No. 80-148 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsSTANLEY DAVIS, 

Defendant and Appellant. 

Appeal from: District Court of the Sixth Judicial District, 

In and for the County of Park, the Honorable 

Nat Allen, Judge presiding. 

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: BEC b % 99f@ 

Filed: 

D€C 17 1980 

4 Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. 

Stanley Davis was charged in District Court, Sixth 

Judicial District, with four counts: (1) conspiracy to sel 1 

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

(3) criminal sale of dangerous drugs, and (4) attempted criminal 

possession of dangerous drugs. Fol lowing a jury trial , defendant 

was convicted of conspiracy to sell dangerous drugs and was sentenced to three years in prison. 

At some time prior to August 8, 1979, Kenneth Huttinger 

(Informant) approached the Bozeman police about cooperating with 

them in apprehending James Amsk, who was allegedly selling drugs 

to Huttinger's girlfriend. A "buy" from Amsk was arranged by 

Informant to take place in Park County on August 8, 1979. 

Certain members of a police stakeout group observed the transaction from a prearranged lookout. They made no arrests and no 

warrants were issued at that time. Another person was present 

with Amsk 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 

with Amsk to make an additional purchase on the following day. 

The police were alerted to this activity and again staked out the 

park. 

On August 9, 1979, defendant met Amsk in Livingston and 

drove with him, in Amsk's car, to Sacajawea Park. In the park 

they met Informant, and Amsk and Informant agreed to a "buy." 

Informant gave Amsk $465.00 and Amsk then agreed to return 

shortly with the drugs. At that time, Informant and defendant 

had no communication except for defendant's statement identifying himself to Informant. Amsk and defendant left the part 

together. 

Informant gave a prearranged signal to the officers 

staking out the park and informed them that Amsk intended to 

return to the park shortly with the drugs. The officers returned 
to their stakeout positions. 

Fifteen or twenty minutes later, defendant returned a1 one 

to the park. He indicated to Informant that Informant was to 

meet Amsk at the A & W Root Beer Stand in order to take delivery 

of the drugs. Defendant left his car at the park and got into 

Informant's car and drove to the A & W with him. The A & W 

parking lot was very crowded so defendant instructed Informant to 

drive to the motel parking lot next door and to honk his horn at 

a car being driven by Amsk and Harper. Informant stopped his car 

in the lot and went to Harper's car to get the drugs. Amsk 

instructed Informant to give 1000 hits of "speed" (amphetamines) 

to defendant, 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 in turn signaled to officers Malone and Bowman to 

make the arrest. Officer Ma1 one arrested defendant and conducted 

a pat-down search. Defendant was taken to the jail in Park 

County and searched, at which time the alleged amphetamines were 

found in defendant's boot. Tests proved the substances to be noncontrolled substances. 

Prior to trial, 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 

to dismiss the first three counts. The motion was based on 

defendant's contention that the sale of dangerous drugs had been 

completed and the crimes consum&ed prior to any participation by 

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 requi red his immedi ate 

arrest? 

(2) Whether the defendant's motion to suppress should have 

been granted because the evidence was obtained after an illegal arrest? 

(3) Whether the sale of dangerous drugs was completed 

prior to 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 fair trial on 

the charge of conspiracy to sell dangerous drugs? 

Officers Malone and Bowman of the Bozeman police force 

arrested defendant without a warrant. In order to make such an 

arrest, a police officer must satisfy the requirements of section 

46-6-401, MCA. That statute provides in part: 

"Circumstances in which a peace officer may make 

- an arrest. A peace officer may arrest a person 

when: 

"[4] he believes on reasonable grounds that the 

person is committing 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 him committing 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, there were no 

existing circumstances requiring his arrest without a warrant. 

We find that the arrest was based on probable cause and 

was lawful. Thus, the evidence seized after the arrest was 

admissible at trial. The district judge properly denied the 

motion to suppress. 

In Montana, "reasonable grounds" to arrest are synonymous 

with "probable cause" to arrest. State v. Fetters (1974), 165 
Mont. 117, 122, 526 P.2d 122, 125. As this Court stated in State 

v. Hamilton (1980), Mont. , 605 P.2d 1121, 1125, 37 

St.Rep. 70, 73: 

"'Probable cause to arrest without a warrant 

exists where the facts and circumstances within 

the officer's knowledge and of which he had 

reasonable 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. "' 

Admittedly, Officers Ma1 one 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 in the stakeout, he was unable to 

observe any of defendant's actions in the 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 is not an unusual one 

in this type of case. Several officers were working in cooperation with an informant in an ongoing undercover operation. 

Officers were staked out in various 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 i sh probable 

cause, but if the information is considered collectively and is 

evaluated on the basis of the information available to the law 

enforcement officers as a group, it was sufficient to establish 

probable cause. Numerous jurisdictions hold that 

It I 

. . .[P]robable cause is to be evaluated by the 

courts on the basis of the collective information of the police rather than that of only 

the officer who performs the act of arresting. "' 

State v. Shaw (1979), 3 0r.App. 346, 473 P.2d 159, 

161. 

See also Smith v. United States (D.C. Cir 1966), 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 find this view to be persuasive. Many investigations 
and undercover operations could be needlessly frustrated if the 

participating officers were not able to rely on information provided by other officers working with them on a particular case. 

Viewed in this way, we find that there were sufficient 

facts and circumstances within the officers' knowledge that they 

could reasonably believe that an offense was being or had been 

committed by defendant. Appel lant argues that his mere presence 

at the scene of a crime does not establish probable cause for 

arrest. This is a correct statement of the law, State v.Hamilton, 

supra, Mont. at , 605 P.2d at 1125, 37 St.Rep. at 73, 

but the evidence shows more than defendant's mere presence. 

Steve Markle, investigator for the Gallatin County 

Attorney's office, knew that a drug transaction had occurred between Informant and Amsk on August 8, 1979 and that another transaction was scheduled for August 9, 1979. From his dealings with 

Informant, Steve Markle knew the Informant to be re1 iable and 

Markle personally viewed part of the transactions. On August 9, 

from his stakeout position in the Livingston Armory, Markle saw 

through his spotting scope that Informant had made contact with 

Amsk and another unidentified person (defendant) at the scheduled 

time and that Informant had transferred money to Amsk; Amsk and 

the unidentified person left the meeting place; the unidentified 

person returned; Informant and the unidentified person left 

together,and returned to the scene together; and Informant gave a 

prearranged signal indicating the drug transaction had been 

completed. The information possessed by Markle was transmitted 

to Officers 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 to Amsk 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 testified to 
their belief that Informant would not have signaled to Markle, who 

alerted them in turn, unless the participants in the crime were 

present and the transaction complete. 

In sum, the arresting officers had sufficient trustworthy 

information and knowledge to constitute probable cause that an 

offense had been committed by defendant. But appellant argues 

that there were no existing circumstances requiring defendant's 

immediate arrest. Section 46-6-401(4), MCA. State v. 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 in radio contact with the law enforcement facility and could 

have obtained a warrant. 

Although there is a 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 allow a warrantless arrest. This Court has not specifically defined the "existing circumstances" which permit an 

immediate arrest, but we have in previous cases discussed 

"exceptional circumstances" a1 1 owing pol ice to enter a residence 

without a warrant in order to search and arrest. In State v. 

Means (1978), Mont. , 581 P.2d 406, 35 St.Rep. 673, this 

Court held that police acted properly under the circumstances in 

not obtaining a warrant. Citing Johnson v. United States (1948), 

333 U.S. 10, 68 S.Ct. 367, 92 L.Ed 436, we noted certain instances 

in which there could be a need to proceed without a warrant: 

" 'There are exceptional circumstances in which, 

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 is not such a 

case. No reason is offered for not obtaining a 

search warrant except the inconvenience to the 

officers and some slight delay necessary to prepare papers and present the evidence to a 

magistrate. . . No suspect was fleeing or likely 

to take 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. 

In this case, Officer Malone testified that despite the 

stakeout he believed that defendant, who had come to the park in 

his car, was likely to flee. Additionally, the police were 

justified in believing 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 in their be1 ief that 

an immediate arrest was necessary, as is required in State v. 

Bennett (1972), 158 Mont. 496, 504, 493 P.2d 1077, 1081. Because 

we find that the arrest was lawful, we hold that 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 motion was based on his theory 

that because he did not participate in the August 9 Amsk-Informant 

agreement to buy drugs, or the accompanying exchange of money, 

that any criminal offense was completed prior to the time that 

defendant participated in the transaction. 

In presenting 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 this view 

of "criminal sale" to be too restrictive. The statute provides 

in part: 

"(1) A person commits the offense of criminal 

sale of dangerous drugs if he sells, barters, 

exchanges, or gives away, or offers to sell, 

barter, exchange, or give away . . ." Section 

45-9-101, MCA. 

Several jurisdictions have considered the definition of 

"sell" as it appears in statutes similar to section 45-9-101, 

MCA. The Supreme Court of New Hampshire in State v. Stone 
(1974), 114 N.H. 114, 316 A.2d 196, 197, noted that in criminal 

statutes, "sell" may have a broader meaning than it does in statutes governing commerci a1 transact ions, where "sell" is commonly 

defined as "'the passing of title from the seller to the buyer for 

a price."' In order to carry out the purposes of the drug 

statutes, that Court found that "proof that the defendant made no 

profit or received no other consideration from this transact ion, 

or proof that he was simply a procuring agent for Perria would 

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. State v. Stone, 

supra, 316 A.2d at 197-198. 

The Supreme Court of Kansas has determined that in a conviction for criminal sale, it is immaterial that defendant does 

not possess legal title, or that defendant receives no consideration 

from a transaction in which he participates. See State v. Nix 

(1974), 215 Kan. 880, 529 P.2d 147, 151. In State v. Collazo 

(1977), 1 Kan.App.2d 654, 574 P.2d 214, the Court of Appeals of 

Kansas approved the jury instruction in a case charging criminal 

sale: 

"To sell heroin means to knowingly and intentionally transfer possession or ownership of the 

heroin to another for money or other valuable 

consideration. For a person to make such a sale 

it is not necessary that he personally handle 

all of the details of the transaction. It is 

sufficient if the transaction is arranged by him 

and handled by persons under his direction and 

it is sufficient to constitute a sale if the 

person charged with sale is involved in the 

transaction by accepting, handling, or counting 

the money and directing the delivery of the 

heroin. In other words, the person charged with 

the sale does not have to personally conduct a1 1 

of the 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 is obvious that he is a part of 

the making of the sale." State v. 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, particularly when we 

consider that the statutes are aimed primarily at stopping the 

transfer and distribution of dangerous drugs. Consequently, we 

find that the trial judge properly determined that the sale did 

not necessarily conclude with the payment of money, and properly 

denied appellant's motion to dismiss. 

Appellant's last contention is that 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 

to sell dangerous drugs. Our determination that the trial judge 

properly denied defendant's motions precludes a fi ndi ng 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 in the sale of 

August 9. The jury found this evidence sufficient to prove 

beyond a reasonable doubt that the defendant agreed with Amsk and 

David Harper to sell dangerous drugs, and affirmatively participated in an ongoing conspi racy. 

We affirm the defendant's conviction for conspi racy to 

sell dangerous drugs. 

Chief Justice