No. 82-65 

IN THE SlJPREME COURT OF THE STATE OF MONTANA 

1982 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

THOMAS MATTHEW DESS , 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade 

Honorable John M. McCarvel, Judge presidinq. 

Counsel of Record: 

For Appellant: 

Karl Nagel argued, Great Falls, Montana 

For Respondent: 

HOE. Mike Greely, Attorney General, Helena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls, Montana 

Randall Snyder argued, Deputy County Attorney, Great Falls, 

Montana 

submitted: September 17, 1982 

~ecided: December 16, 1982 

Filed: DEC 2.6 1982 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

~efendant appeals from a jury conviction of felony 

theft in the Eighth Judicial District Court, Cascade County. 

He raises a single issue: Whether the District Court erred 

in denying his motion to suppress certain evidence. We 

affirm the District Court, finding that defendant lacked 

standing to challenge the constitutionality of both the 

search and seizure of evidence, as he had no reasonable 

expectation of privacy in the area searched. 

Shortly before midnight, July 6, 1981, a couple (Stirnsons) 

who owned a liquor store in Neihart, Montana, reported the 

theft of two bottles of Southern Comfort whisky from their 

store. They named as suspects two juveniles whom they had 

seen that evening in the company of defendant. Three 

deputies who were en route to Neihart were notified that 

Stimsons' Jeep Wagoneer had also been stolen from their 

garage adjacent to the liquor store. Stimsons informed the 

officers that defendant's party of five persons, whom they 

named, was cutting wood in the National Forest out of 

Neihart. The officers knew defendant was the only adult in 

the party. Knowing the area in which defendant cut wood, 

the deputies drove their two police cars up to the Moose 

Park camping area in the National Forest at about 1:00 a.m. 

As they approached one campsite, the deputies recognized 

the green pickup truck described by Stimsons which the 

deputies knew belonged to defendant's mother; they drove 

their cars up to the campsite, with the headlights illuminating the camp. No one was present, but the three officers 

could see a pickup camper on the ground, and numerous items 

lying in the open around the campsite. Some of the items 

appeared brand new, others out of place: Forest Service 

snowshoes (in July), fancy cut glass lanterns, a nonportable T.V., stereo and tape deck in a place far from any 
outlet. The deputies suspected the items were stolen, but 

did not seize them immediately. Instead they photographed 

them and took down serial numbers, then drove a short distance 

away from the campsite. 

Within a few minutes one of the deputies heard a shout 

and running footsteps. The deputies all returned to the 

campsite, and found evidence that someone had just been 

there--the camper door, which had been open, was now closed, 

a garbage can of groceries which had been outside the camper 

was now inside, and several of the items the officers suspected 

were stolen had been pushed behind trees, partially concealed 

under the pickup truck, or half-covered by sleeping bags. 

No one was there, so the deputies left again and returned in 

about twenty minutes. This time they found defendant and 

his four companions at the campsite. 

No arrest or seizure of evidence was made at that time, 

but two of the deputies remained at the campsite with the 

party, while a third (Officer Halvorson) drove back to 

Neihart to determine whether any of the property seen lying 

around the campsite belonged to the Stimsons. It did not. 

Officer Halvorson then returned to the campsite and arrested 

defendant for endangering the welfare of a minor. All of 

the party were taken to the sheriff's office in the deputies' 

cars. The items in sight on the ground were seized; the 

camper was restored to the pickup and the pickup was towed 

into town. One other member of the party was charged with 

violating probation; no charges were brought against the 

other three. 

Accounts of the witnesses vary widely as to the time 

that elapsed between the deputies' third appearance at the 

campsite and defendant's arrest and as to the freedom the 

party had while Officer Halvorson went to Neihart. It is 

obvious that the delay was well over half an hour, and that 
the party reasonably believed they were not free to depart. 

Defendant made no claim to ownership of the property, although 

his girlfriend claimed to own the lanterns. 

Within several hours of the return to the sheriff's 

office, the seized items were identified as belonging to two 

burglarized cabins in Neihart. Defendant was charged with 

burglary and felony theft. Ten days after defendant's 

arrest, two juvenile members of the party (nephews of 

defendant) led deputies to the stolen Jeep, which had been 

stuck and abandoned on a back road near the campsite. 

