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No. 12675
I N T E SUPREME C U T O THE STATE O M N A A H OR F F OTN

THE STATE O MONTANA, F P l a i n t i f f and A p p e l l a n t ,

A A FETTERS and STEVE LEAN, LN Defendants and Respondents.

Appeal from:

D i s t r i c t Court o f t h e Second J u d i c i a l D i s t r i c t , Honorable James D. Freebourn, Judge p r e s i d i n g .

Counsel o f Record: For Appellant : Hon. Robert L. Woodahl, Attorney General, Helena, Montana John P. Atkins , A s s i s t a n t Attorney General, argued, Helena, Montana Larry S t i m a t z , County Attorney, argued, B u t t e , Montana J. B r i a n Tierney argued, Deputy County Attorney, B u t t e , Montana For Respondents: Scanlon, B r o l i n and Connors, Anaconda, Montana William A. B r o l i n argued and Joseph C. Connors argued, Anaconda, Montana

Submitted:

June 1 7 , 1974

Decided :SEp 3 Filed:

1974

SEP 3 1974

Hon. M. James Sorte, District Judge, sitting for Chief Justice James T. Harrison, delivered the Opinion of the Court. This is an appeal by the state of Montana from an order of the district court of Silver Bow County granting defendants' motion to suppress evidence in a criminal case. Defendants Alan Fetters and Steve Lean were charged by Information in four counts: interference with railroad property;

interference with railroad property causing death; murder; and malicious destruction of property. In chronological order these events occurred:
On

March 28, 1972, at approximately 8:00 p.m. a large diesel

switch engine owned and operated by the Anaconda Company at the Weed Concentrator in Butte, Montana, was left by the crew in a locked and secured position. The crew left the engine idling with

the air set and three large slurry cars connected to it while they went to lunch. At approximately 8:05 to 8:15 p.m. an employee saw the switch engine, without the slurry cars attached and without its light on, leave the concentrator yprd. He noticed two men in the

engine but could not describe their physical characteristics nor wearing apparel. Two employees were immediately dispatched from

the concentrator yard to look for any signs of the engine that had just left. They went out of the concentrator area and drove down Continental Drive where they saw defendant Fetters' white Cadillac automobile parked in a turnout area of Continental Drive and Howard Street. The car was no longer there 30 minutes later. The license

number was reported and verified by local police as belonging to Fetters. At approximately 8:30 p.m. the switch engine smashed into the rear of a Butte, Anaconda and Pacific ore train in the Rocker Yards approximately six miles west of the concentrator. Two BA&P.

employees, Jack Weist and Vern Johnson, were on the ore train at the time. Weist was killed instantly by the crash and Johnson was thrown

from t h e caboose, which was s h a t t e r e d by t h e c o l l i s i o n , and s u f f e r e d a broken leg. The f a c t s f u r t h e r show t h a t defendants went i n t o t h e Race Track Bar between 8:30 and 8:45 p.m., ordered d r i n k s and a l s o r e -

quested s a l v e f o r F e t t e r s who had a p p a r e n t l y burned some p o r t i o n of h i s body. The Race Track Bar was approximately two b l o c k s from

where ~ e t t e r s 'c a r was parked. Before defendants were a r r e s t e d i t was a l s o a s c e r t a i n e d t h a t t h e y were c u r r e n t l y employed by t h e Anaconda Company a t t h e conc e n t r a t o r yard. Defendants had p e r s o n a l knowledge of how t o run

t h a t p a r t i c u l a r engine; i n f a c t , F e t t e r s was scheduled t o o p e r a t e t h e engine on t h e March 28, 1972, a f t e r n o o n s h i f t . f a i l e d t o r e p o r t t o work t h a t day. George Evans, s e c u r i t y o f f i c e r of t h e Anaconda Company, i n formed t h e i n v e s t i g a t i n g s h e r i f f t h a t he had observed two s e p a r a t e s e t s of f o o t p r i n t s i n t h e snow d i r e c t l y a c r o s s t h e roadway from where ~ e t t e r s 'C a d i l l a c was seen e a r l i e r t h a t evening, The f o o t Evans Bothdefendants

p r i n t s l e d t o an a r e a 60-70 f e e t i n t o t h e c o n c e n t r a t o r a r e a .

n e i t h e r observed f o o t p r i n t s on t h e south s i d e of C o n t i n e n t a l Drive where t h e v e h i c l e was parked nor w i t h i n 300 yards o r b e t t e r from t h e switch engine. The t r a c k s n e i t h e r went from t h e c a r t o t h e fence n o r The f o o t p r i n t s r e v e a l e d t h a t they

from t h e fence t o t h e engine.

were made by a square-toe type shoe o r boot w i t h s e p a r a t e and def i n i t e h e e l markings. Evans immediately covered t h e f o o t p r i n t s w i t h

cardboard boxes u n t i l photographs could be taken. A l l of t h e s e f a c t s were known t o S i l v e r Bow County Attorney Lawrence Stimatz and SilverBow S h e r i f f Rock Cunningham. After

a n a l y z i n g a l l t h e f a c t s Stimatz d i r e c t e d law enforcement o f f i c e r s t o a r r e s t F e t t e r s and Lean without a warrant. Stimatz t e s t i f i e d a t t h e h e a r i n g on t h e motion t o suppress t h e evidence: 'We were q u i t e i n t e r e s t e d i n l o c a t i n g and a r r e s t i n g F e t t e r s and Lean. W thought a crime had been come m i t t e d and t h a t t h e s e men had done i t and t h a t c e r t a i n evidence had t o b e preserved. W wanted t o look a t t h e i r e shoes and we wanted t o l o o k a t t h e i r c l o t h e s f o r g r e a s e s p o t s o r anything e l s e t h a t they might have had on them from being i n s i d e t h a t t r a i n . II
I

Fetters was arrested without a warrant at 5:00 a.m. at his home on March 29, 1972. Lean was arrested without a warrant at his home at 6:20 a.m. that same morning. Both defendants were taken

from their homes to the sheriff's office where their clothing was taken from them. They were questioned, placed in jail, and released the

afternoon of March 29, 1972, without being charged in justice court or district court. Their personal belongings which were seized by Defendants were

the sheriff's officers were not returned to them.

arrested again on May 19, 1972, and charged in justice court. On October 20, 1972, District Judge John B. McClernan granted defendantsf motion to suppress all the physicial evidence and statements obtained from and after the arrests.
An appeal was taken from that order and this Court vacated

the district court's order on May 15, 1973, because there had never been a proper formal suppression hearing. Fetters and Steve Lean, Mont State of Montana v. Alan

.

, 510 P.2d 1, 30 St.Rep. 543.

Thereafter Judge McClernan was disqualified and District Judge James D. Freebourn held a formal hearing and on November 26, 1973, ordered the suppression of the evidence seized as a result of the warrantless arrest. The order of Judge Freebourn was appealed to this Court, and following argument and consideration of the case, this Court reset the matter for a second argument. Two issues are presented for review:

1. Whether the district court erred in finding that the
arrest was unlawful? 2. unlawful? As to the first issue, section 95-608, R.C.M. the instances in which a person may be arrested.
If

Whether the search made incident to that arrest was

1947, sets forth

It provides:

A

peace officer may arrest a person when:

He has a warrant commanding that such person be "a () arrested, or "(b) He believes, on reasonable grounds, that a warrant for the ~erson'sarrest has been issued in this state, or

"c () He believes, on reasonable grounds, that a felony warrant for the person's arrest has been issued in another jurisdiction, or "d () 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." (Emphasis added) The state contends the arrests in the instant case were justified under section 95-608(d),

R.C.M.

1947, because the officers

did have reasonable grounds to believe the defendants had committed an offense. In State v Bennett, 158 Mont. 496, 499, 493 P.2d 1077, . as "'reasonable

this Court held that probable cause has been defined grounds for belief of guilt. 1 1 1 are synonymous.

Reasonable grounds and probable cause

The validity of the search and seizure of defendants' clothing, shoes, and all other physical evidence and statements obtained from and after the arrests must depend upon the validity of defendants' arrest. Whether the arrests were valid depends, in

turn, upon whether at the moment the arrests were made the officers had probable cause--i.e. whether at that moment the facts and circumstances within their knowledge and of which they had reasonable trustworthy information were sufficient to warrant a prudent man in believing defendants had committed or were committing an offense and the circumstances required their immediate arrests. Section 95-608(d), RCM ... 1947; State v. Bennett, supra; Brinegar

v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L ed 1879. Evidence required to establish guilt is not necessary to prove probable cause for an arrest.
On

the other hand, good

faith or mere suspicion on the part of the arresting officers is not enough. And while a search without a warrant is, within

limits, permissible if incident to a lawful arrest, if an arrest without a warrant is to support an incidental search, it must be made with probable cause. An arrest is not justified by what the

subsequent search discloses. Henry v United States, 361 U S 98, . ..

80 S.Ct, 168, 4 L ed 2d 134; Carroll v. United States, 267 U S ..

132,

A l l of t h e r e c e n t Montana c a s e s i n t e r p r e t i n g "probable cause"
a s used i n s e c t i o n 95-608(d), R.C.M. 1947, d e a l with a defendant's I n Bennett, t h i s Court

possession o r s a l e of dangerous drugs.

held t h e r e was s u f f i c i e n t probable cause t o j u s t i f y t h e a r r e s t without a warrant. I n Bennett, however, o f f i c e r s had received

information from t h e owner of t h e apartment and a l s o a r e l i a b l e informant t h a t drugs were being used i n t h e apartment. They a l s o

had information t h a t t h e one accused was a d e a l e r i n drugs and, when t h e o f f i c e r s went t o t h e apartment t o i n v e s t i g a t e , they observed t h e accused e n t e r t h e apartment and walk toward apartment 4-W.
At

t h i s time they were i n t h e common lobby and a s they proceeded toward t h e apartment they found t h e door open and a marijuana odor emanating therefrom.
On t h e o t h e r hand, i n S t a t e ex r e l . Glantz v. Dist.Court,

154 Mont. 132, 139, 461 P.2d 193, t h i s Court r u l e d t h a t no probable cause e x i s t e d f o r d e f e n d a n t ' s a r r e s t and dismissed t h e proceedings a g a i n s t her. I n Glantz t h e o f f i c e r s had a search warrant naming

two p a r t i c u l a r people and a p a r t i c u l a r premises t o be searched f o r possession of dangerous drugs. The o t h e r defendant, Linda P i c k e t t ,

happened t o be on t h e premises a t t h e time of t h e search and she was a l s o a r r e s t e d . She was taken t o t h e p o l i c e s t a t i o n and sub-

sequently searched and i t was t h e r e t h a t an immeasurable q u a n t i t y of marijuana was found on h e r person. This Court s a i d :

'I* There i s ample a u t h o r i t y f o r t h e proposit i o n t h a t t h e m e r e f a c t a person i s on premises where o f f i c e r s have reason t o b e l i e v e t h e r e a r e drugs w i l l n o t j u s t i f y h i s a r r e s t o r a search of h i s person. [Citing c a s e s ] "

**

I n another r e c e n t Montana case, S t a t e v. Bentley, 156 Mont. 129, 134, 477 P.2d 345, t h e defendant a s s a u l t e d a c i t i z e n and before he sped off i n h i s c a r , someone spotted a pillow and bags i n t h e trunk of h i s c a r . station. He was a r r e s t e d and t h e c a r taken t o t h e p o l i c e

A a p p l i c a t i o n f o r a search warrant was l a t e r made and n

granted a f t e r t h e p o l i c e judge received information t h a t defendant was a b u r g l a r and used drugs. I n Bentley, t h i s Court s a i d :

Montana cannot guarantee less protection for a citizen under its laws than is demanded by the Constitution of the United States. Therefore, the mere presence of a pillow and bags in the trunk of a car taken by themselves (like the telephones in the Spinelli case) do not constitute sufficient evidence of a crime to issue a search warrant for burglar tools or illegal drugs, and a judge's personal inferences that respondent is a burglar adds nothing toward probable cause of the commission of a crime on these facts. I I Thus, in the instant case, as in Glantz and Bentley, the

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mere presence of defendant's car in the area, footprints in the general vicinity, or any personal inferences that the officers may have had about defendants because they missed work and knew how to run the switch engine mere speculation, not sufficient con-

stitute probable cause to arrest as determined by the district court. We do not believe it necessary to go into a more detailed analysis of probable cause. It has been defined, interpreted and

redefined by many federal and state cases cited earlier in this opinion. Edwards, The state asks the Court to consider United States v . U.S.

, 94

S.Ct. 1234, 39 L ed 2d 771.

That case

must be distinguished from this case because the custodial search without a search warrant was made after a lawful arrest. Here, the question of the validity of the initial arrest and subsequent search and seizure was before the district court on two occasions. In both instances, and with different judges ruling,

the evidence was ordered suppressed. In Patterson v. Halterman, Mont

.

9

505 P.2d 905, 30

St. Rep. 139, 144, this Court stated the rule of appeal and error: In Stromberg v Seaton Ranch Co., . Mont 502 P.2d 41, 48, 29 St.Rep. 848, this Court satt; pertinent rule of appeal and error which must be applied to the factual issues raised on appeal: "'As is indicated in the summary of the facts, there was an unusual amount of evidence presented to the trial judge which resulted in numerous conflicts in the evidence, He was the one who had the only opportunity to see and hear all witnesses. Each party makes a strong argument that these facts and circumstances favor his position. Yet, as has been stated by this Court too many times to require citation, it is not this Court's province to review the record of the trial court to determine whether or not we agree with the conclusions
1I

.

reached, if supported by the evidence. We must indulge the presumption that the judgment of the district court is correct and will not be disturbed unless there is a clear preponderance of evidence against it when viewed in the light most favorable to the prevailing party * *

*I ".

This is in conformity with the rule established in Morrison

v. City of Butte, 150 Mont. 106, 431 P.2d 79, and quoted in Raucci
V .

Davis,

Mont

.

, 505 P.2d 887, 30 St.Rep. 133, 135:

'"~hus, there is a conflict in the testimony from which different conclusions could be drawn. The credibility of witnesses and the weight to be given their testimony are for the trial court. [citation omitted]. This court will not overturn the holding or findings of a trial court unless there is a decided preponderance of the evidence against them, and, when the evidence furnishes reasonable grounds for different conclusions, findings will not be disturbed. [citation omitted]" There may be a difference of opinion as to whether the facts known to the officers prior to the arrest constitute probable cause. However, we will not substitute our judgment for that of

the district court when there are reasonable grounds for its ruling. In light of our ruling on the first issue that the arrest was unlawful, it is not necessary to discuss the second issue concerning the search that followed the arrest. The district court's order suppressing evidence is affirmed.

Hon. M. -James Sorte, District Judge, sitting for Chief Justice James T. Harrison.

We Concur:

Justices.

1

Mr. Justice Castles dissenting:
I dissent. The following facts were known at the time of the arrest:

1 .

An

employee of the Concentrator saw the engine going It then sped up and darted out of the yards.

through a switch.

2 This employee saw two men inside the engine compartment. .
These men could not be identified.
3.

It was determined that only certain people who had a

working knowledge of how the engine ran, could have activated the engine. They would have had to have knowledge of how to uncouple

the cars, put the bus bar in, release the air, activate the switch from within the engine, and several other steps.

4 Other employees attempted to intercept or follow the .
engine. These employees, as they left the Concentrator yards,

noticed an automobile belonging to the Defendant Fetters parked alongside the road just outside a fence that surrounds the Concentrator.

5. These two employees, upon their return to the Concentrator
around 8:45 p.m., found that Fetters' automobile was gone.

6. At approximately 8:45 p.m. defendants came into the Race
Track Bar which is located three blocks from where the car was seen.

Mr. Lean asked the bartender for some salve and stated that

Mr. Fetters had burned himself.
7.

That two sets of footprints, which were made in the snow,

were discovered. These footprints led from the automobile which was parked on Continental Drive to a fence which surrounds the Concentrator, and then to the area where the engine was parked.
8 .

That both defendants were employees of the Anaconda

Company and were employed at the Concentrator. Both defendants were scheduled to work the afternoon shift on the day in question; that one of the defendants reported off for that day and the other defendant dumped a shift; that both defendants had personal knowledge of how to run this particular engine; that defendant Fetters was

scheduled t o operate t h e engine t h a t afternoon; t h a t both defendants knew e x a c t l y what time t h e employees l e f t f o r lunch on t h e afternoon s h i f t ; t h a t both defendants knew where t h e engine was l e f t during t h e lunch period and how t h e engine was secured during t h i s period; t h a t both defendants w e r e p o s i t i v e l y i d e n t i f i e d a s being i n t h e Race Track Bar which i s approximately two o r t h r e e blocks a t a time approximately 45 minues a f t e r t h e t h e f t . Taken t o g e t h e r , a l l of t h e s e f a c t o r s e s t a b l i s h i n m opinion y probable cause f o r t h e a r r e s t on reasonable grounds.

I would r e v e r s e t h e t r i a l judge.

M r . J u s t i c e John Conway Harrison d i s s e n t i n g :

I d i s s e n t and concur with t h e foregoing d i s s e n t i n g
opinion of J u s t i c e C a s t l e s .

/

I

Justice.

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