*1 MONTANA, STATE OF TIMOTHY Appellant, Plaintiff and SCHULTZ, SCHOENDALLER BENOI Defendant J. Respondent. No. 13926.
Submitted March 1978. 2,May 1978. Decided filed an opinion. dissented and Harrison Mr. Justice Moore, Helena, Gen., P. County Michael T. Atty. Greely, John Bank, Larry Cut Cut Atty., Epstein, Deputy County (argued), Atty. Bank, plaintiff appellant. Nelson, Bank, &
Werner Cut C. Nelson Cut (argued), James Bank, Aronow, Anderson, Lee,& W. Beatty Bruce Moerer Shelby, *2 for defendant and (argued), Shelby, respondent.
MR. DALY delivered the of the Court. opinion JUSTICE The State of Montana an order of the appeals Court, Glacier all evidence the County, obtained in suppressing search of an automobile Benoi Schultz and operated by occupied by Timothy Schoendaller. The State further from the appeals order of the District Court criminal dismissing charges against Schoen- daller. 4, 1977,
On the of February at 8:55 evening approximately officers, two Cut Bank p.m., on-duty city police riding together car, their observed patrol two vehicles lanes traf- stopped the of fic on a street in the Cut of Bank. The officers the City directed vehicles to the side of the road and the drivers. One of approached Schultz, the vehicles was driven by accompanied by Schoendaller and a female juvenile.
Officer LaBane told Schultz the vehicles were for violat- stopped a Cut Bank ing city ordinance which prohibited “stopping of middle the street” to talk. While beside the standing open vehicle, driver’s window of the Schultz Officer LaBane detected the of odor and incense. on this Based detection the offi- cer directed the occupants to exit the automobile and enter the rear seat of police the car. Officer LaBane then patrol requested Officer Babb to his head in the window the place Schultz automobile see if could he detect the odor marijuana. Upon Offi- obtaining cer Babb’s confirmation that he too detected the odor of mari- juana, Officer LaBane Schultz’s requested to search the permission denied, automobile. When was permission Officer LaBane pro- ceeded to search the and Marijuana, automobile. mellaril pills drug smoking were found in the the paraphernalia rear seat of A automobile. hashish was found beside pipe floor the front seat. Officer LaBane returned to his car for- passengér patrol juvenile, the defendants and female based upon arrested mally was in his search. A wrecker dispatched evidence confiscated at Upon car it was station. impounded pick up police station, arrival Officer Babb conducted body at disclosed a “white rock” marijuana pipe of defendants which of Schoendaller. found in the pants pocket court, were in justice defendants charged On February criminal for the misdemeanor crime of possession Glacier County, drugs. subsequently granted The District Court dangerous On February to file defendants. charging leave Informations charging filed the Glacier Informations County attorney of dangerous with crime of criminal possession defendants (a less than 60 grams), drugs marijuana weighing quantity 54-133, Defend- in violation section R.C.M.1947. misdemeanor all entered motions ants entered of not pleas guilty warrant. The obtained without a search the motions hearing causes were consolidated for the purpose suppress. *3 a on the District conducted hearing
On Court April to the of and in opposition motions to Briefs suppress. support Court. On July to were submitted suppress motions fact, conclusions the District issued its findings Court suppress order Schultz’s motion of law and granting grounds: “ * * * conduct, officer, did not The his by testimony seizing of the automobile to believe the contents have reasonable cause Therefore, a cause sufficient for law. probable offended against arrest, search, for an did not exist.” cause separate probable fact, its the District issued findings On the same day, Schoendaller’s motion of law and order granting conclusions and added: on the same grounds and motion to dismiss * “* * herein, than more the defendant bring against To charge further made without in the where a search is mere presence place an arrest.” cause is insufficient justify proof review: The raises two issues for of the odor of marijuana officer’s detection 1. Whether is sufficient probable from inside an automobile and the ar- subsequent for the warrantless search of the automobile in the search? on the of evidence seized rest of the basis occupants automobile con- 2. Whether the Schoendaller presence (1) his arrest on the basis stituted sufficient cause for (2) of the automobile and evidence seized in the warrantless search and the of his at the station search person seizure of evidence?
The law of search and seizure is codified as Title Chapter 95-701, R.C.M.1947, Revised Codes Montana. Section specific- ally provides: —
“Searches seizures when authorized. A search of a person, instruments, or be made and articles or object place may things be seized in may accordance with the of this provisions chapter when the search is made:
“(a) As an incident to a lawful arrest.
“(b) who the accused or of other any person With the consent of searched, be or or possession object place lawfully be in such lawful posses- who is believed reasonable cause to sion the search. by person making
“(c) of a By search warrant. authority “(d) Under the and within the of a of law- scope ful law.” inspection granted by
The facts of the case demonstrate a absence of clear arrest, either search and seizure to a incident lawful consent or Thus, to a valid search warrant. pursuant be- question comes whether the instant search and seizure is authorized under “* * * (d), within subparagraph of a of lawful in- scope law.” spection granted
The United States Supreme announced the rule of long ago law to the warrantless search and of an applicable seizure automo- bile: reason
“On the true rule is that if the search and 380 cause, is,
seizure without a warrant are made upon probable belief, out reasonably arising circumstances known to officer, that an seizing automobile or other vehicle contains destruction, that which law is seizure and subject the search and seizure are valid. The Fourth Amendment is be construed of what was deemed an light unreasonable search and seizure when it was and in a manner which will adopted, conserve public interests as well as the interests and of individual rights citizens.
“* * * In cases where the of a securing warrant is reasonably used, it practicable, must be and when affi- properly supported by davit and issued after judicial approval protects seizing officer a suit against In cases where damages. seizure is impossible warrant, without except officer acts seizing and at unlawfully his unless he can show peril the court cause.” Carroll v. States, (1925), 132, 149, 156, 280, 283, United 267 U.S. 45 S.Ct. 286, 69 L.Ed. 552.
Carroll and its
to search
progeny clearly distinguish
right
an
automobile and seize
to arrest:
right
“ * * * The
to search and
of the seizure are not
validity
on the
dependent
arrest.
are
on the reason-
They
dependent
able cause the
officer has for belief that
seizing
the contents of the
automobile offend
against
law.”
U.S.
45 S.Ct.
(1970),
See also: Chambers v.
Maroney
U.S.
90 S.Ct.
419;
(1971),
26 L.Ed.2d
v. New
Coolidge
Hampshire
U.S.
91 S.Ct.
We find no error in the officer’s initial detention of defendants. was in violation Schultz of Cut Bank ordinance city when he his vehicle in the street for the stopped convers purpose vehicle, with the driver of another ing the street. similarly blocking The crucial is whether question the officer’s detection of the old odor of incense and smoked sometime in the past from the automobile is sufficient cause of Offi automobile, cer LaBane’s into the cir- entry lacking exigent any *5 and the the automobile cumstances, search of warrantless for the of evidence seized on the basis arrest of occupants the search. (1973), 163 Mont. Christenson
In State Spielmann, defini- the following with this cited approval cause: tion of probable conviction; would justify which need not have evidence
“One known and circumstances exists if the facts cause the offense that believing man in warrant a prudent officer would hand, the other or committed. On being has been mere the line between suspicion a bare means more than suspicion, an act of formed drawn judgment cause ‘must be by and probable taken of all and with account situation light particular ” 1970), (3rd Cir. United States v. Thompson the circumstances.’ 420 F.2d cases which involve cited some border patrol
The has State these are easily distinguishable but burning smoke and marijuana in terms at national borders existing virtue of the circumstances by within the country, But those lawfully of national self-protection. have a to free passage entitled to use public highways, author- a official without or search unless competent interruption that vehicles are cause for believing ized to search has probable v. United or merchandise. Carroll contraband illegal carrying States, not when ap- border cases are persuasive The patrol supra. case in light privacy to the facts plied the United States seizure by search and protections guaranteed and the 1972 Montana Constitution. Constitution involves warrantless case cited Additional cir- officials under different searches conducted after investigatory detected the odor of presently burning marijuana. cumstances Here, “I asked hearing: testified at the suppression Officer LaBane smelled a and at the same time I for driver’s license Mr. Schultz’s incense with that of some in the car along odor strong marijuana * * al- or LaBane something, testified Officer further odor, he would not deter- has a distinctive very though marijuana mine whether were when the smoking marijuana defendants came them or whether had smoked been marijuana officers in the automobile within the hour or previous more. Officer did LaBane that the mere odor agree marijuana might linger an automobile more than day. The conducted their warrantless search basis “* * * odor of in the car with that strong along ”** * some incense or circum something lacking any exigent
stances, such falls closer to the realm of bare perception suspicion than probable cause. We do not officers the to deny However, these sense smell to confirm their rely observations. alone, contents, to hold that an odor absent evidence visible equivalent deemed view officers plain might mislead very easily into fruitless invasions of where is no there contraband. privacy
There is little law in this very dispute concerning applicable However, matter. close itself on the facts in- question presents record, volved. this Court is faced with a Again cold while the Dis- Court trict heard the and had observe opportunity the demeanor and conduct of each As a the law witness. result instructs this Court the District Court’s comes to us judgment awith of correctness and the State here must over- presumption come this presumption the evidence. This by preponderance burden has not been met. we
Therefore must conclude the officers did not have sufficient search probable cause to the automobile driven by Schultz. Evidence seized unconstitutionally during search was the District Court. ar properly suppressed by Since the rest of Schoendaller and the search of his was of the the fruit person seizure, unlawful search and the District Court properly sup evidence seized from pressed granted Schoendaller properly Schoendaller’s motion to dismiss.
The orders of the District Court defendant’s motions granting motion to are Schoendaller’s dismiss affirmed. HASWELL, MR. CHIEF SHEA and GUL- JUSTICE JUSTICE BRANDSON, Court, in the vacant seat of the Judge, sitting concur.
MR. HARRISON dissenting: JUSTICE I dissent. This has twice in the recent dealt with cases past whether the odor considering of marihuana constitutes probable Hull, (1971), cause for arrest and search. State v. 158 Mont. 1314; Bennett, (1972), State v. 158 Mont. 493 P.2d 1077. While in Hull the officers had been notified that a pot party case, was in a fact not in the instant progress, one factors this the conviction controlling Court’s was the affirming aroma of or burnt burning marihuana from the resi- There, here, dence. like nor marihuana or hashish was visible when the officers went into the home. Bennett,
In the officers smelled the marihuana when entered they the apartment and before building, going upstairs apartment occupied defendants. While Hull and Bennett differ factual- case, from the instant I believe have until ly now stood for the they that the proposition odor of or burnt marihuana burning offi- gives cers cause to search and arrest.
California,
case,
in an
found sufficient
opium
Chew, (1956),
and arrest in
v. Bock
People
Leung
Cal.App.2d
*7
California,
Police officers have to use not only good judgment handling — on their three senses sight, of this but must much rely
cases type, them to and not hearing, To limit hearing. sight smell will, in make their difficult task even more diffi- smell opinion, my cult. and reinstate the crim- would overrule the District Court State’s
I inal charge.