No. 86-323
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JAMES GONZALES,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J. Mayo Ashley, HELENA, Montana
For Respondent:
Honorable Mike Greely, Attorney General, Helena, Montana
Clay R. Smith, Assistant Attorney General,
Mike McGrath, Lewis and Clark County Attorney,
Helena, Montana
Carolyn Clemens, Deputy County Attorney
--
Submitted on Briefs: February 18, 1988
Decided : !.AA/? 2 4 1988
Filed: fifxf?" 4"@fr
2"
*,Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
Appellant James Gonzales appeals his conviction for
theft in the District Court of the First Judicial District,
Lewis and Clark County. We affirm.
Mr. Gonzales contends that the District Court erred by
admitting evidence obtained in violation of his search and
seizure rights under the Fourth Amendment to the United
States Constitution, and Articl-e 11, $5 10 and 11, of the
Montana Constitution. The asserted violation stems from
police placement of florescent detection powder on the
exterior of an automobile owned by Mr. Gonzales's brother,
Jason Gonzales. The police applied the powder to Jason
Gonzales's automobile without first obtaining a warrant.
After the powder was placed on the vehicle, police found
traces of similar powder at different locations within a
Helena home which had been burglarized. The police officers
investigating the burglary used the presence of the powder at
the Helena home to obtain a search warrant for Jason
Gonzales's home and automobile. The searches of the automo-
bile and home revealed evidence the State used to charge both
Jason and James on counts of burglary and theft.
The codefendants moved the District Court to suppress
the evidence contending that placement of the powder on the
car constituted an illegal search and seizure of the car, and
that evidence obtained as a result of the application of the
powder constituted fruit of the poisonous tree. The District
Court denied the motion holding that the application of the
powder to the car did not constitute a search or seizure so
as to implicate search and seizure rights under the United
States Constitution and the Montana Constitution. Following
this ruling the codefendants moved to sever their trials and
the District Court granted the motion. After the separation
of the trials, Jason pled guilty to both counts. James
proceeded to trial, and the jury returned a verdict convict-
ing him of the count for theft.
Mr. Gonzales contends on appeal that the lower court
erred by concluding that placement of the powder on the car
and the transfer of the powder to his hands did not consti-
tute a search or seizure. The State responds that the Dis-
trict Court correctly concluded that the application of the
powder did not constitute a search or seizure, and that even
if a search or seizure existed, Mr. Gonzales lacks standing
to contest its validity. We affirm because Mr. Gonzales
lacks standing on this issue.
An individual must have either a property or possessory
interest in the automobile searched or seized by the police
to assert standing for violations of the Fourth Amendment to
the United States Constitution. Rakas v. Illinois (19781,
439 U.S. 128, 148, 99 S.Ct. 421, 433, 58 L.Ed.2d 387, 404.
The same holds true with regard to the Article I1 guarantees
of the Montana Constitution. State v. Ribera (1979), 183
Mont. 1, 8-9, 597 P . 2 d 1164, 1168-69. Thus, the threshold
question here is whether Mr. Gonzales can claim either
interest in his brother's automobile.
As part of his defense, Mr. Gonzales maintained that he
had no property interest in the automobile, and that he never
drove it. Therefore, even if the application of the powder
constituted an illegal search or seizure of his brother's
vehicle, Mr. Gonzales lacks standing to object to the viola-
tion. Inasmuch as Mr. Gonzales cannot assert standing, we
decline to address the issue of whether a search or seizure
existed as a result of the use of the powder. Affirmed.
We Concur: