No. 13759 

IN THE SUPREME COURT OF THE STATE OF PIONTANA 

THE STATE OF MONTANA, 

Plaintiff and 

LESTER BROWNLOW LANE, JR . , 

tcJ Defendant and b. 

Appeal from: ~istrict Court of the First Judicial District, 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hooks and Sherlock, Townsend, Montana 

Jeffrey Sherlock argued, Townsend, Kontana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Thomas Budewitz, County Attorney, Townsend, Kontana 

Robert J. Yunck argued, Cut Bank, Montana 

- - 7'- - = ,. : ' - Filed: 

Submitted: December 5, 1977 

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Decided b d 0 197; 

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Mr. Justice John C. Harrison delivered the Opinion of the 

Court: 

The State of Montana appeals from an order of the 

District Court, Broadwater County, suppressing evidence. 

The evidence was seized without a warrant, from defendant's 

mobile home on July 2, 1976, the evening of his arrest. 

Defendant was subsequently charged by an Information filed 

July 16, 1976 with criminal sale of dangerous drugs, a felony, 

in violation of section 54-132, R.C.M. 1947. 

During the early evening hours of July 2, 1976, Broadwater 

County Undersheriff Michael Walrod proceeded to a mobile home 

located at 500 N. Walnut, Townsend, Montana. Officer Walrod, 

who had sold the mobile home in question to one Dick Ellis on 

January 1, 1976, was seeking to locate a pair of hip-wading 

boots he thought he may have left in the mobile home. It is 

clear from the record that the officer was on duty at the time, 

and was operating a county vehicle. However, there is no 

indication whether the officer was dressed in his sheriff's 

uniform. 

Officer Walrod parked in front of the mobile home, 

proceeded up the sidewalk, and knocked at the door. As he 

was halfway up the walk, the officer could see, through an 

open window just to the right of the front door, someone 

lying on a sofa inside the home. In response to the knock, 

the individual, defendant Lane, got up off the sofa and came 

to the window. Defendant asked what the officer wanted. As 

the officer described the search for the missing boots, he 

stepped off the porch adjoining the front door and moved to 

the window. The officer glanced down and noticed two containers 

a distance of eighteen (18) inches away, placed on a TV tray 

just below window level. In the containers were six (6) one 
to two inch plants. Believing them to be marijuana, the 

officer inquired of defendant if the plants were, in fact, 

marijuana. The defendant responded affirmatively. 

Officer Walrod testified he then asked if he could come 

in and defendant opened the door. The officer went inside, 

arrested defendant, advised him of his constitutional rights, 

and seized the plants. Defendant stated, at the time of the 

arrest, that he was merely caring for the plants for Dick 

Ellis. 

Upon being taken to and remaining in the Broadwater 

County jail for approximately one hour, defendant executed a 

written "Consent to Search" form. In the ensuing search, a 

quantity of seeds, later determined to be marijuana seeds, 

was located and seized. The plants were subsequently subjected 

to chemical tests to determine marijuana content. The test 

results indicated the plants were, in fact, marijuana. 

Defendant's version of the seizure and his arrest differs 

in certain particulars from that of Officer Walrod, notably 

in suggesting a search of broader scope than that detailed 

above. In addition, defendant testified he was never informed 

he was under arrest, although he admits he was read his 

constitutional rights while at the mobile home. 

Following the suppression hearing, the state sought to 

justify the seizure and subsequent admission in evidence of 

the plants under the "Plain View" exception to the Fourth 

Amendment warrant requirement, arguing that Officer Walrod 

had inadvertently observed obviously incriminating evidence 

while legitimately upon the premises of the defendant. 

The District Court, by its findings of fact, conclusions 

of law, memorandum and order, dated January 28, 1977, 

determined there was no "search" within the purview of the 
Fourth Amendment. However, the court also concluded that 

the warrantless seizure of the plants was unreasonable and, 

therefore, a violation of the Fourth Amendment. 

In its memorandum, the District Court indicated its 

determination was based on the state's failure to satisfy 

two essential preconditions to the application of the "Plain 

View" doctrine: (1) The state failed to show the evidence 

was immediately apparent as such, (2) There was no showing 

of exigent circumstances rendering immediate seizure of the 

evidence imperative. 

For the reasons specified herein, we affirm the order 

of the District Court suppressing the evidence. 

The issues on appeal concern application of the component 

requirements of the "Plain View" doctrine to the facts at bar. 

We phrase the issues as follows: (1) Must "exigent circumstances" rendering imperative an immediate warrantless 

seizure of evidence be demonstrated where the evidence so 

seized is within the plain view of the officer? (2) Was the 

evidence "immediately apparent as such" to Officer Walrod in 

the instant case? 

The state centrally argues there is no requirement under 

any pertinent decision interpreting the "Plain View" doctrine, 

that exigent circumstances be shown to justify a warrantless 

seizure of evidence. 

Defendant takes the position, adopted below by the 

District Court, that a showing of exigent circumstances by 

the state is a foundational prerequisite to application of 

the "Plain View" doctrine. 

The fundamental rule in the area of search and seizure 

law is set forth in the case of Katz v. United States (1967), 

389 U.S. 347, 88 S.Ct. 507, 19 L Ed 2d 576, 585: 
" * * * searches conducted outside the judicial 

process, without prior approval by judge or magistrate, 

are per se unreasonable under the Fourth Amendment -- 

subject only to a few specifically established and 

well-delineated exceptions." 389 U.S. 357, 19 L Ed 2d 

585. 

It is clear that such exceptions are "jealously and 

carefully drawn." Jones v. United States (1957), 357 U.S. 

The "Plain View" exception, as an independently 

recognized doctrine, was first articulated and given content 

by the case of Coolidge v. New Hampshire (1971), 403 U.S. 443, 

466, 91 S.Ct. 2022, 29 L Ed 2d 564, 583, and has found 

application in Montana. State v. Gallagher, (1973), 162 

Mont. 155, 509 P.2d 852. 

The conditions precedent to application of the "Plain 

View" exception are delineated in Coolidge as follows: 

"What the plain view cases have in common is that 

the police officer in each of them had a prior 

justification for an intrusion in the course of 

which he came inadvertently across a piece of evidence 

incriminating the accused. The doctrine serves to 

supplement the prior justification -- whether it be 

a warrant for another object, hot pursuit, search 

incident to a lawful arrest or some other legitimate 

reason for being present unconnected with a search 

directed against the accused -- and permits the warrantless seizure. Of course, the extension of the original 

justification is legitimate only where it is immediately 

apparent to the police that they have evidence before 

them * * *." 403 U.S. 466. 

The "Plain View" doctrine is not without limits, however. 

Plain view of evidence, standing alone, is an insufficient 

justification for warrantless seizure thereof. Despite the 

observation of evidence in plain sight and the existence of 

probable cause, the police are not justified in making a 

warrantless seizure of the evidence absent a showing of 

exigent circumstances rendering immediate seizure imperative. 

Coolidge v. New Hampshire, supra.; State v. Schur (1975), 217 

Kan. 741, 538 P.2d 689; Brown v. State of Maryland (1972) , 

15 Md. App. 584, 292 A.2d 762. 
Here, we are presented with a seizure situation in 

which exigent circumstances were wholly absent. The state 

failed to demonstrate defendant was in any manner alerted to 

the officer's initial observation of the evidence prior to 

being questioned. There was no suggestion in the record of 

threatened flight or potential destruction of evidence. Given 

such a framework, the officer's valid visual observation 

merely furnished probable cause for issuance of a warrant. 

One of the distinct constitutional objectives served by 

the warrant requirement is voiced by the majority opinion in 

Coolidge: 

" * * * First, the magistrate's scrutiny is intended 

to eliminate altogether searches not based on probable 

cause. The premise here is that any intrusion in the 

way of search or seizure is an evil, so that no intrusion 

at all is justified without a careful prior determination 

of necessity. See, e.g. McDonald v. United States, 335 

U.S. 451, Warden v. Hayden, 387 U.S. 294, Katz v. 

United States, 389 U.S. 347, Chime1 v. California, 395 

U.S. at 761-762." 403 U.S. 467. 

Here, Officer Walrod had ample opportunity to procure a 

valid search warrant; he knew the description and location 

of the mobile home and the evidence to be seized therein. 

The seizure was therefore unreasonable and a violation of 

defendant's right to be free from unreasonable searches and 

seizures under the Fourth and Fourteenth Amendments. Accordingly, the District Court was correct in granting defendant's 

motion to suppress the evidence. 

We question whether the plain view which occurred in 

this case is within the doctrine contemplated by Coolidge for 

yet another reason. 

The first condition precedent and common denominator to 

any valid "Plain View" seizure is, under Coolidge, a 

justifiable prior intrusion. 403 U.S. 466. See also, Harris 

v. United States (1967), 390 U.S. 234, 88 S.Ct. 992, 19 L Ed 

2d 1067; Ker v. California (1962), 374 U.S. 23, 83 S.Ct. 1623, 

10 L Ed 2d 726. The doctrine therefore comprehends only postintrusion observations. Brown v. Maryland, supra. The formal 
"Plain View" doctrine does not extend to preintrusion 

observation of evidence within a "constitutionally protected 

area," such as defendant's mobile home, from a vantage point 

outside the "constitutionally protected area." Such distinction 

is recognized by the majority in Coolidge, wherein it is 

stated: 

" * * * Incontrovertible testimony of the senses that 

an incriminating object is on premises belonging to a 

criminal suspect may establish the fullest measure of 

probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced 

the basic rule that police may not enter and make a 

warrantless seizure. Taylor v. United States, 286 

U.S. 1; Johnson v. United States, 333 U.S. 10; McDonald 

v. United States, 335 U.S. 451; Jones v. United States, 

357 U.S. 493, 497-498; Chapman v. United States, 365 

U.S. 610; Trupiano v. United States, 334 U.S. 699." 

403 U.S. 468. 

In this case, Officer Walrod, by his own testimony, 

first viewed the evidence located within defendant's mobile 

home while standing outside the window. A search warrant 

should have been obtained. This is not a case in which the 

officer had made an intrusion into a home, by invitation or 

other legitimate reason, prior to observation of the evidence 

in plain view. Cf. State v. Gallagher, supra. 

It is well settled that this Court presumes the correctness 

of the lower court's order on appeal. It is the burden of 

appellant to overcome such a presumption. State ex rel. 

Stevens v. District Court (1976), Mont. , 550 P.2d1 

385, 388, 33 St.Rep. 469; State ex rel. Elakovich v. Zbitnoff 

(1963), 142 Mont. 576, 386 P.2d 343. Here, the state has 

failed to carry its burden. 

Given our resolution of the cause on the first issue, 

we find no need to discuss the second issue heretofore noted. 

The order of the District Court suppressing evidence is 

af firmed. 
We concur: 

Chief Justice / \