised, it has been 
deemed nonapplicable. In Sorenson, 590 P.2d at 139, this Court 

stated that the theory is not available to peace officers unless a 

felony has been committed and the suspect is fleeing. Dow claims 

the Sorenson opinion limits the definition of hot pursuit so that 

the facts of this case are outside that definition. 

In Sorenson, police officers received a report of a boy who 

had threatened to shoot his high school principal. The boy was 

housesitting for Sorenson. While looking for the boy at Sorenson's 

house, officers found evidence of use and possession of illegal 

drugs. Eleven days later, the officers obtained a search warrant 

for Sorenson's house and charged Sorenson with drug offenses. They 

attempted to use a theory of hot pursuit to justify admission into 

evidence of items seized in the search of the house. This Court 

held that hot pursuit did not apply. Sorenson, 590 P.2d at 139. 

The piggy-backing of nonrelated offenses by separate persons 

is not present in this case as it was in Sorenson. Further, at the 

time officers entered Sorenson's home without a warrant, no crime 

had been committed and they were not in pursuit of a felon. 

In State v. District Court of Eighth Jud. ~ist. (1978), 176 

Mont. 257, 577 P.2d 849, which Dow cites, this Court held that a 

warrantless entry into an apartment approximately two hours after 

a murder was not justified under a theory of hot pursuit. In that 

case, however, the investigating officers were engaged in a general 
investigation, not tracking the culprit from the scene of the 

crime . 

Dow also cites Welsh v. Wisconsin (1984), 466 U.S. 740, 104 

S.Ct. 2091, 80 L.Ed. 2d 732. In that case, police officers received 

a late-evening report of a car which had proceeded erratically on 

a highway and then into a field, after which the driver left the 

car on foot. Officers obtained the registration for the car and 

determined that it was owned by Welsh and that Welsh's home was 

near the field in which the car had been abandoned. The officers 

went to Welsh's home, where they arrested him for operating a motor 

vehicle while under the influence of an intoxicant. The Court held 

that the entry into Walshls home was not justified as hot pursuit. 

Welsh, 466 U.S. at 753-54. 

In Welsh, the Court relied heavily on the nature of the 

offense -- a civil forfeiture traffic offense for which imprisonment was not possible. There, the exigencies were insufficient to 

overcome the warrant requirement, in the context of an arrest for 

a mere civil traffic offense. In this case, in contrast, the 

offenses were two felonies. Moreover, in the present case, there 

was a significant continuing threat to the public safety as long as 

the assailant remained at large because, unlike Welch, the 

assailant had not abandoned his weapon. Also, in the present case, 

the officers did not have the assailant's address -- the only way 
of tracking him was to follow his footprints from the scene of the 

crime . 

We recognize that nearly two hours is a long "hot pursuit." 

However, the doctrine of "fresh pursuit1I has been applied to a 75- 

minute pursuit of a suspect following a shooting. People v. 

Johnson (Cal. 1981), 637 P.2d 676. An Illinois court of appeals 

determined that "warm pursuit" justified entry into a private yard 

and garage several hours after multiple rapes were committed. 

People v. Morrow (Ill. App. 1982), 433 N.E.2d 985, 992. The court 

relied upon the limited scope of the search and the serious nature 

of the crime. Id. 

Footprints in fresh snow present a rare situation in which the 

physical trail of an offender can clearly be followed away from the 

scene of a crime after the offender has left that scene. The Court 

of Appeals of Idaho has used the broader theory of exigent circumstances to justify admission of evidence seized about an hour after 

a robbery, following the tracking of footprints in fresh snow from 

the scene of the crime to a house in which defendants were 

arrested. State v. Campbell (Idaho App. 1983), 662 P.2d 1149. 

Here, the victim reported the two felony crimes immediately 

after they occurred. When an officer began following Dowls 

footprints thirty to forty-five minutes after the crimes were 

committed, it was reasonable to assume that the suspect, who left 

the scene on foot, might still be in flight. The officer continu- 
ously followed the distinctive footprints until he reached the 

motel room and called for backup, knocking on the door of Dow's 

motel room less than two hours after the crimes were committed. It 

was not known whether Dow was aware that the officer, who had been 

using a bright flashlight, was outside his motel room. It was not 

known whether Dow was alone, and he was believed to have a gun. In 

this case, the crimes were serious and the scope of the warrantless 

search was narrow -- officers obtained a search warrant before 

conducting more than a "plain viewn search of Dow's motel room. 

We conclude that exigent circumstances were present in this 

case as described under Havden, Santana, and Welsh. We hold that 

the entry into Dow's motel room was justified under the hot pursuit 

exception to the warrant requirement under both the Montana and the 

United States Constitutions. We further hold that the District 

Court did not err in denying Dow's motions to suppress evidence. 

Were Dow's constitutional rights violated by application of § 

46-13-302(4), MCA (1989), which places the burden of proof upon a 

defendant moving to suppress evidence? 

Section 46-13-302(4), MCA (1989), provided that, in a hearing 

concerning suppression of evidence, "[tlhe burden of proving that 

the search and seizure were unlawful shall be on the defendant." 

Dow argues that he was deprived of his right of due process as a 

result of application of the statute. 
At the first suppression hearing, Dowts counsel requested that 

the State present its evidence first. That request was granted and 

the State proceeded. Dow then presented his evidence and arguments. The record demonstrates that Dow had the opportunity to 

present all evidence which he desired to have the court consider. 

In its ruling, the District Court made no reference to burden of 

proof as between the parties and in addition made no reference to 

5 46-13-302 (4) , MCA (1989). 

The record demonstrates this is not a "close" case in which 

the application of a particular burden of proof would affect the 

outcome. The record is devoid of any substantial evidence to 

support Dowls theory of suppression. We conclude that there is no 

reason to consider the constitutional theory presented by Dow. 

I11 

Was the evidence sufficient to convict Dow of robbery? 

Dow maintains that there is insufficient evidence that he 

obtained unauthorized control over the victim's money. Specifically, he argues that he could not have obtained unauthorized control 

over the victim's money because she voluntarily gave it to him. He 

further claims he made no threat which communicated a specific 

request for money. 

Our standard of review is whether, after viewing the evidence 

in the light most favorable to the prosecution, 

of fact could have found the essential elements 

any rational trier 

of the crime beyond 
a reasonable doubt, State v. Paulson (1991) , 250 Mont. 32, 46, 817 

P.2d 1137, 1146. The victim testified that Dow grabbed her from 

behind, told her he had a gun, and forced her into a dimly-lit 

alleyway. Under these circumstances, the victim asked Dow what he 

wanted of her. When she asked if he wanted her money, he said he 

did. She handed Dow her purse, but he indicated that he wanted 

only the money, not the whole purse. At his direction, she removed 

her money from her purse and wallet. When she asked if she could 

go, he replied, "No, there is one more thing." This statement 

clearly implies that Dow had two things on his mind when he forced 

the victim into the alleyway. One thing was to rob her; the I1one 

more thing" was to rape her. Threat is implicit when a lone and 

unarmed woman on foot is forced into a dimly-lit alley by a man 

claiming to have a gun and the man then answers I1yesl1 to her 

question as to whether he wants her money. 

We conclude that a rational finder of fact could have found 

that Dow obtained unauthorized control over the victim's property. 

We therefore hold that the evidence was sufficient to support Dow's 

conviction of robbery. 

Affirmed. 

We Concur: 

December 30, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Philip F. Walsh 

Lineberger, Walsh & McKenna 

P.O. Box 6400 

Bozeman, MT 59771-6400 

Hon. Marc Racicot, Attorney General 

Paul D. Johnson, Assistant 

Justice Bldg. 

Helena, MT 59620 

A. Michael Salvagni, County Attorney 

Marty Lambert, Deputy 

615 S. 16th, Law & Justice Center 

Bozeman, MT 59715 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA