No. 87-017 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsTIMOTHY L. MORRIS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial district, 

In and for the County of Missoula, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael Sol; Sol & Wolfe, Missoula, Montana 

William Dee Morris, Butte, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Kimberly A. Kradolfer, Asst. Atty. General, Helena 

Robert Deschamps, 111, County Attorney, Missoula, 

Montana 

Submitted on Briefs: 0c.t. 16, 1987 

Decided: February 11, 1988 

Filed: FEB 1 1 1988 

.-,,Fd"~'--, 

Clerk 
Mr. Justice Fred J. Weber delivered the opinion of the Court. 

Mr. Morris appeals his conviction in the Fourth Judicial 

District, Missoula County, for possession of a dangerous drug 

in violation of § 45-9-102, MCA. 

He presents four issues for review. 

1. Did the District Court err in denying defendant's 

motion to dismiss based upon lack of speedy trial? 

2. Did the District Court err in denying defendant's 

suppression of evidence motions? 

3. Did the District Court err when it admitted evidence 

over defendant's chain of possession objection? 

4. Did the District Court err in denying defendant's 

motion for a new trial? 

On March 13, 1985, around 11:30 p.m. in Missoula, Mr. 

Morris was driving a recently purchased used car. His heater 

was not working properly so he decided to pull into a shopping center parking lot to fix the heater. He parked underneath a street light, positioned himself under the dashboard, 

and using a knife and some pliers, began working on his car. 

City police officer Jim Neumeyer was patrolling the area 

that night when he saw the Morris vehicle parked with lights 

on and engine running. Officer Neumeyer testified at trial 

that he could see no one in the car so he decided to investigate. The officer expressed his concern that perhaps someone 

had pulled off the street and had fallen asleep or that a 

crime might be taking place. As he approached the car, he 

saw an empty gun holster in the back seat and some knives on 

the dashboard. He then saw Mr. Morris underneath the dashboard. As a safety measure, Officer Neumeyer pointed his 

flashlight directly into the eyes of Mr. Morris to momentarily blind him. Mr. Morris was in an awkward position, and as 
he rolled out of the car, the officer confronted him with the 

flashlight and a drawn revolver. 

Mr. Morris testified that the officer never identified 

himself but only shouted, "You'll be dead before you hit the 

ground. Don't try it. 1'11 blow your brains out." Officer 

Neumeyer testified that Mr. Morris had a knife in his hand as 

he was coming out of the car. For his own safety he drew his 

revolver and ordered Mr. Morris out of the car. The officer 

agrees that Mr. Morris immediately assumed a spread-eagle 

position and volunteered that he had a gun under his jacket. 

The officer says that he then took possession of the gun, 

handcuffed Mr. Morris, and performed a brief pat-down search 

for any other weapons. The officer then arrested Mr. Morris 

for carrying a concealed weapon. 

During the booking procedure at the jail, the jail 

officer found a vial of white powder inside Mr. Morris' pants 

pocket. The defendant was charged later that day in justice 

court with one count of criminal possession of a dangerous 

drug (felony) and one count of carrying a concealed weapon 

(misdemeanor) . On March 25, 1985, an amended complaint was filed in 

justice court adding a second count of criminal possession of 

a dangerous drug, relating to a separate arrest and search of 

defendant. This count was dismissed during the trial and is 

not directly at issue in this appeal. The justice court 

docket indicates that Mr. Morris requested a preliminary 

examination on all counts although the court never conducted 

one. 

On August 16, 1985, the State requested leave to file an 

information in district court. The information was filed 

that same day. Arraignment was held on September 9, and the 

omnibus hearing was on November 7. At this time Mr. Morris 

moved to dismiss for delay in arraignment which motion was 
denied. The matter eventually went to a jury on June 10, 

1986. Mr. Morris was found guilty of one count of possession 

of a dangerous drug. 

I 

Did the District Court err in denying defendant's motion 

to dismiss based upon lack of speedy trial? 

The right to speedy trial attaches at the moment a 

defendant is accused, and that may occur at the time of 

arrest, at the time of the filing of a complaint or information, or at the time of indictment. State v. Larson (Mont. 

1981), 623 P.2d 954, 957-58, 38 St.Rep. 213, 215. Mr. Morris 

stood accused and his right to speedy trial attached the day 

he was arrested. We must balance four factors together with 

any other relevant circumstances to determine whether Mr. 

Morris' constitutional right to a speedy trial has been 

violated: length of delay, reason for delay, the defendant's 

assertion of the right, and prejudice to the defendant. 

Larson, 623 P.2d at 957. 

Mr. Morris was arrested the first time on March 14, 

1985, and was tried 453 days later on June 10, 1986. This 

certainly is enough delay to raise a presumption of prejudice 

to defendant. State v. Steward (19751, 168 Mont. 385, 543 

P.2d 178. 

In considering reason for delay, we will deduct the 

delay attributable to defendant's own actions from the total 

delay. State v. Grant (Mont. 1987), 738 P.2d 106, 109, 44 

St.Rep. 994, 997. The State did not request leave to file an 

information in district court until August 16, 1985. The 

arraignment was 24 days after the information was filed, and 

the omnibus hearing was held 59 days after arraignment. Thus 

far, 237 days had elapsed since initial arrest. Mr. Morris 

made several waivers of speedy trial for qualified periods of 

time. He also made a motion to dismiss due to delay in 
arraignment and additional consolidated motions. Trial was 

set for January 1986. 

On January 13, the defendant requested a continuance, a 

transcript, and independent testing of the substance in the 

vials. The court granted these motions. From the record we 

understand that Mr. Morris waived speedy trial for a period 

of time perhaps extending beyond March 1986. He did not 

initiate or promote transfer of the vials for testing, and 

they were not tested until late May, several weeks before 

trial. At a May 5 hearing on the State's motion to set a 

trial date, the court offered to try the case in May. Defense counsel could not calendar for trial in May, so trial 

was set for June. 

In total, the defendant was responsible for 253 days of 

delay. This leaves 200 days remaining. The burden of explaining the reason for this delay rests with the State, and 

the question is whether prosecution was pursued with reasonable diligence. Grant, 738 P.2d at 109. We note a marked 

lack of diligent prosecution in the present case. The State 

failed to request leave to file an information until 154 days 

after the initial arrest. Prior to this time the defendant 

was afforded no hearing to determine probable cause for the 

charges against him, and the State offers no sufficient 

excuse. Another 46 days is attributable to institutional 

delays. So, we conclude that 154 days of delay directly 

reflect the prosecution's lack of reasonable diligence. 

We now look to the defendant's assertion of his right to 

speedy trial. On two occasions prior to trial, Mr. Morris 

moved to dismiss all counts because of lack of speedy trial, 

once at the omnibus hearing and once on the day before trial. 

Mr. Morris, somewhat inconsistently with his speedy trial 

argument, waived speedy trial three times during the process. 

One month before trial, his attorney indicated a complete 
waiver. We note however that these waivers were given partially for convenience of the court and its trial calendar, 

and partially to accommodate the defense. We conclude that 

Mr. Morris properly asserted his right to speedy trial. 

Lastly we consider whether the delay prejudiced Mr. 

Morris. The burden of showing absence of prejudice rests 

with the State. Grant, 738 P.2d at 109. The right to speedy 

trial serves three interests of the defendant: 1) to prevent 

oppressive pretrial incarceration, 2) to minimize anxiety and 

concern of the accused, and 3) to limit the possibility that 

the defense will be impaired. State v. Waters (Mont. 19871, 

743 P.2d 617, 620, 44 St.Rep. 1705, 1708. Mr. Morris was out 

on bond for the entire period after the second arrest so the 

first interest was protected. Considering the second interest, a certain amount of anxiety and concern is expected when 

one stands accused, yet Mr. Morris has not alleged excessive 

anxiety as a result of the delay. As for impairment of the 

defense, the State argues that the delay did not impair the 

defendant's case. Mr. Morris alleges that his defense suffered due to the lack of memory of State's witnesses. He 

presented no witnesses at trial nor does he complain that the 

delay caused him to lose witnesses. Lack of memory in this 

instance may weaken the State's case, and indeed the record 

reflects that one count of possession of dangerous drugs was 

dismissed, partially as a result of this very problem. 

However, the lack of memory of State's witnesses does not of 

itself constitute impairment of the defense. We conclude 

that the State has sufficiently rebutted the presumption of 

prejudice to Mr. Morris by the delay. 

Of the four factors we have considered, "[nlo single 

factor is determinative. Each facet of the analysis is 

weighed in light of the surrounding facts and circumstances." 

Waters, 743 P.2d at 619. Considering these four factors and 
the record as a whole, we conclude that the delay did not. 

result in even minimal prejudice. We hold, therefore, that 

Mr. Morris' right to a speedy trial was not denied. While 

the facts do not require dismissal, we are seriously disturbed by the unexcused 154 day delay before the State 

brought Mr. Morris before a court for determination of probable cause and the additional 24 days before arraignment. We 

emphasize that this type of delay without cause is totally 

inappropriate. Mr. Morris argues that this delay of itself 

demands dismissal for lack of speedy trial. This argument 

fails, however, since we have concluded that Mr. Morris 

suffered no prejudice by the delay. 

I1 

Did the District Court err in denying defendant's suppression of evidence motions? 

Mr. Morris contends that the gun and the alleged drugs 

are evidence which the court should have suppressed as the 

result of an illegal arrest. He argues that the arrest was 

illegal in that the officer lacked probable cause to arrest 

and failed to comply with stop and frisk requirements. 

This Court in State v. Gopher (Mont. 1981), 631 P.2d 

293, 296, 38 St.Rep. 1078, 1082, explained the standard for a 

valid stop and search: 

[Wle now hold that when a trained police officer 

has a particularized suspicion that the occupant of 

a vehicle is or has been engaged in criminal activity, or witness thereto, a limited and reasonable 

investigatory stop and search is justified. 

Probable cause is not the standard for a valid stop. Rather, 

the officer must have a particularized suspicion to justify a 

stop. We further explained "particularized suspicion" in 

Gopher, 631 P.2d at 296: 
The State's burden has two elements: (1) objective 

data from which an experienced officer can make 

certain inferences; and (2) a resulting suspicion 

that the occupant of a certain vehicle is or has 

been engaged in wrongdoing or was a witness to 

criminal activity. 

In this case, an officer of nine years' experience 

noticed a car parked in an otherwise empty parking lot, 

sometime around midnight. The engine was running and the 

headlights were on yet the officer could not see an occupant 

in the car. The officer then decided he should investigate 

to determine whether someone was in need of assistance, 

whether the driver was intoxicated, unconscious, or asleep or 

whether an individual was in the process of an auto theft or 

other crime. As he approached, the officer saw an empty gun 

holster and several knives inside the car. He then saw a man 

lying under the dashboard of the car. We conclude from these 

facts that the officer reasonably suspected wrongdoing and 

reasonably took precautionary measures for his own safety. 

At that point, a reasonable investigatory search was 

justified. Mr. Morris testified that he voluntarily assumed 

a spread-eagle position and warned the officer that he had a 

gun under his jacket. The officer had not searched or 

frisked the defendant's person to this point, and the gun was 

not the result of a search. The District Court, therefore 

properly denied suppression of the gun as evidence. 

Mr. Morris further complains that Officer Neumeyer did 

not follow the stop and frisk procedures of S 46-5-402, MCA. 

The procedures of that statute apply once the officer has 

lawfully stopped a person and so apply specifically to the 

"frisk" portion of the process. Once Mr. Morris volunteered 

the fact that he possessed a gun under his jacket, the officer had probable cause for arrest for possession of a 
concealed weapon. "A founded suspicion to stop for investigative detention may ripen into probable cause to arrest 

through the occurrence of facts or incidents after the stop." 

State v. Sharp (Mont. 1985), 702 P.2d 959, 963, 42 St.Rep. 

1009, 1013. The subsequent pat-down at the scene and the 

search upon booking at the jail were proper and valid searches incident to arrest. Section 46-5-101 (I), MCA. We hold 

that the District Court properly denied defendant's motion to 

suppress the vial which was found during booking procedures. 

Mr. Morris also argues that the officer's actions violated his constitutional right of privacy. The Montana 

Constitution, Art. 11, 5 10, provides, 

The right of individual privacy is essential to the 

well-being of a free society and shall not be 

infringed without the showing of a compelling state 

interest. 

Mr. Morris contends that the officer had no basis for believing that he was involved in criminal activity; therefore, 

there was no compelling state reason for infringing his 

privacy. However, we have already concluded that this officer had a particularized suspicion to investigate as required 

by Gopher. When a trained and experienced officer is confronted with circumstances which that officer believes demand 

investigation, within the parameters of Gopher, that officer 

has a duty to investigate. 

