STATE v BENNETT
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No. 12076 I N T E SUPREME C U T O THE STATE O M N A A H OR F F OTN T E STATE O M N A A H F OTN, P l a i n t i f f and A p p e l l a n t , R S M R BENNETT, NANCY WILLIAMS OE A Y and VERNON BROOKS, Defendants and Respondents. Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t , Honorable Truman G. Bradford, Judge p r e s i d i n g . Counsel of Record: For Appellant: Hon. Robert L. Woodahl, Attorney General, Helena, Montana. David Gliko, A s s i s t a n t Attorney General, appeared, Helena, Montana. J. Fred Bourdeau, County Attorney, Great F a l l s , Montana. N e i l Ugrin, Deputy County Attorney, argued, Great F a l l s , Montana. For Respondents: Robert Tucker argued, Great F a l l s , Montana. Gregory Warner argued, Great F a l l s , Montana. Submitted: Filed : FEe 7 - 1p 9 Decided: December 1, 1971 7 - Im. Mr. J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e C o u r t . T h i s a p p e a l i s t a k e n by t h e s t a t e o f Montana from a n o r d e r s u p p r e s s i n g e v i d e n c e by t h e d i s t r i c t c o u r t i n t h e e i g h t h j u d i c i a l d i s t r i c t , county o f Cascade. The e v i d e n c e s u p p r e s s e d by t h e c o u r t w a s s e i z e d a t t h e t i m e o f t h e a r r e s t o f t h e t h r e e d e f e n d a n t s Rosemary B e n n e t t , Nancy W i l l i a m s , and Vernon Brooks on J a n u a r y 2 9 , 1971, i n G r e a t F a l l s , f o r t h e crime o f p o s s e s s i o n o f dangerous d r u g s . The a r r e s t o f d e f e n d a n t s and s e i z u r e of t h e e v i d e n c e was made i n Apartment 4-W a t 913 Second Avenue North, i n G r e a t F a l l s , by D e t e c t i v e s James Cook and Robert D u l l . A t t h e t i m e of t h e a r r e s t , t h e d e t e c t i v e s d i d n o t have a s e a r c h w a r r a n t n o r d i d t h e y have a w a r r a n t t o a r r e s t , The arrest w a s accomplished by e n t r y t h r o u g h an open door i n t o t h e a p a r t m e n t , which w a s r e n t e d by two of t h e d e f e n d a n t s , Rosemary B e n n e t t and Nancy W i l l i a m s . P r i o r t o t h e evening o f t h e arrest, D e t e c t i v e s Cook and D u l l and D e t e c t i v e Ray Smith had c o l l e c t i v e l y exchanged i n f o r m a t i o n o b t a i n e d from a r e l i a b l e i n f o r m a n t c o n c e r n i n g p r e v i o u s d r u g a c t i v i t y i n Apartment 4-W. A d d i t i o n a l l y , t h e owner o f t h e a p a r t m e n t house, a M r s . Kinnison r e s i d i n g i n C a l i f o r n i a , had t e l e p h o n e d D e t e c t i v e Smith g i v i n g i n f o r m a t i o n t h a t d r u g s p o s s i b l y were b e i n g used i n t h a t p a r t i c u l a r a p a r t m e n t . Independently, o t h e r i n f o r m a t i o n from a p r e v i o u s l y used and r e l i a b l e i n f o r m a n t 1 was o b t a i n e d by D e t e c t i v e D u l l t h a t "Butch Brooks" w a s a d e a l e r i n d r u g s and t h a t "he had a i l o a d o f a c i d . " D e t e c t i v e Cook t e s t i - f i e d he had r e c e i v e d i n f o r m a t i o n P r o m a p r e v i o u s l y used and r e l i a b l e i n f o r m a n t t h a t Brooks was g e n e r a l l y i n v o l v e d w i t h d r u g s . Detective Cook also testified that another informer told him Brooks had brought a supply of LSD to Great Falls, but Cook was unable to testify as to the reliability of that informant. Based on the landlady's complaint and information received, Detectives Cook and Dull on the evening of the arrest proceeded to conduct an investigation of Apartment 4-W. As Detective Cook went inside the main lobby, a common entrance of the apartment house, and into the manager's office, he observed defendant Brooks enter the building and walk toward Apartment 4-W. Cook called Detective Dull on a portable radio; Dull enter- ed the building and together they proceeded toward Apartment 4-W. At this time, they were in the common lobby to the apartment building and not in any individual apartment. Upon reaching Apartment 4-W, the detectives found the door to the apartment open and an ggder emanating therefrom, which they testified was "burning marijuana". The detectives entered the apartment, walked up a short stairway or flight of stairs, and observed the three defendants sitting around a table on which there was a marijuana roach (burned marijuana stub or butt), and a clear plastic bag containing what they believed to be marijuana. The defendants were immediately placed under arrest and the marijuana roach was seized, along with the bag of marijuana. The controlling issue to be decided here is whether the officers had probable cause, under the circumstances, to make an arrest without a warrant, in a constitutionally protected area. The lawfulness of defendants' arrests must be measured by t h e s t a n d a r d s p r e s c r i b e d i n s e c t i o n 95-608, R.C.M. 1947, t h e p e r t i n e n t p a r t o f which p r o v i d e s : " A r r e s t by a peace O f f i c e r . may a r r e s t a p e r s o n when: " (d) A peace o f f i c e r H e b e l i e v e s on r e a s o n a b l e g r o u n d s , t h a t t h e p e r s o n i s committing an o f f e n s e , o r t h a t t h e p e r s o n h a s committed a n o f f e n s e and t h e e x i s t i n g c i r c u m s t a n c e s r e q u i r e h i s immediate arrest." S e c t i o n 95-606 R.C .M. 1947, p r o v i d e s : " A r r e s t w i t h o u t a w a r r a n t . A peace o f f i c e r o r p e r s o n making a n a r r e s t w i t h o u t a w a r r a n t must inform t h e p e r s o n t o b e a r r e s t e d of h i s a u t h o r i t y , i f any, of t h e i n t e n t i o n t o a r r e s t him and t h e c a u s e o f t h e a r r e s t , e x c e p t when , t h e p e r s o n t o b e a r r e s t e d i s a c t u a l l y engaged i n t h e commission o f o r i n a n a t t e m p t t o commit an o f f e n s e , o r i s pursued immediately a f t e r i t s commission, o r a f t e r an e s c a p e , o r when t h e g i v i n g of such i n f o r m a t i o n w i l l i m p e r i l the arrest." S e c t i o n 9 5 - 6 0 8 ( d ) , R.C.M. 95-606, R.C.M. 1947, t o g e t h e r w i t h s e c t i o n 1947, empowers a p o l i c e o f f i c e r t o a r r e s t w i t h o u t a w a r r a n t , where s u f f i c i e n t p r o b a b l e c a u s e t o a r r e s t i s found. P r o b a b l e c a u s e h a s been d e f i n e d as " r e a s o n a b l e ground f o r b e l i e f o f g u i l t " and h a s been d i s t i n g u i s h e d a s b e i n g more t h a n b a r e suspicion. B r i n e g a r v. United S t a t e s , 338 U.S. 1 6 0 , 69 S.Ct. 1302, 93 L ed 1879, 1890, r e h e a r i n g d e n i e d 338 U.S. S.Ct. 31, 94 L ed 513; Beck v. Ohio, 379 U.S. 839, 70 89, 85 S.Ct. 223, I n B r i n e g a r t h e s t a n d a r d of p r o b a b l e c a u s e i s d e s c r i b e d : "Probable c a u s e e x i s t s where ' t h e f a c t s and c i r cumstances w i t h i n t h e i r [ t h e o f f i c e r s ' ] knowledge, and o f which t h e y had r e a s o n a b l y t r u s t w o r t h y i n f o r m a t i o n , [ a r e ] s u f f i c i e n t i n themselves t o w a r r a n t a man of r e a s o n a b l e c a u t i o n i n t h e b e l i e f that' an offense has been or is being committed. Carroll v. United States, 267 U.S, 132, 69 L ed 543, 555, 45 S.Ct. 280, 39 ALR 790." In Beck probable cause was discussed as follows: "The constitutional validity of the search in this case, then, must depend upon the constitutional validity of the petitioner's arrest. Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it-whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Brinegar v. United States, 338 U.S. 160, 175-176, 93 L ed 1879, 1890, 69 S Ct 1302; Henry v. United States, 361 U.S. 98, 102, 4 L ed 2d 134, 138, 80 S Ct 168. 'The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accomodating * * * often opposing interests. Requiring more would unduly hamper law enforcement, To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice.' Brinegar v. United States, supra, 338 U.S. at 176, 93 L ed at 1891." (Emphasis supplied.) With the foregoing as background, defendants argue that the facts of the present case known by the detectives prior to the arrests, did not constitute sufficient probable cause to make the arrests. They argue at length that the detectives relied principally upon the odor of drugs to base their probable cause to make the arrests, and that such probable cause does not constitute a legally recognized basis of probable cause to arrest. Defendants rely on Johnson v. United States, 333 U.S. Johnson examined the lawfulness of an arrest for possession of opium, when such warrantless arrest was based upon information given by a confidential informer pertaining to the use of narcotics in a hotel room. Upon investigation four exper- ienced narcotics agents confirmed that information, in recognizing the distinctive and unmistakable order of opium emanating from the room. An arrest was made and a search'conducted incidental to the arrest, which uncovered opium and smoking apparatus. The United States Supreme Court held in Johnson: " * * * Thus the Government guiCe properly stakes the right to arrest, not on the informerls tip and the smell the officers recognized before entry, but on the knowledge that she was alone in the room, gained only after, and wholly by reason of, their entry of her home. It was therefore their observations inside of her quarters, after they had obtained admission under color of their police authority, on which they made the arrest. "Thus the Government is obliged to justify the arrest by the search and at the same time to justify the search by the arrest. This will not do. An officer gaining access to private living quarters under color of his office and of the law which he personifies must then have some valid basis in law for the intrusion. Any other rule would undermine 'the right of the people to be secure in their persons, houses, papers and effects,' and would obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law. " (Emphasis supplied. ) Johnson carefully stressed the importance of testing evidence before a magistrate and the necessity of obtaining a search or arrest warrant prior to entry, arrest and search. An additional point stressed in Johnson was the necessity of looking to the law of the respective states: "Since it was without warrant, it [the arrest] could be valid only if for a crime committed in the presence of the arresting officer or for a felony of which he had reasonable cause to believe defendant guilty." (Bracketed material added.) (Footnote at p. 441, 92 L ed: "State law determines the validity of arrests without warrant, United States v. Di Re, 332 U.S. 581, ante, 210, 68 S Ct 222, decided January 5, 1948.") The rationale of Johnson is that regardless of the information the officers had from all sources and the immediate smell of opium emanating from the room, the arrest was finally based on what was observed after entry. This reasoning would restrict the warrentless arrest to acts committed within the officers view outside any constitutionally protected area, and provides for no exceptions. Since Johnson in 1948, courts have recognized exceptional circumstances which permit entry and arrest and expand the narrow view adopted in Johnson. Ker v. California, 374 U.S, 23, 83 S.Ct. 1623, 10 L ed 2d 726 (1963), involved a warrantless arrest for possession of marijuana where probable cause to arrest was founded upon police observation of the suspect, information from a reliable informant, and an address uncovered by research into the registry of an automobile license plate. The police officers went to the apartment building and obtained a passkey from the building manager which enabled the officers to enter the apartment unannounced, thereby-effecting the arrest and search incidental to the arrest. In Ker the defense contended that the lawfulness of the petitioners' arrests, even if they were based upon probable cause, was vitiated by the method of entry, to which the United States Supreme Court answered in Section 111 of its opinion: "This Court, in cases under the Fourth Amendment, has long recognized that the lawfulness of arrests for federal offenses i s t o b e d e t e r m i n e d by r e f e r e n c e t o s t a t e law i n s o f a r a s it i s n o t v i o l a t i v e o f t h e F e d e r a l C o n s t i t u t i o n . Miller v. United S t a t e s , s u p r a ; United S t a t e s v . D i R e , 332 U.S. 581 (1948); Johnson v . United S t a t e s , 333 U . S . 1 0 , 15, n. 5 (1948). A f o r t i o r i , t h e l a w f u l n e s s o f t h e s e arrests by s t a t e o f f i c e r s f o r s t a t e o f f e n s e s i s t o b e determined by C a l i f o r n i a law. C a l i f o r n i a P e n a l Code, S844, p e r m i t s peace o f f i c e s t o b r e a k i n t o a d w e l l i n g p l a c e f o r t h e purpose of arrest a f t e r demanding a d m i t t a n c e and e x p l a i n i n g t h e i r purpose. Admittedly t h e o f f i c e r s d i d n o t comply w i t h t h e terms of t h i s s t a t u t e since they entered q u i e t l y and w i t h o u t announcement, i n o r d e r t o p r e v e n t t h e d e s t r u c t i o n o f contraband. The C a l i f o r n i a D i s t r i c t C o u r t of Appeal, however, h e l d t h a t t h e c i r cumstances h e r e came w i t h i n a j u d i c i a l except i o n which had been e n g r a f t e d upon t h e s t a t u t e by a series of d e c i s i o n s , see, e . g . , People v. Ruiz, 146 CaP. App. 2d 630, 304 P.2d 175 (1956) ; P e o p l e v. Maddox, 46 Cal.2d 301, 294 P.2d 6 , c e r t . d e n i e d , 352 U.S. 858 (1956) , and t h a t t h e noncompliance was t h e r e f o r e l a w f u l . "Since t h e p e t i t i o n e r s ' f e d e r a l c o n s t i t u t i o n a l p r o t e c t i o n from u n r e a s o n a b l e s e a r c h e s and s e i z u r e s by p o l i c e o f f i c e r s i s h e r e t o b e determined by whether t h e s e a r c h w a s i n c i d e n t t o a lawful a r r e s t , we a r e warranted i n examining t h a t a r r e s t t o d e t e r m i n e w h e t h e r , n o t w i t h s t a n d i n g i t s l e g a l i t y under s t a t e l a w , t h e method of e n t e r i n g t h e home may o f f e n d f e d e r a l c o n s t i t u t i o n a l standards of reasonablen e s s and t h e r e f o r e v i t i a t e t h e l e g a l i t y of a n accompanying s e a r c h . W e f i n d no such o f f e n s i v e n e s s on t h e f a c t s h e r e . Assuming t h a t t h e o f f i c e r s ' e n t r y by u s e of a key o b t a i n e d from t h e manager i s t h e l e g a l e q u i v a l e n t o f a " b r e a k i n g , " see Keiningham v. United S t a t e s , 1 0 9 U.S. App. D.C. 272, 276, 287 F.2d 1 2 6 , 130 (C.A.D.C. C i r . 1960) , it h a s been r e c o g n i z e d from t h e e a r l y common l a w t h a t such b r e a k i n g i s p e r m i s s i b l e i n e x e c u t i n g a n arrest under c e r t a i n c i r c u m s t a n c e s . See Wilgus, A r r e s t Without a Warrant, 22 Mich. L. Rev. 541, S3109, 798, 800-806 ( 1 9 2 4 ) . Indeed, 1 8 U.S.C. d e a l i n g w i t h t h e e x e c u t i o n of s e a r c h w a r r a n t s by f e d e r a l o f f i c e r s , a u t h o r i z e s b r e a k i n g o f d o o r s i n words v e r y s i m i l a r t o t h o s e of t h e C a l i f o r n i a s t a t u t e , both s t a t u t e s including a requirement of notice of authority and purpose. * * * I1 Finally, the basis of the judicial exception to the California statute, as expressed by Justice Traynor in People v. Maddox, 46 Cal.2d, at 306, 294 P.2d, at 9, effectively answers the petitioners' contention : "'It must be borne in mind that the primary purpose of the constitutional guarantees is to prevent unreasonable invasions of the security of the people in their persons, houses, papers, and effects, and when an officer has reasonable cause to enter a dwelling to make an arrest and as an incident to that arrest is authorized to make a reasonable search, his entry and his search are not unreasonable. Suspects have no constitutional right to destroy or dispose of evidence, and no basic constitutional guarantees are violated because an officer succeeds in getting to a palce where he is entitled to be more quickly than he would, had he complied with section 844. Moreover, since the demand and explanation requirements of section 844 are a codification of the common law, they may reasonably be interpreted as limited by the common law rules that compliance is not required if the officer's peril would have been increased or the arrest frustrated had he demanded entrance and stated his purpose. (~ead Case, 4 Conn. 166, 170 110 Am. Dec. v. l 6 1 ; see Rest., Torts, S 206, corn. d. 1 Without ithe benefit of hindsight and ordinarily on the spur of the moment, the officer must decide these questions in the first instance.'" (Emphasis supplied.) The language in - becomes somewhat stronger when we Ker recognize that after entry by the officers Mrs. Ker, who was present, was also placed under arrest, which strikes directly at the rationale of Johnson. Section 95-608 (d) , R.C.M. 1947, requires, along with probable cause, that "existing circumstances require his immediate arrest." Within the constitutional guarantees of the Fourth Amendment of t h e United S t a t e s C o n s t i t u t i o n , t h e p r o c e d u r e s o f s t a t e l a w govern t h e c i r c u m s t a n c e s which e x i s t i n each i n d i v i d u a l case prompting t h e a r r e s t . B a s i c a l l y t h e immediacy of an arrest w i l l r e s t , a s it always h a s , on t h e " r e a s o n a b l e grounds" f o r t h e b e l i e f t h a t an o f f e n s e i s b e i n g committed " o r t h a t t h e p e r s o n h a s committed an o f f e n s e and t h e e x i s t i n g c i r c u m s t a n c e s r e q u i r e h i s immediate arrest." Montana law d o e s n o t have t h e s t a t u t o r y mandate c o n t a i n e d i n C a l i f o r n i a P e n a l Code, 5844, r e q u i r i n g t h e o f f i c e r s t o f i r s t demand a d m i t t a n c e and g i v e an e x p l a n a t i o n o f purpose. Neverthe- less, t h e Montana C r i m i n a l Law Commission comment t o s e c t i o n 95-606, R.C.M. 1947, r e c o g n i z e d a s i m i l a r p r o c e d u r e f o r w a r r a n t - less arrests w i t h t h e c o r r e s p o n d i n g e x c e p t i o n s r e c o g n i z e d i n California. The Commission c i t e d S t a t e v. Gay, 18 Mont. 51, 4 4 P. 4 1 1 ; S t a t e v . Bradsahw, 53 Mont. 9 6 , 1 6 1 P. 710; and quoted # d i r e c t l y from A l t i z e r v. S t a t e , -21 0kl.Cr.App. 229, 205 P. 1106, "From t h e f o r e g o i n g p r o v i s i o n s it i s s e e n t h a t t h e f i r s t d u t y o f an o f f i c e r i n a t t e m p t i n g t o make an a r r e s t w i t h o u t a w a r r a n t (where t h e a r r e s t e d p e r s o n i s n o t arrested d u r i n g t h e a c t u a l commission o f t h e o f f e n s e o r h a s e s c a p e d and i s immediately pursued) i s t o inform t h e person t o b e a r r e s t e d of h i s a u t h o r i t y i n s o a c t i n g and t h e c a u s e f o r s o a c t i n g . I f t h i s s i m p l e p r o v i s i o n of t h e s t a t u t e w e r e more c l o s e l y observed by a r r e s t i n g o f f i c e r s ( a s it s h o u l d b e ) , w e a r e convinced t h a t t h e r e would be much less t r o u b l e i n making arrests w i t h o u t a warrant. " A r e c e n t case b e f o r e t h i s C o u r t , S t a t e v . H u l l , Mont. - 487 P.2d 1314, 28 St.Rep. , - 721, r a i s e d t h e i d e n t i c a l i s s u e of p r o b a b l e c a u s e t o a r r e s t a b s e n t a s e a r c h w a r r a n t o r a warrant of a r r e s t . I n H u l l , p r i o r i n f o r m a t i o n from a r e l i a b l e - i n f o r m a n t was c o l l e c t e d , t o g e t h e r w i t h a p o l i c e i n v e s t i g a t i o n , t o g i v e t h e p o l i c e o f f i c e r s t h e f o l l o w i n g p i c t u r e as d e s c r i b e d t h i s Court : "Here a ' p o t p a r t y ' was i n p r o g r e s s , d e f e n d a n t was a g u e s t a t t h i s p a r t y and a p a r t i c i p a n t t h e r e i n , and t h e aroma o f b u r n i n g o r b u r n t m a r i j u a n a w a s emanating from t h e p r e m i s e s , a l l of which was known t o t h e o f f i c e r s p r i o r t o t h e i r e n t r y , a r r e s t , and s e a r c h o f t h e p a r t y 90erSa A s s u c h , t h e d e f e n d a n t ' s c o n n e c t i o n w i t h t h e i l l e g a l a c t i v i t i e s t h e n and t h e r e i n p r o g r e s s e x t e n d s beyond h i s mere p r e s e n c e on t h e premises where o f f i c e r s have r e a s o n t o b e l i e v e t h e r e a r e d r u g s . " (Emphasis s u p p l i e d . ) Defendants h e r e i n d i c a t e i n t h e i r argument t h a t Johnson i s t h e l a t e s t c a s e ( F e d e r a l 1948) i n v o l v i n g " s m e l l " and must control. F i r s t , t h e problem p r e s e n t e d h e r e i n v o l v e s a much wider area o f c o n s i d e r a t i o n t h a n j u s t l o o k i n g t o c a s e s i n v o l v i n g a s m e l l f a c t o r i n t h e p r o b a b l e c a u s e d e t e r m i n a t i o n , as h a s been d i s c u s s e d . Second, t h i s case i n v o l v e s more f a c t s t h a n j u s t t h e s m e l l of t h e drug, p r i o r t o e n t r y . I n holding t h a t t h e r e w a s s u f f i c i e n t probable cause t o Hull, make a w a r r a n t l e s s a r r e s t i n - t h i s C o u r t was aware and gave c o n s i d e r a t i o n t o t h e g u a r a n t e e s of t h e F o u r t h and F o u r t e e n t h Amendments o f t h e United S t a t e s C o n s t i t u t i o n . The C o u r t was e q u a l l y aware o f t h e now w e l l r e c o g n i z e d e x c e p t i o n s t h a t have been adopted i n Montana s i n c e Johnson and approved by t h e United S t a t e s Supreme C o u r t . Considering a l l t h e f a c t s here involved, we f i n d t h e arrests t o b e w i t h i n t h e e x c e p t i o n s d i s c u s s e d . Accordingly, the order of the district court suppressing the evidence is reversed. proceedings. The cause is remanded for further
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