Warrants were obtained to search the Jeep and the pickup/camper; 

more evidence of theft from the two cabins in Neihart was 

discovered. Defendant pleaded not guilty to three counts of 

felony theft, two counts of burglary, and two counts of 

felony mischief. The charge against defendant, of endangering 

the welfare of children, was dismissed as being without 

probable cause. 

The District Court denied defendant's motion to suppress 

evidence seized at the campsite and from the vehicles, 

finding that the evidence "was not obtained by reason of the 

arrest of the Defendant or any illegal action." A jury 

found defendant guilty of three counts of felony theft. 

Defendant appeals, asserting that the District Court committed 

reversible error in denying his motion to suppress evidence. 

He argues that the seizure of the evidence at the campsite 

was incident to his arrest without probable cause, indeed, 

that the arrest was merely a pretext for seizing the items. 

He further argues that the evidence seized in the search of 

the vehicles and camper must be suppressed as "fruit of the 

poisonous tree," tainted by the initial illegal seizure, and 

that the trial court's failure to suppress the evidence 

constitutes reversible error. 
The first and dispositive question is whether defendant 

possessed standing to raise a Fourth Amendment challenge to 

the admission of the evidence seized from the campsite and 

from the vehicles. Defendant has claimed no possessory 

interest in the evidence; in fact, he disclaimed such an 

interest before the trial court. Furthermore, he admits to 

having a "diminished" expectation of privacy in that the 

items initially seized were in plain sight on public land. 

His position is that not the search, but the seizure, violated 

the Fourth Amendment, and thus the evidence seized at the 

campsite, and all evidence gathered by exploration of that 

seizure, must be suppressed. 

We do not agree. After consideration of those United 

States Supreme Court cases which interpreted, and, in 1980, 

renounced the "automatic standing" rule articulated in Jones 

v. United States (1960), 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 

697, we find that defendant had no reasonable expectation of 

privacy in the campsite at Moose Camp and therefore he 

lacked standing to assert a Fourth Amendment objection to 

admission of the evidence found and seized there. We alsc 

find that since the evidence seized from the vehicles and 

camper was - not tainted by any illegal seizure at Moose Camp, 

it, too, was properly admitted at trial. 

The history of the "automatic standing" rule first 

adopted in Jones, supra, is clearly set forth in United States 

v. Salvucci (198O), 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 

619, wherein that rule was explicitly overruled. In Jones, 

the Supreme Court established an exception to the rule that 

only one who established that he himself was the victim of 

an invasion of privacy could challenge the legality of a 

search as the basis for suppressing relevant evidence. 

". . .[i]n cases where possession of the seized 

evidence was an essential element of the offense 

charged, the [Jones] Court held that the defendant 

was not obligated to establish that his own Fourth 
Amendment rights had been violated, but only that 

the search and seizure of the evidence was unconstitutional. Upon such a showing, the exclusionary 

rule would be available to prevent the admission 

of the evidence against the defendant." United 

States v. Salvucci, 448 U.S. at 87, 100 S.Ct. at 

2550, 65 L.Ed.2d at 625. 

The Jones rule was seen as meeting two needs. Any defendant 

who asserted a possessory interest in incriminating evidence 

prior to Jones risked having that assertion used against him 

at trial. The State was allowed to assert that a defendant 

possessed the goods for purposes of criminal liability and 

that he did not possess them for purposes of claiming Fourth 

Amendment protection. 

"Thus in order to prevent both the risk that selfincrimination would attach to the assertion of 

Fourth Amendment rights, as well as to prevent the 

'vice of prosecutorial self-contradiction,' 

[citation omitted] the Court adopted the rule 

of 'automatic standing.'" United States v. 

Salvucci, 448 U.S. at 88, 100 S.Ct. at 2551, 65 

L.Ed.2d at 626. 

Since 1960, a number of Supreme Court cases prior to 

Salvucci substantially eroded the need for the "automatic 

standing" rule. In Simmons v. United States (1968), 390 

U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, the Supreme Court 

held that testimony given by a defendant in support of a 

motion to suppress cannot be admitted as evidence of his 

guilt at trial, eliminating the defendant's dilemma identified in Jones. Thus, even without Jones, the defendant is 

no longer obliged to sacrifice either a Fourth Amendment 

right or a Fifth Amendment right. Salvucci also noted: 

"The simple answer is that the decisions of this 

Court, especially our most recent decision in 

Rakas v. Illinois, 439 U.S. 128 (1978), clearly 

establish that a prosecutor may simultaneously 

maintain that a defendant criminally possessed the 

seized good, but was not subject to a Fourth 

Amendment deprivation, without legal contradiction. To conclude that a prosecutor engaged in 

self-contradiction in Jones, the Court necessarily 

relied on the unexamined assumption that a defendant's 

possession of a seized good sufficient to establish 

criminal culpability was also sufficient to establish Fourth Amendment 'standing.' This assumption, 

however, even if correct at the time, is no longer 

SO. 
"As we hold today in Rawlings v. Kentucky, 

post., p. 38, legal possession~f a seized 

good is not a proxy for determining whether 

the owner had a Fourth Amendment interest 

for it does not invariably represent the 

protected Fourth Amendment interest." 448 

U.S. at 90-91, 100 S.Ct. at 2552-3, 65 L.Ed.2d 

at 627-628. 

Salvucci concluded that while property ownership is "a 

factor" in determining whether Fourth Amendment rights have 

been violated, illegal search only violates - the rights 

- of those --- who have 'a legitimate expectation - of privacy - in 

the invaded place.'" U.S. 

65 L.Ed.2d at 628 (emphasis supplied), citing ~akas v. - 

Illinois (1978), 439 U.S. 128, 99 S.Ct. 421, 58 L.Fd.2d 387. 

In abandoning the "automatic standing" rule, the - Salvucci 

court stated: 

"As in Rakas, we again reject 'blind adherence' to 

the other underlying assumption in Jones that 

possession of the seized good is an acceptable 

measure of Fourth Amendment interests. As in 

Rakas, we find that the Jones standard 'creates 

too broad a gauge for measurement of Fourth 

Amendment rights' and that we must instead engage 

in a 'conscientious effort to apply the Fourth 

Amendment' by asking not merely whether the 

defendant had a possessory interest in the items 

seized, but whether he had an expectation of 

privacy in the area searched. Thus neither 

prosecutorial 'vice,' nor the underlying assumption of Jones that possession of a seized good is 

the equivalent of Fourth Amendment 'standing' 

to challenge the search, can save the automatic 

standing rule." 448 U.S. at 92-93, 100 S.Ct. at 

2553, 65 L.Ed.2d at 629. 

This Court has recognized and followed the Supreme 

Court's shift in emphasis. In State v. Allen (1980), 

Mont. , 612 P.2d 199, 37 St.Rep. 919, a defendant who 

permanently resided at his girlfriend's apartment was found 

to have standing to challenge the legality of the search and 

seizure of that apartment; in State v. Isom (1982), 

Mont. , 641 P.2d 417, 39 St.Rep. 137, a defendant, who 

was an overnight guest and the sole occupant of his uncle's 

house at the time of the search, with the right to exclude 

others, had standing to challenge a police search of the 
house. The defendant's disclaimer of ownership of a vehicle 

during custodial interrogation did not deprive him of standing 

to contest the search of that vehicle. His disclaimer of 

ownership of the vehicle did not affect defendant's standing 

to contest the search of garbage bags found in the trunk of 

the car. In both Isom and Allen, this Court recognized "a 

legitimate expectation of privacy," as the primary test for 

determining standing, although such tests as disclaimer of 

ownership, "legitimately on the premises" and permanence of 

presence on premises were factors to be considered in determining standing. 

Let us consider the facts of this case in light of the 

above cases. Standing has been found where there was temporary 

residence in a building, or where the defendant owned the 

structure or vehicle searched. The reasonableness of his 

expectation of privacy turned on the defendant's right to 

exclude others from the premises. The premises in question 

concealed the presence of incriminating evidence, or shielded 

the defendant from police discovery of incriminating behavior. 

Here, the "temporary residence" was public property, a 

National Forest campsite, where defendant had set his camper 

top arid a few pieces of property (no tent); there were no 

people present; and the suspiciou.~ character of the items 

strewn about the campsite was exposed for all to see. 

Defendant himself correctly concedes that the deputies had 

a legal right to be where they were. He admits that, under 

State v. Charvat (1978), 175 Mont. 267, 269, 573 P.2d 660, 

661, such areas as an "open field, farmland, or a corral" 

are not embraced within the constitutional guarantee of 

unreasonable searches and seizure, and, thus, the intrusion 

into the camp was permissible. He admits that the location 

of the campsite on public land next to a public road led to 

a diminished expectation of privacy. 
Defendant would have this Court separate the search, 

which he himself concedes is constitutional, from the 

seizure, which he argues occurred without probable cause to 

believe the items seized were stolen. However, the facts of 

this case, and defendant's own concessions, finally establish 

that defendant had no reasonable expectation of privacy in 

the area searched as to the items he sought to suppress, 

whether. on account of the search or the seizure. 

Even if we were to separate the seizure from the search, 

it is evident that probable cause existed for the deputies 

to reasonably believe the items seized from Moose Camp were 

stolen, and that, as the trial judge ruled, the seizure was 

not incident to defendant's arrest for endangering the 

welfare of a minor. The appearance of the items alone roused 

the officers' suspicion that they were stolen. Some of them 

were brand-new (still in wrappings). Others were electrical 

appliances, obviously not portable, lying around a campsite 

where there was no outlet. There were Forest Service snowshoes 

(in July) and fancy glass lanterns. Still more suspicious 

was the evidence of attempted concealment by the campers of 

both themselves and the property. In the few minutes that 

the officers were absent from the camp after their first 

visit, the suspicious items (T.V., stereo, tape deck, etc.) 

were moved behind trees and under the pickup, or were partially 

covered by sleeping bags. When the officers entered camp 

the third time, they saw the campers, including defendant, 

"crouching" or otherwise attempting to conceal themselves. 

Probable cause does not require absolute proof that a 

crime was committed, that the persons taken into custody 

committed it, or that the evidence seized is contraband or 

the fruit of a crime. This Court has frequently stated that 

only the probability, and not a prima facie showing, of 

criminal activity is the standard of probable cause. State 
v. ~roglia (1971), 157 Mont. 22, 482 P.2d 143. Nor does 

the officers' attempt to establish more firmly that the 

items were stolen indicate that probable cause to seize the 

items did not exist without the additional proof. We find 

that there was probable cause to support the seizure of the 

items at the Moose Camp. The fact that the items were 

seized at the same time defendant was arrested for an unrelated 

crime does not establish that they were seized incident to 

that arrest. 

This Court has also held that absent exigent circumstances, evidence cannot be seized without a warrant, despite 

the observation of'evidence in plain sight and the existence 

of probable cause. State v. Lane (1977), 175 Mont. 225, 573 

P.2d 198. In the case at bar, however, the deputies were 

faced with three alternatives besides warrantless seizure of 

the evidence. They could have taken in only one or two of 

the party, and left the others in camp with the evidence, 

despite the fact that efforts had already been made by 

defendant's party to conceal the evidence. Those left behind 

would undoubtedly have destroyed or hidden the evidence as 

soon as the officers left. Or, the officers could have 

simply left the items unguarded out in the open in a public 

spot, and returned hours or days later with a warrant. 

Finally, they could have left one officer at the campsite, 

guarding the property, while they took defendant's party 

in, obtained a warrant, and returned many miles to pick up 

the evidence. None of the alternatives to seizure is acceptable; clearly, circumstances existed which made seizure, 

even without a warrant, the only reasonable way to protect 

the evidence. Exigent circumstances, although jealously 

limited, are not absolutely limited. This is one case where 

the unusual situation amounted to exigent circumstances. 

The District Court committed no error in denying defendant's 
We concur: