*1
MONTANA,
STATE OF
Rеspondent,
v. GERALD
Plaintiff
Appellant.
MEADER,
WILLIAM
Defendant
Submitted March
1979.
Decided Oct.
1979.
Rehearing Denied Nov.
1979.
John lant. Gen., Chronister, Allen B. Asst. Gen.
Mike Greely, Atty. Atty. Hanser, Walen, D. Atty., Harold F. (argued), County Deputy James for Atty. plaintiff County (argued) respondent. delivered the of the opinion CHIEF HASWELL
MR. JUSTICE Court. Meader,
Defendant, William from conviction appeals Gerald Court, District of two counts of County, in the Yellowstone posses- of section 45-9-102 Fol- violation MCA. dangerous drugs sing motions the Dis- by denial of all Meader’s lowing post-conviction Court, trict Meader appeals.
The events defendant’s сonviction leading begin September 19, 1976, was to search a house a search warrant issued when Avenue, The record indi- at Montana. Billings, located 411 Terry cates the house on Avenue was Terry being rented Gerald by Meader’s girlfriend, Marsha Thill. The grounds the issuance of the search warrant do not in the District Court nor appear file not, however, Defendant does transcript. challenge validity of the search warrant.
Officer Brennan of the Yellowstone Squad Officers Drug Sailer, Damon, Vogel, Desmul and Trimarco went to the res- Terry idence to exeсute the search warrant at 9:00 approximately p.m. Brennan, on September 1976. Officers Vogel Trimarco knocked on the front door of the residence and were admit- Sailer, ted Thill. Marsha Officers Damon and Desmul entered house, the residence through the rear door. Of- Upon entering ficer Trimarco observed Meader defendant in bedroom standing located the southeast corner of residence. Officer Trimarco ordered Meader to come out of the bedroom with his his hands on head. Defendant was then complied, searched for weapons by Officer Brennan. The search defendant did not produce any however, or weapons drugs; subsequent search of the southeast *3 bedroom of yielded grams four tablets of methamphetamines, 1IV2 ascodeen, needles, a man’s kit containing 62 shaving hypodermic and various other drug paraphernalia.
After and discussing methamphetamine drug paraphernalia, the officers defendant Meader placed under arrest for of possession dangerous drugs. He was read his and rights transported residence, jail. Before county Meader exclaimed that leaving Marsha Thill had to do with nothing found on the drugs prem- ises.
Further search of the the officers uncovered 226 premises by items, of and grams marijuana extensive drug-related including books, scales, cultivation The search also measuring droppers. revealed a set of plates bearing license the word personalized (Meader’snickname), “Devil” a letter from the Secur- Employment Avenue”, Division addressed to Meader at ity “411 and vari- Terry of ous articles men’s effects. All of these clothing personal items wеre seized. The officer later seized these explained control over the had that defendant dominion items to show residence. Avenue both informa- charged by and Marsha Thill were Gerald Meader of dangerous drugs. of criminal tion with three counts possession of 11V2 with criminal possession the defendants charged Count I them with criminal count II charged of methamphetamines; grams and count III them charged of marijuana; 226 grams possession tablets (containing ascodeen with criminal possession codeine). “not all Defendants initially pled guilty” grams tо count I of the entered a guilty charges. Subsequently, they plea information, and entered but later withdrew their guilty pleas counts. of “not all pleas guilty” case held 27 to September
The trial this was from September to the the trial court dis- 1977. Before the case submitting jury, missed count of the information as each defendant. jury III I and II. defendant Only found both defendants counts guilty from the trial court’s of conviction on judgment Meader appeals II. counts I and
Defendant raises several issues for our review. He first contends not that it was a crime for to be anyone possession nonpre- 19, 1976, or scriptive methamphetamines marijuana September because the annual was dangerous drugs per- republication that the formed of Health. He next contends Department him two with county attorney improperly charged committing crimes in contemporaneous possession anphetamines one crime under Montana’s marijuana dangerous constitutes only statutes. third is that the seizure of drug personalized His issue have ad- was and that the District Court should not illegal, that the mitted them into evidence. the defendаnt Finally, contends is not the evidence. supported by verdict jury issue, we provisions first must review In discussing Act. Montana’s Dangerous Drug *4 issue, that 45-9-102 MCA we section the first observe
Addressing offense of criminal possession that “a commits the person provides as defined dangerous drug, if he of dangerous drugs possesses any in section 50-32-101 MCA. Section 50-32-101 states MCA substance, “Dangerous means Drug’ drug, or immediate precur- sor in V Schedules I through hereinafter set forth.” The actual 50-32-222, schedules of are found dangerous in sections drugs -224, -226, -229, and -232 MCA. The various schedules list specific and substances drugs which the has legislature as designated dangerоus. These schedules have remained relatively static since their initial in 1969. adoption
Also included in the Act Dangerous is section Drug 50-32-209 MCA, which states:
“Annual republication of schedules. The board shall revise and shall department the schedules of republish dangerous drugs annually.” “Board” referred in section 50-32-209 isMCA the Board Pharmacists, and the is the “Department” Montana Department
of Health.
Defendant contends that the Board and the Department failed out their duties under section 50-32-209. carry He further contends that this failure and republish revise had the effect decriminalizing mаrijuana methamphetamines during when the period Department the Board out neglected carry their While isit true and the schedules were statutory duties. not revised or we cannot annually republished, accept argument that this failure to and revise resulted in republish decriminaliza tion of marijuana methamphetamines. position
Defendant’s
is based on strict
interpretation
section
one
Dangerous
Act—section 45-9-104 MCA.
Drug
This interpretation would
defeat the
totally
legislative intent be
hind the
enactment
We
Dangerous
Act.
have con
Drug
stated
sistently
cardinal
construc
principle
statutory
“[t]he
tion is that the intent of the
legislature
Baker Na
controlling.”
tional Ins.
v. Mont.
Rev.
175 Mont.
Agency
Dept. intent,
P.2d
1160. In construing
statutes must be
legislative
read and
considered
their
intent
entirety
legislative
gained
be
from the
wording
any one
section
particular
or
*5
sentence,
of the whole. Vita-Rich
but
from consideration
only
348,
341,
(1976), 170
Bus.
Mont.
v.
Dairy,
Dept.
Reg.
Inc.
of
sections of an act in
is
to
individual
duty
interpret
P.2d 980. It our
other sections of
as
with the
such manner
to insure coordination
Mont.
act.
v. Inland Development Corporation
the
Hostetter
167,
(1977),
Here, the the Board to republish directed legislature failed to the Board schedules which drugs annually of dangerous do.
However, does not indicate that leg- Act Dangerous Drug have the islature intended the Board of Pharmacists to power, inaction, of all and type drugs to decriminalize the possession Rather, we find intended the legislature origi- substances. that as and five to be effective such time the Board nal schedules until duties to re- statutory their Department steps carry took out schedules Thus substances in five designated vise republish. 1976, 19, even could not be legally possessed September though not been revised or drugs repub- the schedules had dangerous law by lished. the defendant violated Montana hav- Accordingly, any drugs of those his ing possession. issue, was argues
In his defendant it error second him with three counts of possessing prosecuting attorney charge of different drugs. possession types He contends dangerous 45-9-102 one violation of section drugs only constitutes prohibited MCA, therefore, with charged that he could be one only MCA. count— a violation of section 45-9-102 single however, note, We 177 Mont. Meadors State is issue. In dispositive 580 P.2d this directly point Meadors, a distinct we held that the intended to legislature provide It schedules I IV. was drugs through crime for each of the listed in therefore, for the defendant with county attorney charge proper, three counts possession. separate As license plates.
We now to the seizure the personalized turn stated, search of the Terry conducting the officers previously which license set of personalized plates Avenue residence seized view, bore the word “Devil”. These wеre found in plates plain ly- on the room ing floor. One living officers conducting search testified that he had known Gerald Meador since basis, knew that Meader used the nickname “Devil”. On this the of- ficer seized the license and the plates introduced the prosecution as circumstantial evidence plates tending show that Gerald Meador had dominion and control over the Avenue resi- dence. were introduced trial They over defendant’s objection.
Defendant claims the license were de- particularly scribed in the search and hеnce were seized. He illegally *6 also claims the license were and not relevant to plates prejudicial the crimes charged. State, hand,
The
on the other
that
seizure of the li-
argues
Warden,
cense
was
under
v.
justified
Maryland Penitentiary
(1967),
1642,
294,
782;
387
87
Hayden
U.S.
18
S.Ct.
L.Ed.2d
State
(1970),
119,
692;
v.
155 Mont.
467
Quigg
P.2d
and State v.
(1972),
310, 318,
essence,
160
Meidinger
Mont.
This issue has caused deal great of confusion in the federal and (1927), 192, 74, state courts. In Marron U.S. 275 U.S. 48 S.Ct. 231, 72 L.Ed.2d Butler wrote an a strict opinion adopting Justice and uncompromising the Fourth Amendment: reading
“The requirement warrants shall describe the particularly to be seized makes things searches under them general impossible the seizure of one prevents under warrant thing describing taken, another. As to what is to be discretion nothing left added.) Marron, 275 48 U.S. S.Ct. (Emphasis officer.” at 76.
The strict in approach adopted Marron has been greatly eroded over the ensuing Some commentators believe years. ero largest sion occurred recently in where Hayden, supra, the United States
39 Court stated: can secure Fourth Amendment
“The requirements evi- is for ‘mere the search same whether protection privacy fruits, . . or contraband . between dence’ or the instrumentalities in the case of Thus to be seized and criminal behavior. item evidence,’ in be examined terms cause must ‘mere probable aid in ap- that the evidence will sought partiсular cause to believe 306-307, at 1650. U.S. at 87 S.Ct. or conviction.” 387 prehension courts have placed great emphasis Various state federal seizures of evidence described the above language upholding in the warrant. N.E. Mass.App.
In v. Fields Commonwealth warrant them authorizing obtained search 2d officers police Heroin, wit drugs, for “certain narcotic an search apartment use, of narcotic used sale preparation and all articles search, their seized officers conducted When the drugs.” from the top seized somе bills gas The officers also of heroin. bags at de- bills were introduced The gas of the defendant’s refrigerator. the defendant had dominion trial to fendant’s establish was found. Massa- where the heroin control over the premises Court, bills the seizure of gas Supreme upholding chusetts stated: search warrant but having
“Evidence not described in a valid
be
at the same
investigation
nexus with the crime under
seized
*7
test, in
time
the
warrant. The
the case
as material described
the
evidence’,
ap-
is whether the item ‘will aid
a particular
‘mere
Warden,
v.
Penitentiary
or сonviction.’
prehension
Maryland
omitted).
case,
(citations
existed in this
requisite
The
nexus
Hayden
the
the
defend-
showing
as the
bills were relevant for
purpose
gas
at
ant’s control over the
319 N.E.2d
463.
premises.”
(i.
the
e. that
to the
position
case favorable
State’s
Another
seized)
18
is State v. Turner
were
license properly
Turner,
a
727,
the
obtained
police
In
40 to narcotic sales and
relating dominion and contrоl of the prem- ises.” the During search of ensuing defendant’s the of- apartment, ficers seized a set of which were keys later used unlock foot- trial, locker in the.basement of defendant’s apartment building. At it was conceded that appeal, were not keys specified in warrant, nevertheless, the original search the Court upheld seizure of the keys:
“Turner first
were
argues
keys
seized. Evidence not
illegally
described in a
and not
contraband or
constituting
instru
crime,
mentalities of a
be seized
if it will aid in a particular
conviction,
apprehension or
or it has a sufficient nexus with the
crime under
Warden v.
investigation.
Hayden
omitted]; Com
[cite
monwealth v.
omitted];
Fields
see also United
[cite
States v. Jones,
384, (7th
denied,
1974),
997,
518 F.2d
Cir.
cert.
423 U.S.
96 S.Ct.
(1975).
The first Montana case in this area is State In Quigg, supra. officers obtained a search warrant the seizure Quigg, authorizing .22 caliber wristwatch with band “[a]ny pistol, gold expansion
41 that may discover they or evidence might or other any property the search During demise Lee Robbins.” connect to the residence, various items related the officers discovered Quigg’s also discovered .22 caliber armament. They guns, particularly posses- tablets which were in the deceased’s thirteen “purportedly” and the that argued sion at the time of his death. Quigg gun because had been have been should pills suppressed “make, number, serial requisite described with particulars or features”. other identifiable that the items seized and admissi-
This Court held were properly ble evidence: as warrant
“That items or
other than those described
things
between
be seized is clear so
as
reasonable
may
long
relationship
the search authorized
the warrant is demonstrated. State Piet-
by
raszewski,
758
discus-
285
172 N.W.2d
and see
Minn.
States, Cir.,
Here we
sion in Gurleski v. United
5
“The to the connect may evidence discover they might or erty not, view, character change our demise of Lee Robbins’ does one.” Quigg, warrant to an invalid valid search an otherwise 699. & 467 P.2d at Mont. cited decision for the This Court has the Quigg proposition search, be in connection a lawful some seized things “given therewith are not which described in the warrant.” Meidinger, supra. ease,
In the the present enforcement a drug obtained search warrant for the Terry Avenue residence in hopes finding illegal on the drugs The actual premises. search turned quantities up large of contraband and defendants Marsha Thill and Meader were ar officers, rested for violations of section 45-9-102 MCA. The ap parently in anticipating problems that Meader had do showing residence, minion and control over the seized two additional items which felt would bolster the case prosecution drug against Meador. the officers seized two Specifically, license plates bearing defendant’s nickname “Devil” and a letter addressed to Meader at “411 Avenue”. We find that Terry these two items bear reason able to the search relationship authorized the warrant. Accord by under the ingly, Quigg seizure the license Meidinger, and the letter was permissible. the items were Additionally, proper admitted as ly evidence to show defendant’s dominion and tending control over the Terry Avenue residence.
Defendant’s final issue concerns the sufficiency the evidence to his conviction. He on support places reliance the fact that great name, in Terry premises were leased Thill’s and that he was not in physical possession when the any drugs officers searched him. Defendant believes these two facts made it for the impossible jury however, to convict him for We cannot possession. the re- ignore evidence. maining
Even
defendant did not have
though
on
dangerous drugs
his
his
person,
is
eliminated.
culpability
thereby
.Possession of
dangerous
be either “actual or
drugs
constructive”. State v.
530;
(1971),
527,
157 Mont.
487 P.2d
Trowbridge
State ex rel.
(1971),
523,
v. District Court
Galyon
156 Mont.
“Constructive possession contraband; im- bemay to control the possession control or a right which immediate- is found in place when contraband puted do- to his subject to the accused accessible ly exclusively control, ac- and control or to the dоminion minion and joint (1971), 95 Cal.Rptr. and another.” v. Williams People cused 1146, 1148 485 P.2d there was conviction rests whether of defendant’s validity to find that he had constructive evidence for jury
sufficient them). (i. control over This e. dominion and drugs possession fact to be determined question jury. determination is evidence support jury’s finding We find ample Avenue had dominion and control over defendant actual in the house when residence. Defendant was physically present *10 the was found in actually hiding search was conducted. Defendant ad the were discovered. Mail bedroom where methamphetamines in liv Avenue” was found the Terry dressed to defendant “411 of home. license defend plates bearing room the ing Additionally, fit defendant ant’s and men’s which would the nickname clothing that the landlady found in the home. It was also established were was the Avenue address. believed that defendant occupying Terry the admission of We note here that defendant the objected only license plates. degree were some explained some of these items
Although witnesses, for of fact questions remained the defendant’s the in a more light Court views evidence On the jury. appeal, State, in the District Court. party favorable to the prevailing 121, 802, (1977), 805. 566 P.2d If 173 Mont. v. Pascgo State verdict, must this Court reasonably justify circumstances have could jury fact which every existence of assume the (1968), v. Steward the evidence. State deduced from all reasonably 556-557, 551, was evidence ample P.2d 741. There 445 151 Mont. and control dominion that defendant had to determine jury residence, thus, over the find that defendant had con- structive of drugs. possession
Affirmed. DALY,
MR.
HARRISON and SHEEHY concur.
JUSTICES
MR.
SHEA concurring.
JUSTICE
I concur in the decision
the convictiоn. As to the
affirming
scope
warrant,
of the search
objected
defendant
to the seizure
only
of
Moreover,
the license plates.
under the case relied on
by majori-
ty,
stress,
the license plates and letter were
seized. I
properly
however,
if
the issue had been raised
concerning
right
it could well be that
privacy,
seizure
the items beyond those de-
warrant,
scribed in the search
would have violated defendant’s
Mont.Const.,
II,
right
under the 1972
privacy
Art.
10.
§
standards
search and seizure
Applying
without
to a
regard
consideration of the
it
right
does
privаcy,
the sei-
appear
Warden,
zures here fell within the ambit of
Maryland Penitentiary
(1967),
782;
Hayden
U.S.
S.Ct.
18 L.E.2d
(1970).
692;
State v.
155 Mont.
Quigg
467 P.2d
and State v.
310, 318,
stress,
Meidinger
160 Mont.
The is not “right privacy” under the preserved, authority a search a law officer seizes items beyond.those particu- described in the larly search warrant. Before rea- explaining my sons, I must first mention the state of the record this appeal. application for search warrant and the search warrant were not *11 forwarded this am a Court. I loss to understand why par- ties did not see to it that this Court had these documents. For this reason, I must take some with what I think these documents liberty would if of reveal were the record. they part discussion,
For of I that purposes assume my application worded in the customary search warrant and search warrant were search. Since Hayden, fashion as tо scope permitted is for the search the customary practice then Meidinger, Quigg contain, in to an order the search warrant to addition permitting of the items described in search particularly for and seizure for and sei- order which the search permits an additional con- which fall into the other “any zure such items category crime”, traband”, ad- of the and “any “fruits or instrumentalities tend to connect the defendant to ditional evidence may warrant commission of the crime.” A search particular but there is some variation contain all this language, typically it which in most warrants. the inclusion Undoubtedly, appears Hayden this search warrants has been language spawned by its progeny. an automatic in a search warrant creates expan-
Such language items de- warrant from a search for particular sion of the search a search. A right the search warrant to more general scribed in indeed, law officers to seize nonde- an order is for the given, given, to the somehow connected which deem be scribed evidence is obtained to conduct is that approval The result judicial crime. the search the literal language search under general exploratory is that more often the effect Practically speaking, warrant itself. not, described in which has not been evidence is seized than broader than if are invariably warrant. The searches search in the search warrant. the items described search was confined the of- question, of the search later be called into scope Should the itself which fall on the of the warrant language ficers back merely de- for more than the items created the for them to search authority effect, made in faith under good scribed. In seizure permissive law is converted enforcement by authority Hayden Quigg, courts, more evidence than and the into command seize issuing General explora- described in the search warrant. particularly will, searches, are the call them whatever other name you tory inevitable result. those a seizure beyond the case is rare when speaking,
Practically *12 warrant, items described in the is search by exigencies dictated case, of the situation. In the present the State example, could have secured the for a easily premises search war- reapplied rant them to authorizing seize the license and the ad- mail Here, dressed to the defendant. both the defendant and the woman was, therefore, were arrested on the There no practically spot. danger additional evidence would before it could be disappear Indeed, seized another issued search pursuant properly warrant. cases, in most the additional evidence can be seized by simply securing premises for another search applying warrant. reason, however, My for not additional seizure lan- permitting ain search warrant is not confined to belief guage that such my an serves as incitement to convert a language specific search into search. An additional reason is general exploratory that if the right under Montana’s constitution is privacy to have any meaning seizure, all within the contest aof search and the balance is clearly in favor of tipped the inclusion of prohibiting such seizure lan- in a search guage warrant. To seizures of go beyond those items described in warrant, the search particularly I believe the State (1972) must demonstrate a state interest” Mont. “compelling Const., II, 10), Art. and this the State cannot § do. cause,
If evidence is seized without probable whether it evidence”, described in the search or seized as “mere it is true that the evidence cannot be used. The quote from Hayden indicates that the majority opinion United States Supreme Court believes that the probable cause requirement of the Fourth Amendment are sufficient to рrotect right even privacy, when the search is for “mere evidence.” But there is no specific of the provision United States Constitution which explicitly guar- State, antees the hand, right In this on the other privacy. II, Const., Mont. Art. expressly guarantees “right § pri- vacy” which can be overcome only showing “compel- state ling interest.” The function of the search warrant has been when, cause, served upon probable the items specifically described seized, in the search warrant or are when the search has been un- items, no re- but has produсed tangible for the specific dertaken sults. State, right in violation one’s if evidence is seized
In this provision But the “right it cannot be used. privacy” privacy, in viola- of evidence seized the use not exist solely prevent does measure, to assure a preventative It exists also as right. tion of assure) in the (or will not be violated that the privacy right help in the context searches If it is to serve this function first instance. *13 seizures, to seize no state interest” there clearly “compelling in the search what is described particularly other than evidence seizure, the if such a right privacy protec- warrant. But there is II, 10, as Art. should stand tion Mont.Const. § guaranteed of the evidence. a bar use