No. 86-323 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJAMES GONZALES, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Thomas C. Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

J. Mayo Ashley, HELENA, Montana 

For Respondent: 

Honorable Mike Greely, Attorney General, Helena, Montana 

Clay R. Smith, Assistant Attorney General, 

Mike McGrath, Lewis and Clark County Attorney, 

Helena, Montana 

Carolyn Clemens, Deputy County Attorney 

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Submitted on Briefs: February 18, 1988 

Decided : !.AA/? 2 4 1988 

Filed: fifxf?" 2" 4"@fr 

*, 

Clerk 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

Appellant James Gonzales appeals his conviction for 

theft in the District Court of the First Judicial District, 

Lewis and Clark County. We affirm. 

Mr. Gonzales contends that the District Court erred by 

admitting evidence obtained in violation of his search and 

seizure rights under the Fourth Amendment to the United 

States Constitution, and Articl-e 11, $5 10 and 11, of the 

Montana Constitution. The asserted violation stems from 

police placement of florescent detection powder on the 

exterior of an automobile owned by Mr. Gonzales's brother, 

Jason Gonzales. The police applied the powder to Jason 

Gonzales's automobile without first obtaining a warrant. 

After the powder was placed on the vehicle, police found 

traces of similar powder at different locations within a 

Helena home which had been burglarized. The police officers 

investigating the burglary used the presence of the powder at 

the Helena home to obtain a search warrant for Jason 

Gonzales's home and automobile. The searches of the automobile and home revealed evidence the State used to charge both 

Jason and James on counts of burglary and theft. 

The codefendants moved the District Court to suppress 

the evidence contending that placement of the powder on the 

car constituted an illegal search and seizure of the car, and 

that evidence obtained as a result of the application of the 

powder constituted fruit of the poisonous tree. The District 

Court denied the motion holding that the application of the 

powder to the car did not constitute a search or seizure so 

as to implicate search and seizure rights under the United 

States Constitution and the Montana Constitution. Following 

this ruling the codefendants moved to sever their trials and 

the District Court granted the motion. After the separation 
of the trials, Jason pled guilty to both counts. James 

proceeded to trial, and the jury returned a verdict convicting him of the count for theft. 

Mr. Gonzales contends on appeal that the lower court 

erred by concluding that placement of the powder on the car 

and the transfer of the powder to his hands did not constitute a search or seizure. The State responds that the District Court correctly concluded that the application of the 

powder did not constitute a search or seizure, and that even 

if a search or seizure existed, Mr. Gonzales lacks standing 

to contest its validity. We affirm because Mr. Gonzales 

lacks standing on this issue. 

An individual must have either a property or possessory 

interest in the automobile searched or seized by the police 

to assert standing for violations of the Fourth Amendment to 

the United States Constitution. Rakas v. Illinois (19781, 

439 U.S. 128, 148, 99 S.Ct. 421, 433, 58 L.Ed.2d 387, 404. 

The same holds true with regard to the Article I1 guarantees 

of the Montana Constitution. State v. Ribera (1979), 183 

Mont. 1, 8-9, 597 P.2d 1164, 1168-69. Thus, the threshold 

question here is whether Mr. Gonzales can claim either 

interest in his brother's automobile. 

As part of his defense, Mr. Gonzales maintained that he 

had no property interest in the automobile, and that he never 

drove it. Therefore, even if the application of the powder 

constituted an illegal search or seizure of his brother's 

vehicle, Mr. Gonzales lacks standing to object to the violation. Inasmuch as Mr. Gonzales cannot assert standing, we 

decline to address the issue of whether a search or seizure 

existed as a result of the use of the powder. Affirmed. 

We Concur: