No. 13759 IN THE SUPREME COURT OF THE STATE OF PIONTANA

THE STATE OF MONTANA, Plaintiff and

LESTER BROWNLOW LANE, JR

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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



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### - - Filed: Submitted: December 5, 1977 TPr Decidedb 

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### / ClerkMr. 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 evidencewas 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, 1976with criminal sale of dangerous drugs, a felony, inviolation 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 themobile 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 officerwas 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 thewindow. 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)oneto 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 officerwent 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 "Consentto 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 themobile home. Following the suppressionhearing, the state sought to justify the seizure and subsequent admission in evidence of the plants under the "PlainView" 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 DistrictCourt,by its findingsof fact, conclusions of law,memorandum and order,dated January 28, 1977, determined therewas no "search" within the purview of theFourthAmendment. However, the court also concluded that the warrantless seizure of the plants was unreasonable and, therefore, a violation of the FourthAmendment. In its memorandum, the District Court indicated its determinationwas based on the state's failure to satisfy two essential preconditions to the applicationof 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 DistrictCourt suppressing the evidence. The issues on appeal concern applicationof the component requirements of the "PlainView" doctrine to the facts at bar. We phrase the issues as follows: (1)Must "exigentcircumstances" rendering imperative an immediate warrantless seizureof evidence be demonstrated where the evidence so seized iswithin the plain view of the officer? (2)Was the evidence "immediatelyapparent as such" to Officer Walrod in the instant case? The state centrally argues there is no requirementunder 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 DistrictCourt, that a showing of exigent circumstances by the state is a foundational prerequisite to application of the "PlainView" 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:

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## * * * 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." Jonesv. 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, 91S.Ct. 2022, 29 L Ed 2d 564, 583, and has found application inMontana. Statev. 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: "Whatthe 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 itbe 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

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## *." 403 U.S. 466. The "Plain View" doctrine is notwithout limits,however. Plain view of evidence, standing alone, is an insufficient justification for warrantless seizure thereof. Despite the observation of evidence inplain sight and the existence of probable cause, the police are not justified inmaking a warrantless seizure of the evidence absent a showing of exigent circumstances rendering immediate seizure imperative. Coolidgev. New Hampshire, supra.; Statev. Schur (1975), 217 Kan. 741, 538 P.2d 689; Brownv. State of Maryland (1972)

### , 15Md. App. 584, 292A.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 evidenceprior 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 isvoiced by the majority opinion in Coolidge: 

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## * * * First, the magistrate's scrutiny is intended to eliminate altogether searchesnot 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 justifiedwithout 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, Chime1v. 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 themobile home and the evidence to be seized therein. The seizurewas therefore unreasonable and a violation of defendant's right to be free from unreasonable searches and seizuresunder the Fourth and FourteenthAmendments. Accordingly, the District Courtwas correct in granting defendant's motion to suppress the evidence. We question whether the plain view which occurred in this case iswithin the doctrine contemplatedby Coolidge for yet another reason. The first conditionprecedent and common denominator to any valid "PlainView" seizure is, under Coolidge, a justifiableprior 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 observationof evidence within a "constitutionallyprotected area," such as defendant's mobile home, from a vantage point outside the "constitutionally protected area." Such distinction is recognized by themajority in Coolidge, wherein it is stated: 

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## * Incontrovertibletestimony of the senses that an incriminating object is on premises belonging to a criminal suspectmay establish the fullest measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule thatpolice may not enter and make a warrantless seizure. Taylor v. United States, 286 U.S. 1; Johnsonv. United States, 333 U.S. 10;McDonald v. United States, 335 U.S. 451; Jones v. United States, 357U.S. 493, 497-498; Chapmanv. United States, 365 U.S. 610; Trupianov. United States, 334 U.S. 699." 403 U.S. 468. In this case,Officer Walrod, by his own testimony, firstviewed the evidence located within defendant'smobile 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 inplain view. Cf. Statev. Gallagher, supra. It iswell settled that this Courtpresumes the correctness of the lower court's order on appeal. It is the burden of appellant to overcome such a presumption. State ex rel. Stevensv. DistrictCourt (1976), Mont. 

### , 550 P.2d1 385, 388, 33 St.Rep. 469; State ex rel. Elakovich v. Zbitnoff (1963), 142Mont. 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 DistrictCourt suppressing evidence is affirmed.Weconcur:

Chief Justice 

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