*1 32 MONTANA, STATE OF Respondent, Plaintiff v. Appellant. CHESTER LAHR, Defendant HAROLD No. 13134. 21, 1977.
Submitted Jan. 24, 1977. Decided Feb. 527. P.2d Lewistown, for appellant. B. Parrish Bradley (argued), Gen., Michael Asst. Greely, Atty. Mayo Ashley, Atty. Gen. J. Helena, Jr., William Robert L. (argued), Spoja, County Atty., Lewistown, for Knopp, Deputy County Atty., respondent. *2 MR. C. HARRISON delivered the of opinion JUSTICE JOHN the Court.
This concerns cause for an appeal arrest for probable illegal court, of The district possession dangerous drugs. Fergus after on a County, hearing motion to held sufficient suppress cause existed for the arrest. Thereafter defendant Harold Lahr was tried and convicted of the charge. 7, 1974, C. defendant Harold of evening September
On the Denton, Moore, to Montana drove from and Richard Biehl Lahr David Sirucek Deputy automobile. Sheriff’s in Lahr’s Montana Lahr and Biehl and noticed evening Denton that was on duty Sirucek, himself near- who had positioned town. as entered they Linse. with one and Biehl conversing Lahr observed by, John related Linse’s previous drug was aware of Sirucek Deputy binoculars, observed what he Sirucek Deputy arrests. Using the parties. take between place a transaction believed to be hands, how- to change that a appeared testified package Sirucek that the circum- ever, only idea what kind of package, he had no somewhat suspicious. stances were with soon after their conversation Biehl left Denton
Lahr and Lewistown, Montana. Deputy toward Linse and proceeded and Cordle Lewistown radioed Randle Deputy Sirucek then to He asked Cordle transaction. informed him of suspicious what they to see came into Lewistown them when up they “pick were to.” up car his unmarked patrol approxi- positioned Cordle and waited for the miles outside Lewistown four to five
mately Lewistown, De- As the Lahr vehicle approached Lahr vehicle. at a three miles the car for approximately Cordle followed puty he considered car Lahr testified distance of one to four lengths. and situation him so closely dangerous the vehicle following he have that vehicle him. He further testified attempted pass waved vehicle to pass. slowed and following the Lahr vehicle testified that while following line of the twice he it swerve over the center highway observed he con- the shoulder three times. Cordle stated onto go fact the reckless in of the light sidered Lahr’s manner hour, so he from 35 to 40 miles per cars were only traveling of the red and Lahr to the side light pulled his displayed flashing their vehicles Cordle and Lahr from alighted road. Both Deputy Lahr re- asked to see Lahr’s driver’s license. it from his license. As he was retrieving turned to his car get of what he his coat Cordle observed quantity pocket, the front seats to be in the console between marijuana believed under that Lahr and Biehl of Lahr’s car. At time Cordle placed At no time was arrest for of dangerous drugs. illegal possession violation. Lahr found guilty Lahr with charged any driving Biehl was found not of dangerous drugs; illegal possession of that guilty charge. *3 for the arrest is the issue
Whether there was cause probable before this Court on appeal. R.C.M.1947, 95-608(d), the circumstances
Section provides arrest, it a warrantless under which officers make peace may states: a when:
“A officer arrest may person peace “(d) is that the person He believes on reasonable grounds, offense, an that has committed an or committing person his immediate require offense and the circumstances existing arrest.” 132, Court, 461 154 Mont. rel. Glantz v. District
See: State ex
123,
117,
193;
Lean,
165 Mont.
v. Fetters and
P.2d
State
496,
122, 125;
Bennett,
It is that clear neither Sirucek nor Cordle Deputy a had cause to arrest Lahr. Sirucek had suspi Denton, cion that an transaction had taken but illegal place more. On cross-examination at a on a motion nothing hearing he testified: suppress was a transaction suspicious what “Q. you thought You saw — something arrest them if you thought didn’t you and you why arrest. I had no for an grounds was on? A. going an arrest? A. No Sir. “Q. You had no grounds there was and said called Officer Cordle “Q. you And yet Yes, A. sir.” something suspicious? Lahr for testified he initially stopped
violation,
never issued. Clearly,
a traffic citation was
however
used
Cordle to
merely
pretext
by Deputy
the traffic stop
Hence, De-
Sirucek.
the call received from
follow on
up
on a mere suspicion.
was also acting
puty
is not
necessary
evidence
to establish
required
guilt
arrest,
faith or mere
for an
however good
cause
prove probable
is not
State v.
officers
arresting
enough.
on
part
suspicion
Lean,
District
ex rel.
You v.
Wong
Fetters and
State
supra;
Furthermore,
347,
Court,
an arrest is
We reverse on the of lack of grounds arrest. and and DALY
MR. HATFIELD CHIEF JUSTICES JUSTICE concur. SHEA dissenting:
MR. HASWELL JUSTICE admissi- view the conviction should be affirmed. The my In de- smoking the and dangerous drugs paraphernalia of bility version the facts is Cordle’s accepted, Deputy on whose pends must have accepted or defendant’s. district court defend- the court not have denied the Cordle’s version or would this should not reverse ant’s motion to This Court suppress. circimstantial, conflict- based finding though factual on implied evidence is no clear preponderance evidence. If there ing, determination, it not district court’s factual should the against Recreation be disturbed on Crncevich v. appeal. Georgetown 113, 56, 541 P.2d cases cited there- 168 Mont. and Corporation, in. it, no I are irrelevant furnish
As see the events Denton to according defendant’s car. But basis stopping centerline vehicle twice swerved over the Cordle the defendant’s went shoulder of the road in and three times onto the stop a to right Cordle’s This presence. gave Deputy In this ask see the driver’s license. vehicle and to defendant’s view two roaches of observed in plain process Deputy marijuana, a used contain film canister marijuana cigarettes, defendant under Thereafter he placed hash pipe. arrest. R.C.M.1947, amended, 95-605(d), as cite section
The majority make under which an officer may the circumstances as detailing where, as of these circumstances a warrantless. arrest. One here, Normal is committed in officer’s presence. an offense see the request is a to traffic stop incident procedure police this Cordle ob- During process driver’s license. person’s he had view. At this point drugs plain served the dangerous *5 probable cause to arrest the defendant. This is in accord with our in State v. Fetters and Lean the other cases holding cited the by majority. out that the defendant was majority never arrested point
on the traffic and therefore conclude charge that the traffic of- did fense either not occur or that it was a mere subterfuge get view, a look in defendant’s car. This is pure supposition, my as common demonstrates that in experience many cases where a second more serious crime is discovered while investigating offense, lesser person not with frequently the lesser charged offense.
What the have majority done here is accept version de- fendant that his erratic the result tailgating by Cordle in preference to Cordle’s version to contrary. In so have made an doing they factual independent determination contrary that made by district court in defendant’s motion denying to suppress.
For these I reasons respectively dissent.