NO. 81-492
IN THE SUPREME COURT OF THE STATE OF MONTANA
1982
STATE OF MONTANA,
Plaintiff and Respondent,
VS .
KEVIN SAYERS,
Defendant and Appellant.
Appeal from: District Court of the Fourth Judicial District,
In and for the County of Ravalli
Honorable Douglas Harkin, Judge presiding.
Counsel of Record:
For Appellant:
Recht and Greef, Hamilton, Montana
For Respondent:
Mike Greely, Attorney General, Helena, Montana
Robert B. Brown, County Attorney, Hamilton, Montana
Submitted on briefs: February 18, 1982
~ecided: ~ u l y15, 1982
Filed: JUL 1 5 1982
=
w Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Defendant Kevin J. Sayers appeals a Ravalli County
District Court judgment finding him guilty of possession of
dangerous drugs (marijuana). The appeal concerns only the
issue of whether the trial court should have granted a
motion to suppress the use at trial of live marijuana
plants, dried marijuana, and paraphernalia. We affirm.
On three grounds, two of which involve claims of an
invasion of his right to privacy, he claims that entry and
search of his apartment by his landlord was illegal. First,
he claims there were no exigent circumstances justifying
the landlords' entry and that he did not consent, expressly
or impliedly, to that entry. Second, he claims that the
landlords' observation of marijuana plants in his closet was
not inadvertent and therefore constituted a search. And
third, he claims that a search warrant issued after the
landlords' entry was not supported by reliable allegations
on the part of the landlords.
We hold that under the terms of the lease the landlords
had a right to enter the apartment to retrieve their vacuum
cleaner. Second, we hold that the landlords' observations
were inadvertent and did not constitute a search. Third, we
hold that the search warrant, issued not only on the state-
ments of the landlords, but also on the allegations of the
police officer called into the apartment by the landlords
to observe the evidence, was based on reliable evidence.
The defendant was a high school senior who was renting
an apartment in Hamilton. In the middle of February 1981,
he notified his landlords, Lyle and Ruby Williamson, that he
was going to move out of his apartment at the end of the
month. At that time, he gave the Williamsons oral permission
to show his apartment to prospective renters. Further, the
written rental agreement between the defendant and the
Williamsons provided:
"The owner . . .reserves the right to
enter the unit at all reasonable times,
and reserves the right to show the unit
to other prospective tenants after notice
has been given. "
On approximately February 26, the defendant borrowed
the Williamsons' vacuum cleaner kept in a hall closet and
available for tenant use. On February 28, Mr. Williamson
could not locate the vacuum cleaner, but learned from his
wife that the defendant had last used it. When there was no
answer at the defendant's door, the Williamsons entered the
apartment and immediately observed their vacuum cleaner in
the middle of the living room. Mr. Williamson walked into
the room to get the vacuum cleaner, and Mrs. Williamson went
to leave a note on the defendant's kitchen table. Mr.
Williamson testified that he then noticed a bright light on
the floor of a closet, and was concerned that a lamp had
fallen over and might start a fire. He testified that he
". . . glanced over and the door was open to the closet and
the [marijuana] plants were in the closet." He also testified
that he had previously seen pictures of marijuana and some
live marijuana plants at City Hall.
A police officer was called to examine the plants and
a search warrant was issued based on his observations.
In ruling on the defendant's motion to suppress, the
trial court held that the police officer's observations
could not be used to support the warrant because the defendant
did not consent to the officer's entry. The trial court did
hoid that the defendant's continued possession of the
vacuum cleaner implied that he had consented to let his
landlords enter the apartment to retrieve the vacuum cleaner.
The trial court then distinguished State v. Hyem (1981), -
,
Mont. - 630 P.2d 202, 38 St.Rep. 891, on the basis that
here the landlord's intrusion was consensual and their
observation of the marijuana plants were inadvertent. The
trial court held that the :
". . , defendant could not realistically have
had an expectation of privacy when he must be
charged to have known that the landlord might
reasonably have concluded that he had vacated
the apartment, or that the landlord might have
shown the apartment to others or come looking
for the vacuum cleaner."
First, we agree with the trial court that defendant
consented to the entry of his apartment, but on a broader
ground than that on which the trial court ruled. Rather, we
hold that the landlords' entry was justified by the lease
provision in which the landlords' reserved ". . . the right
to enter the premises at all reasonable times . . ." Surely,
based on this provision, their entry was justified when they
did not know whether the defendant had abandoned the premises
and taken their vacuum cleaner with him.
Second, we hold that once the landlords had legally
entered the apartment, they had a right to peer in the
closet eight feet away, even though they had already seen
the vacuum cleaner in the middle of the apartment floor.
The landlords testified that they noticed light coming from
the closet floor and were concerned that a lamp had fallen
over and could constitute a fire hazard. An unexpected
light coming from a closet would certainly attract anyone's
attention, particularly that of a landlord. To hold that
the landlords had no right to peer into this closet because
they had no express or implied consent from defendant to do
so would be to ignore reality. Defendant does not argue
that the landlords expected to find marijuana or were
searching for marijuana. The landlords' observations were
made because of the light coming from the closet rather than
from their desire to search the closet with the expectation
that they would find marijuana.
Third, we hold that the application for a search
warrant was legally sufficient. The trial court held that
the search warrant was valid even though the police officers'
observations could not be used as a basis for the search
warrant; rather, the trial court held that the landlords'
evidentiary statements in the affidavit was sufficient to
constitute probable cause. Defendant, relying on the trial
court's ruling that the police officer's observations could
not be used to support the application for a search warrant,
argues that the landlords' observations were legally in-
sufficient. But we need not address that contention. We
hold that the landlords could, under the circumstances,
permit the police officer to observe the items in the
closet, and therefore that the police officers' observations
could be used as the basis to issue a search warrant.
Defendant does not attack the observations made by the
police officer, and those observations clearly demonstrate
that he knew what he had seen--marijuana plants, dried
marijuana, and paraphernalia.
The order denying the motion to suppress is affirmed
and the judgment is affirmed.
We Concur: