No. 13906 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsJAMES D. JETTY, 

Defendant and Respondent. 

Appeal from: District Court of the Sixth Judicial District, 

Honorable Jack D. Shanstrom, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Charles R. Anderson argued, Assistant Attorney General, 

Helena, Montana 

Jack Yardley argued, County Attorney, Livingston, Montana 

For Respondent : 

Huppert and Swindlehurst, Livingston, Montana 

Joseph T. Swindlehurst argued, Livingston, Montana 

I - , .IC'?~ 

Filed: 

Submitted: April 25, 1978 

Decided: Jut.; - cs 1978 
Mr. Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from the District Court, Park County, 

wherein the court suppressed marijuana seized in a jail search. 

The state appeals and raises these issues: 

1. Whether the search of defendant's person under a 

warrant of arrest issued by a police magistrate for a parking meter 

violation is an unreasonable search? 

2. Whether the Livingston meter ordinance is constitutional? 

On February 6, 1977, at approximately 3:00 a.m., Officer 

Bryce of the Livingston police department stopped a pickup truck 

which had no license plate on the rear. While talking to the 

driver the officer recognized the passenger as a person for whom 

he had a warrant of arrest for an unpaid parking ticket. Officer 

Bryce forthwith arrested defendant and advised him he would have 

to accompany him to the police station to find out the amount of 

the bail bond. 

The driver of the pickup informed Officer Bryce that he 

would be "following him down with the money." Upon arriving at 

the police station, the officer ascertained that the bail bond was 

$15 and defendant reminded him his friend who was driving the truck 

would bring the bond money to the police station within 20 minutes. 

The officer agreed to let defendant wait for his friend 

in a holding cell. The procedure requires a search for weapons or 

contraband before being placed in the holding cell. The search 

consisted of removing defendant's belt and shoes, emptying his 

pockets and removing his jacket and vest. It was at this time 

the officer claims he saw a plastic bag sticking out of defendant's 

shirt. On the other hand, defendant claims that the officer was 

in the process of stripping him; he took his shirt off and that 
is when the illegal drugs were found. Defendant's friend arrived 

at the police station within 20 minutes with the bond money, but 

defendant already had been arrested for possession of marijuana. 

On March 1, 1977, the District Court held a hearing on a 

motion to suppress. On March 24, an order suppressing the marijuana found in the search was issued. In its conclusions of law, 

the court said: 

"I. * * * that the search of the defendant's 

person upon his arrest for a parking ticket was 

an unreasonable search. There is no justification 

for conducting a search consisting of removing 

articles of clothing and emptying of pockets when 

the defendant is being detained for a mere parking 

ticket; and there was no reason to believe he is 

armed or dangerous, particularly as in the instant 

case when the defendant was merely being placed in 

a holding cell and the bond money was expected, 

and, in fact, arrived momentarily. The constitution prohibits 'unreasonable' searches and not all 

'lawful' searches are 'reasonable'; assuming the 

defendant was lawfully arrested, a reasonable search 

under the circumstances would have extended to no 

more that a simple patdown for weapons. 

"11. The Court further holds that the custodial arrest of the defendant upon a parking meter 

warrant was unlawful because it deprived the defendant due process of law and violated the equal protection clause of the constitution. The defendant 

was deprived of due process because, conceivably, 

he did not park the automobile which received the 

ticket, nor receive the ticket, nor receive notice 

the ticket was outstanding, yet was subjected to 

being jailed, a search of his person, and possibility 

of spending the night in jail. A summons would obviously work as well in ninety-nine percent of the 

cases. " 

It is from this order of March 24, 1977, suppressing the evidence 

that the state appeals. 

The state contends that United States v. Robinson, (1973), 

414 U.S. 218, 94 S.Ct. 467, 38 L ed 2d 427 and Gustafson v. Florida, 

(1973), 414 U.S. 260, 94 S.Ct. 488, 38 L ed 2d 456, are controlling 

in this case. The search of the defendant's person was justified 

as a search incident to a lawful custodial arrest for a traffic 

violation. The United States Supreme Court in Robinson, affirmed 

in Gustafson, held: 
"* * * The authority to search the person incident to a lawful custodial arrest, while based on 

the need to disarm and to discover evidence, does 

not depend on what a court may later decide was 

the probability in a particular arrest situation 

that weapons or evidence would in fact be found 

upon the person of the suspect. * * * It is the 

fact of the lawful arrest which establishes the 

authority to search, and we hold that in the case 

of a lawful custodial arrest, a full search of 

the person is not only an exception to the warrant 

requirement of the Fourth Amendment, but is also 

a 'reasonable' search under that Amendment." 

United States v. Robinson, 38 L ed 2d 440. 

The opinion in Robinson further stated that the right to search 

is not limited if the person was arrested for a traffic offense. 

This Court in State ex rel. Kotwicki v. District Court, 

(1975), 166 Mont. 335, 532 P.2d 694, upheld the search of a person 

who was stopped on a speeding violation. He was unable to post a 

$15 appearance bond and was placed under custodial arrest. This 

Court held that where the custodial arrest was valid, the search 

of his person was also valid and cited Robinson and Gustafson as 

authority, but these cases are not controlling in the instant case. 

Kotwicki is clearly distinguishable. There the defendant 

was an out-of-state resident arrested for a moving traffic violation by the state patrol in the nighttime, booked into the county 

jail and unable to raise any bail. Here, defendant is a local 

resident, arrestedat3 a.m. for failure to pay an overdue one 

dollar parking ticket. Defendant's friend advised the officer 

he would be at the police station with the bail money within 20 

minutes. Defendant here was never "booked" as was the defendant 

in Kotwicki, but merely placed in a holding cell. 

The evidence at the suppression hearing did not disclose 

any basis for a mandatory custodial arrest of the defendant. 

Here, the officer had knowledge the bail was on its way to the 

police station via the defendant's friend. The friend did arrive 

with the bail money, well within the reasonable time defendant 

was entitled to, to attempt to raise bail. The jail officials 
had no reasonable justification for placing him in a holding cell 

and subjecting him to a custodial search. The only excuse given 

was that it was standard procedure at the jail. It was explained 

that at that time in the morning there was no jailer and the arresting officer had to get back on patrol. Lack of manpower and 

standard procedure cannot eliminate the individual's constitutional right to be free from unreasonable search and seizure. 

Defendant's second issue on appeal becomes academic due 

to this Court's holding on the first issue. However, because of 

the wide use of this traffic ordinance throughout the state we 

feel it necessary to comment on its constitutionality. 

The Livingston city code, Section 28-264, provides: 

"(a) Every person in whose name a vehicle is 

registered (licensed) shall be responsible for any 

parking of such vehicle in violation of this division. 

"(b) It shall be no defense to such charge 

that such vehicle was illegally parked by another, 

unless it is shown that at such time the vehicle 

was being used without the consent of the registered (licensed) owner thereof." 

The Livingston ordinance is identical to a Seattle, Washington, ordinance which was declared unconstitutional in part by the 

Washington Supreme Court in City of Seattle v. Stone, (1966), 67 

We cite City of Seattle v. Stone, supra, with approval and 

adopt the following rationale: 

"The second sentence of the Seattle ordinance 

[section 28-264(b), Livingston ordinance] preceding 

the proviso is patently incompatible with the concept of due process. It purports to make a defendant responsible even though he in fact might not 

have been responsible for the parking violation. 

"For the reasons indicated, we are forced to 

strike down as unconstitutional that portion of the 

second sentence of 521.66.180 [Livingston ordinance 

subsection (b)] preceding the proviso, for it deprives an automobile owner of due process of law. 
"We then interpret the remainder of 

821.66.180 [Livingston ordinance 28-264, subsection (a)], as do the authorities heretofore 

cited, to establish only a prima facie responsibility upon the registered owner, which he has 

the risht to rebut. if he can. This in nowise 

interripts the city's exercise of its police 

power or its right and power to enforce its 

 arki ins ordinances." (Em~hasis added.) 410 P.2d 

k85. i~racketed materiai added. 1 

As pointed out, the owner is still prima facie liable 

under the ordinance and subject to arrest and prosecution. However, 

he cannot be deprived of his defense that some one else he permitted to use his car was the actual violator. 

The order and judgment of the District Court are affirmed. 

We Concur: 

s~d$@wkdQ $hie£ justice