I N THE SUPREME COURT O THE STATE O MONTANA
F F
1985
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-vs-
FRANCES MORRIS KAO,
Defendant and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e T h i r d 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 of P o w e l l ,
The Honorable R o b e r t Boyd, J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For A p p e l l a n t :
N e i l H a l p r i n a r g u e d , M i s s o u l a , Montana
F o r Respondent :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , Helena, Montana
J e n n i f e r Bordy a r g u e d , L e g a l I n t e r n f o r A t t y . G e n e r a l
Ted L. Mizner, County A t t o r n e y , Deer Lodge, Montana
Submitted: J a n u a r y 25, 1985
Decided: March 28, 1985
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Frances Morris Kao appeals from a conviction of ob-
structing justice following a jury trial in the District
Court of Powell County, State of Montana. Appellant was
given a four year suspended sentence.
On August 11, 1982, Kermit Kao escaped from the Montana
State Prison, at Deer Lodge, Montana. Authorities at the
state prison notified Sheriff David Collings of Powell Coun-
ty, where the prison is located, and advised him of the
escape and that appellant, Frances Morris, was Kao's
girlfriend. Appellant lived in Deer Lodge. Sheriff Collings
went to appel.lantls residence and informed her of Kao's
escape. Sheriff Collings told her to call him if Kao came to
her residence. Appellant allowed the sheriff to search the
house. Later that night, Kao came to appellant's house where
he was allowed to stay. Appellant did not call the sheriff
or any other law enforcement personnel.
On August 14, 1982, the sheriff's office received an
anonymous telephone tip from a person who stated that they
overheard one of appellant's child.ren state that "daddy" was
home. The officers assumed that appellant's child was
referring to Kao because they knew that appellant was
divorced at the time and was romantically involved with Kao.
Sheriff Collings and Officer Robert McNally, the prison
investigator, proceeded to appellant's house with an arrest
warrant for Kermit Kao. They had no warrant to search
appellant's house. Sheriff Collinqs went to the back door of
the house. Officer McNally went to the front door. Officer
McNally knocked, and appellant answered. McNally explained
that he was an officer and that he had come to arrest Kao.
Wearing only a nightgown, appellarlt first refused to allow
McNally in. After she put on a robe, appellant allowed him
to enter. Meanwhile, at the back door, Sheriff Colljngs
heard scurrying from within the house. He knocked and saw a
child run by the window. He began to kick the door and
ordered the child to open it. The child opened the door and
Sheriff Collings entered the house. Appellant asked the
officers if they had a search warrant. They replied that
they did not. Sheriff Coll-ings told appellant that her home
would be searched. Appellant was asked if Kao was in the
house, and she replied that he was not. Appellant's home was
searched. Officers discovered a man's wristwatch,
spectacles, and a pint of vodka and some empty drinking
glasses. Shortly thereafter, a trap door was discovered in
the bedroom, and upon investigation Kao was found in the
crawl space beneath the house. Appellant was arrested at
that time, and taken into custody. At first Kao refused to
exit the crawl space, however, tear gas was finally used and
Kao surrendered.
Prior to trial, appellant moved to suppress the evi-
dence of Kermit Kao's presence in the house on the grounds
that it was illegally obtained because law enforcement offi-
cers failed to secure a search warrant before entering the
house. The State claimed the officers went to the house with
the purpose to effect the arrest. warrant for Kermit Kao, and
therefore was sufficient to justify the entry and search.
The District Court agreed with the State's view and denied
the suppression motion. The appellant was convicted, and
renewed her challenge to the search in her appeal.
The following issues are raised on appeal:
1. Whether law enforcement officers may legally search
for an escaped felon in the home of a third party without
first obtaining a search warrant.
2. Whether appellant was denied the right to a fair and
impartial jury trial because several jurors read newspaper
accounts about the alleged crime six months prior to the
trial.
This appeal raises serious questions concerning the
right of privacy and the constitutionality of warrantless
searches of third party homes for an escaped felon for whom
the police have an arrest warrant. The disposition of the
appeal involves a balancing of the duty of police officers to
search for and arrest those who commit crimes and the right
of innocent citizens to be secure in the privacy of their
homes against unreasonable police invasion.
Appellant claims that she was prejudiced by the intro-
duction of evidence obtained in the course of the warrantless
search of her house. As a result, evidence regarding the
presence of Kermit I