No. 13714 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

THE STATE OF MONTANA, on the Relation of PHILMANKIN, Petitioner,

THE HONORABLE ROBERT H. WILSON, District Judge of the Thirteenth Judicial District of the State of Montana, in and for the County of Yellowstone, Respondent.

ORIGINAL PROCEEDING: Counsel of Record: For Petitioner: Berger, Anderson, Sinclair and Murphy, Billings,

Montana Richard Anderson argued, Billings,Montana For Respondent: Harold Hanser, County Attorney, Billings,Montana K. Kent Koolen argued, Deputy County Attorney,

Billings,Montana

Submitted: June 8, 1977 Decided: 

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zr , ClerkMr. chief Justice Paul G. Hatfield delivered the Opinion of the Court. Petitioner,PhilMankin, seeks a writ of supervisory control from this Court to require thepresiding judge in Criminal Cause No. 10081, in the district court, Yellowstone County, to grantpetitioner's motion to suppressevidence. Petitionerwas charged with the crime of burglary of a residence. A pretrial motion was filed to suppress evidence consisting of shoes,wrenches, gloves and any other clothing or personal possessions allegedly taken frompetitioner without a warrant in violation of his rights. An agreed statement of facts

was submitted to the district court for its consideration, supplementing other testimony and evidence presented at the formal hearing on the motion to suppress. The district court denied the motion. From this denial,petitioner seeks a writ of supervisory control or other appropriatewrit from this Court. The facts are not generally in dispute. On June 13, 1976, petitioner was arrested in connectionwith thefts from cars. Shortly after petitioner's arrest, a burglary was reported of a residence located within the same vicinity as the alleged thefts. The petitionerwas held in custody on the initial arrest for theft from cars,pending further investigationof both that crime and the house burglary. On the day ofpetitioner's arrest articles of clothing were taken fromhis person. On the following day, petitioner was released from custody without charges filed. Petitioner's shoes and other personal possessions were retained by the police and submitted to the F.B.I. laboratory for comparative analysis with footprints found during the investigationof the house burglary. Fourmonths later,upon receipt of the F.B.I. report, petitioner was charged with the burglary of the residence. Petitionermoves to suppress this evidence on the groundsthe stateviolated section 95-714,R.C.M. 1947. Petitioner does not contend that his initial arrest was unlawful. Where a lawful arrest occurs, section 95-701,R.C.M. 1947,allows the searchof a person and seizure of articles incident to that lawful arrest. According to the Revised Commission comment to section 95-714: "Any 'taking'by a police officer amounts to a seizing." Petitioner's shoes were taken from him at the time of his arrest. This taking constituted a lawful seizure. Since the seizure was lawful, the questionbefore this Court iswhether the retainingof the property by the police was a mere technical error under section 95-714. The state contends the failure to complywith section 95- 714, constitutes a mere technical error which does not compel the catastrophic consequencesof suppression of the evidence. Conversely,petitioner contends that noncompliancewith section 95-714must result in suppression of property lawfully seized. The following portion of section 95-714 is relied on to support this contention: 

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## * * If the person arrested is released without a charge being preferred against him, all instruments, articles or things seized from him, other than contraband shallbe returned to him upon release. " Section 95-714 gives as its source the Illinois Code of Criminal Procedure, Chap. 38, Section 108-2;a statute essentially identical to our own. The Illinois court in construing section 108-2 has rejected the same argument as that raised by petitioner. In People v. Pruitt, 16 Ill.App.3d 930, 307 N.E.2d 142, 151,cert. denied 419 U.S. 968, 95 S.Ct. 232, 42 L Ed 2d 184 (1974),the Illinois court stated: "Nevertheless, the defendant contends the clothes and the hair sweepings should have been suppressed because the police violated I11.Rev.Stat. (1971) Ch. 38, Sec. 108-2 when the police did not returnthese items upon the defendant's release that samenight. 

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"Defendant claims that this section has a basis in the FourthAmendment and represents a legislative codificationof it; and that the items retained in violation of this section must be suppressed under the exclusionaryrule. "The seizureand retentionof these itemsdid not constitute a violation of defendant's Fourth Amendment rights. As statedpreviously, the defendantwas validly arrested and the itemswere validly seized. The retentionof these items after defendant was released was valid because the items could be easily destroyed. 

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## * * * Therefore, atmost, only the retention of the defendant's clothingviolated the language of the Statute. 

### As such retentionwas only a violation of a statutory right and not a constitutional one, the clothing isnot subject to the exclusionary rule of evidence and did not require suppression." The Illinois court reiterated this holding in Peoplev. Tompkins, 24 Ill.App.3d 470, 321N.E.2d 326, 327 (1974),where the facts are essentially the same as petitioner's case. The court in Tompkins stated: "The State contends that the failure to complywith section 108-2 constitutes a mere technical error which does not compel a suppressionof the evidence. We agree.

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"Section 108-2 must be read in conjunction with section 108-14 of the same statutewhich states: "'No warrant shallbe quashed nor evidence suppressed because of technical irregularities not affecting the substantial rights of the accused.

## ' "Theaforementioned statutewas applied in People

### v. Smith, 50 I11.2d 229, 278 N.E.2d 73, wherein the defendant unsuccessfully urged the suppression of evidencebased on a violation of section 108-2. The court held that a failure to complywith a statutorydirection to furnish an inventory of seizedmaterials pursuant to a warrantless search will not, in the absence of prejudice, invalidatean otherwise proper search and seizure." The Illinois court above referred to 111.Rev.Stat. Section 108-14.This section is the source of our own section 95-717,R.C.M. 1947,which mandates against suppression of evidence on the basis of irregularities in the proceedings, where the irregularities do not affect the substantial rights of the accused. Montana follows the rule of statutory constructionwhere, in borrowing a statute from another state, the legislatureborrows the constructionplaced upon it by the highest court of the state fromwhich it is borrowed. Dunham v. SouthsideNational Bank of Missoula, 169 Mont. 466, 548 P.2d 1383, 33 St.Rep. 372 (1976). While this Court will consider the constructionplaced on the borrowed statute, such construction is not binding upon this Court. State ex rel. Dept. of Highways

### v. Hy-GradeAuto Court, 169Mont. 340, 546 P.2d 1050, 33 St.Rep. 222 (1976). In the case at hand, we accept the constructionplaced upon the statuteby the Illinois court and adopt it for our own. Accordingly,petitioner's writ for supervisory control or other applicablewrit is denied.

Chief Justice 

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Justicesflr. Justice Daniel J. Shea dissenting:

Iwould grant the petition for writ of supervisory control and suppress use of the shoes as evidence. The majority states that "petitioner's shoes were taken from him at the time of the arrest." But, they were not taken to hold as evidence. They were taken along with all his clothes and belongings on his person as part of the standard booking procedures used when a person is arrested and taken to jail. His clothes and shoes were not "seized" at that time. At the time defendantwas booked he was under arrest only for car burglary, and his clothes (including his shoes) were taken from him before he was ever a suspect in the burglary of the house. Itwas later that the police checked the footprints outside the house and comparing them with defendant's shoes, determined that he might be linked to the house burglary. Until his release from jail, defendant's clothes and shoes

were in the lawful custody of the police. Upon his release, if the police wanted to keep the shoes for further investigation of the house burglary, they should have applied to the district court for

an order impounding the shoes. In not doing so, and in refusing to return defendant's shoes to him upon this release from jail, they violated section 95-714,R.C.M. 1947. The statute is rendered meaningless if the police are not compelled to either obtain a court order impounding a defendant's clothes or personal belongings,

or to return them to the defendant upon his release from jail. Suppressing the evidence is the only meaningful way of assuring compliance with that statute.