No. 14392 

IN THE SUPREME COURT OF THE STATE OF' MONTANA 

1978 

THE s'lRI"I' QF MONTANA, 

Plaintiff and Respondent, 

-VSHCbARD NEIL SORENSON, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record: 

For Appellant: 

mrales, Volinkaty & Harr, Missoula, Montana 

A. Bruce Harr argued, Missoula, bbntana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Douglas G. Harkin, County Attorney, Hamilton, Montana 

Peggy Toner argued, Deputy County Attorney, Hamilton, Pbntana 

Suhitted: November 14, 1978 

mid&: JAN 3 1979 

~il*: JAN 3 1979 
Mr. 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. 

Sometime prior to April 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 one month, to care for his houseplants and 

animals during his absence. Defendant went to Steve's home, 

which is approxiniately one mile from defendant's residence, 

the night before he left for the vacation and gave Steve a 

key. While defendant was there, Steve's mother, Laurie 

Burnham, informed defendant that she would make sure the 

tasks were performed, either by Steve or herself. Defendant 

understood Mrs. Burnham as saying she would make sure Steve 

took care of the house. He made 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. Steve had taken a pornographic magazine into the school 

building and when asked by the principal to hand it over, 

had thrown it in the principal's face. 

According to Mrs. 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 school principal. 

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 school principal about 

the threats. The principal was asked to make himself unavailable. 

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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, 

that possibly was at the defendant's residence. It was 

decided that Steve may 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 sheriff had 

questioned Mrs. Burnham concerning who was taking care of 

the house. She stated that Steve had been asked to, but 

she had assured the defendant the job would be done. The 

sheriff did not question Mrs. 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 "it might not be quite right to enter the house." 

Two rifles were 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, three pipes on a buffet and a 

jar of marijuana seeds on top of some contained garbage. In 

the living room, small marijuana plants were disccvered growing 

among the houseplants and others were found in individual 

containers. 

On May 3, 1977, eleven days after the search for Steve 

had been conducted, a search warrant was issued based on the 

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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 from unreasonable searches and seizures, as 

guaranteed by the Fourth Amendment of the United States 

Constitution, had been violated. The District Court denied 

the motion, finding that Mrs. Burnham had authority to 

enter the house. 

Defendant was 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 is well established that under certain circumstances, 

peace officers may 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 "plain view" doctrine may be relied 

on if two threshold requirements are met: the officer must 

have a prior justification for the intrusion and the incriminating evidence must 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 search warrant. 

Therefore, the intrusion must be justified under one of the 

recognized exceptions to the Fourth Amendment's warrant 
requirement. This "prior justification" must be established 

before we can determine whether the officers' plain view 

observations were properly used as probable cause for the 

issuance of the search warrant on May 3, 1977. 

"Searches conducted outside the judicial process, 

without prior approval by judge or magistrate, are per -- se 

unreasonable under the Fourth Amendment--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. "The exceptions 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 (emphasis added). 

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 

reasonableness of the officers' intrusion. In view of the 

restrictive nature of the exceptions and their limited 

application, it cannot be 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 

that will fit the facts of this case. 

Peace officers in "hot pursuit" of a fleeing felon may 

enter premises without a warrant if the exigencies of the 

situation make that course imperative. Vale v. Louisiana 

(1969), 399 U.S. 30, 26 L.Ed.2d 409, 90 S.Ct. 1969; Warden, 

Maryland Penitentiary v. Hayden (1967), 387 U.S. 294, 18 

L.Ed.2d 782, 87 S.Ct. 1642. In Hayden, police officers, 

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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 through Mr. Justice Brennan, stated: 

". . . The Fourth Amendment does not require 

police officers to delay in the course 

of an investigation if to do so would 

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 only man present and 

that the police had control of all weapons 

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 "hot pursuit" case. The 

doctrine is unavailable to peace officers until a felony 

has been committed and the suspect is fleeing. 

Another of the carefully defined exceptions to the 

Fourth Amendment's warrant requirement involves situations 

where officers have probable cause that they will find the 

instrumentality of a crime or evidence related to the crime. 

Dyke v. Taylor Implement Mfg. 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: 
"We are not dealing with formalities. 

The presence of a search warrant serves 

a high function. Absent some grave 

emergency, the Fourth Amendment has 

interposed a magistrate between the 

citizen and the police. This was done 

not to shield criminals nor to make 

the home a safe haven for illegal activities. 

It was 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 search warrant 

without a showing by those who seek exemption 

from the constitutional mandate that the 

exigencies of the situation made that course 

imperative." 

Precautionary measures had been taken to insure the 

safety of the high school principal. 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's residence. 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's mother 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 contends defendant's constitutional 

rights were waived by a third party, namely Laurie Burnham, 

the youth's mother. 

A search which is conducted pursuant to the consent 

of the party being searched meets the Fourth Amendment's 

standard of reasonableness, Davis V. United States (1946), 
328 U.S. 582, 90 L.Ed. 1453, 66 S.Ct. 1256; reh.den. 329 

U.S. 824, 91 L.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, 91 L.Ed. 1259, 

67 S.Ct. 857. Additionally, ". . . when-the pr~secu~tion 

seeks to justify a warrantless search by proof of a voluntary 

consent, it is not limited to proof that consent was given 

by the defendant, but may shcw that permission to search was 

obtained from a third party who possessed common authority 

over or other sufficient relationship to the premises or 

effects sought to be inspected." United States v. 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 

"common authority" over the home or have some other "sufficient 

relationship" with the home that would 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 authority which 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) (landlord could 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 on mutual 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 coinhabitants has 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 Burnham was nct a co-inhabitant of 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 Burnham merely gratuitously guaranteed that her son 

would perform the tasks. Even assuming she obtained implicit 

permission to enter the house because the defendant did not 

respcnd to her offer, her authority was limited to enter to 

perform the requested tasks. She did not possess a "sufficient 

relationship" with the residence which 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 

Chief Justice 

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