*1 ZANDER, Relator, MONTANA The STATE OF ex rel. JAMES THE FOURTH DIS The DISTRICT COURT OF v. JUDICIAL Montana, COUNTY TRICT in and for State GREEN, MISSOULA, and the L. HONORABLE OF Re JACK spondents. No. 14330. 19, 1978. Submitted June March 1979.
Decided
Relator Zander has filed original application James *3 control in this Court review and reversal of supervisory seeking a dismiss and the District Court’s denial of his motions to suppress case him. criminal pending against 4, 1977, in the Trailer On November Zander’s Juniper neighbor Missoula, the to Court outside the limits of Montana city reported with win- was the kitchen sheriff’s office someone tampering was there was in trailer advised Deputy dow relator’s home. Hintz arri- the scene. Upon in and was to progress dispatched burglary to of the neighbor val went the residence directly Hintz Deputy told there was no who had the incident. The him neighbor reported the door was at at trailer home and that trailer one home Zander’s locked. always kept kitchen sink in the Zan- over the light Hintz observed
Deputy inside, home, no of entry der not see noticed signs could anyone window, and saw one nor suspi- the kitchen no anything through the house. cious outside the
He knocked at door and received no He tested the response. and found the door unlocked. He door handle the thought reported in the house so he or entered. He prowler burglar might hiding the room and walked the kitchen which through living appeared undisturbed. who had Deputy been to the scene Crego, dispatched man, as a entered the house moments after Heintz’ backup Deputy entrance.
The officers then entered the back bedroom and saw a shin- light under the closet door. the door and discovered They opened there artificial Another under marijuana plants growing light. closet the same scene. disclosed had
The officers no reason to believe there were marijuana any or on the searched areas of plants drugs They those premises. only where a could Zander’s home or have been burglar hiding. prowler house, warrant, left Zander’s The officers secured search re- turned, and seized the two plants, coffee cans contain- material, and 2 one ounce ing suspected plant plastic of marijuana. baggies
Zander was with the of a charged criminal sale dangerous drug reason of the unlawful by cultivation of He moved to marijuana. dismiss the and to seized. charge suppress the evidence The District Court of Missoula denied all County motions dismiss sup- press.
Zander then to this Court for a writ of con- applied supervisory trol to test the correctness these We set the matter rulings. In hearing ordered briefs filed. addition to the briefs adversary amicus were filed American Liber- parties, briefs Civil by ties Union Prosecutor’s Services Bureau. by County
Five are issues this matter: presented (1) an remedy? control available Is-supervisory (2) Did the search violate right privacy provision State Constitution?
(3) Did the search violate constitutional prohibition against unlawful searches and seizures?
(4) Does the statute under which defendant is being prosecuted violate the equal the State Constitution? protection guarantee
(5) Does is the statute under which defendant being prosecuted violate the “due of Montana’s Constitution? process” requirement
The rem- State contends control is not supervisory proper here because the District Court’s were neither edy rulings arbitrary or unlawful and that an available in adequate is remedy by appeal the event of relator’s conviction.
The writ of control is not common law or supervisory statutory writ. It is derived from Montana’s constitutional provision grant- this all Ar- Court control over other courts. ing general supervisory VII, 2(2), ticle A similar Montana Constitution. provi- Constitution, VIII, sion existed in Montana’s 1889 Article Sec. 2. The writ has been established as of this state’s law long part use of this writ in before this discretionary original proceedings has a over 50 Court of history years.
The this of discretion to use writ determined needs by it the individual case. was used to test the Comparatively recently, of the same statute here attached at the close of constitutionality the State’s case-in-chief. State ex re. LeMieux v. Dist. Court dism., 166 Mont. sub. nom. Dist. Court appeal LeMieux, ex rel. 442 U.S. District Montana Judicial of Fifth 687. ex 95 S.Ct. 45 L.Ed.2d Because we wish to again statute, we exercise our discre amine the constitutionality than limit tion to do so control to trial rather by supervisory prior defendant to his in the event of his conviction remedy by appeal trial. following to- will discuss and third issues in this proceeding
We the second was un- Defendant that the search and seizure here gether argues (l)that for two reasons: it violated the “search seizure” lawful Constitutions, (2) of the United States and Montana provisions in the Montana that it violated the “right privacy” provisions Constitution. unreasonable and State Constitutions prohibit the Federal
Both Constitution; Amendment, Arti- U. S. and seizures. Fourth searches
553 II, 11, cle 1972 Montana Constitution. Both searches permit warrants and and seizures under valid search under certain cir without a search warrant. Here the focus of defend cumstances se, ant’s attack is not on the search warrant but on the absence per cause in the first to enter defendant’s house with place of probable were where the discovered. Hftat marijuana plants out warrant into his house and the the warrantless entry scope tacks both was made that formed the basis for discovery search in which the the search warrant. issuance of
We hold that the warrantless
into Zander’s
entry
house by
Hintz and
was
A
deputies
justified.
had
Crego
proper
person
been observed under circumstances
an
at forced
indicating
attempt
into the Zander home.
the front
entry
Hintz found
door un
Deputy
that,
locked after
been informed
was home and that
having
nobody
the door was
locked when the Zanders were
The of
always
away.
ficers
the
at
time of
were
in
the Zander
entry
engaged
protecting
This included
whether
were
property..
determining
any burglars
warranted in believ
inside the house. A
officer was
hiding
prudent
and in conclud
that a
had been
or committed
felony
ing
attempted
to
the
into the house was
entry
necessary
protect
prompt
and determine whether
was
in
property
the
the
suspect
hiding
461;
655,
(1975),
house. State v.
21
536 P.2d
Schrag
Or.App.
98,
(1959),
168,
Henry v. United States
361
80
4
U.S.
S.Ct.
307,
(1959),
L.Ed.2d
79
v. United States
358 U.S.
Draper
329,
S.Ct.
As the officers’ and search for the was entry suspect the incidental of the contraband the course of the discovery during search was likewise lawful under the view” doctrine. Cool “plain 443, 2022, (1971), 29 v. New 403 U.S. 91 S.Ct. idge Hampshire of an of L.Ed.2d 564. It is well settled that an view object plain who is to ficer is in a to that view sei lawfully position subject have 234, 992, (1968), zure. Harris 390 88 19 v. United States U.S. S.Ct. L.Ed.2d 1067. Montana has this stated the principle applied rule in this language. to
“The rule is: Where there is
for the
prior justification
police
area,.and
area,
find
search an
searching
they inadvertently
evidence which
had no reason to
they
anticipate,
incriminating
evidence.” State v.
seize that
they
lawfully
incriminating
may
155,
858.
Mont.
Gallagher
Here the officers were
but for a
not searching
drugs
suspected
had no reason to
of contraband
burglar. They
suspect
presence
in the house. Their search was limited to
where the
places
suspect
is
The
of the search
as broad as
might
hiding.
permissible scope
from
reasonably necessary
prevent
escape
suspect
the house.
Warden v.
U.S.
S.Ct.
Hayden
The second of prong argument on of con- privacy” search seizure occurred based the “right tained in the 1972 Montana Constitution. The of defendant’s gist contention is that there was no state interest compelling justifying a a the invasion of home to criminalize the of growing private an adult. Defendant cites the expert opinion marijuana plant by Gordon, evidence of Clarence Professor of at the Univer- Botany C. Montana, M.D., Arlee, a of P. sity Daniels physician John Montana to the effect that a constitutes no risk or marijuana plant hazard to health. Also cited is an affidavit of Dr. Thomas Unger- the why recent studies of concerning present leider has discredited its harmful effects. state of scientific knowledge to the District Court in this case This affidavit was not presented case in the ninth judicial but was taken from another District Court this and first into this case in relator’s brief to injected district Court. the cultivation
We not reach a determination of whether do This is is or should criminalized. patently or use of be The be the by legislature. legisla matter of state law to determined sale or making determined this enactment of statutes by ture has
555 of a criminal offense. 54-132 and Sections posession marijuana 54-133, R.C.M.1947, sections 45-9-101 and 45-9-102 now MCA. This will not intrude on this under the legislative prerogative Court no or basis there is evidence for questionable theory policy statutes and that had no rational or reasonable basis legislature them. enacting The remainder of Zander’s contention is that there is no compel- state interest into a intrusion home to ling justifying private pre- vent an adult from occupant growing marijuana plant, citing of in Montana’s Constitution. “right privacy” provision ' Our Constitution provides:
“The of individual is essential to the of a right privacy well-being free and shall not without the of society infringed showing Art.II, 10, state interest.” Montana Constitu- compelling tion.
We have no quarrel with this constitutional nor with provision the various authorities cited relator and amicus American Civil by Liberties Union for the that a has val pronouncement person alone, ued and fundamental to be let free from right governmental intrusion; (1928), 438, Olmstead v. United States U.S. 48 S.Ct. 944; 564, 72 L.Ed. or that a man’s is his home castle and the right there ais of the constitutional privacy part guarantee liberty (1971), and the pursuit State v. Brecht 157 Mont. happiness. 47; 264, v.Welsh Pritchard 125 Mont. P.2d 816. We have also examined the other authorities cited by {1886), both and amici: v. United States 116 U.S. Boyd parties 174 Mont. 29 L.Ed. State v. Sawyer S.Ct. *7 1131; 494; Alaska, (1975), 571 P.2d Ravin v. State 537 P.2d State 1226; Mont. State v. v. 176 Bobey Murphy (1977), 117 Ariz. P.2d and the other authorities briefs too numerous to mention here. cited
From these cases and our constitutional certain language of law The of individual is a fun principles emerge. right privacy damental constitutional as essential to right expressly recognized of our The constitutional of indi- well-being society. guarantee
vidual not absolute. It must be construed privacy interpreted, in the of other constitutional and not applied light guarantees isolation. The of individual must to com- right privacy yield state interest. Such state interest exists where pelling compelling the state its criminal for the benefit and enforces laws of protection other fundamental of its citizens. rights
The state interest in this case lies in the of compelling protection a citizen’s home and its contents unlawful intrusion. from Relator’s that the state interest must be found in stat- argument compelling utes the cultivation and sale of is nonsense. prohibiting marijuana The officers’ intrusion here was to purely simply protect and its contents home of the including discovery apprehension The of the had to do with en- intrusion suspect. purpose nothing forcement of laws. marijuana
Protection of is an inalienable person’s property right .II, our Constitution. Art. 1972 Montana guaranteed by Constitution. This constitutional furnishes the protection compel state interest to which the of individual must ling right privacy in this case. yield we hold that the District was correct in deny- Court
Accordingly dismissal defendant violation of con- charge against stitutional unreasonable searches and seizures prohibitions against and the right privacy.
Zander next that the cultivation contends the statute prohibiting denied him of the laws under equal plants protection II, Art. Sec. of the 1972 Montana Constitution. He argues cultivation of tobacco is as harmful as cultivation of mari- equally and that because criminal sanctions are on tobac- placed no juana cultiva- co cultivation while criminal statutes prohibit tion, he is denied of the laws. equal protection statutes need not to all areas that apply may
Criminal to do so does health and failure of legislature injurious public [he of the laws. Ravin v. State equal not constitute denial of protection Alaska, 494. Determination or classification of P.2d v. equal does not State deny protection. subjects legislation
557
Mo.,
199
v. Kells
S.W.2d
State
Mitchell
374,
in the same class are
Finally
MCA,
Mon
violates
due
in
guarantee
section 45-9-101
the
process
that cul
tana’s
an
creating
arbitrary presumption
Constitution by
a sale of
The state
marijuana.
tivation of
constitutes
in
ex
that this issue was decided
to relator
State
adversely
responds
115,
(1975), 166 Mont.
rel. LeMieux v. District Court
dismissed,
nom.,
665,
sub
District Court
appeal
of Fifth Judicial
LeMieux, 442
District
v. Montana ex rel.
U.S.
Montana
S.Ct.
LeMieux was decision reversing ruling members of .the that the statute was unconstitutional. Two judge The third member of the ma- are no on Court. majority longer to re-examine desire court has expressed on the LeMieux jority We ruling. proceed. the LeMieux and review The statute in question pertinent part: provides A commits the offense of criminal sale dangerous person as defined in . . . cultivates ... dangerous drug, if he drugs any [this 54-132, 45-9-101 now section MCA. R.C.M. act].” as dangerous drugs are defined marijuana plants Marijuana Act, sections 54-301 elsewhere in the Controlled Substances 54-305, 50-32-222 sections 50-32-101 and R.C.M. now was constitu- held in LeMieux that the statute MCA. The majority “sale”, did defined tional because the simply broadly legislature not cultivation, create presumption “sale” from and because could legislature have prohibited cultivation of marijuana by separate statute it did not its overstep power culti- including vation within the definition of “sale” in the act.
On re-examination it becomes clear that the legislature
did create a conclusive and irrebuttable
of “sale” of
presumption
from
cultivation thereof. The
language
statute is
*9
clear and
It
unambiguous.
states that a
plainly
commits a
person
criminal sale of
if he
marijuana
cultivates it. The intention of the
legislature must first be determined from the plain
of the
meaning
words used
if
determined,
meaning
statute can be so
the courts
not
may
further and
go
apply
other means of inter
any
pretation.
v.
Dunaphy
(1968),
Anaconda
76,
Company
Mont.
(1978),
P.2d
Haker v. Southwestern
Co.
176 Mont.
Ry.
364,
The test of the of such a constitutionality statutory presumption has been determined the United States by Court: Supreme decisions,
“Under our a statutory cannot be sus presumption tained if there be no rational connection between the fact proved and the ultimate fact if the inference of presumed; one from proof of the other is because of arbitrary lack of connection between two in common experience.” Tot v. United States 319 U.S. 463, 467-468, 1241, 1245, 63 S.Ct. 87 L.Ed. 1524.
A later U. S. Court Supreme decision further defined the test: Tot, is, think, “The upshot Gainey Romano we that a criminal must be statutory presumption as regarded ‘irrational’ or unconstitutional, unless it can at least be and hence ‘arbitrary,’ with substantial assurance that the fact is more like- presumed said to flow from the fact on which it is made to de- than not ly proved 6, 36, 1532, 1548, v. U. S. 395 U.S. S.Ct. Leary pend.” 57, 82. 23 L.Ed.2d We conclude question.
We this test to the statute apply (cultivation bears rational marijuana) that the fact no proved (sale marijuana). Marijuana connection with the fact presumed sellers. Common marijuana experien cultivators are not facto ipso users cultivate the for their ce indicates that many marijuana plant here, use, where, are cultivated own as small amounts particularly within the We with substantial say confines of one’s closet. cannot assurance that such than to is more not result cultivating likely sale. A conclusive that a cultiva marijuana statutory presumption is a tor seller is It to arbitrary. purely precludes proof If offends the “due clause of our State Con contrary. process” II, stitution. Art. Section 1972 Montana Constitution. 54-132, we hold that of section R.C.M. Accordingly part section 45-9-101 now MCA commits providing person criminal sale of if he cultivates un- dangerous drugs constitutional on its face. This does affect not nor ruling apply 54-133, MCA, section R.C.M. now section 45-9-102 govern- *10 the offense of of possession marijuana. Dismissal of the criminal sale of charge dangerous drugs relator Zander the District Court of Missoula against County granted. DALY,
MR. HARRISON SHEEHY concur. JUSTICES SHEA concurring. MR. JUSTICE 54-132,
I concur with the section majority declaring opinion R.C.M. to be unconstitutional in and will short- provide part observation my constitutionality statutory pre- ly concerning in the field of the criminal law. I dissent from major- sumptions on the issue and written will ity privacy explanation right filed.