### No. 92-189 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 1993



### STATE OF MONTANA, Plaintiff and Respondent,

-v

### DANIELRICHARD McCARTHY, Defendant and Appellant.

APPEAL FROM: 

### District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Thomas Honzel, Judge presiding.

COUNSEL OF RECORD: For Appellant: Randi M. Hood, Public Defender, Helena, Montana For Respondent: Patricia J. 

### Jordan, Assistant Attorney General, Helena, Montana: Marc Racicot, Attorney General, Helena, Montana; Mike McGrath, Lewis and Clark County Attorney, Helena, Montana; Lisa Leckie, Deputy County Attorney, Helena, Montana

Submitted on Briefs: October 22, 1992 

### Decided: April 16, 1993Justice Fred J. Weber delivered the Opinion of the Court.
This isan appeal from an order of the First Judicial District Court, Lewis and Clark County, denying appellant's motion to suppress evidence seized in a warrantless search. We affirm. The issues on appeal are: 1. Did theDistrict Court err indenying McCarthy'smotion to suppress evidencedue to an illegalwarrantless searchof avehicle and a jacket in that vehicle? 2. Did the District Court err by refusing to suppress evidence found upon McCarthy8sperson at the time of his booking because such evidence was fruit of the poisonous tree? Daniel R. McCarthy (McCarthy), Shannon Hiatt (Hiatt), and Leslie Eddards (Eddards), were involved in a one-vehicle accident

onJuly 5, 1991 on the Stemple Pass road in Lewis and Clark County. McCarthy and Hiatt were passengers in the car driven by Eddards. Montana Highway Patrol Officer Scott Swingley arrived at the scene and found the automobile in a ditch with its engine running and Hiatt severely injured. Swingley suspected that the driver, Eddards,was intoxicated and administeredabreathalizer test. The test results showed -175 blood alcohol content. Swingleyarrested Eddards on a DUI charge, handcuffed him and placed him in the rear seat of the police car. Swingley then read McCarthy his rights and asked McCarthy if there was anything illegal in the car, upon which McCarthy said "You know about the pot pipe?" Both McCarthy and Swingley then approachedthecar atwhichpoint McCarthy began searching fromthe 2passenger side for the pipe which he stated was located around the car's gearshift. He could not find it. Swingley went to the driver's side and saw a crumpled jacket in the back seat with a clear plastic baggie protruding from the pocket. He reached into the jacket, pulled out the baggie and determined the green leafy substance might be marijuana. He replaced thebaggie in thepocket and askedMcCarthywho the jacket belonged to. McCarthy said it was his, uponwhich Swingleypulled the baggie from the pocket. Swingley arrested McCarthy and transported him to the county jail in Helena where jail personnel discovered a small baggie in McCarthy8sright front pant's pocket. The baggie contained LSD. McCarthy was charged with felony possession of dangerous drugs. OnAugust 22, 1991,McCarthypled not guilty,and on September 10, 1991, filed a motion to suppressevidence. A hearingwas held

on October 24, 1991. The District Court denied McCarthy's motion to suppress on December 10, 1991. McCarthy entered anAlford plea of guilty on February 6, 1992, and received a two year deferred sentence on the felony count. McCarthy reserved his right to appeal the denial of his motion to suppress at the time he pled guilty. This appeal followed. I Did the District Court err in denying McCarthylsmotion to suppressevidencedue toan illegalwarrantless searchof avehicle and a jacket in that vehicle?McCarthy argues that as a passenger in Eddardslcar he had a reasonable expectation of privacy in both the car and his jacket. McCarthy contends that he is protected against unreasonable searchesby the Fourth Amendment of theUnited States Constitution and Article 11, Section 11 of the Montana Constitution. McCarthy contendsthatwarrantless searchesareper seunreasonableand that the exception to the rule requires probable cause which did not exist here. The State argues that Officer Swingley had probable cause to search McCarthyfs jacket and such search was valid under the "automobile exceptionv1 to the Fourth Amendment's warrant requirement. The State further argues that it was permitted to search both the automobile and McCarthyps jacket as a search incident to Eddards' arrest for DUI. An exception to the warrant requirement is the tcautomobile excepti~n,~~ which requires the existence of probable cause to search and the presence of exigent circumstances,that is,that it

was not practicable under the circumstances to obtain a warrant. State 

### v. Allen (1992), 844 P.2d 105, 49 St.Rep. 1130, 1131. We first address McCarthylsclaim concerning the automobile itself. McCarthy "bears the burden of proving not only that the search 

# . . 

# . . was illegal, but also that he had a legitimate expectation of privacyw in the automobile. Rawlings v. Kentucky

(l98O), 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633, 641. A person is protected from search and seizure only if it is reasonable to expect privacy under the surrounding circumstances.City of Billings v. Whalen (1990), 242 Mont. 293, 790 P.2d 471. McCarthy offered no reasons nor foundation for his claimof privacy in the auto. The car was on a public highway, was involved in a DUI and belonged to the father of the driver. Under these circumstances, we conclude that it was not reasonable forMcCarthy to have any expectation of privacy in the auto itself, nor has he offered proof of any. However, under certain circumstances,McCarthy couldhave had

a different expectation of privacy in his jacket whichwas found in the car. Since McCarthy has claimed ownership of the article seized,the jacket,we review the circumstancesof this case to see if police had authority tomake a warrantless search of McCarthyls jacket

# . See, 

### W. Ringel, Searches & Seizures. Arrests & Confessions, 511.7, pp. 1156-57, (1992). In its conclusionsof law,the DistrictCourt determinedthat, under the automobile exception,Officer Swingleyhadprobable cause to searchthe car includingMcCarthylsjacket afterbeing told that there was a pot pipe in the car. Because the District Court determined that Officer Swingley had probable cause, it denied McCarthyPs motion to suppress the evidence. We review conclusions of law by the District Court as to whether the court's interpretation of lawwas correct. Steer Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601. Warrantless searches are per seunreasonable under the Fourth Amendment of theUnited StatesConstitution. Katzv. United States

(1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. Both federaland state law acknowledge certain specific exceptions to the need for a warrant. California v. Acevedo (1991), -U.S. 

### , 111 S.Ct. 1982, 114 L.Ed.2d 619;Statev. Evjen (1988), 234 Mont. 516, 765 P.2d 708. One of those exceptions is known as the automobile exception. Carrollv. United States (l925), 267U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. The automobile exceptionhas been adoptedby this Court in State v. Speilmann (1973), 163 Mont. 199, 516 P.2d 617. The history of the automobile exception to the prohibition against warrantless searches has been long and varied. The exception was initially recognized as an attempt to enable authorities to stop the transport of illegal liquor during the Prohibition Era. E. Wedlock, Car 54--How Dare You!: Toward a Unified Theorv of Warrantless Automobile Searches,75Marquette Law Review 79 (1991). Since that time the exceptionhasbeen broadened but remains clearly delineatedby specificparameters,particularly in Montana. In the 1988 case of Evien this Court concluded that an automobilemay be searchedby police without a warrant where there is probable cause to believe the automobile's contents offend against the law. Evien, 234 Mont. at 520, 765 P.2d at 710. In that case the Courtpointed out that the resolution of the casedid not dependupon whether the officershadmade anactual arrest,but upon whether the officers had probable cause to search the motor vehicle without a warrant pursuant to the "probable cause exception." Evien, 234 Mont. at 519, 765 P.2d at 711. In Evienthe Court determined that theofficerhad specific informationfrom

a reliable informant that shehad been in thepickup, sawdrugs in the pickup and described three persons who had arrived in the truck. The information given by the informant was confirmed when three persons did approach the truck. The Evien Court concluded therewas probable cause to search the truck, stating: There is no question that Officer Phillips had probable cause to searchthe truckat that time. The alternatives were tohold the truck until 

### amagistrate or judge could issuea searchwarrant, or allow the threepersons to get into their truck and drive away with the contraband evidence. Because the officer had probable cause to search thevehicle,the searchwasnot unreasonableunder the FourthAmendment,eventhoughan actual arrest of the defendant had not been made. 

# m,234 Mont. at 520, 765 P.2d at 711. In the 1992 case of Allen, we quoted from the U.S. Supreme Court case of Californiav. Acevedo (1991), -U.S. -I 111S.Ct. 1982, 114 L.Ed.2d 619. In Allen, we agreed with the Acevedo analysis of closed containers found during an automobile search: We concludethat it isbetter to adopt one clear-cut rule to govern automobile searches and eliminate the warrant requirement for closed containers set forth in Sanders. Allen, 844 P.2d at 110; citing Acevedo, 111 S.Ct. at 1986. We concluded in 

# u, as we do here, that the police may search without a warrant if their search is supported by probable cause. Allen, 844 P.2d at 110. That searoh includes any closed containers found in the automobile. Here Officer Swingley had come to the scene of an automobile accident in which a passenger had been seriously injured. He arrested the driver of the vehicle on a charge of DUI. OfficerSwingley was then informed by defendant that therewas a pot pipe in the car and defendant helped Officer Swingley look for the pot pipe. Inthe course of that search,the officerobserved aplainly visible baggie protruding from the jacket. Because the pot pipe

was not found in the gear shift area in the car, itwas reasonable to assume that it could be in the jacket; and in addition, the baggie suggested the possibility of the presence of marijuana. Applying the standards of Evien and Allen, we conclude Officer Swingley had probable cause to search the vehicle without a warrant; therefore,Officer Swingleycould searchMcCarthyvs jacket

as well as any other container located within the vehicle. McCarthy relies on a Supreme Court case to argue that the police could not search his jacket without a warrant. Contrary to McCarthy8s arguments, the U.S. Supreme Court has expressly overruled Robbins v. California (l98l), 453 U.S. 420, 101, S.Ct. 2841, 69 L.Ed.2d 744,upon which he relies soheavily. SeeUnited States v. Ross (l982), 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572. The Robbins reasoning states that a container in a vehicle must clearly announce its contents. Robbins, 453 U.S. at 427-28. The second consideration concerning a warrantless search is exigent circumstanceswhich are thosecircumstances where it isnot practicableto secureawarrant. Allen, 844 P.2d at 109. When the automobile exception was firstcreated,exigent circumstancesmeant that the vehicle was movable, as in Allen, thus endangering preservation of the fruits of a crime. Today, certain authorities 

### suggest 

### a "totality of the circumstances" approach to theappropriateness of a warrantless search. J. Hall, Search and seizure, 5 14:3 (1992). We therefore conclude that exigent circumstances should be considered on the Iftotality of circumstances." We have stated that although still jealously limited in Montana, exigent circumstances are not absolutely limited. State v. Dess (1982), 201 Mont. 456, 655 P.2d 149. Police may need to consider not just the mobility of the vehicle, but the possible destruction of evidence, the safety of police officers, emergency situations, and the possible gravity of the crime committed. J. Hall, Search and Seizure, 9 14:3 et seq. Also, seeAllen. In Allen, we found exigent circumstances to be the need to

ensure the safety of police at the roadblock due to Allen's dangerous reputation, themobility of the vehicle,and thepossible insufficient time to obtain a warrant. Here, Officer Swingleyhad one intoxicated person in custody, another one had indicated a pot pipe was somewhere in the car and

a third person had been seriously injured and life-flighted from the scene. Unlike in Allen, the car here was not moveable. But the alleged pot pipe certainly was; and not being in custody, McCarthy could easilyhave removed it aswell asany other evidence associated with the pot pipe or the accident in general. We take judicialnotice that it is approximatelyone hour fromthe sceneof the accident to Helena. Therefore,both the jail and appropriate authority for obtaining 

### awarrant were an hour away. Had Officer Swingley taken the intoxicated driver to jail and then gone togeta warrant,McCarthywould havebeen left at the scene;theevidence which Swingley suspectedmay be present couldhavebeen removed or destroyed by McCarthy unless the car had already been towed. We conclude it was impracticable for Swingley to stay at the scene until the car was towed. Therefore, the possibility existed that McCarthy, or the real owner of the automobile, could have removed evidence easily after officers left the scene. Further, the car

was on a public road, anyone could have removed evidence from the

car had officers left before it was towed. We conclude that possible destruction of evidence and the emergencynature of the situationconstitute exigent circumstances under the facts of this case. Because the District Court correctly determined that the searchperformed by authorities in this casewas appropriate under the automobile exception, we do not find it necessary to consider the appropriateness of a search incident to an arrest under the facts of this case as the State argues. We finally conclude that taking all the facts of this case into consideration,both probable cause and exigent circumstances existed for a warrantless search under the automobile exception. We hold that the District Court did not err in denying defendant's motion to suppress the evidence on the basis of an illegal warrantless search. 

### I I Did the District Court err by refusing to suppress evidence found upon McCarthyrsperson at the time of his booking because such evidence was fruit of the poisonous tree? 10McCarthy argues that because themarijuana found inhis jacket

was illegally seized, his arrest was illegal and anything removed from his person during booking is fruit of the poisonous tree. City of ~illings v. Whalen (l99O), 242 Mont. 293, 790 P.2d 471. Because we have determined that the search of the automobile and the jacket were appropriate under the automobile exception to prohibition against warrantless searches, there is no basis to apply the doctrine of the fruit of the poisonous tree, We hold that the DistrictCourt did not err in refusing to suppress such evidence. Affinned.

Justices

### Justice Karla M. 

### Gray dissenting.



### I respectfullydissent from the majority opinion. In

### my dissent in State

### v. Allen (Mont. 1992)

## , 844 

### P.2d 105, 49 St.Rep. 1130, I 

### expressed my concerns regarding this CourtIs new interpretationof the 

### "exigent circumstanceswtest; in addition, 

### I questioned the 

### Court's record-based assertions. I

### reiterate those

concerns and questionshere. The

### majority s

### purported reliance on the cardinal constitutional principle

### thatwarrantless searchesare 

### per se unreasonable rings hollow indeed in light of its continued broadening of the automobile exception. I 

### cannot agree. With regard to themajority's analysisof the probable cause prong of 

### the automobile exception to the warrant requirement, 

### I disagree totally with the majority that it was llreasonable to assumeM 

### that the pipe was 

### in the 

### jacket because the 

### pipe was not found 

### where McCarthy thought he had seen it. This "reasonable assumption" is the creation 

### of themajority and not of the officer at the scene. 

### Indeed, Officer Swingley did not testify or 

### even suggest that 

### he 

### removed the baggie 

### from McCarthyfsjacket as part of a search 

### for the 

### pipe; he merely saw 

### the baggie, assumed based

on 

### his training that it 

### might contain marijuana, and removed 

### it from 

### the jacket. I 

### also disagreewith the majority's analysis of the "exigent circumstance^^^ 

### prong. Its construct that McCarthy could have removed

### ordestroyed 

### the evidence is belied by 

### therecord. Officer Swingley testified that McCarthy had 

### access to the 

### vehicle before 12the arrival of lawenforcement personnel and,of course,during the time that he made a limited search for the pot pipe in Swingley's presence. Officer Swingley also testified that, after the arrival of lawenforcement personnel,he was allowing access to the vehicle only by them or emergency medical personnel. In addition, the majority's conclusion that it was impracticable for Officer Swingley to remain at the scene is irrelevant, since the record reflects that a Lewis and Clark County deputy sheriff also was at the scene. In this regard, the majority's statements that either McCarthy, the owner of the vehicle or "anyone" could have removed evidence from the car had officers left before it was towed constitute a speculative spinning out of potential problems which simply are not supported by the record before us, particularly given the presence of Deputy SheriffWeisner. Under these facts, I do not believe the "exigent circumstances~~ test is met: therefore, it ismyview thatMcCarthytsconstitutional right tobe free from unreasonable searches and seizureswas violated. My most fundamental concern with the majority opinion, however, is this Court's apparent intention to continue to broaden the automobile exception to the warrant requirement to cover any possible set of facts. It accomplishes this objective by (1) accepting and adopting the United States Supreme Court's pronouncements of federal constitutional law in the context of a challenge brought under both the United States and Montana Constitutions; and (2) adopting the ttsuggestionll of "certain authorities1'--here,a treatise

### by J. Hall--for the concept that itis appropriate under the Montana Constitution to overlay a "totality of circumstances" standard onto the "exigent circumstancesw test. Such an approach is a far and, in my view, unwarranted

### cry fromtheconstitutional standard enunciatedby this Court in State v. Sawyer (1977), 174 Mont. 512, 571 P.2d 1131. Inconsidering challengesunder theMontana Constitutiontoan inventory search of a vehicle in Sawver, this Court stated that "[ilt is axiomatic that a search must comport with state 

### and federal constitutional law." Sawver, 571 P.2d at 1133 (emphasis added). We went on to conclude that it was not necessary to consider the Fourth Amendment to the United States Constitution, "becausewe view the Montana Constitution to afford an individual greaterprotection in this instance than is found under the Fourth Amendment 

# . . . . Sawyer, 571 P.2d at 1133. We continued by quoting both the individual right toprivacy sectionand the search and seizure section of the Montana Constitution, stating that the inventory searchat issuewas a "significant invasionof individual privacy." Sawyer, 571 P.2d at 1133. Interestingly, we noted that while an automobile and a home may differ for constitutional purposes, [t ]he word lvautomobilelr is not a talisman in whose presence the Fourth Amendment fades awayanddisappears. Sawver, 571 P.2d at 1133 (citations omitted). On the basis of the significant invasion of individual privacy inherent in the inventory search, we held the State to the "reas~nableness~~ and "compelling state interestwstandards of the Montana Constitution and affirmed the district court's suppressionof the evidence.

### In the casenowbefore us, 

### theword "automobile1' magicallyhas become 

### the talisman before which constitutional prohibitions 

### against unreasonable searches fade 

### away and disappear. While the majority 

### iswilling towalk away fromthisStatelsconstitutionand its significant protections, 

### I 

### am not. 

### In addition 

### to my conclusion that the facts of this case constitute a violation of the constitutional guarantee against unreasonable searches 

### on a 

### stand-alone basis, I 

### would apply the Montana ~onstitutionls combined privacy right and prohibition against unreasonable searches toMcCarthy 's

### jacketunder the facts of this case. To me, it is 

### neither logical nor supportable that McCarthyFsprivacy interest in his jacket, and the protection to which he and the jacket would have been entitled had he 

### been wearing it, must give way to an automobile wexceptionl* now so broad as to swallow the warrant requirement altogether, givenSections 10

### and 11 of

### Article I1 of 

### the 1972 

### Montana Constitution, Like themajority, I

### am mindful 

### of the pitfalls faced by 

### law enforcement officers on 

### the front line in attempting to meet constitutional requirements in this difficult area 

### of searches. Those efforts areundertaken in good faith 

### in the 

### face of

### practical and 

### often dangerous constraints. 

### In addition, I 

### understand the appeal of "bendingtt the constitution--particularly in these Itlaw and orderv1days--when those involved are or may be 

### offenders against 

### the law. My 

### view, however, apparently not shared 

### by the 

### majority, is that toundermine specific constitutional protections in one instance is 

### to weaken and make vulnerable the full panoplyof constitutional protections towhich each of us is entitled in our daily lives.

Justices Terry N. Trieweiler and William E. Hunt, Sr., join in the foregoing dissent of Justice Karla M. Gray.