NO. 81-349 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsBRADLEY JAMES CARLSON, 

Defendant and Respondent. 

Appeal From: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, The 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Charles Graveley, County Attorney, Helena, Montana 

Kevin Meek and Carolyn Clemens argued, Helena, 

Montana 

For Respondent: 

Leaphart Law Ffr111, Helena, Montana 

W. William Leaphart argued, Helena, Montana 

Submitted: January 12, 1382 

Decided: April 29, 1982 

Filed: April 29, 1982 

%bi~ . ...: , 

ii 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

The State of Montana appeals from an order of the 

District Court, First Judicial District, Lewis and Clark 

County, suppressing the use of certain evidence in criminal 

proceedings pending against the defendant Bradley James 

Carlson. 

The issue brought by the State is whether the evidence 

is the product of a "plain view" observation of officers in 

the course of or incident to the making of a lawful arrest. 

We determine from the circumstances here that the evidence 

should be suppressed, and affirm the District Court. 

On the afternoon of March 10, 1981, Carlson was involved 

in a minor traffic accident, in Helena, which was not his 

fault. Thomas J. Damon, the Helena city police officer who 

investigated the accident testified that he had heard "on 

the street" that Carlson was a drug user. When Officer 

Damon asked to see Carlson's driver's license at the scene 

of the accident, Carlson informed him that he had a valid 

driver" license but it was not with him. Officer Damon 

sought to verify the license status by use of his car radio 

through the state computer, but the computer was "down," and 

Officer Damon was unable to get verification. However, 

Damon informed Carlson that he would continue to check, and 

if Carlson was lying about his license, "I will be calling 

you or knocking at your door with a warrant." 

At 9:00 p.m. of the same day, the computer was fixed, 

and from it Damon determined that Carlson was driving while 

his driver's license was revoked. He therefore made out, on 

Helena police department forms, a "Notice to Appear and 

Complaint" for the charge of operating a motor vehicle upon 
a city street while having a revoked driver's license, and 

another "Notice to Appear and Complaint," for obstructing an 

officer by making false and untrue statements. Each of the 

notices required the defendant to appear before the municipal 

court on or before March 11, 1981, the next day. 

Officer Damon was unable to get in touch with Carlson 

on the evening of March 10, or on the date of his required 

appearance, March 11. However, on March 11, he gave the 

citations to the city clerk to mail copies to the defendant. 

The proof in this case is that such copies were never mailed 

by the clerk to the defendant. On March 16, 1981, Officer 

Damon, thinking the citations had been mailed, requested that 

an arrest warrant be issued to the defendant because he had 

not appeared in court on March 11. 

Each of the charges against Carlson was a misdemeanor. 

The Helena city judge issued a warrant ordering the arrest 

of the defendant on the misdemeanor charges against him. 

The warrant contains the notation "failed to appear on both 

citations" and further sets out the applicable bond on the 

charges, $150 for obstructing an officer, $25 for a revoked 

driver's license, $5 for a warrant charge, and court costs 

of $8, for a grand total of $188. 

Under Montana statutes, the warrant of arrest may 

specify the amount of bail, section 46-6-202, PKA, and under 

another statute, section 46-9-303, MCA, a peace officer may 

accept such bail on behalf of a judge whenever a warrant for 

arrest specifies the amount of the bail. 

The following day (March 17), the officer and another 

Helena police officer, Jeffrey G. Bryson, went to ~arlson's 

home about 7:50 a.m. and arrested him pursuant to the warrant. 
Carlson appeared at the door, clad only in his underwear, 

and half asleep. He was not read his Fourth Amendment 

rights. 

In making the arrest, the officers entered Carlson's 

front room in circumstances described by Officer Damon: 

"Q. Would you describe to the court what 

happened when you arrived at the defendant's 

house with your arrest warrant that morning? 

A. He had--He came to the door, opened it up 

still half asleep and just in his underwear. 

"Q. And what happened then? A. Sergeant Bryson 

showed him the warrant for his arrest and said 

we have a warrant for his arrest, and that he 

was going to have to come to the police station 

with us. 

"Q* Did the defendant ask if he could get 

dressed first. A. Yes he did. 

"Q. And did you reply to him or did Officer 

Bryson reply to him? A. Sergeant Bryson did. 

"Q. And what did he say to him when he asked 

if he could get dressed first? A. He said, 

'Sure, but you are under arrest' and one of 

us has to come with him and if we could come 

in the house, and which he opened the door 

to let us in. 

"Q. Did he ever tell you you could not come 

into the house? A. No, he didn't. 

"Q. Did he ever indicate to you that you were 

--that you were--that he did not wanr you present 

in his house? A. No, he didn't. 

"Q. Did he ever tell you to leave? A. No, he 

didn-." 

The front door of the Carlson residence opened immediately 

into the front room or living room. Once inside the house, 

the officers observed on a coffee table a quantity of marijuana, 

some "bongs" (a street term for utensils used with marijuana) 

and other drug paraphernalia. However, the officers did not 

seize or touch anything. The defendant was taken to the 

city jail where he was "booked" under the two charges arising 

out of the traffic accident. There, for the first time, 
Carlson was given copies of the "Notice to Appear and Complaint" 

on each charge. He posted the bond required of him and was 

released. 

At police headquarters, the arresting officers related 

to their superiors what they had seen at the Carlson home. 

Officer Damon was dispatched to watch the Carlson house, 

while a search warrant was obtained from the county attorney's 

office. Thereafter, armed with a search warrant, a deputy 

county attorney, with police officers and sheriff's deputies, 

searched the house. The search produced small quantities 

of hashish, hashish oil, marijuana, cocaine, and a stolen 

pistol. Thereafter, Carlson was charged by information in 

criminal proceedings in the District Court with four counts 

of criminal possession of dangerous drugs, and two counts of 

theft, all felonies. 

In the felony proceedings against Carlson, his counsel 

moved to suppress the evidence which had been produced as 

described above. The District Court concluded that Carlson's 

Fourth Amendment rights had been violated, and accordingly 

suppressed the evidence. It is from that order that the 

State appeals. 

Carlsonls motion to suppress in the District Court was 

upon two grounds, (1) that the entry of the officers into 

Carlson's home was without a search warrant, and without 

consent of Carlson; and (2) that the arrest on March 17, 

1981, for a misdemeanor traffic offense that occurred seven 

days earlier was merely a pretext to gain entry into carlsonls 

home for the purpose of an investigatory search. 

The State contends that the full custodial arrest of 

Carlson was reasonable under the circumstances, was not in 

connection with any pretextual arrangement to investigate 
the Carlson home and that the search warrant upon the "plain 

view" observation of the police officers in the Carlson home 

was valid. 

The District Court in its order declined to determine 

whether the arrest was a pretext for a search of Carlson's 

home, but also decided there was no necessity here for a 

full custodial arrest of Carlson based upon the misdemeanor 

charges against him. Instead, the District Court determined 

that the matter should be decided by what happened at the 

home after the arrest; to determine whether the defendant 

gave his consent to the officers to enter his front room 

under the totality of the circumstances, citing Schneckloth 

v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 

854. The court relied on four factual circumstances, (1) 

that Carlson was half asleep, (2) that he was under arrest, 

(3) that he had not been advised of his Fourth Amendment 

rights, and (4) he had been given the choice between going 

to the police station in his underwear at 8:00 a.m. or 

permitting the police to enter his home. The District Court 

determined that there was no evidence in the record that 

would support a conclusion that the defendant was not coerced 

by the circumstances and by the statements of the officers, 

and therefore his verbal consent did not qualify as voluntary 

to justify the "plain view" observation by the officers 

while they were in Carlson's front room. 

One of the first matters for our determination is 

whether a "search" within the ambit of the Fourth Amendment 

occurred here. The State contended in the ~istrict Court 

that no search occurred. At least one of our dissenting 

brothers is of that opinion. Here the officers seized none 
of the articles which constitute the evidence now to be 

suppressed. They noticed what was in the front room, in 

plain view and it is certain that there was no prying about 

in hidden places or looking under sofas by the two officers. 

A "search" is a prying into hidden places for that 

which is concealed; conversely it is not a search to observe 

what is in plain view. Observations made upon invitation 

into a house are not a "search." State v. Monahan (Wis. 

1977 

1423-), 251 N.W.2d 421, 423. 

The distinctive factor that turns an observation into a 

search, in the constitutional sense, is whether the person 

making the observation has a right to be in the place where 

the observation is made. Thus it is said that an observation 

made of a place where an officer has a right to be is not a 

search in the constitutional sense. State v. Seagull (C.A. 

Wash. 1980), 613 P.2d 528, 532; Fehlhaber v. State of North 

Carolina (D.C.N.C. 1980), 445 F.Supp. 130, 136; People v. 

Hauschel (Colo. App. 1975), 550 P.2d 876, 883; United States 

v. Coplen (9th Cir. 1976), 541 F.2d 211, 214. 

The rule seems to be that evidence discovered in plain 

view from a place where officers are entitled to stand and 

where their claim to stand is not created as a pretext, 

solely to make legitimate otherwise impermissible intrusions, 

is not the subject of a "search" within the meaning of the 

Fourth Amendment, and seizing such evidence does not trigger 

a warrant requirement. United States v. Kaiser (5th Cir. 

1977), 545 F.2d 467, 477. 

It appears then that for constitutional purposes, a 

"search" may be defined as a visual examination, or the use 

of some other means of gathering evidence, which infringes 

upon a person's reasonable expectation of privacy. United 
States v. Hartley (U.S.D.C. F1. 1980), 486 F.Supp. 1348, 

1354. 

If therefore, the officers in this case were lawfully 

in Carlson's front room when they made the visual observations, 

a "search" within the constitutional sense did not occur; on 

the other hand, if their presence in the front room was not 

consented to, as the District Court determined, the visual 

examination does constitute a "search" in the constitutional 

sense. 

The validity of the officerst entry into Carlson's 

front room is the fulcrum therefore on which this case 

turns. The State recognizes that the officers, in making 

the arrest, since Carlson was at the front door and within 

the arresting power of the officers, had no right to enter 

Carlson's house under the circumstances of this case. The 

State justifies t-heir entry upon its claim of Carlson's 

consent. The District Court concluded that Carlson's consent 

was obtained, in effect, through coercion. 

The District Court pointed out that there general 

presumption against waiver of a constitutional right, Johnson 

v. Zerbst (1938), 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 

82 L.Ed. 1461, 1466; and quoted from Schneckloth v. Buatamonte, 

supra, to the following effect: 

"But the Fourth and Fourteenth Amendments require 

that a consent not be coerced, by explicit or 

implicit means, by implied threat or covert force. 

For, no matter how subtly the coercion were ap~lied 

the resulting 'consent' would be no more than a 

pretext for the unjustified police intrusion against 

which the Fourth Amendment is directed . . . 

"In examining all the surrounding circumstances 

to determine if in fact the consent to search was 

coerced, account must be taken of subtly coercive 

police questions as well as the possibly vulnerable 

subjective state of the person who consents." 
Schneckloth, 412 U.S. at 228-29, 93 S.Ct. 

at 2048-49, 36 L.Ed.2d at 863-64. 

We agree with the District Court. The subjective state 

of Carlson, admitted by the police officer to be "half 

asleep" and in his underwear, and the unqualified statement 

of the police officers that if Carlson were to get dressed, 

they would have to come into his house without any other 

explanation of his rights, constitute a subtle coercion of 

Carlson. 

The very command of the Fourth Amendment itself is that 

searches must be reasonable, because it is "unreasonable" 

searches that are prohibited. 

In order to show that voluntary consent to search was 

obtained, the State must show that the consent was unequivocal, 

specific, intelligently given and uncontaminated by duress 

or coercion. State v. Brough (1976), 556 P.2d 1239, 1241, 

171 Mont. 182, 185; Sleziak v. State (Alaska 1969), 454 

P,2d 252, 257-58, cert.den. 396 U.S. 921, 90 S.Ct. 252, 24 

L.Ed.2d 202 (1969). This Court has held that there is a 

heavy burden of proof required to show that there was consent 

to a search. State v. LaFlarnrne (1976), 170 Mont. 202, 204, 

551 P.2d 1011, 1012. Equivocal conduct alone is insufficient 

as a basis for inference of consent to a search, which 

consent is a waiver of a constitutional right. 

As we stated in the foregoing discussion with respect 

to whether a search occurred here, if an element of a 

proper visual examination is that it is made from a point 

where the officers have a right to be, then we must conclude 

that the District Court was correct in determining that the 

defendant's consent was not shown by the State to have been 

voluntarily given, under the cases decided in our jurisdiction 
and others. Accordingly, the officers, having unlawfully 

intruded into Carlson's home, conducted an unconstitutional 

"search" in making their visual observations. 

Other factors buttress our conclusion. It is seriously 

to be doubted whether the full panoply of the power of the 

State to make a custodial arrest was indicated here. No 

notice of the common-place traffic tickets issued in this 

case was ever served upon Carlson. The officers apparently 

made no effort to determine whether those notices had ever 

been served. The warrant of arrest itself improperly states 

that the defendant failed to appear in response to the 

traffic tickets, which were never served upon him. It is 

the policy of the City of Helena, as testified to by the 

city clerk, not to issue a warrant of arrest unless the 

traffic offender has failed to respond to the notices. 

Although section 46-9-303, MCA, provides that a peace officer 

may accept bail in lieu of arrest when the warrant specifies 

the amount of the bail, that option was not followed here, 

although in justice to the officers, it appears to be the 

standard rule of the City of Helena to require such defendants 

to be booked in city hall where bond is posted. Another 

practice followed by the City of Helena, in issuing such 

warrants, is to provide that all such warrants may be served 

in the nighttime, although section 46-6-105, MCA, provides 

that a person cannot be arrested in his home or private 

dwelling place at night for a misdemeanor except upon the 

express direction of the magistrate endorsed upon the warrant 

of arrest. The officers here had no prior knowledge of any 

other traffic citations issued to Carlson for which he did 

not appear. The excuse of the officers in procuring the 

warrant of arrest with the fullest possible power granted by 
the State was that Carlson had lied to Damon with respect 

to his driver's license, and therefore he might not otherwise appear. In other words, he committed the crime for 

which he was charged, therefore, he must 1-e arrested. 

Such an argumeat could be made in any traffic case. The 

city had several other options which it did not follow: it 

could have requested a summons to appear, instead of a 

warrant of arrest, under section 46-6-301, MCA; it could 

have issued the notices and served them upon him; or the 

officers could have accepted bail on the doorstep of the 

Carlson home. The reasonableness of the full custodial 

arrest in case of traffic violations (the State contends 

that the obstruction of officer charge did not arise out of 

a traffic violation) is gravely doubtful. 

What emerges from these facts is chilling. From the 

testimony of the two police officers and the city clerk, in 

the City of Helena, it is the norm that when a citizen 

ignores a traffic citation, a warrant of arrest is issued 

against him which may be served upon him at his home at any 

time of the day or night. When the warrant of arrest is 

served, it is - de rigeur not to accept at that time the bond 

that is stated on the warrant of arrest. Instead, it is 

standard procedure to remove the citizen bodily to city 

hall, where he can post his bond. If at the time of arrest, 

the citizen wants to put on his overcoat, the police will 

follow him into his home "for the safety of the police 

officers." In other words, a traffic violator in Helena 

will be accorded the same treatment as the rankest felon 

when his arrest is made by warrant. 

The facts in this case are brought to light because it 

happens that Carlson may be a bad apple. We have no way of 
telling how many times other citizens, guilty of an improper 

lane turn or rushing an amber light have been so treated. 

The statutes permit these procedures; we do not have to 

countenance them as reasonable under the facts of this case. 

It is appropriate to repeat what the Alaskan court said 

in Anderson v. State (Alaska 1976), 555 P.2d 251, 259-60: 

"We recognize that the law of search and seizure 

is complex and often difficult to apply. That 

the permutations of human behavior sometimes 

carry police officers into situations which demand 

decisions close to the line of unconstitutional 

intrusions is, perhaps, an inevitability. But the 

rights and liberties secured by the federal and 

state constitutions are paramount and they will 

be protected . . . 

"While the action of the police officers here . . . may be viewed by some as only a small 

deviation from the constitutional standard, we 

feel no less moved to condemn such action here 

than we would were the intrusion by the police 

officers of an obviously greater magnitude. As 

Mr. Justice Bradley eloquently stated in Boyd 

v. - United States, 116 U.S. 616, 6 S.Ct. 524, 

29 L.Ed. 746 (1886), 

I1 I . . . illegitimate and unconstitutional practices 

get their first footing . . . by silent approaches 

and slight deviations from legal modes or procedure. 

This can only be obviated by adhering to the rule 

that constitutional provisions for the security 

of person and property should be liberally construed. 

A close and literal construction deprives them of 

half their efficacy, and leads to gradual depreciation 

of the right, as if it consisted more in sound than 

in substance.' 

"We, of course, do not condone the behavior of the 

appellant . . . But, we are mindful of Mr. Justice 

Frankfurter's observation that cases presenting issues 

of constitutional rights frequently involve people 

who have committed the most appalling of violations. 

He stated: 

"'It is a fair summary of history to say that the 

safeguards of liberty have frequently been forged 

in controversies involving not very nice people.'" 

This Court has not hesitated to support intrusions by 

the police, either for arrest or search without a warrant, 

in proper cases, where exigent circumstances existed, or 
where a crime was taking place at the time of entry. State 

v. Means (1978), 177 Mont. 193, 581 P.2d 406; State v. 

Bennett (1972), 158 Mont. 496, 493 P.2d 1077; State v. 

Hull (1971), 158 Mont. 6, 487 P.2d 1314. On the other hand, 

we have resisted extensions of search or seizure beyond the 

constitutional limitations in either federal or state constitutions under circumstances where the privacy rights of 

the offended party exceeded the compelling interest of the 

state in making the intrusion. State v. Hyem (1981), 

Mont. - , 630 P.2d 202, 38 St.Rep. 891; State v. Allen 

(1980) I - Mont. - , 612 P.2d 199, 37 St. Rep. 919. The 

high court held in United States v. Robinson (1973), 414 

U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427, 440, that 

the right to a full custodial search is not limited if the 

person is arrested for a traffic offense. We, however, 

refused to follow the lead of that case in State v. Jetty 

(19781, 176 Mont. 519, 579 P.2d 1228. There we held that where 

it appears that a summons would work as well as a warrant 

for arrest in 99 percent of the cases, placing the defendant 

under mandatory custodial arrest for failure to pay an 

overdue $1.00 parking ticket and subjecting him to a full 

custodial search was unreasonable. We further held that the 

unreasonableness was not excused because the procedure was 

standard on the ground that standard procedure cannot 

eliminate the individual's constitutional right to be free 

from unreasonable search and seizure. State v. Jetty, 176 

Mont. 523, 579 P.2d at 1230. 

The high court noted in Coolidge v. New Hampshire 

(1971), 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 

564, 583, that what the "plain view" cases had in cornmon was 

that the police officer in each case had a prior justification 
for an invasion into the property of the accused. The 

District Court noted this distinction and decided that in 

this case there was no prior justification for the intrusion. 

In analyzing this issue, the District Court noted that no 

search was necessary to insure the defendant would not 

obtain a weapon; there was no possibility that he would 

destroy any evidence relevant to the crimes with which he 

was charged; if police officers were concerned about 

escape, there was no necessity to enter Carlson's house to 

prevent it. In addition, the District Court noted the 

alternatives to the invasion of defendant's home. He could 

have been permitted to put his pants on without supervision., 

he could have been taken to the station. in 'is underwear, 

they could have accepted bond, or they could simply have 

left a summons with the defendant. In those circumstances, 

the District court found no prior justification or exigency 

for the arrival of the police officers at the point inside 

the house from which. the observation in contention was made. 

The District Court then noted that "[alrrest warrants should 

not be used as a key to open the door of a private residence, 

or converted int,o a search warrant absent a compelling 

necessity to do so." 

We agree with the District Cou.rt. There was no prior 

justification or exigency for the entry by the police officers 

in this case. Their entry under the facts of this case was 

unreasonable, and it is that factor that converted their 

observation while in the house into a warrantless search, 

which is always presumed unreasonable. E.g., Payton v. 

New York (1980), 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed..2d 

yo3 

639; Coolidge v. New Hampshire (1971), -823- U.S. 443, 91 
We are aware of Washington v. Chrisman (Decided January 

13, 1982), - U.S. , 102 S.Ct. 812, 70 L.Ed.2d 778, 

in which the high court upheld the seizure of marijuana 

seeds and a pipe where a Washington State University policeman had entered the room to allow an arrested person to 

procure identification. Chrisman was the roommate of the 

arrested person. That case holds that when a policeman is 

in a place where he has a right to be, and makes a search or 

a seizure based upon what is in plain view, the product 

of the search or seizure need not be suppressed. The Supreme 

Court of Washington had held otherwise. 94 Wash.2d 711, 619 

P.2d 971 (1980). We distinguish this case however. The 

District Court in this case found that the entry of the 

police to the defendant's home occurred through the defendant's 

coerced consent. We have previously held that full custodial 

arrest and mandatory search for a minor traffic violation is 

unreasonable. State v. Jetty, supra. We have, moreover, 

our unique state constitutional provision which defends the 

right of individual privacy absent a showing of compelling 

state interest. Art. 11, S 10, 1972 Mont. Const. A compelling 

state interest is lacking here to overcome defendant's 

reasonable expectation of privacy in his home. 

We attach a good deal of importance to the right of 

privacy guaranteed in Montana's Constitution. The State 

contends that we should not consider this factor because the 

District Court did not rely on it in suppressing the evidence. 

However, the issue was raised in briefs before the ~istrict 

Court and has been raised in briefs here. The State contends 

that if the right to privacy under the Montana Constitution 

is considered by us, it should have the right to a remand 

for the purpose of proving a "compelling state interest" as 
required by Art. 11, § 10. However, it was conceded on oral 

argument that no additional evidence to that already submitted to the District Court would be necessary to establish 

the compelling state interest sought by the State. The 

State argues, urrder this co~tention that a crine had 

been committed, arrest was necessary, the officers in this 

case were simply performing their duties in connection with 

the arrest, and the disclosure of the contraband evidence 

was the result of either a plain view observation made by 

the police officers, or a search incident to a lawful arrest. 

Whether we look at the issues here from the viewpoint 

of the federal or the state constitution, it is clear in 

either event, that privacy is at the heart of the case. 

Stanley v. Georgia (1969), 394 U.S. 557, 564, 89 S.Ct. 1243, 

1247, 22 L.Ed.2d 542, 549, emphasized the home as the situs 

of protected private activities and that the constitution 

extends special safeguards to the privacy of the home. 

In State v. Hyem, supra, we held under our state constitution 

that evidence should be suppressed where there was an unjustified intrusion into the privacy of the defendant's 

home, 

It should be clear from the facts of this case that 

if we were to sustain the entry by the police officers as 

reasonable, there would be few instances in the service of 

warrants of arrest for traffic-related offenses when the 

officers would not gain entrance inside the home. Few 

persons are fully dressed and ready for the street when they 

answer the door in response to a knock. Inevitably the 

search would be held incident to the arrest, and not vice 

versa. The Circuit Court of Appeals for the Ninth circuit 

has been careful to avoid opening up searches on the basis 
of traffic-related arrests, Taglevore v. United States 

(1961), 291 F.2d 262; as has the Fifth Circuit, AmadorGonzalez v. United States (1968), 391 F.2d 308. 

A£ f irmed. 

We Concur: 

- --- Chief Justice 

- Justices 
Mr. Chief Justice Frank I. Haswell dissenting: 

I would refuse to suppress the evidence against the 

defendant. 

The defendant was arrested under a valid warrant. 

Entry into his house was justified as an incident of that 

arrest to prevent escape or procuring a weapon. The marijuana 

and drug paraphernalia were observed in plain view in defendant's 

front room. This evidence was later seized under a valid 

search warrant. There was no unreasonable search and seizure 

or violation of defendant's right of privacy. 

The majority decision is directly contrary to the 

latest decision of the United States Supreme Court on the 

subject. Washington v. Chrisman (No. 80-1349, Decided 

January 13, 1982), - U.S. , 102 S.Ct. 812, 70 L.Ed.2d 

778. The District Court did not have the benefit of that 

decision when it suppressed the evidence. The rationale of 

the District Court was that defendant's consent to entry 

into his house was subject to coercive influences invalidating 

defendant's waiver of the constitutional prohibition 

against unreasonable searches and seizures. 

The Chrisman court summarized the facts of that case as 

follows: 

"On the evening of January 21, 1978, Officer Daugherty 

of the Washington State University police department 

observed Carl Overdahl, a student at the University, 

leave a student dormitory carrying a half-gallon bottle 

of gin. Because Washington law forbids possession of 

alcoholic beverages by persons under 21, Wash.Rev.Code 

§ 66.44.270, and Overdahl appeared to be under age, 

the officer stopped him and asked for identification. 

Overdahl said that his identification was in his 

dormitory room and asked if the officer would wait 

while he went to retrieve it. The officer answered 

that under the circumstances he would have to accompany 

Overdahl, to which Overdahl replied 'O.K.' 
"Overdahl's room was approximately 11 by 17 feet and 

located on the 11th floor of the dormitory. Respondent 

Chrisman, Overdahl's roommate, was in the room when 

the officer and Overdahl entered. The officer remained 

in the open doorway, leaning against the doorjamb 

while watching Chrisman and Overdahl. He observed that 

Chrisman, who was in the process of placing a small box 

in the room's medicine cabinet, became nervous at the 

sight of an officer. 

"Within 30 to 45 seconds after Overdahl entered the 

room, the officer noticed seeds and a small pipe lying 

on a desk 8 to 10 feet from where he was standing. 

From his training and experience, the officer believed 

the seeds were marihuana and the pipe was of a type 

used to smoke marihuana. He entered the room and 

examined the pipe and seeds, confirming that the seeds 

were marihuana and observing that the pipe smelled of 

marihuana. 

"The officer informed Overdahl and Chrisman of their 

rights under Miranda v. Arizona, 384 U.S. 426 (1966); 

each acknowledged that he understood his rights and 

indicated that he was willing to waive them. Officer 

Daugherty then asked whether the students had any other 

drugs in the room. The respondent handed Daugherty the 

box he had been carrying earlier, which contained three 

small plastic bags filled with marihuana and $112 in 

cash. At that point, Officer Daugherty called by radio 

for a second officer; on his arrival, the two students 

were told that a search of the room would be necessary. 

The officers explained to Overdahl and Chrisman that they 

had an absolute right to insist that the officer first 

obtain a search warrant, but that they could voluntarily 

consent to the search. Following this explanation, which 

was given in considerable detail, the two students 

conferred in whispers for several minutes before announcing 

their consent; they also signed written forms consenting 

to the search of the room. The search yielded more 

marihuana and a quantity of lysergic acid diethylamide 

(LDS), both controlled substances." Chrisman, supra, 

slip opinion at 1-2, 102 S.Ct. at 815, 70 L.Ed.2d at 

782-83. 

Chrisman was charged with possession of LSD and more 

than 40 grams of marijuana, both felonies under Washington 

law. The question facing the Supreme Court on appeal was 

whether the evidence found by the officer should be suppressed 

as violating the defendant's Fourth Amendment rights. 

The Supreme Court resolved the issue with this language: 

"We hold, therefore, that it is not 'unreasonable' 

under the Fourth Amendment for a police officer, as 

a matter of routine, to monitor the movements of an 

arrested person, as his judgment dictates, following 

the arrest. The officer's need to ensure his own 

safety--as well as the integrity of the arrest--is 

compelling. Such surveillance is not an impermissible 
invasion of the privacy or personal liberty of an 

individual who has been arrested." Chrisman, supra, 

slip opinion at 5, 102 S.Ct. at 817, 70 L.Ed.2d 

at 785. 

The Supreme Court further found that since Overdahl had 

been placed under lawful arrest, the officer was authorized 

to accompany him to his room to obtain identification and 

that the officer ". . . had a right to remain literally at 

Overdahl's elbow at all times; nothing in the Fourth Amendment is to the contrary." Chrisman, supra, slip opinion at 

4, 102 S.Ct. at 816, 70 L.Ed.2d at 785. The court further 

found that the officer's actions were valid as an incident 

to a lawful arrest. 

The facts of the instant case are even more compelling. 

Here, unlike Chrisman, the officers had a valid arrest 

warrant and a valid search warrant. They had the right "as 

a matter of routine, to monitor the movements of [Carlsonl, 

as [their] judgment dictates, following the arrest" because 

of their need to ensure their own safety and the integrity 

of the arrest. Chrisman, supra. Consent to entry into 

defendant's house was unnecessary under chrisman. 

The majority's attempt to distinguish between an arrest 

warrant for a misdemeanor and a felony is misplaced. An 

arrest warrant is no less an arrest warrant because the 

underlying crime is classified as a misdemeanor. State v. 

Jetty (1978), 176 Mont. 519, 579 P.2d 1228, relied upon by 

the majority, involved a full custodial search in a city 

jail following an arrest at 3:00 a.m. for failure to pay an 

overdue $1.00 parking ticket. It is clearly distinguishable 

on the facts. Any implication therein that an arrest warrant 

for a misdemeanor stands on a different footing than an 

arrest for a felony is unwarranted. United States v. ~obinson 
(1973), 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427. united 

States Supreme Court decisions interpreting the meaning and 

application of provisions in the United States Constitution 

are controlling under the Supremacy Clause of the Constitution 

and take precedence over any such pronouncement of this 

Court, Art. 111, 5 2, U.S. Const. 

There was no search here within the prohibition against 

unreasonable searches under the authorities cited by the 

majority. The officers didn't enter defendant's house to 

search for anything. They didn't conduct a search but simply 

observed what was in plain view. Although the officers 

could have seized the marijuana and drug paraphernalia in 

plain view at that time [Coolidge v. New amps shire (1971), 

403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 5641, they seized 

nothing. Instead they applied for and received a valid 

search warrant and seized the evidence thereunder. 

The majority further justify suppression of the evidence 

under the right of privacy provision in the Montana Constitution: 

"Right of privacy. The right of individual privacy 

is essential to the well beinq of a free society 

and shall not be infringed without the showing of a 

compelling state interest." Art. 11, § 10, 1972 

Mont. Const. 

We have previously held: 

"The constitutional guarantee of individual privacy 

is not absolute. It must be interpreted, construed 

and applied in the light of other constitutional 

guarantees and not in isolation. The right of 

individual privacy must yield to a compelling state 

interest. Such compelling state interest exists where 

the state enforces its criminal laws for the benefit 

and protection of other fundamental rights of its 

citizens." State ex rel. Zander v. District Court 

(1979) Mont. , 591 P.2d 656, 660, 36 St.Rep. 

489, 49. - 

The compelling state interest here lies in the enforcement 

of its laws, misdemeanors as well as felonies. More importantly, it lies in providing protection for its law enforcement 
officers and protecting the integrity of arrests. The right 

of privacy was never intended to provide a shield for criminal 

activity. 

The same considerations underlie the right of privacy 

under the United States Constitution. The fact that the 

Helena officers obtained access to the defendant's house for 

a reason totally unrelated to a search for drugs does not 

affect the validity of the subsequent drug prosecution. The 

Chrisman court stated it this way: 

"This is a classic instance of incriminating evidence 

found in plain view when a police officer, for 

unrelated but entirely legitimate reasons, obtains 

lawful access to an individual's area of privacy. 

The Fourth Amendment does not prohibit seizure of 

evidence of criminal conduct found in these circumstances." Chrisman, supra, slip opinion at 7, 102 

S.Ct. at 818, 70 L.Ed.2d at 786-87. 

Likewise it doesn't prohibit the conduct of the Helena 

officers in this case. 

Accordingly, I would permit use of the evidence in the 

criminal proceedings against the defendant. 

Chief Justice 

We concur in the dissent: