State v. Lane

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

THE STATE OF MONTANA,
Plaintiff and

LESTER BROWNLOW LANE, JR . ,
Defendant and b.
tJ
c

Appeal from: ~istrictCourt 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

Submitted: December 5, 1977
TP r
Decided b d 0 197;
--
Filed: -
7'-
- = ,. : '

- .
. ./,,.- rcC ,., %(
-, ,!
fr , ,,
. ;. , '/
't
/ Clerk
Mr. 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 evidence was 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, 1976 with criminal sale of dangerous drugs, a felony,
in violation 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 the mobile 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 officer was 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 the window. 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) one
to 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 officer went 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 "Consent to 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 the mobile home.
Following the suppression hearing, the state sought to
justify the seizure and subsequent admission in evidence of
the plants under the "Plain View" 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 District Court, by its findings of fact, conclusions
of law, memorandum and order, dated January 28, 1977,
determined there was no "search" within the purview of the
Fourth Amendment. However, the court also concluded that
the warrantless seizure of the plants was unreasonable and,
therefore, a violation of the Fourth Amendment.
In its memorandum, the District Court indicated its
determination was based on the state's failure to satisfy
two essential preconditions to the application of 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 District Court suppressing the evidence.
The issues on appeal concern application of the component
requirements of the "Plain View" doctrine to the facts at bar.
We phrase the issues as follows: (1) Must "exigent circum-
stances" rendering imperative an immediate warrantless
seizure of evidence be demonstrated where the evidence so
seized is within the plain view of the officer? (2) Was the
evidence "immediately apparent as such" to Officer Walrod in
the instant case?
The state centrally argues there is no requirement under
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
District Court, that a showing of exigent circumstances by
the state is a foundational prerequisite to application of
the "Plain View" 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:
 " * * * 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." Jones v. 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, 91 S.Ct. 2022, 29 L Ed 2d 564, 583, and has found
application in Montana. State v. 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:
"What the 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 it be
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 warrant-
less 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 * * *." 403 U.S. 466.
The "Plain View" doctrine is not without limits, however.
Plain view of evidence, standing alone, is an insufficient
justification for warrantless seizure thereof. Despite the
observation of evidence in plain sight and the existence of
probable cause, the police are not justified in making a
warrantless seizure of the evidence absent a showing of
exigent circumstances rendering immediate seizure imperative.
Coolidge v. New Hampshire, supra.; State v. Schur (1975), 217
Kan. 741, 538 P.2d 689; Brown v. State of Maryland (1972),
15 Md. App. 584, 292 A.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 evidence prior 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 is voiced by the majority opinion in
Coolidge:
" * * * First, the magistrate's scrutiny is intended
to eliminate altogether searches not 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 justified without 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, Chime1 v. 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 the mobile home and the evidence to be seized therein.
The seizure was therefore unreasonable and a violation of
defendant's right to be free from unreasonable searches and
seizures under the Fourth and Fourteenth Amendments. Accord-
ingly, the District Court was correct in granting defendant's
motion to suppress the evidence.
We question whether the plain view which occurred in
this case is within the doctrine contemplated by Coolidge for
yet another reason.
The first condition precedent and common denominator to
any valid "Plain View" seizure is, under Coolidge, a
justifiable prior 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 post-
intrusion observations. Brown v. Maryland, supra. The formal
"Plain View" doctrine does not extend to preintrusion
observation of evidence within a "constitutionally protected
area," such as defendant's mobile home, from a vantage point
outside the "constitutionally protected area." Such distinction
is recognized by the majority in Coolidge, wherein it is
stated:
" * * * Incontrovertible testimony of the senses that
an incriminating object is on premises belonging to a
criminal suspect may establish the fullest measure of
probable cause. But even where the object is contra-
band, this Court has repeatedly stated and enforced
the basic rule that police may not enter and make a
warrantless seizure. Taylor v. United States, 286
U.S. 1; Johnson v. United States, 333 U.S. 10; McDonald
v. United States, 335 U.S. 451; Jones v. United States,
357 U.S. 493, 497-498; Chapman v. United States, 365
U.S. 610; Trupiano v. United States, 334 U.S. 699."
403 U.S. 468.
In this case, Officer Walrod, by his own testimony,
first viewed the evidence located within defendant's mobile
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
in plain view. Cf. State v. Gallagher, supra.
It is well settled that this Court presumes the correctness
of the lower court's order on appeal. It is the burden of
appellant to overcome such a presumption. State ex rel.
Stevens v. District Court (1976), Mont. , 550 P.2d1
385, 388, 33 St.Rep. 469; State ex rel. Elakovich v. Zbitnoff
(1963), 142 Mont. 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 District Court suppressing evidence is
affirmed.
W e concur:

Chief J u s t i c e /\