No. 86-24 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsTHOMAS ARTHUR ROMEPO, 

Defendant and Appellant. 

APPEAL FROM: The District Court of the Sixth Judicial District, 

In and for the County of Park, 

The Honorable Byron Robb, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Knuchel & McGregor; Daniel B. McGregor argued, 

Livingston, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Barbara Claassen argued, Asst. Atty. General, Helena 

Nels Swandal, County Attorney, Livingston, Montana 

-- - 

Submitted: October 21, 1986 

Decided: December 30, 1986 

Filed: 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Defendant was convicted of criminal possession with 

intent to sell dangerous drugs, in a jury trial in Park 

County. We affirm. 

The issues are: 

1. Did the District Court err in denying the motion to 

suppress admission of the marijuana seized from the truck? 

2. Was the evidence of other acts properly admitted? 

On December 11, 1984, defendant Mr. Romero rented a 

motel room in Columbus, Montana. While in Columbus, he drank 

at several bars and was involved in a couple of altercations, 

resulting in his coming into contact with the police. 

In the early morning hours of December 12, 1984, Highway 

Patrolman Jay Dixon was notified that a vehicle was in the 

median of the interstate near Livingston, Montana. The 

vehicle was Mr. Romero's truck. The roads were icy, as it 

had snowed earlier. Patrolman Dixon reached the truck at 

approximately 5:30 a.m. and called in the Colorado license 

plate number to the Livingston Police Department. Mr. Romero 

called out from the truck that he wanted a wrecker, not the 

officer's services. At approximately the same time, Patrolman Dixon received a radio report from the Big Timber sheriff's office that the driver of the truck had been in an 

altercation in Columbus the night before and might be intoxicated and/or armed. Patrolman Dixon informed Mr. Romero he 

would call a wrecker. He went into Livingston, called Gray's 

Road Rescue, and also picked up a Livingston police officer 

before returning to the scene of the accident. 

When the officers returned to the truck, Mr. Romero was 

asleep or passed out on the seat. Patrolman Dixon rapped on 
the window and opened the door to waken Mr. Romero, who 

immediately became combative. The officers detected an odor 

of alcoholic beverage and arrested Mr. Romero for driving 

under the influence of drugs or alcohol (DUI). They handcuffed him, placed him under arrest, and put him in the 

patrol car. As Patrolman Dixon secured the truck, he noticed 

3 or 4 beer bottles on the floor of the cab. He did not 

seize the bottles as evidence of DUI at that time. 

When Mr. Romero was booked into the Park County jail, he 

had $1,500 in 50-dollar bills in his possession. After the 

booking, shortly before 7:00 a.m., Patrolman Dixon and the 

other officer went to Gray's Road Rescue to get the beer 

bottles from the truck. It was being held inside a building. 

As Patrolman Dixon retrieved the beer bottles, he noticed a 

small amount of green, leafy substance on the floor. He 

seized that also. The substance field tested positive for 

marijuana. 

Based upon the marijuana found on the floor of the 

pickup, Mr. Romero's substantial pocket cash, and reports 

from Columbus that Mr. Romero was suspected of attempting to 

sell marijuana, Patrolman Dixon obtained a search warrant for 

the truck. He found three large bundles of marijuana in a 

tool box located under the locked hood of the pickup. Mr. 

Romero was then charged with intent to sell more than a 

kilogram of marijuana and criminal possession of dangerous 

drugs, both felonies. Mr. Romero remained incarcerated and 

the pickup remained impounded. 

One month later, the owner of Gray's called Patrolman 

Dixon to inform him that the pickup, which was then sitting 

out on the impound lot, had been tampered with. When Patrolman Dixon arrived, he saw that a piece of metal was hanging 
from the right rear wheel well. He looked in the wheel well 

and saw a wrapped bundle, similar to those seized earlier. A 

piece of metal had also been removed from the left wheel well 

and was lying on the ground. Patrolman Dixon phoned another 

officer for assistance. They searched the truck, finding 20 

bundles of what proved to be marijuana in the wheel wells and 

behind the seat. This search was conducted without a 

warrant. 

Mr. Romero was later released on bail while awaiting 

trial. During July and August of 1985, he met in Billings 

with an undercover drug enforcement officer several times to 

effect drug sales. These meetings resulted in three separate 

marijuana sales by Mr. Romero to the undercover officer. 

Prior to trial, defense counsel filed a motion to suppress concerning all marijuana seized from the truck. He 

argued that a search warrant should have been obtained before 

the initial search because the truck was impounded and no 

exigent circumstances existed. Additionally, defense counsel 

argued the fruit of the poisonous tree doctrine barred introduction of the marijuana seized later. The motion was denied. The trial judge found the initial seizure of beer 

bottles and the trace amount of marijuana was justified under 

the plain view doctrine, the second seizure of three bundles 

was valid pursuant to a search warrant, and the final seizure 

of 20 bundles was valid under the plain view doctrine. 

The State filed notice of intent to introduce evidence 

of other acts at trial, including testimony concerning Mr. 

Romero's activities in Columbus, the recovery of one pound of 

marijuana from his Columbus motel room, and the July and 

Auqust transactions with the undercover officer. Following 
briefing and argument on these matters the trial judge 

allowed the evidence to be presented at trial. 

The other acts testimony was presented the first day of 

Mr. Romero's trial. Both counsel and the trial judge forgot 

to present a cautionary instruction to the jury prior to the 

testimony. The second morning of trial, defense counsel 

argued in chambers that failure to deliver the cautionary 

instruction had caused irreparable damage to his client and a 

mistrial should be granted. The trial judge denied the 

motion for mistrial, determining that no marijuana had yet 

actually been introduced into evidence and the jury had been 

instructed previously not to conclude that testimony about 

bags or bundles of green, leafy substance proved that it was 

marijuana. The trial judge further determined that if any 

prejudice had occurred, a curative instruction the second 

morning of trial would correct it. Such an instruction was 

given prior to any testimony on the second day of trial. 

The jury found Mr. Romero guilty of criminal possession 

with intent to sell dangerous drugs. He was sentenced to 16 

years in the Montana State Prison. 

I 

Did the District Court err in denying the motion to 

suppress admission of the marijuana seized from the truck? 

Mr. Romero argues that there were three separate violations of his right to be free from unreasonable searches and 

seizures under the Fourth Amendment to the United States 

Constitution and Mont. Const. Art. 11, § 11. The first 

violation occurred, he says, when the beer bottles were 

retrieved from the truck and the small amount of marijuana 

was found on the floor. Mr. Romero states that this search 

of his truck does not fit any of the four recognized 
exceptions to the general prohibition against automobile 

searches without warrants: the automobile exception, the 

exception for searches incident to arrest, inventory searches, and the plain view exception. Mr. Romero contends that a 

warrant should have been obtained before the officers retrieved the beer bottles. 

The parties' briefs contain lengthy arguments under 

several theories on whether the warrantless seizure of the 

beer bottles was constitutional. Because we conclude that 

this was a reasonably delayed plain view seizure, we will not 

discuss the other theories raised. 

The police may seize evidence without a warrant when 

they have a prior justification for the intrusion, inadvertently come across incriminating evidence, and exigent circumstances render an immediate seizure imperative. State v. 

Godsey (1982), 202 Mont. 100, 103, 656 P.2d 811, 813. This 

is the plain view exception to the warrant requirement for 

searches and seizures. It is conceded that Patrolman Dixon 

could have seized the beer bottles as evidence of DUI under 

the plain view exception when he first saw them in the truck. 

Mr. Romero's position is that by waiting until the truck 

was impounded, Patrolman Dixon lost his opportunity to seize 

the bottles as evidence without a warrant. However, several 

jurisdictions have held that a delayed seizure of articles 

perceived in an arrested person's vehicle at the time of 

arrest is proper as long as the delay is reasonable. State 

v. Jines (Mo. 1976), 539 S.W.2d 801; People v. Calhoun (Mich. 

1971), 186 N.W.2d 56; State v. Caldrone (Kan. 1970), 473 P.2d 

66, cert denied, 401 U.S. 916; State v. Stewig (Minn. 1968), 

161 N.W.2d. 673; State v. Perez (N.M. 19681, 444 P.2d 602; 
Price v. United States (D.C.Cir. 1965), 348 F.2d 68, cert 

denied, 382 U.S. 888. 

We agree that a seizure which is proper under the plain 

view exception may be delayed, so long as the delay is reasonable. After all, the focus of the Fourth Amendment is 

reasonableness. In this case, Patrolman Dixon determined not 

to seize the beer bottles from the truck stuck in the median 

of the interstate at 5:30 a.m. on an icy winter morning while 

the combative Mr. Romero waited in the patrol car. Instead, 

he went back to retrieve the bottles as soon as Mr. Romero 

was booked and incarcerated and the truck had been towed to 

an impound lot. We conclude that this delay was reasonable. 

The defense cites this Court's opinion in State v. 

Cripps (1978), 177 Mont. 410, 582 P.2d 312, as persuasive. 

In that case, defendants had arranged to sell drugs to an 

undercover police officer. When defendants arrived at the 

meeting place, police and sheriff's officers converged on 

them. After all the defendants had been arrested and handcuffed, the officers conducted a search of defendants' vehicle. This Court held that the search was not within the 

permissible scope of a search incident to an arrest or within 

the automobile exception. The Court distinquished that 

situation from one involved in a previous case: 

In Turner the defendant was arrested for D.W.I. 

F7hile a police officer was driving defendant's 

vehicle to the police station, he became aware of a 

beer bottle on the floor of the car. When he 

leaned over to pick it up, he noticed a bag of 

marijuana lying near the beer bottle. This Court 

held that . . . the marijuana was admissible . . . In Turner the police officer was legitimately 

inside defendant's car to begin with. His discovery of the beer bottle and subsequent discovery of 

the marijuana was not because of an intent on his 

part to search the vehicle. Under the circumstances, what the officer did in Turner was reasonable; 

here it was not. 
Cripps, 582 P.2d at 318-19, distinguishing from State v. 

Turner (1974), 164 Mont. 371, 523 P.2d 1386. Distinguished 

from Cripps in the same way Turner - can -- the officer was 

legitimately inside the vehicle. Here, the officer was 

legitimately in the vehicle to seize the beer bottles which 

had been discovered earlier. This was not a search incident 

to an arrest, but a reasonably delayed plain view seizure of 

the beer bottles which led to a plain view seizure of the 

marijuana on the floor. Therefore, the trial court properly 

admitted into evidence the marijuana found on the truck 

floor. 

The defense also asserts that there were no exigent 

circumstances to justify the officers' entry into the impounded truck and seizure of the beer bottles. It argues 

that because of the 1 to 14 hour delay, the plain view doctrine no longer applies and a warrant should have been obtained. On its face, this argument appears to have merit. 

It is premised upon the idea that the police had possession 

of the truck from the time of Mr. Romero's arrest, and could 

have obtained a warrant. However, if a warrant should be 

required after the delay here, why should a warrant not be 

required upon any seizure which accompanies an arrest? 

Considerinq the nature of the pla-in view exception, we conclude that the exigent circumstances which would have allowed 

seizure of the bottles immediately after the arrest did not 

disappear during the short time between Mr. Romero's arrest 

and the retrieval of the beer bottles. 

The operator of Gray's testified that the seizure of the 

beer bottles took somewhere between two and five minutes. 

The defense implies that this time estimate is somehow damaging to the State's case. We do not agree. The two-to-five 
minute estimate does not establish anything more than that 

there was a careful seizure of the beer bottles and the 

consequently-discovered marijuana. 

As a result of our conclusion on the admissibility of 

the small amount of marijuana from the truck floor, it follows that the 3 bundles of marijuana seized on December 12 

and the 20 bundles seized in January were admissible into 

evidence. The warrant issued for the December 12 search was 

supported by the small amount of marijuana found on the floor 

of the truck, the reports from Columbus, and the $1,500 in 

50-dollar bills in Mr. Romero's possession at the time of 

arrest. We affirm the conclusion that this is adequate 

probable cause. The marijuana seized in January is not 

'fruit of the poisonous tree' because of our conclusions that 

the first two seizures were valid. It was discovered when 

the officers were justifiably investigating the report that 

the impounded truck had been tampered with. It is admissible 

under the plain view exception. 

We hold that the District Court properly admitted into 

evidence the marijua-na seized from the truck. 

I1 

Was the evidence of other acts properly admitted? 

