State v. Hardaway

STATE OF MONTANA, Plaintif/Respondent, JASON HARDAWAY, Defendant/Appellant. No. 99-626. April Heard 2001. May Submitted 2001.

Decided December MT 252. 307 Mont. 139.

36 P.3d 900. Sands,

For Appellant: Billings (argued). Jack E. Mazurek, Respondent: For Hon. P. Joseph Attorney Montana General, Paulson, John Attorney Assistant Montana General Helena; Paxinos, (argued), County Dennis Attorney, Yellowstone Ira Tronrud, Beverly Eakin and Attorneys, Yellowstone Deputy County Billings. Opinion

JUSTICE COTTER delivered the of the Court. 8,1999, On a jury Court, June in the Thirteenth Judicial District County, Yellowstone found Hardaway (Hardaway) guilty Jason burglary. Hardaway appeals from this verdict. We reverse. Hardaway raises three on appeal: issues

1. Did properly deny Hardaway’s the District Court motion to suppress blood evidence swabbed from his hands without warrant following his arrest?

2. Did in denying Hardaway’s the District Court err motion to dismiss information, the amended and in allowing jury the to convict under an alternative instruction?

3. Did the District Court by denying abuse discretion Hardaway’s motion for a mistrial?

FACTUAL BACKGROUND (Dobitz) anuary 22,1999, On J ¶3 Chris Dobitz was awakened around by 4:30 a.m. squeaking her screen door and noises emanating garage. from her attached She got up from her and went to bed investigate standing these sounds. She found a man about feet two doorway leading inside her kitchen garage. from the attached She doing, “Sorry, asked the man what he replied, wrong and he house.” a step light. She took back and turned man on kitchen through turned and ran back garage garage and out the door. falling Dobitz chased the intruder and saw items She jacket. from his stopped pursuit pick up items, her the fallen turned out to magazines. pornographic police. Dobitz returned home and called the Billings police immediately responded officers her Officer call. area, Helderop began surrounding a search of while Officer Philippi remained with investigated Dobitz scene. Officer Philippi observed that the screens to the basement had windows been broken,

removed, garage a the detached had been window on a forced with a knife and garage open to the attached had been door switches, doorknobs, light on steel rod. He also found blood broken as well as on the screen door glass, garage, and on other items in the handle and front doorknob of house. house, surrounding the area Dobitz’s Officer patrolling While Hardaway

Helderop Hardaway walking across a street. spotted quickly Helderop fit the intruder. Officer description given Dobitz of Hardaway weapons. a search for stopped pat-down and conducted Hardaway a Lotion in his carrying bottle Yohimbe Erection Officer radio Philippi Helderop waistband. Officer had advised window, so breaking garage have cut his hand a the intruder He found what Helderop Hardaway gloves. Officer had remove his Hardaway’s hands. Officer to be fresh blood and cuts on appeared placed Hardaway under arrest. Helderop County processing at the Yellowstone During post-arrest Facility, and the Hardaway’s photographed hands were Detention The blood evidence was sent blood his hands was swabbed. Lab, were Crime where forensic scientists able Montana State Hardaway’s with the blood found swabbed from hands match blood January 27 charged by information on the scene. burglary. 18,1999, Hardaway suppress filed a motion to the blood May On shortly jail his hands at the after his evidence swabbed from The District Court denied permission. a warrant or without (1988), Holzapfel v. Hardaway’s It reasoned that under State motion. defendant’s hands under (viewing 748 P.2d 953 search), swabbing hands light was not ultraviolet alternative, reasoned, that under further in the was not search. It (swabbing P.2d 1218 187 Mont. Ulrich detect activation test defendant’s hands to conduct neutron arrest), law incident residue was lawful search gunpowder Hardaway’s hands justified swabbing officers were enforcement as a search incident arrest. without warrant 26, 1999, information the State moved amend the May On entering burglary by he against Hardaway, alleging committed a theft or a sexual intent to commit “either home with the Dobitz’s information, amended Hardaway a motion to dismiss this crime.” filed apprise him the term “sexual crime” was insufficient alleging that denied his motion against him. The District Court charge of the crime” dismiss, information’s “sexual finding that amended charge regarding the sufficiently Hardaway on notice description put against him. 8,1999. on On jury day A trial was held June 7 and the second

¶9 mistrial, a trial, Hardaway claiming that the Judge moved interrupted testimony jury, audibly accused him of before lying a bench during conference counsel. His motion was denied. instructed Hardaway objected unsuccessfully being the jury also that if burglary it could convict him it found that he entered the Dobitz home “to commit either the offense of theft or the offense of The jury guilty burglary, sexual assault therein.” found thirty years and he was sentenced to at the Montana State Prison. Hardaway now appeals this Court.

ISSUE deny Did the District Court properly Hardaway’s motion suppress blood evidence swabbed from his hands without following warrant his arrest? This ruling Court reviews a district suppression court’s erroneous,

motion to determine findings clearly whether the court’s are correctly and whether the were findings applied as a matter of law. State v. Weaselboy, 274, 6, 296 MT 6,989 Mont. P.2d ¶ ¶ here, When, 6. essentially undisputed, ¶ as the facts are this Court’s State v. review a district court’s plenary. conclusions of law is Devlin, 90, 7, 215, 7, MT P.2d ¶ ¶ ¶ Hardaway argues swabbing blood from his hands permission search, without clearly justified by which must be both probable cause and circumstances. He asserts that no exigent circumstances custody existed because he time Thus, a warrant could have been obtained. he maintains denial of the to suppress motion the blood evidence was error. The State counters that the non-intrusive swabbing blood from surface of following during hands his arrest and processing facility at the detention was not a search within protective scope of the privacy Fourth Amendment and search provisions alternatively argues ofthe Montana Constitution. search, if swabbing this did constitute warrantless procedure justified fully as search incident to a lawful arrest and is therefore exempt requirement. warrant

A. Constitutional Against Protections Unreasonable Searches and Seizures note, is important determining swabbing It before whether so, of Hardaway’s and, hands constituted a search if whether warrant, search was lawful the absence of a that both the federal 144 protection against offer unreasonable

and the Montana constitutions II, 11 Article Section of the Montana searches and seizures. language familiar of the Fourth Amendment Constitution mirrors the to United the States Constitution: in their people

Searches and seizures. The shall be secure searches persons, papers, homes and effects from unreasonable any any place, person No to or seize and seizures. warrant search thing describing place the to be searched or or shall issue without cause, seized, probable or to be or without person thing writing. to supported by oath or affirmation reduced rights including extend all of Montana’s citizens those These to of or with one. charged a criminal act suspected Swabbing Hardaway’s B. Was the Hands a Search? of answer whether question The this Court must is first actually of a search. We start swabbing hands constituted swabbing of his hands proposition with the obvious against This procure evidence to be used him. undertaken to inventory from an search which is best distinguishes swabbing function,” as caretaking opposed as described a “routine administrative activity. v. evidentiary investigatory Opperman to or South Dakota an (1976), 3092, 49 428 U.S. 96 S.Ct. L.Ed.2d 1000. gathering A is use of means of some expectation privacy. infringes upon person’s a reasonable 228, 48, Elison, 323, 48, v. 2000 MT 302 Mont. ¶ ¶

State II, to Article pursuant To determine what constitutes ¶ 48. Constitution, consider two separate 11 of the Montana we Section (1) expectation privacy an actual factors: whether the had (2) reasonable; the nature of society willing recognize as is 41, 48, 950 (1997), Mont. P.2d intrusion. State v. Scheetz 286 the state’s (use which was drug-detecting luggage canine to sniff 726 defendant’s not a search in violation of entrusted an airline was of the two factors established right privacy). Applying first Scheetz, what, if any, reasonable necessary determine Hardaway have. privacy did expectation of Constitution, its recited in II, 11 of the Montana Article Section in their above, people persons shall be “secure entirety guarantees question and seizures.” whether ... from unreasonable searches vacuum; rarely addressed in a search is an action constitutes search in the analyze challenged generally, upon we are called cause, probable or presence lack exigency, context Bassett, MT See, v. 1999 e.g., State sufficiency of a search warrant. (warrantless 327, 982 entry into burned house 109, 294 Mont. P.2d search, an right unlawful violation of owner’s privacy, justified by plain and was not circumstances or exceptions warrant v. Bullock requirement); view State (warrantless entry fenced, by police Mont. 901 P.2d 61 onto posted private property constituted an unlawful search and evidence inadmissible); entry Elison, of a crime derived such ¶ (warrantless requires probable search of automobile the existence of cause well as a generally applicable exception as to the warrant search, arrest, plain such as a view a search incident to circumstances); or exigent Reesman, MT provide 10 P.3d 83 for a search did (application warrant substantial basis for the conclusion that probable cause existed for home). However, search theof we deem it important here to isolate inquiry swabbing Hardaway’s whether the hands constituted a search, requiring scrutiny. constitutional

¶18 The United States Court Supreme has addressed a search (1973), presented situation similar to that here. In Cupp Murphy v. 412 2000, 900, U.S. 93 S.Ct. 36 L.Ed.2d Supreme U.S. Court taking fingernail ruled that the a suspect’s clippings if determine they contained blood of his murdered wife was a search under the defendant, Fourth Amendment of the Constitution. In Cupp, Murphy, voluntarily went to the police questioned station to be about the strangulation being questioned, death his wife. While the police a spot noticed dark fingernails. beneath his When they asked if could closely, look Murphy more put refused and his hands in pocket his and appeared rubbing warrant, be them. or Without his consent a police took scrapings and obtained what was later identified as blood, wife’s nightgown skin tissue and fibers. The U.S. Supreme Court stated that “the of [Murphy’s] fingernails beyond went mere ‘physical constantly ... exposed characteristics the public,’ and type brief, constituted the though upon of‘severe intrusion cherished security’ personal subject that is scrutiny.” to constitutional 412 Cupp, U.S. at 93 S.Ct. 2000. Supreme

¶19 The Court of Indiana likewise faced a similar situation. (Ind. In 1980), McClain v. Indiana 410 N.E.2d McClain was warrant, arrested and charged rape. The obtained a sufficiency McClain, challenged by of which was to allow the performance designed of a emission swab test determine a presence sexually McClain of in the transmitted disease detected young After reviewing Cupp holding, victim. the Indiana Court if fingernail scraping unconstitutionally reasoned that upon person’s interest, say intrudes privacy it would be difficult to body did not exist in fluids which could equal privacy that an interest human sexually detect transmitted disease. “Given fundamental stake, reach the intrusion interests at the conclusion we in magnitude in the is sufficient involved swab emission examination justification.” McClain, 410 N.E.2d at 1301. constitutional require by many relied federal Cupp upon decision continues analyses. and seizure jurisdictions circuits and state its search (Kan. (arrest 2001), Murry prerequisite State v. 21 P.3d 528 is not a probable if circumstances exigent a warrantless cause suspected intoxicated driver sample hospital exist-blood taken at (3rd 2000), justified); Morgan U.S. LEXIS U.S. v. Cir. Dist. (warrantless by police premises justified by probable search of activity illegal occurring cause that circumstances evidence); Proceedings Jury In Re Grand indicating destruction of (D.N.H. 1998), (obtaining Supp. Vickers 38 F. 2d Involving implicate does Fourth Amendment concerns fingerprint evidence not constantly are fingerprints physical as are mere characteristics which (9th 1995), Cir. exposed public); Chapel U.S. v. F.3d (warrantless following testing seizure ofblood evidence for intoxication motorcycle justified upon exigent accident was circumstances based arrest). accompanied by Cupp’s longevity despite being Despite however, it, upon courts that have relied this the numerous authority than previously Cupp only has relied on as for issues other analysis of what constitutes search. Ulrich, Cupp proposition this for the supra, In Court cited be seized without a warrant. destructible evanescent evidence Cupp P.2d Campbell 189 Mont. analyzed determining could be obtained sample whether blood driving in a drunk person suspected from an unconscious involved unconscious, when, police were person accident because the was to Cupp arrest him or her. Neither of these cases looked to unable to taking of evidence from one’s help whether the warrantless define Fourth Amendment. person constitutes a search under the swabbing of blood The District Court found that not conducting of a DNA test did purposes hands for The holding Holzapfel. a search based on this Court’s constitute alia, involved, shining light an ultraviolet on an case Holzapfel inter presence determining purpose hands for the of arrestee’s was Holzapfel At the time powder. of detection absence invisible use of an decided, wrestling had such several courts been whether in the Fourth Amendment light constituted a “search ultraviolet Recognizing at that Holzapfel, Mont. at 748 P.2d sense.” majority” “the numerical of that was other courts concluded such use search, (1973), on v. relying not and U.S. Dionisio U.S. 764, 35 Holzapfel Holzapfel S.Ct. L.Ed.2d Court found that did expectation privacy presence not have reasonable as to the of foreign matter that the hands and ultraviolet test used 111-12, taking Holzapfel, similar to the 230 Mont. at fingerprints. fingerprints 957. The Court further noted that are constantly public and knowingly exposed physical as are other characteristics, such as our voices. The majority explained that provides protection Fourth Amendment no for “a person what public.” knowingly exposes Holzapfel, 111-12, 230 Mont. at P.2d at 957. Today, analysis we adopt Cupp’s what constitutes a search.

Based and upon evolution current trend of search and seizure and Montana, privacy cases in greater below, discussed in detail contrary previous holding to our in Holzapfel, we conclude Hardaway, Murphy like had a reasonable Cupp, expectation of privacy personal security. as to his We further conclude swabbing the warrantless for purpose his hands obtaining subject evidence constituted a search protections the federal and the Montana constitutions. While his hands and the upon blood them were exposed public viewing, it search; viewing that constituted the it the swabbing. To the extent Holzapfel opinion, inconsistent with this is expressly brings overruled. This question us the second in our search analysis. C. Was this Search as a Valid Search

Incident Arrest? Lawful 1. Federal Law inventory warrant, While not require searches do to conduct search, investigatory police successfully must obtain a warrant or exception demonstrate that an to the Fourth Amendment warrant exists. Numerous exceptions search warrant requirements developed to, have including, but not limited “hot view/feel,” frisk,” pursuit,” “plain “stop and “exigent circumstances” 46-5-102, and “search incident to arrest” under MCA. It is this latter § exception upon which the State relies. right of a officer to conduct search incident a lawful long confusing history

arrest has a in our law. federal case Chimel U.S. 89 S.Ct. 23 L.Ed.2d 685 California (chronicling history the inconsistent of the search incident to a lawful exception to the warrant requirement). Chimel involved warrantless search of the house. Three police defendant’s officers

148 him, night home an arrest warrant for arrived one at Chimel’s no for house. Chimel’s wife allowed the officers but search warrant the for to return home from work. When to wait inside the house Chimel arrived, asked Chimel the officers him under arrest and then placed 753, Chimel, his look his 395 U.S. at permission around home. they Chimel their but searched request, 89 S.Ct. 2034. refused Chimel, 754, 395 at S.Ct. 2034. The anyway. entire house U.S. 89 house United States Court held that the search of Chimel’s Supreme Chimel, constitutionally justified not as incident to a lawful arrest. 768, Rather, search, that 395 U.S. at 89 S.Ct. 2034. the Court held arrest, limited to to be incident to lawful should have been properly 768, Chimel, U.S. 89 “grab” area the arrestee. 395 at surrounding S.Ct. 2034. United then muddied the “search Supreme The States Court in to the by applying reasoning

incident to arrest” waters Chimel (supra) Cupp, did not a lawful arrest. Cupp case involve above, fingernail police scrapings Murphy discussed took while his voluntarily police questions at the station to answer about present formally approximately He until one wife’s death. arrested Nevertheless, month 412 at S.Ct. 2000. Cupp, later. U.S. held Supreme United States Court that: circumstances, justified the Chimel, in The rationale these necessary to very in limited search subjecting him preserve highly they found under evanescent fingernails. 412 U.S. 2000.

