NO. 95-086 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

ELLEN ARTHUN and BRUCE ARTHUN, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Sixth Judicial District, 

In and for the County of Park, 

The Honorable Byron L. Robb, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Larry Jent, Williams, Jent & Dockins, 

Bozeman, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

John A. Paulson, Assistant Attorney General, 

Helena, Montana 

Robert W. Brown, Special Deputy Park County 

Attorney, Montana Law Enforcement Academy, 

Bozeman, Montana 

Filed: 

Submitted on Briefs: September 21, 1995 

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

Defendants Ellen and Bruce Arthun were charged by information 

with possession of drug paraphernalia and criminal possession of 

dangerous drugs. After a nonjury trial in the District Court for 

the Sixth Judicial District in Park County, the Arthuns were found 

guilty of all charges. The Arthuns appeal the District Court's 

denial of their motion to suppress evidence and the court's 

verdict. We affirm the order and judgment of the District Court. 

There are three issues on appeal: 

1. Did the District Court err when it denied the Arthuns' 

motion to suppress the package of marijuana? 

2. Was there sufficient evidence to convict both defendants 

of felony criminal possession of dangerous drugs? 

3. Was there sufficient evidence to convict Bruce Arthun of 

misdemeanor possession of drug paraphernalia? 

FACTUAL BACKGROUND 

On May 25, 1993, Mike Bracket, a police officer in Louisville, 

Kentucky, contacted Park County Deputy Sheriff, Henry Tashjian, and 

informed him that the United Parcel Service (UPS) transport hub in 

Louisville had inspected a package addressed to Ellen Arthun in 

Park County, Montana, and had discovered what appeared to be a 

sizeable amount of marijuana. The marijuana had been shipped in a 

motor oil box from Tucson, Arizona, and was addressed to Ellen at 

the Arthuns' rural home located on U.S. Highway 89 between Wilsall 

and Clyde Park. 

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Officer Tashjian arranged for the box to be sent to the 

Livingston Police Department. When the package arrived the next 

day, the officers tested the contents and resealed it for delivery 

to the Arthuns' residence. 

Livingston Police Officer Gerald Cox, disguised as a UPS 

delivery man, made the delivery on May 26, 1993, at about 3:45 p.m. 

Ellen Arthun came to the door and accepted the package. She 

expressed no surprise at its delivery, and neither Ellen nor Bruce 

did anything to return or disclaim it. 

Officer Tashjian and other local law enforcement personnel 

set up surveillance points near the Arthuns' home and observed the 

area through binoculars for several hours after the delivery of the 

package. They saw Bruce and his young stepson leave the residence 

and drive to an unlocked farm shed located about 400 yards away on 

the other side of U.S. Highway 89. Bruce entered the shed for a 

short time, then drove one mile to his parents' ranch home. That 

afternoon, Bruce and his stepson also went gopher hunting and drove 

to a store in Wilsall before they returned home. The officers' 

surveillance was obstructed at times during their surveillance, and 

they did not see Bruce take the box out of his home. 

Following the surveillance, Officer Tashjian obtained a search 

warrant for the Arthuns' residence and served it at 8:39 p.m. 

Officer Tashjian walked up to the Arthuns' home and spoke with 

Ellen and Bruce. He explained the reason for the search, told them 

about the officers' involvement in the UPS delivery, and had them 

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wait on the living room couch while the search was conducted. The 

Arthuns were not handcuffed during the search. 

During the search, the officers found a baggie of marijuana, 

some Zig Zag rolling papers, and a marijuana pipe in the kitchen 

cupboards. They also 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 on the kitchen counter, the 

officers found more Zig Zag papers, some marijuana, and a variety 

of pills for which Ellen had no prescription. Also in Ellen's 

purse were several UPS receipts for shipments to Tucson, Arizona. 

However, the officers did not find the UPS box 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 and were placed in separate patrol 

cars. Officer Tashjian then asked Bruce Arthun where the UPS 

package was located. At first Bruce replied, "What box?" Officer 

Tashjian again explained that the officers had conducted and 

observed the controlled delivery of the box and had watched Bruce's 

movements after the delivery, including his trips to the farm shed 

and his parents' house. Officer Tashjian told Bruce he could get 

a search warrant for the shed and Bruce's parents' house if 

necessary. Bruce did not state where the box was located, but said 

he would show the officers. He directed two of the officers to the 

farm shed located 400 yards away on the other side of the highway, 

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entered 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. On the basis of these tests, both Ellen 

and Bruce were charged with criminal possession of drug 

paraphernalia and criminal possession of dangerous drugs. 

On November 15, 1993, the Arthuns filed a motion 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 a search of the 

farm shed, but that Bruce consented to it, and that neither Bruce 

nor Ellen had standing to complain of a warrantless search of the 

structure. Following a nonjury trial, Bruce was convicted of 

criminal possession of drug paraphernalia and one 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? 

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We review a district court's denial of a motion to suppress to 

determine whether the court's findings of fact are clearly 

erroneous, and whether those findings were correctly applied as a 

matter of law. states. f'6kuns (Mont. 1995), 52 St. Rep. 1085, 1086 

(citing Statev.Fluck (19931, 260 Mont. 181, 188, 860 P.2d 89, 94). 

In this case, the facts are undisputed. Both parties agree 

that, based on the evidence seized during a lawful search of the 

Arthuns' home, Officer Tashjian arrested Bruce and Ellen and 

advised them of their rights pursuant to Mirandav.Arizona (1966), 384 

U.S. 436. Both parties further agree that later, after the UPS 

package was not 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 by taking two officers to the 

farm shed and specifically directing them to the location of the 

package. 

Based on the 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 had consented to it, and 

that neither Bruce nor Ellen had standing to challenge a 

warrant-less search of the structure. Although we disagree that the 

Arthuns lacked standing (seeStatev.Bullock (1995), 901 P.2d 61, 52 St. 

Rep. 717), it is well established that this Court will uphold the 

district court's result, if correct, even though arrived at for the 

wrong reason. Haganv.State (1994), 265 Mont. 31, 35, 873 P.2d 1385, 

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1387. Therefore, we hold 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 UPS box 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 a search and seizure under either the Fourth 

Amendment, or Article II, Section 11, since Bruce had essentially 

handed over the box of marijuana and no search had been conducted. 

At both the district court level and on appeal, the State cited State 

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

a defendant's delivery of a piece of evidence does not constitute 

a search. 

1n Gruves, the defendant was involved in a bar fight in which 

he stabbed another bar patron. A police officer later approached 

the defendant and asked him if he had been involved in the 

altercation. The defendant answered that he had. When the officer 

asked him if a knife 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 and seizure. This Court held that 

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no search was involved because the defendant handed the evidence 

over to the police. Graves, 622 P.2d at 208. 

We agree that the Graves holding applies to this case. The 

record is clear that the officers did not conduct an independent 

inspection of the farm shed, but rather entered it at Bruce's 

invitation and retrieved the box which Bruce located for them. 

This Court has previously stated that: 

A 'search' is a prying into hidden places for that 

which is concealed. . . 

The distinctive factor that turns an observation 

into a search, in the constitutional sense, is whether 

the person making the observation has a right to be in 

the place where the observation is made. 

Statev. Carlson (1982), 198 Mont. 113, 118-19, 644 P.2d 498, 501. 

We conclude that under the facts of this case, the officers 

were invited into and had a right to be in the farm shed where the 

package was located. We further conclude that there was no prying 

or investigation, and thus no "search" so as to implicate either 

the Fourth Amendment or the Montana Constitution. 

Since Bruce was in police custody when he directed the 

officers to the UPS package, 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, we find 

ample evidence in the record to support a conclusion that Bruce's 

disclosure of the evidence was voluntary. Bruce had been read his 
Miranda 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 made of his own free 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 

Was there sufficient evidence to convict both defendants of 

felony criminal possession of dangerous drugs? 

We review 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 a reasonable 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 

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control of anything for a sufficient 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 own conduct 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. State v. Hall (1991) , 249 

Mont. 366, 371, 816 P.2d 438, 441. See ah § 45-2-103(3), MCA 

("[tlhe existence of a mental 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 no evidence 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. 

We hold, however, that there was sufficient 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 a pile of farm tools. Although Bruce feigned 

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ignorance 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 and paraphernalia in easily accessible places. Ellen had 

several UPS receipts in her purse for items sent to Tucson, 

Arizona, the place from which the package of marijuana had been 

sent. 

We acknowledge that mere delivery is not enough to establish 

knowing control. Sfatev.Smith (1983), 203 Mont. 346, 350, 661 P.2d 

463, 465. We hold, 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 a trier 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. 

ISSUE 3 

Was there sufficient evidence to convict Bruce Arthun of 

misdemeanor possession of drug paraphernalia? 

Bruce contends that the evidence was insufficient to support 

his conviction for criminal possession of drug paraphernalia, 

pursuant to 5 45-10-103, MCA. Section 45-10-103, MCA, requires 

proof that the defendant (1) possessed the drug paraphernalia, and 

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(2) intended to use it. Bruce asserts no reasonable inference can 

be made that 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 

been found in joint or common areas of a residence. Staiev. Scheffelman 

(1987), 225 Mont. 408, 413, 733 P.2d 348, 351. We have, in fact, 

held that "[wlhere a controlled substance is found in a place 

subject to the joint dominion and control of two persons, 

possession may be imputed to either or both persons." State v. Hall 

(1991), 249 Mont. 366, 371, 816 P.2d 438, 441. In this case, the 

Arthuns' kitchen, where the paraphernalia was found, was unlocked 

and openly accessible to anyone in the house. We conclude, 

therefore, that there was sufficient evidence to support the 

District Court's finding that Bruce had constructive possession of 

the paraphernalia. 

The second 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. In this case, 

the police found marijuana, two marijuana pipes, and two glass 

bowls of marijuana "roaches." From this evidence, the District 

Court could have properly inferred that the marijuana was being 

consumed by two users. In addition, Bruce was also convicted of 

the related crime of felony possession of a UPS package of 

marijuana, which he had knowingly concealed in a farm shed. 

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Although Bruce submitted to a post-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 any evidence of how long THC is detectable after the use of 

marijuana. 

This Court has stated that "[wlhen circumstantial evidence is 

susceptible to two interpretations, one which 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. We hold that the presence of the drugs and 

paraphernalia in the Arthuns' kitchen, combined with Bruce's 

connection to the box of marijuana, would have been sufficient to 

infer that Bruce possessed the paraphernalia with the intent to use 

it. We conclude there was sufficient 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, and affirm the 

convictions of Bruce and Ellen Arthun for possession of dangerous 

drugs, and Bruce Arthun's conviction for possession of 

paraphernalia. 

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we concur: ./ 

Justices 

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