No. 82-65 INTHE SlJPREME COURT OF THE STATE OF MONTANA 1982

THE STATE OF MONTANA, Plaintiff and Respondent,

VS

# . THOMAS MATTHEW DESS

## , Defendant and Appellant.

Appeal from: DistrictCourt 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, GreatFalls, Montana Randall Snyder argued, Deputy County Attorney, Great Falls,

Montana

submitted: September 17, 1982 ~ecided: December 16, 1982 Filed: 

## DEC2.6

## 1982Mr. Justice Fred J. Weber delivered the Opinion of the Court.

~efendant appeals from a jury conviction of felony theft inthe Eighth Judicial DistrictCourt, Cascade County. Heraises a single issue: Whether the DistrictCourt erred indenying hismotion to suppress certain evidence. We affirm the District Court, finding thatdefendant lacked standing tochallenge the constitutionalityof both the search and seizureof evidence, ashe had no reasonable expectation of privacy inthe area searched. Shortlybeforemidnight, July 6, 1981, a couple (Stirnsons) who owned a liquor store inNeihart, Montana, reported the theft of two bottles of Southern Comfort whisky from their store. They named as suspects two juveniles whom they had

seen thatevening inthe company of defendant. Three deputieswho were en route toNeihart were notified that Stimsons' JeepWagoneer had alsobeen stolen from their garage adjacent to the liquor store. Stimsons informed the officers thatdefendant's party of fivepersons, whom they named, was cuttingwood intheNational Forest out of Neihart. The officersknew defendantwas the only adult in theparty. Knowing the area inwhich defendant cutwood, the deputies drove their two police carsup totheMoose Park camping area intheNational Forest atabout 1:00 a.m. As they approached one campsite, the deputiesrecognized the green pickup truck describedby Stimsons which the deputies knew belonged todefendant's mother; they drove their cars up to the campsite, with theheadlights illuminating the camp. No one was present, but the three officers could see a pickup camper on the ground, and numerous items lying inthe open around the campsite. Some of the items appeared brand new, others outof place: Forest Service snowshoes (inJuly), fancy cutglass lanterns, a nonportable T.V., stereo and tape deck ina place far from anyoutlet. The deputies suspected the items were stolen, but did not seize them immediately. Instead they photographed them and took down serialnumbers, then drove a shortdistance away from the campsite. Within a few minutes one of the deputies heard a shout and running footsteps. The deputies allreturned tothe 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 severalof the items the officers suspected

were stolenhad been pushed behind trees, partially concealed under the pickup truck, orhalf-covered by sleeping bags. No one was there, sothe deputies leftagain and returned in about twenty minutes. This time they found defendant and his four companions atthe campsite. No arrestor seizureof evidence was made atthattime, but two of the deputies remained atthe campsite with the party, while a third (OfficerHalvorson) drove back to Neihart todetermine whether any of theproperty seen lying around the campsite belonged tothe Stimsons. Itdid not. Officer Halvorson then returned to the campsite and arrested defendant for endangering thewelfare of a minor. Allof the party weretaken tothe sheriff's office inthe deputies'

cars. The items insighton the ground were seized; the camper was restored to the pickup and the pickup was towed into town. One othermember of the party was charged with violating probation; no chargeswere brought against the other three. Accounts of thewitnesses vary widely as tothe time that elapsed between the deputies' third appearance atthe campsite and defendant's arrestand as to the freedom the party had while Officer Halvorson went toNeihart. It is obvious that the delay was well over half an hour, and thatthe 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 itemswere identified as belonging to two burglarized cabins inNeihart. Defendantwas charged with burglary and felony theft. Ten days after defendant's arrest, two juvenilemembers 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. Defendantpleaded not guilty to three counts of felony theft, two counts of burglary, and two counts of felony mischief. The charge against defendant,of endangering thewelfare 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 Defendantor 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 hismotion to suppress evidence. 

### He argues that the seizure of the evidence at the campsite

was incident to his arrestwithoutprobable cause, indeed, that the arrestwas 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 "fruitof 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 FourthAmendment 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 caseswhich 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 atMoose 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 camperwas 

### - not tainted by any illegal seizure atMoose Camp, it, too, was properly admitted at trial. The history of the "automatic standing" rule first adopted in Jones, supra, is clearly set forth inUnited 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 caseswhere possession of the seized evidencewas an essential element of the offense charged, the [Jones] Court held that the defendant was not obligated to establish that his own FourthAmendment rights had been violated,but only that the search and seizure of the evidencewas unconstitutional. Upon such a showing, the exclusionary rulewould 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, 65L.Ed.2d at 625. The Jones rule was seen asmeeting two needs. Any defendant who asserted a possessory interest in incriminating evidence prior to Jones risked having that assertion used againsthim at trial. The State was allowed to assert that a defendant possessed the goods for purposes of criminal liability and that he did notpossess them for purposes of claiming Fourth Amendment protection. "Thusin order to prevent both the risk that selfincrimination would attach to the assertion of Fourth Amendment rights, as well as to prevent the

'viceof prosecutorial self-contradiction,' [citation omitted] the Court adopted the rule of 'automaticstanding.'" United Statesv. 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 SupremeCourt 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 FourthAmendment right or a FifthAmendment right. Salvucci also noted: "The simple answer is that the decisions of this Court,especially ourmost 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 FourthAmendment deprivation, without legal contradiction. To conclude that a prosecutor engaged in self-contradictionin Jones, the Court necessarily relied on the unexamined assumption that a defendant's possession of a seized good sufficient to establish criminal culpabilitywas also sufficient to establish FourthAmendment '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, legalpossession~f a seized good is not a proxy for determining whether the owner had a Fourth Amendment interest for itdoes not invariably represent the protected FourthAmendment interest." 448 U.S. at 90-91, 100 S.Ct. at 2552-3, 65L.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 thosewho have 'a legitimate expectation of privacy in - 

### --- - 

### - the invaded place.'" U.S. 65 L.Ed.2d at 628 (emphasissupplied), 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 'blindadherence' to the other underlying assumption in Jones that possession of the seized good is an acceptable measure of FourthAmendment interests. As in Rakas,we find that the Jones standard 'creates too broad a gauge formeasurement of Fourth Amendment rights' and thatwemust instead engage in a 'conscientious effort to apply the Fourth Amendment' by asking notmerely 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 thatpossession of 

### a seized good is the equivalent of Fourth Amendment 'standing' to challenge the search, can save the automatic standing rule." 448U.S. at 92-93, 100 S.Ct. at 2553, 65L.Ed.2d at 629. This Court has recognized and followed the Supreme Court's shift in emphasis. In State v. Allen (1980), Mont. 

## , 612P.2d 199, 37 St.Rep. 919,a defendantwho permanently resided athis girlfriend's apartmentwas found to have standing to challenge the legality of the search and seizure of that apartment; in State v. Isom (1982), Mont. 

### , 641P.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 thehouse. The defendant's disclaimer of ownership of a vehicle during custodial interrogationdid 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, "legitimatelyon 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 therewas 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 frompolice discovery of incriminatingbehavior. Here, the "temporary residence"was public property, a National Forest campsite, where defendant had set his camper top arid a fewpieces of property (no tent); therewere no people present; and the suspiciou.~ character of the items strewn about the campsitewas 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 Statev. Charvat (1978), 175Mont. 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 withoutprobable 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 notportable, lying around a campsite where therewas no outlet. Therewere Forest Service snowshoes

(inJuly) and fancy glass lanterns. Still more suspicious

was the evidence of attempted concealmentby the campers of both themselves and the property. In the fewminutes that the officers were absent from the camp after their first visit, the suspicious items (T.V., stereo, tape deck, etc.)

weremoved behind trees and under the pickup, or were partially covered by sleepingbags. 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. Statev. ~roglia(1971), 157Mont. 22, 482 P.2d 143. Nor does the officers' attempt to establish more firmly that the items were stolen indicate thatprobable cause to seize the items did not exist without the additionalproof. We find that therewas probable cause to support the seizure of the items at the Moose Camp. The fact that the itemswere seized at the same time defendantwas 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 cannotbe seized without a warrant, despite the observation of'evidence in plain sight and the existence of probable cause. Statev. Lane (1977), 175Mont. 225, 573 P.2d 198. In the case at bar, however, the deputies were faced with three alternativesbesides warrantless seizure of the evidence. They could have taken in only one or two of theparty, and left the others in campwith the evidence, despite the fact that efforts had already been made by defendant'sparty 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'sparty 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 reasonableway to protect the evidence. Exigent circumstances, although jealously limited, are not absolutely limited. This is one case where the unusual situationamounted to exigent circumstances. The District Court committed no error in denying defendant'sWe concur: