No. 13394 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

/' DONALD E. BRINER, 

Defendant and Appellant. 

Appeal from: District Court of the Ninth Judicial District, 

Honorable R. D. McPhillips, Judge presiding. 

Counsel of Record: 

For Appellant: 

Kampfe and Perhacs, Red Lodge, Montana 

D. Frank Kampfe argued, Red Lodge, Montana 

For Respondent: 

Mike Greely, Attorney General, Helena, Montana 

Dennis Moreen argued, Assistant Attorney General, Helena, 

Montana 

Rae V. Kalbfleisch, County Attorney, argued, Shelby, 

Montana 

Submitted: June 9, 1977 
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the 

Court. 

Defendant Donald E. Briner was charged and convicted of 

burglary in the district court, Toole County. From the jury 

verdict and subsequent sentence of 8 years, with 6 years suspended, defendant seeks this Court's review of four issues: 

I) Whether the district court erred in denying defendant's 

various motions to suppress and dismiss. 

2) Whether the testimony of the accomplice had the sufficient 

independent corroboration required by section 95-3012, R.C.M. 

1947. 

3) Whether the Information filed against defendant was 

sufficient to inform defendant of the nature of the charges 

against him. 

4) Whether the district court erred in failing to grant 

defendant's motion for a new trial based upon newly discovered 

evidence. 

The charges against defendant Briner arose in Sunburst, 

Montana from the burglary of the Farmers Co-op Oil Co. between 

the hours of 6:15 p.m., July 11, 1975 and 6:45 a.m., July 12, 1975. 

Three individuals were charged with the burglary-- Donald E. 

Briner, George Cain, and 'William Felton. 

Briner and co-defendants were stopped on July 13, 1975 outside Shelby, Montana by deputies possessing this information: 

[I) Three hours prior to defendant's arrest, sheriff deputies 

responded to a burglary in progress at the Co-op in Devon, Montana; 

(2) on reaching Devon a highway patrolman observed the pickup 

defendant was later driving when arrested; (3) this pickup had left 

the vicinity by the time the deputies reached the Devon Co-op; 
(4) at the Co-op the phone lfnes were cut, a window broken, and a 

door left open; (5) the dEputies observed footprints leading from 

the Co-op to and across a creek in the direction where the pickup 

had been parked. The footprints were similar to those found 

at the Sunburst Co-op the previous evening. The tire tracks 

observed at both Co-ops were similar; and (6) the deputies had 

information the pickup defendant was driving was equipped with a 

radio scanner tuned to police frequencies. 

On July 13, 1975 upon stopping the Briner vehicle, the 

deputies examined the pickup tires and determined they were similar 

in design to the tracks found at the Devon and Sunburst Co-ops. 

Deputies also observed defendant's and Cain's pant legs were wet; 

that a pair of wet waffle stomper boots was on the pickup's floorboard; and that a radio scanner was present. Arrest was made 

without a warrant, the pickup was seized. 

On the same day a search warrant was issued to search the 

vehicle defendant was driving. This warrant was r'eturned on the 

same day, together with the waffle stompers and gloves. Later, 

on July 25, 1975, deputies removed the vehicle's radio scanner 

and on July 26, 1975, the vehicle's tires. 

The defendant was charged by Information on September 4, 1975 

with the burglary of the Farmers Co-op Oil Company of Sunburst, 

Montana, !'on or about July 12, 1975". 

Evidence presented to the jury showed: 

1). Footprints from waffle stompers were found inside and 

outside the Co-op after the burglary; defendant owned a pair of 

waffle stompers which was in his pickup at the time of his arrest; 

expert opinion found the prints to be made by boots with a similar 

tread design and wear pattern as those of defendant. 
2). The vehicle defendant was driving was seen parked on 

the Interstate highway ramp overlooking the Co-op during the 

early morning hours after the night of the burglary; fresh tire 

tracks were found at the Co-op; expert opinion found the tire 

tracks and the tires from the pickup defendant was driving to be 

of similar tire design and tread wear. 

3). Defendant's vehicle was equipped with a radio scanner 

tuned to the major law enforcement frequencies. 

4). An accomplice of defendant testified to the participation of defendant in the burglary. 

From this evidence the jury convicted defendant of burglary. 

On the first day of trial, after the jury had been voir 

dired and passed for cause by the county attorney, the attorney 

for defendant attempted to file various motions to suppress 

evidence and to dismiss. The district court recessed and took 

testimony and argument on the motions; later it denied all motions. 

From that denial defendant raises his first issue on appeal. 

Counsel for defendant argues it is his client's constitutional right to use the exclusionary rule at any time. In 

State v. Dess, 154 Mont. 231, 235, 462 P.2d 186, this Court 

reviewed the exclusionary rule: 

"The exclusionary rule fashioned in Weeks v. United 

States, 232 U.S.383, 34 S.Ct. 341, 58 L.Ed 652 (1914), 

and Mapp v, Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 

2d 1081 (1961) excludes from a criminal trial any evidence seized from the defendant in violation of his 4th 

Amendment rights. In Mapp and Weeks the defendant against 

whom the evidence was held to be inadmissible was the 

victim of the search. In the recent case of Alderman v. 

United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 

176 (1969) the Supreme Court rejected any expansion of 

the 4th Amendment and the exclusionary rule to include 

those who are aggrieved solely by the introduction of 

damaging evidence, or those whose rights were not violated 

by the search itself. * * *I1 
Ln a recent case the United States Supreme Court reiterated 

that the exclusionary rule was not a personal constitutional 

right of the aggrieved party and again rejected the fourth and most 

critical justification for the exclusionary rule enunciated in 

Mapp. In United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 

49 L ed 2d 1046, 1056, the Court said: 

"The debate within the court on the exclusionary rule 

has always been a warm one. * * * The Court, however, 

has established that the 'prime purpose' of the rule, 

if not the sole one, ' is to deter future unlawful police 

conduct! [Cited cases omitted] 

"Thus 

"' [1]n sum, the rule is a judicially created 

remedy designed to safeguard Fourth Amendment rights 

generally through its deterrent effect, rather than 

a personal constitutional right of the party aggrieved. I 

United States v. Calandra, 414 U.S. at 348, 38 L Ed 2d 

561, 94 S.Ct. 613, 66 Ohio Ops.2d 320.'' 49 L ed 2d 1056. 

The question of "timeliness" is well defined in Montana. 

Section 95-1806, R.C.M. 1947, sets forth the procedure for filing 

motions to suppress evidence illegally seized and provides in 

part : 

" (a) A defendant aggrieved by an unlawful search 

and seizure may move the court to suppress as evidence 

anything so obtained. 

"(b) The motion shall be made before trial unless 

for good cause shown the court shall otherwise direct. 

"(c) The defendant shall give at least ten (10) 

daysi notice of such motion to the attorney prosecuting 

or such other time as the court may direct. The defendant shall serve a copy of the notice and motion upon 

the attorney prosecuting. 

In State v. Gotta, 71 Mont. 288, 290, 229 P. 405, this Court, 

speaking to the issue of "timeliness" stated: 

":k * * One wishing to preclude the use of evidence 

obtained through a violation of his constitutional 

rights must protect himself by timely action, If he 
has had opportunity to suppress the evidence 

before trial and has failed to take advantage of 

his remedy, objection to the evidence upon trial 

will not avail him. * * *" 71 Mont. 290. 

See also: State v. Gallagher, 162 Mont. 155, 509 P.2d 852. 

In the instant case defendant was aware of the facts and 

circumstances surrounding the arrest and the possibility of the 

introduction of certain evidence, long before the first day of 

trial. Upon filing of defendant's various motions to suppress, 

no offer of evidence nor showing of good cause was given which 

prevented defendant from filing his motions before trial. If 

under section 95-1806, we assume the evidence was obtained by an 

unlawful search and seizure, it ?was necessary for the accused, 

who desired to exclude such evidence from his trial, to make a 

timely objection to its introduction. Such was not the fact 

in this case, as the trial judge found. Also a review of the 

record would allow the evidence in any event. 

Defendant's second issue concerns whether the testimony of 

William J. Felton, an accomplice, was sufficiently corroborated 

by independent evidence. Defendant and plaintiff agree section 

95-3012, is the applicable statute and the numerous prior opinions 

of this Court concerning requirements for corroboration of an 

accomplice's testimony have continued validity. Section 95- 

3012 replaces section 94-7220, R.C.M. 1947. The only difference 

between the present provision and its predecessor is the substitution of the words "one responsible or legally accountable for 

the same offense, as defined by section 94-2-106'1 for the term 

"an acc~mplice'~. 

The -question whether there is sufficient, independent 

corroboration of an accomplice's testimony, tending to connect 

a defendant with the commission of a crime is one of law and 
must be decided by the trial court. State v. Spielmann, 163 Mont. 

199, 207, 516 P.2d 617. See also: State v. Moran, 142 Mont. 423, 

452, 384 P.2d 777; State v. Dess, supra. 

The requirements of section 94-7220 the predecessor of section 95-3012, are well established in Montana. This Court in 

Spielmann repeats the requirements of section 94-7220 as explained in Dess: 

"'* * * Appellant suggests that the evidence, independent 

of the testimony of an accomplice, must prove him guilty 

beyond a reasonable doubt. This is not the law in Montana, 

however. Though there must be some independent evidence 

connecting the defendant to the crime, it .need not be 

sufficient alone to sustain a conviction. The jury can 

consider the testimony of the accomplice and give the testimony whatever weight they desire. In State v. Donges, 126 

Mont. 341, 251 P.2d 254,(1952), the Court stated at page 

347, 251 P.2d at page 257: 

" "'The evidence which corroborated Bungard could 

be furnished by the defendants. It could be circumstantial, It need not extend to every fact to which Bungard 

testified and need not be sufficient to justify a conviction or establish a prima facie case of guilt; it 

being sufficient if it tends to connect defendants with 

the commission of the crime. Whether it tends to do so 

is a question of law, while its weight-its efficacy to 

fortify the testimony of Eungard and render his story 

trustworthy - is a matter for the consideration of the 

jury. State v. Cobb, 76 Mont. 89, 245 P. 265."'" 

163 Mont. 207,208. 

In this case there is sufficient corroborating evidence in 

the record for the district court judge, as a matter of law, to 

warrant the submission of the case to the jury: (a) waffle 

stomper footprints were discovered inside and outside the Co-op 

after the burglary; (b) defendant owned a pair of waffle stomper 

boots seized on the same day as his arrest; (c) expert comparison 

of defendant's boots to footprints found at the Co-op demonstrated 

the prints were made by boots similar to defendantis; (d) the 

pickup defendant was driving was seen parked on the Sunburst 

Interstate 15 exit ramp overlooking the Co-op in the early 

morning hours following the night of the burglary; (e) fresh 
tire tracks were found at the Co-op after the burglary; (f) expert 

comparison of the tire tracks found at the Co-op and the tires on 

the pickup defendant was driving determined the tracks were made 

by tires with similar tread design and wear as those of the pickup; 

(g) eyewitnesses who saw the pickup defendant was driving on the 

Sunburst exit ramp, observed the pickup proceed down the ramp and 

repark at the Texaco station across the street from the Co-op; 

(h) waffle stomper footprints led from the ramp towards the 

Co-op; and (i) the pickup defendant was driving was equipped with 

a radio scanner tuned to Montana law enforcement channels. 

Defendant's third issue claims the time alleged in the 

Information was not sufficiently definite to inform defendant 

of the nature of the charge against him. This Court finds this 

issue without merit. Defendant's motion to dismiss, which 

challenged the sufficiency of 'the Information, was properly 

denied as untimely filed. 

Defendant's fourth issue contends the court erred in denying 

his motion for a new trial, based on newly discovered evidence. 

This Court in State v. Gallagher, supra, set forth requirements 

for this motion: 

"* * * (1) That the evidence must have come to the 

knowledge of the applicant since the trial; (2) that 

it was not through want of diligence that it was not 

discovered earlier J; * *." 162 Mont. 161. 

By raising this issue, defendant requires this Court to 

review the discretion of the trial court. Section 95-2101, R.C.M. 

1947, states in part: 

"(b) Motion for a New Trial 

"(1) Following a verdict or finding of guilty 

the court may grant the defendant a new trial if 

required in the interest of justice." 
The trial court using sound discretion must decide if a new 

trial is required "in the interest of justice". Where the trial 

court acts within its discretion, this Court has no right of 

review. State v. Laughlin, 105 Mont. 490, 497, 73 P.2d 718; 

State v. Quigg, 155 Mont. 119, 147, 467 P.2d 692. 

Here defendant supported his motion for new trial with 

four affidavits. Three were from alibi witnesses who purportedly 

saw defendant on the night in question, and one was from John 

S. Lindsey Jr., an investigator, who knew of and tried to locate 

one alibi witness before trial. This affidavit from Lindsey 

shows the alibi witness was known before trial. State v. 

Gallagher, supra. The trial judge was in the best position 

to weigh the merits of the other three affidavits. State v. 

Quigg, supra. 

We find there was no abuse of discretion by the trial court 

in denying the motion for a new trial. 

The judgment is affirmed. 

Chief Just ice A 

We Concur: 

Justices. 

-. g - 
Mr. Justice Daniel J. Shea specially concurring: 

I agree with the result of this case but I do not agree 

with all that is said in relation to the search and seizure 

question. 

The trial court did not find the motion to suppress was 

untimely. After the motion to suppress was filed the trial 

judge heard the evidence and denied the motion without stating 

his reasons. He left it for this Court to speculate as to the 

reasons he denied the motion. I do agree however, that the 

evidence was not illegally seized. 

With regard to the exclusionary rule and its application 

to searches and seizures, I feel this Court is paying too much 

attention to the United States Supreme Court in interpreting 

the 4th Amendment to the United States Constitution, and not 

paying enough attention to Art. 11, Section 11, of Montana's 

1972 Constitution which provides: 

"The people shall be secure in their persons, 

papers, homes and effects from unreasonable searches 

and seizures. No warrant to search any place, or 

seize any person or thing shall issue without describing 

the place to be searched or the person or thing to be 

seized, or without probable cause, supported by oath 

or aff irmation reduced to writing ." 

Undoubtedly we are bound by the United States Supreme Court 

in its interpretations of the United States Constitution but we 

are not bound by it when we implement and give meaning to 

Montana's Constitution. We certainly can reach a contrary result 

by interpreting similar provisions of ~ontana's Constitution. 

Without specifically referring to the Montana Constitution 

this Court seems to be holding that the exclusionary rule is not 

a personal right of the accused, although the right to be free 
from unreasonable searches and seizures is his personal right. 

Without the exclusionary rule the right to be free from unreasonable searches and seizures would be meaningless. I would 

hold the exclusionary rule is part and parcel of Art. 11, Section 

11 of the 1972 Montana Constitution and accordingly is a personal 

right of the defendant. This does not mean that a defendant 

can feel free to raise the issue at any time during the proceedings. 

But it does mean that a defendant must be informed, in sufficient 

time ahead of trial, that he has a right to make a motion to 

suppress, If a defendant files no motion to suppress, the court 

should obtain an informed, intelligent waiver. 

Here, the defendant has shown no prejudice however, because 

the trial court did hear the motion to suppress and a review of 

the evidence clearly shows the motion was properly denied.