NO. 82-142
I N THE SUPREME C O U R T OF THE STATE OF M O N T A N A
1983
STATE OF MONTANA,
Plaintiff and Respondent,
vs.
ABRAHAM KERRY C A Y E ,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e F o u r t h 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 Lake
Honorable James B . Wheelis, Judge p r e s i d i n g .
Counsel of Record:
For Appellant:
R i c h a r d P i n s o n e a u l t a r g u e d and James Manley a r g u e d ,
S t . I g n a t i u s , Montana
For Respondent:
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 , M o n t a n a
Dorothy McCarter a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l ,
H e l e n a , Montana
J o h n F r e d e r i c k , C o u n t y A t t o r n e y , P o l s o n , Montana
Duke Wolf a r g u e d , D e p u t y C o u n t y A t t o r n e y , P o l s o n , M o n t a n a
Submitted: J a n u a r y l l r 1983
Decided: February 2 4 , 1983
Filed:
2 4 1983
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
This is an appeal from a judgment of conviction for
criminal possession of dangerous drugs issued by the District
Court of the Fourth Judicial District, Lake County. The
appellant, Abraham Caye, filed a motion to quash the warrant
alleging that the Justice Court did not have jurisdiction and
that the action for which the warrant was issued, if pursued,
would constitute d-ouble jeopardy for Caye. The District
Court denied this motion. We affirm the judgment of the
District Court in all respects.
The issue in this case is whether an arrest warrant
issued for criminal trespass/mischief and the seizure of
evidence pursuant to the arrest are valid notwithstanding a
subsequent assertion that the prosecution is barred by former
jeopardy because this defendant had already been convicted in
Tribal Court.
Caye, and his girlfriend, Vicki Hitchcock, are both
members of the Confederated Salish and Kootenai Tribes of the
Flathead Reservation. At the time this action began, Vicki
was living with her mother, Carole Hitchcock, on the
reservation. On April 17, 1981, the Flathead Tribal Court
ordered Caye to stay away from the residence of Carole
Hitchcock. On May 2, 1981, Caye destroyed a lock on the door
of the Hitchcock residence and entered the home. No one was
in the residence at the time. On June 2, Caye pled guilty to
criminal contempt of the Tribal Court order and was sentenced
by the Tribal Court to spend 28 days at Galen State Hospital.
Unsatisfied with the Tribal. Court proceedings, Carole
Hitchcock filed a complaint against Caye with the Lake County
sheriff on June 1, 1981. Without knowing of the Tribal Court
proceeding, the Lake County Attorney filed alternative
charges of criminal mischief and criminal trespass in the
Justice Court of Lake County. An arrest warrant was issued
by the Justice Court on July 13, 1981.
On July 23, 1981, Caye was arrested on the reservation
and taken to the Lake County jail. During a preincarceration
search, Lyscergic Acid Diethylamide, LSD, was found in his
possession.
He was charged in the District Court with illegal
possession of dangerous drugs. Some time after the filing of
the District Court criminal action and before the trial, the
Justice Court action against Caye was dismissed.
On October 2, 1981, Caye filed a motion to quash the
arrest warrant issued by the Justice Court because, ". . .
the arrest of this Defendant ultimately proved to be conduct
for which the Defendant had been tried, convicted, and
sentenced in the Tribal Court of the Salish and Kootenai
Tribes. " The motion also provided that Caye should be
protected from violation of his rights to equal protection,
due process and freedom from double jeopardy. This motion
was treated as a motion to suppress and denied by the
District Court. Caye was found guilty of illegal possession
of dangerous drugs and sentenced to 3 years in the Montana
State prison with credit for time served.
The tribes of the Flathead Reservation have ceded
certain concurrent jurisdiction of Indian cases to the State
of Montana. It is evidenced by Tribal Ordinance 40-A
Revised.
Subsection 2 ( a ) of the Ordinance provides:
"Concurrent jurisdiction remains with the
Tribal Court in the Tribal Government of all
matters referred to in Subsection 1; and any
matter initiated in either a state or Federal
Government Court or the Tribal Court shall be
completed and disposed of in that Court, and
shall not be subject to re-examination in the
courts of the other jurisdiction."
Subsection 2 (b) provides:
"No person, once convicted of a crime falling
within the jurisdiction of the State or
Federal Government, or the Tribes, pursuant to
this ordinance, shall be punished for the
identical act in the courts of the other
jurisdiction, but shall be accorded the
benefit of the doctrine of former jeopardy as
if the separate jurisdictions were one."
Pursuant to Subsection 1 of the Ordinance, the state
courts and the tribal courts have concurrent jurisdiction of
criminal misdemeanor cases.
The effect of the cession of concurrent jurisdiction has
been discussed in Larrivee v. Morigeau (1979), - Mont. -I
602 P.2d 563, 36 St.Rep. 1798, cert.den. 445 U.S. 964, 100
S.Ct. 1653, 64 L.Ed.2d 240; and State ex rel. McDonald v.
District Court of the Fourth Judicial District (1972), 159
Mont. 156, 496 P.2d 78.
Caye contends that the evidence seized pursuant to the
Justice Court warrant and the subsequent arrest was
inadmissable. Caye grounds this assertion on the theory that
the warrant has no "legal efficacy" because the Justice Court
did not have jurisdiction of the cause. Therefore, he
a-sserts, the subsequent arrest, search and seizure were
illegal and the evidence thereby obtained inadmissable. Caye
contends that his arrest under the Justice Court wa-rrant was
invalid because the underlying crime had previously been
adjudicated in the Tribal Court and was thus barred from
adjudication in the state courts pursuant to Tribal Ordinance
40-A Revised.
The Sta-te contends that, notwithstanding concurrent
jurisdiction, Caye was properly charged and that double
ieopardy does not apply in this case. Caye contends that the
Justice Court action constitutes double jeopardy.
It is questionable whether the Justice Court action
offends the former jeopardy provision of this Ordinance but
it makes no difference here. When the complaint was filed in
the Justice Court, that Court had personal jurisdiction of
Caye. If Caye wished to avail himself of the protections
afforded against double jeopardy, res judicata or collateral
estoppel he would have had to claim them as affirmative
defenses later in the Justice Court proceedings.
Former jeopardy, or double jeopardy, does not attach
C
until the jury is empaneled and sworn. Willha* v. Flanagan
(1980), 448 U.S. 1323, 101 S.Ct. 10, 65 L.Ed.2d 1147; Crist
v. Bretz (1978), 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24.
In a case tried without a jury double jeopardy atta.ches when,
"the court begins to hear the evidence." Lee v. United
States (1977), 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80;
Serfass v. United States (1975), 420 U.S. 377, 95 S.Ct. 1055,
43 L.Ed.2d 265.
In this case, the search took place as a preliminary
proceeding and before the judge heard any evidence in the
Justice Court case. Procedural matters preliminary to a
trial do not constitute jeopardy. Collins v. Loisel (1923),
262 U.S. 426, 43 S.Ct. 618, 67 L.Ed. 1062.
The first jeopardy attached when the Tribal Court heard
the evidence. State v. Hagerud (1977), 174 Mont. 361, 570
P.2d 1131. Caye would have been twice placed in jeopardy
when a second jury was empaneled and sworn or when the judge
began to hear the evidence in the Justice Court. This would
have been the proper time for Caye to raise the affirmative
defense of former jeopardy.
The plea of former jeopardy should be raised in the
court where jeopardy attaches. Here, the Justice Court was
the proper tribunal for resolution of the issue, not the
District Court. Since a second jeopardy did not attach
before the cause was dismissed in the Justice Court, former
jeopardy could not be a basis in the District Court as a
ground to suppress the evidence. Therefore, Caye is not
entitled to the remedies available to an individual for
violation of his constitutional right to be free from being
twice place in jeopardy.
We affirm the District Court's denial of Caye's motion
to suppress and its judgment and conviction for illegal
possession of dangerous drugs.
\
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Justice
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We Concur:
?&
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Chief Justice
Mr. Justice Daniel J. Shea, concurring:
I a.gree with the result. The essential question is
whether the state court had authority to issue the warrant of
arrest. It did. A valid complaint preceded the issuance of
the arrest warrant. Defendant Caye was searched as a result
of the issuance of this arrest warrant. The drugs were found
pursuant to this search, and the State clearly had
jurisdiction to prosecute him for this separate crime. This
is so even if for some reason the defendant could have
prevailed in a contention that the Justice Court placed him
on trial for having been convicted essentially on the same
facts as were presented to the Tribal Court.