No. 12945 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

THE STATE OF MONTANA ex rel., 

ANTONIO KOTWICKI, 

Rela tor, 

THE DISTRICT COURT OF THE FIRST 

JUDICIAL DISTRICT et al., 

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 is an original proceeding wherein relator seeks 

an appropriate writ directed to the district court, Lewis and 

Clark County, requiring that court to reverse its order 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 filed a motion to dismiss 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 the Montana Highway Patrol 

was working radar on Interstate highway 15, north of Helena on 

September 25, 1974, at approximately 9:30 p.m., when a vehicle 

traveling about 70 m.p.h. was sighted. The officer pursued and 

stopped the vehicle and advised the driver, relator here, that 

he had been stopped for driving in excess of the nighttime speed 

limit. Further that an appearance bond of $15 would have to be 

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. At the jail, relator was permitted 

to phone a friend in an effort to post bond. After learning that 

his friend did not have the money right then and that it would 

be a while, the deputy sheriff on duty informed relator he would 

have to be locked up. The deputy sheriff searched relator prior 
to placing him in the cell block. 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 

in placing it on the counter top in the jail receiving area, made 

the comment: "What do we have here?" The district court found 

that this comment was made to no one in particular. However, 

relator, thinking the remark had been made to him, responded by 

answering "Marijuana." Shortly thereafter relator was placed 

in the cell block and then brought back and for the first time, 

advised of his rights under the Miranda decision. 

Later that evening a deputy county attorney advised 

relator of his rights with respect to a search of his vehicle 

and requested a waiver of those rights and a consent to search. 

Although relator at one point stated, "you might just as well 

look in it, it's full of marijuana", he subsequently revoked his 

consent. The next morning relator was again asked by the deputy 

county attorney to consent to a search and in such conversation 

was advised that in any event a search warrant would be obtained. 

At that time relator signed a permission to search. The search 

was thereafter conducted and the items seized are the subject 

of the motion to suppress. 

Relator contends (1) that his custodial arrest for exceeding the speed limit violates the Fourth Amendment to the 

United States Constitution and Art. 11, Sec.11 of the Montana 

Constitution; (2) that his custodial arrest as a result of not 

having sufficient funds to post the appearance bond violates 

the equal protection clause of the Fourteenth Amendment to the 

United States Constitution; (3) that all evidence was either 

identified or derived from police questions asked in violation 

of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L Ed 2d 

694, and (4) that his consent to the search was 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 to the United States Constitution nor Art. 11, Section 11, of the Montana Constitution. 

In pertinent part, the Fourth Amendment reads: 

"The right of the people to be secure in their 

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 

into whether relator's custodial arrest was reasonable under 

the particular circumstances of this case. 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 in Rosebud County, 

relator was driving a car licensed in Big 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 to return and pay 

the fine if he was allowed to drive on down the road without 

having posted an appearance bond. 

The highway patrolman was clearly within his rights when 

he directed relator to proceed to the county jail and directed 

his incarceration. Section 31-112, R.C.M. 1947, empowers a patrolman, upon making dn arrest, to deliver the offender: (1) to the 

nearest justice of the peace, during office hours; - or (2) to the 

county jail, - or (3) deliver a summons to the offender, or (4) 

accept a deposit for appearance. In addition, the Montana Highway 
Patrol Manual directs patrolmen to refrain from allowing out 

of state "violators to proceed without first setting and accepting an appearance bond". Even if it be conceded that relator 

was not an "out of state violator", where the circumstances are 

such that the violator does not have the cash for the appearance 

bond on his person, it is not during office hours for the justices 

of the peace, and it is unlikely that the violator will honor a 

summons, the patrolman properly exercised his discretion in delivering relator to the county jail. 

Relator contends that a reasonable alternative to the 

booking and jailing of relator would have been to allow relator 

to wait in the lobby until his friend arrived with the bond 

money. Even conceding the patrolman had nothing better to do than 

to watch relator, there was nothing at that time to assure the 

patrolman that relator's friend would show up in the half hour 

or forty-five minutes in which he did. The patrolman quite possibly might have had to watch over relator for an hour or two and 

still had to book and jail relator if his friend never showed up. 

This uncertain "babysitting" is unreasonable. 

Relator concedes the state has an interest in collecting fines for speeding violations. However, relator does not present any viable alternative to taking the offender into custody, 

which would ensure the collection of these fines when the circumstances are such that the offender is unlikely to return and pay 

the fine. Relator's arrest was an arrest for a traffic offense. 

It was not an arrest for a crime involving moral turpitude, which 

arrest in itself might blemish his future. That being the case, 

we hold the state's interest in the collection of this fine outweighed the relator's interest in being free from this custodial 

arrest. 

Neither does relator's custodial arrest for exceeding 
the speed limit violate the equal protection clause of the 

Fourteenth Amendment of the United States Constitution. Relator contends first that he was only taken into custody when it 

became apparent that he did not have sufficient funds to post 

the bond; that he was, in effect, 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 statute and 

results directly from an involuntary nonpayment 

of a fine or court costs we are confronted with 

an impermissible discrimination that rests on 

ability to pay * * *." 

He further relies on Tate v. Short, 401 U.S. 395, 91 

S.Ct. 668, 28 L Ed 2d 130, 133, wherein the Court adopted the 

view of four members of the Court in Morris 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 as a 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, in practice it is the actual fine. at her 

than appear, violators forfeit the bond and the matter is dropped. 

Section 32-21-157, R.C.M. 1947, provides the state has the option 

of punishing a traffic offender with a fine or - with imprisonment, 

but not both. As such, relator argues, under Tate, when the 

patrolman opted to issue a summons to appear, he chose to fine 

the relator and was thereby precluded from incarcerating.him. 

However, the instant case is distinguishable from those 

cited by relator on at least three grounds. First, the cases 

cited by relator involve the conversion of sentences received from 

that of fine to imprisonment. Here, we are involved not with a 
judicially imposed sentence but with an appearnce bond designed 

to prevent the offender from entirely escaping punishment. 

Second, the cases cited by relator involved incarceration in 

excess of statutory limits. No such claim is made here. Third, 

each case cited by relator involves the indigency of the defendant whereby he is unable to pay the fine. Here, there is no 

claim made that relator was so indigent he could not pay the $15 

bond, merely that he did not have the cash in his pocket. Indeed, he was driving a new 1974 automobile. 

We hold that this case is not within the rationale of 

Williams, Tate or Morris. The United States Supreme Court specifically stated in Williams: 

" * * * We have no occasion to reach the question 

whether a State is precluded in any other circumstances from holding an indigent accountable for 

a fine by use of a penal sanction * * *.I1 

The Court in Williams also anticipated the problem inherent in 

its decision if applied to other fact situations, such as the 

case at hand, when it stated: 

"The State is not powerless to enforce judgments 

against those financially unable to pay a fine; 

indeed, a different result would amount to 

inverse discrimination since it would enable an 

indigent to avoid both the fine and imprisonment 

for nonpayment whereas other defendants must always 

suffer one or the other conviction." 

When the facts are such as to reasonably indicate to the 

patrolman that the offender is unlikely to return and pay the 

fine, the state must have the power to either take the offender 

into custody or to require an appearance bond in order to be 

assured the offender will suffer some punishment. We have previously disposed of relator's contention that hn should have 

been allowed to wait in the lobby until his friend arrived with 

the bond money. To have allowed relator to have proceeded on 

his way simply because he did not have $15 in his pocket would 

have resulted in the "inverse discrimination" condemned by the 
united States Supreme Court since another offender under like 

circumstances with $15 in his pocket would have had to post bond, 

whereas relator quite possibly 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 to return and pay the fine. Were the logic of relator 

to be followed through, then anyone unable to post any kind of a 

bond would have to be immediately released because the bond was 

discriminatory against him. Instead, bond is required to assure 

the appearance of the accused at court. 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 as other individuals in precisely 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 limit who were not able to post bond on the spot. 

Of those approximately twenty motorists, five were brought into 

the sheriff's office until they could come up with the money. Four 

of these five obtained the money within a "very short period of 

time". Only one person, other than relator, was incarcerated because he was unable to post bond. Relator had the burden of 

proof to show that he was in essentially the same situation as 

the four persons taken to the sheriff's office who were not booked 

and jailed, but did come up with the money 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 to find out whether he was in essentially the same 
situation. 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 to why relator was booked and jailed when the other four 

were not: 

"Q. Is it normal procedure to put them in jail 

if they can't post bond? While they are even 

waiting for someone to come and post bond for 

them? A. No, I don't book them until-- 

"Q. Do you have any departmental guidelines as 

to when and when not you should take somebody 

into custody for a speeding ticket? A. Yes, 

sir, I do." 

The "departmental guidelines" referred to, direct highway patrolmen to refrain from allowing out of state "violators to proceed 

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 arrest was 

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 find relator's third contention, that all evidence 

was either identified or derived from police questions asked in 

violation of Miranda, to be without merit. Relator contends 

the deputy's question, "What do we have here?" was asked prior 

to relator being given the Miranda warning and thus relator's 

answer, "Marijuana", and the bag of marijuana should be suppressed. 

In no event should this reasoning require the suppression of the 

bag found in relator's shoe. That bag was discovered pursuant 

to a valid search, ptior to any statements relator made. Neither 

should relator's spontaneous answer be suppressed. A reading of 
Miranda indicates that it applies to "interrogation" of the 

defendant. In this case, there was no interrogation. The 

district court found the question of t.he deputy was not directed 

to anyone in particular. 

Finally, we hold that relator's consent to the search 

of his car was "voluntary" under the standard established in 

Schneckloth. Relator contends the circumstances surrounding 

his consent to search point toward coercion: On the night of 

his arrest, he had refused to consent to the search of his car; 

he consented only after having spent a night in jail; he consented only after having been informed by a deputy county attorney that a search warrant could be obtained regardless of his 

consent; and, his consent was obtained while he was in custody. 

Schneckloth held that voluntariness is to be determined from 

the "totality of the circumstances". In addition to the circumstances 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 to have 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 to refuse to consent 

to such a search, I willingly give my permission * * *.I' 

While relator would use the night spent in jail to show involuntariness, it was a night in which relator might reflect on 

the fact that he had already told the deputy county attorney 

"you might just as well look in it, it's full of ~arijunana." Also, 

relator had previously, in March 1974, been arrested for criminal 

possession of dangerous drugs and had, at that time, been fully 

advised of his rights for purposes of that proceeding. We hold, 

as did the district court, that under the "totality of circumstances" present here relator's consent to search his car was 
voluntary. 

Finding no error, the order of the district court is 

affirmed. 

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Chief' Justice 

We concur: 

Justices /