No. 13731 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

THE STATE OF MONTANA, 

Plaintiff and Appellant, 

WADE TURNER SAWYER, 

Defendant and Respondent. 

Appeal from: District Court of the First Judicial District, 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert Yunck argued, Cut Bank, Montana 

For Respondent : 

Hooks and Sherlock, Townsend, Montana 

Jeffrey M. Sherlock argued, Townsend, Montana 

Filed: 

Submitted: September 30, 1977 

Decided: 9C-T lc 1'5- 
Mr. Justice John Conway Harrison delivered the Opinion 

of the Court: 

The state appeals from an order of the district court, 

Broadwater County, suppressing evidence obtained in an inventory search of defendant's automobile. 

Defendant was apprehended August 14, 1976, after Undersheriff Michael Walrod observed him making an illegal turn 

on the streets of Townsend, Montana. Officer Walrod recognized 

defendant and proceeded with Ted Ingersoll, a forest service 

director who was accompanying the officer, to look for defendant. They found defendant's car at a bar parking lot and 

noticed the car had a ten-day registration sticker which had 

expired. The officer found defendant in the bar and informed 

him he was charged with reckless driving and improper vehicle 

registration, and that he would be ticketed at the sheriff's 

office. Officer Walrod rode to the sheriff's office with defendant, in defendant's car. 

At the sheriff' s off ice Officer Walrod informed defendant 

bond would be $125; $100 for reckless driving and $25 for improper vehicle registration. Defendant was unable to meet the 

bond, so he was booked and placed in the county jail. At that 

time officers impounded defendant's automobile and made a 

complete inventory of its contents, discovering pills they 

believed to be amphetamines under the driver's seat. As a 

result, defendant was charged with criminal possession of 

dangerous drugs. 

The district court suppressed the evidence obtained in 

the inventory, based on these conclusions of law: 
"1. That the action of the arresting officer, 

in setting bond without reference to any schedule 

established by a judicial officer, was a violation 

of Section 95-1103, R.C.M. 1947, and resulted in the 

illegal detention of the defendant. 

"2. That the inventory search of defendantt s 

vehicle was unreasonable in light of the Fourth 

Amendment to the U.S. Constitution. 11 

First, we consider the stae's contention the district 

court erred in its finding that bail was improperly set by 

a law enforcement officer. Although it is a constitutional 

and statutory requirement that bail be set by a judicial 

officer, section 95-1103, R.C.M. 1947, allows a peace officer 

to accept bail in limited circumstances: 

"Setting and accepting bail in minor offenses. A 

justice of the peace or police judge may in his 

discretion establish and post a schedule of cash bail 

for offenses not amounting to a felony. A peace 

officer may accept bail in behalf of the justice of 

the peace or police judge in accordance with the 

schedule. * * *" 

The state argues there is no evidence in the record to 

support the conclusion of the district court that bond was 

not accepted "in accordance with the schedule" as required by 

section 95-1103. While the officer admitted he did not 

physically refer to the bond schedule set by the justice of 

the peace, he explained: 

"A. On the Reckless Driving charge 1 used what 

I assumed was correct, the correct bond, what the 

Highway Patrol had been using and what the Judge 

had been using in the past .It 

We decline to hold that a peace officer may not rely on his 

everyday experience and memory in accepting bond in behalf of a 

magistrate. There was no evidence the bond accepted by the 

officer in the instant case was any different from that listed 

in the bond schedule. The district court finding of a violation 

of section 95-1103 is not supported by substantial evidence. 
Second, is the question of the constitutionality of the 

inventory search of defendant' s vehicle. The state freely 

admits the officers had no probable cause or even any suspicion 

that contraband might be found in the vehicle. No search 

warrant was ever obtained. The inventory was conducted, 

according to the officers who testified, solely as a matter of 

standard police procedure for the protection of any valuable 

items which the owner may have left in the automobile. The 

constitutionality of such a search is a question of first impression in Montana. 

It is axiomatic that a search must comport with state and 

federal constitutional law. The reasonableness of an inventory 

search under the Fourth Amendment of the United States Constitution was discussed in the recent United States Supreme Court 

decision South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 

49 L ed 2d 1000 (1976). The Court in Opperman upheld, by a 

5-4 majority, an inventory search of an abandoned automobile 

impounded for multiple overtime parking violations. 

The district court in the instant case factually distinguished 

Opperman and found a violation of the Fourth Amendment. 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, provide: 

"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 no comparable provision exists 

in the United States Constitution. State v. Coburn, 165 Mont. 

It is also clear that an inventory search such as the 

one considered here is a significant invasion of individual 

privacy. One of the officers testified that the standard inventory search is no different in scope than a warranted search 

of an autoraobfle, As'was noted in Mozzetti v. Superior Court, 

"It seems undeniable that a routine police 

inventory of the contents of an automobile involves a substantial invasion into the privacy 

of the vehicle owner. Regardless of professed 

benevolent purposes and euphemistic explication, 

an inventory search involves a thorough exploration by the police into the private property 

of an individual. In that process suitcases, briefcases, sealed packages, purses--anything left open 

or closed within the vehicle--is subjected without 

limitation to the prying eyes of authorities. * * *'I 

While we have recognized the difference, for constitutional 

purpoees, between an automobile and a home or office, State v. 

Spielmann, 163 Mont. 199, 203, 516 P.2d 617 (19731, this Court 

has also approved this statement in State v. Amor, 164 Mont. 

182, 185, 520 P.2d 773 (1974), quoting Coolidge v. New Hampshire, 
403 U.S. 443, 461, 91 Sect. 2022, 29 L ed 2d 564, 580 (1971): 

""Phe word "automobile" is not a talisman 

in whose presence the Fourth Amendment fades away 

and disappears, 111 

As a substantial infringement upon individual privacy, the 

inventory search must meet the "reasonableness" and "compelling 

state interest1'standards of the Montana Constitution. 

There are two basic justifications for an inventory 

search that could possibly have any application to the instant 

case: (1) protection of the contents of the vehicle for the 

benefit of the owner; and (2) protection of the police from 

claims for lost property for which the police are responsible. 

While the first justification has merit in the case of an 

abandoned vehicle, it is particularly not helpful where, as 

here, the owner of the vehicle is present and can be questioned 

about valuable items and possible arrangements for their 

disposition. It would be anomalous to justify a search of an 

automobile to be for the owner's benefit, when the owner is 

available but does not consent to the search. Surely the property owner is an adequate judge of the treatment of the property that would most benefit him. 

The inventory, then, must be based upon the protection of 

the officers from claims for lost property. While this is a 

reasonable concern, it bears little weight in Montana. As the 

custodian of an impounded vehicle, a police or sheriff's department is a "gratuitous depositary" within the meaning of 

section 20-211, R.C.M. 1947. As such, the depositary owes a 

duty of "slight Wre'' for the preservation of the property, and 

is liable to the owner only for losses occasioned by "gross 

I I negligence. Boyd v. Harrison State Bank, 102 Mont. 94, 56 
P.2d 724 (1936). Certainly this duty would be satisfied 

by simply securing and taking an inventory of any valuable 

items in plain view from outside the vehicle, rolling up the 

windows, locking the doors, and returning the keys to the owner. 

Mozzetti v. Superior Court, supra. 

Viewed in this light, these justifications simply do not 

bear up under the countervailing force of the right of the 

individual to privacy and freedom from unreasonable searches 

in Montana. The Supreme Court of South Dakota, on the remand 

of State v. Opperman, (So.Dak.1976), 247 N.W.2d 673,675, 

asserted as a matter of state constitutional law: 

"* *' * noninvestigative police inventory searches 

of automobiles without a warrant must be restricted 

to safeguarding those articles which are within 

the plain view of the officer's vision. * * *" 

This standard reasonably balances the needs of the police as 

custodians of a lawfully impounded vehicle with the rights of 

privacy and freedom from unreasonable searches and seizures 

held by individuals in Montana. We adopt it as applicable to 

Montana constitutional law. In the instant case the contraband was found under a seat and admittedly was never in plain 

view. It was seized in violation of the 1972 Montana Constitution and was properly suppressed. 

To avoid misunderstanding, we wish to note the limitations 

of our present hozding. We in no way limit the right of an 

officer to seize items in plain view where the officer' s presence 

is justifiable. State v. Emerson, 169 Mont. 285, 546 P.2d 509, 

33 St.Rep. 261 (1976); State v. Gallagher, 162 Mont. 155, 509 

P.2d 852 (1973). This is not a case where there was any probable 

cause to search or where the search was in any manner related 

to the arrest. See: State v. Turner, 164 Mont. 371, 523 P.2d 
1386 (1974); State v. Armstrong, 149 Mont. 470, 428 P.2d 611 

(1967); State v. Houchin, 149 Mont. 503, 428 P.2d 971 (1967). 

We hold only that where the sole justification for an 

inventory search is the fact it is incident to the lawful 

custody of an impounded vehicle and pursuant to standard police 

procedure, such search must be limited in scope to articles in 

plain view from outside the vehicle. 

The order of the district court suppressing evidence is 

af f inned.