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.


                                                              2
          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


                                                       3
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,


                                                             4
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?


                                                                          5
           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,

                                                                   6
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



                                                                                7
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

                                                                                9
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


                                                                                    10
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


                                                               11
(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.

                                                                  12
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.




                                                               13
we concur:       ./




      Justices




                      14