No. 13714 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

THE STATE OF MONTANA, on the 

Relation of PHIL MANKIN, 

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: SEp 2 2 3977 

- Filed: c-c - t- - I 

L 

zr 

, Clerk 
Mr. chief Justice Paul G. Hatfield delivered the Opinion of the 

Court. 

Petitioner, Phil Mankin, seeks a writ of supervisory 

control from this Court to require the presiding judge in Criminal Cause No. 10081, in the district court, Yellowstone County, 

to grant petitioner's motion to suppress evidence. 

Petitioner was 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 from petitioner 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 appropriate writ from this Court. 

The facts are not generally in dispute. On June 13, 1976, 

petitioner was arrested in connection with 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 petitioner was held in custody on the initial arrest for theft 

from cars, pending further investigation of both that crime and 

the house burglary. 

On the day of petitioner's arrest articles of clothing 

were taken from his 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 investigation of the house burglary. 

Four months later, upon receipt of the F.B.I. report, 

petitioner was charged with the burglary of the residence. 

Petitioner moves to suppress this evidence on the grounds 
the state violated 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 search of 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 question before this Court is whether the 

retaining of the property by the police was a mere technical error 

under section 95-714. 

The state contends the failure to comply with section 95- 

714, constitutes a mere technical error which does not compel the 

catastrophic consequences of suppression of the evidence. 

Conversely, petitioner contends that noncompliance with 

section 95-714 must result in suppression of property lawfully 

seized. The following portion of section 95-714 is relied on to 

support this contention: 

" * * * If the person arrested is released without 

a charge being preferred against him, all instruments, articles or things seized from him, other 

than contraband shall be 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 return 
these items upon the defendant's release that 

same night. * * * 

"Defendant claims that this section has a 

basis in the Fourth Amendment and represents 

a legislative codification of it; and that the 

items retained in violation of this section 

must be suppressed under the exclusionary rule. 

"The seizure and retention of these items did 

not constitute a violation of defendant's Fourth 

Amendment rights. As stated previously, the 

defendant was validly arrested and the items were 

validly seized. The retention of these items 

after defendant was released was valid because 

the items could be easily destroyed. * * * 

" * * * Therefore, at most, only the retention 

of the defendant's clothing violated the language 

of the Statute. As such retention was only a 

violation of a statutory right and not a constitutional one, the clothing is not subject to the 

exclusionary rule of evidence and did not require 

suppression." 

The Illinois court reiterated this holding in People v. 

Tompkins, 24 Ill.App.3d 470, 321 N.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 comply with 

section 108-2 constitutes a mere technical error 

which does not compel a suppression of the evidence. 

We agree. * * * 

"Section 108-2 must be read in conjunction 

with section 108-14 of the same statute which 

states : 

"'No warrant shall be quashed nor evidence 

suppressed because of technical irregularities 

not affecting the substantial rights of the 

accused. ' 

"The aforementioned statute was applied in 

People v. Smith, 50 I11.2d 229, 278 N.E.2d 73, 

wherein the defendant unsuccessfully urged the 

suppression of evidence based on a violation 

of section 108-2. The court held that a failure 

to comply with a statutory direction to furnish 

an inventory of seized materials pursuant to a 

warrantless search will not, in the absence of 

prejudice, invalidate an 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 construction where, 

in borrowing a statute from another state, the legislature borrows 

the construction placed upon it by the highest court of the state 

from which it is borrowed. Dunham v. Southside National Bank of 

Missoula, 169 Mont. 466, 548 P.2d 1383, 33 St.Rep. 372 (1976). 

While this Court will consider the construction placed on the borrowed statute, such construction is not binding upon this Court. 

State ex rel. Dept. of Highways v. Hy-Grade Auto Court, 169 Mont. 

340, 546 P.2d 1050, 33 St.Rep. 222 (1976). 

In the case at hand, we accept the construction placed 

upon the statute by the Illinois court and adopt it for our own. 

Accordingly, petitioner's writ for supervisory control or other 

applicable writ is denied. 

Chief Justice 1 

................................. 

Justices 
flr. Justice Daniel J. Shea dissenting: 

I would 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 defendant was 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. 

It was 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.