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: DistrictCourt of the FirstJudicial 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

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### ii ClerkMr. 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 issuebrought 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,Carlsonwas 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 Carlsonwas 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 Damonwas unable to get verification. However, Damon informed Carlson that he would continue to check, and if Carlsonwas lying about his license, "Iwill 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 Carlsonwas drivingwhile his driver's licensewas revoked. He thereforemade out, on Helena police department forms, a "Noticeto Appear and Complaint" for the charge of operating a motor vehicle upona city streetwhile having a revoked driver's license, and another "Notice toAppear 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 Damonwas unable to get in touchwith 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 copieswere never mailed by the clerk to the defendant. On March 16, 1981, Officer Damon, thinking the citations had been mailed, requested that

an arrestwarrant be issued to the defendantbecause he had not appeared in court on March 11. Each of the charges against Carlsonwas amisdemeanor. The Helena city judge issued a warrant ordering the arrest of the defendant on themisdemeanor charges againsthim. 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 arrestmay specify the amount of bail, section 46-6-202, PKA, and under another statute, section 46-9-303,MCA, a peace officermay accept suchbail on behalf of a judge whenever a warrant for arrest specifies the amount of the bail. The following day (March17), 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 thewarrant.Carlson appeared at the door, clad only in his underwear, and half asleep. He was not read his FourthAmendment rights. Inmaking 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 arrestwarrant thatmorning? A. He had--He came to the door, opened it up stillhalf asleep and just in his underwear. "Q. And what happened then? A. Sergeant Bryson showed him thewarrant 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. SergeantBryson 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 tellyou you could not come into the house? A. No, he didn't. "Q. Did he ever indicate to you that youwere --that you were--that he did notwanr youpresent in his house? A. No, he didn't. "Q. Did he ever tellyou to leave? A. No, he didn-." The frontdoor 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" (astreet term for utensilsused with marijuana) and other drug paraphernalia. However, the officers did not seize or touch anything. The defendantwas taken to the city jailwhere he was "booked"under the two charges arising out of the traffic accident. There, for the first time,Carlsonwas given copies of the "Noticeto 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 superiorswhat they had seen at the Carlson home. Officer Damonwas dispatched to watch the Carlson house, while a search warrant was obtained from the county attorney's office. Thereafter,armed with a searchwarrant, 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, Carlsonwas charged by information in criminalproceedings in the District Courtwith four counts of criminal possession of dangerous drugs, and two counts of theft, all felonies. In the felonyproceedings against Carlson,his counsel moved to suppress the evidencewhich had been produced as described above. The District Court concluded that Carlson's FourthAmendment rights had been violated,and accordingly suppressed the evidence. It is from that order that the State appeals. Carlsonlsmotion to suppress in the District Courtwas upon two grounds, (1) that the entry of the officers into Carlson's home was without a searchwarrant, and without consent of Carlson; and (2) that the arrest onMarch 17, 1981, for a misdemeanor traffic offense that occurred seven days earlierwas 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 connectionwith any pretextual arrangement to investigatethe 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 arrestwas a pretext for a search of Carlson's home, but also decided there was no necessity here for a full custodial arrest of Carlsonbased upon the misdemeanor charges againsthim. Instead, the District Court determined that thematter should be decided by what happened at the home after the arrest; to determinewhether the defendant gave his consent to the officers to enter his front room under the totality of the circumstances, citing Schneckloth

v. Bustamonte (1973), 412U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854. The court relied on four factual circumstances, (1) that Carlsonwas 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 choicebetween going to the police station in his underwear at 8:00 a.m. or permitting the police to enter his home. The DistrictCourt determined that therewas no evidence in the record that would supporta conclusion that the defendantwas 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 theywere in Carlson's front room. One of the firstmatters 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 noneof the articleswhich constitute the evidence now to be suppressed. They noticed what was in the front room, in plain view and it is certain that therewas no prying about in hidden places or looking under sofasby 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 inplain view. Observationsmade upon invitation into a house are not a "search." Statev. Monahan (Wis.



### 1977 1423-), 251N.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 ismade. 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; Peoplev. Hauschel (Colo. App. 1975), 550 P.2d 876, 883;United States

v. Coplen (9thCir. 1976), 541 F.2d 211, 214. The rule seems to be that evidence discovered inplain 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 FourthAmendment, and seizing such evidence does not trigger

a warrant requirement. United Statesv. Kaiser (5thCir. 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 othermeans of gathering evidence, which infringes upon 

### a person's reasonable expectation of privacy. UnitedStatesv. Hartley (U.S.D.C. F1. 1980), 486 F.Supp. 1348, 1354.If therefore, the officers in this casewere 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 roomwas not consented to,as the District Court determined, the visual examination does constitutea "search" in the constitutional

sense. The validity of the officerstentry into Carlson's front room is the fulcrum therefore onwhich 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-heirentry upon its claim of Carlson's consent. The District Court concluded that Carlson's consent

was obtained, in effect, through coercion. The District Courtpointed 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: "Butthe Fourth and FourteenthAmendments require that a consent not be coerced,by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercionwere ap~lied the resulting 'consent'would be no more than a pretext for the unjustified police intrusion against which the FourthAmendment is directed 

# .

# .. "Inexamining all the surrounding circumstances to determine if in fact the consent to searchwas coerced, account must be taken of subtly coercive police questions aswell 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 Carlsonwere to get dressed, they would have to come into his house without any other explanation of his rights, constitute a subtle coercion of Carlson. Thevery command of the FourthAmendment itself is that searchesmust be reasonable,because it is "unreasonable" searches that are prohibited. In order to show that voluntary consent to searchwas obtained, the Statemust show that the consentwas unequivocal, specific, intelligently given and uncontaminated by duress

or coercion. Statev. Brough (1976),556 P.2d 1239, 1241, 171Mont. 182, 185; Sleziak v. State (Alaska1969), 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 therewas consent to a search. Statev. LaFlarnrne (1976),170Mont. 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 wemust conclude that the District Court was correct in determining that the defendant's consentwas not shown by the State to have been voluntarily given, under the cases decided in our jurisdictionand others. Accordingly, the officers, having unlawfully intruded into Carlson's home, conducted an unconstitutional "search"inmaking their visual observations. Other factors buttress our conclusion. It is seriously to be doubted whether the fullpanoply of the power of the State to make a custodial arrestwas 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 determinewhether those notices had ever been served. Thewarrant 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 thepolicy 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 acceptbail in lieu of arrestwhen thewarrant specifies the amount of the bail, that optionwas 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 warrantsmay 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 amisdemeanor except upon the express direction of the magistrate endorsed upon the warrant of arrest. The officers here had no prior knowledgeof any other traffic citations issued to Carlson for which he did not appear. The excuse of the officers inprocuring the warrant of arrestwith the fullest possible power granted bythe State was that Carlson had lied to Damonwith respect to his driver's license, and therefore he might not otherwise appear. Inother 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 optionswhich 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 (theState contends that the obstruction of officer chargedid not arise out of

a traffic violation) is gravely doubtful. What emerges from these facts is chilling. From the testimony of the twopolice officers and the city clerk, in the City of Helena, it is the norm thatwhen a citizen ignores a traffic citation, a warrant of arrest is issued againsthimwhichmay be served upon him at his home at any time of the day or night. When thewarrant of arrest is served, it is - de rigeur not to accept at that time the bond that is stated on thewarrant of arrest. Instead, it is standard procedure to remove the citizenbodily to city hall, where he canpost his bond. If at the time of arrest, the citizen wants to put on his overcoat, thepolice will followhim into his home "forthe 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 lightbecause it happens that Carlsonmay be a bad apple. We have no way oftelling how many times other citizens,guilty of an improper lane turn or rushing an amber light have been so treated. The statutes permit theseprocedures;we do not have to countenance them as reasonable under the facts of this case. It is appropriate to repeatwhat the Alaskan court said inAnderson 

### v. State (Alaska 1976), 555 P.2d 251, 259-60: "Werecognize 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 situationswhich 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 lessmoved to condemn such actionhere thanwewould were the intrusion by the police officers of an obviously greatermagnitude. 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 slightdeviations from legalmodes 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 closeand literal construction deprives them of half their efficacy,and leads to gradual depreciation of the right, as if it consistedmore in sound than in substance.' "We,of course,do not condone thebehavior 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 themost appalling of violations. He stated: "'Itis 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 intrusionsby thepolice, either for arrest or searchwithout a warrant, inproper cases,where exigent circumstances existed,orwhere a crime was taking place at the time of entry. State

v. Means (1978),177 Mont. 193, 581 P.2d 406; Statev. Bennett (1972), 158Mont. 496, 493 P.2d 1077; State v. Hull (1971),158Mont. 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 circumstanceswhere the privacy rights of the offended party exceeded the compelling interest of the state inmaking the intrusion. Statev. Hyem (1981), Mont. - 

## , 630 P.2d 202, 38 St.Rep. 891; State v. Allen (1980) I 

### -Mont. - 

### , 612P.2d 199, 37 St. Rep. 919. The high courtheld 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 summonswould 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 searchwas unreasonable. We further held that the unreasonablenesswas 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 Coolidgev. New Hampshire (1971), 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564, 583, thatwhat the "plainview" cases had in cornmonwas that the police officer in each case had a prior justificationfor an invasion into the property of the accused. The District Court noted this distinction and decided that in this case therewas no prior justification for the intrusion. In analyzing this issue, the District Court noted that no searchwas necessary to insure the defendant would not obtain a weapon; therewas no possibility that he would destroy any evidence relevant to the crimes with which he

was charged; if police officerswere concerned about escape, therewas 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 onwithout supervision., he could have been taken to the station.in 'is underwear, they could have accepted bond, or they could simply have left a summonswith 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 fromwhich.the observation in contentionwas made. The District Court then noted that "[alrrestwarrants should not be used as a key to open the door of a private residence,



### or converted int,oa search warrant absent a compelling necessity to do so." We agree with the DistrictCou.rt. Therewas no prior justification or exigency for the entry by the police officers in this case. Their entry under the facts of this casewas unreasonable, and it is that factor that converted their observation while in the house into a warrantless search, which is alwayspresumed unreasonable. E.g., Paytonv. New York (1980),445 U.S. 573, 100 S.Ct. 1371, 63L.Ed..2d 

### yo3 639;Coolidge v. New Hampshire (1971),-823-U.S. 443, 91We are aware of Washington

### v. Chrisman (DecidedJanuary 13, 1982), -U.S. 

### , 102 S.Ct. 812, 70 L.Ed.2d 778, inwhich thehigh court upheld the seizure of marijuana seeds and a pipe where a Washington StateUniversity policeman had entered the room to allow an arrested person to procure identification. Chrisman was the roommateof the arrested person. That caseholds that when a policeman is in a place where he has a right to be, and makes a search or

a seizurebased 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. 94Wash.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. Statev. Jetty, supra. We have, moreover, our unique state constitutional provisionwhich defends the right of individualprivacy absent a showing of compelling state interest. Art. 11, S 10, 1972Mont. Const. A compelling state interest is lacking here to overcomedefendant's reasonableexpectation 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 thatwe should not consider this factor because the District Court did not rely on it in suppressing the evidence. However, the issuewas 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"asrequired by Art. 11, § 10. However, itwas conceded on oral argument that no additional evidence to that already submitted to the District Courtwould be necessary to establish the compelling state interest sought by the State. The State argues,urrder this co~tention thata crinehad been committed,arrestwas necessary, the officers in this

casewere simply performing their duties in connectionwith the arrest, and the disclosure of the contraband evidence

was the result of either a plain view observationmade 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 therewas 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, therewould be few instances in the serviceof warrants of arrest for traffic-related offenseswhen the officerswould not gain entrance inside the home. Few persons are fully dressed and ready for the streetwhen 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 basisof 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£firmed.

We Concur:

---- Chief Justice

- JusticesMr. Chief Justice Frank I. Haswell dissenting:

Iwould refuse to suppress the evidence against the defendant. The defendantwas arrested under a valid warrant. Entry into his house was justified as an incident of that arrest to prevent escape or procuring a weapon. Themarijuana and drug paraphernaliawere observed in plain view in defendant's front room. This evidencewas later seized under a valid searchwarrant. There was no unreasonable search and seizure

or violation of defendant's right of privacy. Themajority 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 Courtwas 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: "Onthe 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 identificationwas 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'sroomwas approximately 11by 17 feet and located on the 11th floor of the dormitory. Respondent Chrisman,Overdahl's roommate,was in the roomwhen 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 smallbox in the room's medicine cabinet,became nervous at the sight of an officer. "Within 30 to 45 secondsafter Overdahl entered the room, the officer noticed seeds and a small pipe lying on a desk 8 to 10 feet fromwhere he was standing. From his training and experience, the officer believed the seedsweremarihuana and the pipe was of a type used to smokemarihuana. He entered the room and examined the pipe and seeds, confirming that the seeds were marihuana and observing that the pipe smelled of marihuana.

"Theofficer informed Overdahl and Chrisman of their rightsunder Miranda v. Arizona, 384 U.S. 426 (1966); each acknowledged thathe understood his rights and indicated that hewas willing to waive them. Officer Daugherty then asked whether the studentshad any other drugs in the room. The respondent handed Daugherty the box he had been carrying earlier,which contained three smallplastic 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 searchwarrant, but that they could voluntarily consent to the search. Following this explanation,which was given in considerable detail, the two students conferred inwhispers for severalminutes before announcing their consent; they also signedwritten 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, 70L.Ed.2d at 782-83. Chrismanwas chargedwith possession of LSD and more than 40 grams ofmarijuana,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 issuewith this language: "Wehold, therefore, that it is not 'unreasonable' under the FourthAmendment for a police officer, as a matter of routine, to monitor themovements of an arrested person, as his judgmentdictates, following the arrest. The officer's need to ensure his own safety--aswell as the integrity of the arrest--is compelling. Such surveillance is not an impermissibleinvasion of the privacy or personal liberty of an individualwho 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 FourthAmendment 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 actionswere 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 searchwarrant. They had the right "as a matter of routine, to monitor the movements of [Carlsonl,

as [their] judgmentdictates, 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. Themajority's attempt to distinguish between an arrest warrant for a misdemeanor and a felony ismisplaced. An arrestwarrant 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 Statesv. ~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 suchpronouncement of this Court,Art. 111, 5 2, U.S. Const. There was no search here within the prohibition against unreasonable searchesunder the authorities cited by the majority. The officersdidn't enter defendant's house to search for anything. They didn't conduct a search but simply observed what was inplain view. Although the officers could have seized themarijuana and drug paraphernalia in plain view at that time [Coolidgev. 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 searchwarrant and seized the evidence thereunder. Themajority further justify suppressionof the evidence under the right of privacy provision in the Montana Constitution: "Rightof privacy. The right of individual privacy is essential to the well beinq of a free society and shall notbe infringedwithout the showing of a compelling state interest." Art. 11, § 10, 1972 Mont. Const. We have previously held: "Theconstitutional guarantee of individual privacy is not absolute. Itmust be interpreted,construed and applied in the light of other constitutional guarantees and not in isolation. The right of individualprivacy 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. Zanderv. DistrictCourt

(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 inproviding protection for its law enforcementofficers 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 thevalidity of the subsequent drug prosecution. The Chrisman court stated it this way: "Thisis a classic instance of incriminating evidence found inplain view when a police officer, for unrelated but entirely legitimate reasons, obtains lawful access to an individual's area of privacy. The FourthAmendment does not prohibit seizure of evidence of criminal conduct found in these circumstances." Chrisman, supra, slip opinion at 7, 102 S.Ct. at 818, 70L.Ed.2d at 786-87. Likewise it doesn't prohibit the conduct of the Helena officers in this case. Accordingly, Iwould permit use of the evidence in the criminalproceedings against the defendant.

ChiefJustice

We concur in the dissent: