No. 12945 INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

THE STATE OF MONTANA ex rel., ANTONIO 

### KOTWICKI, Relator,

THE DISTRICT COURT OF 

### THE FIRST JUDICIAL DISTRICT etal., Respondents.

ORIGINAL PROCEEDING: Counsel 

### of Record: For Relator: W. William 

### Leaphart argued, Helena, Montana For Respondents: Leif 

### B. Erickson, 

### Jr. argued, Helena, Montana

Submitted

### : January 27, 1975 Decided: 

# 446

# -4 

## ,975

2, Filed: ~+t>~, , , ; ,-a , -!

. I

### Mr. ChiefJustice James T. Harrison delivered the Opinion of the Court. This 

### isan originalproceeding wherein relator seeks an appropriate

### writdirected tothe district court, Lewis and Clark County, requiring that court toreverse itsorder of December 4, 1974, denying a motion to suppress the evidence seized by officers from relator's presence on September 25 and 26, 1974. Counsel for relator was heard ex parte and thereafter an order was issued calling for an adversary hearing and staying all matters until the further order of the Court. Counsel appeared upon the date fixed for the hearing, briefs 

### were filed and respondent court fileda motion todismiss because relator had adequate relief by appeal. See State ex 

### rel. LaFlesch, Mont

# . I 592 P.2d 1403, 31 St.Rep. 772. The facts are: An officer of theMontana Highway Patrol

was working radar on Interstatehighway 15, north of Helena on September 25, 1974, atapproximately 9:30 p.m., when a vehicle traveling about 70 m.p.h. was sighted. The officer pursued and stopped thevehicle and advised the driver, relator here, that he had been stopped for driving inexcess of the nighttime speed limit. Further that an appearance bond of $15 would have tobe posted. The amount is a standard bond in such cases. Relator could not post bond, advising the officer that he was unemployed and his only Montana address was General Delivery, Colstrip. His driver's license was from out of state. Following standard procedure, relator was placed under arrest. Relator then drove his vehicle to the county jail. Atthejail, relator was permitted tophone a friend in an effort topost bond. After learning that his friend did not have themoney right then and that it would be a while, the deputy sheriff on duty informed relator he would have tobe locked up. The deputy sheriff searched relator priortoplacing him inthe cellblock. In the process the deputy sheriff discovered a small bag of plant-like material in relator's right shoe. The deputy lifted 

### it from the shoe and inplacing it on the counter top inthejail receiving area, made the comment: "What do 

### we have here?" The district court found that this comment was made tono one inparticular. However, relator, thinking the remark had been made tohim, responded by answering "Marijuana." Shortly thereafter relator was placed inthe cellblock and then brought back and for the first

### time, advised of his rights under theMiranda decision. Later that evening a deputy county attorney advised relator of hisrightswith respect to a search of his vehicle and requested a waiver of those rights and a consent to search. Although relator atone point stated, "you might just aswell look in it, it's fullof marijuana", he subsequently revoked his consent. The next morning relator was again asked by the deputy county attorney toconsent toa search and in such conversation

was advised that inany event a searchwarrant would be obtained. Atthat timerelator signed a permission to search. The search

was thereafter conducted and the 

### items seized arethe subject of the motion to suppress. Relator contends (1)that his custodial arrest for exceeding the speed 

### limitviolates the Fourth Amendment tothe United StatesConstitution and Art. 11, Sec.11 of theMontana Constitution; (2) that his custodial arrest asa result of not having sufficient funds topost the appearance bond violates the equal protection clause of the Fourteenth Amendment tothe United States Constitution; (3) that allevidence was either identified or derived from police questions asked inviolation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L Ed 2d 694, and (4) that his consent to the searchwas not "voluntary1'under the standard established in Schneckloth

### v, Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L Ed 2d 854. Relator's custodial arrest for exceeding the speed limit did not violate the Fourth Amendment totheUnited StatesConstitution nor Art. 11, Section 11, of the Montana Constitution. Inpertinent part, the Fourth Amendment reads: "The right of thepeople tobe secure intheir persons 

## * * * against unreasonable 

## * * * seizures, shall not be violated 

## * 

## * *." The Montana Constitution reads: "The people shall be secure in their persons 

## * 

## * * from unreasonable

## * * * seizures." Under these constitutional provisions, we must inquire intowhether relator's custodial arrestwas reasonable under the particular circumstances of thiscase. We hold that it 

### was. Upon stopping relator, the highway patrolman learned these facts: relator possessed an Arizona driver's license; relator

was unemployed; the only address relator could give was "General Delivery, Colstrip"; and, while Colstrip is inRosebud County, relator was driving a car licensed inBig Horn County. It is

common knowledge that Colstrip is today a boom town, a construction town, with nearly the entire population transient. Given these facts, it was reasonable for the highway patrolman to believe that relator was a transient, unlikely toreturn and pay the fine if he was allowed todrive on down the road without having posted an appearance bond. The highway patrolman was clearly within his rights when he directed relator toproceed tothe county jail and directed his incarceration. Section 31-112, R.C.M. 1947, empowers a patrolman, upon making dn 

### arrest, todeliver the offender: (1)tothe nearest justice of the peace, during office hours; 

## - or (2) tothe county jail, 

## - or (3) deliver a summons to the offender,

# or (4) accept a deposit for appearance. In addition, the Montana HighwayPatrol Manual directspatrolmen to refrain from allowing out of state "violators toproceed without first settingand accepting an appearance bond". Even if 

### it be conceded that relator

was not an "out of stateviolator", where the circumstances are such that the violator does not have the cash for the appearance bond on hisperson, 

### it 

### isnot during office hours for the justices of the peace, and it 

### isunlikely that the violator 

### willhonor a summons, the patrolman properly exercised his discretion indelivering relator tothe county jail. Relator contends that a reasonable alternative tothe booking and jailing of relator would have been to allow relator towait inthe lobby until his friend arrived with the bond money. Even conceding thepatrolman had nothing better todo than towatch relator, there was nothing atthat time toassure the patrolman thatrelator's friendwould show up inthe half hour

or forty-five minutes inwhich he did. The patrolman quite possiblymight have had towatch over relator for an hour or two and stillhad tobook and jail relator if his friend never showed up. This uncertain "babysitting" isunreasonable. Relator concedes the statehas an interest incollecting fines for speeding violations. However, relator does not present any viable alternative totaking the offender into custody, which would ensure the collection of these fines when the circumstances are such that the offender is unlikely toreturn and pay the fine. Relator's arrest was an arrest for a traffic offense. It was not an arrest for a crime involvingmoral turpitude, which arrest initself might blemish his future. That being the case,
we hold the state's interest inthe collection of this fineoutweighed therelator's interest inbeing free from thiscustodial arrest. Neither does relator's custodial arrest for exceedingthe speed limitviolate the equal protection clause of the Fourteenth Amendment of the United States Constitution. Relator contends firstthat he was only taken into custody when it became apparent that he did not have sufficient funds topost the bond; that he was, ineffect, arrested for not carrying money. Relator relies on Williams v. Illinois, 399 U.S. 235, 240, 241, 243, 244; 90 S.Ct. 2018, 36 L Ed 2d 586, wherein the court concluded: 

## " * * 

## * when the aggregate imprisonment exceeds the maximum period fixed by the statuteand results directly from an involuntary nonpayment of a fine or court costs we are confronted with an impermissible discrimination that rests on ability topay 

## * * 

## *." He further relies on Tate v. Short, 401U.S. 395, 91 S.Ct. 668, 28 L Ed 2d 130, 133, wherein the Court adopted the view of four members of the Court inMorris v. Schoonfield, 399 U.S. 508, 90 S.Ct. 2232, 26 L Ed 2d 773, by stating: 

### "'

## * * * the Constitution prohibits the State from imposing a fine asa sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.'" Relator's argument is that, although the $15 is technically an appearance bond, inpractice it is the actual fine. at her than appear, violators forfeitthe bond and the matter is dropped. Section 32-21-157, R.C.M. 1947, provides the statehas the option of punishing a traffic offender with a fineor with imprisonment, 

### - but not both. As such, relator argues, under Tate, when the patrolman opted to issue a summons to appear, he chose tofine the relator and was thereby precluded from incarcerating.him. However, the instant case isdistinguishable from those cited by relator on atleast three grounds. First, the cases cited by relator involve the conversion of sentences received from that of fine toimprisonment. Here, 

### we are involved not with 

### ajudicially imposed sentence but with an appearnce bond designed toprevent the offender from entirely escaping punishment. Second, the cases cited by relator involved incarceration in

excess of statutory 

### limits. No such claim ismade here. Third, each case cited by relator involves the indigency of the defendant whereby he is unable topay the fine. Here, there is no claimmade that relator was so indigent he could not pay the $15 bond, merely that he did not have the cash inhis pocket. Indeed, he was driving a new 1974 automobile. We hold that this case is not within therationale of Williams, Tate or Morris. The United States Supreme Court specifically stated inWilliams:

" 

## * * 

## * We have no occasion toreach the question whether a State 

### isprecluded inany other circumstances from holding an indigent accountable for a fineby use of a penal sanction

## * * *.I1 The Court inWilliams also anticipated the problem inherent in itsdecision if applied toother fact situations, such asthe

case athand, when it stated: "The State is not powerless toenforce judgments against those financiallyunable topay a fine; indeed, a different result would amount to inverse discrimination since it would enable an indigent toavoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other conviction." When the facts are such astoreasonably indicatetothe patrolman that the offender 

### isunlikely toreturn and pay the fine, the statemust have thepower toeither take the offender intocustody or torequire an appearance bond inorder tobe assured the offender willsuffer some punishment. We have previously disposed of relator's contention that hn should have been allowed to

### waitinthe lobby until his friend arrived with the bond money. To have allowed relator to have proceeded on hisway simply because he did not have $15 inhis pocket would have resulted inthe "inverse discrimination" condemned by theunited States Supreme Court since another offender under like circumstances with $15 inhis pocket would have had topost bond, whereas relator quitepossibly could have escaped punishment altogether merely by leaving the state. The circumstances of this arrest could have happened to anyone--rich or poor. Relator's incarceration was not the result of a denial of equal protection based upon indigency, but, from the facts, was the result of being within the class of persons unlikely toreturn and pay the fine. Were the logic of relator tobe followed through, then anyone unable topost any kind of a bond would have to be immediately released because the bond was discriminatory against him. Instead, bond isrequired toassure the appearance of the accused atcourt. This is a legitimate purpose which has been upheld and needs no further comment. Relator's second equal protection argument 

### is that he

was not treated the same asother individuals inprecisely the

same situation. Officer Kessner, who picked up relator, testified that during the period from January 1974 to September 1974 he had stopped approximately twenty motorists for exceeding the night speed 

### limitwho were not able topost bond on the spot. Of those approximately twenty motorists, five

### were brought into the sheriff's office until they could come up with themoney. Four of these fiveobtained themoney within a "very short period of time". Only one person, other than relator, was incarcerated because he was unable topost bond. Relator had the burden of proof to show that he was inessentially the same situation as the four persons taken tothe sheriff's officewho were not booked and jailed, but did come up with themoney within a "very short period of time". Relator has not sustained his burden, Relator merely points to four persons who 

### were not booked and jailed, but with no attempt tofind out whether he was in essentiallythe samesituation. There was no attempt to find out how long "a very short period of 

### time" was, and whether relator's friend arrived within that time. In addition, relator's counsel cut off the testimony of Officer Gssner which might have answered the question as towhy relator was booked and jailed when the other four

were not: "Q. Is 

### it normal procedure toput them injail if they can't post bond? Whilethey areeven waiting for someone tocome and post bond for them? A. No, I don't book them until-- "Q. Do you have any departmental guidelines as towhen and when not you should take somebody intocustody for a speeding ticket? A. Yes, 

### sir, I do." The "departmental guidelines" referred to, direct highway patrolmen torefrain from allowing out of state "violators toproceed without first setting and accepting an appearance bond". The guidelines do not explain whether a violator should be booked and jailed. Having determined that relator's custodial arrestwas valid, it follows that the search of relator's person was also valid. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L Ed 2d 427; Gustafson v. Florida, 414 U.S. 260, 94 S.Ct.

We findrelator's third contention, that allevidence

was either identified or derived from police questions asked in violation of Miranda, tobe without 

### merit. Relator contends the deputy's question, "What do we have here?" was asked prior torelator being given the Miranda warning and thus relator's answer, "Marijuana", and the bag of marijuana should be suppressed. In no event should thisreasoning require the suppression of the bag found inrelator's shoe. That bag was discovered pursuant toa valid search, ptior toany statements relatormade. Neither should relator's spontaneous answer be suppressed. A reading ofMiranda indicates that 

### it applies to "interrogation" of the defendant. In this case, therewas no interrogation. The district court found the question of t.he deputy was not directed toanyone inparticular. Finally, we hold that relator's consent tothe search of his car was "voluntary" under the standard established in Schneckloth. Relator contends the circumstances surrounding his consent tosearchpoint toward coercion: On the night of his arrest, he had refused toconsent tothe search of his car; he consented only after having spent a night injail; he consented only after having been informed by a deputy county attorney that a searchwarrant could be obtained regardless of his consent; and, his consent was obtained while he was incustody. Schneckloth held thatvoluntariness is tobe determined from the "totality of the circumstances". In addition to thecircumstances noted by relator, the record shows relator signed a written "Permission to Search'' which recited: "I,Ramon Kotwicki, have been informed 

## * * 

## * of my CONSTITUTIONAL RIGHT not tohave a search made of the premises and property owned by me and/or under my care, custody and control, without a search warrant. "Knowing of my lawful right torefuse toconsent to such a search, I willingly give my permission 

## * * *.I' While relator would use the night spent injail to show involuntariness, it was a night inwhich relator might reflect on the fact that he had already told the deputy county attorney "you might just aswell look in it, it's fullof ~arijunana." Also, relator had previously, inMarch 1974, been arrested for criminal possession of dangerous drugs and had, atthat time, been fully advised of his rights for purposes of that proceeding. We hold,

asdid the district court, that under the "totalityof circumstances" present here relator's consent to search his carwasvoluntary. Finding no error, the order of thedistrictcourt 

### is affirmed.

-. "V~ ,,--,-,,,-2A-,;cLl,,,,,--,,-c------------ Chief' Justice

We concur:

Justices 

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