No. 86-24 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986

THE STATE OF MONTANA, Plaintiffand Respondent,

-vsTHOMASARTHUR ROMEPO, Defendantand Appellant.

APPEAL FROM: TheDistrict Court of the Sixth JudicialDistrict, Inand for the County of Park, TheHonorableByron Robb, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Knuchel & McGregor; DanielB. McGregor argued, Livingston,Montana

For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana Barbara Claassen argued,Asst. Atty. General,Helena Nels Swandal,CountyAttorney, Livingston,Montana

-- - Submitted: October 21, 1986 Decided: December 30, 1986

Filed:Mr. Justice Fred J. Weber delivered the Opinionof the Court.

Defendant was convicted of criminal possession with intent to sell dangerous drugs, in a jury trial in Park County. We affirm. The issuesare: 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 inColumbus,Montana. While in Columbus,he drank at severalbars andwas involved in a couple of altercations, resulting inhis coming into contact with thepolice. In the earlymorning hours ofDecember 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 PoliceDepartment. 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 thenight before and might be intoxicated and/or armed. Patrolman Dixon informed Mr. Romero he would callawrecker. Hewent intoLivingston,calledGray's Road Rescue, and also picked up a Livingston police officer before returning to the sceneof the accident. When the officers returned to the truck,Mr. Romero was asleep or passed out on the seat. Patrolman Dixon rapped onthe window and opened the door to waken Mr. Romero, who immediatelybecame 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 PatrolmanDixon secured the truck,he noticed 3 or 4 beer bottles on the floor of the cab. He did not seize the bottles as evidenceof DUI at that time. WhenMr. Romerowasbooked 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. Itwasbeing held inside abuilding. 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. Romerowas suspected of attempting to sell marijuana, PatrolmanDixonobtained a searchwarrant 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 hangingfrom the right rear wheel well. He looked in thewheel well and sawawrapped bundle, similar to those seized earlier. A piece ofmetal had alsobeen removed from the leftwheel well and was lying on the ground. Patrolman Dixonphoned another officer for assistance. They searched the truck, finding 20 bundles ofwhat proved tobemarijuana in thewheelwells 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 effectdrug sales. Thesemeetings 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 shouldhave been obtainedbefore the initial search because the truck was impounded and no exigent circumstancesexisted. Additionally, defense counsel argued the fruit of thepoisonous tree doctrinebarred introduction of the marijuana seized later. The motion was denied. The trial judge found the initial seizure of beer bottles and the trace amount ofmarijuanawas justifiedunder the plain view doctrine, the second seizure of three bundles

wasvalid pursuant to a searchwarrant,and the final seizure of 20bundleswasvalid 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 onepound of marijuana from his Columbus motel room, and the July and Auqust transactions with the undercover officer. Followingbriefing and argument on these matters the trial judge allowed the evidence tobe presented at trial. The other acts testimonywas presented the firstday of Mr. Romero's trial. Both counsel and the trial judge forgot to present a cautionary instructionto the jury prior to the testimony. The second morning of trial, defense counsel argued in chambers that failure to deliver the cautionary instructionhad caused irreparabledamage tohis clientand 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 substanceproved that itwas 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 instructionwas given prior to any testimony on the second day of trial. The jury found Mr. Romero guilty of criminal possession with intent to selldangerous drugs. He was sentenced to 16 years in theMontana 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 fromunreasonable 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 recognizedexceptions to the general prohibition against automobile searches without warrants: the automobile exception, the exception for searches incident to arrest, inventory searches,and theplain view exception. Mr. Romero contends that a warrant should have been obtained before the officers retrieved thebeer 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 thiswas a reasonably delayed plain view seizure,wewill 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 exceptionwhen he first sawthem in the truck. Mr. Romero's position is thatby 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; Peoplev. Calhoun (Mich. 1971), 186N.W.2d 56; Statev. Caldrone (Kan. 1970), 473 P.2d 66, cert denied, 401 U.S. 916;Statev. 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, 382U.S. 888. We agree that a seizure which isproper 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,PatrolmanDixondetermined not to seize thebeer bottles from the truck stuck in themedian of the interstateat 5:30 a.m. on an icywinter morningwhile 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 incidentto an arrest orwithin the automobile exception. The Court distinquished that situation fromone involved in aprevious case:

In Turner the defendant was arrested for D.W.I. F7hile a police officer was driving defendant's vehicle to thepolice station,hebecame aware ofa 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

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# . themarijuanawas admissible

# . .. In Turner the police officer was legitimately inside defendant's car to begin with. His discovery of the beer bottle and subsequentdiscovery of the marijuana was not because of an intent on his part to search thevehicle. Under the circumstances,what the officer did in Turnerwas reasonable; here itwas 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 

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## -- 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. Thiswas 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 courtproperly 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 ofMr. 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-inview 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 retrievalof the beer bottles. The operatorofGray's testified that the seizureof the beer bottles took somewhere between two and five minutes. Thedefense implies that this time estimate is somehow damaging to the State's case. We do not agree. The two-to-fiveminute estimate does not establish anything more than that there was a careful seizure of the beer bottles and the consequently-discoveredmarijuana. 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 searchwas supportedby the small amount ofmarijuana 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

'fruitof 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 tamperedwith. It is admissible under theplain view exception. We hold that the District Court properly admitted into evidence themarijua-naseized from the truck. I1 Was the evidenceof other actsproperly admitted? Mr. Romero asserts that testimony presented about his activities in Columbus on the day before he was arrested and about his sales ofmarijuana 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, 602P.2d 957. Evidence of acts which are inextricably or inseparably linkedwith the crime charged is admissible without regard to the rules governing "other crimes" evidence. Statev. Riley

(Mont. 1982), 649 P.2d 1273, 1279, 39 St.Rep. 1491, 1499. The testimony given on the first day of trial established thatMr. Romerohad abundle ofwhat appeared to bemarijuana 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 ofmarijuana was found inMr. 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 ofpossession ofmarijuanawith intent to sell. Therefore, the Just and Jenson requirements do not apply to the testimony about Mr. Romero's activities in Columbus. Since the testimonyof the undercover agentwaspresented the second day of trial, after the Just admonition was given to the jury, the Just requirementwasmet. 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 theprejudice to the defendant. Jensen, 602 P.2d at 961. Mr. Romero argues that the firstand fourth requirementswere notmet. We disagree. At trial,Mr. Romero's counsel arged that therewas no proof thatMr. Romerowas aware ofor responsible for the marijuana hidden in secret compartments of the truck. The undercoveragent's testimony went directly to Mr. Romero's personal involvementwith 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 theprejudice toMr. Romero, and that the District Court properly allowed the testimony into evidence. We affirm the District Court.

We Concur:

Chief Justice

JusticesMr. Justice John C. Sheehy,dissenting:

The majority have rescued the conviction of the defendant from a terrjbly bungled police investigation, but atwhat cost to the law of searchesand 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 awrecking 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 warrantbefore 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 awarrantless search of the truck at a time when the "plainview" rule did not apply. The fact that the officers sawthe 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 awarrantless 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 laterby thepolice

as part of their -justification of probable cause to get thesearch 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 Idissent. 

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# .*A&, 6 SILCUI Justice i

I agree with the dissent ofNr. Justice John C. Sheehy: