*1 OF MONTANA, STATE Appellant, Plaintiff CARLSON, BRADLEY JAMES Respon- Defendant dent. No. 81-349. 12, 1982. Jan.
Submitted
29, 1982.
April
Decided
Leaphart Helena, W. William Firm, Law respondent. for defendant and Helena, opinion of the delivered MR. JUSTICE SHEEHY Court. appeals the District from an order of State Montana County, sup- Clark District, Lewis and
Court, First Judicial proceedings pressing in criminal evidence the use certain Bradley pending Carlson. James the defendant brought by the evidence whether the State is The issue product “plain of officers observation view” making arrest. We of a lawful or to the course of incident determine from circumstances here that the evidence and affirm District should be Court. suppressed, the afternoon of March Carlson 10,1981, On was involved in accident, a minor which Helena, traffic was not his fault. J. Damon, city Thomas Helena officer who in- vestigated accident testified that he had “on the heard street” that a drug Carlson was user. When Officer Damon asked to see Carlson’s driver’s license at the scene of the acci- dent, Carlson informed him that he had a valid driver’s license it but was not with him. Officer sought Damon verify license status use of his car radio through state com- but puter, computer “down,” and Officer Damon was unable to get However, verification. Damon informed Carlson that he would continue to if check, and lying Carlson was about license, his “I bewill calling you your knocking door with a warrant.”
At 9:00 of the same p.m. day, fixed, computer was from it Damon determined that Carlson was while driving driver’s license was revoked. He out, therefore made Helena police forms, department a “Notice to Appear *3 for the Complaint” charge a motor operating vehicle a upon street while city a having revoked driver’s license, and another “Notice to Appear and Complaint,” for obstructing an officer false by making and untrue statements. Each notices required defendant to before appear the municipal court on or 11, before March 1981, the next day.
Officer Damon was unable to get touch with Carlson on of March evening 10, or on the date of his required ap- pearance, However, March 11. on March he gave cita- tions to the clerk to mail city to the copies defendant. The in this proof case that such were never mailed copies clerk to the defendant. On March 16, Damon, Officer the citations thinking mailed, had been that an ar- requested rest warrant issued to the defendant he because had not ap- in court on peared March 11.
Each charges Carlson was misdemeanor. The Helena city judge issued warrant ordering arrest of defendant on misdemeanor charges against him. The cita- notation “failed both appear contains the warrant on the charges, bond applicable and further sets out tions” a revoked officer, driver’s for obstructing $25 $150 $8, for a and court costs of charge, for a warrant license, $5 grant total of $188. may of arrest statutes, specify Montana the warrant
Under bail, 46-6-202, MCA, and under another the amount of section MCA, may section officer statute, 46-9-303, peace accept for arrest of a whenever warrant judge such bail on behalf the amount of bail. specifies (March another Helena 17),the officer and following day home went to Carlson’s officer, G. Jeffrey Bryson,
police to the warrant. a.m. arrested him about 7:50 pursuant underwear, and door, at the clad in his only Carlson appeared rights. He not read his Fourth Amendment half asleep. entered Carlson’s front arrest, In the officers making Officer Damon: described by room in circumstances when describe to the court what you happened Would “Q. arrest house with warrant your arrived the defendant’s you door, it to the up A. He had—-He came morning: opened in his underwear. asleep just still half showed then? A. Sergeant Bryson And what “Q. happened we have a warrant for for his and said him the warrant arrest to the have to come arrest, that he was going station with us. A. he dressed first. if could get Did the ask
“Q. defendant Yes he did. reply him or did Officer you Bryson And did
“Q. reply did. him? A. Sergeant Bryson if he could he asked he to him when And what did
“Q. say are arrest’ said, ‘Sure, but you A. He dressed first? get if come and we could to come with him and one of us has to let us in. the door and which he house, opened the house? come into could not you Did he ever tell “Q. you *4 heNo, A. didn’t. you were —that you to you Did he ever indicate
“Q. No, house? A. his you not want present he did were —that he didn’t. tell he you No, Did he ever leave? A. didn’t.”
“Q. door of the Carlson immediately front residence opened into the front room or room. living house, Once inside the officers observed on a coffee table a of quantity marijuana, (a some street term for utensils “bongs” marijuana) used with and other drug However, the officers did not paraphernalia. or touch anything. seize The defendant was taken to the city he where was “booked” under the two jail charges arising out There, traffic accident. for the first time, Carlson was of the copies “Notice given Appear each Complaint” He posted the charge. bond of him and was released. required At police headquarters, arresting officers related their superiors what had seen at the Carlson Of- home. ficer Damon was to watch the dispatched house, Carlson while a search warrant was obtained from the of- county attorney’s fice. Thereafter, armed with a search warrant, a coun- deputy ty with attorney, police officers and sheriff’s search- deputies, ed the house. The search small produced quantities hashish, oil, hashish marijuana, cocaine, and a stolen Thereafter, pistol. Carlson charged was by information in criminal proceedings the District Court with four counts criminal possession dangerous drugs, and two of theft, counts all felonies.
In the felony proceedings against Carlson, counsel mov- ed to suppress evidence which had been as produced described above. The District Court concluded that Carlson’s Fourth Amendment rights had been violated, and accordingly suppressed evidence. It from that that the order appeals.
Carlson’s motion to in the suppress District Court was upon (1) two grounds, that the entry officers into Carlson’s home was warrant, without search and without consent of (2) Carlson; and that the arrest on 17,1981, March for a misde- traffic meanor offense that occurred seven earlier days merely into pretext gain entry Carlson’s home for the purpose search. investigatory The State contends that the full custodial arrest Carlson was reasonable under the circumstances, was not connec- tion any with pretextual arrangement investigate *5 118 warrant upon “plain home and that the search
Carlson in the home of the officers Carlson police view” observation was valid. to determine in its order declined
The District for the arrest was a a search Carlson’s pretext whether no here for full there was home, necessity but also decided of Carlson based the misdemeanor upon custodial arrest determined Instead, him. District Court charges against at the by the matter should be decided what happened that arrest; to determine whether the defendant home after the to enter his front room under consent to the officers gave v. Schneckloth circumstances, citing of the totality 218, Bustamante 2041, 412 93 S.Ct. 36 L.Ed.2d U.S. (1) that circumstances, on four relied factual 854. court (3) (2) arrest, that he was under was half asleep, Carlson Fourth Amendment rights, he not been advised of his had to the (4) police he the choice between given going had been or a.m. permitting in his underwear 8:00 station that there enter his home. The District Court determined in would conclusion no the record that support was evidence the circumstances and by was not coerced defendant officers, therefore his verbal con- of the the statements by view” “plain as voluntary justify sent did not qualify in front while were Carlson’s officers observation room. for is whether our determination first matters
One Amendment occurred Fourth within the ambit “search” no in the District contended Court.that here. The.State brothers is dissenting At least one of our search occurred. none of the articles seized Here the officers that opinion. They be suppressed. now to which constitute the evidence is cer- it room, in view and what was the front plain noticed looking in hidden places there no about prying tain that the two officers. sofas that which places is into hidden A “search” a prying what is a search to observe it is not concealed; conversely is into a house invitation view. Observations made upon plain
119 387, are not a “search.” State Monahan Wis.2d (1977), 421, 423. N.W.2d turns into distinctive factor an observation search, in the is sense, constitutional whether the mak person has a ing the observation in the where the right place observation made. Thus it is said that an observation made of a where officer has a to be is not a place search the constitutional sense. Seagull (1980), State v. 26 Wash. App. 58, 528, 532; 613 P.2d Fehlhaber v. State North Carolina (D.C.N.C.1980), 130, 136; v. Hauschel F.Supp. People (1975), 37 P.2d 876, 883; Colo.App. United States v. (9th Cir. 1976), 541 F.2d 214. Coplen *6 The rule seems to be that evidence discovered in plain from a where place view officers are entitled stand and where their is claim to stand not created as a pretext, solely make legitimate otherwise intrusions, not the impermissible aof “search” subject within the the meaning of Fourth Amendment, and such seizing evidence does not trigger (5th warrant United v. requirement. States Kaiser Cir. 1977), 467, 545 F2d 477.
It then appears that for constitutional a “search” purposes, be defined may as visual or use examination, the of some other means evidence, which gathering infringes upon person’s reasonable expectation privacy. United v. States Hartley (U.S.D.C.Fl.1980), 486 1348, 1354. F.Supp.
If the therefore, officers in this case lawfully were in Carlson’s front room when observations, made the visual they a “search” within the occur; constitutional sense did on if hand, other their in front room con presence was not to, sented as the District Court ex determined, visual amination does constitute a “search” constitutional sense. validity the officers’ room entry into Carlson’s front
is the fulcrum therefore which this case turns. The State recognizes officers, making arrest, since Carlson was at the front door the arresting and within power of the officers, had no enter Carlson’s house under the circumstances this case. their justifies entry upon concluded consent. The District Court its claim of Carlson’s obtained, in effect, consent was through that Carlson’s coercion. out there is a general
The District Court pointed right, waiver a constitutional Johnson presumption 464, 1023, 58 S.Ct. Zerbst U.S. v. from 1461, 1466; L.Ed. Schneckloth quoted Bustamonte, following effect: supra, “But the Fourth and Fourteenth Amendments require im- coerced, means, by not be or implicit a consent explicit force. no matter how For, subtly threat covert plied no ‘consent’ be resulting coercion were would applied for the intrusion against more than a pretext unjustified police Amendment is directed ... which the Fourth deter all the circumstances to examining surrounding “In coerced, account if in fact consent to must mine search as well as the taken of coercive subtly police questions who con state subjective person vulnerable possibly 228-28, 93 2048-49, 36 at Schneckloth, U.S. sents.” L.Ed.2d at 863-64. state of with the District Court. The agree subjective
We to be “half Carlson, asleep” admitted officer the police his statement of underwear, unqualified and the dressed, would have that if Carlson were get officers his without other any to come into house explanation subtle coercion of Carlson. constitute a. rights, *7 is that of the Fourth Amendment itself command very “unreasonable” reasonable, it is must be because searches are searches that prohibited. to that consent to search voluntary
In order show that the was une obtained, the must show consent State by uncontaminated intelligently given quivocal, specific, 1239, 1241, (1976), P.2d v. Brough duress coercion. State (Alaska P.2d 1969), 185; Sleziak State 182, 171 Mont. 252, 24 L.Ed.2d 921, 90 252, cert. den. 396 U.S. 257-58, (1969). of is a burden heavy This has held that there a search. consent to to that there was show proof required 1011, 551 P.2d 170 Mont. v. LaFlamme State a for in- conduct alone is insufficient as basis 1012. Equivocal is a search, of consent to which consent a waiver of ference constitutional right. the to
As stated in discussion with foregoing respect we if here, whether a search an element of a occurred proper that it is made of- visual examination is from where the point to then we must be, ficers have a conclude that the in District Court was correct determining defendant’s consent was not shown to by have been voluntarily under the cases decided in our given, jurisdiction and others. in- Accordingly, officers, having unlawfully home, truded into Carlson’s conducted an unconstitutional “search” in their making visual observations.
Other factors buttress our conclusion. It is to be seriously doubted whether the full of power the State to panoply make a custodial arrest was indicated here. No notice of the traffic in common-place tickets issued this case was ever serv- ed upon Carlson. The officers made no effort apparently determine whether those notices had ever been served. The of warrant arrest itself states that the improperly defendant failed to to the appear traffic response tickets, which were never served him. is upon It policy City Helena, as testified city clerk, not issue a warrant of arresf unless traffic offender has failed to to the notices. respond section Although 46-9-303, MCA officer provides peace may bail in lieu of accept arrest when the warrant specifies the amount of the bail, that here, was not followed option although justice officers, it to be the stan- appears dard rule of the City Helena to such require defendants be booked in hall where city bond Another posted. practice followed City Helena, issuing warrants, such tois provide all such warrants be served in the may nighttime, section although 46-6-105,MCA, that a cannot provides person be arrested in his home or dwelling night private place misdemeanor direction of the except upon express magistrate endorsed upon warrant arrest. The officers here had no knowledge of other traffic citations prior any issued to Carlson for which he did not excuse appear. *8 with the fullest the officers in the warrant of arrest procuring had the State was that Carlson lied granted by possible power he license, to his driver’s and therefore respect to Damon with In other he committed the words, not otherwise might appear. he he be ar- therefore, crime for which must charged, made in any an could be traffic case. argument rested. Such it other which it did not follow: options had several city of a a summons to instead war- appear, could have requested MCA; it have arrest, 46-6-301, rant under section could him; or notices served them the officers upon issued the home. on the of the Carlson doorstep could have bail accepted of traffic of the full arrest case reasonableness custodial (the officer the obstruction of violations State contends violation) out a traffic is gravely did not arise charge doubtful. is From the chilling. from these facts emerges
What clerk, and the city of the two officers testimony police , norm that when a citizen Helena, ignores it is the City him which citation, traffic a warrant of arrest is issued of the or any day served him at his home time may upon riguer it de is not served, warrant of arrest is night. When the time the that is on the warrant at that bond stated accept is to remove the citizen Instead, it standard arrest. procedure If at hall, he his bond. the time of post where can city bodily overcoat, on his will the citizen wants to arrest, police put “for the officers.” safety him his home follow into traffic in Helena will be accorded words, In other violator arrest is as the rankest felon when his the same treatment made warrant. it happens are because brought light
The facts in this case of telling have no way be a bad We may apple. Carlson lane turn an citizens, improper how times other many guilty The statutes been so treated. light an amber have rushing them to countenance we do have these permit procedures; case. the facts this as reasonable under said the Alaskan court It what repeat is appropriate (Alaska Anderson P.2d 1976), 251, 259-60: and seizure complex that the law of search recognize “We of human difficult That apply. permutations and often officers into carry police behavior sometimes situations which demand close to the line of unconstitutional intru- decisions is, sions But the and liberties inevitability. rights perhaps, secured the federal and state constitutions are paramount *9 . . and will be . protected
((
“While action of the officers here . . . police may be viewed some as a small by only deviation from the constitu- standard, tional feel we no less moved to such condemn action here than we would were intrusion officers of by an obviously greater magnitude. As Mr. Justice Bradley elo- Boyd v. United States, in quently stated 616, 116 U.S. 6 29 524, L.Ed. 746 (1886), . .
‘“. illegitimate unconstitutional practices get their footing first ... silent approaches slight deviations from legal modes This procedure. can be obviated only to the rule that adhering constitutional for the provisions security of person should be property construed. liberally A close and literal construction them of half their deprives ef- ficacy, and leads to gradual depreciation of the as if it right, consisted more in in sound than substance.’
“We, of course, not do condone the behavior of the appellant . . . we are But, mindful of Mr. Justice Frankfurter’s observa- tion that presenting cases issues of constitutional rights fre- involve quently have people who committed the most appall- ing violations. He stated:
“Tt is fair summary history that the say safeguards have liberty been in controversies frequently forged involv- not ing nice very people.’”
This
has
not hesitated to
intrusions
support
by the
either
police,
for arrest or search
warrant,
without a
in proper
cases, where exigent
existed,
circumstances
or where a crime
was taking
State v. Means
at the time of
place
entry.
(1978),
State v. Bennett (1972), 158 Mont.
193,
406;
177 Mont.
581 P.2d
State v. Hull
496,
where the intrusion. State in making interest of state compelling State v. 891; 38 v. Hyem (1981), Mont., 202, St.Rep. 630 P.2d 199, The high Allen P.2d 37 919. (1980), Mont., St.Rep. v. Robinson 218, court held in United States (1973), 414 U.S. 427, 440, right 38 L.Ed.2d 235, 467, 477, 94 S.Ct. if the for person full search is limited arrested custodial however, refused follow lead We, a traffic offense. P.2d 1228. Jetty 176 Mont. that case that a summons would we held where it appears There percent cases, a warrant arrest work as well as for arrest mandatory the defendant custodial placing ticket and parking subjecting failure to overdue pay $1.00 was unreasonable. further him to a full custodial search We not excused because the held the unreasonableness was that standard on the ground pro- was standard procedure constitutional eliminate the individual’s cedure cannot seizure. State v. Jetty, from unreasonable search and be free P.2d at 1230. 176 Mont. *10 Newv. (1971), Coolidge Hampshire court noted high 2022, 2038 564, 583, 29 L.Ed.2d that 443, 466, 91
403 U.S. S.Ct. the had in common was that what the view” cases “plain for an inva case a prior justification officer in each had police The District noted of the accused. sion into property no there prior that this case was this distinction decided issue, In this analyzing for the intrusion. justification to insure search was necessary District Court noted no no a there was weapon; would not obtain defendant relevant he evidence destroy any would possibility if the officers he was were charged; police crimes with which to enter no necessity concerned there was about escape, addition, In the District Court house to it. Carlson’s prevent home. He defendant’s to the invasion of the alternatives noted without super pants have been permitted put could in his been taken to the station vision, he could have or could bond, they underwear, have accepted could those cir In a with the defendant. have left summons simply or no cumstances, prior justification Court found the District
125 at the in- point of the officers police for the arrival exigency in contention was side from which the observation the house noted that warrants made. The District Court then “[a]rrest of a the door private should not used as a key open a com- search absent converted into a warrant residence, or to do necessity so.” pelling was no prior
We
District Court. There
with
agree
for the
officers in
justification
exigency
entry by
this
the facts
this case
case. Their
entry
unreasonable, and it
that factor that converted their obser
vation while in the house
a
search,
into warrantless
which is
v.
York
always presumed
E.g.,
unreasonable.
New
Payton
(1980),
573, 100
639;
445
63
U.S.
L.Ed.2d
Coolidge
v. New
443,
We are aware of v. Washington (1982), U.S., Chrisman S.Ct. 812, 70 L.Ed.2d which court high upheld seizure of marijuana a a seeds and where pipe Washington State University policeman had entered the room allow an arrested person procure identification. Chrisman was the roommate of the arrested That case holds that when a person. policeman is in has place be, where he right to makes a search or a seizure view, based what is in upon plain pro- duct of the search or seizure need not be suppressed. The Supreme Court had Washington held otherwise. Wash.2d 711, (1980). 619 P.2d We this case distinguish however. The District this Court in case that the found entry police to defendant’s home occurred through defendant’s coerced consent. We have held previously full custodial arrest search for minor traffic mandatory violation is unreasonable. We Jetty, supra. have, moreover, our unique state constitutional which provision defends the individual privacy absent showing *11 compelling II, state interest. Art. section Mont. A Const. state is compelling interest here to overcome lacking defendant’s reasonable expectation his home. privacy the right deal of good importance privacy attach
We Constitution. State contends Montana’s guaranteed consider this factor because the District that we should not However, it in the on evidence. rely suppressing Court did the District Court and has raised in briefs before the issue was right here. The State contends if the been raised in briefs is considered by under the Constitution Montana privacy remand the have the to a us, purpose pro- it should sec- II, state interest” as Art. ving “compelling required that no However, it was conceded oral argument tion 10. to the District already submitted additional evidence in- to establish the state necessary Court would be compelling under this con- terest the State. The State sought by argues, committed, a crime had been arrest was tention that officers in case were performing this necessary, simply arrest, and the disclosure their in connection with duties either a was the result of plain of the contraband evidence a search inci- police officers, view observation made dent to lawful arrest. here from viewpoint look at the issues
Whether we constitution, event, it is clear in either the federal or state the case. v. Stanley Georgia heart of privacy 542, 549, 22 L.Ed.2d 557, 564, 89 S.Ct. 394 U.S. ac- the home as the situs protected private emphasized safeguards special tivities and that constitution extends we held Hyem, supra, of the home. In State privacy that evidence should be suppress- under our state constitution into the privacy there was an intrusion unjustified ed where the defendant’s home. if we of this case that were should clear from the facts
It unreasonable, officers as sustain the entry by of ar- warrants instances the service of there would be few officers would not when for traffic-related offenses rest fully are dressed persons the home. Few inside gain entrance door in street when answer for the ready be held inci- the search would Inevitably to a knock. response Court of The Circuit not vice versa. arrest, to the dent to avoid open- has been careful for the Circuit Ninth Appeals *12 arrests, basis of traffic-related searches ing up United States (1961), 262; 291 F.2d as has the Taglevore Amador-Gonzalez v. United States Circuit, (1968), Fifth F.2d 308.
