No. 12486 

IN THE 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 2 4 1973 

Filed: WT 2 4.1973 
Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. 

Defendant was charged with unlawful possession of dangerous 

drugs in the district court of Missoula County. She moved to suppress 

the evidence seized by the Missoula County sheriff's office. From the 

order of the district court suppressing the evidence, the state appeals. 

Briefly stated the facts are as follows: On January 20, 1973, 

deputy sheriffs Frojen and Churchwell of Missoula County were patrolling 

an area in Missoula, Montana. The deputies, who work for the drug team, 

were driving an unmarked car and wearing plain clothes. Defendant was 

hitchhiking on Brooks Street in Missoula. The officers stopped and picked 

her up. They identified themselves to defendant as bill collectors and 

expressed to her an interest in buying some drugs. Defendant told the 

officers she had extensive involvement with drugs, but she did not have 

any with her at that time and did not know where the officers could obtain 

any. 

While driving around for a period of time, the officers urged 

defendant to let them know where they could get some narcotics. Defendant told the officers that she really didn't know many people in Missoula. 

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 told them she 

was 18 and not 19 years of age and gave the officers a welfare card and a 

check guarantee card for identification. The welfare card identified the 

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 if she had graduated from high school. She 

stated she had graduated, but could not remember the year in which she gradila ted. 

The officers brought defendant to the sheriff's office for the 
purpose of identifying her, to contact her parents and inform them that 

their daughter had been located. While at the sheriff's office Officer 

Churchwell examined the contents of defendant'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 to their going through her purse. 

Officer Churchwell dumped the contents of defendant's purse out 

on the desk. He opened a zippered purse which was in the larger purse and 

therein found the drugs. Defendant exclaimed, "Well, you have got me now," 

but there is a conflict as to when 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 to suppress 

the evidence. The district court, 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 is whether the drugs were 

properly seized by the deputy sheriffs. 

The 4th Amendment to the Constitution of the United States and 

Art. 111, s 7, Montana Constitution of 1889 (Art. 11, B 11, Montana Constitution of 1972) protects citizens from "unreasonable searches and seizures." 

Section 95-701, R.C.M. 1947, states: 

"A search of a person, object or place may be made and 

instruments, articles or things may be seized in accordance with the provisions of this chapter when the search 

is made: 

"(a) As an incident to a lawful arrest. 

"(b) With the consent of the accused or of any person 

who is lawfully in possession of the object or place to 

be searched, or who is believed upon reasonable cause to 

be in such 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 

right of 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 is defined in its 4th 

Amendment sense. 

This Court in State v. Williams, 153 Mont. 262, 269, 455 P.2d 

634, said: 

" * * * we find that a 'search' has been held to imply an 

examination of one's premises or person with a view to 

the discovery of contraband or evidence of guilt to be 

used in prosecution of a criminal action; it implies an 

exploratory investigation or quest. (Citing authority. ) 

In the aggregate,a 'search' in its 4th Amendment sense 

simply denotes (1 ) a quest by an officer of the 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)." 

In the instant case the officers testified that the drugs were 

discovered in an attempt to identify the defendant. There was no "examination of one's premises or person with a view to the discovery of contraband 

or evidence of guilt to be used in prosecution of a criminal action". Under 

the foregoing definition there was no "search" under the facts of this 

case. The question presented, however, is whether the seizure was proper, 

and the state argues that it was under the "plain view" doctrine. 

In the recent case of State v. Gallagher, Mont . , 509 

P.2d 852, 30 St.Rep. 467, 476, this Court said: 

"The rule is: Where there is prior justification for 

the police to search an area, and in searching the 

area, they inadvertently find incriminating evidence 

which they had no reason to anticipate, they may lawfully seize that incriminating evidence." (Citing 

authority. ) 

In Gallagher the sheriff was searching the house for a prowler 

when he entered the bedroom of defendant and noticed the evidence. In finding that the sheriff's reason for being in defendant'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, its rationale and appl ication. In Coolidge at 29 L ed 2d 564, 583, the Court said: 

"The rationale for the 'plain view' exception is evident 

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 is that a?y intrusion in the way of search 

or seizure is an evil, so that no intrusion at all is 

justified without a careful prior determination of 

necessity. (Citing authority.) The second, distinct 

objective is that 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 is not that of intrusion per se, but of a general , exploratory rummaging in a person's belongings. 

(Citing authority.) * * * 

"The 'plain view1- doctrine is not in conflict with the 

first objective because plain view does not occur until 

a search is in progress. In each case, this initial 

intrusion is justified 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 street where 

she had a birth certificate. Before going to the sheriff's office the 

trio drove within a few blocks of the Sussex address. In response to 

questions asked of Officer Churchwell concerning going to the house on 

Sussex, the officer gave the following answers: 

"Q. And would it have been much trouble to go to her 

house to check out the birth certificate part of it? 

A. That's not usually how we operate. 
"Q. Well -- A. I wouldn't have done it that way, no. 

"Q. You obviously didn't do it that way; but would it 

have been much trouble for you to have done that? A. 

It could have been done. 

"Q. Fairly easy, could it not? A. Yes." 

Defendant told the officers that her sister lived with her at 

the Sussex address and that her sister could prove defendant's identification. She also told them that her parents lived in Warm Springs. Officer Churchwell could not remember whether or not he called defendant's 

parents. He testified as follows: 

"Q. Mr. Churchwell, is it usual for you to phone the 

parents when you bring a juvenile in? A. I often do that, 

yes. 

"Q. Don't you do that most of the time, practically every 

time? A. Yes, sir. 

"Q. Did you phone JoAnn's parents? A. No -- I 'm not 

sure whether I did or not. I really don't remember. 

"Q. If I told you that she told me, and she found out 

from her folks that you did not, would you be1 ieve that? 

A. Yes, sir." 

Officer Frojen did not call defendant's parents. Defendant's 

sister was called later in the evening. The drugs were discovered before 

she arrived. 

Officer Frojen was handed defendant's wallet while riding in the 

car. He testified that it was the type of billfold that would hold credit 

cards, papers and identification. He did not, however, at that time examine the contents of the wallet. Deferldant testified that the zippered 

purse in which the drugs were found was a make-up bag. 

According to Officer Churchwell, he asked for other identification 

from the defendant than what she had produced. Defendant informed him that 

what she had given to the officer was all that she had with her. 

Officer Churchwell was asked what the normal procedure is with a 

suspected runaway juvenile. He said: 

"A. Normally I take them to the office; in the case of 

run-away juveniles, take them to the office, interview 

them briefly and then advise them that I am going to 
call their parents. I obtain a phone number from them 

and call the parents." 

It was 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 is not applicable. 

In addition, the state argues 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 

be1 ieve the defendant was a runaway juvenile. Defendant, however, was 

not arrested; she was 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 a juvenile that she 

could call her parents, her sister, the address at Sussex or an attorney. 

She was not arrested until after the drugs were found. 

There was no search incident to a lawful arrest. Therefore, the 

seizure was not proper on this basis and it cannot serve as a prior justification for the "plain view" doctrine. 

As a third alternative the state contends 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 court justified 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. Just i ce John Conway Harrison dissenting: 

I dissent.