Mr. Romero asserts that testimony presented about his 

activities in Columbus on the day before he was arrested and 

about his sales of marijuana to the undercover agent while he 

was awaiting trial did not meet the guidelines set out in 

State v. Jensen (1969), 153 Mont. 233, 455 P.2d 631, on 

evidence of other crimes. He also contends that since the 

court failed to pre-instruct the jury to weigh the evidence 

about his activities in Columbus only for limited purposes, 
reversible error is present under State v. Just (1979), 184 

Mont. 262, 602 P.2d 957. 

Evidence of acts which are inextricably or inseparably 

linked with the crime charged is admissible without regard to 

the rules governing "other crimes" evidence. State v. Riley 

(Mont. 1982), 649 P.2d 1273, 1279, 39 St.Rep. 1491, 1499. 

The testimony given on the first day of trial established 

that Mr. Romero had a bundle of what appeared to be marijuana 

in his possession while in a Columbus bar. It also establishes that he requested a driver for an unexplained trip to 

Canada, that one pound of marijuana was found in Mr. Romero's 

motel room the morning after he checked out, and that he 

denied having a vehicle when questioned by the Columbus 

police. We conclude that these prior acts, which occurred a 

few hours before his arrest, are inextricably linked to the 

charged crime of possession of marijuana with intent to sell. 

Therefore, the Just and Jenson requirements do not apply to 

the testimony about Mr. Romero's activities in Columbus. 

Since the testimony of the undercover agent was presented the second day of trial, after the Just admonition was 

given to the jury, the Just requirement was met. The Jenson 

guidelines for "other crime" evidence are that there be 1) 

similarity between the crimes or acts; 2) nearness in time; 

3) a tendency to establish a common scheme, plan, or system; 

and 4) a determination that the probative value of the evidence is not substantially outweighed by the prejudice to the 

defendant. Jensen, 602 P.2d at 961. Mr. Romero argues that 

the first and fourth requirements were not met. We disagree. 

At trial, Mr. Romero's counsel arged that there was no proof 

that Mr. Romero was aware of or responsible for the marijuana 

hidden in secret compartments of the truck. The undercover 
agent's testimony went directly to Mr. Romero's personal 

involvement with the similar crime of sales of large quantities of marijuana. We conclude that the District Court 

correctly determined that the probative value of this evidence is not substantially outweighed by the prejudice to Mr. 

Romero, and that the District Court properly allowed the 

testimony into evidence. 

We affirm the District Court. 

We Concur: 

Chief Justice 

Justices 
Mr. Justice John C. Sheehy, dissenting: 

The majority have rescued the conviction of the 

defendant from a terrj bly bungled police investigation, but 

at what cost to the law of searches and seizures. 

All of the evidence retrieved from the truck should have 

t 

been suppressed in this case. 

The first search of the truck occurred when the vehicle 

was safely impounded in a wrecking yard at the orders of the 

police. Thus the usual exceptions to a warrantless seizure 

c'o not apply. There were no exigent circumstances. There 

was no inventory search incident to arrest. No reason 

appears why the officers did not apply first for a search 

warrant before entering the impou~ded truck. 

The "plain view" doctrine does not save the intrusion 

into the truck without a warrant. If at the time of the 

arrest the officers had taken into their possession the 

articles then in plain view, their actions would have been 

permi-ssible. That did not occur here. Instead the articles 

were seized as a result of a warrantless search of the truck 

at a time when the "plain view" rule did not apply. 

The fact that the officers saw the articles in the truck 

would have been useable in an affidavit for a search warrant 

later. The rule is that articles, though in plain view, 

seized as part of a warrantless entry, must be suppressed on 

motion. See People v. Griffin (Colo. 1986), 727 P.2d 55; 

Coolidge v. New Hampshire (1971), 403 U.S. 443, 91- S.Ct. 

2022, 29 L.Ed.2d 564. 

The illegal seizure of a marijuana leaf as part of a 

warrantless entry into the truck was used later by the police 

as part of their -justification of probable cause to get the 
search warrant. for the second seizure of contraband. The 

taint of the first illegal seizure comes over and poisons the 

second seizure. 

The third seizure, that from the hidden panels and 

wheelwells, again occurred without a warrant, and no 

excusable attendant circumstances. Again the search was 

il-legal, and the products of the illegal search should be 

suppressed. 

Therefore I dissent. _ ..- --. 

- .*A&, 6 SILCUI 

Justice 

i 

I agree with the dissent of Nr. Justice John C. Sheehy: