NO. 88-353
IN THE SUPREME COURT OF THE FTATF OF MONTANA
1989
STATE OF MONTANA,
Plaintiff and Appellant,
-vs-
JOHN PATRICK HEMBD,
Defendant and Respondent
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:
Hon. Marc Racicot, Attorney General, Helena, Montana
s l a y R. Smith, Ass't Attorney General, Helena
p-
in :Mike McGrath, County Attorney, Helena, Montana
+ a
c3 / /
F6r Respondent :
' P L.2
-
-- J .J.,awrence Murphy; Harrison, Yeshe
A. & Murphy, Helena, MT
L- d
Submitted on Briefs: December 2, 3988
Decided : January 12, 1989
-- ED SMITH
Clerk
Mr. Justice L. . Gulhrandson delivered the Opinion of the
Court.
The State of Montana appeals the order of the District
Court, First Judicial District, TJewis and Clark County,
Montana, filed on Mav 3 3 , 1988, granting defendant's motion
to suppress evidence seized from the trunk of his vehicle
pursuant to a search warrant. We reverse the order of the
District Court.
John Patrick Hemhd was arrested in the early morning
hours of March 16, 1988, following a phone call to the police
department reporting that two persons were being held bv a
third person and were being forced to drive around in his
car. The report stated that the vehicle was en route to a
location in downtown Helena. Upon arriving at that location,
officers observed the vehicle described in the report. The
officers stopped the vehicle and the two occupants were taken
into custody. At that time the defendant walked up to the
vehicle and, after claiming it was his vehicle, was placed
under arrest. Following the arrest, the Helena City Police
Department i-mmediately impounded Hembd's vehicle. He was
subsequently charged by complaint with the felony offense of
intimidation.
Later in the morning of March 16, 1988, Police Captain
Jeff Bryson interviewed the two alleged victims. He observed
the police reports filed by the arresting officers and
presented the facts to the Lewis and Clark County Attorney's
Office. The County Attorney's Office prepared an application
for a search warrant, a search warrant, and a complaint
charging Hembd with felony intimidation. The application
cover sheet stated that the offense of intimidation had been
committed, that Officer Bryson had good reason to believe
that evidence and/or fruits of a crime, more particularly
described as two semi-automatic handguns, were present in the
defendant's vehicle. The application further stated one of
the handguns was located in the interior of the vehicle and
the second weapon was located in the trunk of the automobile.
The application stated the premises to be searched was a 1978
Buick Electra, silver in color, hearing Montana license plate
number 3-202808, registered to John Patrick Hembd, and was
located at the A1 Rose impound lot at Chestnut and National
Streets. Facts establishing grounds for probable cause for
issuing the search warrant were attached in an affidavit. and
stated as follows:
On or about the 15th and 16th days of
March, 1988, two gentlemen, Jeff Hafer
and John Ellingson, had a flat tire on
their vehicle in the Helena Valley in the
area of North Montana Avenue and Cedar
Street. These two individuals were able
to obtain a ride into town from a John
Patrick Hembd to qet a new tire. Mr.
Hembd was driving a 1978 Ruick Electra,
silver in color, bearing Montana license
no. 3-202808. Durinq the course of the
evening the trio decided to stop in a
series of bars. Mr. Hembd was
particularlv interested in looking +or a
female bv the name nee Rowe. Mr. Hembd
advised Hafer and Ellingson that if he
saw Ms. Rowe he was going to kill her,
and showed them a small semi-automatic
handgun. During the course of the
evening Mr. Hembd pointed the gun at both
Mr. Hafer and Mr. Ellingson, and
maintained a dangerous and threateninq
demeanor throughout. Both Hafer and
Ellingson felt they had little choice in
following Hembd's orders.
Also, during the course of the
evening, Mr. Hembd told Hafer and
Ellingson that he had automatic weapons
in the trunk of his vehicle. At one
point, while the vehicle was parked in
the City of Helena parking garage on the
corner of Park and Sixth Avenues, Hafer
and Ellingson looked in a gym bag located
in the trunk of the vehicle, and saw a
second semi-automatic handqun.
During the course of the evening,
Ellingson [Hafer] was forced to go into
the Mini-Mart to obtain a hanger and
purchase a carton of chocolate milk for
Hembd. When Mr. Ellingson [Hafer] went
into the Mini-Mart, Hembd had a handgun
pointed at Mr. Hafer [ElIingson]. While
in the store, Ellingson [Hafer] persuaded
the clerk at the store to notify the
police of their predicament and to advise
them that they would be going to the Park
Plaza when they left the Mini-Mart.
Hembd was subsequently arrested by Helena
Police officers in the aforementioned
parking garage near the Park Plaza. He
was searched but neither handgun was
located on his person.
It is the belief of Mr. Hafer and
Mr. El-lingson, as well as your affiant,
that a search of Mr. Hembd's vehicle is
necessary to locate both handguns
mentioned above.
The search warrant itself stated that the items sought
were "two/ or more, semi-automatic handguns, one believed to
be located in the interior of the vehicle and the second one
is believed to be in the trunk of the automobile." (Emphasis
added. ) The justice of the peace, after asking Officer
Rrvson if the facts and assertions contained in the
application for the warrant were true and accurate, issued
the search warrant as prepared by the County Attorney's
Office.
Officer Rryson and two other Helena police officers,
Troy McGee, and Bryan Costigan, executed the search warrant
on the vehicle. While neither McGee nor Costigan had viewed
the warrant, thev were told by Officer Bryson that the77 were
looking for guns. The search was commenced in the trunk of
the vehicle and the first item inspected. was a small black
bag, referred to as a shaving kit. Inside the black bag the
officers found a white powdery substance. Proceeding with
the search, the ofqicers searched a larger dark bag and found
three handguns. The subsequent search of the other bags and
containers in the trunk produced the following items:
ammunition, plastic bags containing an unknown powderv
substance, empty glass vials, a scale commonlv associated
with illegal drug activity, lock picking devices, electronic
radio scanning equipment, and radio call guides listing local
law enforcement frequencies. The officers then proceeded to
search the interior of the vehicle where a semi-automatic
pistol was found on the hack seat of the car underneath some
clothing.
On March 24, 1988, the defendant was charged by
information with the following counts: (1) felony
intimidation, in violation of S 45-5-203 (1)(a), MCA;
(2) felony theft, in violation of 5 45-6-301 (1)(c), MCA;
(3) misdemeanor possession of burglary tools, in violation of
$ 45-6-205 (I), MCA; and (4) felony criminal. possession of
dangerous drugs with intent to sell, in violation of
S 45-9-103(1), ( 3 ) , MCA. The defendant filed a motion to
suppress on April 14, 1988, seeking suppression of all
evidence seized from the trunk of the vehicle. After a
hearing the motion was granted by memorandum and order filed
on May 23, 1988. The State appeals the suppression order and
presents the following issues for review:
1. Whether probable cause existed for issuance of the
March 16, 1988, search warrant authorizing a search of
defendant's vehicle trunk.
2. Whether the plain view doctrine authorized the
March 16, 1988, seizure of incriminating items other than
handguns from the defendant's vehicle trunk.
3. Whether suppression of incriminating evidence
seized from the defendant's vehicle trunk in reliance on the
validity of the March 16, 1988, search warrant is appropriate
under the exclusionarv rule.
I.
The State initially raises the question of whether the
District Court erred in its finding that sufficient nexus did
not exist for probable cause to search the trunk of the
defendant's vehicle. The District Court based its holding o f
a lack of probable cause on the finding that the victims gave
no indication Hembd intended to use the gun in the trunk to
intimidate them. Also, the gun in the trunk was not alleged
to constitute any manner of contraband. For these reasons,
the District Court granted. the defendant's motion to suppress
all the evidence seized from the defendant' s vehicle trunk.
A person's right to he free from unreasonable and/or
warrantless searches and seizures is based upon the Fourth
Amendment to the United States Constitution and Article 11,
sec. 11 of the Montana Constitution. The Montana
Constitution states:
[Mlo warrant to search any place, or
seize any person or thing shall issue
without describing the place to be
searched or the person or thing to he
seized., or without probable cause,
supported by oath or affirmation reduced
to writing.
The requirements for issuing a search warrant call for
an impartial magistrate to determine the existence of or lack
of probable cause from the ''four corners" of the search
warrant application. State v. O'Neill (1984), 208 Mont. 386,
393, 679 P.2d 760, 763-764, citing State v. Isom (1982), 196
Mont. 330, 641 P.2d 417; Thompson v. Onstad (1979), 182 Mont.
119, 594 P.2d 1137. The magistrate and the reviewing court
shall interpret and examine the affidavit supporting the
application in a common sense, realistic fashion, avoiding
hypertechnical interpretations. The preference is to
encourage the police to seek warrants and in marginal cases
the re~riewingcourt should keep this preference for warrants
in mind. -O'Neill, 679 P.2d at 764, citing United States 1 7 .
-
Ventresca (1965), 380 U.S. 102, 108-109, 85 S.Ct. 741, 746,
13 L.Ed.2d 684, 689.
The reviewing court should also remember the standard
for issuing the search warrant is the existence of "a
probability, not a prima facie showing of criminal activity."
O'Neill, 679 P.2d at 764, citing Beck v. Ohio (1964), 379
U.S. 89, 85 S.Ct 223, 13 L.Ed.2d 142. That probability will
be determined using a totality of the circumstances analysis,
based upon the circumstances set forth in the affidavit.
OINeill, 679 P.2d at 764, citing Illinois v. Gates (1983),
462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. The reviewing
court's examination is limited to whether the magistrate had
a substantial basis for concluding probable cause existed.
O'Neill, 679 P.2d at 764, citing Gates, 462 U . S . at 238, 103
S.Ct. at 2332, 76 L.Ed.2d at 548.
Our examination of the affidavit in this case leads us
to find a substantial basis existed in the affidavit to allow
the magistrate to find probable cause to issue the warrant.
The defendant was charged with felony intimidation of Jeff
Hafer and John Ellingson. Officer Rrvson's affidavit
identifies how the two individuals came under Hembd's
control, the vehicle in which they drove him around, the fact
Hembd was looking for one Dee Rowe and would kill her when he
found her, the fact Hembd pointed a semi-automatic pistol at
each of the individuals, and had exhibited a danqerous and
threateninq manner. The affidavit also notes that Hembd told
the individuals he had automatic weapons in the trunk and at
one point, while the vehicle was parked the individuals
looked in a gym hag in the trunk and saw a second
semi-automatic handgun. Upon Hembd ' s arrest neither handgun
was found on his person.
From the four corners of this affidavit, the justice of
the peace was asked to find probable cause to permit a search
o f the ~ ~ e h i c l e
for two or more handguns. The "or more"
portion was not included in the application for the search
warrant, hut was present in the actual search warrant.
The defendant contends, and the District Court agreed,
that a nexus cannot be developed between the gun(s) locat-ed
in the trunk and the crime of felony intimidation for which
the gun (s) constituted evidence. Subsection (1) of the
intimidation statute 45-5-203, MCA, contains the elements
necessary to constitute intimidation.
(1) A person commits the offense of
intimidation when, with the purpose to
cause another to perform or to omit the
performance of any act, he communicates
to another, under circumstances which
reasonably tend to produce a fear that it
will be carried out, a threat to perform
without. lawful authoritv any of the
following acts:
(a) inflict physical harm on the person
threatened or any other person;
(b) subject any person to physical
confinement or restraint; or
(c) commit any felony.
Taking notice of this Court's prior holding in O'Neill that
the evidence collected should not be viewed in terms of
"library analysis by scholars," but in terms of those "versed
in the field of law enforcement," we find sufficient
information existed to establish probable cause to search the
trunk. O'Neill, 679 P.2d at 764, citing United States v.
Cortez (1981), 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621.
A fair probability existed that a search of the vehicle would
uncover the gun with which the defendant intimidated the
individuals, and automatic weapons in the trunk with which
the individuals believed he would harm them and ki.11 Dee
Rowe.
Analyzing the affidavit in light of 5 45-5-203, MCA, we
find the defendant communicated to the indj.vidual~a threat
to kill Dee Rowe. Section 45-5-203(1), MCA. In brandishing
the pistol in the car and communicating the presence of
automatic weapons in the trunk, the defendant produced a fear
in the individuals that he intended to and had the ability to
kill Dee Rowe. Section 45-5-203 ( 1 )(a), MCA. Evidence of the
fear created is deduced from the fact that the individuals
were sufficientlv fearful for their safety and that of Dee
Rowe, that Jeff Hafer requested the clerk at the Mini-Mart to
call the police. The statements by the individuals that the77
had seen a semi-automatic handgun in the trunk established
sufficient probability to authorize a search of the trunk for
that handgun and other weapons which the defendant claimed to
have at his disposal.
