No. 86-347 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

. .

1987 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsARTHUR JOSEPH LAMERE, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

The Honorable Chan Ettien, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Paulson, Asst. Atty. General, Helena 

David G. Rice, County Attorney, Havre, Montana 

For Respondent: 

Mark Suagee, Havre, Montana 

Submitted on Rriefs: Nov. 25, 1986 

Decided: April 7, 1987 

File 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal by the State of Montana from an order 

issued by the Twelfth Judicial District Court in and for Hill 

County granting defendant's motion to suppress evidence 

seized by the Havre police during an inventory search of 

defendant's person prior to his incarceration. 

We reverse the order of the District Court. 

The sole issue on appeal is whether the District Court 

erred in granting defendant's motion to suppress evidence. 

Both parties stipulated to the following facts from 

which the District Court reached its decision: 

Defendant Lamere was lawfully arrested 

for driving under the influence, in 

violation of 5 61-8-401, MCA, on 

September 2, 1985 [correction to 

September 7, 19851 at approximately 2:00 

a.m. in Havre, Hill County, Montana, by 

Laurel Zorn of the Havre Police 

Department. 

At the station following the arrest, 

Officer Zorn removed two items of 

personal property from the defendant as 

part of an inventory search at the police 

station. Both of these items were 

opened, searched and evidence seized 

therefrom. 

The first item opened was a leather pouch 

which had been removed from the inside 

pocket of defendant's jacket which he was 

wearing at the time. Police zipped open 

this pouch, searched it and seized the 

contents. The contents included alleged 

drug paraphernalia and a white powder in 

the vial which field tested positive as 

cocaine. 

The second item taken from the defendant 

was a bank money bag which was removed 

from the defendant's pants leg in a pat 
down search following seizure of the 

alleged cocaine. The police zipped open 

this bag and searched it producing two 

small bags of alleged marijuana. 

Both of these searches and seizures were 

effected without a search warrant 

although there was opportunity to make 

application for one. Both searches were 

done as part of the standard inventory 

procedure used by the Havre Police 

Department. Defendant did not consent to 

either search. 

In addition to these facts we add that an information 

was filed charging defendant with two counts of criminal 

possession of dangerous drugs and one count of criminal 

possession of drug paraphernalia. Defendant filed a motion 

to suppress all items seized by the police during the search. 

The District Court granted defendant's motion to suppress and 

the State now appeals from this decision to suppress. 

The District Court concluded that the removal of 

defendant's two containers and the opening and searching of 

them without the defendant's consent after his arrest but 

prior to his incarceration violated his right to be free from 

unreasonable seach and seizure under the United States and 

Montana Constitutions. The District Court erroneously found 

that the facts of the case were governed by the reasoning 

stated in State v. Sierra (Mont. 1985), 692 P.2d 1273, 42 

St.Rep. 106. 

In Sierra, the police removed a closed container of 

property--a small suitcase--from the defendant as part of a 

routine inventory search prior to incarceration. They opened 

and searched it without a warrant. The non-warrant search of 

the small, closed container for inventory purposes was found 

to be in violation of defendant's rights. 
Appellant State requests this Court to reconsider its 

holding in State v. Sierra in light of decisions in other 

jurisdictions to follow the United States Supreme Court's 

decision in Illinois v. Lafayette (1983), 462 U.S. 640, 103 

S.Ct. 2605, 77 L.Ed.2d 65. See People v. Decker (1986), 222 

Cal.Rptr. 689; Henderson v. State (Ark. 1985), 699 S.W.2d 

419; State v. Cole (Utah 1983), 674 P.2d 119. 

While not cited by either brief due to its recent 

release, the decision by the United States Supreme Court, 

Colorado v. Bertine, No. 85-889, January 14, 1987, reinforces 

Illinois v. Lafayette, supra. In Bertine, police officers in 

Boulder, Colorado arrested the petitioner, Steven Lee 

Bertine, for driving while under the influence of alcohol. 

After he was taken into custody, and before the arrival of a 

tow truck to take Bertine's van to an impoundment lot, 

another officer while acting in accordance with local police 

procedure, inventoried the van's contents. The officer 

opened a closed backpack in which he found controlled 

substances, cocaine paraphernalia, and a large amount of 

cash. Prior to Bertine's trial on charges that included 

unlawful possession of cocaine with intent to dispense, 

sell, and distribute, a state trial court granted Bertine's 

motion to suppress the evidence found during the inventory 

search. The Colorado trial court ruled that the search did 

not violate Bertine's rights under the Fourth Amendment, but 

held the search violated the Colorado Constitution. The 

Colorado Supreme Court affirmed, but premised its ruling on 

the United States Constitution. The United States Supreme 

Court reversed, holding that the Fourth Amendment did not 

prevent the state from proving criminal charges with evidence 

discovered during the inventory of Bertine's van. 

The State argues, and we agree, that City of Helena v. 

Lamping (Mont. 1986), 719 P.2d 1245, 43 St.Rep. 901, should 
have governed the District Court's decision and not State v. 

Sierra, supra. In Lamping the defendant was lawfully 

arrested for unrelated offenses and taken to the county jail 

to be jailed. Prior to incarceration the jailer inventoried 

Lamping's personal property. While searching him the jailer 

took an open cigarette package out of Lamping's shirt pocket 

and discovered a hand rolled marijuana cigarette in it. 

Lamping was charged with possession of dangerous drugs. In 

Lamping, we pointed out that dangerous instrumentalities can 

be concealed in innocent looking articles taken from an 

arrestee's possession and the State has a compelling interest 

in protecting prisoners from potential dangers and must also 

protect the defendant and the officer by accounting for any 

money the person has. We concluded that the inventory search 

in Lamping was not unreasonable for failure to secure a 

search warrant. 

We conclude that the theory of Lamping is applicable 

here. We further point out that in Bertine, the Court 

analyzed the inventory procedure in a manner which we find 

directly applicable to the present case: 

In the present case, as in Opperman and 

Lafayette, there was no showing that the 

police, who were following standardized 

procedures, acted in bad faith or for the 

sole purpose of investigation. In 

addition, the governmental interests 

justifying the inventory searches in 

Opperman and Lafayette are nearly the 

same as those which obtain here. In each 

case, the police were potentially 

responsible for the property taken into 

their custody. By securing the property, 

the police protected the property from 

unauthorized interference. Knowledge of 

the precise nature of the property helped 

guard against claims of theft, vandalism, 

or negligence. Such knowledge also 

helped to avert any danger to police or 
others that may have been posed by the 

property. 

Bertine, supra, at 5. 

We adopt the Bertine rationale for inventory search and 

conclude that in the present case, the order suppressing 

evidence should be reversed and the case returned to the 

We concur: A'-- 

Justices 
Mr. Justice William E. Hunt, Sr., dissenting: 

I strongly dissent from the majority opinion and argue 

two separate authorities should control this matter. First I 

argue that State v. Sierra (Mont. 1985), 42 St.Rep. 106, 692 

P.2d 1273 should be determinative of this case. The majority 

opinion overturns Sierra by its blanket adoption of City of 

Helena v. Lamping (Mont. 1986), 43 St.Rep. 901, 719 P.2d 

1245, and Illinois v. Lafayette (l.983), 462 U.S. 640, 77 

L.Ed.2d 65, 103 S.Ct. 2605 and the United State Supreme 

Court decision of Colorado v. Bertine, U.S. Slip Opinion 11, 

Jan. 14, 1987 to the facts of this case, and in so doing 

ignores the mandates of our Montana Constitution's righ-t of 

privacy provision. 

Lamping appears to rely on a 1981 Supreme Court case 

U.S. v. Monclavo-Cruz (9th Cir. 1981), 662 F.2d 1285 for its 

authority. The majority erroneously adopts Lamping as 

controlling law in this case. The contradictions within the 

Lamping opinion and now this majority opinion are glaring and 

problematic. It is unclear precisely what was upheld in 

Lamping and it is unclear in this majority opinion what 

aspects of Lampinq are being reaffirmed here. The rationale 

in the Monclavo-Cruz decision upon which Lampinq relied 

regarding inventory searches was that searches of the person 

could be distinguished from searches of possessions within 

the immediate control of the arrestee-the later having a 

greater expectation of privacy. The State in the present 

case argues that the Supreme Court case, Lafayette, removed 

this distinction by now allowing a warrantless inventory 

search of any container or article in an arresteels 

possession if it is done as a routine administrative 

procedure incident to incarceration. The majority agree with 

the State's claim that Lamping confirmed this Court's 
agreement with Lafayette which, in my opinion, Lamping does 

not do. Lamping utilizes the Monclavo-Cruz distinctions 

which Lafayette had already done away with. Lamping states: 

We concur with this distinction drawn between 

searches of the person and searches of possessions 

within an arrestee's immediate control . . . 43 

St.Rep. at 903, 719 P.2d at 1247. 

In reality this distinction in Monclavo-Cruz did not even go 

to the discussion of inventory search issues but addressed 

searches incident to an arrest. Lamping also adds another 

distinction. The defendant's cigarette pack in his shirt was 

open and the court held: 

. . . 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 . . . Id.. at 904, 1248. 

Thus Lamping appears to premise its decision on what the 

U.S. Supreme Court indicated is an out-moded federal 

distinction between possessions on and off the person as well 

as whether a container is open or closed. These premises 

contradict the Lafayette and Bertine cases which the majority 

now rely on. 

Regardless of the convoluted reasoning relied on in 

citing the Lamping decision, the majority is in error here in 

a more fundamental way. 

It is my opinion that the framers of our Montana 

Constitution provided a more expansive right of privacy than 

either Lafayette or Bertine indicate is provided for in the 

penumbras of our federal Constitution. Sierra was decided 

by this Court on this very issue and bears out this position. 

-- See also State v. Sawyer (19771, 174 Mont. 512, 571 P.2d 

The appellant State requests this Court to reconsider 

its holding in Sierra in light of decisions in other 

jurisd.ictions to follow Lafayette. That is not necessary 
since the Sierra court did fully consider the inventory 

search issue raised there as well as similar issues recently 

raised in Bertine. The Sierra court concluded the 

non-warrant search of the arrestee's small closed suitcase 

not on defendant's person conducted for inventory purposes 

prior to his incarceration was a violation of his right of 

privacy guaranteed by Art. 11, Sections 10 and 11 of the 

Montana Constitution since, under those circumstances, less 

intrusive means were available to accomplish the task of 

inventorying the arrestee's belongings. That search was 

therefore held to be unreasonable. 

The right to privacy provision of the Montana 

Constitution affords an individual greater protection than 

its federal counterpart as interpreted by recent federal case 

law. As such, ". . . we are not compelled to march lock step 

with pronouncements of the United States Supreme Court if our 

own constitutional provisions call for more individual rights 

protections than that guaranteed by the U.S. Constitution." 

Sierra at 1276. 

Again we quote the Sierra court's adoption of the 

holding in Reeves v. State (Alaska 1979), 599 P.2d 727, and 

find it applicable to this case: 

The search of an arrestee's person should be no 

more intensive than reasonably necessary to prevent 

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 in the 

circumstances. Finally, the inventory conducted 

shall consist of a cataloging of the arrestee's 

property thus seized and may not, without a 

specific request -- from tK arrestee, extend to a 

search and inventory -- of the contents - of any object; 

closed or sealed container, -, briefcase, or 

package. We believe that a pre--ation 

search thus limited both adequately protects the 

reasonable interests of the state and appropriately 
respects an arrestee's reasonable expectation of 

privacy. (Emphasis added. ) 

We have also dealt with this issue in State v. Sawyer 

(1977), 174 Mont. 512, 571 P.2d 1131. There we held that the 

U.S. Fourth Amendment issue need not be reached in a case 

involving an inventory search of an automobile without a 

warrant and seizure of amphetamine pills from under the seat 

of the automobile. This Court found the situation was 

governed by the Montana Constitution's right of privacy 

provision. 

The following quote from that case is equally applicable 

here : 

We need not consider the Fourth Amendment issue 

because we view the Montana Constitution to afford 

- an individual greater protection in this instance 

than is found under the Fourth Amendment in 

Opperman . 

The 1972 Montana Constitution, Art. 11, Sections 10 

and 11, provided: 

Section 10. Right of privacy. The right of 

individual privacy is essential to the well-being 

of a free society and shall not be infringed 

without the showing of a compelling state interest. 

Section 11. Searches and seizures. The people 

shall be secure in their persons, papers, homes and 

effects from unreasonable searches and seizures. 

No warrant to search any place, or seize any person 

or thing shall issue without describing the place 

to be searched or the person or thing to be seized, 

or without probable cause, supported by oath or 

affirmation reduced to writing. 

The importance of the right of individual 

privacy to the framers of the Montana Constitution 

is obvious from these provisions. This Court has 

previously noted the significance of the explicit 

guarantee of the right of individual privacy 

contained in Section 10, as a comparable provision 

exists in the United States Constitution. State v. 

Coburn, 165 Mont. 488, 495, 530 P.2d 442 (1974), 
It is also clear that an inventory search such 

as the one considered here is a significant 

invasion of individual privacy, the inventory 

search must meet the "reasonableness" and 

"compelling state interest'' standards of the 

Montana Constitution. . . . (Emphasis added.) 

Id. at 517, 1133-1134. 

In the instant case, the Havre police had a legitimate 

governmental interest in performing an inventory search of 

defendant prior to incarceration. No evidence was presented 

that the police station's storage facility was not secure or 

could not reasonably be made secure, nor that the two 

containers could not have been well protected from theft or 

destruction without searching them. Further the police had 

no reason to believe the containers held weapons or 

explosives so a search of their contents was not justified on 

that count. 

Because of this State's more expansive right of privacy 

provision as discussed in Sierra and in Sawyer, the existence 

of these legitimate governmental interests does not permit an 

inventory search in these circumstances since the police 

could have used less intrusive means to inventory the 

defendant's belongings. 

The second issue is equally determinative of this case. 

Unlike Lamping, there were no open containers at issue. 

The defendant was carrying two closed, zippered containers on 

his person. The police found the first container on the 

inside of defendant's jacket pocket. This container should 

not have been searched without defendant's consent but it 

was. It could easily have been sealed and placed in storage 

or treated with less intrusive means unless other 

circumstances were shown establishing probable cause to do an 

investigatory search of the container. 

The second container was discovered after the first one 

had been opened and the contents observed. This is the 
precise situation which suggests that the inventory procedure 

was a "pretext concealing an investigatory police motive" as 

forbidden in South Dakota v. Opperman (1976), 428 U.S. 364, 

96 S.Ct. 3092 and other cases. The existence of such a 

possible pretext drastically changes the nature of this 

search from a warrantless routine inventory search into an 

investigatory search which mandates a warrant, the strictest 

Fourth Amendment protections of a defendant in this 

situation. 

The police were not foreclosed from discovering the 

contents of these containers if they could establish probable 

cause to search the containers. After the discovery of the 

money bag in defendant's pants, an arguably suspicious 

situation, application for a search warrant could have been 

made by the police. No attempt was made to obtain a warrant 

at any stage in these proceedings. 

This possible pretext concealing an investigatory police 

motive is an elemental prohibition and an ever constant 

threat to any defendant's Fourth Amendment rights. Even the 

recent Bertine case which was relied on by the majority 

upheld the particular inventory search in part because "There 

was no showing . . . that the police, who were following 

standardized caretaking procedures acted in bad faith or for 

the sole purpose of investigation or on the suspicion of 

evidence of criminal activity." U.S. Slip Opinion 11, Jan. 

14, 1987. Therefore, on this issue also the majority erred 

by not upholding the lower court's 

I concur in the foregoing dissent: n 

42 &!.a&- 

stice John 6. Sheehy