No. 14392
IN THE SUPREME COURT OF THE STATE OF' MONTANA
1978
THE s'lRI"I' QF MONTANA,
P l a i n t i f f and Respondent,
-VS-
HCbARD NEIL SORENSON,
Defendant and Appellant.
Appeal from: D i s t r i c t Court of the Fourth Judicial District,
Honorable Jack L. Green, Judge presiding.
Counsel of Record:
For Appellant:
m r a l e s , Volinkaty & Harr, Missoula, Montana
A. Bruce H r argued, Missoula, bbntana
ar
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Douglas G. Harkin, County Attorney, Hamilton, Montana
Peggy Toner argued, Deputy County Attorney, Hamilton, Pbntana
Suhitted: November 1 4 , 1978
mid&: JAN 3 1979
~il*: JAN 3 1979
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Defendant, Howard Neil Sorenson, appeals from a con-
viction of misdemeanor possession of dangerous drugs, namely
marijuana, following a trial by jury in District Court,
Ravalli County.
Sometime prior to April 22, 1977, defendant and his
wife went to California for a vacation. The couple lived in
a rural area near Hamilton, Montana, so before the trip,
defendant asked Steve Burnham, a youth he had known for
approximately one month, to care for his houseplants and
animals during his absence. Defendant went to Steve's home,
which is approxiniately one mile from defendant's residence,
the night before he left for the vacation and gave Steve a
key. While defendant was there, Steve's mother, Laurie
Burnham, informed defendant that she would make sure the
tasks were performed, either by Steve or herself. Defendant
understood Mrs. Burnham as saying she would make sure Steve
took care of the house. He made no reply to her statement.
On April 22, 1977, Steve Burnham's parents were advised
of an incident that had taken place at the high school that
day. Steve had taken a pornographic magazine into the school
building and when asked by the principal to hand it over,
had thrown it in the principal's face.
According to Mrs. Burnham, Steve came home from school
very upset. He went upstairs, grabbed a rifle and told his
mother he was "going to get" the high school principal.
Mrs. Burnham persuaded Steve to give her the rifle and she
calmed him down. He left the home approximately one-half
hour later, headed in the direction of town. Fred Burnham,
Steve's father, notified the Ravalli County Sheriff and the
sheriff, in turn, notified the high school principal about
the threats. The principal was asked to make himself unavail-
able.
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Sometime later, the sheriff, a deputy and Steve's
father arrived at the Burnham residence. Mr. Burnham
recalled that Steve had a rifle, used for shooting gophers,
that possibly was at the defendant's residence. It was
decided that Steve may have gone to the defendant's residence,
so the sheriff, deputy and Laurie Burnham went to the house
in search of Steve.
Upon their arrival at defendant's residence, the peace
officers made a cursory search of the outbuildings. They
were unable to detect any movement or other indication that
anyone was in the residence. Previously the sheriff had
questioned Mrs. Burnham concerning who was taking care of
the house. She stated that Steve had been asked to, but
she had assured the defendant the job would be done. The
sheriff did not question Mrs. Burnham as to the extent of
her authority to enter the house.
With Mrs. Burnham leading the way, the officers entered
defendant's hcuse through an unlocked sliding glass door.
As she opened the door, Mrs. Burnham told the officers she
thought "it might not be quite right to enter the house."
Two rifles were observed leaning against a couch. Mrs.
Burnham identified one of the rifles, but under the circum-
stances, it was decided that both should be confiscated.
The trio was in the house for approximately fifteen
minutes. While searching for Steve in the basement and
other available rooms, the sheriff noticed a large "hooka-
type" pipe in the bedroom, three pipes on a buffet and a
jar of marijuana seeds on top of some contained garbage. In
the living room, small marijuana plants were disccvered growing
among the houseplants and others were found in individual
containers.
On May 3, 1977, eleven days after the search for Steve
had been conducted, a search warrant was issued based on the
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the sheriff's earlier observations. The contraband was
seized and defendant was charged with misdemeanor possession
of dangerous drugs, namely marijuana. A jury trial was set
for October 6, 1977. Before the trial, the District Court
heard testimony regarding defendant's motion to suppress
evidence. Defendant contended that his constitutional
right to be free from unreasonable searches and seizures, as
guaranteed by the Fourth Amendment of the United States
Constitution, had been violated. The District Court denied
the motion, finding that Mrs. Burnham had authority to
enter the house.
Defendant was found guilty and sentenced to one year
in the Ravalli County jail, such sentence being suspended on
various conditions.
For the reasons expressed herein, we need only consider
defendant's primary issue on appeal.
Did circumstances exist which suspended the Fourth
Amendment's warrant requirement and justified the peace
officers' search of defendant's residence on April 22, 1977?
It is well established that under certain circumstances,
peace officers may seize evidence in plain view without a
warrant. Coolidge v. New Hampshire (1971), 403 U.S. 443, 29
L.Ed.2d 564, 91 S.Ct. 2022 reh.den. 404 U.S. 874, 30 L.Ed.2d
120, 92 S.Ct. 26. The "plain view" doctrine may be relied
on if two threshold requirements are met: the officer must
have a prior justification for the intrusion and the incrim-
inating evidence must be discovered inadvertently in the
course of the justified intrusion. 403 U.S. at 466.
The officers' initial intrusion in the instant case
was not accomplished under the authority of a search warrant.
Therefore, the intrusion must be justified under one of the
recognized exceptions to the Fourth Amendment's warrant
requirement. This "prior justification" must be established
before we can determine whether the officers' plain view
observations were properly used as probable cause for the
issuance of the search warrant on May 3, 1977.
"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."
Katz v. United States (1967), 389 U.S. 347, 357, 19 L.Ed.2d.
576, 88 S.Ct. 507. "The exceptions are jealously --
and care-
fully drawn, and there must be a showing by those who seek
exemption that the exigencies of the situation made that
course imperative. The burden is on those seeking the
exemption to show the need for it." Coolidge, 403 U.S. at
455 (emphasis added).
The State conrends that, although the circumstances
presented to the officers in this case do not fit into any
single category of cases excepted from the warrant require-
ment, they nevertheless contain integral elements from
various categories, which taken as a whole, reveal the
reasonableness of the officers' intrusion. In view of the
restrictive nature of the exceptions and their limited
application, it cannot be said that the United States Supreme
Court contemplated law enforcement officers relying on
elements of various exceptions to justify their intrusion.
We will not blend the well-delineated exceptions into one
that will fit the facts of this case.
Peace officers in "hot pursuit" of a fleeing felon may
enter premises without a warrant if the exigencies of the
situation make that course imperative. Vale v. Louisiana
(1969), 399 U.S. 30, 26 L.Ed.2d 409, 90 S.Ct. 1969; Warden,
Maryland Penitentiary v. Hayden (1967), 387 U.S. 294, 18
L.Ed.2d 782, 87 S.Ct. 1642. In Hayden, police officers,
-5-
informed that an armed robbery had just occurred and that
the suspect had entered a house minutes before their arrival,
entered, searched the house and arrested the suspect. The
Supreme Court, speaking through Mr. Justice Brennan, stated:
". . . The Fourth Amendment does not require
police officers to delay in the course
of an investigation if to do so would
gravely endanger their lives or the lives
of others. Speed here was essential, and
only a thorough search of the house for
persons and weapons could have insured
that Hayden was the only man present and
that the police had control of all weapons
which could be used against them or to effect
an escape." 387 U.S. at 298.
The State contends a variation of the "hot pursuit"
doctrine should be applied to this case because the officers
were searching for an angry youth who had recently threatened
violence against another and who had ready access to a
weapon. This simply is not a "hot pursuit" case. The
doctrine is unavailable to peace officers until a felony
has been committed and the suspect is fleeing.
Another of the carefully defined exceptions to the
Fourth Amendment's warrant requirement involves situations
where officers have probable cause that they will find the
instrumentality of a crime or evidence related to the crime.
Dyke v. Taylor Implement Mfg. Co. (1968), 391 U.S. 216, 20
L.Ed.2d 538, 88 S.Ct. 1472. Again, exigent circumstances
must exist, making it impracticable to obtain a warrant.
Coolidge, 403 U.S. at 460.
If we assume that the officers entered defendant's
residence under the reasonable belief that they would find
the youth or a weapon and thereby prevent the commission
of a violent crime, we cannot say that an emergency situation
existed that would justify violating the privacy of defendant's
home. As stated by Mr. Justice Douglas in McDonald v. United
States (1948), 335 U.S. 451, 455, 93 L.Ed. 153, 69 S.Ct. 191:
"We are not dealing with formalities.
The presence of a search warrant serves
a high function. Absent some grave
emergency, the Fourth Amendment has
interposed a magistrate between the
citizen and the police. This was done
not to shield criminals nor to make
the home a safe haven for illegal activities.
It was dcne so that an objective mind
might weigh the need to invade that privacy
in order to enforce the law. The right
of privacy was deemed too precious to
entrust to the discretion of those whose
job is the detection of crime and the arrest
of criminals. Power is a heady thing; and
history shows that the police acting on
their own cannot be trusted. And so the
Constitution requires a magistrate to pass
on the desires of the police before they
violate the privacy of the home. We cannot
be true to that constitutional requirement
and excuse the absence of a search warrant
without a showing by those who seek exemption
from the constitutional mandate that the
exigencies of the situation made that course
imperative."
Precautionary measures had been taken to insure the
safety of the high school principal. The youth had left
his home a half hour after his mother had calmed him
down. He headed in the direction of town, away from
defendant's residence. Defendant's residence was in a rural
area, far from any possible scene of violence. The State
concedes that an emergency situation did not exist at
defendant's residence. In fact, the youth's mother was the
first to enter the residence. Other courses of conduct were
available to the officers. The State has failed to meet
its burden., The exigencies of the situation did not make
entry imperative.
Finally, the State contends defendant's constitutional
rights were waived by a third party, namely Laurie Burnham,
the youth's mother.
A search which is conducted pursuant to the consent
of the party being searched meets the Fourth Amendment's
standard of reasonableness, Davis V. United States (1946),
328 U.S. 582, 90 L.Ed. 1453, 66 S.Ct. 1256; reh.den. 329
U.S. 824, 91 L.Ed. 700, 67 S.Ct. 107; Zap v. United States
(1946), 328 U.S. 624, 90 L.Ed. 1477, 66 S.Ct. 1277, vacated
on rehearing on others grounds 330 U.S. 800, 91 L.Ed. 1259,
67 S.Ct. 857. Additionally, ". . . when-the pr~secu~tion
seeks to justify a warrantless search by proof of a voluntary
consent, it is not limited to proof that consent was given
by the defendant, but may shcw that permission to search was
obtained from a third party who possessed common authority
over or other sufficient relationship to the premises or
effects sought to be inspected." United States v. Matlock
(1974), 415 U.S. 164, 171, 39 L.Ed.2d 242, 94 S.Ct. 988.
The District Court determined that Laurie Burnham had
authority to enter defendant's home. But did she have
authority to consent to the officer's entry? Did she possess
"common authority" over the home or have some other "sufficient
relationship" with the home that would enable her to allow
the officers inside? "Common authority" was defined in
Matlock, 415 U.S. at 171, n. 7:
"7. Common authority is, of course, not
to be implied from the mere property
interest a third party has in the property.
The authority which justifies the third-
party consent does not rest upon the law
of property, with its attendant historical
and legal refinements, see Chapman v.
United.States, 365 U.S. 610, 81 S.Ct. 776,
5 L.Ed.2d 828 (1961) (landlord could not
validly consent to the search of a house
he had rented to another), Stoner v. California,
376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856
(1964) (night hotel clerk could not validly
consent to search of customer's room) but
rests rather on mutual use of the property
by persons generally having joint access or
control for most purposes, so that it is
reasonable to recognize that any of the co-
inhabitants has the right to permit the
inspection in his own right and that the
others have assumed the risk that one of
their number might permit the common area
to be searched."
Laurie Burnham was nct a co-inhabitant of the home. She
could not permit an inspection in her own right. Therefore,
her consent was valid only if it can be shown that she
possessed some other "sufficient relationship" with the
home.
The defendant asked the youth, Steve Burnham, to care
for his houseplants and animals while he was away, nothing
more. He did not ask Laurie Burnham to care for his house.
The key had been given to Steve, thereby giving him, not
Laurie Burnham, constructive possession of the house.
Laurie Burnham merely gratuitously guaranteed that her son
would perform the tasks. Even assuming she obtained implicit
permission to enter the house because the defendant did not
respcnd to her offer, her authority was limited to enter to
perform the requested tasks. She did not possess a "sufficient
relationship" with the residence which would give her
authority to consent to a search.
We conclude that the evidence should have been su~pressed
because of the unlawful entry.
Reversed for disposition in accordance with this
opinion.
/ Justice
1
We Concur: L
'
%A~~4 8.
Chief Justice