State v. Williams

NO. 93-493

IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA,
Plaintiff and Respondent,
v.
CHRISTOPHER DION WILLIAMS
and BRYAN EARL SMITH,
Defendants and Appellants.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.

COUNSEL OF RECORD:
For Appellants:
L. Sanford Selvey, 11, Yellowstone Public Defender
Office, Billings, Montana (Williams)
Curtis L. Bevolden, Billings, Montana (Smith)
For Respondent:
Hon. Joseph Mazurek, Attorney General; Patricia
Jordan, Assistant Attorney General, Helena, Montana
Susan P. Watters and Dale R. Mrkich, Deputy County
Attorneys, Billings, Montana

Submitted on Briefs: April 7, 1994
Decided : June 2 8, 1994
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Christopher Williams and Bryan Smith appeal from an order
denying their motions to suppress evidence seized from a motel
room. After the District Court for the Thirteenth Judicial
District, Yellowstone County, ruled the evidence admissible under
the I1plainview1'doctrine, Williams and Smith entered guilty pleas
to charges of criminal possession of dangerous drugs with intent to
sell. We affirm.
The issues are whether the court should have suppressed the
evidence because it was obtained as a result of an illegal search
of the motel room, and whether Smith has standing to object to use
of the evidence.
On the afternoon of October 11, 1992, Deputy Sheriff Dennis
McCave of the Yellowstone County Sheriff's Office received a phone
call from a known informant concerning a black Cadillac driving
around in the North Park area of Billings, Montana, in a suspicious
manner. According to the informant, the car was then parked at the
Rimview Inn.
McCave checked records on the Cadillac and learned it was
registered to Jason Hibit-Smith, a minor on whom there was an
outstanding arrest warrant for sales of dangerous drugs to an
informant. McCave obtained the arrest warrant and went to the
Rimview Inn with Deputy Eugene Johnson. McCave was in plain
clothes and Johnson was in uniform.
The Rimview Inn motel clerk told McCave that the two men who
got out of the black Cadillac were in Room 122, which was regis-
tered to Chris Williams. When the deputies knocked on the door of
that room, defendant Bryan Smith, in stocking feet, opened it.
McCave asked the two men in the room for their identification.
Smith replied that he was Jason Hibit-Smith, and McCave advised him
that he was under arrest pursuant to the arrest warrant. (Jason
Hibit-Smith was actually Smith's younger brother.) Deputy Johnson
handcuffed Smith, then sat him down in a chair in the room so that
they could put his shoes on. The officers observed a suitcase and
a pile of clothes on the floor and a stack of money on a bed.
Defendant Christopher Williams was sitting on another bed.
McCave asked Williams who he was and why he was there.
Williams replied that he had just arrived from Seattle, that he
knew Smith from Seattle, and that Smith had picked him up from the
bus and taken him to the motel. McCave, concerned that the money
on the bed might be Smith's and that it might be the fruit of drug
transactions, asked whose money it was. Smith and Williams both
replied that the money belonged to Williams. McCave asked how much
money there was, and Williams replied, "$2,000." While McCave
counted the money, Smith said there was not that much there. The
stack contained a little over $1,000. McCave said he intended to
seize the money until its ownership was cleared up.
Deputy Johnson, meanwhile, was writing down information from
the defendants' I.D.'s. Anticipating leaving with the deputies
rather than in the Cadillac, Smith asked Williams to call his
uncle, and began to give a phone number. Williams asked for a pen.
 Johnson only had one pen, which he was using. McCave said he
did not have a pen and commented that motels always have pens in
the room. McCave looked at the open shelf on the telephone stand
and did not see a pen there. He then opened the desk drawer,
immediately exposing
three baggies that contained approximately ...20 to 25
little folded pieces of paper with cocaine. There was
also a small baggie by itself with an eighth ounce, an
eight-ball of cocaine.
McCave closed the drawer and advised Williams he was under arrest.
Based upon the discovery of suspected cocaine in the drawer,
the deputies obtained warrants to seize the evidence and to search
the room and the Cadillac. Both Smith and Williams were charged
with possession of dangerous drugs with intent to sell. Smith was
also charged with obstructing a peace officer, for misidentifying
himself as his brother.
At the consolidated hearing on the motions to suppress, the
court heard testimony by both deputies and by defendant Williams.
Smith did not appear at the hearing, although his counsel was
present.
Williams's testimony differed from that of the deputies on
several matters. Williams testified that when the officers first
came to the door, they stated they were delivery people. On cross-
examination, however, he admitted that it "could have beenN that
they instead said I1Sherif Is Office."
f Deputy McCave testified
that, when he knocked on the door of Room 122, he stated, "Sher-
iff's Office, please open the door.'#
 williams testified that he addressed his request for a pen to
Deputy Johnson and that Johnson had several pens in his shirt.
Johnson testified that he only had one pen with him in the motel
room.
The court heard Smith's testimony several days later. At that
time, Smith testified he had missedthe suppression hearing because
the thermostat went out in his car. As to the events of October
11, he testified that the officers said nothing when they knocked

on the door of the motel room. He stated Deputy Johnson had "a lot
of pensN in his pocket. He also testified that McCave went into
the bathroom and picked up some keys by the sink and that McCave
"started opening drawersu after Williams asked for a pen.
The District Court ruled that the Itplain viewn exception to
the search warrant requirement applied to this situation, because
the sheriff's deputies were lawfully in the motel room and McCave
inadvertently discovered the cocaine while looking for a pen for
Williams. The court also ruled that Smith lacked standing to
contest the legality of the search and seizure of the cocaine in
the motel room, because he had no legitimate expectation of privacy
in the room.

Should the court have suppressed the evidence because it was
obtained as a result of an illegal search of the motel room, and
does Smith have standing to object to use of the evidence?
We first address Smith's standing to raise Fourth Amendment
objections to the opening of the drawer. In Minnesota v. Olson
(lggo), 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85, the Court held
that an overnight guest in an apartment had a legitimate expecta-
tion of privacy in the home. Smith argues that the Olson holding
extends to him, as a guest in Williams's motel room.
Status as an overniqht guest was critical in Olson:
From the overnight guest's perspective, he seeks shelter
in another's home precisely because it provides him with
privacy, a place where he and his possessions will not be
disturbed by anyone but his host and those his host
allows inside. We are at our most vulnerable when we are
asleep because we cannot monitor our own safety or the
security of our belongings. It is for this reason that,
although we may spend all day in public places, when we
cannot sleep in our own home we seek out another private
place to sleep, whether it be a hotel room, or the home
of a friend.
w,495 U.S. at 99. In the present case, Smith does not claim
that he intended to stay or had stayed in Williams's room over-
night. He denied even taking a nap, or intending to do so, in the
room. He testified that he was just "waiting for Chris to get out
of the shower." We conclude that Olson is not controlling.
The idea that anyone legitimately on a premises may raise
Fourth Amendment objections to a search of the premises has been
rejected as "too broad a gauge for measurement of Fourth Amendment
rights." Rakas v. Illinois (l978), 439 U.S. 128, 142, 99 S.Ct.
421, 429, 58 L.Ed.2d 387, 400. The protections offered by the
Fourth Amendment may more properly be said to extend to anyone who
has a legitimate expectation of privacy in the place. Rakas, 439
U.S. at 143. This requires more than a subjective expectation of
not being discovered.
Legitimation of expectations of privacy by law must have
a source outside of the Fourth Amendment, either by
 reference to concepts of real or personal property law or
to understandings that are recognized and permitted by
society.
Rakas, 439 U.S. at 144, n. 12.
Smith does not articulate any reason, other than his mere
presence in the motel room, why he had a legitimate expectation of
privacy in the desk drawer in that room. In the absence of such a
showing, we hold that the District Court did not err in ruling that
Smith is not entitled to raise Fourth Amendment objections to
Deputy McCave opening the drawer.
On the other hand, Williams, as the registered guest in the
room, undisputedly has standing to object to McCave looking in the
desk drawer. See, e.g., State v. Ottwell (1989), 239 Mont. 150,
779 P.2d 500. We therefore proceed with our analysis of the "plain
view" doctrine.
The Fourth Amendment prohibition against warrantless searches
and seizures is not violated when the circumstances fall within the
"plain vieww doctrine. The elements of the "plain view1! doctrine
were first defined in Coolidge v. New Hampshire (l97l), 403 U.S.
443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564, 583, as (1) the law
enforcement officer had a prior justification for an intrusion; and
(2) in the course of the intrusion the officer inadvertently came
across a piece of evidence. Prior justification for the intrusion
may consist of "a warrant for another object, hot pursuit, search
incident to lawful arrest, or some other legitimate reason for
being present unconnected with a search directed against the
accused." Coolidse, 403 U.S. at 466. Exigent circumstances are
