STATE v BRADFORD
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No. 83-267 IN THE SUPREME COURT OF THE STATE OF MONTANA 1984 STATE OF MONTANA, Plaintiff and Respondent, JAMES ANDREW BRADFORD and DAVID ALLEN OPPELT, Defendant and Appellant. APPEAL FROM: The District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable H. William Coder, Judge presiding. COUNSEL OF RECORD: For Appellant: Marcia Birkenbuel argued for Oppelt, Great Falls, Montana For Respondent: Eon. Mike Greelys Attorney General, Helena, Montana Dorothy McCarter argued, Asst. Atty. General, Helena J. Fred Bourdeau, County Attorney, Great Falls, Montana Submitted: Decided: Filed: February 28, 1984 May 24, 1984 dig; i "j. tY84 Clerk - Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. James Andrew Bradford convicted vehicles, of David criminal mischief, attempt, District Court County. and of Allen Oppelt were criminal theft by a trespass jury in to and felony the Eighth Judicial District, Cascade Only defendant Oppelt appeals his conviction. the We affirm. At approximately 5 : 0 0 a.m. on August 9, 1982, the night clerk at the Heritage Inn in Great Falls received a phone call from a guest who had just observed two persons breaking into a vehicle located on the Inn's parking lot. The clerk immediately notified Roy Cisneros, a private security guard employed by the Inn, and the two men went to Cisneros' truck and drove around the hotel to the southwest parking lot. Cisneros parked the truck and both he and the clerk approached the area just outside the room of the guest who had reported the break-in. Cisneros and the clerk observed a man later identified as Robert Ruiz standing next to a vehicle in the lot. They approached Ruiz and questioned him about his presence in the lot. Ruiz told them that he was preparing to jog, and was waiting for a friend to join him. Cisneros was suspicious, and asked Ruiz to position himself for a pat-down search. In the course of that search, Cisneros discovered a .22 caliber semiautomatic pistol in Ruiz's front waistband, and removed it. At that point, Cisneros observed a second individual, later identified as James Andrew Bradford, lying under a vehicle approximately forty-five feet away. Bradford apparently realized that Cisneros had seen him, and t r i e d t o r o l l away. C i s n e r o s asked t h e c l e r k t o hold Ruiz w h i l e he went a f t e r Bradford. He t o l d B r a d f o r d t o s t o p . began t o r e a c h f o r h i s back p o c k e t . command t o s t o p , weapon. Bradford then C i s n e r o s gave a second and u n s n a p p e d t h e h o l s t e r t o h i s s e r v i c e Bradford froze, and Cisneros approached o r d e r i n g him t o assume t h e p o s i t i o n f o r a pat-down. frisk, Cisneros seized a five inch s c a b b a r d from B r a d f o r d ' s back p o c k e t . hunting him, In the knife and H e placed Bradford i n h a n d c u f f s , and t o o k him back t o t h e a r e a w h e r e t h e c l e r k was holding Ruiz. Cisneros called h i s dispatcher f o r assistance. minutes later he noticed a third individual, i d e n t i f i e d a s t h e a p p e l l a n t , David A l l e n O p p e l t , glass-enclosed s e c t i o n of the Inn, A few later inside the a b o u t t o come down t h e stairway leading t o the parking l o t . ( T h e g u e s t who made t h e phone c a l l t e s t i f i e d a t t r i a l t h a t h e had s e e n a t h i r d man i n t h e p a r k i n g l o t d u r i n g t h e b r e a k - i n . who apparently arrived on Oppelt's.) the disappeared before scene, a physical had Cisneros and the clerk appearance matching O p p e l t was coming down t h e s t e p s u n t i l b o t h h e and C i s n e r o s e s t a b l i s h e d m u t u a l e y e c o n t a c t . Oppelt T h i s t h i r d man, turned and proceeded to run back A t t h i s point, up the stairs. C i s n e r o s i n s t r u c t e d t h e c l e r k t o f o l l o w O p p e l t and a s k him t o come t o t h e p a r k i n g l o t f o r q u e s t i o n i n g . The c l e r k f o l l o w e d O p p e l t up t h e s t a i r s a n d down t h e h a l l w a y s of t h e Inn. O p p e l t was e i t h e r r u n n i n g o r t a k i n g l o n g s t r i d e s down t h e h a l l w a y s . a d i s t a n c e of A f t e r O p p e l t had t r a v e r s e d a b o u t two c i t y b l o c k s , t h e c l e r k c a u g h t up w i t h O p p e l t and t o l d him t h a t C i s n e r o s w a n t e d t o q u e s t i o n him. Oppelt voluntarily accompanied the clerk Sack to the lot where Cisneros was waiting. As Oppelt approached, Cisneros asked him if he had any identification, and Oppelt responded that he had none. Cisneros noticed that the left front pocket of Oppelt's brown vinyl jacket was "full" and "bulged to the side." Concerned that Oppelt might be armed, Cisneros told him to place his hands on a nearby vehicle so that Cisneros could conduct a search. Oppelt said, "no," but Cisneros repeated his order to have him place his hands on the vehicle. At this point Oppelt complied and Cisneros patted him down to see if he had a knife or other weapon. Cisneros discovered that the bulge was created by several coins, tie tacks, and pieces of jewelry. Cisneros handcuffed Oppelt and notified police to come and make an arrest. When the police arrived to arrest Ruiz, Bradford and Oppelt, they also looked into the vehicle that the hotel guest had seen the suspects looking into prior investigation by Cisneros and the clerk. to the Officer Wayne Doeden of the Great Falls Police Department observed that the wing window had been entered and the glove box had been opened. Various items from the box had been spilled on the floor of the car. When looking up and away from the car, Doeden saw another vehicle which he had previously. seen Oppelt in Doeden looked in this car as well, and spotted in plain view a knife, tools and what appeared to be either a holster or a handgun on the car floor. impounded and a search warrant was The vehicle was obtained. Officers discovered a watch, a ring, several guns and knives, jewelry and a mobile phone. These items were eventually identified a s p r o p e r t y s t o l e n from s e v e r a l p a r k e d c a r s i n t h e l o t s o f t h e V i l l a g e Motor I n n and the Holiday Inn, both i n Great Most of t h e v i c t i m s o f t h e s e r o b b e r i e s l i v e d o u t o f Falls. state. I n v e s t i g a t o r s a l s o found w a l l e t s belonging t o Bradford and Oppelt in registered in the the impounded name of vehicle. Oppelt's The auto was half-sister. An i n v e s t i g a t i o n was a l s o a u t h o r i z e d f o r t h e f i r s t v e h i c l e , i n which police lifted fingerprints matching those of Bradford. On August 1 9 , 1 9 8 2 , B r a d f o r d and O p p e l t were c h a r g e d with three counts of criminal trespass to vehicles, two c o u n t s o f f e l o n y t h e f t , two c o u n t s o f misdemeanor t h e f t , and one count of represented by counts. felony criminal separate counsel, Ruiz, a juvenile, mischief. plead was Both men, not guilty t o apparently not all charged. O p p e l t moved t o d i s m i s s s i x o f t h e e i g h t c o u n t s a g a i n s t him, and t o s u p p r e s s t h e e v i d e n c e s e i z e d f r o m h i s p e r s o n d u r i n g t h e pat-down been s e a r c h , a l l e g i n g t h a t h i s r i g h t t o p r i v a c y had violated submission of by the search. briefs, the J u d g e Coder c o n c l u d e d t h a t , be measured nothing to custodial against suggest arrest or After trial a court hearing denied while Cisneros' constitutional Oppelt had that he been had been the upon t h e motion. a c t i o n s had t o standards, that and there under victim a was full of an unreasonable search. I n t h e meantime, t h e S t a t e had g i v e n n o t i c e t h a t i t was p r e p a r i n g t o f i l e a n amended i n f o r m a t i o n and s u p p o r t i n g affidavit. The new i n f o r m a t i o n r e v i s e d t h e c h a r g e s a g a i n s t b o t h B r a d f o r d and O p p e l t . They w e r e now c h a r g e d w i t h f i v e counts of misdemeanor criminal trespass to vehicles, one consolidated count of felony theft, one of attempt, and one of felony criminal mischief. The parties went to trial on these charges. At the conclusion of the State's case-in-chief, Oppelt's attorney moved to dismiss the charges against him. The motion was denied. The court did dismiss, without objection by the State, one charge of criminal trespass to vehicles. The court also reduced the felony criminal mischief charge to a misdemeanor, again without objection by the State. The other charges were allowed to stand. The defendants' case revolved almost exclusively around an alibi defense supplied by Robert Ruiz. Ruiz insisted that he alone was responsible for the thefts, and that Bradford and Oppelt had been called around 5 a.m. to come to the Heritage Inn and help him start his stalled car. Ruiz had no explanation for Oppelt's presence in the hotel. The jury returned guilty verdicts on all charges. Oppelt was sentenced to twenty years in prison and was designated a persistent felony offender. Bradford received a similar sentence, but he has not appealed his conviction. Oppelt raises the following issues: (1) Whether the trial court erred in denying Oppelt's motion to suppress evidence seized from his person by a private security guard in investigation of possible a "stop-and-frisk" during an trespass and theft on hotel property patrolled by the security guard? (2) Whether the amended information charging Oppelt with criminal trespass to vehicles, criminal mischief, attempt and felony theft was supported by a showing of CORRECTION. In preparing this opinlon for publication, we noted in our verification of titles and citations the matters listed below. Corrections have Hon. L. C. G u l b r a n d s o n J u s t i c e , Supreme C o u r t Room 436 J u s t i c e B l d g . 215 N o r t h S a n d e r s H e l e n a , Montana 59620 been made on our copy of the opinion. August 2 , 1984 S t a t e v. B r a d f o r d , N o . P a g e 7 , l i n e 1 2 - - D u r a n v. B u t t r e y Food, I n c . 83-267, May 2 4 , 1 9 8 4 B u t t r e y Foods, Inc. s h o u l d r e a d D u r a n v. WEST PUBLISHING COMPANY Box 3526 St. Paul, MN 55165 probable cause in the State's affidavit? (3) Whether the trial court erred in denying Oppelt's motion to dismiss charges against him at the close of the State's case, and whether there was sufficient evidence to instruct the jury on accountability and common scheme? The gist of Oppelt's argument on the first issue is that the constitutional right to privacy, Mont. Const. art. 11, sec. 10, as construed in this Court's decisions in State v. Van Haele (Mont. 1982), 649 P.2d 1311, 39 St.Rep. 1586; State v. Hyem (Mont. 1981), 630 P.2d 202, 38 St.Rep. 891; Duran v. Buttrey ~ood$, Inc. (Mont. 1980), 616 P.2d 327, 37 St.Rep. 1545; State v. Helfrich (1979), 183 Mont. 484, 600 P.2d 816; and State v. Coburn (1974), 165 Mont. 488, 530 P.2d 442, bars the kind of stop and search involved in his case, therefore mandating suppression of the evidence seized from his person. This is the first time that a stop-and-frisk operation by a private security guard in Montana has been challenged. The search and seizure involved here is very similar to the one held lawful for police to perform. (1968), 392 U.S. See Terry v. Ohio 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Oppelt maintains that the issue of whether a Terry stop-and-frisk can be conducted by a private security guard must be settled by reference to this Court's line of cases extending the protections of the exclusionary rule to private searches. We disagree. Regardless of any argument supporting the possible relevance of our earlier decisions respecting private searches, we hold that a private security guard may conduct the kind of "stop-and-frisk" involved in the instant case during an investigation of possible trespass and theft on property patrolled and protected by the security guard. In the immediate case, the search justified of Oppelt as action taken to protect the hotel and is its occupants against trespassers in the process of committing an offense. A person has a right to use "any necessary force" to protect himself or his employer, or his or her employer's property, 49-1-103, MCA. from wrongful See also Mont. injury. Const. art Section 11, sec. 3 (constitutional right to protect self and property); Section 45-3-102, MCA (authorization to use reasonable force to defend self); Section 45-3-104, MCA (authorization to use reasonable force construction of to defend these property). constitutional A reasonable and statutory provisions compels the concl.usion that Cisneros had legal authority to protect the hotel property, to investigate the circumstances surrounding Oppelt's presence there, and to use "reasonable force" to protect himself during the course of his investigation. this case "Reasonable force" under the facts of includes the right of the security guard to conduct a Terry "stop-and-frisk." Oppelt responds that Cisneros did not have "probable cause" to believe that he was trespassing or committing some other offense, so as to justify the search. is not the correct standard. "Probable case" All Cisneros needed to have was a "reasonable suspicion" that something taking place and that Oppelt might be armed. illegal was Given that he had just seized two armed individuals lurking around a hotel p a r k i n g l o t a t f i v e o ' c l o c k i n t h e m o r n i n g , and t h a t O p p e l t was h e a d i n g t o w a r d t h e l o t u n t i l h e saw C i s n e r o s , t h e n i g h t c l e r k , a n d t h e two d e t a i n e e s , a f t e r w h i c h t i m e h e t u r n e d and walked o r r a n i n t h e o p p o s i t e d i r e c t i o n , and t h a t O p p e l t ' s j a c k e t p o c k e t b u l g e d t o t h e s i d e , w e f i n d t h a t C i s n e r o s had a r e a s o n a b l e s u s p i c i o n t o i n v e s t i g a t e O p p e l t ' s p r e s e n c e and c o n d u c t a pat-down Oppelt's supporting s e a r c h f o r weapons. challenge affidavit to the appears c o n c e p t i o n of p r o b a b l e c a u s e . justified amended to affidavit in support of flow Whether d e p e n d s on t h e n a t u r e o f the information from a and narrow t h i s conception is the facts cited in the information and case law c o n s t r u i n g t h e scope of probable cause. O p p e l t c h a l l e n g e s t h e c r i m i n a l t r e s p a s s c h a r g e s on t h e g r o u n d s t h a t t h e v a r i o u s s t o l e n items d o n o t l i n k him t o t h e crimes. His theory that is i s no there proof e n t e r e d t h e v e h i c l e s , even i f h i s co-defendant, that he Bradford, o r H e further challenges the t h e j u v e n i l e , Ruiz, d i d s o e n t e r . f e l o n y t h e f t c h a r g e on t h e g r o u n d s t h a t m o s t o f t h e items w e r e n o t " c o n n e c t e d " t o h i s p r e s e n c e a t t h e h o t e l when h e was s e i z e d . The r e m a i n i n g i t e m s w e r e a l l e g e d l y n o t v a l u e d , t h u s making p r o o f o f a f e l o n y t h e f t i m p o s s i b l e . Oppelt insists that the attempt charges are tied t o damage v e h i c l e and that there to and Similarly, criminal mischief a mobile telephone i n one i s no n e c e s s a r y c o n n e c t i o n b e t w e e n him a n d t h e v e h i c l e . An affidavit in support of a motion to file an information need n o t make out a prima committed t h e o f f e n s e is s u f f i c i e n t . probable cause evidence necessary to need ( 1 9 8 0 ) , 1 8 5 Mont. 447 U.S. 9 2 4 , 1 0 0 S.Ct. Riley (Mont. 1982), Court observed t h a t not 522, be as complete guilt. 605 P.2d 3 0 1 7 , 65 L.Ed.2d 649 P.2d that a Similarly, evidence t o establish Hamilton case A mere p r o b a b i l i t y t h a t h e d e f e n d a n t committed a n o f f e n s e . establish facie 1273, See 1121, the State v. c e r t . den. I n S t a t e v. 1117. 39 S t . R e p . t h e d e t e r m i n a t i o n whether as 1491, this a motion to f i l e an i n f o r m a t i o n i s s u p p o r t e d by p r o b a b l e c a u s e i s l e f t t o t h e sound d i s c r e t i o n of t h e t r i a l c o u r t . of Thus, t h e s c o p e r e v i e w is o n e o f d e t e c t i n g a b u s e i n t h e e x e r c i s e of t h a t discretion. The first criminal trespass c h a r g e was c o n n e c t e d to t h e f a c t t h a t t h e items s t o l e n f r o m t h e f i r s t c a r w e r e f o u n d on O p p e l t ' s basis person during for probable Although the the search. c a u s e t h a t O p p e l t was remaining trespass is c l e a r l y a This charges in that vehicle. involve evidence f o u n d i n t h e s u s p e c t ' s c a r , b u t n o t on O p p e l t ' s p e r s o n , its affidavit State alleged in suspects participated had and t h a t Oppelt assisted and each the other the other in a common c r i m i n a l scheme. T h i s C o u r t h a s h e l d t h a t more t h a n a mere p r e s e n c e s c e n e of at the establish criminal responsibility. 1 9 8 3 ) , 664 P.2d 9 2 2 , 40 S t . R e p . a crime S t a t e v. 884. is necessary to Hammons (Mont. In the instant case, h o w e v e r , t h e S t a t e was a b l e t o e s t a b l i s h O p p e l t ' s p r e s e n c e , t h e s t o l e n a r t i c l e s on h i s p e r s o n , h i s u n u s u a l b e h a v i o r , a n d h i s connection t o the other suspects. criminal proceedings, A t t h i s s t a g e of the t h i s was a l l t h a t was n e c e s s a r y f o r a v a l i d showing o f p r o b a b l e c a u s e . Oppelt c i t e s S t a t e ex r e l . (1972), 1 5 9 Mont. 439, W i l s o n v. 1217, 498 P.2d D i s t r i c t Court s u p p o r t of in his a r g u m e n t t h a t h e c a n n o t b e c h a r g e d w i t h o u t a more p o s i t i v e connection t o t h e evidence. facts, Wilson is A l t h o u g h a r g u a b l y c l o s e on some nevertheless distinguishable. In that c a s e , t h e t r i a l c o u r t found p r o b a b l e c a u s e t o l i n k a s u s p e c t to a burglary of a beer distributer's business. The e v i d e n c e , h o w e v e r , was f o u n d i n a c a r b e l o n g i n g t o a n o t h e r individual. Although t h a t i n d i v i d u a l and t h e s u s p e c t had b e e n c h a r g e d w i t h a n o t h e r b u r g l a r y a t a lumber y a r d , this C o u r t h e l d t h a t t h i s was n o t enough t o e s t a b l i s h p r o b a b l e I n t h e i n s t a n t c a s e , t h e r e i s more c a u s e on t h e b e e r t h e f t . evidence than the B r a d f o r d and R u i z . fact His that Oppelt was arrested suspicious behavior with a t the scene, t h e p r e s e n c e of h i s w a l l e t i n t h e impounded c a r w i t h m o s t o f the stolen items, his identification with the car on a p r e v i o u s o c c a s i o n , and h i s f a m i l i a l r e l a t i o n s h i p t o B r a d f o r d and R u i z offer enough e v i d e n c e t o w a r r a n t a O p p e l t p r o b a b l y was a participant in a finding that common scheme o f the£ts. Probable cause for theft also was sufficiently established. The items f o u n d o n O p p e l t ' s p e r s o n a l o n e w e r e reported have to establishing theft. a value sufficient of more grounds for than a $150, charge T h e r e was a l s o a f a i r p r o b a b i l i t y o f criminal mischief shown on Oppelt's part, clearly of felony a t t e m p t and given the s i m u l t a n e o u s p r e s e n c e o f d e f e n d a n t s a t t h e crime s c e n e and t h e e v i d e n c e of o t h e r t h e f t s . From t h e f a c t s and c o n t r o l l i n g c a s e l a w , w e c o n c l u d e t h a t t h e a f f i d a v i t of p r o b a b l e c a u s e is sound. The t r i a l court did not abuse its discretion in denying Oppelt's motion to dismiss. Having failed to convince the trial court that the State lacked probable cause to charge Oppelt, defense counsel still had the opportunity to challenge the State's evidence at trial. The following discussion essentially summarizes the facts and issues developed during the trial. A guest at the Heritage Inn testified that he had seen two individuals, later identified as Bradford and Ruiz, breaking into cars in the Inn's parking lot. He also had seen cars. another individual walking around the His testimony at trial indicated that the physical description of this third individual matched that of Oppelt. The security guard had apprehended Ruiz, who had been standing by a car, and then had retrieved Bradford, who had been hiding under another car and trying to roll away. The security guard had seen Oppelt inside the glass enclosure of the motel. After Oppelt had spotted the guard with Ruiz and Bradford, he had withdrawn in the opposite direction. After Oppelt had been apprehended and patted down, his pockets were found articles. to contain what were believed to be stolen Indeed, these articles had been taken that same night from a vehicle parked at the Holiday Inn. Four vehicles in two motel parking lots had been forcibly entered and various items had been stolen from three of the cars. Most of the items were found in an automobile parked at the Heritage Inn. This car was registered to Oppelt's sister-in-law, and Oppelt had been observed using the car on a previous occasion. The car also contained wallets belonging to Bradford and Oppelt. It was established that Oppelt, Bradford and Ruiz are related. There was testimony even from defense witnesses that Bradford and Oppelt were together during Bradford's the time of the fingerprints had been burglarized vehicles. break-ins. found Defendant in one of the The record also discloses that the break-ins had been similar in all significant aspects and followed one another, evidencing a continuing criminal design: morning they had taken place the same night and early at motels in Great Falls, the vehicles had been forced open through the wing windows, and items had been taken, with firearms having been removed from at least two vehicles. All the vehicles were from out of town, and the items stolen were either on the three suspects or in the car that was used by Ruiz and Oppelt at different times. Proof of common scheme as defined in Section 45-2-101(7), MCA, requires a showing of "a series of acts or omissions motivated by a purpose to accomplish a single criminal objective or by a common purpose or plan which results in the repeated commission of the same offense or affects the same person or the same persons or the property thereof." Criminal accountability for conduct of another is established if there is evidence of the party's aiding or abetting the criminal act, or of agreeing or attempting to aid the other in the planning or commission of the offense. See Section 45-2-302(3), MCA. Although mere presence at the scene of a crime is not enough to establish accountability, the accused need not take an active part in any overt criminal acts to be adjudged criminally liable for the acts. State v. Hart (Mont. 1981), 625 P.2d 21, 38 St.Rep. 133. The evidence set forth above tends to support both common scheme and accountability. Oppelt urges this Court to focus only upon three facts: (1) that he was arrested at the hotel; (2) that stolen items were found on his person; (3) that his wallet was found in the impounded vehicle along with several stolen items. Although these three facts alone warrant serious suspicion about Oppelt's conduct, they do not comprise the complete series of events. with the similar pattern of break-ins When considered involving several cars, Oppelt's unusual behavior the night of the thefts, his relationship to Bradford and Ruiz, and Bradford's fingerprints, it can be the discovery of said that there was sufficient evidence to go to the jury on the question of Oppelt's involvement in a common scheme of thefts. The same evidence warrants a reasonable inference that, even if he had not broken into any or all of the vehicles himself, he was a partner in the commission of those offenses. Under the circumstances, the instructions on common scheme and accountability were proper. The evidence, orders denying denying information, and Oppelt's his motion denying to motion dismiss his motion to to suppress the amended dismiss charges following presentation of the State's case are affirmed. The convictions on the aforementioned charges of criminal mischief, criminal trespass to vehicles, attempt, and felony theft are likewise affirmed. / Justice We concur: PAL J, p p I A Chief Justice ]@QQ
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