No. 12648
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
1974
STATE OF M N A A
OTN,
P l a i n t i f f and Appellant,
-vs -
BENNIE LAIRD TURNER,
Defendant and Respondent.
Appeal from: D i s t r i c t Court of t h e W e l f t h J u d i c i a l D i s t r i c t ,
Honorable B e W. Thomas, Judge presiding.
Counsel of Record :
For Appellant :
Hon. Robert L e Woodahl, Attorney General, Helena,
Montana
J. Michael Young appeared, A s s i s t a n t Attorney General,
Helena, Montana
Ronald W. Smith argued, County Attorney, Havre, Montana
For Respondent :
Hauge, Hauge, Ober and Spangelo, Havre, Montana
Ted Thompson argued, Havre, Montana
Submitted : June 14, 1974
Decided :JUL - 11974
F i l e d :.
r L
@ - 1 1974
Honorable E. Gardner Brownlee, D i s t r i c t J u d g e , s i t t i n g i n p l a c e
o f M r . Chief J u s t i c e James T . H a r r i s o n , d e l i v e r e d t h e Opinion
of t h e Court.
T h i s a p p e a l by t h e S t a t e r a i s e s t h e q u e s t i o n o f whether
t h e d i s t r i c t c o u r t e r r e d i n suppressing c e r t a i n evidence. It is
u n d i s p u t e d t h a t o f f i c e r s Stremcha and Dramstad of t h e Havre
P o l i c e Department a r r e s t e d d e f e n d a n t Bennie L a i r d Turner f o r
o p e r a t i n g a motor v e h i c l e w h i l e under t h e i n f l u e n c e o f i n t o x i -
cating liquor. There i s no q u e s t i o n o f t h e grounds f o r o r t h e
v a l i d i t y of t h e a r r e s t . Following t h e a r r e s t d e f e n d a n t was p l a c e d
i n t h e p o l i c e c a r t o be t r a n s p o r t e d t o t h e p o l i c e s t a t i o n . Officer
Dramstad was d i r e c t e d by h i s s u p e r i o r t o b r i n g d e f e n d a n t ' s c a r t o
the police station. I t i s standard operating procedure f o r t h e
Havre P o l i c e Department t o do t h i s r a t h e r t h a n l e a v e t h e c a r un-
a t t e n d e d on t h e c i t y s t r e e t s . I n t h i s c a s e d e f e n d a n t d i d n o t re-
q u e s t t h e o f f i c e r s t o make any o t h e r d i s p o s i t i o n of h i s c a r , and
upon b e i n g t o l d t h a t it would be t a k e n t o t h e s t a t i o n h o u s e , he
made no o b j e c t i o n .
During t h e s h o r t t r i p t o t h e p o l i c e s t a t i o n O f f i c e r
Dramstad became aware o f a b e e r b o t t l e on t h e f l o o r o f t h e c a r .
Upon a r r i v i n g a t t h e s t a t i o n h e went around t o t h e p a s s e n g e r s i d e
of t h e c a r t o remove t h e b e e r b o t t l e and h o l d it a s e v i d e n c e . When
he p i c k e d up t h e b o t t l e he o b s e r v e d what he s u s p e c t e d was, and
which l a t e r w a s proven t o b e , a bag of m a r i j u a n a l y i n g n e a r t h e
bottle. O f f i c e r Dramstad removed t h i s bag a s w e l l as t h e b e e r
bottle. He t o o k t h e s e i t e m s i n t o t h e p o l i c e s t a t i o n and r e t u r n e d
t o make a more complete s e a r c h of t h e c a r . H e found a m a r i j u a n a
cigarette i n the ash tray. Defendant was t h e n a r r e s t e d on t h e
a d d i t i o n a l c h a r g e o f p o s s e s s i o n of m a r i j u a n a .
The u s e o f t h e s e two i t e m s o f m a r i j u a n a i n e v i d e n c e was
s u p p r e s s e d by t h e d i s t r i c t c o u r t .
The f a c t s of t h e a r r e s t and t h e d e c i s i o n t o t a k e t h e de-
fendant t o t h e p o l i c e s t a t i o n required t h e o f f i c e r s t o determine
what d i s p o s i t i o n would be made of d e f e n d a n t ' s a u t o m o b i l e . Depart-
ment policy called for the automobile to be taken to the police
station. Certainly such conduct would insure the safety of de-
fendant's property. Without another alternative suggested by
defendant, such procedure seems reasonable. As stated by the
Supreme Court of the United States in a footnote in the case of
United States v. Robinson, ,
U.S. - 38 L.Ed.2d 427, 433,
434, 436, 94 S.Ct. 467 (1973) "Such operating procedures are not,
of course, determinative of the constitutional issues presented
by this case." That case and a companion case, Gustafson v.
Florida, ,
U.S. - 38 L.Ed.2d 456, 94 S.Ct. 488 (1973) sum-
marize the law as follows:
"It is well settled that a search incident to
a lawful arrest is a traditional exception to the
warrant requirement of the Fourth Amendment. This
general exception has historically been formulated
into two distinct propositions. The first is that
a search may be made of the person of the arrestee
by virtue of the lawful arrest. The second is that
a search may be made of the area within the control
of the arrestee.
"Examination of this Court's decisions in the area
show that these two propositions have been treated
quite differently. The validity of the search of
a person incident to a lawful arrest has been re-
garded as settled from its first enunciation, and
has remained virtually unchallenged until the
present case. The validity of the second propo-
sition, while likewise conceded in principle, has
been subject to differing interpretations as to
the extent of the area which may be searched.''
These two cases considered the first proposition in relation to
a search of the person following a traffic arrest. The search
in each case resulting in the finding of dangerous drugs was
upheld. In Robinson the Supreme Court stated the rule applic-
able to this case when it stated:
"Thus the broadly stated rule, and the reasons
for it, have been repeatedly affirmed in the
decisions of this Court since Weeks v. United
States nearly 60 years ago. Since the statements
in the cases, speak not simply in terms of an
exception to the warrant requirement, but in
terms of an affirmative authority to search, they
clearly imply that such searches also meet the
Fourth Amendment's requirement of reasonableness."
From a constitutional standpoint this case turns on
the question of whether the actions of the officers were
reasonable. In considering whether the actions were reason-
able, the Montana statutes should be examined to learn what
authority the Legislature has given the officers. Section
95-702, R.C.M. 1947, states in part:
"When a lawful arrest is effected a peace
officer may reasonably search the person arrested
and the area within such person's immediate
presence for the purpose of:
"(d) Discovering and seizing any persons, instru-
ments, articles or things which may have been used
in the commission of, or which may constitute
evidence of, the offense."
Under Montana law, section 32-2142, R.C.M. 1947, a person
may be arrested for driving an automobile while under the influence
of intoxicating liquor or drugs. After a person has been removed
from a car and arrested for DWI the officer has the obligation to
"work up" his case, and contrary to what was stated by defendant's
counsel in open court, all of the possible evidence is not "under
the defendant's belt". Certainly, information about the nature
of the intoxicating substance might reasonably be expected to be
found in the automobile. The automobile is an essential part of
the evidence, and all information about the automobile is impor-
tant, including whether or not its condition caused its erratic
movements on the highway. Only by examining the automobile and
certainly by driving it will the officer find the answers to per-
tinent questions.
Officer Dramstad not only exercised good judgment in
collecting evidence pursuant to statutory and constitutional
provisions but he went further, and by following police procedure
and removing defendant's car to a place for safekeeping, he took
care that defendant's property would not be left unattended and
subject to possible damage.
The district court order suppressing the evidence is
reversed. The case is returned to the district court for further
action not inconsistent with this opinion.
Hon. E. Gardner Brownlee, District
Judge, sitting in place of Mr. Chief
Justice James T. Harrison.
We concur:
Justices