### No. 80-148 IN THE SUPREME COURT OF THE STATEOF MONTANA 1980

STATE OF MONTANA, Plaintiff and Respondent,

-vsSTANLEY DAVIS, Defendant and Appellant.

Appeal from: District Court of the Sixth Judicial District, 

### Inand for the County of Park, the Honorable Nat Allen, Judgepresiding. Counsel of Record:

FOX

### Appellant: Yardley and Yardley, Livingston,Montana For Respondent: 

### Hon. Mike Greely,Attorney General,Helena, Montana Bruce Becker, County Attorney, Livinqston,Montana

Submitted on Briefs: August 28, 1980 Decided: 

## BECb%

## 99f@

Filed: 

## D€C171980

4 

### ClerkMr. ChiefJustice Frank I.Haswell delivered the Opinion of the Court. Stanley Davis was charged inDistrict Court, Sixth Judicial District, with four counts: (1) conspiracy to sel1 dangerous drugs, 

### (2) attempted criminal sale of dangerous drugs, 

### (3) criminal sale of dangerous drugs, and 

### (4) attempted criminal possession of dangerous drugs. Following ajury trial

## , defendant

was convicted of conspiracy to sell dangerous drugs and was sentenced to threeyears inprison. At some time prior toAugust 8, 1979, Kenneth Huttinger (Informant) approached the Bozeman police about cooperating with them inapprehending James Amsk, who was allegedly selling drugs toHuttinger's girlfriend. 

### A "buy" fromAmsk was arranged by Informant to take place inPark County on August 8, 1979. Certain members of a police stakeout group observed the transactionfrom a prearranged lookout. They made no arrests and no warrants were issued at that time. Another person was present withAmsk at that transaction who was later identified as David Harper. The defendant was not present at this "buy." During the August 8, 1979, meeting, Informant arranged withAmsk to make an additional purchase on the following day. The policewere alerted to this activity and again staked out the park. On August 9, 1979, defendant met Amsk inLivingstonand drove with him, inAmsk's car, toSacajawea Park. Inthe park they met Informant, and Amsk and Informant agreed to a "buy." Informant gave Amsk $465.00 and Amsk then agreed to return shortly withthe drugs. At that time, Informant and defendant had no communication except for defendant's statement identifying himself to Informant. Amsk and defendant leftthe part together. Informant gave a prearranged signal to the officers staking out the park and informed them thatAmsk intended to returntothe park shortly with the drugs. The officers returnedtotheir stakeout positions. Fifteenor twenty minutes later, defendant returned a1one tothe park. He indicated to Informant that Informant was to meet Amsk at the A& 

### W Root BeerStand inorder to take delivery ofthe drugs. Defendant lefthis car at the park and got into Informant's car and drove to the 

### A & W with him. The A& W parking lotwas very crowded so defendant instructed Informant to drive tothe motel parking lot next door and to honk his horn at

a car being driven by Amsk and Harper. Informant stopped his car inthe lot and went to Harper's car to get the drugs. Amsk instructed Informant to give 1000 hitsof "speed" (amphetamines) todefendant, for defendant to dispose of. Informant returned to the car and gave defendant the "speed" which defendant put in his boot. Informant and defendant returned to the park to get defendant's car. Upon reaching the park, Informant and defendant both got out of Informant's car and walked over to defendant's car. At that time, Informant gave the signal to certain police on the stakeout who inturn signaled to officers Malone and Bowman to make the arrest. Officer Ma1one arrested defendant and conducted

a pat-down search. Defendant was taken to the jail inPark County and searched, atwhich time the alleged amphetamines were found indefendant's boot. Tests proved the substances to be noncontrolled substances. Priortotrial, defendant moved to suppress all evidence taken from defendant's person following arrest, based on his allegation that the arrest was illegal. The motion to suppress

was denied. At the close of the State's case at trial, defendant moved todismiss the first three counts. The motionwas based on defendant's contention that the sale of dangerous drugs had been completed and the crimes consum&ed prior to any participationby defendant. This motion was denied.The defendant raises several issues on appeal: 

### (1)Whether the officers had probable cause to arrest defendant, and whether the circumstances required his immediate arrest? 

### (2) Whether the defendant's motion to suppress should have been granted because the evidence was obtained afteran illegal arrest? 

### (3) Whether the sale of dangerous drugs was completed priorto any participation by defendant Davis? 

### (4) Whether the court's denial of the motion to suppress and the motion to dismiss deprived defendant of a fairtrial on the charge of conspiracy to sell dangerous drugs? Officers Malone and Bowman of the Bozeman police force arrested defendant without a warrant. Inorder to make such an arrest, a police officer must satisfythe requirements of section 46-6-401, MCA. That statute provides inpart: "Circumstances inwhich a peace officer

### may make an arrest. A peace officermay arrest a person - when:

"[4] he believes on reasonable grounds that the person iscommitting an offense or that the person has committed an offense and the existing circumstances require his immediate arrest." Appellant contends that the arresting officers did not observe himcommitting any offense, nor did they have any knowledge that a crime had been committed by defendant. Additionally, appellant argues that even 

### if probable cause did exist to believe a crime had been committed, therewere no existing circumstances requiring his arrest without a warrant. We find that the arrestwas based on probable cause and

was lawful. Thus, the evidence seized afterthe arrest was admissible at trial. The districtjudge properlydenied the motiontosuppress. InMontana, "reasonable grounds" to arrest are synonymous with "probable cause" to arrest. Statev. Fetters (1974), 165Mont. 117, 122, 526 P.2d 122, 125. As this Court stated inState

v. Hamilton (1980), Mont. 

## ,605 P.2d 1121, 1125, 37 St.Rep. 70, 73: "'Probable cause to arrest without a warrant existswhere the facts and circumstances within the officer's knowledge and of which he had reasonable trustworthy information are sufficient inthemselves to warrant a man of reasonable caution inthe belief that an offense has been or isbeing committed.

### "' Admittedly, Officers Ma1one and Bowman, the arresting officers, may not have had sufficient independent personal knowledge of an offense to establish probable cause. From Officer Malone's position inthe stakeout, he was unable to observe any of defendant's actions inthe park. He was not present at the 

### A & W Root Beer Stand or at the motel parking lot. He concedes that he did not personally observe defendant commit any offense. Officer Bowman testified similarly. The factual situation involved here isnot an unusual one inthis type of case. Several officers were working incooperationwith an informant inan ongoing undercover operation. Officers were staked out invarious positions around the scene of the "buy" and communicated by means of radio and signals. No one officer may have had sufficient knowledge to establ

### ish probable cause, but ifthe information isconsidered collectively and is evaluated on the basis of the information available to the law enforcement officers as a group, itwas sufficient to establish probable cause. Numerous jurisdictions holdthat

It I

# .. .[P]robable cause isto be evaluated by the courts on the basis of the collective information of the police ratherthan that of only the officerwho performs the act of arresting.

### "' State v. Shaw (1979), 3 0r.App. 346, 473 P.2d 159, 161. See also Smith v. UnitedStates (D.C. Cir1966), 358 F.2d 833, 835, cert.den. 386 U.S. 1008, 87 S.Ct. 1350, 18 L.Ed.2d 448; People v. Saars (1978), 196 Colo. 294, 584 P.2d 622, 625; State

v. Miller (1975), 112 Ariz. 95, 537 P.2d 965, 967. We findthis view to be persuasive. Many investigationsand undercover operations could be needlessly frustrated 

### ifthe participating officers were not able to relyon informationprovided by other officers working with them on a particular case. Viewed inthisway, we find that therewere sufficient facts and circumstances within the officers' knowledge thatthey could reasonably believe that an offense was being or had been committed by defendant. Appellant argues that his mere presence atthe scene of a crime does not establish probable cause for arrest. This isa correct statement of the law, State v.Hamilton, supra, Mont. at 

## ,605 P.2d at 1125, 37 St.Rep. at73, but the evidence shows more than defendant's mere presence. Steve Markle, investigator for the GallatinCounty Attorney's office, knew that a drug transaction had occurred between Informant and Amsk on August 

### 8, 1979 and that another transactionwas scheduled forAugust 9, 1979. From his dealings with Informant, Steve Markle knew the Informant to be re1iable and Markle personallyviewed part of the transactions. On August 9, from his stakeout position inthe LivingstonArmory, Markle saw through his spotting scope that Informant had made contact with Amsk and another unidentified person (defendant) atthe scheduled time and that Informant had transferred money to Amsk; Amsk and the unidentified person leftthe meeting place; the unidentified person returned; Informant and the unidentified person left together,and returned tothe scene together; and Informant gave a prearranged signal indicatingthe drug transaction had been completed. The information possessed 

### by Markle was transmitted toOfficers Bowman and Malone, the arresting officers, by radio. Officers Bowman and Malone also knew that a drug transaction had occurred between Amsk, the informant and an unidentified person the previous day. They knew that Informant had delivered the money toAmsk and an unidentified person on August 9, 1979, and that Informant had given the prearranged signal to Markle that the drug transaction had been completed. They testifiedtotheir belief that Informant would not have signaled to Markle, who alerted them inturn, unless the participants inthe crime were present and the transaction complete. Insum, the arresting officers had sufficienttrustworthy informationand knowledge to constitute probable cause that an offense had been committed by defendant. But appellant argues thatthere were no existing circumstances requiring defendant's immediate arrest. Section 46-6-401(4), MCA. Statev. Lenon (1977), 174 Mont. 270-271, 264, 570 P.2d 901, 905. He asserts that he was not attempting to flee, he was not armed, and the park was surrounded by law enforcement officials. The officers

were inradio contact with the law enforcement facility and could have obtained a warrant. Although there isa strong preference for officers to obtain a warrant, Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142, we find that the circumstances here were sufficient to allowawarrantless arrest. This Court has not specificallydefined the "existing circumstances" which permit an immediate arrest, but we have inprevious cases discussed "exceptional circumstances" a11 owing policeto enter a residence without a warrant inorder to search and arrest. InState v. Means (1978), Mont. 

## , 581 P.2d 406, 35 St.Rep. 673, this Court heldthat police acted properly under the circumstances in not obtaining a warrant. CitingJohnson v. United States (1948), 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed 436, we noted certain instances inwhich there could be a need to proceed without awarrant: 

### "'There are exceptional circumstances inwhich, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate's warrant for search may be dispensed with. But this isnot such a case. No reason isoffered for not obtaining a search warrant except the inconvenience tothe officers and some slight delay necessary to prepare papers and present the evidence to a magistrate.

# .

# . No suspect was fleeing or likely totake flight. The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction. 

# ..I I(State v. Means, supra, Mont. at 

## , 581 P.2d at 410-411, 35 St.Rep. at 679. Inthis case, Officer Malone testified that despite the stakeout he believed that defendant, who had come to the park in his car, was likelyto flee. Additionally, the policewere justified inbelieving that evidence of the buy, which could easily have been destroyed or disposed of, might be found on defendant because he was present at delivery. Based on these circumstances, the officers were reasonable intheir be1iefthat

an immediate arrest was necessary, as isrequired inStatev. Bennett (1972), 158 Mont. 496, 504, 493 P.2d 1077, 1081. Because

we find that the arrest was lawful, we holdthat the alleged amphetamines seized from the defendant following the arrest were properly admitted at trial. Appellant next contends that the district judge erred in not dismissing count one, conspiracy to sell dangerous drugs; count two, attempt to sell dangerous drugs; and count three, sale of dangerous drugs. Appellant's motionwas based on his theory that because he did not participate inthe August 

### 9 Amsk-Informant agreement to buy drugs, orthe accompanying exchange of money, that any criminal offense was completed prior to the time that defendant participated inthe transaction. Inpresenting this argument to the Court, defendant is assuming that for the purposes of conviction for sale of dangerous drugs, the act of agreement to buy, and the exchange of money, constitute the entire sale transaction. We find thisview of "criminal sale" to be too restrictive. The statute provides inpart: "(1) A person commits the offense of criminal sale of dangerous drugs if he sells, barters, exchanges, or gives away, oroffers to sell, barter, exchange, or give away

# ..." Section 45-9-101, MCA. Several jurisdictions have considered the definition of "sell" as it appears instatutes similar to section45-9-101, MCA. The Supreme Court of New Hampshire inState v. Stone(1974), 114 N.H. 114, 316 A.2d 196, 197, noted that incriminal statutes, "sell" may have a broader meaning than it does instatutes governing commercia1 transactions, where "sell" iscommonly defined as "'the passing of titlefrom the seller to the buyer for

a price."' Inorder to carry out the purposes of the drug statutes, that Court found that "proof that the defendant made no profitor received no other considerationfrom thistransaction,

or proof that he was simply a procuring agent for Perriawould not prevent the defendant's action from constituting a sale under [New Hampshire law.]" The act of "bringing about the transfer of the LSD to[an undercover agent]" allowed the jury to find defendant guilty of the sale of dangerous drugs. Statev. Stone, supra, 316 A.2d at 197-198. The Supreme Court of Kansas has determined that inaconvictionfor criminal sale, it isimmaterial that defendant does not possess legal title, or that defendant receives no consideration from a transaction inwhich he participates. See State v. Nix (1974), 215 Kan. 880, 529 P.2d 147, 151. InState v. Collazo (1977), 

### 1 Kan.App.2d 654, 574 P.2d 214, the Court of Appeals of Kansas approved the jury instruction inacase charging criminal sale: "To sell heroin means to knowingly and intentionally transfer possession or ownership of the herointo another for money or other valuable consideration. For a person to make such asale it is not necessary that he personally handle all of the details of the transaction. It is sufficient 

### ifthe transaction isarranged by him and handled by persons under hisdirectionand it issufficient to constitutea sale ifthe person charged with sale is involved inthe transaction by accepting, handling, or counting the money and directing the delivery of the heroin. Inother words, the person charged with the sale does not have to personally conduct a11 ofthe various elements of the delivery of the heroin and of the transfer of the money. It is sufficient if he participates therein to such an extent that it isobvious that he isa part of the making of the sale." Statev. Collazo, supra, 574 P.2d at 216. See also Hammonds v. State (Tex. 1958), 316 S.W.2d 423, 425. State v. Thomas (1975), 166 Mont. 265, 269, 532 P.2d 405, 407; Annot., 93 ALR2d 1008.We approve this view taken by other courts and conclude that the Montana legislature did not intend that a sale should be complete merely upon the exchange of money. Delivery appears to be an integral part of the sale of drugs, particularlywhen we consider that the statutes are aimed primarily at stopping the transfer and distributionof dangerous drugs. Consequently, we findthat the trial judge properlydetermined that the sale did not necessarily conclude with the payment of money, and properly denied appellant's motion to dismiss. Appellant's lastcontention isthat the judge's denial of the motion to suppress and the motion to dismiss counts two and three denied defendant a fair trial on the charge of conspiracy tosell dangerous drugs. Our determination that the trial judge properly denied defendant's motions precludes a 

### finding that defendant was denied a fair trial on this basis. The evidence found on defendant's person was properly before the jury, as was the testimony concerning defendant's participation inthe sale of August 9. The jury found this evidence sufficient to prove beyond a reasonable doubt that the defendant agreed withAmsk and David Harper to sell dangerous drugs, and affirmatively participated inan ongoing conspiracy. We affirmthe defendant's conviction for conspiracy to sell dangerous drugs.

Chief Justice