No. 03-392
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 234
STATE OF MONTANA,
Plaintiff and Respondent,
v.
REBEKAH MICHELLE SMITH,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and For the County of Beaverhead, Cause No. DC-02–2891
Honorable Loren Tucker, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wendy Holton, Attorney at Law, Helena, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Jim Wheelis,
Assistant Attorney General, Helena, Montana
W. G. Gilbert, III, Dillon City Attorney, Dillon, Montana
Submitted on Briefs: January 6, 2004
Decided: August 31, 2004
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Rebekah Michelle Smith (Smith) appeals from an order of the Fifth Judicial District
Court, Beaverhead County, entered on March 28, 2003, denying her motion to suppress
evidence obtained after a warrantless search of a home she occupied as a party guest. We
reverse.
¶2 The issue on appeal is whether the District Court erred in denying Smith’s motion to
suppress.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In the early morning hours of October 19, 2001, Dillon City Police Officer Don
Guiberson (Officer Guiberson) and several other officers responded to a complaint about
loud noise and the smell of marijuana coming from the apartment of Roslyn Tash (Tash),
with whom Officer Guiberson was acquainted. When they arrived at Tash’s apartment, the
officers did not notice a marijuana odor. However, they confirmed noise coming from inside
the apartment, which sounded like people socializing or having a loud party. The officers
knocked on the apartment door, and were given permission to enter by Kenneth Decker
(Decker), a twenty-one year old male guest. As the officers entered, Officer Guiberson
recognized Tash as the tenant of the apartment. While Tash did not object to the officers’
presence in the apartment, the officers had not requested her permission to enter.
¶4 When the officers arrived at Tash’s apartment, Smith was in the bathroom with the
door closed. She was in the process of becoming ill when Tash went in to check on her.
Tash later exited the bathroom, pulling the door closed behind her. Shortly thereafter,
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Officer Guiberson heard vomiting from behind the closed door of the bathroom. Without
knocking, Guiberson opened the door and found Smith curled up on the floor, hugging the
toilet, with her head in the toilet bowl. Officer Guiberson smelled what he believed was an
intoxicating substance, and concluded that Smith was intoxicated. As a result of this
encounter, Smith, 18, was charged with possession of an intoxicating substance while under
21 years of age, in violation of § 45-5-624, MCA (2001).
¶5 On November 6, 2001, Smith appeared before the City Court of the City of Dillon and
pleaded not guilty to the offense charged. Following a bench trial on March 19, 2002, Smith
was found guilty of possessing an intoxicating substance while under 21 years of age and
given a deferred sentence. On April 16, 2002, Smith appealed the judgment to the District
Court for a trial de novo. She thereafter moved to suppress the evidence obtained as a result
of the officers’ warrantless search of Tash’s apartment on October 19, 2001. The District
Court denied the motion after a hearing and Smith entered a conditional plea of guilty,
reserving her right to appeal from the denial of her motion to suppress. This appeal
followed.
STANDARD OF REVIEW
¶6 We review a district court’s denial of a motion to suppress evidence to determine
whether the court’s findings of fact are clearly erroneous and whether they are correctly
applied as a matter of law. State v. May, 2004 MT 45, ¶ 8, 320 Mont. 116, ¶ 8, 86 P.3d 42,
¶ 8.
DISCUSSION
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¶7 Did the District Court err in denying Smith’s motion to suppress?
¶8 Smith challenges the warrantless search of Tash’s apartment on the basis that Decker,
who was also a party guest on the evening of October 19, 2001, did not have actual authority
to consent to the officers’ entry and subsequent search of the apartment and that Tash’s
failure to object to the officers’ presence did not amount to free and voluntary consent. She
submits that, in the absence of effective consent, the officers’ search of the apartment was
illegal from its inception and all the evidence obtained as a result of the search must be
suppressed. The State responds that Smith lacks the requisite standing to contest the
officers’ initial entry into the apartment since she was merely a transient party guest on the
evening in question and thus had no reasonable expectation of privacy in the common areas
within the apartment. We agree.
¶9 The Fourth Amendment to the United States Constitution and Article II, Section 11
of the Montana Constitution protect citizens against unreasonable searches and seizures. The
right to be free from unreasonable searches and seizures is augmented by Article II, Section
10 of the Montana Constitution, which reads:
Right of privacy. The right of individual privacy is essential to the
well-being of a free society and shall not be infringed without the showing of
a compelling state interest.
“When analyzing search and seizure questions that specially implicate the right of privacy
under Montana’s Constitution,” Sections 10 and 11 are read together. State v. Boyer, 2002
MT 33, ¶ 19, 308 Mont. 276, ¶ 19, 42 P.3d 771, ¶ 19. An impermissible search and seizure
occurs within the meaning of Article II, Section 10 of the Montana Constitution when a
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reasonable expectation of privacy has been breached. Boyer, ¶ 18. However, where no
reasonable expectation of privacy exists, there is neither a “search” nor a “seizure” within
the contemplation of Article II, Sections 10 and 11 of the Montana Constitution. Boyer, ¶
20. Thus, the “capacity to claim the protection of the Fourth Amendment depends . . . upon
whether the person who claims the protection of the Amendment has a legitimate expectation
of privacy in the invaded place.” Rakas v. Illinois (1978), 439 U.S. 128, 143, 99 S.Ct. 421,
430, 58 L.Ed.2d 387.
¶10 Thus, the salient question in this case is whether Smith, as a transient party guest, held
a sufficient expectation of privacy in the apartment of Roslyn Tash to contest the legality of
the search. See State v. Bowman, 2004 MT 119, ¶ 22, 321 Mont. 176, ¶ 22, 89 P.3d 986, ¶
22. To determine this question, we consider the following factors: (1) whether Smith had
an actual expectation of privacy in the apartment; (2) whether society is willing to recognize
that expectation as objectively reasonable; and (3) the nature of the state’s intrusion. Boyer,
¶ 20.
¶11 Unlike Roslyn Tash, the apartment lessee, Smith did not enjoy a property interest in
the common areas of the apartment. Nor did she have a right to exclude from the apartment
anyone lawfully therein. Rather, Smith’s expectation of privacy in the common parts of the
apartment (i.e., kitchen, living room, hallway) was particularly tenuous since Tash, or any
other third party possessing common authority over or a sufficient relationship to the
premises or effects sought to be inspected, could have validly consented to a police search
of those premises or effects. See United States v. Matlock (1974), 415 U.S. 164, 171, 94
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S.Ct. 988, 993, 39 L.Ed.2d 242. Since Tash, by virtue of her property rights, could have
consented to a police search of the apartment, Smith cannot claim that she legitimately
expected privacy from the police in the common areas of the apartment, and thus seek Fourth
Amendment protection.
¶12 However, Smith also challenges the warrantless search on the basis that she possessed
a privacy interest in the bathroom of the residence. A substantial line of state cases have
recognized that occupants of public restrooms have a reasonable expectation of privacy.
Brown v. State (Md. App. 1968), 238 A.2d 147; State v. Bryant (Minn. 1970), 177 N.W.2d
800; Buchanan v. State (Tex. Crim. App. 1971), 471 S.W.2d 401; People v. Mercado (N.Y.
1986), 501 N.E.2d 27; People v. Kalchik (Mich. App. 1987), 407 N.W.2d 627. This is
because most people using a public restroom have no reason to suspect a government
intrusion. People v. Triggs (Cal. 1973), 506 P.2d 232, 236 (overruled on other grounds).
Use of a private bathroom provides similar expectations. By entering the bathroom and
closing the door behind her, Smith had a legitimate expectation that her activities would be
private and that no unauthorized persons would enter. This expectation was reasonable
given the personal and private nature of one’s usual activities within a bathroom. Similarly,
we have held that “[p]lacing an object beyond the purview of the public in a place from
which the person has the right to exclude others evidences an actual or subjective expectation
of privacy.” State v. Elison, 2000 MT 288, ¶ 49, 302 Mont. 228, ¶ 49, 14 P.3d 456, ¶ 49.
Under the circumstances of this case, we hold that Smith had a legitimate expectation of
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privacy while in Tash’s bathroom, and hence may claim the protections of the Fourth
Amendment and the Montana Constitution.
¶13 The next question is whether or not the nature of the State’s intrusion was reasonable
under the circumstances. See State v. Tackitt, 2003 MT 81, ¶ 17, 315 Mont. 59, ¶ 17, 67
P.3d 295, ¶ 17. The State argues that Officer Guiberson’s entry into the bathroom was
justified under the “community caretaker doctrine,” recognized by this Court in State v.
Lovegren, 2002 MT 153, ¶ 25, 310 Mont. 358, ¶ 25, 51 P.3d 471, ¶ 25. Smith counters that
the circumstances did not give rise to a reasonable belief that she was experiencing a life-
threatening illness, or was in need of immediate assistance.
¶14 The community caretaker doctrine stands for the proposition that police officers have
a duty not only to fight crime, but also to investigate uncertain situations in order to ensure
public safety. State v. Nelson, 2004 MT 13, ¶ 6, 319 Mont. 250, ¶ 6, 84 P.3d 25, ¶ 6. The
community caretaker function of the police is typically the least intrusive form of contact
between the police and the public. Under the three-pronged test established in Lovegren, an
officer may stop and investigate a situation when the officer has objective, specific, and
articulable facts upon which to base a suspicion that a citizen is in need of help or is in peril.
Once the officer has determined that the citizen is in need of assistance, then the officer may
take appropriate action to render aid or mitigate the peril. However, as soon as the officer
is assured that the citizen is no longer in need of assistance or that the peril has been
mitigated, then any actions beyond that constitute a seizure implicating not only the
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protections provided by the Fourth Amendment, but also those further guarantees afforded
by the Montana Constitution. Lovegren, ¶ 25; Nelson, ¶ 7.
¶15 While there may be circumstances which would allow an officer to enter a bathroom
on the belief that someone is in need of emergency care or assistance, the facts do not
warrant such an intrusion in this case. Officer Guiberson and the other officers arrived at
Tash’s apartment in response to a noise disturbance complaint. Once on the premises, they
observed underage drinking but perceived no threat of danger. Although Officer Guiberson
heard vomiting from within the bathroom as he passed by, it was not necessary for him to
gain immediate entry into the bathroom in order to investigate the situation further. Rather,
Guiberson could have asked the other occupants of the apartment about the situation, or
knocked on the bathroom door and inquired. In the absence of objective, specific and
articulable facts supporting the conclusion that Smith was in need of officer assistance, we
decline to invoke the community caretaker doctrine under these circumstances.
¶16 This conclusion does not, as the dissent suggests, create a “new rule” defining a
bathroom as a “bust-free” zone to which partyers can retreat to avoid police contact. We
simply hold that the caretaker doctrine – the only rationale in support of police action offered
by the State here – did not justify entry into the bathroom and impingement of the
defendant’s privacy interests under circumstances which provided alternate means of
immediately determining her well-being.
¶17 Because we conclude that Smith held an expectation of privacy in the bathroom of
Tash’s apartment and that Officer Guiberson’s entry into the bathroom was not justified by
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the community caretaker doctrine, we necessarily reverse the District Court’s order denying
Smith’s motion to suppress and remand for further proceedings consistent with this opinion.
¶18 Reversed and remanded for further proceedings consistent herewith.
/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA O. COTTER
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
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Justice John Warner Dissents.
¶19 I agree with the Court’s opinion Defendant Smith cannot claim she legitimately
expected privacy from the police in the common areas of Tash’s apartment. I also agree
Smith had a reasonable expectation of privacy in Tash’s bathroom. However, the facts
presented by this case meet the three-pronged test for application of the community caretaker
doctrine articulated in State v. Lovegren, 2002 MT 153, ¶ 25, 310 Mont. 358, ¶ 25, 51 P.3d
471, ¶ 25, and State v. Nelson, 2004 MT 13, ¶ 7, 319 Mont. 250, ¶ 7, 84 P.3d 25, ¶ 7, and
Officer Guiberson was correct in investigating the uncertain condition of the young Ms.
Smith.
¶20 All of the information we have concerning this facet of the case comes from the four
witnesses who testified at the suppression hearing concerning how Officer Guiberson came
to open the bathroom door and find Smith with her head in the toilet. These four are Roslyn
Tash, the tenant of the apartment where the party was held, Mary Redlich, with whom Ms.
Smith lived, Ms. Smith the Defendant, and Officer Don Guiberson. With the possible
exception of Tash’s negative response to a question of whether Smith was throwing up while
the officers were there, no witness contradicted Guiberson’s version of what he was faced
with and how he responded. Even then, Tash acknowledged Smith was throwing up earlier
in the evening and she snuck into the bathroom to check on Smith shortly before Guiberson
opened the bathroom door.
¶21 Officer Guiberson testified:
Q: When you went into the apartment, what did you do next?
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A: When I walked in the apartment, immediately what I did is I looked
into, into the rooms, you know, to see, for officer safety purposes, to
see who was in there to make sure that we weren’t going to, you know,
come in contact with something. And what I did is I looked into the
living room area . . . and then went down into the bedroom area. . . . I
could hear someone throwing up in the bathroom area.
Q: So, that was – And the bathroom’s, essentially, is at the end of the hall;
is that correct?
A: At the end of the hall is a living room, to the right of that would be the
bathroom. The doors are facing opposite directions.
Q: And you said you heard someone throwing up?
A: Yeah.
Q: Would you say that was – Why did that cause you to take further
action? Let’s say it that way.
A: Well, if someone was sick or someone was in trouble, you know,
throwing up, you could hear the heaving and whatnot, so I figured
someone was probably in need of some help or something.
Q: Then what you heard was, shall we say, the extreme or perhaps
serious–
MS. HOLTON: Objection, leading.
THE COURT: Please rephrase your question.
Q: . . . How would you describe the character of the vomiting you heard?
A: It was pretty loud.
Q: And what did you do as a result of that?
A: Well, as a result, I asked someone – and I can’t remember who it was
– who was in there. And they said it was Rebekah Smith. And as I
recall, I don’t know if I knocked on the door, but I had said I was
coming in at that point.
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Q: And what did you see when you opened the door? Did you hear
anything from inside other than vomiting?
A: No, well, it was kind of heaving vomiting. It was – Someone was
extremely sick.
Q: All right. So, you said that you were coming in and then you opened
the door.
A: Uh-huh.
Q: And what did you see?
A: I saw Ms. Smith curled up on the floor, hugging the toilet, with her
head in the toilet.
Q: Did you check her condition?
A: Yeah.
Q: What was her condition?
A: She was alive, but she was pretty – I felt was pretty intoxicated. I
could smell the intoxicating substance and whatnot.
Q: And what did you do with her?
A: At that point, I believe Rossy Tash walked in, was kind of, I don’t
know, helping her out, so to speak. And then I left right then and went
into the other room.
¶22 Examining this scenario with reference to the three factors for application of
Montana’s community caretaker doctrine in Lovegren, and referenced by the Court at ¶ 14,
Officer Guiberson was justified in opening the door to the bathroom and checking on Ms.
Smith. If he had not done so, and had she suffered any injury from alcohol consumption,
he probably would have been sued.
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¶23 Considering whether the first prong of the community caretaker doctrine was present,
was the officer presented with objective, specific, and articulable facts upon which to base
a suspicion that a citizen is in need of help or is in peril, Guiberson was presented with the
following: (a) he had just come into an apartment rented by an adult with whom he had prior
professional contact where there was a loud party in progress and minors were drinking; (b)
while he was checking to see that officers were not in danger, he heard loud vomiting in the
bathroom; (c) he knew that whoever was in the bathroom was using its facilities for much
more than, as the Court delicately phrases it, “the personal and private nature of one’s usual
activities within a bathroom,” ¶ 12; (d) he knew the person in the bathroom was violently
sick; (e) because there were people at the party drinking, the cause of the vomiting could
well be ingesting too much alcohol; (f) because there were minors at the party who were
drinking, he knew the sick person could well be a minor; (g) minors are presumed by law
to not have the necessary maturity and judgment to handle their alcohol intake, and thus the
sickness could be serious. These facts most certainly raise a suspicion a citizen may be in
need of help, or be in peril.
¶24 The officer was more than justified in proceeding to the second, investigative, phase
of the community caretaker doctrine; opening the bathroom door. When he did so he
observed a fully clothed young girl not sitting on the toilet, but with her head in it, and he
was justified in entering to check on her condition. At that point, it became apparent she had
been drinking to the point where she was sick. Fortunately, the evidence did not show she
was in serious danger from her overindulgence. When it became known that Smith did not
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need further assistance, Guiberson retreated. He did not even embarrass Smith by arresting
her on the spot, in spite of her condition.
¶25 I must confess I am a bit mystified by the Court’s decision Guiberson violated
Smith’s right to privacy under these circumstances. One can only hope that some youngster
is not injured as a result of the new rule that house party participants should immediately go
into the bathroom and close the door when the party is busted, because the cops cannot come
in, at least for awhile.
¶26 I dissent. I would affirm the judgment.
/S/ JOHN WARNER
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