No. 13906
IN THE SUPREME COURT OF THE STATE OF MONTANA
1978
STATE OF MONTANA,
Plaintiff and Appellant,
-vs-
JAMES D. JETTY,
Defendant and Respondent.
Appeal from: District Court of the Sixth Judicial District,
Honorable Jack D. Shanstrom, Judge presiding.
Counsel of Record:
For Appellant:
Hon. Mike Greely, Attorney General, Helena, Montana
Charles R. Anderson argued, Assistant Attorney General,
Helena, Montana
Jack Yardley argued, County Attorney, Livingston, Montana
For Respondent :
Huppert and Swindlehurst, Livingston, Montana
Joseph T. Swindlehurst argued, Livingston, Montana
Submitted: April 25, 1978
, .IC'?~
Decided: Jut.; - cs 1978
I -
Filed:
Mr. Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from the District Court, Park County,
wherein the court suppressed marijuana seized in a jail search.
The state appeals and raises these issues:
1. Whether the search of defendant's person under a
warrant of arrest issued by a police magistrate for a parking meter
violation is an unreasonable search?
2. Whether the Livingston meter ordinance is constitu-
tional?
On February 6, 1977, at approximately 3:00 a.m., Officer
Bryce of the Livingston police department stopped a pickup truck
which had no license plate on the rear. While talking to the
driver the officer recognized the passenger as a person for whom
he had a warrant of arrest for an unpaid parking ticket. Officer
Bryce forthwith arrested defendant and advised him he would have
to accompany him to the police station to find out the amount of
the bail bond.
The driver of the pickup informed Officer Bryce that he
would be "following him down with the money." Upon arriving at
the police station, the officer ascertained that the bail bond was
$15 and defendant reminded him his friend who was driving the truck
would bring the bond money to the police station within 20 minutes.
The officer agreed to let defendant wait for his friend
in a holding cell. The procedure requires a search for weapons or
contraband before being placed in the holding cell. The search
consisted of removing defendant's belt and shoes, emptying his
pockets and removing his jacket and vest. It was at this time
the officer claims he saw a plastic bag sticking out of defendant's
shirt. On the other hand, defendant claims that the officer was
in the process of stripping him; he took his shirt off and that
is when the illegal drugs were found. Defendant's friend arrived
at the police station within 20 minutes with the bond money, but
defendant already had been arrested for possession of marijuana.
On March 1, 1977, the District Court held a hearing on a
motion to suppress. On March 24, an order suppressing the mari-
juana found in the search was issued. In its conclusions of law,
the court said:
"I. * * * that the search of the defendant's
person upon his arrest for a parking ticket was
an unreasonable search. There is no justification
for conducting a search consisting of removing
articles of clothing and emptying of pockets when
the defendant is being detained for a mere parking
ticket; and there was no reason to believe he is
armed or dangerous, particularly as in the instant
case when the defendant was merely being placed in
a holding cell and the bond money was expected,
and, in fact, arrived momentarily. The constitu-
tion prohibits 'unreasonable' searches and not all
'lawful' searches are 'reasonable'; assuming the
defendant was lawfully arrested, a reasonable search
under the circumstances would have extended to no
more that a simple patdown for weapons.
"11. The Court further holds that the cus-
todial arrest of the defendant upon a parking meter
warrant was unlawful because it deprived the defend-
ant due process of law and violated the equal pro-
tection clause of the constitution. The defendant
was deprived of due process because, conceivably,
he did not park the automobile which received the
ticket, nor receive the ticket, nor receive notice
the ticket was outstanding, yet was subjected to
being jailed, a search of his person, and possibility
of spending the night in jail. A summons would ob-
viously work as well in ninety-nine percent of the
cases. "
It is from this order of March 24, 1977, suppressing the evidence
that the state appeals.
The state contends that United States v. Robinson, (1973),
414 U.S. 218, 94 S.Ct. 467, 38 L ed 2d 427 and Gustafson v. Florida,
(1973), 414 U.S. 260, 94 S.Ct. 488, 38 L ed 2d 456, are controlling
in this case. The search of the defendant's person was justified
as a search incident to a lawful custodial arrest for a traffic
violation. The United States Supreme Court in Robinson, affirmed
in Gustafson, held:
" * * * The authority to search the person inci-
dent to a lawful custodial arrest, while based on
the need to disarm and to discover evidence, does
not depend on what a court may later decide was
the probability in a particular arrest situation
that weapons or evidence would in fact be found
upon the person of the suspect. * * * It is the
fact of the lawful arrest which establishes the
authority to search, and we hold that in the case
of a lawful custodial arrest, a full search of
the person is not only an exception to the warrant
requirement of the Fourth Amendment, but is also
a 'reasonable' search under that Amendment."
United States v. Robinson, 38 L ed 2d 440.
The opinion in Robinson further stated that the right to search
is not limited if the person was arrested for a traffic offense.
This Court in State ex rel. Kotwicki v. District Court,
(1975), 166 Mont. 335, 532 P.2d 694, upheld the search of a person
who was stopped on a speeding violation. He was unable to post a
$15 appearance bond and was placed under custodial arrest. This
Court held that where the custodial arrest was valid, the search
of his person was also valid and cited Robinson and Gustafson as
authority, but these cases are not controlling in the instant case.
Kotwicki is clearly distinguishable. There the defendant
was an out-of-state resident arrested for a moving traffic viola-
tion by the state patrol in the nighttime, booked into the county
jail and unable to raise any bail. Here, defendant is a local
resident, arrestedat3 a.m. for failure to pay an overdue one
dollar parking ticket. Defendant's friend advised the officer
he would be at the police station with the bail money within 20
minutes. Defendant here was never "booked" as was the defendant
in Kotwicki, but merely placed in a holding cell.
The evidence at the suppression hearing did not disclose
any basis for a mandatory custodial arrest of the defendant.
Here, the officer had knowledge the bail was on its way to the
police station via the defendant's friend. The friend did arrive
with the bail money, well within the reasonable time defendant
was entitled to, to attempt to raise bail. The jail officials
had no reasonable justification for placing him in a holding cell
and subjecting him to a custodial search. The only excuse given
was that it was standard procedure at the jail. It was explained
that at that time in the morning there was no jailer and the ar-
resting officer had to get back on patrol. Lack of manpower and
standard procedure cannot eliminate the individual's constitu-
tional right to be free from unreasonable search and seizure.
Defendant's second issue on appeal becomes academic due
to this Court's holding on the first issue. However, because of
the wide use of this traffic ordinance throughout the state we
feel it necessary to comment on its constitutionality.
The Livingston city code, Section 28-264, provides:
"(a) Every person in whose name a vehicle is
registered (licensed) shall be responsible for any
parking of such vehicle in violation of this divi-
sion.
"(b) It shall be no defense to such charge
that such vehicle was illegally parked by another,
unless it is shown that at such time the vehicle
was being used without the consent of the regis-
tered (licensed) owner thereof."
The Livingston ordinance is identical to a Seattle, Washing-
ton, ordinance which was declared unconstitutional in part by the
Washington Supreme Court in City of Seattle v. Stone, (1966), 67
We cite City of Seattle v. Stone, supra, with approval and
adopt the following rationale:
"The second sentence of the Seattle ordinance
[section 28-264(b), Livingston ordinance] preceding
the proviso is patently incompatible with the con-
cept of due process. It purports to make a defend-
ant responsible even though he in fact might not
have been responsible for the parking violation.
"For the reasons indicated, we are forced to
strike down as unconstitutional that portion of the
second sentence of 521.66.180 [Livingston ordinance
subsection (b)] preceding the proviso, for it de-
prives an automobile owner of due process of law.
"We then interpret the remainder of
821.66.180 [Livingston ordinance 28-264, sub-
section (a)], as do the authorities heretofore
cited, to establish only a prima facie responsi-
bility upon the registered owner, which he has
the risht to rebut. if he can. This in nowise
interripts the city's exercise of its police
power or its right and power to enforce its
arki ins ordinances." (Em~hasis added.) 410 P.2d
k85. i~racketedmateriai added. 1
As pointed out, the owner is still prima facie liable
under the ordinance and subject to arrest and prosecution. However,
he cannot be deprived of his defense that some one else he per-
mitted to use his car was the actual violator.
The order and judgment of the District Court are affirmed.
We Concur:
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