No. 84-67 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsROBERTO SIERRA, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Sixth Judicial District, 

In and for the County of Park, 

The Honorable Byron Robb, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Mike Greely, Attorney General, Helena, Montana 

Mark Murphy, Asst. Atty. General, Helena 

Wm. Nels Swandal, County Attorney, Livinqston, 

Montana 

For Respondent : 

Karl Knuchel, Public Defender, Livingston, Montana - 

Submitted on Briefs: June 14, 1984 

Decided: January 4, 1985 

Filed: JAN 4- ~5 

Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

The State of Montana appeals from an order of the Park 

County District Court suppressing part 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 they were legally in the United States. 

The State seized some marijuana from defendant as he was 

emptying his pockets at the police station pursuant 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.nd when he did the State discovered a large quantity of marijuana in the suitcase. Defendant moved 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 

the Montana Constitution. We affirm. 

The Sta.te, relying primarily on decisions of the United 

States Supreme Court, 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's suitcase does violate Art. 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.al security card which bore his name. His companion, 

7ose Juarez, a Mexican, speaks only limited English but 
carried no identification showing his status and whether he 

is legally in the United States. 

During the early evening 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, so he stopped them and 

questioned Jose Juarez. Juarez, speaking only limited English, could produce no identification authorizing him to be 

in the United States. Deputy Frawley took Juarez into custody and then approached the defendant and asked for identification. Although defendant could speak no English, he did 

produce photocopies of a form 1-91 and a social security card 

which bore his name. The deputy arrested defendant also and 

took them both to the Park County Law Enforcement Center 

where they were booked and placed in jail. 

During the booking procedure Frawley and three other 

deputies ordered defendant to empty his pockets. 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 at the time of his 

arrest, was opened and its contents were examined. Approximately seven pounds of marijuana were found in the suitcase. 

At no time before the police discoverec? the contraband did 

they attempt to secure an interpreter so that defendant could 

be advised of his rights or asked what he wanted done with 

the suitcase and its contents. 

The trial court held that the marijuana seized from 

defendant's pockets was admjssible. But as to the marijuana 

seized from defendant's suitcase the trial court ruled that 

its discovery was not incident. to a lawful arrest and so was 
improper. The court, in explaining his ruling, concluded 

that defendant had a more expansive right to privacy than 

that guaranteed to him by the Fourth Amendment, and therefore 

the search of his suitcase was unconstitutional. We hold 

that less intrusive means must be used in these circumstances, that they were not used here, and that in opening defendant's suitcase without a search warrant, the police 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 of privacy 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 Illinois v. 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 interests were: first, safeguarding the arrested 

person's property; second, protecting law enforcement from 

false claims of loss or theft; third, d-anger from contents of 

uninventoried packages; and fourth, to assist in identifying 

arrested persons. 
LZC re& 

Though we 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.ucting an 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 

guard was not even considered as a less intrusive means. Rut 

in State 5 Sawyer, supra, we expressly rejected this holding 

in favor of a less intrusive means interpretation based on 

our own Constitution. 

As long as we guarantee the minimum rights guaranteed by 

the United States Constitution, 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 protection than that guaranteed by the 

IJnited States Constitution. And in State Saywer, in 

rejecting the rationale of South Dakota 5 merman, supra, 

we have given a perfect example of our unwillingness to march 

lock-step with the latest pronouncements of the United States 

Supreme Court where 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 inventory 
searches, the Alaska. Supreme Court in Reeves v. State (Alaska 

1979), 599 P.2d 727, held tha-t the 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.s we 

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 in part to Art. 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: 

". . . a pre-incarceration inventory sea-rch is 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.tutiona1 guarantee against unreasonable searches and seizures. 

The search of an arrestee's person should be no 

more intensive tha-n 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 i-n 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 

the arrztee, extend - to - 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 interests of 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 defendant was properly advised of 
his rights and questioned regarding any special handling his 

property might require. An interpreter was readily available 

to the police in the person of the wife of one of the depumct 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 arrest he was doing nothing illegal, but to the police 

officer he looked strange, that is, like an alien. It so 

happened the police officer was wrong. Defendant was legally 

in the United States. Here the defendant, 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 search warrant 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 suitcase and found the marijuana. As we have 

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 

Justices 
Kr. 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.use to 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 a valid arrest is a reasonable search which 

does not require a warrant. Illinois v. 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 regarding what 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--either while the items are in police 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 possession 
and listing or inventorying them is an entirely 

reasonable administrative procedure. It is immaterial whether the police actually fear any particular package or container; the need to protect 

against such risks arises independent of a particular officer's subjective concerns. See United 

States v. Robinson, supra, 414 U.S., at 235." Slip 

op. at p. 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 further proceedings. 

Mr. Chief Justice Frank I. Haswell and Mr. Justice L.C. 

Gul-brandson concur with Mr. Justice Fred J. Weber's dissent. 

, -- . Chief Justice