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 theEighteenthJudicial 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 CountyAttorney, 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 shewalked home from a movie in downtown Bozeman, Montana. Her assailantgrabbed her frombehind, told her he had a gun and not to "get dumb," and walked her into a dimly-lit alleyway. Thevictim repeatedlyasked him what he wanted. When she asked if 

### hewanted hermoney,he said he did. At his direction, she removed hermoney fromher purse and wallet and handed it tohim. Thevictim then asked if she could go. The assailant replied, "No, there is onemore 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 sceneof the crime,where two sets of footprints were clearly visible in fresh snow. The officersdetermined that one set of footprintswas thevictim's and that the footprints corroboratedher 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 someplaces, the footprints indicated that theperson was traveling at a run and, in others, theperson 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 themotel, the lightswere on in Room No. 11 and noise from a television or radio could be heard fromwithin. After radioing 

### forbackup 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 appearancematched thedescription thevictim had given of her assailant. Announcing himself as a police officer, the officer entered the room. Dow's boots were drying on a radiator. Thepattern on the solesof thebootsmatched the zigzag pattern in the tracks the officer had been following. A pair of wet jeanswere 

### hanging in the open closet. After the design on the soles of Dow's bootswas comparedwith 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 groundsthat a searchwarrant

### 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 Dowtstwo 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 (7thCir. 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 ispresent forbreaching 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. TheStatemaintainsthatpolice officers had probable 

### cause to enter Dawis motel room and 

### arrest him. The State furthermaintains that the officers were justified 

### in entering themotel 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 responseto the officer's knock,the facts known by the officerwere: the victim had promptly reported
a 

### rape and robbery by an armed gunman; tracks 

### in the snow at the
scene corroboratedher report;the only fresh set of tracks leading from the crime scene other than the victim's led to Dowlsmotel
room and indicated that he was 

### trying to avoid being followed; Dow
was the only person registered in Room No. 11; and Dowmatched thephysical description of the assailant. We conclude that the officerhad probable cause to arrest Dow. We therefore proceed to consideration of whether exigent circumstanceswere 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 thehouse and began to search fora man of the description theyhad been given and for weapons which he had used in the robbery ormight 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 allweaponswhich couldbe used against them or to effect an escape.



# . . . Here, the seizures occurred prior to or immediately contemporaneouswithHayden1sarrest,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 asbroad asmay 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 beendeemed nonapplicable. 

### In 

### Sorenson, 590 P.2d at 139, 

### this Court stated that the theory is not available topeace 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 forSorenson. While looking for theboy 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 Sorensonwith 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 investigatingofficers were engaged 

### in a generalinvestigation, 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, 80L.Ed.2d 732. In that case, police officersreceived
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 toWelsh's home, where they arrestedhim for operating 

### amotor vehicle while under the influence of an intoxicant. The Courtheld that the entry intoWalshlshome 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 exigencieswere 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 thepublic safety as long as the assailant remained at large because, unlike Welch, the assailanthad not abandonedhisweapon. Also, in thepresent case, the officers did not have the assailant's address 

## -- the only wayof 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 "freshpursuit1Ihas 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. Peoplev. 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 snowpresent a rare situation 

### inwhich 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 Idahohas 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 (IdahoApp. 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 lessthan twohours after the crimeswere committed. It was not knownwhether Dow was aware that the officer, who had been using a bright flashlight,was outsidehismotel room. Itwas not known whether Dowwas alone, and hewasbelieved tohave a gun. In this case, the crimes were serious and the scope of thewarrantless 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 intoDow'smotel roomwas justified under thehot pursuit exceptionto thewarrant requirementunderboth theMontana 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 rightsviolated 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 requestedthat the State

### present its evidence first. That requestwasgranted 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 supportDowlstheory 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 overthevictim's money. 

### Specifically,he argues thathe could not have obtained unauthorized control
over thevictim's money because shevoluntarily gave 

### it tohim. He further 

### claims he made 

### no threat 

### which communicated a specific request formoney. Our standard of review 

### is whether, after viewing the evidence 

### in the light most favorable to theprosecution, of fact couldhave found the essential elements any rational trier of the crimebeyonda reasonabledoubt, 

### Statev. Paulson (1991)

### , 250Mont. 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, thevictim 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 themoney, not thewholepurse. 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 I1yesl1to 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 thereforehold 

### that the evidence

### was sufficientto supportDow's conviction of robbery. Affirmed.

We Concur:December30, 1992 CERTIFICATEOFSERVICE 

### Iherebycertifythat thefollowingorderwas sentby United Statesmail,prepaid, tothe followingnamed: Philip

### F.Walsh Lineberger,Walsh&McKenna P.O. Box6400 Bozeman,MT 59771-6400 Hon.MarcRacicot,AttorneyGeneral Paul D.Johnson,Assistant JusticeBldg. Helena,MT 59620 

### A.MichaelSalvagni,CountyAttorney MartyLambert,Deputy 615S. 16th,Law&JusticeCenter Bozeman,MT 59715

EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA