No. 86-24
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
THE STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
THOMAS ARTHUR ROMEPO,
Defendant and Appellant.
APPEAL FROM: The 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:
Knuchel & McGregor; Daniel B. McGregor argued,
Livingston, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Barbara Claassen argued, Asst. Atty. General, Helena
Nels Swandal, County Attorney, Livingston, Montana
-- -
Submitted: O c t o b e r 2 1 , 1 9 8 6
Decided: December 30, 1 9 8 6
Filed:
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Defendant was convicted of criminal possession with
intent to sell dangerous drugs, in a jury trial in Park
County. We affirm.
The issues are:
1. Did the District Court err in denying the motion to
suppress admission of the marijuana seized from the truck?
2. Was the evidence of other acts properly admitted?
On December 11, 1984, defendant Mr. Romero rented a
motel room in Columbus, Montana. While in Columbus, he drank
at several bars and was involved in a couple of altercations,
resulting in his coming into contact with the police.
In the early morning hours of December 12, 1984, Highway
Patrolman Jay Dixon was notified that a vehicle was in the
median of the interstate near Livingston, Montana. The
vehicle was Mr. Romero's truck. The roads were icy, as it
had snowed earlier. Patrolman Dixon reached the truck at
approximately 5 : 3 0 a.m. and called in the Colorado license
plate number to the Livingston Police Department. Mr. Romero
called out from the truck that he wanted a wrecker, not the
officer's services. At approximately the same time, Patrol-
man Dixon received a radio report from the Big Timber sher-
iff's office that the driver of the truck had been in an
altercation in Columbus the night before and might be intoxi-
cated and/or armed. Patrolman Dixon informed Mr. Romero he
would call a wrecker. He went into Livingston, called Gray's
Road Rescue, and also picked up a Livingston police officer
before returning to the scene of the accident.
When the officers returned to the truck, Mr. Romero was
asleep or passed out on the seat. Patrolman Dixon rapped on
the window and opened the door to waken Mr. Romero, who
immediately became combative. The officers detected an odor
of alcoholic beverage and arrested Mr. Romero for driving
under the influence of drugs or alcohol (DUI). They hand-
cuffed him, placed him under arrest, and put him in the
patrol car. As Patrolman Dixon secured the truck, he noticed
3 or 4 beer bottles on the floor of the cab. He did not
seize the bottles as evidence of DUI at that time.
When Mr. Romero was booked into the Park County jail, he
had $1,500 in 50-dollar bills in his possession. After the
booking, shortly before 7:00 a.m., Patrolman Dixon and the
other officer went to Gray's Road Rescue to get the beer
bottles from the truck. It was being held inside a building.
As Patrolman Dixon retrieved the beer bottles, he noticed a
small amount of green, leafy substance on the floor. He
seized that also. The substance field tested positive for
marijuana.
Based upon the marijuana found on the floor of the
pickup, Mr. Romero's substantial pocket cash, and reports
from Columbus that Mr. Romero was suspected of attempting to
sell marijuana, Patrolman Dixon obtained a search warrant for
the truck. He found three large bundles of marijuana in a
tool box located under the locked hood of the pickup. Mr.
Romero was then charged with intent to sell more than a
kilogram of marijuana and criminal possession of dangerous
drugs, both felonies. Mr. Romero remained incarcerated and
the pickup remained impounded.
One month later, the owner of Gray's called Patrolman
Dixon to inform him that the pickup, which was then sitting
out on the impound lot, had been tampered with. When Patrol-
man Dixon arrived, he saw that a piece of metal was hanging
from the right rear wheel well. He looked in the wheel well
and saw a wrapped bundle, similar to those seized earlier. A
piece of metal had also been removed from the left wheel well
and was lying on the ground. Patrolman Dixon phoned another
officer for assistance. They searched the truck, finding 20
bundles of what proved to be marijuana in the wheel wells and
behind the seat. This search was conducted without a
warrant.
Mr. Romero was later released on bail while awaiting
trial. During July and August of 1985, he met in Billings
with an undercover drug enforcement officer several times to
effect drug sales. These meetings resulted in three separate
marijuana sales by Mr. Romero to the undercover officer.
Prior to trial, defense counsel filed a motion to sup-
press concerning all marijuana seized from the truck. He
argued that a search warrant should have been obtained before
the initial search because the truck was impounded and no
exigent circumstances existed. Additionally, defense counsel
argued the fruit of the poisonous tree doctrine barred intro-
duction of the marijuana seized later. The motion was de-
nied. The trial judge found the initial seizure of beer
bottles and the trace amount of marijuana was justified under
the plain view doctrine, the second seizure of three bundles
was valid pursuant to a search warrant, and the final seizure
of 20 bundles was valid under the plain view doctrine.
The State filed notice of intent to introduce evidence
of other acts at trial, including testimony concerning Mr.
Romero's activities in Columbus, the recovery of one pound of
marijuana from his Columbus motel room, and the July and
Auqust transactions with the undercover officer. Following
briefing and argument on these matters the trial judge
allowed the evidence to be presented at trial.
The other acts testimony was presented the first day of
Mr. Romero's trial. Both counsel and the trial judge forgot
to present a cautionary instruction to the jury prior to the
testimony. The second morning of trial, defense counsel
argued in chambers that failure to deliver the cautionary
instruction had caused irreparable damage to his client and a
mistrial should be granted. The trial judge denied the
motion for mistrial, determining that no marijuana had yet
actually been introduced into evidence and the jury had been
instructed previously not to conclude that testimony about
bags or bundles of green, leafy substance proved that it was
marijuana. The trial judge further determined that if any
prejudice had occurred, a curative instruction the second
morning of trial would correct it. Such an instruction was
given prior to any testimony on the second day of trial.
The jury found Mr. Romero guilty of criminal possession
with intent to sell dangerous drugs. He was sentenced to 16
years in the Montana State Prison.
I
Did the District Court err in denying the motion to
suppress admission of the marijuana seized from the truck?
Mr. Romero argues that there were three separate viola-
tions of his right to be free from unreasonable searches and
seizures under the Fourth Amendment to the United States
Constitution and Mont. Const. Art. 11, § 11. The first
violation occurred, he says, when the beer bottles were
retrieved from the truck and the small amount of marijuana
was found on the floor. Mr. Romero states that this search
of his truck does not fit any of the four recognized
exceptions to the general prohibition against automobile
searches without warrants: the automobile exception, the
exception for searches incident to arrest, inventory search-
es, and the plain view exception. Mr. Romero contends that a
warrant should have been obtained before the officers re-
trieved the beer bottles.
The parties' briefs contain lengthy arguments under
several theories on whether the warrantless seizure of the
beer bottles was constitutional. Because we conclude that
this was a reasonably delayed plain view seizure, we will not
discuss the other theories raised.
The police may seize evidence without a warrant when
they have a prior justification for the intrusion, inadver-
tently come across incriminating evidence, and exigent cir-
cumstances render an immediate seizure imperative. State v.
Godsey (1982), 202 Mont. 100, 103, 656 P.2d 811, 813. This
is the plain view exception to the warrant requirement for
searches and seizures. It is conceded that Patrolman Dixon
could have seized the beer bottles as evidence of DUI under
the plain view exception when he first saw them in the truck.
Mr. Romero's position is that by waiting until the truck
was impounded, Patrolman Dixon lost his opportunity to seize
the bottles as evidence without a warrant. However, several
jurisdictions have held that a delayed seizure of articles
perceived in an arrested person's vehicle at the time of
arrest is proper as long as the delay is reasonable. State
v. Jines (Mo. 1976), 539 S.W.2d 801; People v. Calhoun (Mich.
1971), 186 N.W.2d 56; State v. Caldrone (Kan. 1970), 473 P.2d
66, cert denied, 401 U.S. 916; State v. Stewig (Minn. 1968),
161 N.W.2d. 673; State v. Perez (N.M. 19681, 444 P.2d 602;
Price v. United States (D.C.Cir. 1965), 348 F.2d 68, cert
denied, 382 U.S. 888.
We agree that a seizure which is proper under the plain
view exception may be delayed, so long as the delay is rea-
sonable. After all, the focus of the Fourth Amendment is
reasonableness. In this case, Patrolman Dixon determined not
to seize the beer bottles from the truck stuck in the median
of the interstate at 5:30 a.m. on an icy winter morning while
the combative Mr. Romero waited in the patrol car. Instead,
he went back to retrieve the bottles as soon as Mr. Romero
was booked and incarcerated and the truck had been towed to
an impound lot. We conclude that this delay was reasonable.
The defense cites this Court's opinion in State v .
Cripps (1978), 177 Mont. 410, 582 P.2d 312, as persuasive.
In that case, defendants had arranged to sell drugs to an
undercover police officer. When defendants arrived at the
meeting place, police and sheriff's officers converged on
them. After all the defendants had been arrested and hand-
cuffed, the officers conducted a search of defendants' vehi-
cle. This Court held that the search was not within the
permissible scope of a search incident to an arrest or within
the automobile exception. The Court distinquished that
situation from one involved in a previous case:
In Turner the defendant was arrested for D.W.I.
F7hile a police officer was driving defendant's
vehicle to the police station, he became aware of a
beer bottle on the floor of the car. When he
leaned over to pick it up, he noticed a bag of
marijuana lying near the beer bottle. This Court
held that ... the marijuana was admissible ..
.
In Turner the police officer was legitimately
inside defendant's car to begin with. His discov-
ery of the beer bottle and subsequent discovery of
the marijuana was not because of an intent on his
part to search the vehicle. Under the circumstanc-
es, what the officer did in Turner was reasonable;
here it was not.
Cripps, 582 P.2d at 318-19, distinguishing from State v.
Turner (1974), 164 Mont. 371, 523 P.2d 1386. Distinguished
-
from Cripps in the same way Turner can -- the officer was
legitimately inside the vehicle. Here, the officer was
legitimately in the vehicle to seize the beer bottles which
had been discovered earlier. This was not a search incident
to an arrest, but a reasonably delayed plain view seizure of
the beer bottles which led to a plain view seizure of the
marijuana on the floor. Therefore, the trial court properly
admitted into evidence the marijuana found on the truck
floor.
The defense also asserts that there were no exigent
circumstances to justify the officers' entry into the im-
pounded truck and seizure of the beer bottles. It argues
that because of the 1 to 14 hour delay, the plain view doc-
trine no longer applies and a warrant should have been ob-
tained. On its face, this argument appears to have merit.
It is premised upon the idea that the police had possession
of the truck from the time of Mr. Romero's arrest, and could
have obtained a warrant. However, if a warrant should be
required after the delay here, why should a warrant not be
required upon any seizure which accompanies an arrest?
Considerinq the nature of the pla-in view exception, we con-
clude that the exigent circumstances which would have allowed
seizure of the bottles immediately after the arrest did not
disappear during the short time between Mr. Romero's arrest
and the retrieval of the beer bottles.
The operator of Gray's testified that the seizure of the
beer bottles took somewhere between two and five minutes.
The defense implies that this time estimate is somehow damag-
ing to the State's case. We do not agree. The two-to-five
minute estimate does not establish anything more than that
there was a careful seizure of the beer bottles and the
consequently-discovered marijuana.
As a result of our conclusion on the admissibility of
the small amount of marijuana from the truck floor, it fol-
lows that the 3 bundles of marijuana seized on December 1 2
and the 20 bundles seized in January were admissible into
evidence. The warrant issued for the December 12 search was
supported by the small amount of marijuana found on the floor
of the truck, the reports from Columbus, and the $1,500 in
50-dollar bills in Mr. Romero's possession at the time of
arrest. We affirm the conclusion that this is adequate
probable cause. The marijuana seized in January is not
'fruit of the poisonous tree' because of our conclusions that
the first two seizures were valid. It was discovered when
the officers were justifiably investigating the report that
the impounded truck had been tampered with. It is admissible
under the plain view exception.
We hold that the District Court properly admitted into
evidence the marijua-na seized from the truck.
I1
Was the evidence of other acts properly admitted?
Mr. Romero asserts that testimony presented about his
activities in Columbus on the day before he was arrested and
about his sales of marijuana to the undercover agent while he
was awaiting trial did not meet the guidelines set out in
State v. Jensen (1969), 153 Mont. 233, 455 P.2d 631, on
evidence of other crimes. He also contends that since the
court failed to pre-instruct the jury to weigh the evidence
about his activities in Columbus only for limited purposes,
reversible error is present under State v. Just (1979), 184
Mont. 262, 602 P.2d 957.
Evidence of acts which are inextricably or inseparably
linked with the crime charged is admissible without regard to
the rules governing "other crimes" evidence. State v. Riley
(Mont. 1982), 649 P.2d 1273, 1279, 39 St.Rep. 1491, 1499.
The testimony given on the first day of trial established
that Mr. Romero had a bundle of what appeared to be marijuana
in his possession while in a Columbus bar. It also estab-
lishes that he requested a driver for an unexplained trip to
Canada, that one pound of marijuana was found in Mr. Romero's
motel room the morning after he checked out, and that he
denied having a vehicle when questioned by the Columbus
police. We conclude that these prior acts, which occurred a
few hours before his arrest, are inextricably linked to the
charged crime of possession of marijuana with intent to sell.
Therefore, the Just and Jenson requirements do not apply to
the testimony about Mr. Romero's activities in Columbus.
Since the testimony of the undercover agent was present-
ed the second day of trial, after the Just admonition was
given to the jury, the Just requirement was met. The Jenson
guidelines for "other crime" evidence are that there be 1)
similarity between the crimes or acts; 2) nearness in time;
3) a tendency to establish a common scheme, plan, or system;
and 4) a determination that the probative value of the evi-
dence is not substantially outweighed by the prejudice to the
defendant. Jensen, 602 P.2d at 961. Mr. Romero argues that
the first and fourth requirements were not met. We disagree.
At trial, Mr. Romero's counsel arged that there was no proof
that Mr. Romero was aware of or responsible for the marijuana
hidden in secret compartments of the truck. The undercover
agent's testimony went directly to Mr. Romero's personal
involvement with the similar crime of sales of large quanti-
ties of marijuana. We conclude that the District Court
correctly determined that the probative value of this evi-
dence is not substantially outweighed by the prejudice to Mr.
Romero, and that the District Court properly allowed the
testimony into evidence.
We affirm the District Court.
We Concur:
Chief Justice
Justices
Mr. Justice John C. Sheehy, dissenting:
The majority have rescued the conviction of the
defendant from a terrjbly bungled police investigation, but
at what cost to the law of searches and seizures.
All of the evidence retrieved from the truck should have
t
been suppressed in this case.
The first search of the truck occurred when the vehicle
was safely impounded in a wrecking yard at the orders of the
police. Thus the usual exceptions to a warrantless seizure
c o not apply.
' There were no exigent circumstances. There
was no inventory search incident to arrest. No reason
appears why the officers did not apply first for a search
warrant before entering the impou~dedtruck.
The "plain view" doctrine does not save the intrusion
into the truck without a warrant. If at the time of the
arrest the officers had taken into their possession the
articles then in plain view, their actions would have been
permi-ssible. That did not occur here. Instead the articles
were seized as a result of a warrantless search of the truck
at a time when the "plain view" rule did not apply.
The fact that the officers saw the articles in the truck
would have been useable in an affidavit for a search warrant
later. The rule is that articles, though in plain view,
seized as part of a warrantless entry, must be suppressed on
motion. See People v. Griffin (Colo. 1986), 727 P.2d 55;
Coolidge v. New Hampshire (1971), 403 U.S. 443, 91- S.Ct.
2022, 29 L.Ed.2d 564.
The illegal seizure of a marijuana leaf as part of a
warrantless entry into the truck was used later by the police
as part of their -justification of probable cause to get the
search warrant. for the second seizure of contraband. The
taint of the first illegal seizure comes over and poisons the
second seizure.
The third seizure, that from the hidden panels and
wheelwells, again occurred without a warrant, and no
excusable attendant circumstances. Again the search was
il-legal, and the products of the illegal search should be
suppressed.
Therefore I dissent. _ ..---.
- .*A&,, 6 SILCUI
Justice
i
I agree with the dissent of Nr. Justice John C. Sheehy: