No. 86-347
INTHE 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 forthe 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

FileMr. Justice JohnConway Harrison delivered the Opinion of the Court.

This is an appeal by the State ofMontana from an order issuedby the Twelfth JudicialDistrictCourt in and forHill County granting defendant's motion to suppress evidence seized by the Havre police during an inventory search of defendant'sperson prior tohis incarceration. We reverse the order of theDistrictCourt. 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 DistrictCourt reached itsdecision: 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 thepolice station. Both of these items were opened, searched and evidence seized therefrom. The first item openedwas a leather pouch which had been removed from the inside pocket ofdefendant'sjacket which hewas 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 patdown 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 searcheswere done as part of the standard inventory procedure used by the Havre Police Department. Defendantdid 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 seizedby thepolice during the search. The DistrictCourt granted defendant'smotion to suppressand the Statenowappeals 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 incarcerationviolated his right tobe 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 searchprior to incarceration. They opened and searched itwithout awarrant. Thenon-warrant searchof the small, closed container for inventory purposeswas found to be in violation ofdefendant'srights.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; Statev. Cole (Utah1983), 674P.2d 119. While not cited by either brief due to its recent release, the decision by the United States Supreme Court, Coloradov. Bertine,No. 85-889, January 14, 1987, reinforces Illinoisv. Lafayette,supra. InBertine,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 FourthAmendment, 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 fromproving criminal charges with evidence discovered during the inventory of Bertine'svan. The State argues, and we agree, that City of Helena v. Lamping (Mont. 1986), 719 P.2d 1245, 43 St.Rep. 901, shouldhave governed the DistrictCourt's decision and not Statev. 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 searchinghim 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 instrumentalitiescan be concealed in innocent looking articles taken from an arrestee's possessionand the Statehas a compelling interest in protecting prisoners from potential dangers and must also protect the defendant and the officer by accounting for any money theperson has. We concluded that the inventory search in Lamping was not unreasonable for failure to secure a searchwarrant. 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 thepresent case: In the present case, as in Opperman and Lafayette, there was no showing that the police, who were following standardized procedures,acted inbad 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 thosewhich obtainhere. Ineach 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 theprecise nature of theproperty helped guard against claimsof theft,vandalism, or negligence. Such knowledge also helped to avert any danger to police orothers that may have been posed by the property. Bertine, supra, at5. 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'--

JusticesMr. Justice William E. Hunt,Sr., dissenting:

I strongly dissent from the majority opinion and argue two separate authorities should controlthismatter. First I argue that State v. Sierra (Mont. 1985), 42 St.Rep. 106, 692 P.2d 1273 shouldbe determinativeof this case. Themajority 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 Coloradov. 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-tof privacyprovision. Lamping appears to rely on a 1981 Supreme Court case U.S. v. Monclavo-Cruz (9thCir. 1981), 662F.2d 1285 for its authority. The majority erroneously adopts Lamping as controlling law in this case. The contradictionswithin the Lampingopinion and now thismajority 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 reaffirmedhere. The rationale in the Monclavo-Cruz decision upon which Lampinq relied regarding inventory searcheswas that searchesof 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. Themajority agreewith the State's claim that Lamping confirmed this Court'sagreement 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 ofpossessions within an arrestee's immediate control


# .

# . . 43 St.Rep. at 903, 719 P.2d at 1247. In reality this distinction inMonclavo-Cruz did not even go to the discussion of inventory search issues but addressed searches incident to an arrest. Lamping also adds another distinction. Thedefendant's cigarettepack inhis shirtwas open and the courtheld:



# .

# ..when a container is open, the intrusion is justified to protect the other prisoners fromharm. The contents of: an unsecured package should be inventoried separately

# . .. Id.. at 904, 1248.
ThusLamping appears topremise its decision onwhat the U.S. Supreme Court indicated is an out-moded federal distinction between possessions on and off theperson as well
as whether a container is open or closed. These premises contradict theLafayette and Bertine cases which themajority
now rely on. Regardless of the convoluted reasoning relied on in citing the Lampingdecision,the majority is in error here in

amore fundamentalway. It is my opinion that the framers of our Montana Constitution provided a more expansive right ofprivacy than either Lafayette or Bertine indicate is provided for in the penumbras of our federal Constitution. Sierra was decided by this Courton thisvery issue and bears out thisposition. 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.ictionsto follow Lafayette. That is not necessarysince the Sierra court did fully consider the inventory search issue raised there aswell 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 thereforeheld to be unreasonable. The right to privacy provision of the Montana Constitution affords an individual greater protection than its federal counterpart as interpretedby recent federal case law. As such,

# ".

..we are not compelled tomarch lock step with pronouncements of theUnited States SupremeCourt if our
own constitutionalprovisions call formore 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 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 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 appropriatelyrespects an arrestee's reasonable expectation of privacy. (Emphasisadded.)

We have also dealt with this issue in State 

### v. Sawyer (1977),174Mont. 512, 571 P.2d 1131. Thereweheld 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 fromunder 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 showingof a compelling state interest. Section 11. Searches and seizures. The people shallbe secure in theirpersons, papers,homes and effects from unreasonable searches and seizures. No warrant to search anyplace,or seize anyperson or thing shall issue without describing the place to be searched or theperson or thing tobe seized, or without probable cause, supported by oath or affirmation reduced towriting.
The importance of the right of individual privacy to the framers of theMontana 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 theUnited States Constitution. Statev. 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.

# .. . (Emphasisadded.) 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 evidencewas presented that the police station's storage facilitywas 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 searchof their contentswas not justified on that count. Because of this State's more expansive right ofprivacy provision asdiscussed 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'sbelongings. The second issue is equally determinative of this case. Unlike Lamping, there were no open containers at issue. Thedefendantwas carrying two closed, zippered containerson 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 circumstanceswere shown establishing probable cause to do an investigatory search of the container. The second containerwas discovered after the first one had been opened and the contents observed. This is theprecise 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 searchwhich 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 establishprobable
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 thepolice. No attemptwasmade to obtain awarrant at any stage in theseproceedings. Thispossible 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 theparticular inventory search inpart because "There
was no showing

# . .

# . that the police, who were following standardized caretaking procedures acted inbad 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 foregoingdissent: 

# n 

# 42&!.a&- sticeJohn

### 6.Sheehy