No. 14392 INTHE SUPREMECOURTOF THE STATE OF'MONTANA 1978

THEs'lRI"I' QFMONTANA, Plaintiff and Respondent,

-VSHCbARDNEIL SORENSON, DefendantandAppellant.

Appeal from: DistrictCourt of theFourthJudicialDistrict, HonorableJack L. Green, Judgepresiding. Counselof Record: For Appellant: mrales, Volinkaty & Harr, Missoula, Montana A. BruceHarr argued,Missoula, bbntana For Respondent: Hon. MikeGreely, AttorneyGeneral,Helena, Montana Douglas G. Harkin, CountyAttorney, Hamilton, Montana PeggyToner argued, DeputyCountyAttorney, Hamilton, Pbntana

Suhitted: November 14, 1978 mid&: 

## JAN 3 

## 1979 ~il*: 

## JAN 31979Mr. Justice John C. Sheehy delivered the Opinion of the Court. Defendant,Howard Neil Sorenson, appeals from a conviction of misdemeanor possession of dangerous drugs,namely marijuana, following a trial by jury in District Court, Ravalli County. Sometimeprior toApril 22, 1977,defendant and his wife went to California for a vacation. The couple lived in

a rural area near Hamilton, Montana, so before the trip, defendant asked Steve Burnham, a youth he had known for approximately onemonth, to care for his houseplants and animals during his absence. Defendantwent to Steve's home, which is approxiniately onemile from defendant's residence, the night before he left for the vacation and gave Steve a key. While defendantwas there, Steve's mother, Laurie Burnham, informed defendant that shewould make sure the taskswere performed, either by Steve or herself. Defendant understood Mrs. Burnham as saying shewould make sure Steve took care of the house. Hemade no reply to her statement. On April 22, 1977,Steve Burnham's parents were advised of an incident that had taken place at the high school that day. Stevehad taken a pornographicmagazine into the school building and when asked by the principal to hand it over, had thrown it in the principal's face. According toMrs. Burnham, Steve came home from school very upset. He went upstairs,grabbed a rifle and told his mother he was "going to get" the high schoolprincipal. Mrs. Burnham persuaded Steve to give her the rifle and she calmed him down. He left the home approximately one-half hour later,headed in the direction of town. Fred Burnham, Steve's father,notified the Ravalli County Sheriff and the sheriff, in turn,notified the high schoolprincipal about the threats. The principalwas asked to make himself unavailable. -2-Sometime later, the sheriff,a deputy and Steve's father arrived at the Burnham residence. Mr. Burnham recalled that Steve had a rifle, used for shooting gophers, thatpossibly was at the defendant's residence. It was decided that Stevemay have gone to the defendant's residence,

so the sheriff,deputy and Laurie Burnham went to the house in search of Steve. Upon their arrival at defendant's residence, the peace officers made a cursory search of the outbuildings. They

were unable to detect any movement or other indication that anyone was in the residence. Previously the sheriffhad questioned Mrs. Burnham concerningwho was taking care of the house. She stated that Steve had been asked to,but shehad assured the defendant the jobwould be done. The sheriff did not questionMrs. Burnham as to the extent of her authority to enter the house. With Mrs. Burnham leading the way, the officers entered defendant's hcuse through an unlocked sliding glass door. As she opened the door,Mrs. Burnham told the officers she thought "itmight not be quite right to enter the house." Two rifleswere observed leaning against a couch. Mrs. Burnham identified one of the rifles,but under the circumstances, it was decided that both should be confiscated. The trio was in the house for approximately fifteen minutes. While searching for Steve in the basement and other available rooms, the sheriff noticed a large "hookatype" pipe in the bedroom, threepipes on a buffet and a jar ofmarijuana seeds on top of some contained garbage. In the living room, smallmarijuana plants were disccvered growing among the houseplants and otherswere found in individual containers. On May 3, 1977, eleven days after the search for Steve had been conducted,a searchwarrantwas issued based on the -3-the sheriff's earlier observations. The contraband was seized and defendant was charged with misdemeanor possession of dangerous drugs, namely marijuana. A jury trial was set for October 6, 1977. Before the trial, the District Court heard testimony regarding defendant's motion to suppress evidence. Defendant contended that his constitutional right to be free fromunreasonable searches and seizures,as guaranteed by the FourthAmendment of the United States Constitution,had been violated. The District Court denied the motion, finding that Mrs. Burnham had authority to enter the house. Defendantwas found guilty and sentenced to one year in the Ravalli County jail, such sentence being suspended on various conditions. For the reasons expressed herein,we need only consider defendant's primary issue on appeal. Did circumstances exist which suspended the Fourth Amendment's warrant requirement and justified the peace officers' search of defendant's residence on April 22, 1977? It iswell established that under certain circumstances, peace officersmay seize evidence in plain view without a warrant. Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022 reh.den. 404 U.S. 874, 30 L.Ed.2d 120, 92 S.Ct. 26. The "plainview" doctrine may be relied

on if two threshold requirements are met: the officer must have a prior justification for the intrusion and the incriminating evidencemust be discovered inadvertently in the

course of the justified intrusion. 403 U.S. at 466. The officers' initial intrusion in the instant case

was not accomplished under the authority of a searchwarrant. Therefore, the intrusion must be justified under one of the recognized exceptions to the FourthAmendment's warrantrequirement. This "prior justification" must be established before we can determinewhether the officers' plain view observations were properly used as probable cause for the issuance of the search warrant on May 3, 1977. "Searchesconducted outside the judicialprocess, without prior approval by judge or magistrate, are per -- se unreasonable under the FourthAmendment--subject only to a few specifically established and well-delineated exceptions." Katz v. United States (1967),389 U.S. 347, 357, 19 L.Ed.2d. 576, 88 S.Ct. 507. "Theexceptions are jealously -- and carefully drawn, and there must be a showing by those who seek exemption that the exigencies of the situation made that

course imperative. The burden is on those seeking the exemption to show the need for it." Coolidge, 403 U.S. at 455 (emphasisadded). The State conrends that, although the circumstances presented to the officers in this case do not fit into any single category of cases excepted from the warrant requirement, they nevertheless contain integral elements from various categories, which taken as a whole, reveal the reasonablenessof the officers' intrusion. In view of the restrictive nature of the exceptions and their limited application, it cannotbe said that the United States Supreme Court contemplated law enforcement officers relying on elements of various exceptions to justify their intrusion. We will not blend the well-delineated exceptions into one thatwill fit the facts of this case. Peace officers in "hotpursuit" of a fleeing felonmay enter premises without a warrant if the exigencies of the situationmake that course imperative. Vale v. Louisiana (1969),399 U.S. 30, 26 L.Ed.2d 409, 90 S.Ct. 1969; Warden, Maryland Penitentiaryv. Hayden (1967),387 U.S. 294, 18 L.Ed.2d 782, 87 S.Ct. 1642. In Hayden,police officers, -5-informed that an armed robbery had just occurred and that the suspect had entered a house minutes before their arrival, entered, searched the house and arrested the suspect. The Supreme Court, speaking throughMr. Justice Brennan, stated: 

# ".

. . The Fourth Amendment does not require police officers to delay in the course of an investigation if to do sowould gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the onlyman present and that the police had control of allweapons which could be used against them or to effect an escape." 387 U.S. at 298. The State contends a variation of the "hot pursuit" doctrine should be applied to this case because the officers

were searching for an angry youth who had recently threatened violence against another and who had ready access to a weapon. This simply is not a "hotpursuit" case. The doctrine isunavailable to peace officers until a felony has been committed and the suspect is fleeing. Another of the carefully defined exceptions to the FourthAmendment's warrant requirement involves situations where officers have probable cause that they will find the instrumentalityof a crime or evidence related to the crime. Dyke v. Taylor ImplementMfg. Co. (1968), 391 U.S. 216, 20 L.Ed.2d 538, 88 S.Ct. 1472. Again, exigent circumstances must exist,making it impracticable to obtain a warrant. Coolidge, 403 U.S. at 460. If we assume that the officers entered defendant's residence under the reasonable belief that they would find the youth or a weapon and thereby prevent the commission of a violent crime,we cannot say that an emergency situation existed that would justify violating the privacy of defendant's home. As stated by Mr. Justice Douglas in McDonald v. United States (1948), 335 U.S. 451, 455, 93 L.Ed. 153, 69 S.Ct. 191:"Weare not dealing with formalities. Thepresence of a searchwarrant serves a high function. Absent some grave emergency, the FourthAmendment has interposed a magistrate between the citizen and thepolice. Thiswas done not to shield criminals nor to make the home a safe haven for illegal activities. Itwas dcne so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a searchwarrant without a showing by those who seek exemption from the constitutionalmandate that the exigencies of the situationmade that course imperative." Precautionarymeasures had been taken to insure the safety of the high schoolprincipal. The youth had left his home a half hour after his mother had calmed him down. He headed in the direction of town, away from defendant'sresidence. Defendant's residence was in a rural area, far from any possible scene of violence. The State concedes that an emergency situation did not exist at defendant's residence. In fact, the youth'smother was the first to enter the residence. Other courses of conduct were available to the officers. The State has failed to meet its burden., The exigencies of the situation did not make entry imperative. Finally, the State contendsdefendant's constitutional rights were waived by a third party, namely Laurie Burnham, the youth's mother. A searchwhich is conducted pursuant to the consent of the party being searched meets the FourthAmendment's standard of reasonableness, Davis V. United States (1946),328 U.S. 582, 90L.Ed. 1453, 66 S.Ct. 1256; reh.den. 329 U.S. 824, 91L.Ed. 700, 67 S.Ct. 107; Zap v. United States

(1946),328 U.S. 624, 90 L.Ed. 1477, 66 S.Ct. 1277,vacated

on rehearing on others grounds 330 U.S. 800, 91L.Ed. 1259, 67 S.Ct. 857. Additionally,

# ".

.. when-thepr~secu~tion seeks to justify a warrantless search by proof of a voluntary consent, it is not limited to proof that consentwas given by the defendant,but may shcw that permission to searchwas obtained from a third party who possessed common authority

over or other sufficient relationship to the premises or effects sought to be inspected." United Statesv. Matlock

(1974),415 U.S. 164, 171, 39 L.Ed.2d 242, 94 S.Ct. 988. The District Court determined that Laurie Burnham had authority to enter defendant's home. But did she have authority to consent to the officer's entry? Did she possess "commonauthority" over the home or have some other "sufficient relationship"with the home thatwould enable her to allow the officers inside? "Common authority"was defined in Matlock, 415 U.S. at 171,n. 7: "7. Common authority is, of course,not to be implied from the mere property interest a third party has in the property. The authoritywhich justifies the thirdparty consent does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v. United.States,365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) (landlordcould not validly consent to the search of a house he had rented to another), Stoner

### v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (night hotel clerk could not validly consent to search of customer's room)but rests rather onmutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the coinhabitantshas the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched."Laurie Burnhamwas nct a co-inhabitantof the home. She could not permit an inspection in her own right. Therefore, her consent was valid only if it can be shown that she possessed some other "sufficient relationship"with the home.The defendant asked the youth, Steve Burnham, to care for his houseplants and animals while he was away,nothing

more. He did not ask Laurie Burnham to care for his house. The key had been given to Steve, thereby giving him, not Laurie Burnham, constructive possession of the house. Laurie Burnhammerely gratuitously guaranteed that her son would perform the tasks. Even assuming she obtained implicit permission to enter the house because the defendantdid not respcnd to her offer, her authoritywas limited to enter to perform the requested tasks. She did not possess a "sufficient relationship"with the residencewhich would give her authority to consent to a search. We conclude that the evidence should have been su~pressed because of the unlawful entry. Reversed for disposition in accordance with this opinion.

/ Justice 1 We Concur: 

### L' 

# %A 

# 8.

# ~~4 Chief Justice