Defendant contends that the affidavit contains
inaccuracies which render reliance upon it void as a matter
of law. These inaccuracies were that the defendant did not
maintain a dangerous and threatening demeanor throughout the
evening, and whether or not the indi~riduals were actually
ordered to drive the defendant to various places. We
initially note that while these statements were not totally
accurate, thev are not untrue. The threat to kill Dee Rowe
when he found her constitutes a dangerous and threatening
action on the defendant's part. That the individuals did not
feel themselves in danger until after they observed that
Hembd had seen them looking in the trunk does not alleviate
the dangerous and threatening action exhibited throughout the
evening toward Dee Rowe. Further, both individuals'
statements show they felt compelled to drive Hembd back to
the Park Plaza from the Mini-Mart where they had obtained the
coat hanger he needed to break into the Park Plaza. They had
both observed him pointing a handgun at the other while the17
were outside the Mini-Mart. We also note that the affidavit
was prepared by the County Attorney based upon Officer
Rrvson's recollection of the individuals' statements and the
arresting officers' reports. While we do not condone the
presence of inaccuracies in search warrant applications,
under these circumstances we do not find the cited
inaccuracies defeat the application. Further, after excising
the inaccurate portions of the statements, the affidavit
still establishes sufficient probable cause to issue the
search warrant. Franks v. Delaware (1977), 438 U.S. 154,
171-172, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667, 682.
For the foregoing reasons we find the District Court
erred in granting the motion to suppress.
11.
Appellants second issue was not addressed by the
District Court as the court had found a lack of probable
cause to enter the trunk. As we have found the District
Court erred in its decision, we feel some guidance is in
order regarding the second issue. At the suppression
hearing, the defendant contended that if probable cause was
found to search the trunk, any other items found besides the
gunfs) found in the gvm bag should be suppressed under the
"plain view" doctrine. The defendant contends the search
warrant would not permit the officers to search any bag or
container other than the gym hag mentioned in the affidavit.
Evidence seized from any other closed bag or container would
not fall within the plain view doctrine. Defendant further
contends that the officers did not find the drugs and
burglary tools inadvertently.
This Court has previously held that four requirements
must be met to seize items which are not described in a
warrant under the plain view doctrine. There must be a prior
justification for the intrusion into the protected area. The
articles must be in plain view. The incriminating nature of
the items must he apparent. Finallv, the discovery of the
articles must be inadvertent. State v. O'Neill (19841, 208
Mont. 386, 397, 679 P.2d 760, 766, citing Coolidge y r . Mew
Hampshire (1971), 403 1J.S. 443, 91 S.Ct. ?022, 39 L.Ed.2d
564.
"The plain view doctrine authorizes seizure of illegal
or evidentiary items visible to a police officer whose access
to the object has some prior Fourth Amendment justification
and who has probable cause to suspect that the item is
connected with criminal activitv." Illinois v. Andreas
(1983), 463 U.S. 765, 771, 103 S.Ct. 3319, 77 L.Ed.2d 1003,
citing Texas v. Brown (1983), 460 U.S. 730, 738, and n. 4,
741-742 (plurality opinion); - id. at 746 (Powell, J.,
concurring in judgment); - at 748, 749-750 (Stevens, J.,
id.
concurring in judgment) . Here the police officers were
searching the vehicle under authority of a search warrant for
two or more handguns. The warrant placed one of the handguns
in the interior of the vehicle and one in the trunk. Having
previously held that the warrant was properly issued, the
officers access and search of the trunk was justified.
The United States Supreme Court has held that a lawful
search of fixed premises will extend "to the entire area in
which the object of the search may be found . . .
" United
States v. Ross (1982), 456 U.S. 798, 820, 102 S.Ct. 2157,
2170, 72 L.Ed.2d 572, 591. "A warrant to search a vehicle
would support a search of every part of the vehicle that
might contain the object of the search." - at 821. In the
Id.
instant case the warrant authorized the search of the
vehicle, particularly the interior and the trunk, for two or
more handguns. In executing the warrant, the officers were
justified in searching those areas of the vehicle and
examining the contents of containers which might contain the
object of the search.
While lawfully engaged in executing the search warrant,
the officers were justified in immediately seizing suspicious
objects, such as contraband, stolen property or incriminatinq
e~ridence. Texas v. Brown, supra, 460 U.S. at 739. The
evidence seized here consisted of some white powdery
substance, believed to be drugs, along with the a scale and
plastic bags and vials normally associated with the
distribution of drugs, and lock picking tools and
communications equipment normallv associated with burglarv
tools. It is a preferred practice to stop upon the initial
discovery of such items in an impounded vehicle, and secure a
search warrant which would allow a more extensive search of
the vehicle. However, we find that the failure to do so in
this instance does not justify suppression of the evj-dence
seized as the containers searched were all capable of
concealing guns, the object of the search.
The defendant bases his contention of a lack of
inadvertence upon the fact that Officer Bryson knew of the
possible existence of drugs in the trunk from his interviews
with the two victims. Further, the two officers who
conducted the search admitted having read the arrest report
circulated earlier that morning which mentioned the possible
presence of drugs. The victims' statements referred to
Hemhd's comments that he had a half-pound of "crank" and
automatic weapons in the trunk and that he was known as Lock
Picking John. The defendant claims the officers search for
guns in the trunk was a fishing expedition to test the
accuracy of these statements. He claims the oqficers knew
that probable cause did not exist for a warrant to search for
drugs or burglarv tools.
Since the United States Supreme Court adopted
inadvertence as a requirement for seizing evidence or
contraband under the plain view doctrine, the courts have
attempted to define what level of inadvertence is necessary.
In United States v. Freeman (5th Cir. 1 9 8 2 ) , 685 F.2d 942, at
954, n. 7, the Fifth Circuit Court of Appeals stated:
[I]nadvertence does not require the
police to be totally dumbfounded or
surprised by the discovery of the
incriminating evidence; the fact that its
presence may be "within the realm of
foreseeable possibilities," ... or even
expected, does not destroy inadvertence
if the police did not arrive specifically
planning to look for the evidence.
(Citations omitted. )
The Second Circuit later identified when the
inadvertent discovery rule would apply.
[Flor the inadvertent discovery rule to
apply to the present case, it must appear
that prior to the issuance of the warrant
the police could reasonably and in good
faith either have failed to recognize the
existence of probable cause or believed
that there was insufficient evidence of
probable cause to search for the money.
See United States v. Wright, 641 F.2d
602, 606-07 (8th Cir.1981) ; 2 W. LaFave,
5 4.11 at pp. 179-83.
United States v. $10,000 in U.S. Currency (2nd Cir. 19861,
780 F.2d 213, 218. In the instant case we note that Officer
Rryson was aware of the possible presence of drugs and other
evidence; howe~~er, his evaluation, after consultation with
the County Attorney, was that he did not have probable cause
to seek a search warrant for those items. As the Second
Circujt stated:
Once government agents conduct a search
pursuant to a valid search warrant, their
earlier suspicions do not make discoverv
of weapons [drugs and burglary tools in
this case1 actually found in plain view
premeditated. Nor is the existence of
probable cause, unrecognized by the
police, sufficient to bar discoverv as
not inadvertent. Such a purelv
"objective" approach would exclude
important evidence simply because the
police "by oversight or acting from an
abundance of caution or out of a
misapprehension of what it takes to
obtain a search warrant covering that
evidence, failed to include that item in
the warrant executed." 2 W. LaFave, S
4.11 at 181.
$10,000 in U.S. Currency, '80 F.2d at 218. We agree with the
position taken by the Second Circuit. The cautious actions
of law enforcement officials in seeking to protect the
validity of the warrant should not invalidate the inadvertent
seizure of evidence or contraband where the officers
conducting the search adhere to the intent contained in the
search warrant.
Having determined previouslv that the search warrant
was issued with probable cause we find the exclusionary rule
does not come into play and that we need not discuss whether
the good Faith exception is applicab'e. The decision of the
District Court is reversed and the case is remanded for
further action in compliance with t
We concur: