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: DistrictCourt of the Fourth Judicial District, In and for the County of Ravalli Honorable DouglasHarkin, Judgepresiding. Counsel of Record: For Appellant: Recht and Greef, Hamilton,Montana For Respondent: Mike Greely,Attorney General, Helena,Montana Robert B. Brown, CountyAttorney, Hamilton,Montana

Submitted on briefs: February 18, 1982 ~ecided:~uly 15, 1982

Filed:

## JUL

## 15

# 1982 

# =w ClerkMr. JusticeDaniel J. Shea delivered the Opinion of the Court

# . DefendantKevin J. Sayers appeals a Ravalli County District Court judgment finding him guilty ofpossession 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 therewere 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 closetwas not inadvertent and therefore constituted a search. And third, he claims that a searchwarrant issued after the landlords' entrywas 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 searchwarrant, 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 defendantwas a high school senior who was renting
an apartment in Hamilton. In themiddle 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 themonth. At that time, he gave the Williamsons oral permission to show his apartment to prospective renters. Further, the written rental agreementbetween the defendant and the Williamsonsprovided: "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 defendantborrowed 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 defendanthad last used it. When therewas 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 seenpictures of marijuana and some livemarijuana plants at City Hall. A police officerwas 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 thepolice 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 lethislandlords enter the apartment to retrieve the vacuum cleaner. The trial court then distinguished Statev. Hyem (1981), - Mont. - 

## , 630 P.2d 202, 38 St.Rep. 891, on the basis that here the landlord's intrusionwas consensual and their observation of themarijuana plants were inadvertent. The trial courtheld that the: 

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. ,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 onwhich the trial court ruled. Rather,we hold that the landlords' entry was justified by the lease provision in which the landlords' reserved

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# . . the right to enter the premises at all reasonable times

# . . ."Surely, based on this provision, their entry was justified when they did not knowwhether the defendant had abandoned the premises and taken their vacuum cleanerwith 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 firehazard. An unexpected light coming from a closetwould certainly attract anyone's attention,particularly that of a landlord. To hold that the landlordshad no right to peer into this closet because they had no express or implied consent from defendant to do
sowould be to ignore reality. Defendantdoes not arguethat the landlords expected to findmarijuana or were searching formarijuana. The landlords' observationswere made because of the light coming from the closet rather than from their desire to search the closetwith 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 searchwarrantwas 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 affidavitwas 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 searchwarrant, argues that the landlords' observationswere 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--marijuanaplants,dried marijuana, and paraphernalia. The order denying the motion to suppress is affirmed and the judgment is affirmed.We Concur: