State v. Carlson

NO. 81-349

IN THE SUPREME COURT OF THE STATE OF M N A A
OTN

1982

STATE OF MONTANA,

P l a i n t i f f and A p p e l l a n t ,

-vs-

BRADLEY JAMES CARLSON,

Defendant and Respondent.

Appeal From: D i s t r i c t Court o f t h e F i r s t J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Lewis & C l a r k , The
H o n o r a b l e Gordon R. B e n n e t t , J u d g e p r e s i d i n g .

C o u n s e l o f Record:

For Appellant:

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
C h a r l e s G r a v e l e y , County A t t o r n e y , H e l e n a , Montana
Kevin Meek a n d C a r o l y n Clemens a r g u e d , H e l e n a ,
Montana

For Respondent:

L e a p h a r t Law Ffr111, H e l e n a , Montana
W. W i l l i a m L e a p h a r t a r g u e d , H e l e n a , Montana

Submitted: J a n u a r y 1 2 , 1382

Decided: A p r i l 2 9 , 1982

Filed: A p r i l 29, 1982

.:
% b i ~ .. ,
ii
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

The State of Montana appeals from an order of the
District Court, First Judicial District, Lewis and Clark
County, suppressing the use of certain evidence in criminal
proceedings pending against the defendant Bradley James
Carlson.
The issue brought by the State is whether the evidence
is the product of a "plain view" observation of officers in
the course of or incident to the making of a lawful arrest.
We determine from the circumstances here that the evidence
should be suppressed, and affirm the District Court.
On the afternoon of March 10, 1981, Carlson was involved
in a minor traffic accident, in Helena, which was not his
fault. Thomas J. Damon, the Helena city police officer who
investigated the accident testified that he had heard "on
the street" that Carlson was a drug user. When Officer
Damon asked to see Carlson's driver's license at the scene
of the accident, Carlson informed him that he had a valid
driver" license but it was not with him. Officer Damon
sought to verify the license status by use of his car radio
through the state computer, but the computer was "down," and
Officer Damon was unable to get verification. However,
Damon informed Carlson that he would continue to check, and
if Carlson was lying about his license, "I will be calling
you or knocking at your door with a warrant."
At 9:00 p.m. of the same day, the computer was fixed,
and from it Damon determined that Carlson was driving while
his driver's license was revoked. He therefore made out, on
Helena police department forms, a "Notice to Appear and
Complaint" for the charge of operating a motor vehicle upon
a city street while having a revoked driver's license, and
another "Notice to Appear and Complaint," for obstructing an
officer by making false and untrue statements. Each of the
notices required the defendant to appear before the municipal
court on or before March 11, 1981, the next day.
Officer Damon was unable to get in touch with Carlson
on the evening of March 10, or on the date of his required
appearance, March 11. However, on March 11, he gave the
citations to the city clerk to mail copies to the defendant.
The proof in this case is that such copies were never mailed
by the clerk to the defendant. On March 16, 1981, Officer
Damon, thinking the citations had been mailed, requested that
an arrest warrant be issued to the defendant because he had
not appeared in court on March 11.
Each of the charges against Carlson was a misdemeanor.
The Helena city judge issued a warrant ordering the arrest
of the defendant on the misdemeanor charges against him.
The warrant contains the notation "failed to appear on both
citations" and further sets out the applicable bond on the
charges, $150 for obstructing an officer, $25 for a revoked
driver's license, $5 for a warrant charge, and court costs
of $8, for a grand total of $188.
Under Montana statutes, the warrant of arrest may
specify the amount of bail, section 46-6-202, PKA, and under
another statute, section 46-9-303, MCA, a peace officer may
accept such bail on behalf of a judge whenever a warrant for
arrest specifies the amount of the bail.
The following day (March 17), the officer and another
Helena police officer, Jeffrey G. Bryson, went to ~arlson's
home about 7:50 a.m. and arrested him pursuant to the warrant.
Carlson appeared at the door, clad only in his underwear,
and half asleep. He was not read his Fourth Amendment
rights.
In making the arrest, the officers entered Carlson's
front room in circumstances described by Officer Damon:
"Q. Would you describe to the court what
happened when you arrived at the defendant's
house with your arrest warrant that morning?
A. He had--He came to the door, opened it up
still half asleep and just in his underwear.
"Q. And what happened then? A. Sergeant Bryson
showed him the warrant for his arrest and said
we have a warrant for his arrest, and that he
was going to have to come to the police station
with us.
"Q* Did the defendant ask if he could get
dressed first. A. Yes he did.
"Q. And did you reply to him or did Officer
Bryson reply to him? A. Sergeant Bryson did.
"Q. And what did he say to him when he asked
if he could get dressed first? A. He said,
'Sure, but you are under arrest' and one of
us has to come with him and if we could come
in the house, and which he opened the door
to let us in.
"Q. Did he ever tell you you could not come
into the house? A. No, he didn't.
"Q. Did he ever indicate to you that you were
--that you were--that he did not wanr you present
in his house? A. No, he didn't.
"Q. Did he ever tell you to leave? A. No, he
didn-."
The front door of the Carlson residence opened immediately
into the front room or living room. Once inside the house,
the officers observed on a coffee table a quantity of marijuana,
some "bongs" (a street term for utensils used with marijuana)
and other drug paraphernalia. However, the officers did not
seize or touch anything. The defendant was taken to the
city jail where he was "booked" under the two charges arising
out of the traffic accident. There, for the first time,
Carlson was given copies of the "Notice to Appear and Complaint"
on each charge. He posted the bond required of him and was
released.
At police headquarters, the arresting officers related
to their superiors what they had seen at the Carlson home.
Officer Damon was dispatched to watch the Carlson house,
while a search warrant was obtained from the county attorney's
office. Thereafter, armed with a search warrant, a deputy
county attorney, with police officers and sheriff's deputies,
searched the house. The search produced small quantities
of hashish, hashish oil, marijuana, cocaine, and a stolen
pistol. Thereafter, Carlson was charged by information in
criminal proceedings in the District Court with four counts
of criminal possession of dangerous drugs, and two counts of
theft, all felonies.
In the felony proceedings against Carlson, his counsel
moved to suppress the evidence which had been produced as
described above. The District Court concluded that Carlson's
Fourth Amendment rights had been violated, and accordingly
suppressed the evidence. It is from that order that the
State appeals.
Carlsonls motion to suppress in the District Court was
upon two grounds, (1) that the entry of the officers into
Carlson's home was without a search warrant, and without
consent of Carlson; and (2) that the arrest on March 17,
1981, for a misdemeanor traffic offense that occurred seven
days earlier was merely a pretext to gain entry into carlsonls
home for the purpose of an investigatory search.
The State contends that the full custodial arrest of
Carlson was reasonable under the circumstances, was not in
connection with any pretextual arrangement to investigate
the Carlson home and that the search warrant upon the "plain
view" observation of the police officers in the Carlson home
was valid.
The District Court in its order declined to determine
whether the arrest was a pretext for a search of Carlson's
home, but also decided there was no necessity here for a
full custodial arrest of Carlson based upon the misdemeanor
charges against him. Instead, the District Court determined
that the matter should be decided by what happened at the
home after the arrest; to determine whether the defendant
gave his consent to the officers to enter his front room
under the totality of the circumstances, citing Schneckloth
v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d
854. The court relied on four factual circumstances, (1)
that Carlson was half asleep, (2) that he was under arrest,
(3) that he had not been advised of his Fourth Amendment

rights, and (4) he had been given the choice between going
to the police station in his underwear at 8:00 a.m. or
permitting the police to enter his home. The District Court
determined that there was no evidence in the record that
would support a conclusion that the defendant was not coerced
by the circumstances and by the statements of the officers,
and therefore his verbal consent did not qualify as voluntary
to justify the "plain view" observation by the officers
while they were in Carlson's front room.
One of the first matters for our determination is
whether a "search" within the ambit of the Fourth Amendment
occurred here. The State contended in the ~istrictCourt
that no search occurred. At least one of our dissenting
brothers is of that opinion. Here the officers seized none
of the articles which constitute the evidence now to be
suppressed. They noticed what was in the front room, in
plain view and it is certain that there was no prying about
in hidden places or looking under sofas by the two officers.
A "search" is a prying into hidden places for that
which is concealed; conversely it is not a search to observe
what is in plain view. Observations made upon invitation
into a house are not a "search." State v. Monahan (Wis.
1977
1423-), 251 N.W.2d 421, 423.
The distinctive factor that turns an observation into a
search, in the constitutional sense, is whether the person
making the observation has a right to be in the place where
the observation is made. Thus it is said that an observation
made of a place where an officer has a right to be is not a
search in the constitutional sense. State v. Seagull (C.A.
Wash. 1980), 613 P.2d 528, 532; Fehlhaber v. State of North
Carolina (D.C.N.C. 1980), 445 F.Supp. 130, 136; People v.
Hauschel (Colo. App. 1975), 550 P.2d 876, 883; United States
v. Coplen (9th Cir. 1976), 541 F.2d 211, 214.
The rule seems to be that evidence discovered in plain
view from a place where officers are entitled to stand and
where their claim to stand is not created as a pretext,
solely to make legitimate otherwise impermissible intrusions,
is not the subject of a "search" within the meaning of the
Fourth Amendment, and seizing such evidence does not trigger
a warrant requirement. United States v. Kaiser (5th Cir.
1977), 545 F.2d 467, 477.
It appears then that for constitutional purposes, a
"search" may be defined as a visual examination, or the use
of some other means of gathering evidence, which infringes

upon a person's reasonable expectation of privacy. United
States v. Hartley (U.S.D.C. F1. 1980), 486 F.Supp. 1348,
1354.
If therefore, the officers in this case were lawfully
in Carlson's front room when they made the visual observations,

a "search" within the constitutional sense did not occur; on
the other hand, if their presence in the front room was not

consented to, as the District Court determined, the visual
examination does constitute a "search" in the constitutional
sense.
The validity of the officerst entry into Carlson's
front room is the fulcrum therefore on which this case
turns. The State recognizes that the officers, in making
the arrest, since Carlson was at the front door and within
the arresting power of the officers, had no right to enter
Carlson's house under the circumstances of this case. The
State justifies t-heir entry upon its claim of Carlson's

consent. The District Court concluded that Carlson's consent
was obtained, in effect, through coercion.
The District Court pointed out that there general

presumption against waiver of a constitutional right, Johnson
v. Zerbst (1938), 304 U.S. 458, 464, 58 S.Ct. 1019, 1023,
82 L.Ed. 1461, 1466; and quoted from Schneckloth v. Buatamonte,
supra, to the following effect:
"But the Fourth and Fourteenth Amendments require
that a consent not be coerced, by explicit or
implicit means, by implied threat or covert force.
For, no matter how subtly the coercion were ap~lied
the resulting 'consent' would be no more than a
pretext for the unjustified police intrusion against
which the Fourth Amendment is directed . ..
"In examining all the surrounding circumstances
to determine if in fact the consent to search was
coerced, account must be taken of subtly coercive
police questions as well as the possibly vulnerable
subjective state of the person who consents."
 Schneckloth, 412 U.S. at 228-29, 93 S.Ct.
at 2048-49, 36 L.Ed.2d at 863-64.
We agree with the District Court. The subjective state
of Carlson, admitted by the police officer to be "half
asleep" and in his underwear, and the unqualified statement

of the police officers that if Carlson were to get dressed,
they would have to come into his house without any other
explanation of his rights, constitute a subtle coercion of
Carlson.
The very command of the Fourth Amendment itself is that

searches must be reasonable, because it is "unreasonable"
searches that are prohibited.
In order to show that voluntary consent to search was
obtained, the State must show that the consent was unequivocal,
specific, intelligently given and uncontaminated by duress
or coercion. State v. Brough (1976), 556 P.2d 1239, 1241,
171 Mont. 182, 185; Sleziak v. State (Alaska 1969), 454
P,2d 252, 257-58, cert.den. 396 U.S. 921, 90 S.Ct. 252, 24
L.Ed.2d 202 (1969). This Court has held that there is a
heavy burden of proof required to show that there was consent
to a search. State v. LaFlarnrne (1976), 170 Mont. 202, 204,
551 P.2d 1011, 1012. Equivocal conduct alone is insufficient
as a basis for inference of consent to a search, which

consent is a waiver of a constitutional right.
As we stated in the foregoing discussion with respect
to whether a search occurred here, if an element of a
proper visual examination is that it is made from a point
where the officers have a right to be, then we must conclude
that the District Court was correct in determining that the
defendant's consent was not shown by the State to have been
voluntarily given, under the cases decided in our jurisdiction
and others. Accordingly, the officers, having unlawfully
intruded into Carlson's home, conducted an unconstitutional
"search" in making their visual observations.
Other factors buttress our conclusion. It is seriously
to be doubted whether the full panoply of the power of the
State to make a custodial arrest was indicated here. No
notice of the common-place traffic tickets issued in this
case was ever served upon Carlson. The officers apparently
made no effort to determine whether those notices had ever
been served. The warrant of arrest itself improperly states
that the defendant failed to appear in response to the
traffic tickets, which were never served upon him. It is
the policy of the City of Helena, as testified to by the
city clerk, not to issue a warrant of arrest unless the
traffic offender has failed to respond to the notices.
Although section 46-9-303, MCA, provides that a peace officer
may accept bail in lieu of arrest when the warrant specifies
the amount of the bail, that option was not followed here,
although in justice to the officers, it appears to be the
standard rule of the City of Helena to require such defendants
to be booked in city hall where bond is posted. Another
practice followed by the City of Helena, in issuing such
warrants, is to provide that all such warrants may be served
in the nighttime, although section 46-6-105, MCA, provides
that a person cannot be arrested in his home or private
dwelling place at night for a misdemeanor except upon the
express direction of the magistrate endorsed upon the warrant
of arrest. The officers here had no prior knowledge of any
other traffic citations issued to Carlson for which he did
not appear. The excuse of the officers in procuring the

warrant of arrest with the fullest possible power granted by
the State was that Carlson had lied to Damon with respect
to his driver's license, and therefore he might not other-
wise appear. In other words, he committed the crime for
which he was charged, therefore, he must 1 - e arrested.
Such an argumeat could be made in any traffic case. The
city had several other options which it did not follow: it
could have requested a summons to appear, instead of a
warrant of arrest, under section 46-6-301, MCA; it could
have issued the notices and served them upon him; or the
officers could have accepted bail on the doorstep of the
Carlson home. The reasonableness of the full custodial
arrest in case of traffic violations (the State contends
that the obstruction of officer charge did not arise out of
a traffic violation) is gravely doubtful.
What emerges from these facts is chilling. From the
testimony of the two police officers and the city clerk, in
the City of Helena, it is the norm that when a citizen
ignores a traffic citation, a warrant of arrest is issued
against him which may be served upon him at his home at any
time of the day or night. When the warrant of arrest is
served, it is - rigeur not to accept at that time the bond
de
that is stated on the warrant of arrest. Instead, it is
standard procedure to remove the citizen bodily to city
hall, where he can post his bond. If at the time of arrest,
the citizen wants to put on his overcoat, the police will
follow him into his home "for the safety of the police
officers." In other words, a traffic violator in Helena
will be accorded the same treatment as the rankest felon
when his arrest is made by warrant.
The facts in this case are brought to light because it
happens that Carlson may be a bad apple. We have no way of
telling how many times other citizens, guilty of an improper
lane turn or rushing an amber light have been so treated.
The statutes permit these procedures; we do not have to
countenance them as reasonable under the facts of this case.
It is appropriate to repeat what the Alaskan court said
in Anderson v. State (Alaska 1976), 555 P.2d 251, 259-60:
"We recognize that the law of search and seizure
is complex and often difficult to apply. That
the permutations of human behavior sometimes
carry police officers into situations which demand
decisions close to the line of unconstitutional
intrusions is, perhaps, an inevitability. But the
rights and liberties secured by the federal and
state constitutions are paramount and they will
be protected ...

"While the action of the police officers here
. ..
may be viewed by some as only a small
deviation from the constitutional standard, we
feel no less moved to condemn such action here
than we would were the intrusion by the police
officers of an obviously greater magnitude. As
Mr. Justice Bradley eloquently stated in Boyd
-
v. United States, 116 U.S. 616, 6 S.Ct. 524,
29 L.Ed. 746 (1886),
I1 I
...
illegitimate and unconstitutional practices
get their first footing . .
. by silent approaches
and slight deviations from legal modes or procedure.
This can only be obviated by adhering to the rule
that constitutional provisions for the security
of person and property should be liberally construed.
A close and literal construction deprives them of
half their efficacy, and leads to gradual depreciation
of the right, as if it consisted more in sound than
in substance.'
"We, of course, do not condone the behavior of the
appellant ...But, we are mindful of Mr. Justice
Frankfurter's observation that cases presenting issues
of constitutional rights frequently involve people
who have committed the most appalling of violations.
He stated:
"'It is a fair summary of history to say that the
safeguards of liberty have frequently been forged
in controversies involving not very nice people.'"
This Court has not hesitated to support intrusions by
the police, either for arrest or search without a warrant,
in proper cases, where exigent circumstances existed, or
where a crime was taking place at the time of entry. State
v. Means (1978), 177 Mont. 193, 581 P.2d 406; State v.
Bennett (1972), 158 Mont. 496, 493 P.2d 1077; State v.
Hull (1971), 158 Mont. 6, 487 P.2d 1314. On the other hand,
we have resisted extensions of search or seizure beyond the
constitutional limitations in either federal or state con-
stitutions under circumstances where the privacy rights of
the offended party exceeded the compelling interest of the

state in making the intrusion. State v. Hyem (1981),
,
Mont. - 630 P.2d 202, 38 St.Rep. 891; State v. Allen

,
(1980)I - Mont. - 612 P.2d 199, 37 St. Rep. 919. The
high court held in United States v. Robinson (1973), 414
U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427, 440, that
the right to a full custodial search is not limited if the

person is arrested for a traffic offense. We, however,
refused to follow the lead of that case in State v. Jetty
(19781, 176 Mont. 519, 579 P.2d 1228. There we held that where
it appears that a summons would work as well as a warrant

for arrest in 99 percent of the cases, placing the defendant
under mandatory custodial arrest for failure to pay an

overdue $1.00 parking ticket and subjecting him to a full
custodial search was unreasonable. We further held that the
unreasonableness was not excused because the procedure was
standard on the ground that standard procedure cannot
eliminate the individual's constitutional right to be free
from unreasonable search and seizure. State v. Jetty, 176
Mont. 523, 579 P.2d at 1230.
The high court noted in Coolidge v. New Hampshire
(1971), 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d

564, 583, that what the "plain view" cases had in cornmon was

that the police officer in each case had a prior justification
for an invasion into the property of the accused. The
District Court noted this distinction and decided that in
this case there was no prior justification for the intrusion.
In analyzing this issue, the District Court noted that no
search was necessary to insure the defendant would not
obtain a weapon; there was no possibility that he would
destroy any evidence relevant to the crimes with which he
was charged; if police officers were concerned about
escape, there was no necessity to enter Carlson's house to
prevent it. In addition, the District Court noted the
alternatives to the invasion of defendant's home. He could
have been permitted to put his pants on without supervision.,
he could have been taken to the station. in '
i
s underwear,
they could have accepted bond, or they could simply have
left a summons with the defendant. In those circumstances,
the District court found no prior justification or exigency
for the arrival of the police officers at the point inside
the house from which. the observation in contention was made.
The District Court then noted that "[alrrest warrants should
not be used as a key to open the door of a private residence,
or converted int,o a search warrant absent a compelling
necessity to do so."
We agree with the District Cou.rt. There was no prior
justification or exigency for the entry by the police officers
in this case. Their entry under the facts of this case was
unreasonable, and it is that factor that converted their
observation while in the house into a warrantless search,
which is always presumed unreasonable. E.g., Payton v.
New York (1980), 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed..2d
yo3
639; Coolidge v. New Hampshire (1971), -823- U.S. 443, 91
 We are aware of Washington v. Chrisman (Decided January
13, 1982), - U.S. , 102 S.Ct. 812, 70 L.Ed.2d 778,
in which the high court upheld the seizure of marijuana
seeds and a pipe where a Washington State University police-
man had entered the room to allow an arrested person to
procure identification. Chrisman was the roommate of the
arrested person. That case holds that when a policeman is
in a place where he has a right to be, and makes a search or
a seizure based upon what is in plain view, the product
of the search or seizure need not be suppressed. The Supreme
Court of Washington had held otherwise. 94 Wash.2d 711, 619
P.2d 971 (1980). We distinguish this case however. The
District Court in this case found that the entry of the
police to the defendant's home occurred through the defendant's
coerced consent. We have previously held that full custodial
arrest and mandatory search for a minor traffic violation is
unreasonable. State v. Jetty, supra. We have, moreover,
our unique state constitutional provision which defends the
right of individual privacy absent a showing of compelling
state interest. Art. 11, S 10, 1972 Mont. Const. A compelling
state interest is lacking here to overcome defendant's
reasonable expectation of privacy in his home.
We attach a good deal of importance to the right of
privacy guaranteed in Montana's Constitution. The State
contends that we should not consider this factor because the
District Court did not rely on it in suppressing the evidence.
However, the issue was raised in briefs before the ~istrict
Court and has been raised in briefs here. The State contends
that if the right to privacy under the Montana Constitution
is considered by us, it should have the right to a remand
for the purpose of proving a "compelling state interest" as
required by Art. 11, § 10. However, it was conceded on oral
argument that no additional evidence to that already sub-
mitted to the District Court would be necessary to establish
the compelling state interest sought by the State. The
State argues, urrder this co~tentiont h a t a crine had
been committed, arrest was necessary, the officers in this
case were simply performing their duties in connection with
the arrest, and the disclosure of the contraband evidence
was the result of either a plain view observation made by
the police officers, or a search incident to a lawful arrest.
Whether we look at the issues here from the viewpoint
of the federal or the state constitution, it is clear in
either event, that privacy is at the heart of the case.
Stanley v. Georgia (1969), 394 U.S. 557, 564, 89 S.Ct. 1243,
1247, 22 L.Ed.2d 542, 549, emphasized the home as the situs
of protected private activities and that the constitution
extends special safeguards to the privacy of the home.
In State v. Hyem, supra, we held under our state constitution
that evidence should be suppressed where there was an un-
justified intrusion into the privacy of the defendant's
home,
It should be clear from the facts of this case that
if we were to sustain the entry by the police officers as
reasonable, there would be few instances in the service of
warrants of arrest for traffic-related offenses when the
officers would not gain entrance inside the home. Few
persons are fully dressed and ready for the street when they
answer the door in response to a knock. Inevitably the
search would be held incident to the arrest, and not vice
versa. The Circuit Court of Appeals for the Ninth circuit
has been careful to avoid opening up searches on the basis
of traffic-related arrests, Taglevore v. United States
(1961), 291 F.2d 262; as has the Fifth Circuit, Amador-

Gonzalez v. United States (1968), 391 F.2d 308.

A£ firmed.

We Concur:

----
Chief Justice

-
Justices
Mr. Chief Justice Frank I. Haswell dissenting:

I would refuse to suppress the evidence against the
defendant.
The defendant was arrested under a valid warrant.
Entry into his house was justified as an incident of that
arrest to prevent escape or procuring a weapon. The marijuana

and drug paraphernalia were observed in plain view in defendant's
front room. This evidence was later seized under a valid
search warrant. There was no unreasonable search and seizure
or violation of defendant's right of privacy.

The majority decision is directly contrary to the
latest decision of the United States Supreme Court on the
subject. Washington v. Chrisman (No. 80-1349, Decided
January 13, 1982), - U.S. , 102 S.Ct. 812, 70 L.Ed.2d
778. The District Court did not have the benefit of that

decision when it suppressed the evidence. The rationale of
the District Court was that defendant's consent to entry
into his house was subject to coercive influences invalidating
defendant's waiver of the constitutional prohibition

against unreasonable searches and seizures.
The Chrisman court summarized the facts of that case as
follows:
"On the evening of January 21, 1978, Officer Daugherty
of the Washington State University police department
observed Carl Overdahl, a student at the University,
leave a student dormitory carrying a half-gallon bottle
of gin. Because Washington law forbids possession of
alcoholic beverages by persons under 21, Wash.Rev.Code
§ 66.44.270, and Overdahl appeared to be under age,
the officer stopped him and asked for identification.
Overdahl said that his identification was in his
dormitory room and asked if the officer would wait
while he went to retrieve it. The officer answered
that under the circumstances he would have to accompany
Overdahl, to which Overdahl replied 'O.K.'
 "Overdahl's room was approximately 11 by 17 feet and
located on the 11th floor of the dormitory. Respondent
Chrisman, Overdahl's roommate, was in the room when
the officer and Overdahl entered. The officer remained
in the open doorway, leaning against the doorjamb
while watching Chrisman and Overdahl. He observed that
Chrisman, who was in the process of placing a small box
in the room's medicine cabinet, became nervous at the
sight of an officer.
"Within 30 to 45 seconds after Overdahl entered the
room, the officer noticed seeds and a small pipe lying
on a desk 8 to 10 feet from where he was standing.
From his training and experience, the officer believed
the seeds were marihuana and the pipe was of a type
used to smoke marihuana. He entered the room and
examined the pipe and seeds, confirming that the seeds
were marihuana and observing that the pipe smelled of
marihuana.
"The officer informed Overdahl and Chrisman of their
rights under Miranda v. Arizona, 384 U.S. 426 (1966);
each acknowledged that he understood his rights and
indicated that he was willing to waive them. Officer
Daugherty then asked whether the students had any other
drugs in the room. The respondent handed Daugherty the
box he had been carrying earlier, which contained three
small plastic bags filled with marihuana and $112 in
cash. At that point, Officer Daugherty called by radio
for a second officer; on his arrival, the two students
were told that a search of the room would be necessary.
The officers explained to Overdahl and Chrisman that they
had an absolute right to insist that the officer first
obtain a search warrant, but that they could voluntarily
consent to the search. Following this explanation, which
was given in considerable detail, the two students
conferred in whispers for several minutes before announcing
their consent; they also signed written forms consenting
to the search of the room. The search yielded more
marihuana and a quantity of lysergic acid diethylamide
(LDS), both controlled substances." Chrisman, supra,
slip opinion at 1-2, 102 S.Ct. at 815, 70 L.Ed.2d at
782-83.
Chrisman was charged with possession of LSD and more
than 40 grams of marijuana, both felonies under Washington
law. The question facing the Supreme Court on appeal was
whether the evidence found by the officer should be suppressed
as violating the defendant's Fourth Amendment rights.
The Supreme Court resolved the issue with this language:
"We hold, therefore, that it is not 'unreasonable'
under the Fourth Amendment for a police officer, as
a matter of routine, to monitor the movements of an
arrested person, as his judgment dictates, following
the arrest. The officer's need to ensure his own
safety--as well as the integrity of the arrest--is
compelling. Such surveillance is not an impermissible
 invasion of the privacy or personal liberty of an
individual who has been arrested." Chrisman, supra,
slip opinion at 5, 102 S.Ct. at 817, 70 L.Ed.2d
at 785.
The Supreme Court further found that since Overdahl had
been placed under lawful arrest, the officer was authorized
to accompany him to his room to obtain identification and

that the officer ". . . had a right to remain literally at
Overdahl's elbow at all times; nothing in the Fourth Amend-
ment is to the contrary." Chrisman, supra, slip opinion at
4, 102 S.Ct. at 816, 70 L.Ed.2d at 785. The court further
found that the officer's actions were valid as an incident
to a lawful arrest.
The facts of the instant case are even more compelling.
Here, unlike Chrisman, the officers had a valid arrest
warrant and a valid search warrant. They had the right "as
a matter of routine, to monitor the movements of [Carlsonl,
as [their] judgment dictates, following the arrest" because

of their need to ensure their own safety and the integrity
of the arrest. Chrisman, supra. Consent to entry into
defendant's house was unnecessary under chrisman.
The majority's attempt to distinguish between an arrest
warrant for a misdemeanor and a felony is misplaced. An
arrest warrant is no less an arrest warrant because the
underlying crime is classified as a misdemeanor. State v.
Jetty (1978), 176 Mont. 519, 579 P.2d 1228, relied upon by

the majority, involved a full custodial search in a city
jail following an arrest at 3:00 a.m. for failure to pay an

overdue $1.00 parking ticket. It is clearly distinguishable
on the facts. Any implication therein that an arrest warrant
for a misdemeanor stands on a different footing than an

arrest for a felony is unwarranted. United States v. ~obinson
(1973), 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427. united
States Supreme Court decisions interpreting the meaning and
application of provisions in the United States Constitution
are controlling under the Supremacy Clause of the Constitution
and take precedence over any such pronouncement of this
Court, Art. 111, 5 2, U.S. Const.
There was no search here within the prohibition against
unreasonable searches under the authorities cited by the
majority. The officers didn't enter defendant's house to
search for anything. They didn't conduct a search but simply
observed what was in plain view. Although the officers
could have seized the marijuana and drug paraphernalia in
plain view at that time [Coolidge v. New amps shire (1971),
403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 5641, they seized
nothing. Instead they applied for and received a valid
search warrant and seized the evidence thereunder.
The majority further justify suppression of the evidence
under the right of privacy provision in the Montana Constitution:
"Right of privacy. The right of individual privacy
is essential to the well beinq of a free society
and shall not be infringed without the showing of a
compelling state interest." Art. 11, § 10, 1972
Mont. Const.
We have previously held:
"The constitutional guarantee of individual privacy
is not absolute. It must be interpreted, construed
and applied in the light of other constitutional
guarantees and not in isolation. The right of
individual privacy must yield to a compelling state
interest. Such compelling state interest exists where
the state enforces its criminal laws for the benefit
and protection of other fundamental rights of its
citizens." State ex rel. Zander v. District Court
(1979) ,
Mont. - 591 P.2d 656, 660, 36 St.Rep.
489, 4
9
.
The compelling state interest here lies in the enforcement
of its laws, misdemeanors as well as felonies. More import-
antly, it lies in providing protection for its law enforcement
officers and protecting the integrity of arrests. The right
of privacy was never intended to provide a shield for criminal
activity.
The same considerations underlie the right of privacy
under the United States Constitution. The fact that the
Helena officers obtained access to the defendant's house for
a reason totally unrelated to a search for drugs does not
affect the validity of the subsequent drug prosecution. The
Chrisman court stated it this way:
"This is a classic instance of incriminating evidence
found in plain view when a police officer, for
unrelated but entirely legitimate reasons, obtains
lawful access to an individual's area of privacy.
The Fourth Amendment does not prohibit seizure of
evidence of criminal conduct found in these circum-
stances." Chrisman, supra, slip opinion at 7, 102
S.Ct. at 818, 70 L.Ed.2d at 786-87.
Likewise it doesn't prohibit the conduct of the Helena
officers in this case.
Accordingly, I would permit use of the evidence in the
criminal proceedings against the defendant.

Chief Justice

We concur in the dissent: