No. 82-469

INTHE 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 theEishteenthJudicial District, In and fortheCounty of Gallatin Honorable W. W. Lessley, Judgepresiding. Counsel of Record: For Appellant: Hon. Mike Greely, Attorney General, Helena, Montana Marge Johnson arqued, Assistant Attorney General. Helena,

Montana A. Michael Salvaqni, CountyAttorney, Bozeman, Montana For xespondent: Thomas M. Gaa argued, Bozeman, Yontana

Submitted 3 5, 1983 Decided: July 18, 1983 

## JUL

# I8

## 1983 Filed:

ClerkMr. Chief JusticePrank I. 

### Haswell delivered the Opinion of the Court. The State appeals the Gallatin County District Court order suppressing evidence found in a search incident toan arrestfor 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 inWood's account. The payees did not contactWood. 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 toanswer the chargeorpostbond. At approximately 7:30 

### a.m. on December 4, 1981, Officer David Peterson of the Gallatin County sheriff's department arrested Wood athis home. No offer to accept bond ($500)was made nor was 

### a "noticetoappear" or summons tendered inlieuof a fullcustodial arrest. During the booking procedure a fullsearch 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 toshow a compeiilng stateinterest for utilizing the most intrusivemeans toeffectuate its 

### interest. From this ruling the State appeals. The sole issue for our consideration is 

### whether a fullcustodial arrestwas proper inthiscase. Essentially, the State contends that the District 

### Court mistakenly extended the Carlson decision tofelonies. 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 interesttojustify a fullcustodial 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. InCarlsonthisCourt addressed the issuewhether a

### full custodial arrest was proper for misdemeanor traffic offenses. Carlsonwas involved ina traffic accidentwhereupon he told the investigating police thathe had a license but did not have it 

### with him. The police could not immediately check on this story. Later, police found defendant

was drivingwith a revoked license; thus, thecityclerkwas told to mail two "notices to appear" to defendant for driving without a license and obstructing an officer. The notices summoned the defendant toappear on March 11, 

### 1981. The notices were 

### - notmailed 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 arrestwarrant was unreasonable astherewas no justification or exigency for a full custodial arrest. Hence, the observationof the contraband was a warrantless searchwhich is 

### always presumed unreasonable. Carlson, 644 

### P.2d at504, 39 

### St.Rep. at810. 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 interestexisted for the State's invasion of Carlson's privacy. Specifically, the defendant was never notified of the traffic violations andthere 

### 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 citycould have utilizedbut did not. Further indication thatCarlson 

### is limited totrafficrelated misdemeanors 

### is found in the lastparagraph of the majorityopinion. 

### We stated: 

# ".



# .. if

### we were tosustain the entryby the police officers as reasonable, there would be few instances in the service of warrants of arrest for traffic-related offenseswhen theofficerswould notgain entrance inside thehome. 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 searcheson thebasis of traffic-related arrests, Taglevore v. United States (1961), 291 F.2d 262; as has theFifth Circuit, Amador-Gonzalez v. United States (1968), 391F.2d 308." 644 P.2d at505, 39 St.Rep. at811. 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 arrestwas proper pursuant toa validwarrant. Third, if every felony arrest supported by a warrant

was subject toheightened judicial scrutiny, 

### lawenforcement would be unreasonably burdened. In effect, thepolicewould have no clear guidelines to determine whether a particular arrestwillbe 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. Sheawillfilea separateopinion later.