No. 92-189 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vDANIEL RICHARD 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, 1993 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an 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 the District Court err in denying McCarthy 's motion to 

suppress evidence due to an illegal warrantless search of a vehicle 

and a jacket in that vehicle? 

2. Did the District Court err by refusing to suppress 

evidence found upon McCarthy8s person 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 

on July 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 administered a breathalizer test. The test results showed -175 

blood alcohol content. Swingley arrested 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 

approached the car at which point McCarthy began searching from the 

2 
passenger 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 the baggie in the pocket and asked McCarthy who the jacket 

belonged to. McCarthy said it was his, upon which Swingley pulled 

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 

McCarthy8s right front pant's pocket. The baggie contained LSD. 

McCarthy was charged with felony possession of dangerous drugs. 

On August 22, 1991, McCarthy pled not guilty, and on September 

10, 1991, filed a motion to suppress evidence. A hearing was held 

on October 24, 1991. The District Court denied McCarthy's motion 

to suppress on December 10, 1991. McCarthy entered an Alford 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 McCarthyls motion to 

suppress evidence due to an illegal warrantless search of a vehicle 

and a jacket in that vehicle? 
McCarthy argues that as a passenger in Eddardsl car he had a 

reasonable expectation of privacy in both the car and his jacket. 

McCarthy contends that he is protected against unreasonable 

searches by the Fourth Amendment of the United States Constitution 

and Article 11, Section 11 of the Montana Constitution. McCarthy 

contends that warrantless searches are per se unreasonable and 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 McCarthyls claim 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 claim of 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 for McCarthy 

to have any expectation of privacy in the auto itself, nor has he 

offered proof of any. 

However, under certain circumstances, McCarthy could have had 

a different expectation of privacy in his jacket which was found in 

the car. Since McCarthy has claimed ownership of the article 

seized, the jacket, we review the circumstances of this case to see 

if police had authority to make a warrantless search of McCarthyls 

jacket . See, W. Ringel, Searches & Seizures. Arrests & 

Confessions, 511.7, pp. 1156-57, (1992). 

In its conclusions of law, the District Court determined that, 

under the automobile exception, Officer Swingley had probable cause 

to search the car including McCarthyls jacket after being 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 law was correct. Steer Inc. v. Dept. of Revenue 

(1990), 245 Mont. 470, 803 P.2d 601. 

Warrantless searches are per se unreasonable under the Fourth 

Amendment of the United States Constitution. Katz v. United States 

(1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. Both federal 
and 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; State v. Evjen (1988), 234 Mont. 516, 

765 P.2d 708. One of those exceptions is known as the automobile 

exception. Carroll v. United States (l925), 267 U.S. 132, 45 S.Ct. 

280, 69 L.Ed. 543. The automobile exception has been adopted by 

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, 75 Marquette Law 

Review 79 (1991). Since that time the exception has been broadened 

but remains clearly delineated by specific parameters, particularly 

in Montana. 

In the 1988 case of Evien this Court concluded that an 

automobile may be searched by 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 Court pointed out that the resolution of the case did 

not depend upon whether the officers had made an actual 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 Evien 
the Court determined that the officer had specific information from 

a reliable informant that she had been in the pickup, saw drugs 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 

there was probable cause to search the truck, stating: 

There is no question that Officer Phillips had probable 

cause to search the truck at that time. The alternatives 

were to hold the truck until a magistrate or judge could 

issue a search warrant, or allow the three persons to get 

into their truck and drive away with the contraband 

evidence. Because the officer had probable cause to 

search the vehicle, the search was not unreasonable under 

the Fourth Amendment, even though an 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 California v. Acevedo (1991), - U. S. -I 111 S.Ct. 

1982, 114 L.Ed.2d 619. In Allen, we agreed with the Acevedo 

analysis of closed containers found during an automobile search: 

We conclude that it is better 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. Officer 
Swingley was then informed by defendant that there was a pot pipe 

in the car and defendant helped Officer Swingley look for the pot 

pipe. In the course of that search, the officer observed a plainly 

visible baggie protruding from the jacket. Because the pot pipe 

was not found in the gear shift area in the car, it was 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 Swingley could 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 so heavily. See United 

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 circumstances which are those circumstances where it is not 

practicable to secure a warrant. Allen, 844 P.2d at 109. When the 

automobile exception was first created, exigent circumstances meant 

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 the 
appropriateness 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, see Allen. 

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, the mobility of the vehicle, and the possible 

insufficient time to obtain a warrant. 

Here, Officer Swingley had 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 easily have removed it as well as any other evidence 

associated with the pot pipe or the accident in general. We take 

judicial notice that it is approximately one hour from the scene of 

the accident to Helena. Therefore, both the jail and appropriate 

authority for obtaining a warrant were an hour away. Had Officer 

Swingley taken the intoxicated driver to jail and then gone to get 
a warrant, McCarthy would have been left at the scene; the evidence 

which Swingley suspected may be present could have been 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 

emergency nature of the situation constitute exigent circumstances 

under the facts of this case. 

Because the District Court correctly determined that the 

search performed by authorities in this case was 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 McCarthyrs person at the time of his booking because 

such evidence was fruit of the poisonous tree? 

10 
McCarthy argues that because the marijuana found in his 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 District Court did not err in refusing to suppress such 

evidence. 

Aff inned. 

Justices 
Justice Karla M. Gray dissenting. 

I respectfully dissent 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 Court Is new 

interpretation of the "exigent circumstancesw test; in addition, I 

questioned the Court's record-based assertions. I reiterate those 

concerns and questions here. The majority s purported reliance on 

the cardinal constitutional principle that warrantless searches are 

per se unreasonable rings hollow indeed in light of its continued 

broadening of the automobile exception. I cannot agree. 

With regard to the majority's analysis of 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 the majority and not of the officer 

at the scene. Indeed, Officer Swingley did not testify or even 

suggest that he removed the baggie from McCarthyfs jacket 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 disagree with the majority's analysis of the "exigent 

 circumstance^^^ prong. Its construct that McCarthy could have 

removed or destroyed the evidence is belied by the record. Officer 

Swingley testified that McCarthy had access to the vehicle before 

12 
the arrival of law enforcement 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 law enforcement 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 Sheriff Weisner. Under these facts, 

I do not believe the "exigent circumstances~~ test is met: 

therefore, it is my view that McCarthyts constitutional right to be 

free from unreasonable searches and seizures was 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 it 
is 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 fromthe constitutional standard enunciated by this 

Court in State v. Sawyer (1977), 174 Mont. 512, 571 P.2d 1131. 

In considering challenges under the Montana Constitution to an 

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, 

"because we view the Montana Constitution to afford an individual 

greater protection in this instance than is found under the Fourth 

Amendment . . . . Sawyer, 571 P.2d at 1133. We continued by 

quoting both the individual right to privacy section and the search 

and seizure section of the Montana Constitution, stating that the 

inventory search at issue was a "significant invasion of 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 away and disappears. 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 interestw standards of the Montana Constitution 

and affirmed the district court's suppression of the evidence. 
In the case now before us, the word "automobile1' magically has 

become the talisman before which constitutional prohibitions 

against unreasonable searches fade away and disappear. While the 

majority is willing to walk away from this Statels constitution and 

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 to McCarthy 's jacket under the facts of this case. To me, 

it is neither logical nor supportable that McCarthyFs privacy 

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, given Sections 10 and 11 of Article 

I1 of the 1972 Montana Constitution, 

Like the majority, 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 are undertaken 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 orderv1 days--when those involved are or may be offenders 

against the law. My view, however, apparently not shared by the 

majority, is that to undermine specific constitutional protections 

in one instance is to weaken and make vulnerable the full panoply 
of constitutional protections to which 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.