Affirmed. JUSTICE DALY and JUSTICES SHEA
MR. and MOR- RISON concur.
MR. CHIEF JUSTICE HASWELL dissenting: I would refuse to evidence the defen- suppress against dant.
The defendant was arrested under a valid warrant. Entry
into his house was justified as an
incident
that arrest
pre-
vent
or
escape
procuring weapon. The
marijuana
drug
were
paraphernalia
observed
plain view
defendant’s
front room. This evidence
later
was
seized under a valid
search warrant. There was no unreasonable
search and
seizure
violation of defendant’s
privacy.
decision is
majority
directly
contrary to
latest deci-
sion
United States Supreme Court on the subject.
Washington
v. Chrisman
,
U.S.
The Chrisman court summarized facts of that case as follows:
“On evening 21, 1978, of January Officer Daugherty the Washington State University observed police department Overdahl, Carl a student at the University, leave student dormitory carrying gin. bottle of Because half-gallon Washington law possession forbids of alcoholic beverages by persons under 66.44.270, Wash.Rev.Code section Overdahl to be appeared age, the officer him stopped and asked for identification. Overdahl said that his identifica- tion in his was if dormitory room and asked the officer would it. he to retrieve The officer answered while went wait have to under the circumstances he would Over- accompany dahl, to which Overdahl ‘O.K.’ replied 17 feet and room was approximately
“Overdahl’s Respondent the 11th dormitory. located on floor in the when roommate, room Chrisman, Overdahl’s The officer remained in the open Overdahl entered. officer and watching while doorjamb doorway, leaning Chrisman, who He observed Chrisman Overdahl. box in the room’s was in the small process placing sight of an officer. medicine became nervous at cabinet, *13 room, the to after entered “Within 30 45 seconds Overdahl a 8 to seeds a small on desk pipe lying the officer noticed and his ex- standing. training feet where he was From and 10 from the were marihuana and the officer seeds believed perience, He to smoke marihuana. entered the was used pipe type seeds, that confirming and examined the the room pipe smelled marihuana and the observing pipe the seeds were of marihuana. of then-
“The
and Chrisman
officer informed Overdahl
Arizona,
Miranda
426
S.Ct.
[86
384 U.S.
rights under
(1966);
that he understood
acknowledged
16 L.Ed.2d
each
694]
to
them. Of-
willing
his
that he was
waive
rights and indicated
any
whether
the
had
ficer
then asked
students
Daugherty
handed Daugherty
other
the room. The
drugs
respondent
three
earlier, which contained
the box he had been carrying
in cash. At
small
filled with marihuana
plastic bags
$112
radio
of-
Officer
called
for
second
that point,
Daugherty
were told
search
ficer;
arrival,
two students
to
The officers
necessary.
explained
room would
in-
right
an absolute
and Chrisman that
had
they
Overdahl
warrant,
they
a search
but that
sist
the officer first obtain
ex-
Following this
the search.
could
consent
voluntarily
detail,
the two
in considerable
which
given
was
planation,
an-
before
minutes
several
whispers
students conferred
forms con-
consent;
also
written
signed
their
nouncing
more
room. The search yielded
of the
to the search
senting
(LSD),
acid diethylamide
of lysergic
marihuana
a quantity
Chrisman,
both controlled substances.”
102 S.Ct. at
supra,
815,
Chrisman LSD charged was with and more possession than 40 felonies grams marijuana, Washington both law. The facing Supreme appeal Court on question whether the evidence found officer should be suppress- as ed defendant’s Fourth violating rights. Amendment The the issue language: resolved with this Supreme hold, therefore, “We that it is not ‘unreasonable’ under the Fourth Amendment for a officer, as a matter routine, to monitor the movements of arrested as his an person, judg ment The dictates, following arrest. officer’s need to en sure his safety own well as integrity of arrest —is —as compelling. Such surveillance is not an invasion impermissible personal liberty who privacy individual has Chrisman, been arrested.” 817, 70 supra, at L.Ed.2d at 785. Court further found that Supreme since Overdahl had
been arrest, under lawful placed officer was authorized to his him room obtain accompany identification and that the officer . . “. had to remain Overdahl’s literally times; nothing elbow at all in the Fourth Amendment contrary.” Chrisman, S.Ct. at supra, L.Ed.2d at 785. The court further found that the officer’s actions were valid as an incident to a lawful arrest. facts of are even instant case more compelling. *14 Chrisman,
Here, unlike the had a arrest officers valid war- rant and a valid search “as right warrant. had the a mat- They ter of routine, [Carlson], monitor the movements of as dictates, the because of judgment following [their] arrest” their ensure their safety need to own and the integrity Chrisman, arrest. supra. Consent into defendant’s entry house was unnecessary under Chrisman.
The an majority’s distinguish between arrest attempt warrant for a misdemeanor a is An ar- felony and misplaced. rest warrant no less an the underly- is arrest warrant because Jetty State v. crime is classified as ing (1978), a misdemeanor. 176 Mont. 579 in- 519, 1228, majority, P.2d relied upon an arrest following in a city jail a full custodial search
volved ticket. parking at a.m. for failure overdue pay $1.00 3:00 facts. Any implication on the It is clearly distinguishable a misdemeanor for a stands an arrest warrant therein that is unwarranted. an arrest for felony footing different than 94 S.Ct. (1973), U.S. United States Robinson inter- decisions 427. United States Supreme L.Ed.2d in the of provisions and meaning application preting under controlling are Constitution United States take precedence Clause of the Constitution Supremacy Ill, Art. section Court, this over such any pronouncement 2, U.S.Const. no search here within prohibition
There was the ma searches under authorities cited unreasonable search enter house to The officers didn’t defendant’s jority. but observ conduct a search simply didn’t anything. They could have the officers Although ed what was view. plain view marijuana drug paraphernalia plain seized 443, 91 v. New U.S. Coolidge Hampshire that time Instead 564], nothing. they seized 2022, 29 L.Ed.2d warrant and seized for and received valid search applied evidence thereunder. evidence justify
The further majority suppression in the Montana right privacy provision Constitution: is of individual essen- right privacy
“Right privacy. not be infringed of a free shall society tial to the well being II, state interest.” Art. showing compelling without Mont.Const. 10,1972 section held:
We have previously of individual guarantee privacy “The constitutional must construed and absolute. It applied interpreted, and not in isolation. guarantees of other constitutional light must privacy yield compelling of individual where the state interest exists compelling state interest. Such its criminal laws for the benefit and protection state enforces ex rel. citizens.” of other fundamental its rights *15 District Zander v. Mont., 656, 660, 591 P.2d 489, 494. St.Rep. state lies in interest here the enforcement compelling
its as laws, misdemeanors well as felonies. More importantly, it lies in for its law enforcement officers providing protection of arrests. The protecting integrity privacy never intended shield criminal activity. provide
The same considerations underlie the right of privacy States fact United Constitution. The that the Helena of- ficers obtained access to defendant’s for a house reason totally unrelated to a search for drugs does not affect the validity Chrisman subsequent drug prosecution. court stated it this way:
“This is a classic instance of incriminating evidence found in plain view when a officer, for unrelated but entirely legitimate reasons, obtains lawful access to an individual’s area of The Fourth privacy. Amendment does prohibit seizure of evidence of criminal conduct found in these cir- Chrisman, at, cumstances.” supra, U.S.
L.Ed.2d at 786-87.
Likewise it doesn’t prohibit conduct the Helena officers in this case. I
Accordingly, would permit use the evidence in the criminal proceedings defendant.
MR. JUSTICE HARRISON and JUSTICE WEBER con- cur.