necessary to justify immediate seizure of evidence in plain view,
but that requirement does not apply here because the deputies
obtained a warrant before seizing the cocaine.
The applicability of the "plain view'! doctrine to this case
depends upon factual determinations of (1) whether the deputies
were lawfully in the motel room (prior justification for the
intrusion), and (2) whether McCave inadvertently came across the
cocaine in the drawer. It is within the province of the district
court to find the facts based upon the testimony at a suppression
hearing, and this Court will not overturn such findings unless they
are clearly erroneous. State v. Cope (1991), 250 Mont. 387, 396,
819 P.2d 1280, 1286, modified, State v. Bower (1992), 254 Mont. 1,
833 P.2d 1106. The credibility of the witnesses and the weight to
be given their testimony are matters within the discretion of the
district court.
Williams argues that the entry by the deputies into the motel
room after Smith's arrest was an intrusion into a protected area
not within Smith's immediate control. He cites State v. Kao
(l985), 215 Mont. 277, 697 P.2d 903, as authority that exigent
circumstances, probable cause, or consent was necessary before the
deputies could lawfully enter the motel room.
The testimony conflicted on whether Smith's arrest after he
misidentified himself as his brother occurred inside or immediately
outside the motel room. But regardless of where the arrest
occurred, it is undisputed that the deputies went into the room
with Smith to get his shoes and his identification. There were no
such circumstances in m.
It is not unreasonable under the Fourth Amendment for a police
officer, as a matter of routine, to monitor the movements of an
arrested person. Washington v. Chrisman (1982), 455 U.S. 1, 102
S.Ct. 812, 70 L.Ed.2d 778. In Washinqton, the facts were very
similar to those here--the arrestee had to return to a dorm room to
retrieve his identification. The Court held that the arresting
officer rightfully followed him and observed marijuana in plain
view in the dorm room. Similarly, we conclude that the deputies in
the present case were lawfully in the room for purposes of allowing
Smith to retrieve his shoes and his identification.
Williams offers no factual support for his claim that looking
for a pen was a "pretextr' for opening the desk drawer. McCave
testified that he and Johnson were nearly ready to leave the room
with Smith when Williams made the request for a pen. Williams
admits that he asked for a pen to write down the telephone number
Smith was giving him. McCavels testimony that he did not have a
pen was unrefuted. It was within the discretion of the District
Court to determine which was more credible, Johnson's testimony
that he had only one pen which he was already using, or the
testimony of Smith and Williams that Johnson had more than one pen.
Further, McCave testified without contradiction that he opened the
drawer only to accommodate Williams's request for a pen.
Smith also made unsupported comments that Deputy McCave may
have opened more than one drawer, hinting at a ransacking of the
motel room. Other than Smith's somewhat equivocal comments, there
is no evidence of this. McCave stated that, in trying to locate a
pen for Williams, he looked on the open shelf under the phone and
then opened the desk drawer containing the cocaine. We conclude
the District Court did not abuse its discretion in ruling that
discovery of the cocaine was inadvertent.
The dissent cites as Montana authority for its position State
v. Carlson (1982), 198 Mont. 113, 644 P.2d 498. The dissent fails
to acknowledge that this Court has specifically limited its
reasoning in Carlson to cases involvingtraffic-related misdemeanor
offenses. See State v. Wood (1983), 205 Mont. 141, 143, 666 p.2d

The officers went to the Rimview Inn to serve a felony arrest
warrant for sales of dangerous drugs on Jason Hibit-Smith. The
officers were not trying to s e n e an arrest warrant for a minor
traffic offense as in Carlson. In Wood, the defendant was charged
with issuing a bad check, a felony. This Court specifically and
unequivocally stated that Carlson is limited to arrests for
traffic-related misdemeanors:
The Court, in Carlson, clearly limited its ruling to
traffic-related misdemeanors. The interests of society
in the administration of justice is [sic] greater here
than in Carlson since a felony is involved. This is a
sufficient compelling interest to justify a full custodi-
al arrest.

... Carlson is limited to traffic-related misdemeanors.
In Carlson this Court addressed the issue whether a full
custodial arrest was proper for misdemeanor traffic
offenses. . ..
 The rationale for our holding was based on the misdemean-
or traffic offenses.

We hold that the District Court did not err in denying the
motion to suppress. Affirmed.

Chief Justice

we concur:
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion which, in order to sustain
defendants' convictions, ignores Montana statutory law and prior
case law, and seriously erodes the right of Montanans to be free
from unreasonable warrantless searches of areas where they have a
reasonable expectation of privacy.
BACKGROUND
Although the evidence presented to the District Court was in
conflict, I support the principle that resolving those conflicts is
the province of the District Court, and therefore, the following
facts are derived from the testimony of Officer Dennis McCave, and
are those which are most favorable to the position of the State.
After McCave and Deputy Sheriff Eugene Johnson arrived at the
motel room which was registered to Chris Williams, and in which
both Williams and Jason Smith were occupants, they entered without
invitation and without permission. Upon gaining entry, McCave
observed all that was in sight. He observed a suitcase, clothing,
money, and a few personal items, but nothing that was illegal.
Smith was placed under arrest and handcuffed with his arms
behind him. He was then seated on a chair near the door while
Williams was questioned regarding his identity and his reasons for
being in Billings.
McCave and Johnson did not have a search warrant. Neither
were they given permission to enter the room. At no time did
either defendant act in a threatening manner, and McCave testified
he had no probable cause to think there was contraband or fruits of
a crime located in the drawers of the motel room. Johnson also
testified that the officers had no concern for their safety at any
time during the arrest or while present in the defendants1 room.
It is clear from the testimony of all the witnesses that there
were no drugs in "plain view" when McCave and Johnson entered the
defendants' room. The drawer in which the drugs were ultimately
found was completely closed, and neither McCave nor Johnson were
given permission to open the drawer. McCave opened one, and
possibly several, drawers in response to Williamst request for a
pen. The fact that the majority could construe such a request as
permission to go through the drawers in the defendants1 room, or
even worse, conclude that once the drawers were opened without
permission, the drugs were in I1plain view1#is nothing short of
preposterous. Any court which would misconstrue the facts to this
extent in order to arrive at a conclusion that the Constitution was
not violated has no respect for the Fourth Amendment nor
Article 11, Section 11, of the Montana Constitution.
In arriving at its conclusion that the District Court was
correct in denying defendantst motions to suppress evidence
obtained in their motel room, the majority relies on two incorrect
conclusions of law. They are addressed separately in the following
part of this opinion:
STANDING
First of all, it is clear that the Fourth Amendment protection
against unreasonable searches and seizures applies to a guest in a
hotel room, as well as the resident of a home. In Stoner v. California
(1964), 376 U.S. 483, 490, 84 S. Ct. 889, 893, 11 L. Ed. 2d 856,

861, the U.S. Supreme Court held that:

No less than a tenant of a house, or the occupant of
a room in a boarding house, McDonald v. United States, 335 U.S.
451, 69 S.Ct. 191, 93 L.Ed. 153 [1948,] a guest in a
hotel room is entitled to constitutional protection
against unreasonable searches and seizures. Johnson v.
United States, 333 U.S. 10, 68 s.ct. 367, 92 L.E~. 436
[l948].

Furthermore, whether the motel room was registered in
Williamsg name or Smith's name is irrelevant. The United States
Supreme Court has repeatedly made clear that the right to be free
from unreasonable warrantless searches does not depend on an
occupantgsproprietary interest in the area that is to be searched.
In Rakasv.Illinois (1978), 439 U.S. 128, 143, 99 S. Ct. 421, 430, 58

L. Ed. 2d 387, 401-02, the Supreme Court reaffirmed that:
Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19
L.Ed.2d 576 (1967), provides guidance in defining the
scope of the interest protected by the Fourth Amendment.
In the course of repudiating the doctrine derived from
Olmteadv. Unitedstates, 277 U.S. 438, 48 S-ct. 564, 72 L.E~.
944 (1928), and Goldmanv. United States, 316 U.S. 129, 62
S.Ct. 993, 86 L.Ed. 1322 (1942), that if police officers
had not been guilty of a common-law trespass they were
not prohibited by the Fourth Amendment from
eavesdropping, the Court in Katz held that capacity to
claim the protection of the Fourth Amendment depends not
upon a property right in the invaded place but upon
whether the person who claims the protection of the
Amendment has a legitimate expectation of privacy in the
invaded place. 389 U.S. at 353; see UnitedStatesv. Chadwick,
433 U.S. 1, 7, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977):
United States v. White, 401 U.S. 745, 752, 9 1 s.ct. 1122, 28
L.Ed.2d 453 (1971). Viewed in this manner, the holding
in Jones can best be explained by the fact that Jones had
a legitimate expectation of privacy in the premises he
was using and therefore could claim the protection of the
Fourth Amendment with respect to a governmental invasion
of those premises, even though his "interest" in those
premises might not have been a recognized property
 interest at common law. See Jones v United States, 3 62 U.S.
.
at 261.
For the reasons set forth in Katz and Rakas, the Supreme Court

recently held in Minnesota v Ohon (1990), 495 U.S. 91, 110 S. Ct.
.

1684, 109 L. Ed. 2d 85, that an overnight guest in another's home
had a sufficient expectation of privacy in that home to invoke the
Fourth Amendment protection against unreasonable searches and
seizures. In language relevant to this case, the Court stated
that:
It is for this reason that, although we may spend all day
in public places, when we cannot sleep in our own home we
seek out another private place to sleep, whether it be a
hotel room, or the home of a friend. Society expects at
least as much privacy in these places as in a telephone
booth--"a temporarily private place whose momentary
occupants' expectations of freedom from intrusion are
recognized as reasonable." Katz, 389 U.S. at 361
(Harlan, J., concurring).
Olson, 495 U.S. at 99

The only difference between the situation of the accused in
Obon and Smith in this case, was that Smith was not an "overnightvt

guest. However, he was still a guest in the private, even though
temporary, quarters of another, and as such had, by our society's
standards, a reasonable expectation of privacy and freedom from
governmental intrusion while present at that location.
As pointed out in the Obon decision, Smith, in this case, had

at least as much expectation of privacy while behind the closed
door of a companion's room as Katz had while talking on the

telephone in a glass telephone booth.
 The majority concludes that the critical distinction between
this case and Okon is that the defendant in that case was an

"overnight" guest, rather than a day time guest. However, I can
think of no rational basis for concluding that a person's
expectation of privacy depends on the length oftime during which
he is a guest in another's home, or the time of day during which he
is present in another's home or motel room. The majority opinion
simply substitutes an arbitrary and irrelevant criterion for the
real test from the Rakas decision which is whether an expectation

of privacy under these circumstances is reasonable in light of
''understandings that are recognized and permitted by society."
Rakas, 439 U.S. at 144 n.12.

For these reasons, I dissent from that part of the majority
opinion which concludes that Bryan Earl Smith did not have standing
to move to suppress the evidence seized from Room 122 of the
Rimview Inn in Billings on October 11, 1992.
PLAIN VIEW DOCTRINE
McCave and Johnson had no search warrant which authorized them
to search the room occupied by Williams and Smith. They did have
a warrant for Smith's arrest, even though they did not bring it
with them to the room when he was arrested. Section 46-5-102, MCA,
sets forth the circumstances under which a search will be permitted
pursuant to a lawful arrest. That section provides that:
When a lawful arrest is effected, a peace officer may
reasonably search the person arrested and the area within
such person's immediate presence for the purpose of:
(1) protecting the officer from attack;
(2) preventing the person from escaping;
 (3) discovering and seizing the fruits of the
crime; or
(4) discovering and seizing any persons,
instruments, articles, or things which have been used in
the commission of or which may constitute evidence of the
offense.
The first circumstance does not apply because both officers
testified that they were not concerned about attack from either
Williams or Smith. Smith, in fact, had already been arrested,
handcuffed, and was seated on a chair near the door. Obviously,
the second circumstance does not apply becausegoing through the
drawers in the room had nothing to do with preventing Smith's
escape. Finally, neither the third nor fourth circumstances apply
because the crime for which Smith had been arrested involved a
previous drug transaction and no one testified that there was any
reason to suspect that evidence of that crime was present in the
motel room when McCave started opening drawers.
The majority incredibly concludes that even though these two
law officers had no search warrant nor any permission to search the
defendants' room, and even though the search was not pursuant to
arrest as provided for by statute, the officers had authority to
search the area where drugs were found under.the "plain vieww
doctrine. The majority's conclusion is erroneous for several
reasons. First of all, the conclusion that the officers were in
the defendants' room legally in the first place is premised on the
U.S. supreme Court's decision in Washington v. Chrisman (1982), 455 U.S.

1, 102 S. Ct. 812, 70 L. Ed. 2d 778. The majority opinion fails to
note that we declined to follow Chrisman under similar circumstances

in Statev. Cart!!on (1982), 198 Mont. 113, 644 P.2d 498. Furthermore,
even if the officers were legitimately in the motel room, the drugs
ultimately discovered were not in "plain vieww in that room and
were not discovered until one of the officers started going through
drawers which they had no prior permission to open. The fact that
one of the occupants asked one of the officers to borrow his pen
was not a request to rummage through the motel room drawers looking
for another pen, and did not satisfy the requirement from Coolidgev.

New Hampshire (1971), 403 U.S. 443, 467, 91 S. Ct. 2022, 2038, 29

L. Ed. 2d 564, 583, that there be prior justification for intrusion
in the area where the evidence is found. Presence in the
defendants' room did not place the contents of the defendants'
drawers in "plain view" for purposes of establishing an exception
to the requirement that searches be conducted pursuant to a search
warrant.
In Cadson, Helena City Police Officers came to the defendant's

home to serve misdemeanor arrest warrants. The defendant appeared
at the door, where he was advised that he was under arrest.
However, he, like Smith in this case, requested the opportunity to
complete dressing, and therefore, the officers accompanied him into
his home while he did so. They were never told that they could not
enter, and were never given specific permission to enter.
Once inside the home, the officers in Carhon observed drugs and

drug paraphernalia which was in plain view on a coffee table in the
living room. They did not seize the evidence but, like the
officers in this case, used the observation to obtain a warrant
with which they later returned and searched the defendant's home.
 The defendant moved to suppress the evidence seized in his
home, and the State opposed the motion, based on the "plain view"
doctrine.
After acknowledging the "plain viewr1
doctrine, this Court held
that :
If therefore, the officers in this case were
lawfully in Carlsonls front room when they made the
visual observations, a "search" within the constitutional
sense did not occur; on the other hand, if their presence
in the front room was not consented to, as the District
Court determined, the visual examination does constitute
a "search" in the constitutional sense.
The validity of the officersf entry into Carlson's
front room is the fulcrum therefore on which this case
turns.

This Court concluded that under these circumstances valid
consent had not been given because:
In order to show that voluntary consent to search
was obtained, the State must show that the consent was
unequivocal, specific, intelligently given and
uncontaminated by duress or coercion. This Court has
held that there is a heavy burden of proof required to
show that there was consent to a search. State v LaFlarnrne
.
(1976), 177 Mont. 202, 204, 551 P.2d 1011, 1012.
Equivocal conduct alone is insufficient as a basis for
inference of consent to a search, which consent is a
waiver of a constitutional right. [Citations omitted].

Based on this standard, there can hardly be any intellectually
honest argument that either Williams or Smith consented to have
their drawers searched in their motel room by requesting a pen from
Officer Johnson.
 The majority bases its conclusion on Coolidge and Chrisman.

However, both cases were considered in Carkon and rejected as a

basis for entrance into the defendant' s home. Regarding Coolidge,

we stated that:
The high court noted in Coolidge v. New Hampshire (1971),
403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564,
583, that what the "plain viewn cases had in common was
that the police officer in each case had a prior
justification for an invasion into the property of the
accused. The District Court noted this distinction and
decided that in this case there was no prior
justification for the intrusion. ...
We agree with the District Court. There was no
prior justification or exigency for the entry by the
police officers in this case. Their entry under the
facts of this case was unreasonable, and it is that
factor that converted their observation while in the
house into a warrantless search, which is always presumed
unreasonable. E-g.,Payton v. New York (1980), 445 U.S. 573,
100 S.Ct. 1371, 63 L.Ed.2d 639; Coolidge v New Hampshire
.
(1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564.

We also specifically addressed the applicability of Chrisman to

these circumstances. We stated that:
We are aware of Washington v Chrisman (1982), [455] U. s
. .
[I], 102 S.Ct. 812, 70 L.Ed.2d 778, in which the high
court upheld the seizure of marijuana seeds and a pipe
where a Washington State University policeman had entered
the room to allow an arrested person to procure
identification. Chrisman was the roommate of the
arrested person. ... We distinguish this case however.
The District Court in this case found that the entry of
the police to the defendant's home occurred through the
defendant's coerced consent. We have previously held
that full custodial arrest and mandatory search for a
minor traffic violation is unreasonable. State v. Jetty
[(1978), 176 Mont. 519, 579 P.2d 12281. We have,
moreover, our unique state constitutional provision which
defends the right of individual privacy absent a showing
of compelling state interest. Art. 11, 5 10, 1972 Mont.
Const. A compelling state interest is lacking here to
 overcome defendant's reasonable expectation of privacy in
his home.
Carkon, 644 P.2d at 504.

The facts in this case are even more offensive to the right to
be free from unreasonable searches than the facts in Carkon. In

this case, not only did the officers enter the defendantst motel
room without permission and without a warrant, but the evidence
ultimately seized was not even in "plain viewN once they arrived in
the motel room. It was only discovered after the defendantst
privacy was further invaded by opening drawers in that room without
their permission. The fact that one of the defendants asked for a
pen did not justify going through the defendantst drawers, it was
merely a pretext for a search which was constitutionally
prohibited.
The majority attempts to distinguish this case from Carkon

based on the fact that these defendants were arrested for an
alleged felony and the defendant in Carkon was arrested for an

alleged misdemeanor. According to the majority, Carkon was

overruled by our decision in Statev. wood (1983), 205 Mont. 141, 666

P.2d 753. However, the majority opinion misconstrues the basis for
our decision in Carkon and exaggerates the extent to which it was

modified by Wood.

In Curlson, we discussed two issues: (1) whether the defendant

had freely consented to the entry of police into his home or
whether entry was subtly coerced; and (2) whether custodial arrest
is ever appropriate for a misdemeanor.
In Wood, we merely concluded that the prohibition against

custodial arrest for a misdemeanor did not apply to felonies. In
that case, there was no discussion about the circumstances under
which an arrest warrant could serve as a pretext for entering
someone's home or private quarters. Neither did we reconsider our
prior determination that the unique guarantee of privacy in the
State of Montana required a greater showing than was required in
Chrisman for entry into a person's home or room. Wood simply has no

applicability to this case.
The majority's analysis ends with its conclusion that the
arresting officers lawfully entered the defendants' room, and then
as an afterthought, concludes that the defendants did not prove
that "looking for a pen was a 'pretext' for opening the desk
drawer." However, the majority has it backwards. The defendants
did not have to prove anything. Since the State did not have a
warrant which authorized it to go through the defendants' drawers,
it had to prove that its officers had permission, or some other
justification for doing so, and there was a total failure of such
proof. The majority does not even bother to address this issue,
but simply concludes that it was sufficient that one of the
defendants asked one of the officers (not the one who conducted the
search) for a pen.
We have come a long way from the days when the State had the
burden to show that "consent was unequivocal, and intelligently
given." Unfortunately, this progress has been at the expense of
the Constitution and sound judicial reasoning.
The majority's willingness to distort the law to justify a
search under these circumstances may, in the short term, punish a
couple more small-time drug dealers, but the benefit does not
justify the long-term detriment that has been done to the right of
all citizens to be free from unreasonable and warrantless
government searches. This decision is just one more step toward
the erosion of the right to privacy guaranteed to all Montanans and
one with which I cannot concur.
For these reasons, I dissent from the majority's conclusion
that the evidence seized from the motel room occupied by defendants
Williams and Smith was acceptable under the *'plain view" doctrine.
I would reverse the order of the District Court.

Justice William E. Hunt, Sr., joins in the foregoing dissent.

Justice
 June 29, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:

L. Sanford Selvey, I1
Yellowstone County Public Defenders
2720 3rd Avenue No., Suite #200
Billings, MT 59101

Curtis L. Bevolden
Attorney at Law
P. 0. Box 1381
Billings, MT 59103-1381

Susan P. Watters
Deputy County Attorney
P. 0. Box 35025
Billings, MT 59107

Dale R. Mrkich
Deputy County Attorney
P. 0. Box 35025
Billings, MT 59107

Hon. Joseph Mazurek, Attorney General
Patricia Jordan, Assistant
Justice Building
Helena, MT 59620

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA