*1 MONTANA, STATE OF Respondent, Plaintiff ISOM, Appellant. MICHAEL HOWARD Defendant No. 81-18. Sept. Submitted 1981. 21, 1982. Decided Jan.
Rehearing Denied March 1982. P.2d *3 appellant. Gallagher argued, defendant and Helena, for Leo Atty. Maynard, Greely, Atty. Gen., Gen., Asst. John Mike Graveley, County Atty., argued, Garrison, Steve Charles Helena, for and respon- County Atty, argued, plaintiff Deputy dent. of the Court. DALY delivered opinion
MR. JUSTICE of with possession was information charged by Defendant sell, as in section with intent drugs provided dangerous His motion to 49-9-103(1), guilty. MCA. He pleaded the First Judicial the District Court by denied suppress trial Clark After a District, County. jury Lewis and dangerous drugs, was found guilty felony possession with intent to sell. On Oc- lesser included offense of possession the defendant was sentenced to five 15, 1980, years tober Defen- Prison, the Montana State with two years suspended. dant his conviction. appeals informant, from an the Lewis and
Based on information County Clark Sheriffs under surveillance Department placed Helena, 1014 Elm Street, residence located at Montana. 11,1980, About on two sheriffs observed deputy noon January as drug man later identified John Stemple, suspected Elm He dealer, leave the Street residence. was carrying which he into a tool box large green garbage bag put back of truck in front of the his residence. pickup parked A went back into the residence. brown Ford station
Stemple A man later identified as the defendant wagon up. got pulled out of the into the residence. wagon Stemple station and went left the in his followed away pickup, then residence drove car. the two in an unmarked deputies to the made evasive According deputies, Stemple several corners lost They maneuvers by turning sharply. officer. The and called for the aid a third sight Stemple within a matter of minutes. third officer stopped Stemple truck could not find The officers searched but Stemple’s box. had the tool green placed garbage bag Stemple retrace Because a recent snowfall the officers were able to The tracks led to an behind alley the tracks of the pickup. *4 which garbage bag station where found a gas they large green since it was not been there placed recently had apparently bag The looked inside the deputies covered with snow. in small bags. found it full of contained marijuana plastic get a for the Elm Street An officer went to search warrant Chrysler parked in front and for a maroon Cordoba residence of the residence which the officers believed had been used to transport A search warrant for both the residence narcotics. by justice peace. The and the car was issued a warrant application except information, the above there was contained being on an informant’s no mention of surveillance based tip Stemple suspected drug and no mention that John was dealer. eight county attorney
At least officers and the executed Elm search warrant. When the officers arrived Street they running residence, noticed that the motor was on the Chrysler. stayed couple A of officers with while others went to search the residence. Defendant answered The door of residence. officers handed him the search war- they only wearing pair rant as entered. Defendant was jeans. blue He he testified that was half-dressed he because getting ready was to take shower. Defendant was ordered to sit on the couch and not to leave the room. only occupant
Defendant was of the residence when the guest He officers entered. was of his uncle who rented the sleeping living residence. He had been on the couch in the belongings living room and had stored his in a room and bedroom. finding marijuana house,
The officers searched the entire drug paraphernalia nearly every residue and room, in- cluding living plastic room, A bathroom and kitchen. small bag marijuana in the bedroom of defendant’s uncle. stay
One officer uniformed was told to with defendant and completed watch him while the others the search. He asked parked defendant if he the car owned front of the residence. response Defendant said he did not own the car. In to further questioning, defendant said did not know who did own the keys car and did not know where the to the car’s trunk were prior questions located. to these Defendant was arrested given warning. and had not been Miranda Upon finding glove the car. com- officers searched partment they glove compart- locked, and the trunk forced the *5 key open they trunk. open, the a to and inside it ment large green gar- officers found several the trunk the Inside ninety eighty approximately bage bags to which contained marijuana. pounds and the After the search of the residence defendant was arrested. hearing, suppression At defendant introduced evidence the marijuana he the car in which the to show that owned found. may by looking primary at the three
This case be resolved presented: issues legali- standing
1. the Whether the defendant has to contest ty overnight an of the search of the residence where he was guest; standing
2. Whether the defendant has to contest the search garbage bags he of his car and the found in its trunk when search; of the car at the time of the and denied 3. Whether the District Court erred in its denial of defen- suppress dant’s from the motion to evidence seized residence the car. and respect standing to
With
defendant’s
to contest the search
adopt
the
the
house,
State would have this
the
Court
perspective
reasoning
and
of the most recent United States
Supreme Court decisions which have overruled the automatic
(1960),
standing rule
257, 80
of Jones v. United States
362U.S.
(1980),
725, 4
See,
S.Ct.
L.Ed.2d 697.
United States v. Salvucci
Rawlings
2547,
619,
U.S.
Kentucky
98, 100
U.S.
S.Ct.
In
heavily upon
Rawlings
f
earlier case o
relied
Salvucci
421, 58 L.Ed.2d
128, 99
Rakas v. Illinois
test of
stated that
the Jones
Rakas,
In
premises”
“legitimately
in its full
cannot be taken
on
beyond
sweep
Rather, said the
the facts of that one case.
right
a Fourth Amendment
true test of whether
Court, the
(1967),389
in Katz v. United States
has been
is found
violated
Supreme
576, in which the
L.Ed.2d
protection
capacity
*6
to claim the
said that the
Court
right
depends
upon property
in the
not
Fourth Amendment
upon
person
place
claims the
the
who
but
whether
invaded
expec
legitimate
protection
the Fourth Amendment has
of
place.
privacy
353,
Katz, 389 U.S. at
in the invaded
tation of
at 430.
143,
at
99 St.Ct.
512; Rakas,
at
U.S.
S.Ct.
Notwithstanding
placed
the
Jones,
on
the limitations
emphasized
again
Salvucci,
that
in
Rakas,
in
and
Court
determining standing.
key
ownership
in
element
is not
prop
standing
out of
not to be based on distinctions
test for
is
defining
scope
erty
interest,
that
we
“In
the
and tort law:
expressed
in later
in
and echoed
adhere to the view
Jones
property
tort law be
in
and
cases that arcane distinctions
ought
guests,
not to
the like
licensees, invitees, and
tween
In St.Rep. State Allen Mont., 612P.2d 199,37 quoted extensively acknowledging this Court from Rakas, distinctions between Rakas, Jones and See, Allen, Katz. P.2d at 201-202. findings
Here, the District Court made two of fact that relate to defendant’s to contest the search of the (1) overnight guest an residence defendant was at the (2) uncle; residence which was his that defen- rented clothing, luggage personal property dant had stored other residence, in limited areas of the none included the of which *7 areas where the was confiscated evidence found. findings, as concluded the District Court above
Based on the overnight guest being an defendant, that “the matter of law only a limited area in items stored with in the residence privacy expectation in the areas no reasonable therein, had standing to ob- has no therefore, found, were the items where ject their admission”. overnight guest should anwas that the defendant
The fact
although
standing,
isit
one
the determination
not control
pro-
discussion,
in the above
noted
As was
factor to consider.
does not de-
and seizures
searches
from unreasonable
tection
right
place,
upon property
pend
the
rather
but
invaded
upon
whether the areas was one in which there was
governmental
expectation
intru-
from
reasonable
of freedom
See, Allen,
Moreover, the order upon presumed appeal, State v. District Court correct clearly sup- the record does not Mont. P.2d port finding the that was not in the confiscated evidence found personal belongings. areas where defendant had stored his testimony hearing suppression at the showed Uncontradicted slept living on while he the that defendant the room couch was belongings guest of and that he in the liv- his uncle stored his Although ing nephew’s at room in his bedroom. evidence and suppression hearing that the showed his uncle’s bedroom was only bag marijuana seized, it the area where small made the that from the was living clear at trial evidence was seized living fireplace, a wall table,
room from the room beside living living room, and from the room closet. occupant the the sole of the house at the time Defendant was Katz, made. Like defendants in Jones and search was the family except exclude his uncle and defendant could all others premises the time had and over the dominion control entered residence. officers summary, that District conclusion In Court’s standing the search of the contest lacked defendant (1) following grounds: premises must be reversed on the overnight guest con fact that the defendant was an should legality of a trol a determination of his to contest (2) that residence; search of the shows confiscated record slept evidence in areas where the defendant was found (3) belongings; supports he where his the record stored occupant finding was the sole defendant domi residence at the time of the search and had control and nion over it to exclusion of others. urges must
The this that the next issue which State standing to contest the be discussed is whether had claims that because defendant search of car. State his Amend- his Fourth denied his waived rights garbage bags trunk. its ment in it and *8 46-5-103(1), deprives argues MCA, that section The State standing the search of his car and to contest the defendant bags garbage in its trunk. Section found the search of 46-5-103(1), provides: MCA, warrant, seizure, whether with or without
“No search and illegal if:- be held as to defendant shall “(1) any right the defendant has disclaimed to or interest in place object instruments, articles, or searched or the or things seized;” argument
The State’s fails for two reasons: interpreted light the Fifth disclaimer statute must be against privilege self-incrimination; and, Amendment necessarily operate disclaimer of a car does not as a disclaimer of the closed containers in the car.
Although it has been held that the owner of a car or a object container will lose his to the search it if to prior search, to the time abandons it United States v. (5th 1974), 1311; Anderson Cir. 500 F.2d United States v. Col (5th 1973), bert Cir. 474 F.2d v. United Staes Miller (1st 1978), Cir. 589 F.2d a mere disclaimer of making incriminating in an effort to avoid an statement response police questioning not should alone be deemed to LaFave, constitute abandonment. See, Seizure, Search position Vol. 3 at 581. Given the that a defendant does not preserve otherwise have to incriminate himself to his Fourth rights, Amendment as in Simmons United States it is difficult to incriminating understand how a refusal to make response admissions police interrogation deprive per can be held to standing. son of Fourth Amendment say To that there is Fifth violation because no Amendment ig- simply the defendant could have chosen to be silent is to principles nore the whole line of set in Miranda its down progeny. Miranda Arizona
1602,
Clearly, apply the Miranda limitations should to person deprive when the uses them disclaimers State of standing. Amendment Fourth suggests totality that
Here, the of the circumstances interrogation”. The resulted “custodial defen disclaimer from A dant was told to sit on the couch and not leave. uniformed stay ordered the defendant and with him officer was to watch The defendant while five other officers searched house. free was not to walk around house. The disclaimer was police questioning. from defendant direct Given elicited atmosphere questioning, the State can this coercive deprive to use not be allowed statements to defendant of such rights. his Fourth Amendment
Notwithstanding the Fifth limitations Amendment on 46-5-103(1), assuming the disclaimer MCA, section standing deprive the could be construed to defendant of light in of car, contest the search of the Robbins v. California (1981), deprive of could not be construed to the defendant
disclaimer garbage bags standing found in to contest the search of the car. the trunk of may police have that while con-
In Robbins Court held automobile the automobile a lawful search of an under ducted any they exception, must secure a for nevertheless warrant recognized of the car. The container found the trunk Court expectation privacy in a container taken closed that the expectation necessarily privacy less than the from a car is luggage pieces found elsewhere. closed reasoning, Following that the a similar it cannot be said gar- privacy opaque expectation in the lost his bage bags car. While it is disclaimed the defendant’s expec- that the disclaimer weakened arguable to have affected it cannot be said tation of privacy disclaimer, in the garbage bags. his expectation privacy to contest therefore, no affected defendant’s way bags. garbage ttiejsearch
The next
which
issue
must be discussed is whether the
District Court
denied defendant’s motion
properly
to sup
As
cases in Montana have
press.
many
held, when
search
warrant has been
issued,
determination of
cause
probable
must be made
from the
solely
information
to the
given
impar
tial magistrate and from the four comers of the search war
rant
See,
II,
§
Art.
Thom
application.
Const.;
Mont.
son v. Onstad
(1979),
18
Here the evidence is uncontradicted that the infor only *10 mation to the given the justice was information peace contained in the search warrant and the search warrant ap Nevertheless, the plication. District in its order Court, deny the ing motion to did not look to the suppress, validity of the search warrant the of the information sufficiency before the neutral magistrate. Rather, the District Court looked to whether the officers had cause probable to search the residence and the vehicle in front of the parked residence. The District Court made the following conclusions of law:
“The officer’s observation of John the Stemple leaving awith later duplex garbage bag found to contain marijuana, with the joined of his sale prior knowledge drug involve- and the ment, information that the officers had received the regarding incoming marijuana the officers shipment, gave cause to believe that or evidence probable dangerous drugs of its would be in the possession found searched and in premises the vehicle searched.” Conclusion of Law No. 3. (Emphasis added.)
“The search the of automobile was also under justifiable automobile to the search warrant exception requirements
342 exigent probable cir- cause and there both since dangerous drugs were fact that of cumstances. The evidence probable enhanced the in the residence added to and subsequent for Carroll search of had the officers cause No. 4. automobile.” Conclusion of Law Court, is clear District law, From these conclusins it making probable cause for the searches its determination beyond the four corners of the residence and looked thereby application In error. and was the search warrant to evidence conclusions, the above District Court looked drug Stemple was a dealer and evidence that John known tip, neither of were contained in an informant’s which application. or the warrant’s search warrant upon reliance the infor the District Court’s Moreover, error since there was mation from the informant was received two-pronged nothing satisfy test of in the record to Aquilar 1509, Texas 378 U.S. Spinelli States L.Ed.2d United nothing in the There was 637. underlying which “some of the circumstances record showed were from informant concluded that narcotics which the nothing they there was were”, where claimed showing underlying “the circumstances from which record . . that the informant. was ‘credible’or the officer concluded Aquilar, his information was ‘reliable’”. P.2d at also, Leistiko, at 1514.See probable must, determination of cause
The District Court’s
probable
be
therefore,
vacated, and new determination
by looking
must
to the four comers of
cause
be made
application itself.
search warrant
type
what
of facts
It is well established in this state
application:
be
in a search
must
contained
warrant
upon
war
for the issuance
search
relied
“‘...Affidavits
prosecutions
suffi
in both
and state
must contain
rants
federal
*11
magistrate
impartial commissioner
cient facts to enable an
or
probable
Fourth
cause exists under the
to determine whether
(1973),162
ex
Amendment . . .’” State
rel. Garris Wilson
(1970),
Gray
quoting Application
256, 511
15, 17,
P.2d
Mont.
Probable an honest belief would warrant to the magistrate presented man the offense has and the mind of a reasonable prudent the sought, and7 “that property or is committed been, being, (S.D. See, State v. Robinette exists at the place designated”. the search war words, 577. In other 1978), N.W.2d the facts cir rant must recite underlying application can determine magistrate cumstances from which exists of the affiant’s conclusion that certain evidence validity Nathanson v. United States (1933), at a premises. particular 11, 78 159; also, 290 U.S. L.Ed. see Aquilar, supra; United States v. Ventresca Giodenello United States L.Ed.2d 1503.
Were the facts to the of the given sufficient to justice peace indicate that was located at the residence or in the marijuana car in front of the residence? We think not. parked mere of an
Stemple’s taking opaque green garbage bag out of a residence finding similar green garbage in an bag near the where-the alley lost spot deputies sight truck Stemple’s were facts to the presented justice Such facts do not for the peace. establish cause probable search of the residence. The connection between bag and the residence is at alley tenuous best.
Likewise, the search warrant fails to set application o ut facts or any circumstances that establish underlying pro bable cause to search the car in front of the residence. parked reference to the car in the search only warrant is:
“. .. that the resident of the above described unit is duplex owner and was driver of the described car when it ar- rived described residence early morning 11, 1980 and affiant believes that said vehicle January your convey used and other marijuana dangerous drugs added.) to the . .” A mere af- residence described. (Emphasis officer, firmance belief or absent suspicion by police any circumstances, facts or does not establish underlying probable cause for the Application See, issuance of search warrant. 536; Nathanson, Gray, supra, 473 P.2d at supra.
344 car the house and probable cause, the searches
Absent Amendment, evidence and the Fourth were in violation against the resulting is admissible searches not from these (1961), Mapp v. Ohio defendant. 1081.
L.Ed.2d marijuana seiz- of the Clearly, evidence into the introduction error since reversible constitutes house and car ed from the defendant. the conviction of contributed to such evidence (1968), v. Langan State P.2d Mont. State St.Rep. no Since 617 P.2d Mont., West support conviction, a trial would other evidence introduced granted. a new trial cannot be judgment is Court reversed the District
cause dismissed. concurs.
MR. JUSTICE MORRISON concurring: MR. HASWELL CHIEF JUSTICE I in concur the result. concurring: SHEEHY
MR. JUSTICE I in the result. concur
MR. JUSTICE WEBER dissents: I would hold that the defendant does have objects A contest search of his car and the inside car. provisions of the review search and seizure of our code is enlightening. 46-5-101,MCA, Section describes the for a basis applies search and seizure where search is inci- made authority by arrest, dent to lawful search valid war- authority right inspection, rant, under of a of lawful and of particular import here, . .” “with consent the accused . applicable any way. Here, is section 46-5-101 not Note that automobile, if the had consented to the search his defendant applicable. 46-5-102, the code section would have been Section peace may MCA, the manner in officer describes which again, following arrest, search a lawful this section is not directly applicable. 46-5-103, Next, MCA, section section quoted majority opinion provides part: whether with warrant, or without seizure, “No search and shall be to be held as to if: illegal
“(1) the defendant has disclaimed
to or interest
any right
the.
. .
searched or the
object
instruments, articles, or things
added.)
seized.” (Emphasis
46-5-103, MCA,
Section
is a
State
codification of the rule established
this Court in
Nelson
“What v. was said this court in by District Court [1925], 73 438, 441, Mont. 236 page 257, 258, [P.] rules this case so far as the motion to is suppress concerned. this court said: There in this tunnel searching acts of the officers
‘“Although the still seizing and mash found in it have may been unlawful as to the possessors of the tunnel, since relator disclaimed right possession of both the tunnel and its contents, is not in a position to as complain, to his according own statements, he no had in right them and the acts of the of ficers therefore were not unlawful as to him. It is hardly to cite necessary authorities to sustain this determination, but reference is made to Driskill v. United States, Cir., 8 281 F.146, and Keith v. Commonwealth, 197 Ky. S.W. In each of which a like result was reached under analogous facts.’
“This is the rule
throughout
see
country,
annotations in
214 A.L.R., page 1425; 32 A.L.R.,
415; 41
page
A.L.R., page
1151; 52 A.L.R.,
487; A.L.R.,
88
page
365; et
page
134
seq.;
577.” State v.
Nelson, 130
A.L.R.,
831; 150
page
A.L.R.,
page
Mont. at 471,
The same view is (9th expressed Cir. 1966), 359 F.2d which Court of denied Appeals the motion to evidence, suppress where, in an to of- response ficer’s as to what question the defendant package, 346 “I It’s mine.” court stated in said,
had don’t know. part: is analogous disclaimer of by appellant
“Such
ownership
States,
abandonment. Cf. Abel United
217, 241,
to
[698]
An extended discussion cases with LaFave, We do note Wayne not appear appropriate. seizure, be- on search and authority distinguishes leading abandonment and disclaimer of LaFave tween ownership. not be that disclaimer of should position takes of Fourth Amendment protec- held tantamount to waiver held. W. notes that a number of courts have so tion, but 1981). (1978, § 11.3 LaFave, Search and Seizure Supp. involving States Court cases Supreme Recent United *14 searches, have question challenge legality or of a defendant’s importance legitimate emphasized objects reasonable or expectation privacy premises Rakas, United States Salvucci searched. supra; Rawlings Kentucky 83, 100 L.Ed.2d 633.1 am unable 2556, 65 how the could have had a reasonable expecta to see he car, in the trunk bags tion of privacy opaque he he car, had stated not own did not know who did did where car’s keys own did know trunk were located. that, is once majority opinion
The unfortunate result
for convic-
reliable
clear basis
establishing
evidence
again,
majority’s
suppressed.
application
tion is
of the ex-
broad
clusionary
again
rule has
exacted a substantial social cost. As
v. Illinois,
stated Rakas
“Each time the rule is it exacts a substantial social for the cost vindication of Fourth Amend- rights. kept ment Relevant and reliable evidence is from the (Cita- trier of fact search for truth at trial is deflected. omitted.)” tions properly
I would hold that the District Court denied the suppress defendant’s motion to the evidence obtained from the search of the car.