No. 86-04 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

CITY OF HELENA, 

Plaintiff and Respondent, 

-vsLEONARD PETE LAMPING, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Thomas Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Frederick F. Sherwood, Helena, Montana 

For Respondent: 

Hull & Sherlock; David Hull, Helena, Montana 

Submitted on Briefs: March 6, 1986 

Decided: June 4, 1986 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from an order of the District Court of 

the First Judicial District in and for Lewis and Clark 

County, Montana. The court denied defendant's motion to 

supress certain evidence and defendant appeals. We affirm. 

The defendant, Lamping, was arrested by city police in 

Women's Park, Helena. He was charged with a violation of the 

city open container ordinance and with giving alcohol to a 

minor. Lamping pled guilty to the first charge. The latter 

charge was dismissed. 

After the arrest, Lamping was taken immediately to the 

county jail to be jailed. According to the jailer on duty, 

the usual procedure was followed in processing the prisoner. 

All his personal property was taken from him to be 

inventoried. While searching Lamping, the jailer pulled out 

of his shirt pocket what appeared to be a crumpled pack of 

Marlboro cigarettes. The pack was open. The jailer looked 

into it because he did not want to throw it away if it 

contained cigarettes. There was one hand-rolled cigarette in 

the pack which was determined to be a marijuana cigarette. 

As a result of finding the marijuana cigarette, the City 

charged Lamping with misdemeanor possession of dangerous 

drugs. He was tried and convicted in absentia. On appeal to 

the District Court, Lamping argued the evidence on which the 

City relied was obtained through an illegal search. A 

suppression hearing was held. The motion to suppress was 

briefed by both sides and denied by the District Court. At 

the subsequent bench trial, Lamping was found guilty and 

sentenced to 45 days in jail. 

The only issue on appeal is whether the motion to 

suppress should have been granted. 
Evidence which is obtained illegally cannot be admitted 

at trial because its admission violates defendant's federal 

constitutional fourth amendment right against unreasonable 

search and seizure. Weeks v. United States (1914) 232 U.S. 

383, 34 S.Ct. 341, 58 L.Ed. 652. This rule was made 

applicable to the states in Mapp v. Ohio (1961), 367 U.S. 

643, 655-657, 81 S.Ct. 1684, 1691-1692, 6 L.Ed.2d 1081, 

1090-1091. When a defendant moves to suppress certain 

evidence, he is entitled to a hearing on his motion, where 

the admissibility of the evidence is decided by the judge as 

a matter of law. Jackson v. Denno (1964), 378 U.S. 368, 84 

S.Ct. 1774, 12 L.Ed.2d 908. In addition to the protection 

accorded by the fourth amendment to the federal constitution 

and Art. 11, S 11 of the Montana Constitution against 

unreasonable search and seizure, the Montana Constitution 

specifically protects the individual's right to privacy. 

Art. 11, § 10, 1972 Mont. Const. 

Lamping argues the inventory search prior to his 

incarceration violates Art. 11, § 10, and 5 11 of the Montana 

Constitution. He relies on State v. Sierra (Mont. 1985), 692 

P.2d 1273, 42 St.Rep. 106. Sierra is inapplicable in this 

case, however. The defendant in Sierra was a person 

detained on suspicion of being an illegal alien. During an 

inventory search, a suitcase in his possession was opened and 

searched without a warrant. The case at bar involves an 

open, somewhat crumpled cigarette package which was in the 

defendant's shirt pocket. 

Lamping does not contest the legality of the discovery 

of the Marlboro pack itself. He is contesting the fact the 

jailer looked inside the open pack. The jailer testified he 

did not want to throw away the pack if there were cigarettes 

inside. There is no evidence the jailer was acting 

unreasonably, or in a non-investigatory way. 

-3- 
The Ninth Circuit Court in United States v. 

Monclavo-Cruz (9th Cir. 1981), 662 F.2d 1285, 1290, cited 

with approval by the United States Supreme Court in United 

States v. Chadwick (19761, 433 U.S. 1, 16, n. 10, 97 S.Ct. 

Unlike searches of the person, United States v. 

Robinson, 414 U.S. 218, [94 S.Ct. 467, 38 L.Ed.2d 

4271 (1973); United States v. Edwards, 415 U.S. 

800, [94 S.Ct. 1234, 39 F.Ed.2d 7711 (1974), 

searches of possessions within an arrestee's 

immediate control cannot be justified by any 

reduced expectations of privacy caused by the 

arrest . . . 

The Circuit Court said: 

We understand this footnote to mean that once a 

person is lawfully seized and placed under arrest, 

she has a reduced expectation of privacy in her 

person. Thus, a search of a cigarette case on the 

person is lawful once the person is under arrest 

without reference to any possible danger to the 

olice. . . United States v. Robinson, 414 U.S. 

518, 94 S.Ct. 467, 38 ~.Ed.2d 427 (1973):. . . 

We concur with this distinction drawn between searches of the 

person and searches of possessions within an arrestee's 

immediate control. 

Lamping was not subjected to an illegal search, nor was 

his right to privacy violated when the jailer looked inside 

the open pack of cigarettes to make sure it was empty. Had 

the package been empty, it would have been thrown away. Had 

there been a non-marijuana cigarette in it, it would have 

been returned to Lamping if he wanted to smoke. According to 

the jailer, "nine times out of ten a prisoner will ask for a 

cigarette while he is being booked." Dangerous 

instrumentalities can be concealed in innocent looking 

articles taken from an arrestee's possession. The state has 

a compelling interest in protecting prisoners from potential 

danger. It must protect both the defendant and the officer 

by accounting for any money a prisoner might have. 
In Sierra, supra, while agreeing with the United States 

Supreme Court in Illinois v. Lafayette (1983), 462 U.S. 640, 

103 S.Ct. 2605, 77 L.Ed.2d 65, that there are numerous, 

legitimate governmental interests which override the 

interests of the individual, "we [did not] agree that their 

existence may permit an inventory search in all 

circumstances . . . [I]n many of these circumstances the 

police should use the least intrusive means possible for 

conducting an inventory search." 692 P.2d at 1275, 42 

There are circumstances where a search is not 

unreasonable for failure to secure a search warrant. The 

case at bar is one. Lamping's reasonable expectation of 

privacy is diminished as to the open cigarette pack found in 

his shirt during a routine inventory search. When a 

container is open, the intrusion is justified to protect the 

other prisoners from harm. The contents of an unsecured 

package should be inventoried separately. 

In this instance the search was reasonable to assure 

this protection. The order of the District Court is 

affirmed. 

Justices