Cupp, at S.Ct. incident a lawful The confusion over what constitutes a search session, Supreme in next the United States arrest increased when (1973), 414 U.S. case of United States v. Robinson Court decided the traffic 94 S.Ct. 38 L.Ed.2d 427. Robinson was arrested for a arresting person The officer conducted a search ofRobinson’s violation. crumpled cigarette package at the Robinson’s scene discovered gelatin officer pocket. cigarette package, Inside the discovered was, analysis which he and later capsules powder suspected of white be, Robinson, The U.S. at 94 S.Ct. 494. proved heroin. held this was a valid search United States Court valid justification no further than a required incident to arrest which Robinson, 414 U.S. at 94 S.Ct. arrest. analysis, explained the search In its the Robinson Court has warrant to an exception

incident propositions: distinct historically been divided into two made first is that a search The arrestee of the lawful arrest. second is that a search virtue The may be made the area within the control of the arrestee. Robinson, 224, [94 (emphasis original). 467] U.S. S.Ct. explained historically two had been propositions these differently Robinson, 224, treated quite [94 the case law. 414 atU.S. law, Chimel, 467]. S.Ct. including Most of federal case has focused on to could what extent an officer search the area around an arrestee. The in explained Court Robinson frequently that while Court had permissible beyond addressed the area of an person arrestee which arrest, could be searched incident to a lawful no doubt had been expressed unqualified authority arresting as to the anof officer to person Robinson, 225, search the of the arrestee. 414 U.S. [94 at S.Ct. 467]. The Court then firmly went on to hold that exception this requires justification no further than lawful arrest: authority to search the person incident to a lawful custodial

arrest, upon while based the need to disarm and to discover evidence, does not on depend what court later decide was probability in a particular arrest situation weapons upon evidence would fact found person suspect. of the A suspect custodial arrest of a probable based on is a cause reasonable intrusion under the Fourth Amendment. That being lawful, a intrusion requires incident to the arrest no justification. additional It is the fact of the lawful arrest which authority search, establishes the to hold that in we the case of a lawful custodial arrest a only full of the is not exception the warrant of the Fourth Amendment, but is also a “reasonable” search under Amendment.

Robinson, 235, 414 94 U.S. S.Ct. Robinson been consistently subsequent has followed in United See, Supreme (1998),

States e.g.,Knowles decisions. v. 525 Iowa (where 113, 484, U.S. 119 142 S.Ct. L.Ed.2d 492 the Court distinguished a vehicle search incident to the issuance of a traffic arrest); citation from a the person search of incident to a lawful (1979), 31, 2627, v. Michigan DeFillippo 443 S.Ct. 61 U.S. 99 L.Ed.2d (holding 343 though that a search was incident to a even lawful arrest the ordinance upon premised the arrest was was later held to be unconstitutional); (1974), 800, United States v. Edwards 415 U.S. 1234, S.Ct. 39 L.Ed.2d 771 that a took (holding place search that arrest); hours after arrest was still a v. search incident Gustafson (limitations (1973), 488, 38 Florida 414 U.S. 94 S.Ct. L.Ed.2d 456 (1968), by the holding Terry occasioned Court’s v. Ohio 392 U.S S.Ct. are to be carried over to searches L.Ed.2d arrests). made incident lawful custodial little the search at issue here would constitute There is doubt that law, arrest under federal permissible search incident to lawful as rule, bright-line requiring justification no further than Robinson exception a lawful for the search incident to a lawful arrest federal Amendment apply, still controls Fourth law.

2. Montana Law decide, however, We now whether search was valid as must this this, lawful Montana law. To do we a search incident to a arrest under Constitution, applicable will look to the Montana Montana statutes law, and, as in the not feel past, relevant Montana case will free courts. States are compelled lock-step” to “march federal greater protections on state constitutional grant citizens based provisions than the United States Court divines (1977), 512,515, Sawyer 174 Mont. United States Constitution. State (overruled grounds by v. Long 571 P.2d other 153). long guarantee 216 Mont. As as we Constitution, rights by the United we are minimum established States to of United compelled lock-step pronouncements march if call for provisions States Court our own constitutional by rights protection guaranteed more individual than that the United 476, (1985), 472, 692 States Constitution. State v. Sierra (overruled 1273, 1276 v. Pastos part grounds P.2d in other 199). (1994), 43, addition, held that 269 Mont. 887 P.2d In we have unique language greater constitutional affords citizens a Montana’s therefore, than Fourth protection to and broader right privacy, of, from, private searches or seizures involving Amendment cases 516, Sawyer, at P.2d at 1133. property. 174 Mont. analyzing questions specifically When search and seizure

¶32 right privacy, this must consider Sections 10 implicate the of State v. Hubbel and of Article II of Montana Constitution. (1997), 200, 207, P.2d 975. Because Montana’s 286 Mont. of the protections separately exist and those apply constitutional analysis constitution, necessary perform independent it is to federal of the Montana privacy provisions and search and seizure Bullock, Elison, 272 Mont. at 901 P.2d (citing Constitution. ¶ 75). II, above, citizens from protects recited Article Section ¶33 requires and and that search warrants unreasonable searches seizures such a warrant has been only probable cause for be issued after information. established, provides specific and that warrant 10, however, II, Article Section does not have federal counterpart grants specific right constitutional Montana citizens a privacy. This constitutional unique language assures citizens greater right privacy protections broader than does federal II, provides: constitution. Article 10 of Section Montana’s Constitution Right privacy. of individual is essential right privacy society well-being of a free and shall not infringed be without showing of a compelling state interest. This held right “[T]he Court has is the cornerstone privacy protections against unreasonable searches seizures.” State v. Solis (1984), 214 Mont. 693 P.2d 522. light of the right privacy constitutional to which Montanans entitled, range

are have held we warrantless searches may lawfully be under is conducted the Montana Constitution corresponding than the range narrower of searches that be lawfully pursuant Elison, conducted to the federal Fourth Amendment. 46. ¶ per Warrantless searches are se unreasonable under Montana (1995), 510, 512, 1206,1208.

law. State v. Graham 271 Mont. evidence, A however, may permissible warrantless seizure of if it falls carefully under one the few exceptions drawn to the warrant requirement recognized unique under Montana’s constitutional language. 245, 252, 940 436, 440. State v. Dolan 283 Mont. P.2d recognized One of the exceptions Montana is a search incident to a Elison, lawful arrest. ¶ Here, lawfully it is uncontroverted that arrested. however,

The question, the search to a whether incident lawful exception to the warrant in Montana requires more just showing than of a lawful arrest. Hardaway argues any justified, that for warrantless search to be

including arrest, warrantless incident to lawful there must be a showing circumstances which did not in his exist search, all, argues situation. The State that the if was a search at justified as a search preserve incident a lawful arrest “destructible blood evidence” and as such was authorized 46-5- § 102(4), argues MCA. It further that a position supported such is both federal and Montana case law. The State maintains that Ulrich, (Sheehy, J., dissenting), Mont. 609 P.2d at 1220 Robinson, bright-line this Court the federal rule laid out in adopted because, urges to conclude both Ulrich and us that under Robinson, a part hands swabbed as search were arrest, analysis Having incident to a lawful we should end our there. occurred, already analyze we now State’s determined a search legislative judicial arguments. Legislature specifically a statute which Montana has enacted allowing underlying purposes for a warrantless

lists incident to a lawful arrest: 46-5-102,

§ a Scope MCA search incident arrest. When effected, may peace reasonably lawful a officer arrest is such immediate person person’s arrested and the area within for presence of: purposes

(1) attack; protecting the officer from (2) person escaping; preventing (3) seizing crime; discovering and the fruits or (4) instruments, articles, or discovering seizing any persons, things may been used in the of or which have commission may evidence of the offense. constitute demonstrate, allowing As the cases discussed below MCA, 46-5-102, have, we for several warrantless searches under § years, consistently scope held that the of a warrantless search incident underlying purpose must commensurate with its be have, using any weapons he or she preventing an arrestee from her destroying any incriminating evidence in or escaping, or this as to allow searches where possession. applied We have statute so them, unjustified or precluding circumstances call for while exigent expansive “[E]xigent once an arrest has been made. searches are circumstances that would cause a reasonable circumstances those necessary prevent physical action was prompt believe of relevant police harm to officers or other the destruction persons, evidence, consequence some other escape suspect, Elison, frustrating law enforcement efforts.” improperly legitimate ¶ Wakeford, 16, 24, MT (citing ¶ ¶ 24.) (1) (3) MCA, 46-5-102, through of § Subsections ¶ where immediate action examples are circumstances obvious obtaining a time-consuming process of required, precluding (4), however, justify so could be read as warrant. Subsection exigent circumstances do not exist. warrantless search even when Graham, See, supra. Graham was example, State v. discovering stopped by Upon in a car officer. passenger license, the driver was arrested. The officer the driver had a suspended and, her against that Graham had warrants shortly learned thereafter as well. She officer, Graham was arrested upon arrival of second car, which was to with the purse that her remain requested items “her children would as contained neighbor, retrieved officer, however, police need.” The the station and a purse took charged narcotics. Graham was with warrantless revealed at511-12, possession dangerous Graham, drugs. criminal 271Mont. at P.2d 1207. The district court denied Graham’s motion suppress purse, concluding the evidence seized from her that the immediately warrantless search “of an item of personal property [Graham]” associated with fell within the search incident to a lawful exception. disagreed, arrest This Court holding the warrantless in purse police search of Graham’s the station after the arrest could any 46-5-102, not serve of the four set in purposes out MCA-it could § officer; protect arresting the it prevent could not the defendant escaping; it could not in discovering result fruits the crimes warrants, underlying city the and it could not have resulted in the discovery of anything have been used the commission of Therefore, the city offenses which resulted in the warrants. we concluded the any search was unlawful and as a gathered evidence it Graham, result of should suppressed. have been 271 Mont. 512- at 13, 898 P.2d at 1208. further, Compare State v. Hammer 233 Mont.

P.2d in which the victim police report that, called visiting while trailer, Hammer’s Hammer had him a large stabbed kitchen knife and at Hammer, shot him with a rifle. 233 Mont. at 759 P.2d at home, 981. When officers arrived at Hammer’s mobile neither responded Hammer nor wife repeated, hour-long to their requests enter, fearing situation, a hostage they forcibly the entered existed, trailer. While hostage they no situation when attempted Hammer, he wife resisted. Hammer’s also interfered with his arrest, arrest. the During commotion associated with the officers bloody rifle, noticed and seized kitchen knife and a both within close proximity of gathered Hammer. The officers also at evidence the scene rifle, in addition to the knife including fragments, bullet evidence door, of a bullet hole spots unspent cartridges, blood all supporting description the victim’s of his altercation with Hammer. charged assault, Hammer was felony with two counts of and at trial sought to suppress claiming use of the evidence there an unlawful Hammer, warrantless search. at at 233 Mont. P.2d District Court held that it justifiable was a warrantless search incident affirmed, to a lawful This determining arrest. warrantless search of trailer purposes Hammer’s served two set forth 46-5-102(1), MCA, in the applicable protected statute: under § arresting by allowing officers from or possible injury death easily rifle seizure of accessible knife and used to assault another 46-5-102(4), MCA, it night; preserved and under § against of the earlier assaults destruction. We noted that Mrs. destroyed any have Hammer was not arrested and could evidence not Hammer, 109-10, by police. 233 Mont. at preserved seized P.2d 984-85. Hammer, justified search was under 46-5- § warrantless

101(1), MCA, Moreover, noted, as we protect arresting officers. uncooperative potential destruction valuable evidence necessary upon departure police, provided Mrs. Hammer 46-5-102(4), MCA. justify circumstances to the search under § Thus, in not. exigency, we while in Graham we did In Hammer found cases, absence, presence respectively, and dictated the both opinion. outcome of our Graham, repeatedly required Since this Court has Hammer and exigent sanctioning a

the existence of some circumstances before warrantless search. Elison, In police stopping officers searched Elison’s truck after search, driving drugs.

him on of under the influence of suspicion yielded drugs, to his permission, prior which occurred without Elison’s arrest, warrant, and Elison had removed from the without after been vehicle, Elison, no 9-10. The posing therefore threat officers. ¶¶ upheld finding the warrantless several District Court warrant, acceptable exigent justify circumstances to search without a i.e., drugs, the belief the vehicle contained the officer’s fact warrant, a.m. and late to and the risk that an it was 12:05 too obtain Elison, Court, This Elison confederate could move the vehicle. 36. ¶ II of analyzing case Sections 10 and 11 of Article the under both Court, Constitution, holding reversed the District that the Montana “exigent” upon by relied the officer and district court circumstances a warrant. justify obtaining were insufficient to a search without first exigent of the existence of heavy showing “The State bears burden by demonstrating meet only circumstances and can that burden Elison, conclude that and articulable facts.” 56. ‘We specific ¶ demonstrating facts [such] did not bear its ... burden of State without first indicating necessity searching Elison’s vehicle Elison, Carney obtaining (Compare v. ¶ a warrant.” 58. California 406, 386, 105 2066, 85 S.Ct. L.Ed.2d U.S. 471 U.S. exception stated that one a warrant Supreme Court on the which the Court created based exception,” the “automobile a reduced and the there was mobility of the vehicle belief comparison in an automobile. As a between expectation privacy reveals, right applied Carney privacy, the Montana when Elison and cases, may departure in this Court’s and seizure well result to search rulings.) Court from U.S. exigent requiring showing Other Montana cases Dolan, justify include 283 Mont.

circumstances to a warrantless search 245, 940 blood from defendant without warrant (drawing P.2d 436 (warrantless seizure); Wakeford, entry unlawful and 25¶ justified exigent motel under into defendant’s room exception Keating, to warrant requirement); circumstances MT 288 Mont. ¶ ¶ ¶ (warrantless entry shop justified exigent into under the pawn requirement); Bassett, exception circumstances to the warrant ¶ (defendant expectation privacy retained in his bedroom reasonable firefighters after his marijuana closet entered home observed view, warrant, plants plain requiring to obtain a absent circumstances). Having always established that this has required almost exigent circumstances to exist before a warrantless search will be we upheld, exception now address the case which is noted to that rule: Ulrich. Ulrich, In adopted this Court applied Robinson test.

Ulrich, following arrest, 'the police ran cotton over the swabs palms, hands, fingers, top Ulrich’s in order to perform neutron activation test. The were attempting officers to determine whether there was gunpowder residue his hands. The were swabs then in a placed special kit and mailed to a scientific laboratory for Ulrich, 349,609 examination. 187 Mont. at P.2d at We concluded permissible administration of the test was within the scope of a search to a incident lawful arrest under the Fourth Amendment. Ulrich, 352, 187 Mont. at P.2d at 1221. 609 presented distinguishable facts in Ulrich are from those presented Ulrich and seizing preserving foreign here. involved nature, in particles capable evanescent and of were therefore immediately taken, Hardaways destruction unless a sample while of blood at issue here was of until warrant capable preservation could distinction, however, contrived, be obtained. Such would be because the Court in made it clear no of imminent finding Ulrich Ulrich, 354, required. destruction was 187 Mont. at P.2d at 1222. 609 Accordingly, attempting distinguish we will not walk the fine line of Instead, analyze and Ulrich on their facts. we Ulrich against backdrop establishing right of the Montana our cases privacy, jurisprudence. and our search and seizure law, a confusing As was noted with federal Montana also has

156 Prior relative to searches incident to lawful arrest. history of case law II, explicit and there was no 1972, Article Section 10 did not exist in the Constitution. The search seizure right privacy Montana however, in II, 11, has existed its current in Article Section provision adoption since the form, punctuation changes, for minor except Constitution, at time it was taken 1889 original Montana’s For Fourth Amendment to the U.S. Constitution. directly from the Constitution, of the 1972 Montana years adoption after the several II, 11 issues under Article Section raising cases search and seizure See, Larry M. Supreme the lead of the U.S. Court. generally followed A State Reference Snyder, and Fritz The Montana Constitution. Elison Guide, (2001). Similarly, right privacy as the 1972 page 53 also tended to follow U.S. developed, privacy our decisions Court decisions. Id. at 50. however, in inconsistencies body privacy grew, our case law As (1977), Sawyer in example, For State v.

analysis began appear. II, 10 to a search and first Article Section supra, applied this Court greater 10 provided stated that Section explicitly seizure case and cases than did the federal protection such privacy individual (1984), supra, v. Solis We restated this rule State constitution. time, (1985), During others. this same supra, among v. Sierra State and seizure cases however, ruled on numerous other search the Court II, Section 10 whatsoever. See and made no reference to Article (1978), 519, 1228; (1978), Cripps 579 P.2d State v. Jetty v. 176 Mont. (1980), 410, 312; supra, and State P.2d State v. Ulrich 177 Mont. (1983), 417, Subsequently, Kelly 205 Mont. 668 P.2d 1990s, greater no early provided the Court through mid-1980s than in search and seizure cases privacy for individual protection However, Snyder, supra, & at 52. provided. federal law Elison parallel 293, 471, (1990), 242 Mont. 790 P.2d v. Whalen City Billings since rights of privacy increased given protection this Court has cases, and citizens, scope of search and seizure limiting Montana II, (1995), Article applied the Court has supra, State v. Bullock since support a mechanism to 10, “privacy as emphasizing Section Snyder, supra, & and seizure cases.” Elison interpretation of search consistently analyzed ensuing years, we 54 and 52. issues under both Sections involving significant privacy seizure cases Siegal See State v. II the Montana Constitution. 10 and 11 of Article (overruled in on other 250, part P.2d 176 Mont. 19, MT 291 Mont. Kuneff, ¶ grounds by ¶ State v. Justice, State, MT 19); Dept. Hulse v. 970 P.2d ¶ 75; Elison, supra. State v.

157 predated Ulrich in Notably, significantly our decision in 1980 ¶52 readily consistently post-1990 cases which we have more and applied right privacy the constitutional to search and seizures cases. addition, requires In another decided in the 1980's also case City v. Lamping examination and distinction: Helena 719 P.2d 1245. Lamping, supra, authority. Helena cited Robinson as Lamping, during post-arrest county jail, inventory at the an processing performed yielded discovery search was which the shirt drugs result, pocket of the arrestee. As a with charged drug arrestee possession original in addition to his Mont. at charges. Lamping, 371, 719 pocket P.2d at 1246. The warrantless search of Damping’s justified inventory objects as an search of “all Lamping and immediately distinguished objects associated him” from [as immediate within his but not his person]. control As discussed above, an inventory administrative search an differs from Ulrich evidentiary purpose search in that preserve its is not discover and evidence, rather, police but is to and protect prisoners other potential danger protect by creating and the arrestee accounting personal 372-73, Lamping, items. 221 Mont. at at 1247. Thus, Lamping Robinson, while cites it does not stand for the Robinson,

proposition underlying that a of a person is always is justified, who under arrest even in the absence of exigent circumstances. The Ulrich Court exclusively relied on the U.S. Constitution decision;

federal case to reach law it did not or take address into account right above, Montana’s privacy. constitutional As mentioned type at passes warrantless issue here federal Fourth However, Amendment muster. we must conclude it does survive scrutiny. Montana constitutional law, analyze against When we Ulrich more our recent case See,

apparent anomaly. Elison, that the Ulrich decision is an e.g., 54¶ there (holding exception is no automobile the warrant Mont, Constitution); under the Montana Siegal, (use 257, 934 P.2d at 180 of thermal in context of criminal imaging investigation Constitution); constitutes a search under Montana’s Bullock, 272 Mont. at P.2d at (rejecting the doctrine that legitimate expectation an individual does not have a in an privacy field). open upon prevailing Based our trend jurisprudence consistent citizens,

toward our we protecting privacy interests of therefore to a search incident lawful scope that the of a warrantless hold underlying 46-5-102, MCA, with the under must be commensurate § he or she using any weapons an arrestee from purposes preventing in his or have, destroying any incriminating or escaping, (1) Additionally, we find that while Subsections possession. her (3) 46-5-102, MCA, inherently anticipate exigent through of § imminent circumstances, or police protection, escape, such as evidence, incident to the extent a warrantless search destruction of 46-5-102(4), MCA, specific performed is under § lawful justify required circumstances are also exigent articulable is inconsistent with such a search. To the extent Ulrich render lawful opinion, expressly this it is overruled. us, already in we have Turning to the facts the case before

¶58 bloody hands constituted swabbing Hardaway’s concluded that in the search was not conducted a search. We now conclude incident a warrantless search permitting accordance with the rationale Hardaway to prevent arrest in Montana. It was not done to a lawful not to discover escaping. purpose from Its using weapon or crime,” preserve nor it conducted to or seize “the fruits of the record, knew that From the it is clear the evanescent evidence. blood, Hardaway’s analysis in for they the blood and sent swabbed away unless taken of a victim that could be washed and not the blood there was evidence that goal simply preserve Had the been once. hands, by the accomplished photographs that was Hardaway*s blood on alternative, officers in In the custody. of his hands while taken him under surveillance Hardaway’s kept hands and bagged could have obtaining until a valid search warrant. facts, exigent no circumstances simply there were Under these search, conducted was not and the search

requiring a warrantless 46-5-102, underlying safeguards of the necessary guarantee any § state independent on adequate therefore decide this case MCA. We Hardaway’s hands was not a valid that the search of grounds and hold under Montana law and to a lawful arrest under search incident 1032, 103 463 U.S. Michigan Long Constitution. Montana’s . 1201 S.Ct. 77 L.Ed.2d the dissent maintains argument, In a circular somewhat the warrantless seizure justified existed which circumstances for this offered Hardaway’s justification hands.

of the blood on destruction prevent needed to action was prompt conclusion is conclusion, However, reaching this evidence. of the evanescent blood entire critical to this underlying circumstances ignores the the dissent under house. He was custody in the station Hardaway was analysis: present destroying He no means of police. the full control of the had evidence, Hardaway evaporate was it on its own. going blood nor swab, wait in until a warrant could either consent to the discomfort way, These going was obtained. Either the evidence was nowhere. claimed nullify completely exigency upon circumstances analysis. dissent relies its entire presence high “The of a search We have stated: warrant serves [Requiring is]

function. a search warrant not done shield criminals. objective might ... It so that an invade weigh is done mind need to McLees, right privacy [our to] in order to State v. enforce law.” 6, 26, 15, 26, MT P.2d ¶ ¶ ¶ District foregoing For the reasons the reversed this issue.

ISSUE denying Did the District Court err in motion information, to dismiss the amended and in allowing jury if to convict that he found intended to commit either a theft or a sexual crime? The or of a grant

¶64 denial motion to dismiss in a criminal case ais question Diesen, of law which is reviewed de novo on State appeal. 1, 11, MT ¶ 992 P.2d 11. Our ¶ ¶ standard review plenary, is and this Court determines whether Diesen, district court’s conclusion is correct. ¶ Hardaway crime,” first that term argues the “sexual one of internal burglary the offenses of in the charged amended information, sufficiently is not legal meaning. definite He further argues the jury that were in the improperly given instructions alternative, jury allowing though the to convict even some members theft, believed he intended while he others believed intended sexual Therefore, Hardaway crime. claims it was error for the District Court deny information, deny to motion to his dismiss the amended to his verdict, motion jury for directed and to instruct the as it did. The that responds gave Hardaway State the amended information sufficient notice of charge against the him. The asserts Hardaway had full of the the supporting burglary charge, notice facts alternative, and alleged, the amended information in the properly Hardaway committing had the either a theft or purpose intention a sexual crime when he broke the victim’s home. The State also into fully theory claims supported prosecutor’s intent, on the jury properly instructed matter. charges An information if it an offense in properly is sufficient charged. language defining statute offense State v. (use 214, 223, 269 Mont. 887 P.2d 1201-02 of the

Steffes terms “deviate sexual relations” and “sexual contact” in the were provided information sufficient notice because both terms defined Code). The to if an is applied standard determine information sufficient, understanding is whether a of common would know person at charged. Steffes, what was 269 Mont. 1202. The is purpose reasonably apprise of an information underlying him that charges against may prepare accused of the so he defense. Steffes, 269 Mont. at 887 P.2d at 1202. Hardaway burglary. person “A commits the charged if burglary he enters or remains in an knowingly unlawfully

offense of commit with the an offense occupied purpose structure therein.” 45-6-204, alleged: MCA. Section The amended information (d.o.b. defendant, HARDAWAY, 08-17-71),

That the JASON Drive, Montana, Poly Billings, knowingly entered or unlawfully occupied purpose remained in an structure with the therein, authority, an offense to wit: defendant commit without Chris residence broke into Dobitz’s and defendant intended victim; commit either a or a sexual crime at or against theft Montana; near_, Billings, County, Yellowstone all 45-6-204, is a violation of Section Montana Code of which statute, peace of the State against dignity Annotated of Montana. conclude that this amended information failed adequately We nature or of the offense he

put Hardaway on notice of the character numerous intending Although was accused of to commit. discrete are in nature are defined in the Montana Code offenses which sexual Annotated, is purported offense of “sexual crime” not. provide that would indicate any allegations information fails factual being potential which of the offenses of a sexual nature is knowledge intending A of common has no accused of commit. offenses, any, being if way determining potential which of these charged. that the information and agree Hardaway We also with amended

¶70 jury of the jury the instruction would allow some members challenged theft, might while others convict him of attempting to convict him of “In all provides: a sexual crime. The Montana Constitution attempting II, 26, actions, Art. Sec. the verdict shall be unanimous.” criminal pled all in the say This is that informations Mont.Const. not v. Osborne 195 alternative are unconstitutional. McKenzie

161 (overruled 368, 26, 44, 640 in part grounds by Mont. P.2d 379 other 735) Kirk, 184, 306 215, 32 (rejecting State v. 2001 MT Mont. P.3d. Van However, an charges). charged if accused is challenge alternative alternative, the it jury clearly in the must instructed is required reach a verdict to each individual unanimous as 68, Weldy (1995), 1, P.2d Mont. alternative. (right to a unanimous verdict was violated because it was not clear jury required that the to reach unanimous verdict each under alternative). Unanimity requires subsection the than a pled more conclusory agreement charged the accused is of guilty some offense; jury in agreement must be as to the factual principal Weaver, MT underlying specified elements offense. State v. (failure of the district ¶ ¶ ¶ court to instruct that it to reach verdict jury had a unanimous as specific to at least one underlying act sexual assault for each count error). Hardaway’s jury properly was not instructed that had to Hardaway reach a unanimous decision on whether intended to commit theft, or specified whether he intended to commit a of a crime sexual instruction, nature. such Hardaway right Absent was denied his Therefore, a unanimous verdict. in addition error in finding manner in which charged, we also hold that District by instructing Court erred as properly jury unanimity in its verdict. reasons, foregoing reversed, For the judgment of conviction is proceedings this matter is remanded for further consistent with Opinion. Two, this Since we reverse under Issues One and need not we address the final issue raised. NELSON,

JUSTICES and LEAPHART REGNIER concur. JUSTICE specially TRIEWEILER concurs. However, I majority concur with the I opinion. result do not

agree opinion. with all that is stated in that I with majority’s swabbing concur conclusion that the of blood subject found on hands constituted protections constitutional and that the warrantless search under the Montana prohibited circumstances this case was However, disagree Constitution. I majority’s conclusion prohibited the same search was not the Federal Constitution as interpreted by I the United States Court. believe that closer analysis subject necessary. law on federal case this analysis Any swabbing Hardaway’s blood was a whether properly begins search incident lawful with Chimel v. valid 162 (1969), 752, 2034, S.Ct. 685. 395 U.S. L.Ed.2d California

However, Chimel, Supreme which has never been reversed the Court, greater given by majority. than the In merits consideration Chimel, the issue was whether a search of the defendant’s home justified a warrant on the that it had been ground without did an incident to a valid arrest of the defendant. The Court prior interpreting limiting scope review of the exhaustive decisions Although it that those pursuant of searches to valid arrests. concluded consistent, the that always decisions had been Court observed the to be free from searches and seizures was a right unreasonable that principle catalyst for the American Revolution and exigency requirement imperative of search warrant absent some is in formality. The Court cited its McDonald v. not mere decision (1948), United States 335 U.S. 69 S.Ct. 93 L.Ed. where right to entrust privacy precious “[t]he it stated that was deemed too job is the of crime and the discretion those whose detection Chimel, made clear arrest criminals.” U.S. at 761. its running through prior that a common thread decisions was “the lightly general that a search be is not warrant obtained (an) with, seeking ‘the is to be burden on those dispensed (from for exemption requirement) to show the need it. ...’ United 48, 51, 342 U.S. 72 S.Ct. 96 L.Ed. 59.” States Jeffers Chimel, 395 U.S. at 89 S.Ct. 2034. It on the that warrantless searches are was based rationale limited that the searches parameters their demonstrated need regard incident lawful were In that the Court to a arrest established. stated: analysis

A arrest’ similar underlies the ‘search incident made, extent. is proper and marks its When arrest principle, arresting person it is officer to search the reasonable for the weapons might in any arrested order to remove that latter Otherwise, escape. in resist or effect his seek to use order to arrest safety endangered, and the itself might the officer’s well be addition, for entirely arresting it is reasonable frustrated. any on arrestee’s officer to search for and seize And or destruction. person prevent in order concealment grab weapon reach in might area into which an arrestee order must, course, like evidentiary governed by be rule. or items is can gunA a table in a drawer in front of one who arrested on or as officer as one concealed dangerous arresting ample justification, There clothing person of the arrested. the area therefore, arrestee’s for - construing mean phrase ‘within his immediate control’ might gain possession weapon the area from within which he of a destructible evidence. Chimel, 762-63, U.S. S.Ct. no It basis the Court found there was

justification any room of the than searching defendant’s home other room which arrest occurred. To reinforce the rationale for its decision, explained the Court that:

No consideration relevant suggests any to the Fourth Amendment limitation, point of rational the go once search is allowed to beyond area might the from which the arrested obtain weapons evidentiary or items.

Chimel, added.) 766, 395 at (Underlining U.S. 89 S.Ct. 2034. of

Application sound Fourth to of principles Amendment the facts produces this case a clear result. The beyond search here went far petitioner’s person might the and the area within which he weapon something have obtained either a or that could have been as against used him. There was no constitutional justification, warrant, in the absence of a search the extending for was, beyond scope therefore, search that area. The the search under the ‘unreasonable’ Fourth and Fourteenth Amendments and the petitioner’s conviction cannot stand. added.)

Chimel, 768, at 395 U.S. 89 S.Ct. (Underlining words, In other Supreme very the Court U.S. in Chimel sets forth clear limitations on the a permissible scope of warrantless to incident a valid It held scope arrest. the search is limited by the need for a warrantless search and that the need is to limited weapon detection of a capable evidence which is of concealment or swabbing destruction. The blood found on hand to determine whether it left by matched blood at the perpetrator scene the crime being investigated category came neither within by listed exceptions Court as to the warrant requirement when incident to a lawful arrest. (1973), 291, 2000, Cupp Murphy 412 S.Ct. U.S. 93 36 L.Ed.2d

900, majority, noted to a as did not involve search incident However, Supreme lawful arrest. did do in is Cupp what Court scope reiterate valid searches incident to a arrest as valid Cupp established in Chimel. The Court in stated as follows: long recognizing exception Chimel stands line of cases the warrant when a search is incident to a valid Id., 755-762, arrest. 89 at this at S.Ct. 2035-2039. The basis for 164 made,

exception an arrest is it is reasonable for a when any weapons officer to the arrestee use he expect destroy any incriminating have and to evidence then attempt Id., 762-763,89 possession. in his at S.Ct. at 2039-2040. The court recognized scope search must Chimel warrantless excepts be commensurate with the rationale that the search from requirement. the warrant added.) 2000. (Underlining U.S. 93 S.Ct. (1973), United States v. Robinson U.S. 94 S.Ct. relies, majority Supreme

L.Ed.2d on which the was decided Cupp, a little than after decision in Court more six months principle Notably, reaffirmed the established in Chimel. Robinson did Chimel, Chimel, it not distinguish not reverse did did Robinson, explicitly modify Chimel. In the issue was whether pursuant driving arrest for while a license is revoked is a valid no of the crime weapons limited to search since further evidence The ofAppeals suppressed would be obtained. Court evidence obtained Terry v. Ohio during pursuant frisk of defendant The U.S. S.Ct. L.Ed.2d 889. Terry on the basis that it did not involve an arrest for

distinguished again tracing permissible evolution of probable cause and after arrest, principle to a restated the bases for pursuant searches valid Robinson, permitting the court stated: those searches. justification authority or reason for the search incident quite a lawful arrest as much on the need to disarm the rests him the to suspect custody in order to take into as it does on need (Citations at his for later use trial. preserve evidence on omitted.) traditionally governing The a search incident standards therefore, not, Terry commuted to the stricter to lawful arrest are of the of fruits or further evidence probable standards absence the is made. particular the crime for which arrest 414 U.S. at 94 S.Ct. 467. words, of in point In other the the Court’s decision Robinson to a arrest include a search

that a search incident to lawful destroyed though even preserve evidence which would otherwise be person the not relate to the crime for which the evidence does arriving of that conclusion that the process It was in the at arrested. the by majority relied on the that Supreme Court made the statement only necessary for a establishes the basis mere fact of lawful arrest case, arresting looking the were for evidence search. In this authorities the found at the scene of Hardaway’s type to match with blood blood blood, was found on other than that which crime. and, therefore, hands, I conclude capable was not destruction would holding inapplicable in to the facts in this case. that the Robinson is the the agree language employed by Supreme I would that Court continuing gives in rise to some confusion about the Robinson However, I the established in Chimel. applicability parameters dispelled by conclude the confusion Court’s Supreme that 113, 119 decision in v. Iowa 525 U.S. subsequent Knowles S.Ct. Knowles, 484, 142 stopped L.Ed.2d 492. In the defendant was also being a traffic but than violation was issued citation rather arrested. investigating The officer then conducted foil search of his car and marijuana found and a The moved pot pipe. suppress defendant to supreme long evidence but the state court concluded so as arrest, investigating authority officer had the to make there an need not in fact an justify have been arrest a search pursuant reversed, Robinson. The not because this defendant opposed arrested, was issued a citation as but being because neither exceptions two justified historical to a searches incident lawful arrest were found to exist in case. identifying When those justifications, safety two historical the Court referred officer preserve need to discover and evidence. jurist In an opinion authored the same had who authored (Chief opinion

Robinson Justice Rehnquist), the Court stated: Robinson, supra, In we noted the two historical rationales for (1) “search incident exception: to arrest” the need disarm the (2) suspect in order to take him custody, into need (Citations omitted.) preserve evidence for later use at trial. But neither of these underlying rationales for the search incident exception justify present is sufficient to the search in the case.

Knowles, 116, 119 525 U.S. S.Ct. 484. explained Court Knowles decision as follows: Robinson, we held authority to conduct full field rule,” “bright

search as incident to arrest was a line which was safety based on the concern for officer and destruction or loss evidence, but depend every upon which did not case existence either concern. Here we are asked to extend that “bright safety rule” line to situation where the concern for officer present is not to the same extent and concern for destruction present or loss of evidence is not all. do at We decline to so. 118-19, 525 U.S. at S.Ct. words, Supreme In other the U.S. made clear that the Court has

scope pursuant of searches to valid arrest is limited the need for the necessary protection that a search is are search. The two reasons investigating weapons preservation officer from and case, destroyed. could otherwise be In this neither concern Hardaway already custody had been present. presumably and not weapons Hardaway’s type searched for and evidence of blood could him at date destroyed. Blood have been drawn from a later could Therefore, it is clear from pursuant to a search warrant. not search in this case was authorized Court case law that I disagree majority’s and with the conclusion pursuant to valid arrest contrary. I opinion, agree than as in this and concur with Other stated majority opinion. conclusions set forth in the GRAY, specially concurring. CHIEF JUSTICE join I join entirety opinion I of the on issue two. also Court’s I result, analysis, in the most on issue one. write Court’s and why the search of separately perspective to offer an additional on Hardaway, swabbing of blood from his hands the detention via is a facility, perspective to arrest. This is not lawful search incident readily simple and understandable one. MCA, by peace search 46-5-102, permits Section a reasonable person’s

officer of an arrested and the area within such purposes, “[w]hen immediate for certain lawful presence, in MERRIAM The first definition of the word “when” effected[.]” Collegiate Dictionary (10th 1993), ed. is “at Webster’s statutory Using everyday of the during time that.” definition case, 46-5-102, MCA, I the facts of this applying term “when” and § hands renders the swabbing Hardaway’s conclude the via as one incident arrest. invalid law are as follows. The victim called pertinent facts a.m., 1999, and Officer shortly January after 4:30 enforcement He saw a very shortly the area thereafter. Helderop responded to alleged appeared who too far the scene of the offense person not stopped person, had description provided to meet the he been patted Hardaway. questioned to be He who turned out who was at weapons. requested Philippi, him He Officer down for scene, possible to his location bring crime the victim identify Hardaway. the victim failed to After identification intruder, having him as done recognized she Hardaway as her but said before, Helderop arrested day her Officer some work at residence Detention County him Hardaway to the Yellowstone transported his hands There, clothing was seized and Facility. some of testify directly that Helderop Officer did photographed. were While during time, swabbing of the occurred he did state that blood stayed he at the for one-half hour. It seems facility approximately during approximate likely swabbing period that the occurred time. facts, On these I would conclude that the search was not incident 46-5-102, MCA, during

to under it did not occur “at or arrest because § Rather, the time that” was the search occurred the arrest effected. later, to and transported facility after was the detention apparently Hardaway’s was and hands clothing after seized his Indeed, photographed. acknowledges the State in the Statement of the on portion [Hardaway’s] Facts brief that the “blood hands was added.) process.” during post-arrest (Emphasis swabbed I would agree, plain statute, and hold that the of the meaning applied to case, facts of this does not support position the State’s that this awas search incident arrest. holding, In so I would not implying that a valid search incident effected, precise arrest must occur at the moment the arrest is and

not a moment later. Such an approach legal would render a incident to impossible, a result far from that clearly intended in Legislature enacting 46-5-102, Nor MCA. does the common § sense definition suggest referenced above such a result. The statute is clear, however, that a valid search incident to arrest is to be conducted arrest, at or near the time of the and transport not after of the arrestee and during-as puts post-arrest it-“the process” at the detention facility. reasons,

¶92 For these and in an plain, everyday effort to set forth in language what I believe the sophisticated statute and the Court’s more analysis I require, specially in opinion concur Court’s issue one.

JUSTICE RICE dissenting. respectfully I dissent. police not, ¶94 The Court holds that Hardaway’s could incident arrest, obtain the blood on obtaining his hands without first a search The holding warrant. Court’s requires police, following a suspect’s arrest, “bag” bloody hands, keep him under surveillance while waiting warrant, only seize the blood evidence after the warrant is I holding issued. believe that the Court’s is erroneous. introductory analysis Court’s well founded. I concur the adoption analysis Cupp of the search in and the Murphy, conclusion, pursuant Cupp, Hardaway’s that the hands swabbing constituted a warrantless search. is thus inconsistent Holzapel lighting extent that it found an ultraviolet of the defendant’s hands I not search. further concur that the Montana Constitution greater our than under the provides protections to citizens afforded issue, making this United States Constitution on the existence of exigent appropriate reviewing circumstances consideration when searches, 46-5-102, applying provisions warrantless when § Ulrich, However, Holzapel though I now MCA. believe that flawed analyses, the correct results. their reached exigent It is the Court’s of the circumstances application case is erroneous. The holds that this no circumstances simply requiring “there was warrantless search,” unnecessary the warrantless search was because: finding crime,”

Its discover or “the fruits of the purpose was seize From preserve nor it conducted to evanescent evidence. record, they is clear knew that the blood swabbed and Hardaway’s blood, analysis sent in for and not the blood of a away Had victim could be unless taken at once. washed goal simply preserve been that there was blood on hands, accomplished photographs that was alternative, custody. of In the taken his hands while officers Hardaway’s him bagged kept could have hands under 58] until a valid warrant. obtaining surveillance [¶ First, reasoning respects. The Court’s is flawed in several preserve finds not evanescent that the search was conducted police It that knew on evidence. reasons because the substance blood, not that Hardaway’s urgency hands was his own there was an if the victim’s “that could be would exist the substance had been blood away taken at once.” washed unless point Hardaway’s The here is that the blood on missed subject precisely to loss because regardless of whose it was—was hands — here away be taken at once.” evidence was

it “could washed unless blood, may Hardaway’s it just no less evanescent because have been was, nonetheless, subject it because valuable evidence was Further, police may have made certain immediate loss.1 while significance 1The and value the blood evidence on Court has understated Hardaway’s hands. capable concurrence states blood was Justice Trieweiler’s Hardaway’s on He later reasons this than that which was found his hands.’’ destruction “other grounds for a “evidence of destruction did not establish warrantless because risk Hardaway’s Hardaway’s destroyed.” type it is true that could not While blood majority type could later both the concurrence and testing, blood be confirmed larger opinion identification larger than the evidence. The issue here is overlook the value of type. blood evidentiary Hardaway’s link at the time of his arrest an Blood hands place crime, he was arrested within a few him the time and of the since between blocks and within a few provides A test no such time minutes the crime. later blood blood, assumptions certainty the nature of the there could about not be assumptions about those until a had been tested and sample reason, necessary confirmed. For that for prevent “washing away” of the evidence to seize and acting promptly preserve it. Secondly, the Court reasons that if the police’s goal simply hands,

preserve Hardaway’s evidence that there was blood on that goal accomplished by taken of photographs hands. Leaving aside the point photograph may that a alone be insufficient to blood, establish the existence of holding produces the Court’s conflicted permissible result: that it is subject suspect arrested process warrant, of photographing his hands without a it is but not permissible to conduct a surface simple swabbing of his hands without a I warrant. submit that the same exigent circumstances on which the Court permits photographing process also exist for the swabbing process. Both are procedures unobtrusive which capture suspect’s from the hands which be lost. The Court inexplicably requires a warrant the swabbing process only. (7th Bridges 1974), United States v. Cir. 499 F.2d cert. denied 419 U.S. 95 S.Ct. 42 L.Ed.2d the defendant moved to suppress, on Fourth Amendment grounds, the nonconsensual swabbing of his hands which had occurred at the station house following his arrest to confirm the suspected presence explosives. The Seventh Circuit Court recognized circumstances preserve inherent to upheld search, such evidence and the warrantless comparing it to photographing the defendant:

It is apparent that had the agents not swabbed Bridges’ hands time, the opportunity may not have knocked again, especially if Bridges washed swabbing his hands. ... The nowas more Bridges’ person than fingerprinting offensive photographing him. added). (Ark. Bridges, 499 F.2d at (emphasis also, Ray See v. State 1991), 894, which, 803 S.W.2d relying Bridges, exigent on found circumstances existed to gunpowder sanction a warrantless residue place everything evidentiary Hardaway’s and and nexus. The hand blood is also an link between hands night, particularly glass produced he had touched that the broken Lastly, importantly, blood and which was means of and most Hardaway’s entry. Hardaway’s evidence that the blood found at the scene matched the blood on hands proof Hardaway allows of the facts of the crime to be made direct evidence: that had entry, bloodied, premises cut his hands on became touched items with his bloody hands, produced and that the cuts he sustained a sufficient amount of to leave it blood hands, Hardaway’s around the and on himself. Without the blood from property prosecution required circumstantially. would he some of these facts establish appellant “had washed his police

test conducted at the station because gone.” hands, the chance to conduct the test would have been justify the I circumstances existed to would find that Hardaway’s hands. This Court has warrantless seizure of the blood clearly exigent circumstances as follows: defined that would cause are those circumstances

[Ejxigent circumstances necessary prompt action was person a reasonable believe [or] or other police persons, harm to officers prevent physical relevant evidence .... the destruction of 323, 56, 14 P.3d Elison, MT 302 Mont. ¶ State v. ¶ MT 287 Mont. (citing Wakeford, State v. ¶ 1065) added). (emphasis would believe I submit that a reasonable respectfully necessary to the destruction prevent action was prompt fact, hands. the Court

relevant blood evidence on If was not a necessity. admits this destruction evidence impliedly concern, suggest Court to there would be no need further need for defendant’s hands. There would be no police “bag” the under surveillance “keep [the defendant] police the Court to instruct warrant,” prevent unless it was to obtaining until a valid search in his against the evidence him which lies destroying defendant from very hands. essentially holding that the existence The Court hands does not establish suspect’s crime evidence on

evanescent if the justifying a warrantless seizure exigent circumstances until a warrant conceivably securing had other means of analytical holding speculative This inserts a could be obtained. to arrest that is found nowhere methodology into search incident that, sadly, “bag this respectfully I submit jurisprudence. American any nor legal precedent neither with comports and watch” decision strongly I dissent. the realities of law enforcement. 2, although holding Court’s on Issue I further dissent from the negates issue suppression the conviction on the the Court’s reversal of First, charged Amended Information lengthy discussion. need for a language in the burglary precise the offense of Hardaway with notifying him of the statute, charge, him of the properly apprising (1994), 269 theory. crime State v. theft or sexual prosecution’s Steffes P.2d 1196. it “would However, faults the Information because the Court theft, attempting him of jury to convict some members of the allow crime.” a sexual attempting him of might others convict while attempt of a theft nor attempted neither with charged crime, further, sexual the State required prove was not these required only The State prove offenses. commit

unlawfully entered purpose Ms. Dobitz’ home “with the (1997). 45-6-204(1), offense therein.” Section MCA The State is establishing burdened with also of an underlying elements Here, attempted charged burglar offense that the intended to commit. jury the State offered evidence from which the could infer that crime, purpose was to commit either theft or a sexual assault, which the District Court instructed was the crime of sexual and of gave Amended Information sufficient notice. properly that, District Court then jury instructed the after consideration, consideration, it must return unanimous After verdict. I it did would so. affirm.

Case Details

Case Name: State v. Hardaway

Court Name: Montana Supreme Court

Date Published: Dec 10, 2001

Citation: 36 P.3d 900

Docket Number: 99-626

Court Abbreviation: Mont.