*1 MONTANA, STATE OR Appellant, Plaintiff LaMERE, Defendant ARTHUR JOSEPH Respondent. No. 86-347.
Submitted Briefs Nov. 1986. April 1987. Decided Gen., Gen., Greely, Atty. Paulson, Helena, Mike Atty. John Asst. Rice, Atty., Havre, plaintiff appellant. David G. Co. Havre, Suagee, respondent. Mark for defendant and MR. Opinion JUSTICE of the Court. HARRISON delivered the appeal by the State of Montana from an order issued Twelfth Judicial County granting Distriсt Court in and for Hill defendant’s motion evidence seized the Havre during person prior search of defendant’s to his incarceration.
We reverse the order of the District Court. *2 appeal sole issue on is whether the District Court erred
granting suppress defendant’s motion to evidence. parties stipulated
Both following facts from which the Dis- trict Court reached its decision: lawfully
“Defendant Lamere was driving arrested for in- under the fluence, in 61-8-401, MCA, September violation of Section September 7, approximately 2:00 a.m. in [correction 1985] Havre, County, Montana, Hill by Laurel Zorn of the Havre Police Department.
“At arrest, the station following the Officer Zorn removed two personal items of property part from the defendant as inven- tory search at the opened, stаtion. Both of these items were searched and evidence seized therefrom. opened
“The first item pouch was a leather which had been re- moved from pocket the inside jacket of defendant’s which he was wearing zipped at the time. open pouch, Police this searched it and seized the parapherna- contents. The alleged drug contents included powder lia and a white positive the vial which field tested cocaine. money bag second item taken from the was a defendant bank pat
which was pants leg removed from the in a defendant’s down alleged police zipped seizure of the cocaine. The bág producing bags alleged and searched it two small marijuana.
“Both of these searches and seizures were effected without a search although warrant opportunity application there was to make for one. Both part inventory proce- searches were done as of the standard by Department. dure used the Havre Police Defendant did not con- sent to either search.”
In addition to these facts we add that an information was filed charging possession defendant with two counts of criminal of dan- gerous drugs drug parapher- and one count of criminal suppress nalia. Defendant filed a motion to all items seized police during granted the search. The District Court appeals
motion to and the State now from this decision to suppress.
The District Court concluded that the defendant’s two removal of opening containers and the of them without the de prior fendant’s consent after his arrest but to his incarceration vio lated his to be free from seizure unreasonable search and under the United States and Montana The District Constitutions. erroneously governed found that the facts of the case reasoning in State stated v. Sierra 1273, 42 St.Rep. — Sierra, removed a closed container of — small part suitcase from the defendant as of a routine They opened to incarceration. and searched it without a warrаnt. small, The non-warrant search of the closed contained for inventory purposes was found to be violation of defendant’s rights.
Appellant
requests
State
Court to reconsider its
light
v. Sierra in
jurisdictions
of decisions in other
to follow
United States
Court’s
decision
Illinois v.
(1983),
462 U.S.
People
While release, not citеd either brief due to its recent the deci Court, sion Supreme the United States Colorado v. Bertine (1987),__ U.S. __, reinforces Illi Lafayette, Bertine, nois u. supra. Boulder, In police officersin Colo rado, petitioner, Bertine, arrested the driving Steven Lee for while under the custody, influence of alcohol. After he was taken into and before the arrival of a tow truck to take Bertine’s van to an im pounded lot, another acting officer while in accordance with local police procedure, opened inventoried the van’s contents. The officer backpack substances, closed which he found controlled cocaine paraphernаlia, large and a amount cash. Prior to Bertine’s trial on charges possession that included unlawful of cocaine with intent to sell, dispense, distribute, granted a state trial court Bertine’s motion during inventory the evidence found the search. The Colorado trial court ruled that the search did not violate Ber rights Amendment, tine’s under the Fourth but held the search vio Supreme lated the Colorado Constitution. The Colorado Court af firmed, premised but ruling its on the United States Constitution. reversed, The United States that the Fourth charges prevent proving Amendment did the state from criminal during with evidence discovered the of Bertine’s van. argues, agree, City Lamping and we Helena v. that St.Rep. governed shоuld have the District Court’s decision and not State Sierra, supra. Lamping lawfully In the defendant was arrested for county jail jailed. unrelated offenses and taken to the to be Prior to jailer Lamping’s personal property. incarceration the inventoried jailer open cigarette package While him the took an out оf Lamping’s pocket marijuana ciga- shirt and discovered a hand rolled in Lamping charged dangerous drugs. rette it. was Lamping, pointed In dangerous we out that instrumentalities can be looking pos- concealed in innocent articles taken from an arrestee’s prison- compelling protecting session and the State has a interest potential ers dangers protect and must also the defendant and by accounting any money the officer the has. We con- Lamping cluded that the search in was not unreasonable for failure to secure a search warrant. applicable theory conclude that the here. We point Bertine, analyzed
further out that the Court procedure directly applicable pre- in a manner which we find sent case: present case, Opperman
“In the as in there was no police, proce- who were standardized dures, purpose investigation. acted in bad faith or for the sole addition, governmental justifying interests Opperman nearly seаrches in are the same as those potentially responsi- which obtain here. In each property custody. By securing prop- ble for the taken into their erty, police protected interfer- from unauthorized Knowledge precise property helped guard ence. nature of the theft, vandalism, against knowledge negligеnce. claims of Such helped may any danger also to avert or others that have posed by property.” been
Bertine,
at_,
supra,_U.S.
that in the evidence should be the order Court for trial. reversed and the case returned to the District
327 JUSTICES WEBER MR. TURNAGE and MR. CHIEF JUSTICE and GULBRANDSON cоncur. HUNT, dissenting:
MR. JUSTICE sepa majority opinion argue I two strongly from the dissent First, I argue rate that authorities should control this matter. 106, Sierra 472,] St.Rep. 42 P.2d Mont. 692 [214 majority opinion 1273 The should be determinative of this case. City Lamp Helena v. overturns Sierra adoption its blanket ing (Mont.1986), 901, 1245, St.Rep. P.2d 43 719 U.S., 640, 2605, Lafayette and Illinois v. 103 S.Ct. Colo Supreme L.Ed.2d and the United States Court decision of Bertine, (1987) rado v. _ U.S. _, case, doing ignores facts of this and in so the mandates of
our privacy provision. Montana Constitution’s
Lamping appears
Court case U.S. v
rely
Supreme
on a 1981
(9th
Monclavo-Cruz
1981),
authority.
Cir.
“We concur with this
distinction drawn between searches
possessions
and searches
immediate
within an arrestee’s
St.Rep.
. . .”
control
discussion searches inci- search issues but addressed *5 328
dent to an arrest. also adds another distinction. The de- open cigarette pack fendant’s in his shirt was and the court held: “. open, . . when a justified container is protect intrusion is to prisoners the other from harm. pack- The contents of an unsecured age . .” Id. separately. should be inventoried Lamping appears premise
Thus to its decision on what the U.S. Supreme Court indicated is an out-moded federal distinction be- tween on and off the as well as whether a container Lafay- premises or closed. These contradict ette, and Bertine cases majority rely which the now on.
Regardless of reasoning the convoluted citing reliеd on in Lamping decision, inis error here in a more fundamen- way. tal my opinion
It is
pro-
the framers of our Montana Constitution
expansive
a
right
vided more
privacy
than either
or
Bertine
provided
penumbras
indicate is
of our federal
Constitution. Sierra
very
was decided
this Court on this
issue
Sawyer
See also State v.
position.
bears out this
terpreted by such, recent federal case law. As “. . . we are not com- pelled step pronouncements to march lock of the United States provisions Court if our own constitutional call for more in- rights protections guaranteed by dividual than that the U.S. Consti- tution.” Sierra at 1276. Sierra
Again quote adoption we court’s (Alaska 1979), Reeves v. State applicable it find to this case: of an be no more intensive search arrestee’s should entry reasonably prevent weapons, illеgal necessary
than drugs, potentially dangerous and other or other items contraband Any possession in jail. into the items from the taken arrestee’s may opened except pursuant to a be further searched or exception recognized or re- warrant another the warrant quirement applicable Finally, in the circumstances. cataloging
conducted consist of a shall arrestee’s not, may request specific thus seized and without a the arres- tee, any object, extend ato search and the contents container, luggage, closed or briefcase, package. sealed We be- pre-incarceration adequately lieve that a search thus limited both protects the reasonable appropriately interests of the state and re- *6 spects expectation (Emphasis an arrestee’s privacy. reasonable of added.)”
Amendment issue involving need not be reached in a case an inven- tory search of an automobile without a warrant and seizure of am- phetamine pills from under the seat of the This Court automobile. found governed by the situation was the Montana Constitution’s right privacy provision. of following quote
The equally applicable from that case is here: “We need not consider the Fourth Amendment issue because we view greater pro- the Montanа an Constitution to individual afford tection in this is instance than found under the Fourth Amendment Opperman. Constitution, II,
“The 1972 Montana Art. Sections 10 and provided: Right privacy. privacy
“Section of right individual infringed to well-being society essential the of a free and shall not be compelling without the of a state interest. people
“Section 11. secure in Searches and seizures. The shall be persons, papers, their searches homes effects unreasonable any place, No or seizures. warrant to search or seize thing describing or the place shall issue without to be searched seized, thing cause, supported probable or to be or without writing. oath or affirmation rеduced importance right privacy the framers individual provisions. Montana Constitution is obvious from these previously significance has explicit noted the guarantee right privacy individual contained Section as a com-
parable provision exists the United States Constitution. State v. Coburn, 488, 495, (1974). 165 Mont.
“It is inventory also clear that an search suсh as the one considered significant here is a privacy, invasion of individual search must meet the “compelling “reasonableness” and state inter- est” standards of the (Emphasis Montana .... Constitution added.)”
Id. at 1133-1134. In the instant police legitimate governmental Havre had a interest in performing search of defendant to in- carceratiоn. No presented police evidence was station’s storage facility was not reasonably secure or could not be made se- cure, nor that the two containers could not protected have been well from theft or destruction without police them. Further the had no reason to believe weapons explosives the containers held so a search of their justified contents was not on that count.
Because of this expansive State’s more privacy provision discussed in Sierra Sawyer, and in legitimate existence of these governmental permit interests does not these circumstances since the could have used less intrusive means belongings.
The second equally issue is determinative of this case. Lamping, Unlike there were no containers at issue. The de- carrying closed, fendant was zippered two person. containers on his found the first container on the inside of defendant’s jacket pocket. This container should not have been searched without *7 defendant’s easily consent but it was. It could have been sealed and placed in storage or treated with less intrusive means unless other circumstances were shown establishing probable cause to do an in- vestigatory search of the container.
The second container was discovered after the first one had been openеd and the contents observed. precise This is the situation which suggests inventory procedure that the “pretext awas conceal- ing investigatory police an motive” as in South forbidden Dakota v. Opperman (1976), 428 U.S.
other cases. The possible pretext drastically existence of such a changes the nature of this routing search from a warrantless inven- tory search investigatory into an warrant, search which mandates a protections the strictest Fourth defendant Amendment situation. discovering were not the contents of foreclosed they probable
these if containers could cause search the establish discovery After money bag containers.
pаnts,
situation,
arguably suspicious
application
for a
war-
by
police.
rant
attempt
could have been made
No
was made to
any stage
obtain a warrant
proceedings.
in these
possible pretext
concealing
investigatory
motive is
prohibition
an elemental
and an ever constant
threat
defend
ant’s
Even the rеcent Bertine case which
rights.
Fourth Amendment
was relied
majority upheld
particular
on
part
because
police,
“There was no
. . . that
who
caretaking procedures
standardized
acted
bad
faith
purpose
or for the
investigation
suspicion
sole
or on the
(1987) __ U.S. __, 107
activity.”
evidence of
criminal
S.Ct.
Therefore,