No. 82-469 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

STATE OF MONTANA, 

Plaintiff and Appellant, 

VS . 

BRIAN J. WOOD, 

Defendant and Respondent. 

Appeal from: District Court of the Eishteenth Judicial District, 

In and for the County of Gallatin 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Marge Johnson arqued, Assistant Attorney General. Helena, 

Montana 

A. Michael Salvaqni, County Attorney, Bozeman, Montana 

For xespondent : 

Thomas M. Gaa argued, Bozeman, Yontana 

Submitted 3 5, 1983 

Decided: July 18, 1983 

JUL I 8 1983 Filed : 

Clerk 
Mr. Chief Justice Prank I. Haswell delivered the Opinion of 

the Court. 

The State appeals the Gallatin County District Court 

order suppressing evidence found in a search incident to an 

arrest for issuing a bad check. We reverse. 

Between July 17, 1981, and July 26, 1981, Brian Wood 

issued four checks that totaled $49.97, and between October 

10, 1981, and October 30, 1981, he issued nine more that 

totaled $181.79. Each of these checks was returned to the 

payee because of insufficient funds in Wood's account. The 

payees did not contact Wood. 

On November 23, 1981, the justice of the peace issued 

an arrest warrant for Wood on the charge of issuing a bad 

check. There were no previous efforts to secure his 

presence to answer the charge or post bond. 

At approximately 7:30 a.m. on December 4, 1981, 

Officer David Peterson of the Gallatin County sheriff's 

department arrested Wood at his home. No offer to accept 

bond ($500) was made nor was a "notice to appear" or summons 

tendered in lieu of a full custodial arrest. 

During the booking procedure a full search of Wood was 

conducted, and one gram of hashish was found. On March 29, 

1982, informations were filed charging Wood with issuing a 

bad check and with criminai possession of dangerous drugs, 

both felonies. 

Wood plead guilty to issuing a bad check. However, 

the District Court granted his motion to suppress the 

contraband on the basis that the arrest, from which the 

search stemmed, was an unconstitutional invasion of privacy 

under State v. Carlson (1982), Mont . , 644 P.2d 

498, 39 St.Rep. 802. The lower court ruled that the State 
failed to show a compeiilng state interest for utilizing the 

most intrusive means to effectuate its interest. 

From this ruling the State appeals. The sole issue 

for our consideration is whether a full custodial arrest was 

proper in this case. 

Essentially, the State contends that the District 

Court mistakenly extended the Carlson decision to felonies. 

The Court, in Carlson, clearly limited its ruling to 

traffic-related misdemeanors. The interests of society in 

the administration of justice is greater here than in 

Carlson since a felony is involved. This is a sufficient 

compelling interest to justify a full custodial arrest. 

We hold the arrest was not a violation of Wood's 

constitutional right of privacy. Full custodial arrests, 

supported by a warrant, for felonies are proper. First of 

all, the apprehension of felony suspects is a compelling 

state interest that justifies a full custodial arrest 

pursuant to a warrant. This Court held in State ex rel. 

Zander v. District Court (1979), 180 Mont. 548, 591 P.2d 

656, "[tlhe right of individual privacy must yield to a 

compelling state interest. Such compelling state interest 

exists where the state enforces its criminal laws for the 

benefit and protection of other fundamental rights of its 

citizens." 180 Mont. at 556, 591 P.2d at 660. The apprehension of felons is proper enforcement of criminal laws 

that will benefit all citizens. Specifically, the 

enforcement of laws prohibiting the issuance of bad checks 

protects valuable fundamental rights of citizens. 

Second, Carlson is limited to traffic-related misdemeanors. In Carlson this Court addressed the issue whether a 
full custodial arrest was proper for misdemeanor traffic 

offenses. Carlson was involved in a traffic accident whereupon he told the investigating police that he had a license 

but did not have it with him. The police could not immediately check on this story. Later, police found defendant 

was driving with a revoked license; thus, the city clerk was 

told to mail two "notices to appear" to defendant for 

driving without a license and obstructing an officer. The 

notices summoned the defendant to appear on March 11, 1981. 

The notices were - not mailed and when the defendant failed to 

appear, the police obtained a warrant and arrested the 

defendant. When the arrest occurred in defendant's home, 

contraband was observed. Police later obtained a search 

warrant and seized the contraband. Defendant was charged 

with criminal possession of dangerous drugs and theft, all 

felonies. The District Court suppressed the seized evidence 

because defendant's Fourth Amendment rights had been 

violated. 

This Court held that entry by the police pursuant to 

the arrest warrant was unreasonable as there was no justification or exigency for a full custodial arrest. Hence, the 

observation of the contraband was a warrantless search which 

is always presumed unreasonable. Carlson, 644 P.2d at 504, 

39 St.Rep. at 810. 

The rationale for our holding was based on the 

misdemeanor traffic offenses. Applied to such offenses, 

there were less intrusive means to accomplish the State's 

objective; therefore, no compelling interest existed for the 

State's invasion of Carlson's privacy. Specifically, the 

defendant was never notified of the traffic violations and 
there is a specific municipal policy that prevents arrests 

for traffic offenses unless the accused does not respond to 

notices. We noted other options less intrusive than an 

arrest that the city could have utilized but did not. 

Further indication that Carlson is limited to trafficrelated misdemeanors is found in the last paragraph of the 

majority opinion. We stated: 

". . . if we were to sustain the entry by 

the police officers as reasonable, there 

would be few instances in the service of 

warrants of arrest for traffic-related 

offenses when the officers would not gain 

entrance inside the home. Few persons are 

fully dressed and ready for the street 

when they answer the door in response to 

a knock. Inevitably the search would be 

held incident to the arrest, and not vice 

versa. The Circuit Court of Appeals for 

the Ninth Circuit has been careful to 

avoid opening up searches on the basis of 

traffic-related arrests, Taglevore v. 

United States (1961), 291 F.2d 262; as 

has the Fifth Circuit, Amador-Gonzalez v. 

United States (1968), 391 F.2d 308." 644 

P.2d at 505, 39 St.Rep. at 811. 

Consequently, the District Court here erroneously 

extended Carlson to felonies. Wood was charged with a 

violation of section 45-6-316(1), MCA, a felony, and a full 

custodial arrest was proper pursuant to a valid warrant. 

Third, if every felony arrest supported by a warrant 

was subject to heightened judicial scrutiny, law enforcement 

would be unreasonably burdened. In effect, the police would 

have no clear guidelines to determine whether a particular 

arrest will be constitutionally correct. 

The order of the District Court suppressing the 

evidence is vacated, and the cause remanded to the District 

Court for further proceedings. 

Chief ~ustice \ 
'L 

Justices 

Mr. Justice Daniel J. Shea will file a separate opinion later.