No. 84-67 INTHE SUPREME COURT OF THE STATEOF MONTANA

STATE OF MONTANA, Plaintiff and Appellant,

-vsROBERTO SIERRA, Defendantand Respondent.

APPEAL FROM: District Court of the Sixth Judicial District, In and for the County of Park, The Honorable Byron Robb, Judgepresiding.

COUNSELOF RECORD:

ForAppellant: Mike Greely,Attorney General, Helena,Montana Mark Murphy,Asst. Atty. General,Helena Wm. Nels Swandal,CountyAttorney, Livinqston, Montana For Respondent: Karl Knuchel, Public Defender, Livingston,Montana

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Submitted on Briefs: June 14, 1984 Decided: January 

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Filed: 

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ClerkMr. Justice Daniel J. Shea delivered the Opinion of the Court. The State of Montana appeals from an order of the Park County District Court suppressingpart of the evidence seized from defendant after he and another friend had been arrested and taken to the police station to be detained until it could he determined whether theywere legally in the United States. The State seized some marijuana from defendant as he was emptyinghis pockets at the police stationpursuant to police orders,an6 the court held that this evidence was admissible. However,the State also had ordered the defendant to open his suitcase, a.ndwhen he did the State discovered a large quantity of marijuana in the suitcase. Defendantmoved to suppress this evidence, a felony amount, and the trial court suppressed this evidence, holding that the seizure violated defendant's right to privacy guaranteed by Art. 11, 5 10 of theMontana Constitution. We affirm. The Sta.te,relying primarily on decisions of the United States SupremeCourt, argues that the seizure of the evidence does not violate defendant's right to privacy under Art. 11, § 10 of the Montana Constitution. The defendant argues that the pre-incarceration inventory of the contents of the a-rrestee'ssuitcase does violateArt. TI, §§ 10 and 11 of the Montana Constitution. The defendant, Roberto Sierra, is a Cubam who speaks no English, but is legally in the United States and requires no so-called "green card." On the day in question he carried identification with him which included a form 1-91 and a soci.alsecurity card which bore his name. His companion, 7ose Juarez, a Mexican, speaks only limited English butcarried no identification showing his status and whether he is legally intheUnited States. During theearlyevening hours of August 7, 1983, defendant and his companion were walking along Park Street in Livingston and were observed by deputy sheriff Dennis Frawley. The deputy thought the appearance of these two men might mean they were illegal aliens, sohe stopped them and questioned Jose Juarez. Juarez, speaking only limited English, could produce no identification authorizing him tobe intheUnited States. Deputy Frawley took Juarez intocustody and then approached thedefendant and asked for identification. Although defendant could speak no English, he did produce photocopies of a form 1-91 and a social securitycard which bore hisname. The deputy arresteddefendant alsoand took them both to the Park County Law Enforcement Center where theywerebooked and placed injail. During the booking procedure Frawley and three other deputiesordered defendant toempty hispockets. When defendant did so he removed a small amount of a substance whjch looked like and later tested to be marijuana. Immediately afterwards, a suitcase carried by Sierra atthe time of his arrest, was opened and its contents were examined. Approximately seven pounds of marijuana were found inthe suitcase. Atno time before the police discoverec? the contraband did they attempttosecure an interpreter sothatdefendant could be advised of his rights or asked what he wanted done with the suitcaseand itscontents. The trial court held that the marijuana seized from defendant's pockets was admjssible. But astothemarijuana seized from defendant's suitcase the trial court ruled that its discoverywas not incident.toa lawful arrest and sowasimproper. The court, in explaining his ruling, concluded that defendant had a more expansive right to privacy than that guaranteed to himby the FourthAmendment,and therefore the search of his suitcase was unconstitutional. We hold that less intrusive means must be used in these circumstances, that theywere not used here, and that in opening defendant's suitcasewithout a searchwarrant, thepolice violated his privacy rights. In the case of State v. Sawyer (19?7), 174 Mont. 512, 571 P.2d 1131, Justice Harrison, speaking for an unanimous Court, expressly held that an inventory search is "a substantial infringement upon individual privacy" and therefore it is subject to the right ofprivacy provision (Art. TI, § lo), as well as the search and seizure provision (Art. 11, 5 ll), of the Montana Constitution, 174 Mont. at 517, 571 P.2d at 1133-1134. This Court has never held that the right of privacy provision makes it any more difficult to obtain a search warrant than was the case before, but we have of

course recognized that search and seizure provisions do not undo the right to privacv provisions of our Constitution. The State relies primarily on the United States Supreme Court decision of Illinoisv. Lafayette (1983), 

### -U.S. I 103 S.Ct. 2605, 77 L.Ed.2d 65, where an inventory search after a lawful arrest for disturbing the peace was upheld on several grounds as promoting legitimate governmental interests that override the interests of the individual. Those legitimate interestswere: first, safeguarding the arrested person's property; second, protecting law enforcement from false claims of loss or theft; third,d-angerfrom contents of uninventoried packages; and fourth, to assist in identifying arrested persons.LZC re& Thoughwe dt a?que- that these are legitimate governmental interests, we cannot agree that their existence may permit an inventory search in all circumsta.nces. In State 

### - v. Sawyer, supra,we expressly recognized that in many of these circumstances the police should use the least intrusive means possible for cond.uctingan inventory search. In fact, in applying our own Constitution, we expressly rejected the United States Supreme Court's holding in South Dakota IT. Opperman (1976), 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000, where, in upholding the inventory search of an abandoned automobile, the United States Supreme Court found no need to consider the existence of less intrusive means of protecting the police and the property in their custody. Locking the door and impounding it 

### in safe storage under guardwas not even considered as a less intrusivemeans. Rut in State

### 5Sawyer, supra,we expressly rejected this holding in favor of a less intrusive means interpretation based on

our own Constitution. As long aswe guarantee the minimum rights guaranteed by the United StatesConstitution,we are not compelled tomarch lock-step with pronouncements of the United States Supreme Court if our own constitutional provisions call for more individual rights protection than that guaranteed by the IJnited States Constitution. And in State Saywer, in rejecting the rationale of South Dakota 

### 5merman, supra, we have given a perfect example of ourunwillingness tomarch lock-stepwith the latest pronouncementsof theUnited States SupremeCourtwhere it is not required as a matter of federa.1 constitutional law. A less-intrusive means rule is by no means unworkable. In adopting a less-intrusive means test for inventorysearches, theAlaska.Supreme Court in Reeves

### v. State (Alaska 1979), 599 P.2d 727,held tha-tthe search of an opaque balloon found on the arrestee's person by a correctional officer exceeded the constitutionally permissible scope of a. pre-incarceration inventory search. The court noted a.swe have done before, that their state constitutional guarantee against unreasonable searches and seizures was broader in scope than the Fourth Amendment to the United States Constitution. This broadened scope was recognized to be due at least inpart toArt. I,S 22 of the Alaska Constitution, the right to privacy provision. In summarizing the opinion of the Court, Justice Rabinowitz directed the statements at an inventory search after an arrest: 

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# . a pre-incarceration inventory sea-rchis an exception to the warrant requirement, where it is conducted to further the governmental purposes recognized above and is limited to the extent necessary to respect Alaska's consti.tutiona1guarantee against unreasonable searches and seizures. The search of an arrestee's person should be no more intensive tha-nreasonably necessary toprevent the entry of weapons, illegal drugs, and other contraband or other potentially dangerous items into the jail. Any items taken from the arrestee's possession in this search may not be further searched or opened except pursuant to a search warrant or another recognized exception to the warrant requirement applicable i-nthe circumstances. Finally, the inventoryconducted shall consist of a cataloging of the arrestee's property thus seized and may 

## - not,without a specific request from the arrztee, extend 

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### - a sqarch and inventory of the contents of any object, closed or sealed container, luggage,briefcase or We believe that a pre-incarceration search thus limited both adequatgly protects the reasonable interestsof the state and appropriately respects an arrestee's reasonable expectation of privacy. " (599 P.2d at 737-738. Emphasis added.) We aqree with this holding and a.b@ its rationale. Here the police made no effort to secure an interpreter to ensure that defendantwas properly advised ofhis rights and questioned regarding any special handling his propertymight require. An interpreterwas readily available to the police in the person of the wife of one of the depu

### mct she ties, -whe spoke fluent Spanish. These alternatives were readily available to the police and because they did not pursue them is no ground to now justify their search of the defend-ant 

## 's suitcase. We have here a warrantless search of a defendant's suitcase. He was in custody because the police officer was not satisfied tha.t he had produced proper identification, even though there was no duty of this person to produce m.'v$entification in order to avoid arrest. At the time of his arresthewas doing nothing illegal, but to the police officer he looked strange, that is, like an alien. It so happened thepolice officerwaswrong. Defendantwas legally in theUnited States. Here thedefendant,upon being ordered to empty his pockets, did so, and in doing so, revealed a sma1.1 amount of marijuana. Perhaps this would constitute probable cause to obtain a searchwarrant for the contents of the defendant's suitcase,perhaps not, but the fact is that the police did not even make an effort to obtain a search warrant. Instead,based on their custom to inventory everything in a defendant's possession when taken into custody, they opened the suitcaseand found themarijuana. As wehave already held, less intrusive means were avaj.lable to the police to handle the suitcase and its possible contents. The order suppressing the evidence is affirmed.We concur:

CMief Justice

JusticesKr. Justice Fred J. Weber dissents as follows: I dissent from the opinion of the majority which holds that the inventory search of defendant's suitcase violated his privacy rights and rendered the evidence seized inadmissible. The District Court expressly concluded. that there was probable ca.useto arrest defendant and take him into custody. This conclusion is not disputed on appeal. The United States Supreme Court has held that an inventory search after avalid arrest is a reasonable search which does not require awarrant. Illinoisv. Lafayette (U.S. June 20, 1983), slip op. at p. 3. The Court emphasized that the justification for such searches does not rest upon probable cause, but rather is an incidental administrative step following arrest and preceding incarceration. Slip op. at pp.

The Court described the justification for the inventory search: "At the stationhouse, it is entirely proper for police to remove and list or inventory property found on the person or in the possession of an arrested person who is to be jailed. A range of governmental interests support an inventory process. It is not unheard of for persons employed in police activities to steal property taken from arrested persons; similarly, arrested persons have been known to make false claims regardingwhat was taken from their possession at the stationhouse. A standardized procedure for making a list or inventory as soon as reasonable after reaching the stationhouse not only deters false claims but also inhibits theft or careless handling of articles taken from the arrested person. Arrested persons have also been known to injure themselves--or others--with belts, knives, drugs or other items on their person while being detained. Dangerous instrumentalities--such as razor blades, bombs, or weapons--can be concealed in innocent-looking articles taken from the arrestee's possession. The bare recital of these mundane realities justifies reasonable measures by police to limit these risks--eitherwhile the items are inpolice possession or at the time they are returned to the arrestee upon his release. Examining all the items removed from the arrestee's person or possessionand listing or inventorying them is an entirely reasonable administrativeprocedure. It is immaterial whether the police actually fear any particular package or container; the need to protect against such risks arises independentof aparticular officer's subjective concerns. See United States

### v. Robinson, supra, 414U.S., at 235." Slip op. atp. 6. I find the reasoning of Lafayette to be compelling and would follow the holding of the Supreme Court in that case. I would reverse the District Court's order suppressing evidence and remand the cause for furtherproceedings.

Mr. Chief Justice Frank I. Haswell and Mr. Justice L.C. Gul-brandsonconcur with Mr. Justice Fred J. Weber's dissent.

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