State v. Arthun

NO. 95-086
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1995

STATE OF MONTANA,
Plaintiff and Respondent,
v.
ELLEN ARTHUN and BRUCE ARTHUN,
Defendants and Appellants.

APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Byron L. Robb, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Larry Jent, Williams, Jent & Dockins,
Bozeman, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
John A. Paulson, Assistant Attorney General,
Helena, Montana
Robert W. Brown, Special Deputy Park County
Attorney, Montana Law Enforcement Academy,
Bozeman, Montana

Submitted on Briefs: September 21, 1995
Decided: November 21, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Defendants Ellen and Bruce Arthun were charged by information
with possession of drug paraphernalia and criminal possession of
dangerous drugs. After a nonjury trial in the District Court for
the Sixth Judicial District in Park County, the Arthuns were found
guilty of all charges. The Arthuns appeal the District Court's
denial of their motion to suppress evidence and the court's
verdict. We affirm the order and judgment of the District Court.
There are three issues on appeal:
1. Did the District Court err when it denied the Arthuns'
motion to suppress the package of marijuana?
2. Was there sufficient evidence to convict both defendants
of felony criminal possession of dangerous drugs?
3. Was there sufficient evidence to convict Bruce Arthun of
misdemeanor possession of drug paraphernalia?
FACTUAL BACKGROUND
On May 25, 1993, Mike Bracket, a police officer in Louisville,
Kentucky, contacted Park County Deputy Sheriff, Henry Tashjian, and
informed him that the United Parcel Service (UPS) transport hub in
Louisville had inspected a package addressed to Ellen Arthun in
Park County, Montana, and had discovered what appeared to be a
sizeable amount of marijuana. The marijuana had been shipped in a
motor oil box from Tucson, Arizona, and was addressed to Ellen at
the Arthuns' rural home located on U.S. Highway 89 between Wilsall
and Clyde Park.

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 Officer Tashjian arranged for the box to be sent to the
Livingston Police Department. When the package arrived the next
day, the officers tested the contents and resealed it for delivery
to the Arthuns' residence.
Livingston Police Officer Gerald Cox, disguised as a UPS
delivery man, made the delivery on May 26, 1993, at about 3:45 p.m.
Ellen Arthun came to the door and accepted the package. She
expressed no surprise at its delivery, and neither Ellen nor Bruce
did anything to return or disclaim it.
Officer Tashjian and other local law enforcement personnel
set up surveillance points near the Arthuns' home and observed the
area through binoculars for several hours after the delivery of the
package. They saw Bruce and his young stepson leave the residence
and drive to an unlocked farm shed located about 400 yards away on
the other side of U.S. Highway 89. Bruce entered the shed for a
short time, then drove one mile to his parents' ranch home. That
afternoon, Bruce and his stepson also went gopher hunting and drove
to a store in Wilsall before they returned home. The officers'
surveillance was obstructed at times during their surveillance, and
they did not see Bruce take the box out of his home.
Following the surveillance, Officer Tashjian obtained a search
warrant for the Arthuns' residence and served it at 8:39 p.m.
Officer Tashjian walked up to the Arthuns' home and spoke with
Ellen and Bruce. He explained the reason for the search, told them
about the officers' involvement in the UPS delivery, and had them

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wait on the living room couch while the search was conducted. The
Arthuns were not handcuffed during the search.
During the search, the officers found a baggie of marijuana,
some Zig Zag rolling papers, and a marijuana pipe in the kitchen
cupboards. They also found another marijuana pipe, a "roach" clip
used for holding marijuana cigarettes, and numerous partially
burned marijuana cigarettes in two glass bowls on the kitchen
counter. In Ellen's purse, located on the kitchen counter, the
officers found more Zig Zag papers, some marijuana, and a variety
of pills for which Ellen had no prescription. Also in Ellen's
purse were several UPS receipts for shipments to Tucson, Arizona.
However, the officers did not find the UPS box in the house.
Following the search, Officer Tashjian placed the Arthuns
under arrest. They were advised of their rights outside the
presence of their two children and were placed in separate patrol
cars. Officer Tashjian then asked Bruce Arthun where the UPS
package was located. At first Bruce replied, "What box?" Officer
Tashjian again explained that the officers had conducted and
observed the controlled delivery of the box and had watched Bruce's
movements after the delivery, including his trips to the farm shed
and his parents' house. Officer Tashjian told Bruce he could get
a search warrant for the shed and Bruce's parents' house if
necessary. Bruce did not state where the box was located, but said
he would show the officers. He directed two of the officers to the
farm shed located 400 yards away on the other side of the highway,

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entered the shed with them, and pointed out where the box was
concealed behind some old boards and farm supplies. The officers
retrieved the box, which had not been opened.

The items retrieved from the Arthuns' home and from Ellen's

purse were tested at the Montana Crime Lab, and were found to be

dangerous drugs of different types (marijuana, oxycodene,

alprazolan, and morphine). Tests of the contents of the UPS

package discovered in the shed disclosed 3.96 pounds of marijuana,
a controlled substance. On the basis of these tests, both Ellen

and Bruce were charged with criminal possession of drug
paraphernalia and criminal possession of dangerous drugs.

On November 15, 1993, the Arthuns filed a motion to suppress

the UPS package on the basis that it was the product of a

warrantless search to which they had not consented. The District

Court denied that motion and found that there was a search of the

farm shed, but that Bruce consented to it, and that neither Bruce

nor Ellen had standing to complain of a warrantless search of the

structure. Following a nonjury trial, Bruce was convicted of

criminal possession of drug paraphernalia and one count of criminal

possession of dangerous drugs. Ellen was convicted of four counts

of criminal possession of dangerous drugs and one count of criminal

possession of drug paraphernalia.

ISSUE 1

Did the District Court err when it denied the Arthuns' motion

to suppress the package of marijuana?

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 We review a district court's denial of a motion to suppress to
determine whether the court's findings of fact are clearly
erroneous, and whether those findings were correctly applied as a
matter of law. states. f'6kuns (Mont. 1995), 52 St. Rep. 1085, 1086

(citing Statev.Fluck (19931, 260 Mont. 181, 188, 860 P.2d 89, 94).

In this case, the facts are undisputed. Both parties agree
that, based on the evidence seized during a lawful search of the
Arthuns' home, Officer Tashjian arrested Bruce and Ellen and
advised them of their rights pursuant to Mirandav.Arizona (1966), 384

U.S. 436. Both parties further agree that later, after the UPS
package was not discovered in the Arthuns' home, Officer Tashjian
told Bruce that he could get a search warrant for the shed and
Bruce's parents' house. Finally, the parties agree that Bruce
responded to the request for evidence by taking two officers to the
farm shed and specifically directing them to the location of the
package.
Based on the foregoing facts, the District Court denied the
Arthuns' motion to suppress. The court held that there was a
search of the farm shed, but that Bruce had consented to it, and
that neither Bruce nor Ellen had standing to challenge a
warrant-less search of the structure. Although we disagree that the
Arthuns lacked standing (seeStatev.Bullock (1995), 901 P.2d 61, 52 St.

Rep. 717), it is well established that this Court will uphold the
district court's result, if correct, even though arrived at for the
wrong reason. Haganv.State (1994), 265 Mont. 31, 35, 873 P.2d 1385,

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1387. Therefore, we hold that the District Court correctly denied
the Arthuns' motion to suppress because there was no search of the

shed which could have violated the Fourth Amendment of the United

States Constitution, or Article II, Section 11, of the Montana
Constitution.

The issue of whether the discovery of the UPS box constituted

a "search" in violation of the Fourth Amendment was raised and

briefed at the district court level. In response to the Arthuns'

motion to suppress, the prosecutor argued that the box had not been

recovered by means of a search and seizure under either the Fourth

Amendment, or Article II, Section 11, since Bruce had essentially

handed over the box of marijuana and no search had been conducted.

At both the district court level and on appeal, the State cited State

v. Graves (1981), 191 Mont. 81, 622 P.2d 203, for the proposition that

a defendant's delivery of a piece of evidence does not constitute

a search.

1n Gruves, the defendant was involved in a bar fight in which

he stabbed another bar patron. A police officer later approached

the defendant and asked him if he had been involved in the
altercation. The defendant answered that he had. When the officer

asked him if a knife had been involved, the defendant said "yes"

and turned the knife over to the police. The defendant later

maintained that the knife should be suppressed as a result of a

nonconsensual warrantless search and seizure. This Court held that

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no search was involved because the defendant handed the evidence
over to the police. Graves, 622 P.2d at 208.

We agree that the Graves holding applies to this case. The

record is clear that the officers did not conduct an independent
inspection of the farm shed, but rather entered it at Bruce's
invitation and retrieved the box which Bruce located for them.
This Court has previously stated that:
A 'search' is a prying into hidden places for that
which is concealed. . .
The distinctive factor that turns an observation
into a search, in the constitutional sense, is whether
the person making the observation has a right to be in
the place where the observation is made.
Statev. Carlson (1982), 198 Mont. 113, 118-19, 644 P.2d 498, 501.

We conclude that under the facts of this case, the officers
were invited into and had a right to be in the farm shed where the
package was located. We further conclude that there was no prying
or investigation, and thus no "search" so as to implicate either
the Fourth Amendment or the Montana Constitution.
Since Bruce was in police custody when he directed the
officers to the UPS package, and since there was no "search"
pursuant to the Fourth Amendment, the proper inquiry should have
been whether Bruce's statement to the police was voluntary.
Although Bruce did not raise the issue of his Fifth Amendment
rights at either the district court level or on appeal, we find
ample evidence in the record to support a conclusion that Bruce's
disclosure of the evidence was voluntary. Bruce had been read his
Miranda rights and had failed to invoke either his right to remain

silent or his right to an attorney. His statement to Officer

Tashjian was clearly made of his own free will, without duress. As

the District Court noted, "[tlhe totality of the circumstances

indicate Bruce acted voluntarily, and there was no violation or

abuse of defendants' constitutional or statutory rights."

Therefore, we affirm the District Court's denial of the

Arthuns' motion to suppress the package of marijuana found in the
shed on the property belonging to Bruce's parents.

ISSUE 2

Was there sufficient evidence to convict both defendants of

felony criminal possession of dangerous drugs?

We review the sufficiency of evidence to determine "'whether,

after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt."' state

v.Arlington (1994), 265 Mont. 127, 146, 875 P.2d 307, 318 (quoting State

Y. cyr (1987), 229 Mont. 337, 339, 746 P.Zd 120, 122).

Bruce and Ellen claim that the evidence failed to show that

they had "knowing" possession of the UPS package. The Arthuns

maintain that mere possession of the unopened package which was

addressed to Ellen is not enough to establish their knowledge of

its contents.

Section 45-g-102, MCA, requires proof that a defendant

possessed dangerous drugs. "Possession" is defined as "the knowinq

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control of anything for a sufficient time to be able to terminate

control. " Section 45-2-101(52), MCA (1993) (emphasis added).

Section 45-2-101(33), MCA (1993), provides that a person acts

knowingly with respect to a circumstance described in a statute

"when the person is aware of the person's own conduct or . . . that

the circumstance exists."

Although "knowing control" cannot be inferred from mere

possession alone, this Court has held that knowledge of the

contents of a package may be proven by direct evidence or any

evidence of acts, declarations, or conduct of the accused from

which the trier of fact may infer knowledge. State v. Hall (1991) , 249

Mont. 366, 371, 816 P.2d 438, 441. See ah § 45-2-103(3), MCA

("[tlhe existence of a mental state may be inferred from the acts

of the accused and the facts and circumstances connected with the

offense.").

The Arthuns claim that there is no evidence that Ellen had any

knowledge of the contents of the box, and that Bruce's knowledge

cannot be presumed from his knowledge of the location of the box.

We hold, however, that there was sufficient evidence from which the

District Court could have inferred that both Bruce and Ellen had

knowledge of the contents of the package. Ellen accepted the

package without question or surprise, and both Bruce and Ellen kept

the package without attempting to return or disclaim it. Bruce

took the package to a farm shed within hours of its delivery and

concealed it behind a pile of farm tools. Although Bruce feigned

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ignorance when questioned about the box's location, he later
directed two officers to its exact location in the shed. The
officers conducting a search of the Arthuns' home found other
marijuana and paraphernalia in easily accessible places. Ellen had
several UPS receipts in her purse for items sent to Tucson,
Arizona, the place from which the package of marijuana had been
sent.
We acknowledge that mere delivery is not enough to establish
knowing control. Sfatev.Smith (1983), 203 Mont. 346, 350, 661 P.2d

463, 465. We hold, however, that delivery combined with other
suspicious circumstances--in this case, the drugs and other
paraphernalia found in the Arthuns' home, the receipts found in
Ellen's purse, and Bruce's attempt to conceal the package--is
sufficient evidence from which a trier of fact could infer knowing
possession. Accordingly, we hold that there was sufficient
evidence to support the District Court's conviction of Bruce and
Ellen Arthun for felony criminal possession of dangerous drugs.
Their convictions are, therefore, affirmed.
ISSUE 3
Was there sufficient evidence to convict Bruce Arthun of
misdemeanor possession of drug paraphernalia?
Bruce contends that the evidence was insufficient to support
his conviction for criminal possession of drug paraphernalia,
pursuant to 5 45-10-103, MCA. Section 45-10-103, MCA, requires
proof that the defendant (1) possessed the drug paraphernalia, and

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(2) intended to use it. Bruce asserts no reasonable inference can
be made that he possessed or intended to use the paraphernalia
found in the kitchen area of the Arthuns' home.
This Court has, however, upheld convictions where drugs have
been found in joint or common areas of a residence. Staiev. Scheffelman

(1987), 225 Mont. 408, 413, 733 P.2d 348, 351. We have, in fact,
held that "[wlhere a controlled substance is found in a place
subject to the joint dominion and control of two persons,
possession may be imputed to either or both persons." State v. Hall

(1991), 249 Mont. 366, 371, 816 P.2d 438, 441. In this case, the
Arthuns' kitchen, where the paraphernalia was found, was unlocked
and openly accessible to anyone in the house. We conclude,
therefore, that there was sufficient evidence to support the
District Court's finding that Bruce had constructive possession of
the paraphernalia.
The second element of "intent to use" is more difficult to
prove. Because there is rarely direct proof, intent must be
inferred from the acts of the accused and the facts and
circumstances of the offense. Hall, 816 P.2d at 441. In this case,

the police found marijuana, two marijuana pipes, and two glass
bowls of marijuana "roaches." From this evidence, the District
Court could have properly inferred that the marijuana was being
consumed by two users. In addition, Bruce was also convicted of
the related crime of felony possession of a UPS package of
marijuana, which he had knowingly concealed in a farm shed.

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Although Bruce submitted to a post-arrest drug test which did not
indicate the presence of any THC, the active ingredient in
marijuana, the test was performed approximately one week after
Bruce's arrest and the District Court noted that Bruce did not
submit any evidence of how long THC is detectable after the use of
marijuana.
This Court has stated that "[wlhen circumstantial evidence is
susceptible to two interpretations, one which supports guilt and
the other which supports innocence, the trier of fact determines
which is most reasonable." Statev. Bernhardt (1991), 249 Mont. 30, 32,

813 P.2d 436, 437. We hold that the presence of the drugs and
paraphernalia in the Arthuns' kitchen, combined with Bruce's
connection to the box of marijuana, would have been sufficient to
infer that Bruce possessed the paraphernalia with the intent to use
it. We conclude there was sufficient evidence to support Bruce's
conviction of possession of drug paraphernalia.
Based on the foregoing analysis, we affirm the District
Court's denial of the Arthuns' motion to suppress, and affirm the
convictions of Bruce and Ellen Arthun for possession of dangerous
drugs, and Bruce Arthun's conviction for possession of
paraphernalia.

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we concur: ./

Justices

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