NO. 81-492 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

VS . 

KEVIN SAYERS, 

Plaintiff and Respondent, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Ravalli 

Honorable Douglas Harkin, Judge presiding. 

Counsel of Record: 

For Appellant: 

Recht and Greef, Hamilton, Montana 

For Respondent: 

Mike Greely, Attorney General, Helena, Montana 

Robert B. Brown, County Attorney, Hamilton, Montana 

Submitted on briefs: February 18, 1982 

~ecided: ~uly 15, 1982 

Filed: JUL 15 1982 

=w Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court . 

Defendant Kevin J. Sayers appeals a Ravalli County 

District Court judgment finding him guilty of possession of 

dangerous drugs (marijuana). The appeal concerns only the 

issue of whether the trial court should have granted a 

motion to suppress the use at trial of live marijuana 

plants, dried marijuana, and paraphernalia. We affirm. 

On three grounds, two of which involve claims of an 

invasion of his right to privacy, he claims that entry and 

search of his apartment by his landlord was illegal. First, 

he claims there were no exigent circumstances justifying 

the landlords' entry and that he did not consent, expressly 

or impliedly, to that entry. Second, he claims that the 

landlords' observation of marijuana plants in his closet was 

not inadvertent and therefore constituted a search. And 

third, he claims that a search warrant issued after the 

landlords' entry was not supported by reliable allegations 

on the part of the landlords. 

We hold that under the terms of the lease the landlords 

had a right to enter the apartment to retrieve their vacuum 

cleaner. Second, we hold that the landlords' observations 

were inadvertent and did not constitute a search. Third, we 

hold that the search warrant, issued not only on the statements of the landlords, but also on the allegations of the 

police officer called into the apartment by the landlords 

to observe the evidence, was based on reliable evidence. 

The defendant was a high school senior who was renting 

an apartment in Hamilton. In the middle of February 1981, 

he notified his landlords, Lyle and Ruby Williamson, that he 

was going to move out of his apartment at the end of the 
month. At that time, he gave the Williamsons oral permission 

to show his apartment to prospective renters. Further, the 

written rental agreement between the defendant and the 

Williamsons provided: 

"The owner . . . reserves the right to 

enter the unit at all reasonable times, 

and reserves the right to show the unit 

to other prospective tenants after notice 

has been given. " 

On approximately February 26, the defendant borrowed 

the Williamsons' vacuum cleaner kept in a hall closet and 

available for tenant use. On February 28, Mr. Williamson 

could not locate the vacuum cleaner, but learned from his 

wife that the defendant had last used it. When there was no 

answer at the defendant's door, the Williamsons entered the 

apartment and immediately observed their vacuum cleaner in 

the middle of the living room. Mr. Williamson walked into 

the room to get the vacuum cleaner, and Mrs. Williamson went 

to leave a note on the defendant's kitchen table. Mr. 

Williamson testified that he then noticed a bright light on 

the floor of a closet, and was concerned that a lamp had 

fallen over and might start a fire. He testified that he 

". . . glanced over and the door was open to the closet and 

the [marijuana] plants were in the closet." He also testified 

that he had previously seen pictures of marijuana and some 

live marijuana plants at City Hall. 

A police officer was called to examine the plants and 

a search warrant was issued based on his observations. 

In ruling on the defendant's motion to suppress, the 

trial court held that the police officer's observations 

could not be used to support the warrant because the defendant 

did not consent to the officer's entry. The trial court did 

hoid that the defendant's continued possession of the 

vacuum cleaner implied that he had consented to let his 
landlords enter the apartment to retrieve the vacuum cleaner. 

The trial court then distinguished State v. Hyem (1981), - 

Mont. - , 630 P.2d 202, 38 St.Rep. 891, on the basis that 

here the landlord's intrusion was consensual and their 

observation of the marijuana plants were inadvertent. The 

trial court held that the : 

". . , defendant could not realistically have 

had an expectation of privacy when he must be 

charged to have known that the landlord might 

reasonably have concluded that he had vacated 

the apartment, or that the landlord might have 

shown the apartment to others or come looking 

for the vacuum cleaner." 

First, we agree with the trial court that defendant 

consented to the entry of his apartment, but on a broader 

ground than that on which the trial court ruled. Rather, we 

hold that the landlords' entry was justified by the lease 

provision in which the landlords' reserved ". . . the right 

to enter the premises at all reasonable times . . ." Surely, 

based on this provision, their entry was justified when they 

did not know whether the defendant had abandoned the premises 

and taken their vacuum cleaner with him. 

Second, we hold that once the landlords had legally 

entered the apartment, they had a right to peer in the 

closet eight feet away, even though they had already seen 

the vacuum cleaner in the middle of the apartment floor. 

The landlords testified that they noticed light coming from 

the closet floor and were concerned that a lamp had fallen 

over and could constitute a fire hazard. An unexpected 

light coming from a closet would certainly attract anyone's 

attention, particularly that of a landlord. To hold that 

the landlords had no right to peer into this closet because 

they had no express or implied consent from defendant to do 

so would be to ignore reality. Defendant does not argue 
that the landlords expected to find marijuana or were 

searching for marijuana. The landlords' observations were 

made because of the light coming from the closet rather than 

from their desire to search the closet with the expectation 

that they would find marijuana. 

Third, we hold that the application for a search 

warrant was legally sufficient. The trial court held that 

the search warrant was valid even though the police officers' 

observations could not be used as a basis for the search 

warrant; rather, the trial court held that the landlords' 

evidentiary statements in the affidavit was sufficient to 

constitute probable cause. Defendant, relying on the trial 

court's ruling that the police officer's observations could 

not be used to support the application for a search warrant, 

argues that the landlords' observations were legally insufficient. But we need not address that contention. We 

hold that the landlords could, under the circumstances, 

permit the police officer to observe the items in the 

closet, and therefore that the police officers' observations 

could be used as the basis to issue a search warrant. 

Defendant does not attack the observations made by the 

police officer, and those observations clearly demonstrate 

that he knew what he had seen--marijuana plants, dried 

marijuana, and paraphernalia. 

The order denying the motion to suppress is affirmed 

and the judgment is affirmed. 
We Concur: