No. 13731 INTHE SUPREME COURT OF THE STATE OF MONTANA 1977

THE STATE OF MONTANA, Plaintiff and Appellant,

WADE TURNER SAWYER, Defendant and Respondent.

Appeal from: DistrictCourt 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-Tlc

## 1'5-Mr. Justice John Conway Harrison delivered the Opinion of the Court:

The stateappeals 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, afterUndersheriff Michael Walrod observedhim making an illegal turn

on the streets of Townsend, Montana. OfficerWalrod recognized defendant and proceeded with Ted Ingersoll, a forest service directorwho was accompanying the officer, to look for defendant. They found defendant's car ata bar parking lot and noticed the car had a ten-day registration stickerwhich had expired. The officer found defendant in the bar and informed him he was charged with reckless driving and improper vehicle registration, and thathe would be ticketed atthe sheriff's office. OfficerWalrod rode tothe sheriff's office with defendant, in defendant's car. Atthe sheriff's office OfficerWalrod informed defendant bond would be $125; $100 for reckless driving and 

### $25 for 

### improper vehicle registration. Defendant was unable tomeet the bond, sohe was booked and placed in the countyjail. Atthat time officers impounded defendant's automobile and made a complete inventory of 

### its contents, discovering pills they believed tobe 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 settingbond 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 setby



### a law enforcement officer. Although it 

### is a constitutional and statutory requirement thatbailbe setby a judicial officer, section 95-1103, R.C.M. 1947, allows a peace officer toaccept bail in limited circumstances: "Setting and acceptingbail inminor offenses. A justice of the peace or police judge may inhis discretion establish and post a schedule of cashbail for offenses not amounting to a felony. A peace officer may accept bail inbehalf of thejustice of the peace or policejudge in accordance with the schedule.

# * **" The stateargues there isno evidence in the record to support the conclusion of the district court thatbond 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 setby thejustice 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 tohold that a peace officer may not rely on his everyday experience and memory inacceptingbond inbehalf of a magistrate. There was no evidence the bond accepted by the officer in the instant casewas any different from that listed in the bond schedule. The district court finding of a violation of section 95-1103 

### isnot supported by substantial evidence.Second, 

### is the question of the constitutionality of the inventory search of defendant'

### s vehicle. The state freely admits the officershad 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 officerswho testified, solely as a matter of standard police procedure for the protection of any valuable items which the owner may have left inthe automobile. The constitutionality of such a search 

### is a question of first impression inMontana. It 

### is axiomatic that a search must comport with state and federal constitutional law. The reasonableness of an inventory searchunder the Fourth Amendment of the United States Constitution

### was discussed in the recent United States Supreme Court decision SouthDakota v. Opperman, 428 U.S. 364, 

### 96 S.Ct. 3092, 49 L ed 2d 1000 (1976). The Court inOpperman 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 toafford an individual greater protection in this instance than 

### is found under the Fourth Amendment inOpperman. The 1972Montana Constitution, Art. 11, Sections 10 and 11, provide: "Section 10. Right of privacy. The right of individual privacy 

### is essential tothe well-being of a free society and shallnot be infringedwithout the showing of 

### a compelling state interest."Section 

### 11. Searches and seizures. The people shallbe secure intheir persons, papers, homes and effects from unreasonable searches and seizures. No warrant to search any place, or seize any person or thing shall issuewithout describing the place tobe searched or the person 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 

### isobvious from these provisions. This Court has previously noted the significance of the explicit guarantee of the right of individual privacy contained in Section 10, asno comparable provision exists in the United States Constitution. Statev. Coburn, 165Mont.



### It 

### is alsoclear 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 

### isno different in scope than a warranted search 

### of 

### an autoraobfle, As'was noted inMozzetti 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 explorationby the police into the private property of an individual. In that process suitcases, briefcases, sealed packages, purses--anything left open orclosed within the vehicle--is subjectedwithout 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, Statev. Spielmann, 163Mont. 199, 203, 516 P.2d 617 (19731, this Court has alsoapproved this statement inState v. Amor, 164Mont. 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" isnot a talisman inwhose presence the Fourth Amendment fades away and disappears, 111 As a substantial infringement upon individual privacy, the inventory searchmust meet the "reasonableness" and "compelling state interest1'standardsof theMontana Constitution. There are two basic justifications for an inventory search that could possiblyhave 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 lostproperty forwhich the police are responsible. While the firstjustification has merit in the case of an abandoned vehicle, it 

### is particularlynot 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 tojustify a search of an automobile tobe for the owner's benefit, when the owner 

### is availablebut does not consent to the search. Surely the property owner 

### is an adequate judge of the treatment of the property thatwould most benefit him. The inventory, then, must be based upon the protection of the officers from claims for lostproperty. While this 

### is a reasonable concern, itbears littleweight inMontana. 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

II negligence. Boyd 

### v. Harrison StateBank, 102Mont. 94, 56P.2d 724 (1936). Certainly this duty would be satisfied by simply securing and taking an inventory of any valuable items inplain 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 inthis light, thesejustifications simply do not bear up under the countervailing force of the right of the individual toprivacy and freedom from unreasonable searches inMontana. The Supreme Court of South Dakota, on the remand of Statev. Opperman, (So.Dak.1976), 247 N.W.2d 673,675, asserted as a 

### matter of stateconstitutional law: 

# "**'* noninvestigative police inventory searches of automobiles without a warrant must be restricted to safeguarding those articleswhich arewithin the plainview 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 inMontana. We adopt it asapplicable to Montana constitutional law. Inthe instant case the contraband was found under a seat and admittedlywas never inplain view. It was seized inviolation of the 1972Montana Constitution and was properly suppressed. To avoid misunderstanding, we wish tonote the limitations of our present hozding. We inno way limitthe right of an officer to seize items inplain view where the officer'

### s presence 

### is justifiable. Statev. Emerson, 169Mont. 285, 546 P.2d 509, 33 St.Rep. 261 (1976); Statev. Gallagher, 162Mont. 155, 509 P.2d 852 (1973). This 

### isnot a casewhere there was any probable

cause to search orwhere the searchwas in any manner related to the arrest. See: State v. Turner, 164Mont. 371, 

### 523 P.2d1386 (1974); Statev. Armstrong, 149Mont. 470, 428 P.2d 611 (1967); Statev. Houchin, 149Mont. 

### 503, 428 P.2d 971 (1967). We hold 

### only thatwhere the solejustification for an inventory search 

### is the fact it 

### is incident tothe lawful custody of an impounded vehicle and pursuant to standard police procedure, such searchmust be limited in scope toarticles in plainview from outside the vehicle. The order of the districtcourt suppressing evidence 

### is aff inned.