NO. 95-086 INTHESUPREME

COURTOFTHESTATEOFMONTANA 1995

STATEOFMONTANA,

Plaintiff andRespondent,
v. ELLENARTHUNandBRUCEARTHUN,

Defendants andAppellants.

APPEALFROM: District Court of the Sixth Judicial District,

In andfor the County of Park, TheHonorable Byron L. Robb, Judge presiding.

COUNSELOFRECORD:

ForAppellant: Larry Jent, Williams, Jent &Dockins, Bozeman, Montana For Respondent: Hon. Joseph P. Mazurek, Attorney General, JohnA. Paulson, Assistant Attorney General, Helena, Montana Robert W.Brown, Special Deputy Park County Attorney, Montana LawEnforcement Academy, Bozeman, Montana

Filed: Submitted onBriefs: September 21, 1995 Decided: November 21, 1995Justice Terry N. Trieweiler delivered the opinion of the Court.

Defendants Ellen andBruceArthun were charged byinformation with possession of drug paraphernalia and criminal possession of dangerous drugs. After anonjury trial in the District Court for the Sixth Judicial District in Park County, the Arthuns were found guilty of all charges. TheArthuns appeal the District Court's denial of their motion to suppress evidence and the court's verdict. Weaffirm the order andjudgment of the District Court. There are three issues onappeal: 1. Did the District Court err when it denied the Arthuns' motion to suppress the package of marijuana? 2. Wasthere sufficient evidence to convict both defendants of felony criminal possession of dangerous drugs? 3. Wasthere sufficient evidence to convict Bruce Arthun of misdemeanor possession of drug paraphernalia? FACTUALBACKGROUND OnMay25, 1993, MikeBracket, apolice officer in Louisville, Kentucky, contacted ParkCounty Deputy Sheriff, Henry Tashjian, and informed himthat the United Parcel Service (UPS)transport hubin Louisville had inspected apackage addressed to Ellen Arthun in Park County, Montana, and had discovered what appeared to be a sizeable amount of marijuana. Themarijuana hadbeenshipped in a
motor oil box from Tucson, Arizona, andwasaddressed to Ellen at the Arthuns' rural homelocated onU.S. Highway 89between Wilsall andClyde Park.

2Officer Tashjian arranged for the box to be sent to the

Livingston Police Department. Whenthe package arrived the next day, the officers tested the contents andresealed it for delivery to the Arthuns' residence. Livingston Police Officer Gerald Cox, disguised as a UPS delivery man,madethe delivery onMay26, 1993, at about 3:45 p.m. Ellen Arthun came to the door and accepted the package. She expressed nosurprise at its delivery, andneither Ellen nor Bruce did anything to return or disclaim it. Officer Tashjian andother local law enforcement personnel set upsurveillance points near the Arthuns' homeandobserved the
area through binoculars for several hours after the delivery of the package. TheysawBruce andhis young stepson leave the residence anddrive to anunlocked farm shedlocated about 400yards awayon the other side of U.S. Highway 89. Bruce entered the shed for a short time, then drove onemile to his parents' ranch home. That afternoon, Bruce andhis stepson also went gopher hunting anddrove to a store in Wilsall before they returned home. Theofficers' surveillance wasobstructed attimes during their surveillance, and they did not seeBruce take the boxout of his home. Following the surveillance, Officer Tashjian obtained asearch warrant for the Arthuns' residence and served it at 8:39 p.m. Officer Tashjian walked up to the Arthuns' homeand spoke with Ellen andBruce. Heexplained the reason for the search, told them about the officers' involvement in the UPSdelivery, andhadthem

3wait onthe living roomcouchwhile the search wasconducted. The

Arthuns were not handcuffed during the search. During the search, the officers found abaggie of marijuana,
someZig Zagrolling papers, andamarijuana pipe in the kitchen cupboards. Theyalso found another marijuana pipe, a"roach" clip used for holding marijuana cigarettes, and numerous partially burned marijuana cigarettes in two glass bowls on the kitchen counter. In Ellen's purse, located onthe kitchen counter, the officers found moreZig Zagpapers, somemarijuana, andavariety of pills for which Ellen had noprescription. Also in Ellen's purse were several UPSreceipts for shipments to Tucson, Arizona. However, the officers did not find the UPSbox in the house. Following the search, Officer Tashjian placed the Arthuns under arrest. They were advised of their rights outside the presence of their two children andwere placed in separate patrol
cars. Officer Tashjian then asked Bruce Arthun where the UPS package waslocated. At first Bruce replied, "Whatbox?" Officer Tashjian again explained that the officers had conducted and observed the controlled delivery of the boxandhadwatched Bruce's movements after the delivery, including his trips to the farm shed andhis parents' house. Officer Tashjian told Bruce hecould get a search warrant for the shed and Bruce's parents' house if necessary. Bruce did not state where the boxwaslocated, but said hewould showthe officers. Hedirected twoof the officers to the farm shed located 400yards awayonthe other side of the highway,

4entered the shed with them, and pointed out where the box was

concealed behind some old boards and farm supplies. The officers retrieved the box, which had not been opened. The items retrieved from the Arthuns' home and from Ellen's purse were tested at the Montana Crime Lab, and were found to be dangerous drugs of different types (marijuana, oxycodene, alprazolan, and morphine). Tests of the contents of the UPS package discovered in the shed disclosed 3.96 pounds of marijuana,
a controlled substance. Onthe basis of these tests, both Ellen and Bruce were charged with criminal possession of drug paraphernalia and criminal possession of dangerous drugs. OnNovember 15, 1993, the Arthuns filed amotion to suppress the UPS package on the basis that it was the product of a warrantless search to which they had not consented. The District Court denied that motion and found that there was asearch of the farm shed, but that Bruce consented to it, and that neither Bruce
nor Ellen had standing to complain of awarrantless search of the structure. Following a nonjury trial, Bruce was convicted of criminal possession of drug paraphernalia andone count of criminal possession of dangerous drugs. Ellen was convicted of four counts of criminal possession of dangerous drugs and one count of criminal possession of drug paraphernalia.ISSUE 1 Did the District Court err when it denied the Arthuns' motion to suppress the package of marijuana?

5Wereview adistrict court's denial of amotion to suppress to

determine whether the court's findings of fact are clearly erroneous, andwhether those findings were correctly applied asa matter of law. states. f'6kuns (Mont. 1995), 52St. Rep. 1085, 1086 (citing Statev.Fluck (19931, 260Mont. 181, 188, 860P.2d 89, 94). In this case, the facts are undisputed. Both parties agree that, based onthe evidence seized during alawful search of the Arthuns' home, Officer Tashjian arrested Bruce and Ellen and advised themof their rights pursuant to Mirandav.Arizona (1966), 384 U.S. 436. Both parties further agree that later, after the UPS package wasnot discovered in the Arthuns' home, Officer Tashjian told Bruce that he could get a search warrant for the shed and Bruce's parents' house. Finally, the parties agree that Bruce responded to the request for evidence bytaking twoofficers to the farm shed and specifically directing them to the location of the package. Based onthe foregoing facts, the District Court denied the Arthuns' motion to suppress. The court held that there was a search of the farm shed, but that Bruce hadconsented to it, and that neither Bruce nor Ellen had standing to challenge a warrant-less search of the structure. Although wedisagree that the Arthuns lacked standing (seeStatev.Bullock (1995), 901P.2d 61, 52St. Rep. 717), it is well established that this Court will uphold the district court's result, if correct, eventhough arrived at for the wrong reason. Haganv.State (1994), 265Mont. 31, 35, 873P.2d 1385, 61387. Therefore, wehold that the District Court correctly denied

the Arthuns' motion to suppress because there was no search of the shed which could have violated the Fourth Amendment of the United States Constitution, or Article II, Section 11, of the Montana Constitution. The issue of whether the discovery of the UPSbox constituted
a "search" in violation of the Fourth Amendment was raised and briefed at the district court level. In response to the Arthuns' motion to suppress, the prosecutor argued that the box had not been recovered by means of asearch and seizure under either the Fourth Amendment, or Article II, Section 11, since Bruce had essentially handed over the box of marijuana and nosearch had been conducted. At both the district court level andonappeal, the State cited State

v.Graves(1981), 191 Mont. 81, 622 P.2d 203, for the proposition that

adefendant's delivery of apiece of evidence does not constitute
asearch. 1n Gruves, the defendant was involved in abar fight in which he stabbed another bar patron. Apolice officer later approached the defendant and asked him if he had been involved in the altercation. The defendant answered that hehad. Whenthe officer asked him if aknife had been involved, the defendant said "yes" and turned the knife over to the police. The defendant later maintained that the knife should be suppressed as a result of a nonconsensual warrantless search andseizure. This Court held that

7no search was involved because the defendant handed the evidence

over to the police. Graves, 622P.2d at 208. Weagree that the Gravesholding applies to this case. The record is clear that the officers did not conduct anindependent inspection of the farm shed, but rather entered it at Bruce's invitation and retrieved the box which Bruce located for them. This Court haspreviously stated that:

A'search' is aprying into hidden places for that which is concealed.

. . The distinctive factor that turns an observation into asearch, in the constitutional sense, is whether the person making the observation has aright to be in the place where the observation is made. Statev.Carlson(1982), 198Mont. 113, 118-19, 644P.2d 498, 501. Weconclude that under the facts of this case, the officers
were invited into andhadaright to bein the farm shedwhere the package waslocated. Wefurther conclude that there wasnoprying
or investigation, andthus no "search" so asto implicate either the Fourth Amendmentor the Montana Constitution. Since Bruce was in police custody when he directed the officers to the UPSpackage, and since there was no "search" pursuant to the Fourth Amendment, the proper inquiry should have been whether Bruce's statement to the police was voluntary. Although Bruce did not raise the issue of his Fifth Amendment rights at either the district court level or on appeal, wefind ample evidence in the record to support aconclusion that Bruce's disclosure of the evidence wasvoluntary. Bruce hadbeenread hisMiranda rights and had failed to invoke either his right to remain

silent or his right to an attorney. His statement to Officer Tashjian was clearly madeof his ownfree will, without duress. As the District Court noted, "[tlhe totality of the circumstances indicate Bruce acted voluntarily, and there was no violation or abuse of defendants' constitutional or statutory rights." Therefore, we affirm the District Court's denial of the Arthuns' motion to suppress the package of marijuana found in the shed on the property belonging to Bruce's parents. ISSUE 2 Wasthere sufficient evidence to convict both defendants of felony criminal possession of dangerous drugs? Wereview the sufficiency of evidence to determine "'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond areasonable doubt."' state v.Arlington (1994), 265 Mont. 127, 146, 875 P.2d 307, 318 (quoting State Y.cyr (1987), 229 Mont. 337, 339, 746 P.Zd 120, 122). Bruce and Ellen claim that the evidence failed to show that they had "knowing" possession of the UPS package. The Arthuns maintain that mere possession of the unopened package which was addressed to Ellen is not enough to establish their knowledge of its contents. Section 45-g-102, MCA, requires proof that a defendant possessed dangerous drugs. "Possession" is defined as "the knowinq 9control of anything for asufficient time to be able to terminate

control. " Section 45-2-101(52), MCA (1993) (emphasis added). Section 45-2-101(33), MCA (1993), provides that a person acts knowingly with respect to a circumstance described in a statute "when the person is aware of the person's ownconduct or
. . .that the circumstance exists." Although "knowing control" cannot be inferred from mere possession alone, this Court has held that knowledge of the contents of a package may be proven by direct evidence or any evidence of acts, declarations, or conduct of the accused from which the trier of fact may infer knowledge. Statev.Hall (1991) , 249 Mont. 366, 371, 816 P.2d 438, 441. Seeah § 45-2-103(3), MCA ("[tlhe existence of amental state may be inferred from the acts of the accused and the facts and circumstances connected with the offense."). The Arthuns claim that there is noevidence that Ellen had any knowledge of the contents of the box, and that Bruce's knowledge cannot be presumed from his knowledge of the location of the box. Wehold, however, that there wassufficient evidence from which the District Court could have inferred that both Bruce and Ellen had knowledge of the contents of the package. Ellen accepted the package without question or surprise, and both Bruce and Ellen kept the package without attempting to return or disclaim it. Bruce took the package to a farm shed within hours of its delivery and concealed it behind apile of farm tools. Although Bruce feigned

10ignorance when questioned about the box's location, he later

directed two officers to its exact location in the shed. The officers conducting a search of the Arthuns' home found other marijuana andparaphernalia ineasily accessible places. Ellen had several UPSreceipts in her purse for items sent to Tucson, Arizona, the place from which the package of marijuana had been sent.Weacknowledge that mere delivery is not enough to establish knowing control. Sfatev.Smith (1983), 203Mont. 346, 350, 661 P.2d 463, 465. Wehold, however, that delivery combined with other suspicious circumstances--in this case, the drugs and other paraphernalia found in the Arthuns' home, the receipts found in Ellen's purse, and Bruce's attempt to conceal the package--is sufficient evidence from which atrier of fact could infer knowing possession. Accordingly, we hold that there was sufficient evidence to support the District Court's conviction of Bruce and Ellen Arthun for felony criminal possession of dangerous drugs. Their convictions are, therefore, affirmed. ISSUE3 Wasthere sufficient evidence to convict Bruce Arthun of misdemeanor possession of drug paraphernalia? Bruce contends that the evidence wasinsufficient to support his conviction for criminal possession of drug paraphernalia, pursuant to 545-10-103, MCA. Section 45-10-103, MCA,requires proof that the defendant (1) possessed the drug paraphernalia, and

11(2) intended to useit. Bruce asserts noreasonable inference can

be madethat he possessed or intended to use the paraphernalia found in the kitchen area of the Arthuns' home. This Court has, however, upheld convictions where drugs have beenfound in joint or commonareas of aresidence. Staiev.Scheffelman (1987), 225Mont. 408, 413, 733P.2d 348, 351. Wehave, in fact, held that "[wlhere a controlled substance is found in a place subject to the joint dominion and control of two persons, possession maybe imputed to either or both persons." Statev.Hall (1991), 249Mont. 366, 371, 816 P.2d 438, 441. In this case, the Arthuns' kitchen, where the paraphernalia wasfound, wasunlocked and openly accessible to anyone in the house. Weconclude, therefore, that there was sufficient evidence to support the District Court's finding that Bruce hadconstructive possession of the paraphernalia. Thesecond element of "intent to use" is more difficult to prove. Because there is rarely direct proof, intent must be inferred from the acts of the accused and the facts and circumstances of the offense. Hall, 816 P.2d at 441. Inthis case, the police found marijuana, two marijuana pipes, and two glass bowls of marijuana "roaches." Fromthis evidence, the District Court could have properly inferred that the marijuana was being consumed by two users. In addition, Bruce wasalso convicted of the related crime of felony possession of a UPS package of marijuana, which he had knowingly concealed in a farm shed. 12Although Bruce submitted to apost-arrest drug test which did not

indicate the presence of any THC, the active ingredient in marijuana, the test was performed approximately one week after Bruce's arrest and the District Court noted that Bruce did not submit anyevidence of howlong THCis detectable after the useof marijuana. This Court hasstated that "[wlhen circumstantial evidence is susceptible to two interpretations, onewhich supports guilt and the other which supports innocence, the trier of fact determines which is most reasonable." Statev. Bernhardt (1991), 249 Mont. 30, 32,
813 P.2d 436, 437. Wehold that the presence of the drugs and paraphernalia in the Arthuns' kitchen, combined with Bruce's connection to the boxof marijuana, would have been sufficient to infer that Bruce possessed the paraphernalia with the intent to use it. Weconclude there wassufficient evidence to support Bruce's conviction of possession of drug paraphernalia. Based on the foregoing analysis, we affirm the District Court's denial of the Arthuns' motion to suppress, andaffirm the convictions of Bruce andEllen Arthun for possession of dangerous drugs, and Bruce Arthun's conviction for possession of paraphernalia.

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### weconcur: ./

Justices

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