IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSGREGORY JOHN JELLISON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John S. Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

J. Dirk Reccari, Missoula, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Kathy Seeley, Asst. Atty. General, Helena 

Robert Deschamps, 111, County Attorney; Fred Van 

+ [r Valkenburg, Deputy County Atty., Missoula, Montana 

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r?< - - Submitted on Briefs: Dec. 22, 1988 3 

bJ) Decided: February 28, 1989 ,4 -w 8 ri- 

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

Court. 

This is an appeal from a judgment of the Fourth Judicial 

District, Missoula County. Appellant Jellison was convicted 

by a jury of four felony counts of robbery, § 45-5-401, MCA. 

He was sentenced to 40 years on each count plus 10 years on 

each count for use of a weapon. He was also designated a 

dangerous offender. Jellison contends that the District 

Court erred by admitting certain evidence. This Court 

affirms the District Court. 

The issue is whether the District Court erred when it 

denied the defendant's motion to suppress as evidence the 

tennis shoes the defendant was wearing when arrested for 

robbery and the comparison of the tennis shoes with a print 

left at the scene of the crime. 

On June 2, 1987, Missoula County sheriff deputies 

responded to a radio report of an armed robbery at the Orange 

Street Inn. They were parked within sight of the Inn at the 

time. Within one minute the deputies observed a large white 

and brown automobile turn left onto Orange Street heading for 

the 1-90 freeway entrance. This car matched the description 

of the automobile used in a previous armed robbery. The 

description of the suspect was of a white male in his 

twenties, brown hair, stocky build around 5'9" tall. The 

suspect was reportedly wearing a plaid shirt, blue jeans and 

white tennis shoes. 

The deputies stopped the car and arrested the defendant, 

Jellison and the driver of the car. The deputies observed a 

gun in the front seat partially concealed in a K-Mart bag. 

They also observed clothing in the car, including a plaid 

shirt. Jellison matched the description of the reported 
robber. Jellison was taken to jail where his clothing, 

including his tennis shoes, were placed in a property locker. 

A detective investigating the crime scene soon after the 

crime discovered a shoe print on the counter of the motel. 

He went to the jail where he obtained Jellison's shoes from 

the property locker. He returned to the motel where he 

compared the shoes to the print found on the counter. The 

shoes were admitted into evidence at trial as was evidence of 

the print comparison. Other evidence included the testimony 

of the victim of the Orange Street Inn robbery that Jellison 

was the man who robbed her. 

Jellison contends that taking his tennis shoes from the 

property locker after his lawful arrest violated his Fourth 

Amendment right to be free from unreasonable searches and 

seizures and his right to privacy guaranteed by Article 11, S 

10 of the Montana Constitution. We disagree. 

First, the seizure of Jellison's tennis shoes was valid 

pursuant to 5 46-5-101(1), MCA, which authorizes a search "of 

a person, object, or place may be made and instruments, 

articles, or things may be seized in accordance with the 

provisions of this chapter -- when the search -- is made . . . as 

an incident -- to a lawful arrest." (Emphasis added.) When a 

lawful arrest is made, police may reasonably search and seize 

anything within such persons immediate presence "which may 

have been used in the commission of [the crime] or which 5 

constitute evidence - of - the offense." (Emphasis added.) 

Section 46-5-102(4), MCA. The suspect was reported to be 

wearing white tennis shoes at the time of the crime and 

Jellison was wearing white tennis shoes when he was stopped 

within 90 seconds of the dispatch over the radio reporting 

the crime to police on patrol. When Jellison was arrested 

and brought to the jail and his clothing and tennis shoes 

were taken, they were taken incident to a lawful arrest and 
their evidentiary value had already been established by the 

victim who described the robber. Jellison's tennis shoes 

clearly constituted evidence of the crime even before the 

detective discovered a shoe print at the crime scene. 

The Fourth Amendment proscribes unreasonable searches, 

not reasonable ones. "It is well settled that a search 

incident to a lawful arrest is a traditional exception to the 

warrant requirement of the Fourth Amendment." State v. 

Ulrich (1980), 187 Mont. 347, 351, 609 P.2d 1218, 1220 

(quoting United States v. Robinson (1973), 414 U.S. 218, 224, 

94 S.Ct. 467, 471, 38 L.Ed.2d 427). 

With regard to the Montana Constitution's Right of 

Privacy Clause, Art. 11, § 10, the defendant, at the time of 

his lawful arrest had less or no expectation of privacy with 

respect to his personal property lawfully seized by the 

police. A Michigan case, People v. Rivard (1975), 230 N.W.2d 

6, articulates this rule: 

Once the [object] had been exposed to police view 

under unobjectionable circumstances and lawfully 

taken by the police for safekeeping, any 

expectation of privacy with respect to that item 

had at least partially dissipated so that no 

reasonable expectation of privacy was breached by 

[the police] taking a "second look." 

Rivard, 230 N.W.2d at 8. 

The United States Supreme Court held in United States v. 

Edwards (1974), 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771, 

that police may, without first obtaining a warrant, seize 

items of evidence incident to a lawful arrest. 

The facts surrounding Edwards are quite similar to the 

case at bar. Edwards was arrested for attempting to break 

into a post office. Shortly after he was incarcerated, it 

was discovered during investigation of the crime scene that 
the attempted break-in had been made through a wooden window 

which had been pried with a crow bar leaving paint chips on 

the sill. Police thought it probable that paint chips would 

be on the clothing of the perpetrator. Examination of 

Edwards' clothing revealed paint chips which matched those 

found on the window sill. On appeal, the Sixth Circuit Court 

of Appeals reversed the admission of the wood chips into 

evidence because a warrant was required "after the 

administrative process and the mechanics of the arrest have 

come to a halt." United States v. Edwards (6th Cir. 1973) , 

474 F.2d 1206, 1211. 

The Supreme Court disagreed: 

With or without probable cause, the authorities 

were entitled at that point [of arrest] not only to 

search Edwards' clothing but also to take it from 

him and keep it in official custody. There was 

testimony that this was the standard practice in 

this city. The police were also entitled to take 

from Edwards any evidence of the crime within his 

immediate possession, including his clothing. And 

the Court of Appeals acknowledged that 

contemporaneously with or shortly after the time 

Edwards went to his cell, the police had probable 

cause to believe that the articles of clothing he 

wore were themselves material evidence of the crime 

for which he had been arrested. 474 F.2d at 

1210.. . . Once the accused is lawfully arrested 

and is in custody, the effects in his possession at 

the place of detention that were subject to search 

at the time and place of arrest may lawfully be 

searched and seized without a warrant even though a 

substantial period of time has elapsed between the 

arrest and subsequent administrative processing, on 

the one hand, and the taking of the property for 

use as evidence, on the other. This is true where 

the clothing or effects are immediately seized upon 

arrival at the jail, held under the defendant's 

name in the "property room" of the jail and at a 

later time searched and taken for use at the 

subsequent criminal trial. 
Edwards, 415 U.S. at 806-07. 

In the present case, police thought it probable that the 

print found on the counter could be matched with the shoe 

worn by the defendant. Comparison of the print to the shoe 

proved to be a match. The defendant had been lawfully taken 

into custody and the police followed their standard practice 

of taking detainees' clothing. The police were also entitled 

to take from the defendant any evidence of the crime within 

his immediate possession, including his clothes. There was 

probable cause to believe the defendant's clothing would 

provide material evidence of the crime for which he was 

arrested. 

This Court concludes that the District Court did not err 

by denying Jellison's motion to suppress the tennis shoes as 

evidence and the evidence of comparison to the print. The 

shoes were lawfully seized incident to the lawful arrest of 

the defendant. 

Affirmed. 

We Concur: 

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Justice