NO. 82-129 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

DANNY PAUL GODSEY, 

Defendant and Appellant. 

Appeal from: District Court of the Sixteenth Judicial District, 

In and for the County of Powder River 

Honorable Alfred B. Coate, Judge presiding. 

Counsel of Record: 

For Appellant: 

Stephens and Cole, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert Brooks, County Attorney, Broadus, Montana 

Submitted on briefs: October 7, 1982 

Decided: December 29, 1982 

Filed: 

< 6----r, -"A+:. 

4+ Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Defendant was convicted of one count of possession of 

dangerous drugs, a misdemeanor, and of one count of criminal 

sale of dangerous drugs, a felony, in a Powder River County 

trial held before the judge sitting without a jury. The 

District Court dismissed a third count charging possession 

of dangerous drugs, cocaine, for insufficient evidence. 

Defendant now appeals. We affirm. 

On Saturday morning, March 14, 1981, the Powder River 

County sheriff's office received a complaint from Broadus 

resident Anne Amsden that a vehicle was speeding in her 

neighborhood. She was concerned for the safety of her 

grandchildren who were playing in the area. Someone had 

identified defendant as the owner of the car, the only 1972 

orange and black two-door Chevy Nova in town. Deputy Dennis 

Frawley stopped at the Amsden residence later in the morning 

to get a description from Mrs. Amsden, and he asked her to 

sign a complaint. She did not want to sign a complaint for 

the issuance of a citation, but she did want something done. 

Deputy Frawley told her that he would "go over and talk to 

Dan and tell him to slow it down." 

The deputy then went to the residence of defendant's 

grandparents, which was where defendant stayed when he was 

in Broadus, and he found the car in the driveway of the 

residence. Several people were around the garage. The 

front tires were on the concrete apron in front of the 

garage, and he noticed someone working under the car. 

Assuming it was defendant, Frawley reached down and shook 

the person's foot. It turned out to be a fifteen-year-old 

friend of defendant, Tim Eustice, who slid part way out from 
under the car and told Frawley that defendant was in the 

house. As the deputy stood back up, he glanced through the 

open window of the car and saw a baggie of what appeared to 

be marijuana lying on the front seat. He seized the baggie, 

arrested defendant for possession of dangerous drugs, 

secured the scene, and called the dispatcher for back-up 

assistance. 

Since it was a weekend, Frawley was the only deputy on 

duty. It took some time for another officer to arrive. 

Frawley then booked defendant, and the car was impounded. 

Defendant was later charged with the sale of a dangerous 

drug (marijuana) to a minor (Tim Eustice) and with possession of cocaine. 

Two issues are presented on appeal: 

(1) Whether the District Court erred in allowing the 

introduction of evidence seized as a result of the warrantless entry onto private premises by a law enforcement 

officer; and 

(2 ) Whether sufficient evidence sustains the convictions. 

Defendant challenges the seizure of the marijuana on 

the basis that it was a warrantless seizure on private 

property following what may have been a pretext entry on the 

premises. This argument fails. 

This Court has carefully considered warrantless 

searches that fall within the "plain view" exception to the 

Fourteenth Amendment prohibition on such searches that was 

first enunciated by the United States Supreme Court in 

Coolidge v. New Hampshire (1971), 403 U.S. 443, 466, 91 

S.Ct. 2022, 2038, 29 L.Ed.2d 564, 583, and State v. Lane 
(1977), 175 Lqont. 225, 229, 573 P.2d 198, 201. In order for 

us to find that evidence obtained without a search warrant 

falls within the plain view doctrine, it must be demonstrated that: (1) the police officer had a prior justification for the intrusion; (2) that he then inadvertently came 

across the evidence incriminating the accused; and (3) that 

exigent circumstances existed that rendered immediate 

seizure imperative. State v. Lane, 175 Mont. at 229, 573 

P.2d at 201. 

Defendant argues that these conditions did not exist. 

He contends that Frawley did not have a legitimate reason to 

intrude upon the premises but rather used the speeding 

complaint as a pretext for investigating defendant, who was 

characterized by the officer as a suspected drug user. He 

also contends that no exigent circumstances existed that 

required immediate seizure of the baggie of marijuana. 

These contentions are without merit. 

The record provides ample support for the officer's 

claim that he was investigating a traffic complaint. Cf. 

State v. Carlson (1982), Mon t . , 644 P.2d 498, 39 

St.Rep. 802. There is also substantial evidence supporting 

his claim that he inadvertently came upon the baggie of 

marijuana. Both he and Tim Eustice testified to its ready 

visibility. Finally, the facts clearly demonstrate the 

existence of exigent circumstances. Several people were 

working or standing in the area near the garage. Deputy 

Frawley was the only officer on duty at the time he spotted 

the marijuana. It would take some time for a back-up 

officer to be called and to arrive. Since it was Saturday, 

it was likely that the justice of the peace might not be 
available to sign a search warrant. And the Powder River 

County attorney, the officer who generally prepared all 

search warrants, was out of town for the weekend. 

These circumstances are clearly distinguishable from 

the situation presented in State v. Lane, supra. In Lane, 

an officer spotted a marijuana plant from outside the window 

of a mobile home. There was no indication that anyone 

observed the officer as he made this discovery or that any 

threat was presented that the plants would be moved or 

destroyed in the time needed to procure a search warrant. 

The officer invaded the sanctity of someone's home, the 

chief evil against which the Fourth Amendment is directed. 

Payton v. New York (1980), 445 U.S. 573, 586, 100 S.Ct. 

1371, 63 L.Ed.2d 639, 651. 

Here, the officer did not violate any reasonable 

expectation of privacy that defendant may have had. State 

v. Byem (1981), - Mont. - , 630 P.2d 202, 38 St.Rep. 891. 

He walked onto premises that were open, where people came 

and went. No fences or gates barred the officer's entry. 

Indeed, the record indicates that while the bumper and 

headlights of the car were within the garage itself, part of 

the car was also parked upon a public right-of-way owned by 

the township. The deputy's intrusion was for the legitimate 

purpose of investigating a traffic complaint. His discovery 

was inadvertent and he faced a very real possibility that 

the evidence would disappear or be destroyed in the time it 

took to secure a warrant. He testified that he was startled 

and did a double-take on seeing the baggie sitting in plain 

view. There is a clear distinction between a warrantless 

seizure of property that rests in an open area or is seized 
without an invasrorl ot privacy and a seizure of property 

that is situated on private premises that are not otherwise 

open and accessible to the seizing officer. G.M. Leasing 

Corp. v. United States (1977), 429 U.S. 338, 354, 97 S.Ct. 

The United States Supreme Court has most recently 

examined the plain view doctrine in Washington v. Chrisman 

(1982), 452 U.S. 959, 102 S.Ct. 812, 70 L.Ed.2d 778. In 

Chrisman, a campus police officer observed Carl Overdahl, a 

student at the University of Washington, as he left a 

student dormitory with a half-gallon bottle of gin. He appeared to be underage and, thus, in violation of a Washington statute prohibiting possession of alcoholic beverages by 

anyone under the age of 21. The policeman stopped Gverdahl 

and asked for identification. Overdahl did not have identification on him and asked if the officer would wait while he 

went and got it. The officer told Overdahl that under the 

circumstances he would have to accompany him. Overdahl 

replied "O.K." Once in the dorm room, the officer noticea 

seeds and a small pipe and noticed that Overdahi's roommate, 

Chrisman, was behaving very nervously. He examined the 

seeds and pipe and on the basis of his training confirmed 

tnat they were marijuana. Overdahl and his roommate, 

Chrisman, were then read their Miranda rights and agreed to 

a search of the room. The Court held: 

"The 'plain view1 exception to the Fourth 

Amendment warrant requirement permits a 

law enforcement officer to seize what 

clearly is incriminating evidence or contraband when it is discovered in a place 

- where the officer --------------- has a riqht -------- to be. 

Coolidge v. New Hampshire, 403 U.S. 443, 

29 L.Ed.2d 564, 91 S.Ct. 2022 (1971); 

8arris v. United States, 390 U.S. 234, 19 

L.Ed.2d 1067, 86 S.Ct. 992 (1968). Here, 
the officer had placed Overdahl under 

lawful arrest, and therefore was authorized to accompany him to his room for 

the purpose of obtaining identification. 

The officer had a right to remain literally at Overdahl's elbow at all times; 

nothing in the Fourth Amendment is to the 

contrary." 102 S.Ct. at 816, 70 L.Ed.2d 

at 784-785. (Emphasis added.) 

The United States Supreme Court then went on to reject the 

argument that the officer's entry into the room upon observation of the seeds and pipe was not justified by exigent 

circumstances. 102 S.Ct. at 816, 70 L.Ed.2d at 785. The 

Court noted that the fundamental premise of the Fourth 

Amendment is that it protects only against unreasonable 

intrusion into an individual's privacy. 102 S.Ct. at 817- 

Officer Frawley had a right to approach defendant's 

vehicle and the person working under it as he investigated 

the traffic complaint. His inadvertent discovery of the 

marijuana in plain view and the likelihood that his discovery was noticed, coupled with the minimal chance that it 

would still be present upon his return with a warrant, 

justified his seizure. See also, Harris v. United States 

(1968), 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 

Defendant raises as a second issue the argument that 

there is not substantial evidence to support the verdict. 

He argues first that where two interpretations exist that 

may reasonably be placed upon a set of facts, this Court "is 

bound to adopt that interpretation which will admit of the 

Defendant's innocence." Second, that defendant was not in 

exclusive possession of the marijuana and therefore it may 

not be inferred that he knew of the presence of the drugs 
and had control of them without statements or other 

circumstances to support the inference. Third, he argues 

that the State failed to introduce the contraband items into 

evidence and thus failed to establish the corpus delicti. 

Finally, he argues that the testimony of Tim Eustice is 

accomplice testimony and as such requires corroboration. We 

reject these contentions. 

The appropriate standard of sufficiency of the evidence for this Court to apply was set forth by the United 

States Supreme Court in Jackson v. Virginia (1979), 443 U.S. 

307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560, 573, and was 

adopted by this Court in State v. Plouffe (1982), Mont . 

, 646 P.2d 533, 39 St.Rep. 1064: " . . . the relevant 

question is whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of 

fact could have found the essential elements of the crime 

beyond a reasonable doubt." 646 P.2d at 538, 39 St.Rep. at 

1070. Using that standard, we find sufficient evidence to 

support the verdict. 

While the contraband was not admitted at trial, prior 

to trial the court suggested and both parties agreed to 

stipulate that the evidence from the suppression hearing be 

deemed to have been submitted at trial. It was determined 

by the State Crime Lab that the baggie was full of marijuana. Testimony by Tim Eustice buttressed the inference 

tnat the marijuana found in defendant's vehicle belonged to 

defendant. Eustice stated that he noticed it, defendant 

observed his interest, and defendant told him he could "roll 

a joint" if he so desired. Eustice did so. Section 45-9- 

101(1), MCA, prohibiting sale of dangerous drugs, provides 
that: 

"A person commits the offense of criminal 

sale of dangerous drugs if he sells, 

barters, exchanges, gives away or offers 

- to sell, barter, exchange or give away or 

manufactures, prepares, cultivates, compounds, or processes any dangerous drug, 

as defined in 50-32-101." (Emphasis 

added. ) 

This Court has noted: 

"Constructive possession occurs when the 

accused maintains control or a right to 

control the contraband; possession may be 

imputed where contraband is found in a 

place that is immediately and exclusively 

accessible to the accused and is subject 

to his dominion or control or to the 

joint dominion and control of the accused 

and another, [citation omitted]." (Emphasis added.) State v. Meader (1979), 

Mont. , 601 P.2d 386, 392, 36 St.Rep. 

1747, 1754. 

Here, defendant exhibited control over the drug and offered 

it to another. The drug was in his vehicle. Eustice testified that the drug was not his and that he did not know to 

whom it belonged. However, he also testified that defendant 

exercised control over the marijuana by offering it to him. 

Substantial evidence supports the conviction. 

We reject defendant's argument that Eustice was 

rendered an accomplice pursuant to section 45-2-301, FICA, 

when he was granted immunity from prosecution on a charge of 

possession of marijuana. Section 45-2-301, MCA, holds a 

person responsible for conduct of another "when he is 

legally accountable for such conduct as provided in 45-2-302 

. . ." Section 45-2-302, MCA, defines a person's legal accountability for another's conduct when: 

"(1) having a mental state described by 

the statute defining the offense, he 

causes another to perform the conduct, 

regardless of the legal capacity or 

mental state of the other person; 
"(2) the statute defining the offense 

makes him so accountable; or 

"(3) either before or during the commission of an offense with the purpose to 

promote or facilitate such commission, - he 

solicits, aids, abets, agrees, or attempts to aid such other person in the 

planning or commission of the offense." 

(Emphasis added. ) 

Defendant has failed to demonstrate that Eustice is legally 

accountable for defendant's possession of marijuana under 

any of the provisions of the statute. 

Affirmed. 

n&.g Chief Justice uu &q