City of Helena v. Lamping

No. 86-04

I N THE SUPREME COURT OF THE STATE OF MONTANA

1986

C I T Y OF HELENA,

P l a i n t i f f and R e s p o n d e n t ,

-vs-
LEONARD P E T E LAMPING,

D e f e n d a n t and A p p e l l a n t .

APPEAL FROM: D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of L e w i s & C l a r k ,
T h e H o n o r a b l e T h o m a s H o n z e l , Judge p r e s i d i n g .

COUNSEL OF RECORD:

For A p p e l l a n t :

Frederick F . Sherwood, Helena, Montana

F o r Respondent:

H u l l & Sherlock; D a v i d H u l l , H e l e n a , Montana

S u b m i t t e d on B r i e f s : March 6, 1986

Decided: June 4 , 1986
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

This is an appeal from an order of the District Court of
the First Judicial District in and for Lewis and Clark
County, Montana. The court denied defendant's motion to
supress certain evidence and defendant appeals. We affirm.
The defendant, Lamping, was arrested by city police in
Women's Park, Helena. He was charged with a violation of the
city open container ordinance and with giving alcohol to a
minor. Lamping pled guilty to the first charge. The latter
charge was dismissed.
After the arrest, Lamping was taken immediately to the
county jail to be jailed. According to the jailer on duty,
the usual procedure was followed in processing the prisoner.
All his personal property was taken from him to be
inventoried. While searching Lamping, the jailer pulled out
of his shirt pocket what appeared to be a crumpled pack of
Marlboro cigarettes. The pack was open. The jailer looked
into it because he did not want to throw it away if it
contained cigarettes. There was one hand-rolled cigarette in
the pack which was determined to be a marijuana cigarette.
As a result of finding the marijuana cigarette, the City
charged Lamping with misdemeanor possession of dangerous
drugs. He was tried and convicted in absentia. On appeal to
the District Court, Lamping argued the evidence on which the
City relied was obtained through an illegal search. A
suppression hearing was held. The motion to suppress was
briefed by both sides and denied by the District Court. At
the subsequent bench trial, Lamping was found guilty and
sentenced to 45 days in jail.
The only issue on appeal is whether the motion to
suppress should have been granted.
 Evidence which is obtained illegally cannot be admitted
at trial because its admission violates defendant's federal
constitutional fourth amendment right against unreasonable
search and seizure. Weeks v. United States (1914) 232 U.S.
383, 34 S.Ct. 341, 58 L.Ed. 652. This rule was made
applicable to the states in Mapp v. Ohio (1961), 367 U.S.
643, 655-657, 81 S.Ct. 1684, 1691-1692, 6 L.Ed.2d 1081,
1090-1091. When a defendant moves to suppress certain
evidence, he is entitled to a hearing on his motion, where
the admissibility of the evidence is decided by the judge as
a matter of law. Jackson v. Denno (1964), 378 U.S. 368, 84
S.Ct. 1774, 12 L.Ed.2d 908. In addition to the protection
accorded by the fourth amendment to the federal constitution
and Art. 11, S 11 of the Montana Constitution against
unreasonable search and seizure, the Montana Constitution
specifically protects the individual's right to privacy.
Art. 11, § 10, 1972 Mont. Const.
Lamping argues the inventory search prior to his
incarceration violates Art. 11, § 10, and 5 11 of the Montana
Constitution. He relies on State v. Sierra (Mont. 1985), 692
P.2d 1273, 42 St.Rep. 106. Sierra is inapplicable in this
case, however. The defendant in Sierra was a person
detained on suspicion of being an illegal alien. During an
inventory search, a suitcase in his possession was opened and
searched without a warrant. The case at bar involves an
open, somewhat crumpled cigarette package which was in the
defendant's shirt pocket.
Lamping does not contest the legality of the discovery
of the Marlboro pack itself. He is contesting the fact the
jailer looked inside the open pack. The jailer testified he
did not want to throw away the pack if there were cigarettes
inside. There is no evidence the jailer was acting
unreasonably, or in a non-investigatory way.
- 3 -
 The Ninth Circuit Court in United States v.
Monclavo-Cruz (9th Cir. 1981), 662 F.2d 1285, 1290, cited
with approval by the United States Supreme Court in United
States v. Chadwick (19761, 433 U.S. 1, 16, n. 1 0 , 97 S.Ct.

Unlike searches of the person, United States v.
Robinson, 414 U.S. 218, [94 S.Ct. 467, 38 L.Ed.2d
4271 (1973); United States v. Edwards, 415 U.S.
800, [94 S.Ct. 1234, 39 F.Ed.2d 7711 (1974),
searches of possessions within an arrestee's
immediate control cannot be justified by any
reduced expectations of privacy caused by the
arrest ...
The Circuit Court said:
We understand this footnote to mean that once a
person is lawfully seized and placed under arrest,
she has a reduced expectation of privacy in her
person. Thus, a search of a cigarette case on the
person is lawful once the person is under arrest
without reference to any possible danger to the
olice. ..
United States v. Robinson, 414 U.S.
518, 94 S.Ct. 467, 38 ~.Ed.2d 427 (1973):. ..
We concur with this distinction drawn between searches of the
person and searches of possessions within an arrestee's
immediate control.
Lamping was not subjected to an illegal search, nor was
his right to privacy violated when the jailer looked inside
the open pack of cigarettes to make sure it was empty. Had
the package been empty, it would have been thrown away. Had
there been a non-marijuana cigarette in it, it would have
been returned to Lamping if he wanted to smoke. According to
the jailer, "nine times out of ten a prisoner will ask for a
cigarette while he is being booked." Dangerous
instrumentalities can be concealed in innocent looking
articles taken from an arrestee's possession. The state has
a compelling interest in protecting prisoners from potential
danger. It must protect both the defendant and the officer
by accounting for any money a prisoner might have.
 In Sierra, supra, while agreeing with the United States
Supreme Court in Illinois v. Lafayette (1983), 462 U.S. 640,
103 S.Ct. 2605, 77 L.Ed.2d 65, that there are numerous,
legitimate governmental interests which override the
interests of the individual, "we [did not] agree that their
existence may permit an inventory search in all
circumstances ... [I]n many of these circumstances the
police should use the least intrusive means possible for
conducting an inventory search." 692 P.2d at 1275, 42

There are circumstances where a search is not
unreasonable for failure to secure a search warrant. The
case at bar is one. Lamping's reasonable expectation of
privacy is diminished as to the open cigarette pack found in
his shirt during a routine inventory search. When a
container is open, the intrusion is justified to protect the
other prisoners from harm. The contents of an unsecured
package should be inventoried separately.
In this instance the search was reasonable to assure
this protection. The order of the District Court is
affirmed.

Justices