### No. 12486 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973



### THE STATE OF MONTANA, Plaintiff and Appellant,

-vs

# - JOANN G. HOUGH, 

### Defendant and Respondent.

Appeal from: District Court of the Fourth Judicial District, Honorable Edward 

### T. Dussault, Judge presiding. Counsel of Record : 

### For Appellant: 

### Hon. Robert L. 

### Woodahl, Attorney General, Helena, Montana J. C. 

### Weingartner, Assistant Attorney General, appeared, Helena, Montana Robert L. 

### Deschamps 111, 

### lhp&y County Attorney, Missoula, Montana Michael J. 

### Milodragovich, Deputy County Attorney, argued, Missoula

## ,Montana For Respondent : 

### Donald R. 

### Matthews argued, Missoula, Montana

Submitted: September 

### 11, 

### 1973 Decided:

## OCT

## 24

## 1973 Filed:

## WT24.1973Mr. Chief Justice James T. Harrison delivered the Opinion of the Court.

Defendant was charged with unlawful possession of dangerous drugs inthe districtcourt of Missoula County. She moved tosuppress the evidence seized by the Missoula County sheriff's office. From the order of the districtcourt suppressing the evidence, the state appeals. Brieflystated the facts are as follows: On January 

### 20, 1973, deputy sheriffs Frojen and Churchwell of Missoula County were patrolling

an area inMissoula, Montana. The deputies, who work forthe drug team,

were drivingan unmarked car and wearing plain clothes. Defendant was hitchhiking on Brooks Street inMissoula. The officers stopped and picked her up. They identified themselves to defendant as billcollectors and expressed to her an interest inbuying some drugs. Defendant told the officers she had extensive involvement withdrugs, but she did not have any with her atthat time and did not know where the officers could obtain any. While driving around for a period of time, the officers urged defendant to letthem know where they could get some narcotics. Defendant told the officers that she reallydidn't know many people inMissoula. The officers estimated defendant's age to be 15 or 16 because she looked extremely young. Defendant stated her age was 19 years and that her first name was Ginnie. Suspecting defendant was a runaway juvenile the officers identified themselves as deputy sheriffs. Defendant toldthem she

was 18 and not 19years of age and gave the officers a welfare card and a check guarantee card for identification. The welfare card identifiedthe subject as JoAnn Hough. The welfare card revealed the subject had two children. Defendant

was unable to accurately state the children's birthdates upon being questioned by the officers. She was asked ifshe had graduated from high school. She stated she had graduated, but could not remember theyear inwhich she gradilated. The officers brought defendant to the sheriff's officefor thepurpose of identifying her, tocontact her parents and inform them that their daughter had been located. While atthe sheriff's officeOfficer Churchwell examined the contents ofdefendant's purse. The officers claim that defendant had no objection to them going through her purse. Officer Churchwell testified that defendant voluntarily handed him the purse, a1

# - though he did not explain to her that she had any alternative. Defendant claims she objected totheir going through her purse. Officer Churchwell dumped the contents ofdefendant's purse out

on the desk. He opened a zippered purse which was inthe larger purse and therein found the drugs. Defendant exclaimed, "Well, you have got me now," but there isa conflictas towhen this statement was made. The officer discovered a quantity of hashish and marijuana. Defendant was then formally arrested and advised of her rights. An evidentiary hearing was held on defendant's motion tosuppress the evidence. The districtcourt, the Hon. Edward T. Dussault presiding, suppressed the seized drugs on the grounds that the search and seizure was unreasonable. The single issue presented on appeal iswhether the drugs were properly seized by the deputy sheriffs. The 4thAmendment to the Constitutionof the United States and Art. 

### 111, 

## s 7, Montana Constitution of 1889 (Art. 

### 11, 

### B 11, Montana Constitutionof 1972) protects citizens from "unreasonable searches and seizures." Section 95-701, R.C.M. 1947, states: "A search ofa person, object or placemay be made and instruments, articles or things may be seized inaccordance with the provisions of this chapter when the search ismade: "(a) As an incident toa lawful arrest. "(b) With the consent ofthe accused or ofany person who islawfully inpossession of the object or place to be searched, orwho isbelieved upon reasonable cause to be insuch lawful possession by the person making the search. "(c) By the authority of a valid search warrant."(d) Under the authority and within the scope of a rightof lawful inspection granted by the law." The state presents three alternatives for finding that the drugs were properly seized. First, the state argues there was no search under the circumstances of this case as the term isdefined inits4th Amendment sense. This Court inState v. Williams, 153 Mont. 262, 269, 455 P.2d 634, said:

### " 

## * * * we findthat a 'search' has been heldto implyan examination of one's premises or person with a view to the discovery of contraband or evidence of guilt to be used inprosecution of a criminal action; it implies an exploratory investigation or quest. (Citingauthority.

### ) Inthe aggregate,a 'search' inits4thAmendment sense simply denotes (1

### ) a quest by an officer ofthe law (Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652) (2) with an intention of find (United States v. Lodahl, D.C.Mont. 264 F.Supp. 927), (3) which invades a constitutionally protected area (Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399); Weeks v. United States, supra)." Inthe instant case the officers testifiedthat the drugs were discovered inan attempt to identifythe defendant. There was no "examination of one's premises or person with a view tothe discovery ofcontraband

or evidence of guiltto be used inprosecution of a criminal action". Under theforegoing definition there was no "search" under thefacts of this

case. The question presented, however, iswhether the seizurewas proper, and the state argues that itwas under the "plain view" doctrine. Inthe recent case of State v. Gallagher, Mont

# . ,509 P.2d 852, 30 St.Rep. 467, 476, this Court said: "The rule is: Where there isprior justification for the police to search an area, and insearching the area, they inadvertently find incriminating evidence which they had no reason toanticipate, they may lawfully seize that incriminating evidence." (Citing authority.) InGallagher the sheriff was searching the house for a prowler when he entered the bedroom ofdefendant and noticed the evidence. Infinding that the sheriff's reason for being indefendant's bedroom was lawful

ana that the evidence seized clearly came within the "plain view" doctrine,

### we quoted extensively from the United States Supreme Court decision of Coolidge 

### v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L 

### ed 2d 564, which thoroughly discusses the "plain view" doctrine, itsrationale and application. In Coolidge at29 L 

### ed 2d 564, 583, the Court said: "The rationale for the 'plain view' exception isevident if we keep in mind the two distinct constitutional protections served by the warrant requirement. First, the magistrate's scrutiny is intended to eliminate altogether searches not based on probable cause. The premise here isthat a?y 

### intrusion in the way of search or seizure isan evil, so that no intrusion atall is justified without a careful prior determination of necessity. (Citing authority.) The second, distinct objective isthat those searches deemed necessary should be as limited as possible. Here, the specific evil is the 'general warrant' abhorred by the colonists, and the problem isnot that of intrusion 

### per se, but 

### of a general

## ,exploratoryrummaging in a person's belongings. (Citing authority.) 

## * *

## * "The 'plain view1-doctrine isnot in conflict with the firstobjective because plain view does not occur until a search isin progress. In each case, this initial intrusion isjustified by a warrant or by an exception such as 'hot pursuit' or search incident to a lawful arrest, or by an extraneous valid reason for the officer's presence. 

## * * *" The question in this case becomes whether there was a "prior justification" for the officer to be in defendant's purse. There was no warrant for another object. Hot pursuit was not involved. Was there an extraneous valid reason for the officer's presence in the purse, or pursuant to section 95-701(d), 

### R.C.M. 

### 1947, was the inspection under the authority and within the scope of a right granted by law? Let us examine the facts in more detail. After the officers identified themselves, defendant showed the officers her welfare card and told them that she lived on Sussex streetwhere she had a birth certificate. Before going to the sheriff's office the triodrove within 

### a few blocks of the Sussex address. In response to questions asked of Officer Churchwell concerning going tothe house on Sussex, the officer gave the following answers: 

### "Q. And 

### would ithave been much trouble to go to her house 

### tocheck out the birth certificatepart of it? A. 

### That's 

### not usually how we operate.

### "Q.Well 

## -- A. Iwouldn't have done itthatway, no. 

### "Q. You obviously didn't do itthatway; butwould it have been much trouble foryou tohave done that? 

### A. Itcould have been done. 

### "Q. Fairlyeasy, could itnot? A. Yes." Defendant told the officers that her sister livedwith her at the Sussex address and that her sister could prove defendant's identification. She also toldthem that her parents lived inWarm Springs. Officer Churchwell could not remember whether or not he called defendant's parents. He testified as follows: 

### "Q. Mr. Churchwell, is itusual for you to phone the parents when you bring a juvenile in? 

### A. 

### I oftendo that, yes. 

### "Q. Don't you do thatmost of the time, practically every time? 

### A. Yes, sir. 

### "Q. Didyou phone JoAnn's parents? A. No

# -- I 

### 'm not sure whether 

### Idid or not. 

### Ireallydon't remember. 

### "Q. IfItoldyou that she toldme, and she found out from her folks thatyou did not, would you be1ieve that? 

### A. Yes, sir." Officer Frojendid not call defendant's parents. Defendant's sisterwas called later inthe evening. The drugs were discovered before she arrived. Officer Frojenwas handed defendant's wallet while riding inthe

car. He testified that itwas the type of billfold thatwould hold credit cards, papers and identification. He did not, however, atthat time examine the contents ofthe wallet. Deferldant testified that the zippered purse inwhich the drugs were found was a make-up bag. According toOfficer Churchwell, he asked for other identification from thedefendant than what she had produced. Defendant informed him that what she had given tothe officer was allthat she had with her. Officer Churchwell was asked what the normal procedure iswith a suspected runaway juvenile. He said: 

### "A. Normally 

### Itake them to the office; inthe case of run-away juveniles, take them tothe office, interview them briefly and then advise them that 

### Iam going to

### call their parents. I 

### obtain a phone number from them and call the parents." Itwas the officers' responsibility to identify the defendant and notify the proper parties. We observe from the facts, however, that the officers had several opportunities by which they could obtain identification. Present in this case is

### an apparent deviation from the normal procedure for identifying the defendant. This deviation cannot extend into constitutionally protected areas and be justified for the purpose of proving identification. Noticeably, the available and more reliable alternatives were not pursued by the officers. There was no valid reason for the officer's presence in the defendant's purse, and the "plain view" doctrine isnot applicable. In addition, the stateargues that the seizure can also be justified on the basis that there was a search made incidental to an arrest. We do 

### not overlook the fact that the officers had reasonable grounds to be1ieve the defendant was a runaway juvenile. Defendant, however, was not arrested; shewas simply taken into custody for the purpose of proving her identification. We note, as did the district court, that defendant was not told that even though she was suspected of being ajuvenile that she could call her parents, her sister, the address atSussex or an attorney. She was 

### not arrested until after the drugs were found. There was 

### no search incident to a lawful arrest. Therefore, the seizurewas 

### not proper on this basis and itcannot serve as a priorjustification for the "plain view" doctrine. As a third alternative the statecontends that the seizure can be sanctioned by the Supreme Court of the United States decision in Terry 

### v. Ohio, 392 U.S. 

### 1, 88 S.Ct. 

### 1868, 20 

### L 

### ed 2d 

### 889. In Terry the courtjustified the "stop and frisk" procedures used by police officers. The doctrine enunciated in

### Terry has no application to the facts of this case. For the foregoing reasons, the order of the district court

### suppressing the drugs is hereby a

We concur: /7 

## /

i 

### Justices 

# --

Mr. Justice John Conway Harrison dissenting: I 

### dissent.