*1 100 MONTANA,
The STATE OF Respondent, Plaintiff v. Appellant. MEADORS, HAROLD Defendant JESSE No. 14028. March 1978.
Submitted May Decided P.2d 903. Braz, (argued), Billings, Diane Barz & Billings, Poppler and appellant. Gen., Gen. Atty. Asst. Mayo Ashley, Atty. Greely, Mike J. Walsh, Hanser, D. Helena, Atty., County Harold (argued), James and-respon- Billings, plaintiff Atty., (argued), County Deputy dent. *2 of the the opinion delivered HASWELL
MR. CHIEF JUSTICE Court. two on his conviction Meadors appeals Harold
Defendant Jesse from denial and drugs of dangerous counts of criminal possession certain evidence. motion to suppress of his pretrial a.m., and 8:00 Officer Bruce 7:00 between On June a a call that responded Police Department the Billings Oberg Trail, of the on top Black Otter was on vehicle parked suspicious Oberg Officer Billings. the City rimrocks overlooking the eastbound license plates parked with Wyoming automobile west,' defendant observed the road. He blocking land facing door, asleep. apparently the driver’s against slumped car, saw that the ignition into the looked Oberg When Officer a were on observed the car’s dashboard lights awake and defendant shook ashtray. Oberg in the resting open pipe so, Oberg defendant was doing of the car. As asked him to out get white residue a amount of a vial small containing noticed small watch front and a red in defendant’s right and a yellow pill powder back into his pocket. defendant which pushed pocket identification, defend- request Oberg’s In to Officer response that Detec- Oberg and informed and birthdate ant his name gave Department Sheriff’s County of the Yellowstone tive Trimarco knew him. identification, Officer could not any
Because defendant produce of the car. Of- the hood onto asked him to empty pockets Oberg the and for for identification he was looking ficer testified Oberg vial, did not produce When defendant vial he had seen earlier. watch out of want the vial your defendant “I told Oberg Officer vials, one empty then two Defendant produced pocket.” and two pills. the white containing powder other time this Officer Hatfield arrived on the scene to back By Gary Officer When asked whether he had vehicle up Oberg. any he did not. Officer Hatfield then in- registration, replied stituted a check for the owner of the car the Bil- registered through NCIC, Police national list of stolen lings Department; vehicles; Vehicles., and the of Motor Wyoming Department
In to Officer to enter the response request Qberg’s permission certificate, car to look for defendant refused. registration Nonetheless, Officer entered the car and checked the Oberg glove where he found one compartment bag containing marijuana another tablets. bag containing large quantity amphetamine
Officer Hatfield then there were no listed war- reported locally rants on the vehicle. Officer then informed Officer Hatfield Oberg he had found in the and instructed drugs glove compartment defendant, Hatfield to arrest defendant. After Officer arresting Hatfield advised him of his and conducted search of his rights this search he discovered an bottle contain- person. During aspirin more and another vial ing two mari- amphetamines containing *3 juana cigarettes.
After Officers and Hatfield called for assistance Oberg bring- station, defendant’s vehicle to the took defendant to ing police they there, the station. Once the obtained a search warrant police police to defendant’s vehicle and found more and search amphetamines all, inside the can and in the trunk. In marijuana police 15,000 more than tablets and over 360 grams of amphetamine in defendant’s marijuana possession.
Later from the of Motor Vehicles report Wyoming Department revealed the car was to defendant. the search of registered During warrant, defendant’s vehicle to the search also pursuant police found defendant’s driver identification on the front windshield visor. Court,
Defendant was Information in District charged by Yellowstone counts of criminal with two County, possession Count I for more than possessing sixty grams dangerous drugs: of 368.5 grams”, of “the approximate weight 15,785 tablets. Defendant II for amphetamine Count possessing all evidence to both counts and moved suppress plead guilty and his vehicle. After seized as a result of the search of his person the District Court denied defendant’s mo- an evidentiary hearing, this denial a writ of by tion to Defendant review of sought suppress. control, this denied. State ex rel Meadors which Court supervisory Court, 1977. Defendant was v. District No. September both counts and sentenced to convicted subsequently by jury count, on each to run con- in the state years imprisonment prison secutively.
In his defendant raises three of error: appeal specifications 1. Denial of defendant’s motion to suppress.
2. Conviction of two crimes based on of two possession separate different on the same occasion. dangerous drugs
3. Failure to direct a verdict in favor of defendant for failure to the exact amount of in the prove possessed drugs alleged Information. outset,
At the we note that four searches are involved in separate (1)the this case: warrantless search of defendant when ordered to (2) his the warrantless search of defendant’s empty pockets; glove (3)the warrantless full search of defendant compartment; body arrest; (4) the search at following of defendant’s vehicle station to the search warrant. police pursuant Defendant contends that and his initial searches of person vehicle without the benefit because of warrant were illegal they did not fall within to the search any recognized exceptions warrant He that the requirement. subsequent further concludes searches of his were tainted the initial il- vehicle and, therefore, four the evidence obtained from all legality searches must be suppressed. valid as a
The state claims the initial search of defendant was
*4
search
a
a search
incident to lawful arrest under the rule that
prior
to actual arrest is valid as a search incident to a lawful arrest if the
officer
the defendant at the time of the
had
cause to arrest
probable
95;
(9th
1965),
search.
v. United
Cir.
343 F.2d
State
States
Cipres
970;
(1977),
P.2d
v. State
Layland
88 Wash.2d
v. Smith
1043;
(1961),
(Alaska 1975),
57 Wash.2d
V.
535 P.2d
State Brooks
422,
A search incident and seizures. Section for lawful searches the warrant requirement 95-701(a), have held tha if the Other jurisdictions R.C.M.1947. arrest, it to the is substantially contemporaneously search made than follows that the search rather makes no difference precedes State, States, v. Layland supra; the arrest. v. United supra; Cipres Brooks, has been stated in this The rationale State v. supra. language: “ * * * the basis of in- is entitled to make an arrest on if the officer searches, and as an incident formation available to him before search of the to that arrest is entitled to make a reasonable person arrested, is there is nothing arrested and the where he place before instead in his conduct if he makes the search unreasonable fact, and the In if the searched is innocent of after the arrest. person con- his reasonable belief to the search convinces the officer that erroneous, searched is it is to the advantage person trary hand, if innocent or the search to be arrested. On the other he is not house, innocence, the of his person, does not establish his security ar- no from a search or effects suffers more preceedng papers, it.” v. rest than it would from the same search following People Simon, (1955) 45 290 P.2d Cal.2d that We hold The rule is sound. rationale makes sense. This rendered illegal simply a arrest is not a incident to lawful search rule is sub the arrest. This than follows rather because it precedes limitations; (l)the effect have been able to officer must to three ject search; (2) arrest a the actual of making arrest at the time a lawful search, and with the substantially contemporaneous must be made a (3) purpose scope the search must satisfy permissible arrest. incident to lawful search when Montana, arrest make warrantless officer may In peace committing reasonable grounds he believes on and the ex offense, an offense has committed that the person *5 In section arrest. his immediate require circumstances isting is R.C.M.1947, 95-608(d), “reasonable grounds” the term Fetters and cause”. State v. the term with “probable synonymous 122, 122. (1974), 526 P.2d 165 Mont. Lean cause to have Oberg probable case did In the instant Officer cause Probable searched him? at the time he first arrest defendant within the of circumstances the facts and where to arrest exists in trustworthy which he has reasonable and of knowledge ficer’s a man of warrant in themselves to are sufficient formation has been or being that an offense caution to believe reasonable (1977), 570 P.2d 174 Mont. State v. Lenon committed. 7:00 between defendant asleep case Oberg In this Officer traf- in the lane of wrong a was parked and 8:00 a.m. in car which a scenic was of paved road. The roadway part blocking fic street. not regular of Billings, although drive overlooking City was resting pipe were on and marijuana The car’s ignition lights iden- any personal Defendant could neither produce in the ashtray. license the car out-of-state bearing nor tification registration defendant’s pocket a vial out of Officer saw Oberg sticking plates. Officer pill. white and a red and yellow which contained powder and drug paraphernalia, these items were drugs Oberg thought circumstances con- These his experience. based on prior police at the to arrest defendant cause for Officer Oberg stituted probable him. time he first searched compartment.-He of his glove the search
Defendant next charges incident of search scope it was outside the permissible claims that glove defendant’s searched Oberg At the time Officer to an arrest. was not car. He his was outside standing compartment, arrest, Oberg handcuffed. Officer was he under actual yet a vehicle compartment the glove entered the car to search 54 grams There he found approximately certificate. registration 6,930 assuming, Even tablets. amphetamine marijuana compartment of the glove search without that deciding, Oberg’s untainted evidence sufficient still remained was there illegal, which to base defendant’s conviction on both felony possession amphetamine charges.
Defendant’s to the third and challenge fourth searches rests upon that the first two searchés assumption were Our illegal. holding first search of defendant had Oberg’s legal was that he probable cause arrest defendant at that defend- eliminates point ant’s to the third and fourth searches. challenge
Officer had cause to Oberg probable arrest defendant at the time of the first search. The first search disclosed what to be appeared *6 prohibited drugs defendant’s A was seen person. marijuana pipe in resting open in the car. The search ashtray third after defend ant’s arrest was full as an search authorized incident to the body 95-702, 1947; lawful arrest. Section R.C.M. United States v. Robin (1973), 218, 467, 427; son 414 U.S. 94 S.Ct. 38 L.Ed.2d Gustafson 260, (1973), 488, v. 414 Florida 94 38 U.S. S.Ct. L.Ed.2d 456. The third search disclosed an bottle what asprin containing appeared be more and another vial what amphetamines containing appeared to be two marijuana The fourth search was a of cigarettes. search defendant’s car a search pursuant to warrant where still am more were .phetamines found inside the car and trunk. Thus the evidence found the third and fourth during searches was admissible.
Defendant’s second of error is whether he specification may be and convicted of a for each charged separate offense of type pro hibited in his the same transaction or drug possession during occurrence. He statute under which was argues 54-133, charged, section R.C.M. in unclear on this point therefore, this follow Court should the rule the United States (1955), Court Supreme in Bell v. United States 349 U.S. adopted 81, 83, 75 99 S.Ct. L.Ed. 905. Bell,
In two at the time petitioner women same transported across a state line for of immoral conduct. He was subse- purposes with, two offenses of the Mann quently charged separate violating Act, 18 U.S.C. 2421. Petitioner conduct § constituted argued one violation of the Mann act. felt only Because the Court Supreme intended to what had was as to Congress the statute ambiguous it resolved ambiguity the allowable unit of prosecution, make States, supra. in favor of Bell v. United leniency. is whether the Montana Legislature issue in the instant case
The 54-133, section intended to treat the drugs prohibited R.C.M.1947, of outlawing possession as generic group thereby whole, it intended to as or whether provide the entire group distinct crime as to each of the prohibited drugs. section
At the time of commission of the offenses charged, 54-133(a) provided: the offense of criminal possession
“A commits as defined in if he any dangerous drug dangerous drugs possesses this act.” as defined in this act” means
The phrase “any dangerous drug
54-301,
defined in section
R.C.M.1947. State ex rel.
any drugs
Court, (1975),
This intent is further by legislative supported criminal penalties out and and distinct singling providing separate 2, 584, Ch. Laws for of an Sec. possession opiate. reasons, to this rule is inapplicable
For the Bell foregoing case.
We are
in our decision
State v. Adams
supported
(Del.Super.
1976),
108
seven counts out of the arising of at the possession drugs same time. Four of the counts were based on with intent possession to deliver four different nonnarcotic controlled substances. The defendant counts, moved to dismiss these four to consolidate them into one of fense, conviction, or to consolidate them into single should he be Montana, As does guilty. Delaware also has a version of the (Uniform Uniform Controlled Substances Act. Controlled Act, (1973; 327, Substances 9 U.L.A. 145 Sections 54-301 to R.C.M.1947; 4701-78.) 16 Del.C.Anno. The court found that §§ the intent of Delaware’s Controlled Substances Act was to prevent the existence of a particular substance the hands of other anyone than a licensed and found equal emphasis upon prohibition substance, as well particular as of upon the act of prohibition possession. it denied Consequently the defendant’s motion. In com ing to its conclusion the Delaware court said:
“* * * there is no requirement that each substance be dealt with in a section separate of the statute in order separate crime to be created. Nor is it required that there be language specifically that each stating substance separate which is possessed delivered shall constitute separate offense. The essential requirement is that it that the fairly intended that appear legislature each substance be dealt with of separately purpose crime and that delineating Adams, it.” State v. language express A.2d 1239.
Defendant cites cases from other
which
jurisdictions
refused to
their narcotics
interpret
laws as
offenses for
allowing separate
possession of each
type
prohibited drug
on the same
possessed
(W.D.Pa.1969),
occasion. United States v. Martin
302 F.Supp.
(3rd
1970), cert.den.,
aff’d
Defendant also contends that not be convicted of more may than one offense of Montana’s possession dangerous drugs. *8 to An contrary. the Information may clearly provide statutes in their De offenses connected commission. two or more charge charged, the offenses of number of be convicted may any fendant them. Section to elect between required is not as the prosecution 95-1504(1), where the same transaction 1947. But R.C.M. offense, the of number of more than one the commission establishes 95-1711(2), is section limited convictions obtainable be situation defendant may prosecuted 1947. In such R.C.M. with certain of same transaction offense out the arising each statutory exceptions: ** * not, however,
“(2) of more than one be convicted He may if: offense other;
“(a) is included in the one offense “(b) consists of a or other form of one offense only conspiracy other; the to commit preparation
“(c) of fact are establish findings required inconsistent offenses; of commission
“(d) one defined to a prohibit the offenses differ in that is only conduct and the other to a prohibit kind of designated generally conduct; such instance of specific
“(e) course of con continuing the offense is defined to prohibit and the course of conduct was unless interrupted, duct defendant’s such conduct con the law of provides specific periods 95-1711(2), offenses.” Section R.C.M.1947. stitute separate felony possession crime of of of felony possession The not an included in the so the former is offense of amphetamines, latter, do included in the former. Nor nor is the latter offense (b) (e) or con- number of limit the through prosecutions subsections we hold that where defendant victions in this case. Accordingly, at one drug more than kind of prohibited any is in of one possession time, offense for and convicted of may separate he be prosecuted of each kind prohibited drug possesses. whether he of error concerns
Defendant’s final specification at the close of the acquittal was entitled to direct verdict count him one His that the state argument charged evidence. with possession 368.5 approximately and in grams marijuana *9 15,785 the other with of count and possession tablets amphetamine proved by neither admissible evidence. trial,
At defendant failed to a object to instruction the ef- to jury fect that if the found that defendant the jury possessed prohibited the amount drug, thereof was immaterial in the case of except the marijuana, required where state was to that the amount prove exceeded 60 possessed to convict defendant of a grams This felony. is not a correct of statement the law to only which defendant could but object, the of validly this instruction was never propriety raised in the trial court and cannot be raised for the first time on (977), 307, 1103, v. State 174 570 appeal. Mont. P.2d Murphy first, The evidence seized under the third fourth searches 8,855 amounted to of approximately grams marijuana and tablets. amphetamine This evidence was trial correctly at admitted under our in this case. Even prior holdings and we do assuming, decide, not so that the in the second search drugs were inad- defendant, missible as contended the state’s was sufficient proof to crimes the without it. was support There no error in charged denial of defendant’s motion for direct verdict.
The conviction of on both counts affirmed. SORTE, HARRISON, MR. DALY and and M. JUSTICES JAMES Court, District with the concur. Judge, sitting MR. SHEA dissenting: JUSTICE The decision will to majority encourage search in policemen where would not many situtations have done so If they previously. search, arrest, without they may just luck out and making they find contraband or other of evidence On the other illegal activity. hand, if search someone and find it is they doubtful nothing, the vast of those searched will ever majority persons complain the authorities take other action. The of incidence searches will increase dramatically. (1955),
I fail of to see v. Simon compelling logic People
Ill 533, relies. If an 531, majority which 290 P.2d Cal.2d search, nothing justifying then finds before officer arrests involved, as free to he is just the individual of continued retention and then found first if he searched would be him as he release the out- is detained pending the individual either event In nothing. is no more first searches who is The defendant of the search. come first arrested. who is than the person free to go a search Moreover, reasons to prohibit are there compelling Constitution, II, 4, 1972 Montana Article Section an arrest. before human be- in “The dignity provides part: Individual Dignity, * * *” II, Right Privacy, Article Section is inviolable. ing to the well- is essential of individual privacy “The right provides: without the show- be infringed and shall not free society being II, Searches Article Section sate interest.” compelling ing in their shall be secure “The people Seizures part: provides *10 searches unreasonable and effects from homes papaers, persons, * * *” seizures. when are allowed to no dignity police The individual is provided of a free The well-being even before arrest him. they search him in- state compelling there is holding cannot be fostered by society can be an arrest. No search to allowing precede terest in when he is his person if officer can search secure in his person any not even under arrest. created a unwittingly has also that majority
It would appear a false ar- Previously, false search. of action—one of new cause there was no rest, out that action if it turned had a cause of one it false search it of action for has a cause cause..Now one probable the search. cause to justify was no out that there probable turned or no However, little practical action will provide this new cause of on their and then sent are searched multitude who redress to the in our of success the totem pole lowest on I fear that those way. searched. That why be most often who will will be those society it to should not allow happen. we