NO. 82-129
IN THE SUPREME COURT OF THE STATE OF MONTANA
1982
STATE OF MONTANA,
Plaintiff and Respondent,
VS .
DANNY PAUL GODSEY,
Defendant and Appellant.
Appeal from: District Court of the Sixteenth Judicial District,
In and for the County of Powder River
Honorable Alfred B. Coate, Judge presiding.
Counsel of Record:
For Appellant:
Stephens and Cole, Billings, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Robert Brooks, County Attorney, Broadus, Montana
Submitted on briefs: October 7, 1982
Decided: December 29, 1982
Filed:
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4+ Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Defendant was convicted of one count of possession of
dangerous drugs, a misdemeanor, and of one count of criminal
sale of dangerous drugs, a felony, in a Powder River County
trial held before the judge sitting without a jury. The
District Court dismissed a third count charging possession
of dangerous drugs, cocaine, for insufficient evidence.
Defendant now appeals. We affirm.
On Saturday morning, March 14, 1981, the Powder River
County sheriff's office received a complaint from Broadus
resident Anne Amsden that a vehicle was speeding in her
neighborhood. She was concerned for the safety of her
grandchildren who were playing in the area. Someone had
identified defendant as the owner of the car, the only 1972
orange and black two-door Chevy Nova in town. Deputy Dennis
Frawley stopped at the Amsden residence later in the morning
to get a description from Mrs. Amsden, and he asked her to
sign a complaint. She did not want to sign a complaint for
the issuance of a citation, but she did want something done.
Deputy Frawley told her that he would "go over and talk to
Dan and tell him to slow it down."
The deputy then went to the residence of defendant's
grandparents, which was where defendant stayed when he was
in Broadus, and he found the car in the driveway of the
residence. Several people were around the garage. The
front tires were on the concrete apron in front of the
garage, and he noticed someone working under the car.
Assuming it was defendant, Frawley reached down and shook
the person's foot. It turned out to be a fifteen-year-old
friend of defendant, Tim Eustice, who slid part way out from
under the car and told F r a w l e y t h a t d e f e n d a n t was i n the
house. A s t h e d e p u t y s t o o d back u p , he glanced through t h e
o p e n window of t h e c a r and saw a b a g g i e o f w h a t a p p e a r e d t o
be m a r i j u a n a l y i n g on t h e f r o n t s e a t . He seized t h e baggie,
arrested defendant for possession of dangerous drugs,
secured the scene, and called the dispatcher for back-up
assistance.
S i n c e i t was a weekend, F r a w l e y was t h e o n l y d e p u t y on
duty. It took some t i m e for another officer t o arrive.
F r a w l e y t h e n booked d e f e n d a n t , a n d t h e c a r was impounded.
Defendant was later charged with t h e s a l e of a dangerous
d r u g ( m a r i j u a n a ) t o a minor (Tim E u s t i c e ) and w i t h p o s s e s -
s i o n of c o c a i n e .
Two i s s u e s a r e p r e s e n t e d o n a p p e a l :
(1) Whether t h e D i s t r i c t C o u r t e r r e d i n a l l o w i n g t h e
i n t r o d u c t i o n of e v i d e n c e s e i z e d a s a r e s u l t o f t h e w a r r a n t -
less entry onto private premises by a law enforcement
o f f i c e r ; and
( 2) Whether s u f f i c i e n t e v i d e n c e s u s t a i n s t h e c o n v i c -
tions.
Defendant c h a l l e n g e s t h e s e i z u r e of t h e m a r i j u a n a on
the basis that it was a warrantless seizure on private
p r o p e r t y f o l l o w i n g w h a t may h a v e b e e n a p r e t e x t e n t r y o n t h e
premises. T h i s argument f a i l s .
This Court has carefully considered warrantless
s e a r c h e s t h a t f a l l w i t h i n t h e " p l a i n view" e x c e p t i o n t o t h e
F o u r t e e n t h Amendment p r o h i b i t i o n o n s u c h s e a r c h e s t h a t was
first enunciated by the United States Supreme Court in
Coolidge v. New Hampshire (1971), 403 U.S. 443, 466, 91
S.Ct. 2022, 2038, 29 L.Ed.2d 564, 583, and S t a t e v. Lane
(1977), 175 Lqont. 225, 229, 573 P.2d 198, 201. In order for
us to find that evidence obtained without a search warrant
falls within the plain view doctrine, it must be demon-
strated that: (1) the police officer had a prior justifica-
tion for the intrusion; (2) that he then inadvertently came
across the evidence incriminating the accused; and (3) that
exigent circumstances existed that rendered immediate
seizure imperative. State v. Lane, 175 Mont. at 229, 573
P.2d at 201.
Defendant argues that these conditions did not exist.
He contends that Frawley did not have a legitimate reason to
intrude upon the premises but rather used the speeding
complaint as a pretext for investigating defendant, who was
characterized by the officer as a suspected drug user. He
also contends that no exigent circumstances existed that
required immediate seizure of the baggie of marijuana.
These contentions are without merit.
The record provides ample support for the officer's
claim that he was investigating a traffic complaint. Cf.
State v. Carlson (1982), Mon t . , 644 P.2d 498, 39
St.Rep. 802. There is also substantial evidence supporting
his claim that he inadvertently came upon the baggie of
marijuana. Both he and Tim Eustice testified to its ready
visibility. Finally, the facts clearly demonstrate the
existence of exigent circumstances. Several people were
working or standing in the area near the garage. Deputy
Frawley was the only officer on duty at the time he spotted
the marijuana. It would take some time for a back-up
officer to be called and to arrive. Since it was Saturday,
it was likely that the justice of the peace might not be
available to sign a search warrant. And the Powder River
County attorney, the officer who generally prepared all
search warrants, was out of town for the weekend.
These circumstances are clearly distinguishable from
the situation presented in State v. Lane, supra. In Lane,
an officer spotted a marijuana plant from outside the window
of a mobile home. There was no indication that anyone
observed the officer as he made this discovery or that any
threat was presented that the plants would be moved or
destroyed in the time needed to procure a search warrant.
The officer invaded the sanctity of someone's home, the
chief evil against which the Fourth Amendment is directed.
Payton v. New York (1980), 445 U.S. 573, 586, 100 S.Ct.
1371, 63 L.Ed.2d 639, 651.
Here, the officer did not violate any reasonable
expectation of privacy that defendant may have had. State
,
v. Byem (1981), - Mont. - 630 P.2d 202, 38 St.Rep. 891.
He walked onto premises that were open, where people came
and went. No fences or gates barred the officer's entry.
Indeed, the record indicates that while the bumper and
headlights of the car were within the garage itself, part of
the car was also parked upon a public right-of-way owned by
the township. The deputy's intrusion was for the legitimate
purpose of investigating a traffic complaint. His discovery
was inadvertent and he faced a very real possibility that
the evidence would disappear or be destroyed in the time it
took to secure a warrant. He testified that he was startled
and did a double-take on seeing the baggie sitting in plain
view. There is a clear distinction between a warrantless
seizure of property that rests in an open area or is seized
without an invasrorl o t privacy and a seizure of property
t h a t is s i t u a t e d on p r i v a t e p r e m i s e s t h a t a r e n o t o t h e r w i s e
o p e n and a c c e s s i b l e t o the seizing officer. G.M. Leasing
Corp. v. U n i t e d S t a t e s ( 1 9 7 7 ) , 429 U.S. 338, 354, 97 S . C t .
The United States Supreme Court has most recently
examined t h e p l a i n view d o c t r i n e i n Washington v . Chrisman
( 1 9 8 2 ) , 452 U.S. 959, 102 S.Ct. 812, 70 L.Ed.2d 778. In
C h r i s m a n , a campus p o l i c e o f f i c e r o b s e r v e d C a r l O v e r d a h l , a
student at the University of Washington, as he left a
student dormitory with a half-gallon b o t t l e of gin. H e ap-
p e a r e d t o be underage a n d , t h u s , i n v i o l a t i o n of a Washing-
t o n s t a t u t e p r o h i b i t i n g p o s s e s s i o n o f a l c o h o l i c b e v e r a g e s by
a n y o n e u n d e r t h e a g e o f 21. The p o l i c e m a n s t o p p e d G v e r d a h l
and a s k e d f o r i d e n t i f i c a t i o n . Overdahl d i d n o t have i d e n t i -
f i c a t i o n on him and a s k e d i f t h e o f f i c e r would w a i t w h i l e h e
went and g o t i t . The o f f i c e r t o l d O v e r d a h l t h a t u n d e r t h e
circumstances he would have to accompany him. Overdahl
r e p l i e d "O.K." Once i n t h e dorm room, the officer noticea
s e e d s and a s m a l l p i p e and n o t i c e d t h a t O v e r d a h i ' s roommate,
Chrisman, was behaving very nervously. He examined the
s e e d s and p i p e and on t h e b a s i s o f h i s t r a i n i n g c o n f i r m e d
tnat they were marijuana. Overdahl and his roommate,
C h r i s m a n , were t h e n r e a d t h e i r M i r a n d a r i g h t s and a g r e e d t o
a s e a r c h o f t h e room. The C o u r t h e l d :
"The ' p l a i n v i e w 1 e x c e p t i o n t o t h e F o u r t h
Amendment w a r r a n t requirement p e r m i t s a
law e n f o r c e m e n t o f f i c e r t o s e i z e w h a t
c l e a r l y i s i n c r i m i n a t i n g e v i d e n c e o r con-
t r a b a n d when i t i s d i s c o v e r e d i n a p l a c e
f f i c e r has a r i h t t o be
w h e r e t h e o ---------------q --------.
-
C o o l i d g e v. N e w H a m p s h i r e , 403 U.S. 4 4 3 ,
29 L.Ed.2d 564, 91 S.Ct. 2022 ( 1 9 7 1 ) ;
8 a r r i s v. U n i t e d S t a t e s , 390 U.S. 234, 1 9
L.Ed.2d 1 0 6 7 , 86 S . C t . 992 ( 1 9 6 8 ) . H e r e ,
the officer had placed Overdahl under
lawful arrest, and therefore was autho-
rized to accompany him to his room for
the purpose of obtaining identification.
The officer had a right to remain liter-
ally at Overdahl's elbow at all times;
nothing in the Fourth Amendment is to the
contrary." 102 S.Ct. at 816, 70 L.Ed.2d
at 784-785. (Emphasis added.)
The United States Supreme Court then went on to reject the
argument that the officer's entry into the room upon obser-
vation of the seeds and pipe was not justified by exigent
circumstances. 102 S.Ct. at 816, 70 L.Ed.2d at 785. The
Court noted that the fundamental premise of the Fourth
Amendment is that it protects only against unreasonable
intrusion into an individual's privacy. 102 S.Ct. at 817-
Officer Frawley had a right to approach defendant's
vehicle and the person working under it as he investigated
the traffic complaint. His inadvertent discovery of the
marijuana in plain view and the likelihood that his dis-
covery was noticed, coupled with the minimal chance that it
would still be present upon his return with a warrant,
justified his seizure. See also, Harris v. United States
(1968), 390 U.S. 234, 236, 88 S.Ct. 992, 9 9 3 , 19 L.Ed.2d
Defendant raises as a second issue the argument that
there is not substantial evidence to support the verdict.
He argues first that where two interpretations exist that
may reasonably be placed upon a set of facts, this Court "is
bound to adopt that interpretation which will admit of the
Defendant's innocence." Second, that defendant was not in
exclusive possession of the marijuana and therefore it may
not be inferred that he knew of the presence of the drugs
and had control of them without statements or other
circumstances t o support the inference. Third, he argues
t h a t t h e S t a t e f a i l e d t o i n t r o d u c e t h e c o n t r a b a n d items i n t o
e v i d e n c e and thus f a i l e d t o e s t a b l i s h the corpus d e l i c t i .
Finally, he argues that the testimony of Tim Eustice is
a c c o m p l i c e t e s t i m o n y and a s such r e q u i r e s c o r r o b o r a t i o n . We
r e j e c t these contentions.
The a p p r o p r i a t e s t a n d a r d o f s u f f i c i e n c y of the evi-
d e n c e f o r t h i s C o u r t t o a p p l y was s e t f o r t h by t h e U n i t e d
S t a t e s Supreme C o u r t i n J a c k s o n v . V i r g i n i a ( 1 9 7 9 ) , 4 4 3 U.S.
307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560, 573, and was
a d o p t e d b y t h i s C o u r t i n S t a t e v. P l o u f f e ( 1 9 8 2 ) , Mont .
, 646 P.2d 533, 39 S t . R e p . 1064: " . . . the relevant
q u e s t i o n is whether, a f t e r viewing t h e evidence i n t h e l i g h t
most favorable to the prosecution, any r a t i o n a l t r i e r o f
f a c t c o u l d have found t h e e s s e n t i a l e l e m e n t s of t h e crime
beyond a r e a s o n a b l e d o u b t . " 646 P.2d a t 5 3 8 , 39 S t . R e p . at
1070. U s i n g t h a t s t a n d a r d , we f i n d s u f f i c i e n t e v i d e n c e t o
support the verdict.
W h i l e t h e c o n t r a b a n d was n o t a d m i t t e d a t t r i a l , p r i o r
to trial the court suggested and both parties agreed to
s t i p u l a t e t h a t t h e e v i d e n c e from t h e s u p p r e s s i o n h e a r i n g be
deemed t o h a v e b e e n s u b m i t t e d a t t r i a l . I t was d e t e r m i n e d
by t h e S t a t e C r i m e Lab t h a t t h e b a g g i e was f u l l o f mari-
juana. T e s t i m o n y by T i m E u s t i c e b u t t r e s s e d t h e i n f e r e n c e
t n a t t h e marijuana found i n d e f e n d a n t ' s v e h i c l e belonged t o
defendant. Eustice stated t h a t he noticed it, defendant
o b s e r v e d h i s i n t e r e s t , a n d d e f e n d a n t t o l d him h e c o u l d " r o l l
a joint" i f he s o d e s i r e d . Eustice d i d so. S e c t i o n 45-9-
1 0 1 ( 1 ) , MCA, p r o h i b i t i n g s a l e of dangerous drugs, provides
that:
"A p e r s o n commits t h e o f f e n s e o f c r i m i n a l
s a l e of dangerous drugs i f he s e l l s ,
b a r t e r s , e x c h a n g e s , g i v e s away o r o f f e r s
- s e l l , b a r t e r , e x c h a n g e o r g i v e away o r
to
m a n u f a c t u r e s , p r e p a r e s , c u l t i v a t e s , com-
pounds, o r p r o c e s s e s any dangerous d r u g ,
a s d e f i n e d i n 50-32-101." (Emphasis
added. )
This Court has noted:
" C o n s t r u c t i v e p o s s e s s i o n o c c u r s when t h e
accused maintains c o n t r o l o r a r i g h t t o
c o n t r o l t h e c o n t r a b a n d ; p o s s e s s i o n may b e
imputed where c o n t r a b a n d is found i n a
p l a c e t h a t is i m m e d i a t e l y and e x c l u s i v e l y
a c c e s s i b l e t o t h e a c c u s e d and is s u b j e c t
t o h i s dominion o r c o n t r o l o r t o t h e
j o i n t d o m i n i o n and c o n t r o l o f t h e a c c u s e d
and a n o t h e r , [ c i t a t i o n o m i t t e d ] . " (Empha-
s i s a d d e d . ) S t a t e v . Meader ( 1 9 7 9 ) ,
Mont. , 6 0 1 P.2d 3 8 6 , 3 9 2 , 36 S t . R e p .
1747, 1 5 . 74
Here, d e f e n d a n t e x h i b i t e d c o n t r o l o v e r t h e d r u g and o f f e r e d
it t o a n o t h e r . The d r u g was i n h i s v e h i c l e . Eustice testi-
f i e d t h a t t h e d r u g was n o t h i s and t h a t h e d i d n o t know t o
whom i t b e l o n g e d . However, h e a l s o t e s t i f i e d t h a t d e f e n d a n t
e x e r c i s e d c o n t r o l o v e r t h e m a r i j u a n a by o f f e r i n g i t t o him.
S u b s t a n t i a l evidence supports t h e conviction.
We reject defendant's argument that Eustice was
rendered an accomplice p u r s u a n t to s e c t i o n 45-2-301, FICA,
when h e was g r a n t e d immunity f r o m p r o s e c u t i o n on a c h a r g e o f
possession of marijuana. Section 45-2-301, MCA, holds a
person responsible for conduct of another "when he is
l e g a l l y a c c o u n t a b l e f o r s u c h c o n d u c t a s p r o v i d e d i n 45-2-302
. . ." S e c t i o n 45-2-302, MCA, d e f i n e s a p e r s o n ' s l e g a l ac-
c o u n t a b i l i t y f o r a n o t h e r ' s c o n d u c t when:
" ( 1 ) h a v i n g a m e n t a l s t a t e d e s c r i b e d by
the s t a t u t e defining t h e offense, he
causes another t o perform t h e conduct,
r e g a r d l e s s of t h e l e g a l c a p a c i t y o r
mental s t a t e of t h e o t h e r person;
"(2) the statute defining the offense
makes him so accountable; or
"(3) either before or during the commis-
sion of an offense with the purpose to
promote or facilitate such commission, -
he
solicits, aids, abets, agrees, or at-
tempts to aid such other person in the
planning or commission of the offense."
(Emphasis added. )
Defendant has failed to demonstrate that Eustice is legally
accountable for defendant's possession of marijuana under
any of the provisions of the statute.
Affirmed.
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Chief Justice