No. 84-67
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Appellant,
-vs-
ROBERTO SIERRA,
Defendant and Respondent.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Byron Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mike Greely, Attorney General, Helena, Montana
Mark Murphy, Asst. Atty. General, Helena
Wm. Nels Swandal, County Attorney, Livinqston,
Montana
For Respondent :
Karl Knuchel, Public Defender, Livingston, Montana -
Submitted on Briefs: June 14, 1984
Decided: January 4, 1985
Filed: JAN 4 - ~5
Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The State of Montana appeals from an order of the Park
County District Court suppressing part of the evidence seized
from defendant after he and another friend had been arrested
and taken to the police station to be detained until it could
he determined whether they were legally in the United States.
The State seized some marijuana from defendant as he was
emptying his pockets at the police station pursuant to police
orders, an6 the court held that this evidence was admissible.
However, the State also had ordered the defendant to open his
suitcase, a.nd when he did the State discovered a large quan-
tity of marijuana in the suitcase. Defendant moved to sup-
press this evidence, a felony amount, and the trial court
suppressed this evidence, holding that the seizure violated
defendant's right to privacy guaranteed by Art. 11, 5 10 of
the Montana Constitution. We affirm.
The Sta.te, relying primarily on decisions of the United
States Supreme Court, argues that the seizure of the evidence
does not violate defendant's right to privacy under Art. 11,
§ 10 of the Montana Constitution. The defendant argues that
the pre-incarceration inventory of the contents of the
a-rrestee'ssuitcase does violate Art. TI, §§ 10 and 11 of the
Montana Constitution.
The defendant, Roberto Sierra, is a Cubam who speaks no
English, but is legally in the United States and requires no
so-called "green card." On the day in question he carried
identification with him which included a form 1-91 and a
soci.al security card which bore his name. His companion,
7ose Juarez, a Mexican, speaks only limited English but
c a r r i e d no i d e n t i f i c a t i o n showing h i s s t a t u s and w h e t h e r h e
i s legally i n t h e U n i t e d S t a t e s .
During t h e e a r l y evening hours of August 7, 1983, defen-
dant and h i s companion w e r e w a l k i n g a l o n g Park S t r e e t i n
Livingston and were observed by deputy sheriff Dennis
Frawley. The d e p u t y t h o u g h t t h e a p p e a r a n c e o f t h e s e two men
m i g h t mean t h e y were i l l e g a l a l i e n s , s o h e s t o p p e d them a n d
questioned Jose Juarez. Juarez, s p e a k i n g o n l y l i m i t e d Eng-
l i s h , c o u l d p r o d u c e no i d e n t i f i c a t i o n a u t h o r i z i n g him t o be
i n t h e United S t a t e s . Deputy F r a w l e y t o o k J u a r e z i n t o c u s t o -
dy and t h e n a p p r o a c h e d t h e d e f e n d a n t a n d a s k e d f o r i d e n t i f i -
cation. Although d e f e n d a n t c o u l d s p e a k no E n g l i s h , h e d i d
p r o d u c e p h o t o c o p i e s o f a form 1-91 a n d a s o c i a l s e c u r i t y c a r d
which b o r e h i s name. The d e p u t y a r r e s t e d d e f e n d a n t a l s o and
took them b o t h to the P a r k County Law E n f o r c e m e n t C e n t e r
where t h e y w e r e booked and p l a c e d i n j a i l .
During t h e booking procedure Frawley and t h r e e o t h e r
d e p u t i e s o r d e r e d d e f e n d a n t t o empty h i s p o c k e t s . When d e f e n -
d a n t d i d s o h e removed a s m a l l amount o f a s u b s t a n c e w h j c h
l o o k e d l i k e and l a t e r t e s t e d t o b e m a r i j u a n a . Immediately
afterwards, a s u i t c a s e c a r r i e d by S i e r r a a t t h e t i m e o f h i s
a r r e s t , was opened and i t s c o n t e n t s w e r e examined. Approxi-
m a t e l y s e v e n pounds o f m a r i j u a n a were found i n t h e s u i t c a s e .
A t no t i m e b e f o r e t h e p o l i c e d i s c o v e r e c ? t h e c o n t r a b a n d d i d
they attempt t o secure an i n t e r p r e t e r s o t h a t defendant could
b e a d v i s e d of h i s r i g h t s o r a s k e d what h e wanted d o n e w i t h
t h e s u i t c a s e and i t s c o n t e n t s .
The trial court held that t h e marijuana seized from
d e f e n d a n t ' s p o c k e t s was a d m j s s i b l e . But a s t o t h e m a r i j u a n a
s e i z e d from d e f e n d a n t ' s s u i t c a s e t h e t r i a l c o u r t r u l e d t h a t
i t s d i s c o v e r y was n o t i n c i d e n t . t o a l a w f u l a r r e s t and s o was
improper. The court, in explaining his ruling, concluded
that defendant had a more expansive right to privacy than
that guaranteed to him by the Fourth Amendment, and therefore
the search of his suitcase was unconstitutional. We hold
that less intrusive means must be used in these circumstanc-
es, that they were not used here, and that in opening defen-
dant's suitcase without a search warrant, the police violated
his privacy rights.
In the case of State v. Sawyer (19?7), 174 Mont. 512,
571 P.2d 1131, Justice Harrison, speaking for an unanimous
Court, expressly held that an inventory search is "a substan-
tial infringement upon individual privacy" and therefore it
is subject to the right of privacy provision (Art. TI, § lo),
as well as the search and seizure provision (Art. 11, 5 ll),
of the Montana Constitution, 174 Mont. at 517, 571 P.2d at
1133-1134. This Court has never held that the right of
privacy provision makes it any more difficult to obtain a
search warrant than was the case before, but we have of
course recognized that search and seizure provisions do not
undo the right to privacv provisions of our Constitution.
The State relies primarily on the United States Supreme
Court decision of Illinois v. Lafayette (1983), - U.S. I
103 S.Ct. 2605, 77 L.Ed.2d 65, where an inventory search
after a lawful arrest for disturbing the peace was upheld on
several grounds as promoting legitimate governmental inter-
ests that override the interests of the individual. Those
legitimate interests were: first, safeguarding the arrested
person's property; second, protecting law enforcement from
false claims of loss or theft; third, d-anger from contents of
uninventoried packages; and fourth, to assist in identifying
arrested persons.
LZC re&
Though we d t a?que-
that these are legitimate govern-
mental interests, we cannot agree that their existence may
permit an inventory search in all circumsta.nces. In State -
v.
Sawyer, supra, we expressly recognized that in many of these
circumstances the police should use the least intrusive means
possible for cond.ucting an inventory search. In fact, in
applying our own Constitution, we expressly rejected the
United States Supreme Court's holding in South Dakota IT.
Opperman (1976), 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d
1000, where, in upholding the inventory search of an aban-
doned automobile, the United States Supreme Court found no
need to consider the existence of less intrusive means of
protecting the police and the property in their custody.
Locking the door and impounding it in safe storage under
guard was not even considered as a less intrusive means. Rut
in State 5 Sawyer, supra, we expressly rejected this holding
in favor of a less intrusive means interpretation based on
our own Constitution.
As long as we guarantee the minimum rights guaranteed by
the United States Constitution, we are not compelled to march
lock-step with pronouncements of the United States Supreme
Court if our own constitutional provisions call for more
individual rights protection than that guaranteed by the
IJnited States Constitution. And in State Saywer, in
rejecting the rationale of South Dakota 5 m e r m a n , supra,
we have given a perfect example of our unwillingness to march
lock-step with the latest pronouncements of the United States
Supreme Court where it is not required as a matter of federa.1
constitutional law.
A less-intrusive means rule is by no means unworkable.
In adopting a less-intrusive means test for inventory
searches, the Alaska. Supreme Court in Reeves v. State (Alaska
1979), 599 P.2d 727, held tha-t the search of an opaque bal-
loon found on the arrestee's person by a correctional officer
exceeded the constitutionally permissible scope of a.
pre-incarceration inventory search. The court noted a.s we
have done before, that their state constitutional guarantee
against unreasonable searches and seizures was broader in
scope than the Fourth Amendment to the United States Consti-
tution. This broadened scope was recognized to be due at
least in part to Art. I, S 22 of the Alaska Constitution, the
right to privacy provision.
In summarizing the opinion of the Court, Justice
Rabinowitz directed the statements at an inventory
search after an arrest:
". . . a pre-incarceration inventory sea-rch is an
exception to the warrant requirement, where it is
conducted to further the governmental purposes
recognized above and is limited to the extent
necessary to respect Alaska's consti.tutiona1 guar-
antee against unreasonable searches and seizures.
The search of an arrestee's person should be no
more intensive tha-n reasonably necessary to prevent
the entry of weapons, illegal drugs, and other
contraband or other potentially dangerous items
into the jail. Any items taken from the arrestee's
possession in this search may not be further
searched or opened except pursuant to a search
warrant or another recognized exception to the
warrant requirement applicable i-n the circumstanc-
es. Finally, the inventory conducted shall consist
of a cataloging of the arrestee's property thus
seized and may - without a specific request from
not,
the arrztee, extend - - sqarch and inventory of
to a
the contents of any object, closed or sealed con-
tainer, luggage, briefcase or We believe
that a pre-incarceration search thus limited both
adequatgly protects the reasonable interests of the
state and appropriately respects an arrestee's
reasonable expectation of privacy. " (599 P. 2d at
737-738. Emphasis added.)
We aqree with this holding and a.b@ its
rationale. Here the police made no effort to secure an
interpreter to ensure that defendant was properly advised of
his rights and questioned regarding any special handling his
property might require. An interpreter was readily available
to the police in the person of the wife of one of the depu-
m t she
c
ties, - w h e spoke fluent Spanish. These alternatives were
readily available to the police and because they did not
pursue them is no ground to now justify their search of the
'
defend-ant s suitcase.
We have here a warrantless search of a defendant's
suitcase. He was in custody because the police officer was
not satisfied tha.t he had produced proper identification,
even though there was no duty of this person to produce
m.'v$entification in order to avoid arrest. At the time
of his arrest he was doing nothing illegal, but to the police
officer he looked strange, that is, like an alien. It so
happened the police officer was wrong. Defendant was legally
in the United States. Here the defendant, upon being ordered
to empty his pockets, did so, and in doing so, revealed a
sma1.1 amount of marijuana. Perhaps this would constitute
probable cause to obtain a search warrant for the contents of
the defendant's suitcase, perhaps not, but the fact is that
the police did not even make an effort to obtain a search
warrant. Instead, based on their custom to inventory every-
thing in a defendant's possession when taken into custody,
they opened the suitcase and found the marijuana. As we have
already held, less intrusive means were avaj.lable to the
police to handle the suitcase and its possible contents.
The order suppressing the evidence is affirmed.
We concur:
CMief J u s t i c e
Justices
Kr. Justice Fred J. Weber dissents as follows:
I dissent from the opinion of the majority which holds
that the inventory search of defendant's suitcase violated
his privacy rights and rendered the evidence seized
inadmissible.
The District Court expressly concluded. that there was
probable ca.use to arrest defendant and take him into custody.
This conclusion is not disputed on appeal.
The United States Supreme Court has held that an inven-
tory search after a valid arrest is a reasonable search which
does not require a warrant. Illinois v. Lafayette (U.S. June
20, 1983), slip op. at p. 3. The Court emphasized that the
justification for such searches does not rest upon probable
cause, but rather is an incidental administrative step fol-
lowing arrest and preceding incarceration. Slip op. at pp.
The Court described the justification for the inventory
search:
"At the stationhouse, it is entirely proper for
police to remove and list or inventory property
found on the person or in the possession of an
arrested person who is to be jailed. A range of
governmental interests support an inventory pro-
cess. It is not unheard of for persons employed in
police activities to steal property taken from
arrested persons; similarly, arrested persons have
been known to make false claims regarding what was
taken from their possession at the stationhouse. A
standardized procedure for making a list or inven-
tory as soon as reasonable after reaching the
stationhouse not only deters false claims but also
inhibits theft or careless handling of articles
taken from the arrested person. Arrested persons
have also been known to injure themselves--or
others--with belts, knives, drugs or other items on
their person while being detained. Dangerous
instrumentalities--such as razor blades, bombs, or
weapons--can be concealed in innocent-looking
articles taken from the arrestee's possession. The
bare recital of these mundane realities justifies
reasonable measures by police to limit these
risks--either while the items are in police posses-
sion or at the time they are returned to the ar-
restee upon his release. Examining all the items
removed from the arrestee's person or possession
and listing or inventorying them is an entirely
reasonable administrative procedure. It is immate-
rial whether the police actually fear any particu-
lar package or container; the need to protect
against such risks arises independent of a particu-
lar officer's subjective concerns. See United
States v. Robinson, supra, 414 U.S., at 235." Slip
op. at p. 6.
I find the reasoning of Lafayette to be compelling and
would follow the holding of the Supreme Court in that case.
I would reverse the District Court's order suppressing evi-
dence and remand the cause for further proceedings.
Mr. Chief Justice Frank I. Haswell and Mr. Justice L.C.
Gul-brandson concur with Mr. Justice Fred J. Weber's dissent.
, - - .
Chief Justice