No. 13714
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
THE STATE OF MONTANA, on the
Relation of PHIL MANKIN,
Petitioner,
THE HONORABLE ROBERT H. WILSON,
District Judge of the Thirteenth Judicial District
of the State of Montana, in and for the County
of Yellowstone,
Respondent.
ORIGINAL PROCEEDING:
Counsel of Record:
For Petitioner:
Berger, Anderson, Sinclair and Murphy, Billings,
Montana
Richard Anderson argued, Billings, Montana
For Respondent:
Harold Hanser, County Attorney, Billings, Montana
K. Kent Koolen argued, Deputy County Attorney,
Billings, Montana
Submitted: June 8, 1977
Decided: SEp 2 2 3977
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Filed: c - c -
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, Clerk
Mr. chief Justice Paul G. Hatfield delivered the Opinion of the
Court.
Petitioner, Phil Mankin, seeks a writ of supervisory
control from this Court to require the presiding judge in Crim-
inal Cause No. 10081, in the district court, Yellowstone County,
to grant petitioner's motion to suppress evidence.
Petitioner was charged with the crime of burglary of a
residence. A pretrial motion was filed to suppress evidence con-
sisting of shoes, wrenches, gloves and any other clothing or
personal possessions allegedly taken from petitioner without a
warrant in violation of his rights. An agreed statement of facts
was submitted to the district court for its consideration, supple-
menting other testimony and evidence presented at the formal hear-
ing on the motion to suppress. The district court denied the
motion. From this denial, petitioner seeks a writ of supervisory
control or other appropriate writ from this Court.
The facts are not generally in dispute. On June 13, 1976,
petitioner was arrested in connection with thefts from cars.
Shortly after petitioner's arrest, a burglary was reported of a
residence located within the same vicinity as the alleged thefts.
The petitioner was held in custody on the initial arrest for theft
from cars, pending further investigation of both that crime and
the house burglary.
On the day of petitioner's arrest articles of clothing
were taken from his person. On the following day, petitioner was
released from custody without charges filed. Petitioner's shoes
and other personal possessions were retained by the police and
submitted to the F.B.I. laboratory for comparative analysis with
footprints found during the investigation of the house burglary.
Four months later, upon receipt of the F.B.I. report,
petitioner was charged with the burglary of the residence.
Petitioner moves to suppress this evidence on the grounds
the state violated section 95-714, R.C.M. 1947.
Petitioner does not contend that his initial arrest was
unlawful. Where a lawful arrest occurs, section 95-701, R.C.M.
1947, allows the search of a person and seizure of articles
incident to that lawful arrest. According to the Revised Commis-
sion comment to section 95-714: "Any 'taking' by a police officer
amounts to a seizing."
Petitioner's shoes were taken from him at the time of his
arrest. This taking constituted a lawful seizure. Since the
seizure was lawful, the question before this Court is whether the
retaining of the property by the police was a mere technical error
under section 95-714.
The state contends the failure to comply with section 9 5 -
714, constitutes a mere technical error which does not compel the
catastrophic consequences of suppression of the evidence.
Conversely, petitioner contends that noncompliance with
section 95-714 must result in suppression of property lawfully
seized. The following portion of section 95-714 is relied on to
support this contention:
" * * * If the person arrested is released without
a charge being preferred against him, all instru-
ments, articles or things seized from him, other
than contraband shall be returned to him upon
release. "
Section 95-714 gives as its source the Illinois Code of Criminal
Procedure, Chap. 38, Section 108-2; a statute essentially identi-
cal to our own. The Illinois court in construing section 108-2
has rejected the same argument as that raised by petitioner. In
People v. Pruitt, 16 Ill.App.3d 930, 307 N.E.2d 142, 151, cert.
denied 419 U.S. 968, 95 S.Ct. 232, 42 L Ed 2d 184 (1974), the
Illinois court stated:
"Nevertheless, the defendant contends the clothes
and the hair sweepings should have been suppressed
because the police violated I11.Rev.Stat. (1971)
Ch. 38, Sec. 108-2 when the police did not return
these items upon the defendant's release that
same night. * * *
"Defendant claims that this section has a
basis in the Fourth Amendment and represents
a legislative codification of it; and that the
items retained in violation of this section
must be suppressed under the exclusionary rule.
"The seizure and retention of these items did
not constitute a violation of defendant's Fourth
Amendment rights. As stated previously, the
defendant was validly arrested and the items were
validly seized. The retention of these items
after defendant was released was valid because
the items could be easily destroyed. * * *
" * * * Therefore, at most, only the retention
of the defendant's clothing violated the language
of the Statute. As such retention was only a
violation of a statutory right and not a consti-
tutional one, the clothing is not subject to the
exclusionary rule of evidence and did not require
suppression."
The Illinois court reiterated this holding in People v.
Tompkins, 24 Ill.App.3d 470, 321 N.E.2d 326, 327 (1974), where
the facts are essentially the same as petitioner's case. The
court in Tompkins stated:
"The State contends that the failure to comply with
section 108-2 constitutes a mere technical error
which does not compel a suppression of the evidence.
We agree. * * *
"Section 108-2 must be read in conjunction
with section 108-14 of the same statute which
states:
"'No warrant shall be quashed nor evidence
suppressed because of technical irregularities
not affecting the substantial rights of the
accused. '
"The aforementioned statute was applied in
People v. Smith, 50 I11.2d 229, 278 N.E.2d 73,
wherein the defendant unsuccessfully urged the
suppression of evidence based on a violation
of section 108-2. The court held that a failure
to comply with a statutory direction to furnish
an inventory of seized materials pursuant to a
warrantless search will not, in the absence of
prejudice, invalidate an otherwise proper search
and seizure."
The Illinois court above referred to 111.Rev.Stat. Section 108-14.
This section is the source of our own section 95-717, R.C.M.
1947, which mandates against suppression of evidence on the
basis of irregularities in the proceedings, where the irregular-
ities do not affect the substantial rights of the accused.
Montana follows the rule of statutory construction where,
in borrowing a statute from another state, the legislature borrows
the construction placed upon it by the highest court of the state
from which it is borrowed. Dunham v. Southside National Bank of
Missoula, 169 Mont. 466, 548 P.2d 1383, 33 St.Rep. 372 (1976).
While this Court will consider the construction placed on the bor-
rowed statute, such construction is not binding upon this Court.
State ex rel. Dept. of Highways v. Hy-Grade Auto Court, 169 Mont.
340, 546 P.2d 1050, 33 St.Rep. 222 (1976).
In the case at hand, we accept the construction placed
upon the statute by the Illinois court and adopt it for our own.
Accordingly, petitioner's writ for supervisory control or other
applicable writ is denied.
Chief Justice
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Justices
f r Justice Daniel J. Shea dissenting:
l.
I would grant the petition for writ of supervisory control
and suppress use of the shoes as evidence.
The majority states that "petitioner's shoes were taken
from him at the time of the arrest." But, they were not taken to
hold as evidence. They were taken along with all his clothes and
belongings on his person as part of the standard booking procedures
used when a person is arrested and taken to jail. His clothes and
shoes were not "seized" at that time.
At the time defendant was booked he was under arrest only
for car burglary, and his clothes (including his shoes) were taken
from him before he was ever a suspect in the burglary of the house.
It was later that the police checked the footprints outside the house
and comparing them with defendant's shoes, determined that he might
be linked to the house burglary.
Until his release from jail, defendant's clothes and shoes
were in the lawful custody of the police. Upon his release, if the
police wanted to keep the shoes for further investigation of the
house burglary, they should have applied to the district court for
an order impounding the shoes. In not doing so, and in refusing
to return defendant's shoes to him upon this release from jail,
they violated section 95-714, R.C.M. 1947. The statute is rendered
meaningless if the police are not compelled to either obtain a
court order impounding a defendant's clothes or personal belongings,
or to return them to the defendant upon his release from jail. Sup-
pressing the evidence is the only meaningful way of assuring com-
pliance with that statute.