THE STATE OF MONTANA, ON THE RELATION OF PHIL MANKIN, PETITIONER, v. THE HONORABLE ROBERT H. WILSON, DISTRICT JUDGE OF THE THIRTEENTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF YELLOWSTONE, RESPONDENT.
No. 13714.
THE STATE OF MONTANA
Decided Sept. 22, 1977
Submitted June 8, 1977
195 Mont. | 569 P.2d 922
MR. CHIEF JUSTICE HATFIELD delivered the opinion of thе Court.
Petitioner, Phil Mankin, seeks a writ of supervisory control from this Court to require the presiding judge in Criminal Case No. 10081, in the district court, Yellowstone County, to grant petitioner‘s motion to suppress evidence.
Petitioner was charged with the crime of burglary of a residence. A pretrial motion was filed to suppress evidence consisting of shoes, wrenches, gloves and any other clothing or personal possessions allegedly taken from petitioner without a warrant in violation of his rights. An agreed statement of facts was submitted to the district court for its consideration, supplementing оther testimony and evidence presented at the formal hearing on the motion to suppress. The district court denied the motion. From this denial, petitioner seeks a writ of supervisory control or other appropriate writ from this Court.
The facts are not generally in dispute. On June 13, 1976, petitioner was arrested in connection with thefts from cars. Shortly after petitioner‘s arrest, a burglary was reported of a residence located within the same vicinity as the alleged thefts. The petitioner was held in custody on the initial arrest for theft from cars, pending further investigation of bоth that crime and the house burglary.
On the day of petitioner‘s arrest articles of clothing were taken from his person. On the following day, petitionеr was released from custody without charges filed. Petitioner‘s shoes and other personal possessions were retained by the police and submitted to the F.B.I. laboratory for comparative analysis with footprints found during the investigation of the house burglary.
Four months later, upon recеipt of the F.B.I. report, petitioner was charged with the burglary of the residence.
Petitioner does not contend that his initial arrest was unlawful. Where a lawful arrest occurs,
The state contends the failure to comply with
Conversely, petitioner contends that noncompliance with
“* * * If the person arrested is released without a charge being preferred against him, аll instruments, articles or things seized from him, other than contraband shall be returned to him upon release.”
“Nevеrtheless, the defendant contends the clothes and the hair sweepings should have been suppressed because the police violated
Ill.Ref.Stat. (1971) Ch. 38, Sec. 108-2 when the police did not return these items upon the defendant‘s release that same night. * * *”
“* * * Defendant claims that this section has a basis in the Fоurth Amendment and represents a legislative codification of it; and that the items retained in violation of this section must be suppressed under the еxclusionary rule.
“The seizure and retention of these items did not constitute a violation of defendant‘s Fourth Amendment rights. As stated previously, the defendant was validly arrested and the items were validly seized. The retention of these items after defendant was released was valid because the items could be easily destroyed. * * *
“* * * Therefore, at most, only the retention of the defendant‘s clothing violated the language of the Statute. As such rеtention was only a violation of a statutory right and not a constitutional one, the clothing is not subject to the exclusionary rule of evidencе and did not require suppression.”
The Illinois court reiterated this holding in People v. Tompkins, 24 Ill.App3d 470, 321 N.E.2d 326, 327 (1974), where the facts are essentially the same as petitioner‘s case. The court in Tompkins stated:
“The State contends that the failure to comply with
section 108-2 constitutes a mere tеchnical error which does not compel a suppression of the evidence. We agree. * * *”
Section 108-2 must be read in conjunction withsection 108-14 of the same statute which states:“‘No warrant shall be quashed nor evidenсe suppressed because of technical irregularities not affecting the substantial rights of the accused.’
“The aforementioned statute was applied in People v. Smith, 50 Ill2d 229, 278 N.E.2d 73, wherein the defendant unsuccеssfully urged the suppression of evidence based on a violation of
section 108-2 . The court held that a failure to comply with a statutory direction to furnish an inventory of seized materials pursuant to a warrantless search will not, in the absence of prejudice, invalidate an otherwise proper search and seizure.”
Montana follows the rule of statutory construction where, in borrowing a statute from аnother state, the legislature borrows the construction placed upon it by the highest court of the state from which it is borrowed. Durnah, v. Southside National Bank of Missoula, 169 Mont. 466, 548 P.2d 1383, (1976). While this Court will considеr the construction placed on the borrowed statute, such construction is not binding upon this Court. State ex rel. Dept. of Highways v. Hy-Grade Auto Court, 169 Mont. 340, 546 P.2d 1050, (1976).
In the case at hand, we accept the сonstruction placed upon the statute by the Illinois court and adopt it for our own. Accordingly, petitioner‘s writ for supervisory control or оther applicable writ is denied.
MR. JUSTICES DALY and HASWELL concur.
MR. JUSTICE SHEA, dissenting:
I would grant the petition for writ of supervisory control and suppress use of the shoes as evidence.
The majority states that “petitioner‘s shoes were taken from him at the time of the arrest.” But, they were not taken to hold as evidence. They were tаken along with all his clothes and belongings on his person as part of the standard booking procedures used when a person is arrested and taken to jail. His clothes and shoes were not “seized” at that time.
At the time defendant was booked he was under arrest only for car burglary, and his clothes (including his shoes) were taken from him before he was ever a suspect in the burglary of the house. It was later that the police checked the footprints outside the house and comparing them with defendant‘s shoes, determined that he might be linked to the house burglary.