Effective law enforcement requires some latitude to 

be given to investigating officers to react to and 

follow up on their observations. Drawing artificial distinctions or 'time lines' in situations 

such as these does not comport with reality or 

common sense. 
Sharp, 702 P.2d at 963. We hold that the District Court 

properly denied defendant's suppression motion which was 

based on invasion of privacy. 

I11 

Did the District Court err when it admitted evidence 

over defendant's chain of possession objection? 

Mr. Morris argues that the chain of possession of Exhibit 2 is flawed in numerous respects. Exhibit 2 is the vial 

found during the booking procedure. This exhibit was admitted into evidence without defense objection. When the State 

rested its case, the defense, as part of a motion to dismiss, 

challenged the chain of possession of the exhibit. The 

pertinent portions of the motion appear as follows: 

I could not follow the chain of possession of 

Exhibit 2. . . . I have had a very difficult time 

following the chain of possession. . . . 1 don't 

think we can trace the possession of that bottle of 

amphetamine to Timothy Morris and that jailer, not 

a deputy, but a jailer not covered by the presumption of regularity of carrying official functions. 

The jailer found and passed it on and I really 

couldn't follow the chain of possession. 

Other than his concern about the jailer, the defense only 

generally objected to the exhibit. Such a general statement 

as, "I could not follow the chain of possession . . .", does 

not preserve a valid objection for appeal. Further, Mr. 

Morris did not at trial or on appeal cite any authority for 

his concern that the chain of possession is somehow tainted 

by the fact that the jailer was a civilian rather than a 

peace officer. We hold that the District Court properly 

overruled Mr. Morris' objection to the chain of possession of 

Exhibit 2. 
Did the District Court err in denying defendant's motion 

for a new trial? 

Mr. Morris bases his motion for new trial on the ground 

of newly discovered evidence. He indicates that some facts 

became clear only during trial and after review of the trial 

transcript. Section 46-16-702 (1) , MCA, allows the court 

discretion to grant defendant a new trial "if required in the 

interest of justice." The Commission Comments to this statute provide in part: 

[Section 46-16-7021 does not specify the grounds 

which may be the basis for a motion for a new trial . . . [It] encompasses the various grounds set 

forth in the existing Montana law plus it permits 

the granting of a motion for a new trial for any 

other reason the court may find to be in the interest of justice. . . . 

In State v. Greeno (1959), 135 Mont. 580, 586-87, 342 P.2d 

1052, 1055, this Court enumerated certain rules which govern 

a motion for new trial based on newly discovered evidence. 

We need consider only the first one: the evidence must have 

come to the knowledge of the applicant since trial. The 

granting or denial of a motion for new trial rests within the 

sound discretion of the trial court. State v. Gallagher 

(1973), 162 Mont. 155, 164, 509 P.2d 852, 857. 

Mr. Morris contends that the State was conducting an 

undercover operation to locate a "drug factory". As part of 

this operation, the State put pressure on him because he was 

suspected to be involved or to have knowledge of the factory. 

As part of this pressure, he contends, the vial which was 

"found" on him during booking was actually "planted" on him 

during arrest. All of the facts upon which Mr. Morris bases 

his motion were available to him before and during trial. In 

fact, he argued this conspiracy and undercover operation 
theory at trial. The only - new evidence that Mr. Morris 

mentions is some exculpatory evidence which the State allegedly has in its hands but refused or failed to turn over to 

the defense. He cites § 26-1-602 (5), MCA, which states it is 

presumed that "[elvidence willfully suppressed would be 

adverse if produced." He argues that the State failed to 

present evidence to controvert this disputable presumption. 

However, Mr. Morris produced no evidence indicating that the 

State was willfully suppressing exculpatory evidence. His 

allegations of newly discovered evidence simply are unfounded. The District Court, in denying new trial, stated that it 

believed the defense was aware of the "drug factory implications" prior to trial. We agree with the court. The defense 

makes only allegations -- the same allegations made at trial. 

We hold that the District Court exercised sound discretion 

when it denied Mr. Morris' motion for new trial. 

The judgment of the District Court is affirmed. 

We Concu 
Mr. Justice John C. Sheehy, specially concurring: 

I agree with the results. On the speedy trial issue, 

the time taken to bring this case to trial was inordinately 

long. There was no speedy trial here, but I agree with the 

result because the record demonstrates that Morris really did 

not want a speedy trial. See Barker v. Wingo (1972), 407 

U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. 

Justice