State v. Dess

No. 82-65

I N THE SlJPREME COURT OF THE STATE OF M N A A
OTN

1982

THE STATE O MONTANA,
F

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

VS .
T O A M T H W DESS ,
H M S AT E

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 Court of t h e Eighth 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 County o f C a s c a d e
H o n o r a b l e J o h n M. McCarvel, J u d g e p r e s i d i n q .

C o u n s e l of Record:

For Appellant:

K a r l Nagel a r g u e d , G r e a t F a l l s , Montana

F o r Respondent:

HOE. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
J. F r e d Bourdeau, County A t t o r n e y , G r e a t F a l l s , Montana
R a n d a l l S n y d e r a r g u e d , Deputy County A t t o r n e y , G r e a t F a l l s ,
Montana

submitted: September 1 7 , 1982

~ecided: December 1 6 , 1982

Filed: DEC 2.6 1982
Mr. J u s t i c e F r e d J. Weber d e l i v e r e d t h e O p i n i o n of t h e C o u r t .

~ e f e n d a n t p p e a l s from a j u r y c o n v i c t i o n o f f e l o n y
a

t h e f t i n t h e E i g h t h J u d i c i a l D i s t r i c t C o u r t , Cascade County.
H e raises a single issue: Whether t h e D i s t r i c t C o u r t e r r e d

i n denying h i s motion t o suppress c e r t a i n evidence. We

a f f i r m t h e District Court, finding t h a t defendant lacked

standing t o challenge t h e c o n s t i t u t i o n a l i t y of both t h e

s e a r c h and s e i z u r e o f e v i d e n c e , a s h e had no r e a s o n a b l e

expectation of privacy i n t h e a r e a searched.

S h o r t l y b e f o r e m i d n i g h t , J u l y 6, 1 9 8 1 , a c o u p l e ( S t i r n s o n s )

who owned a l i q u o r s t o r e i n N e i h a r t , Montana, r e p o r t e d t h e

t h e f t o f two b o t t l e s o f S o u t h e r n Comfort whisky from t h e i r

store. They named a s s u s p e c t s two j u v e n i l e s whom t h e y had

s e e n t h a t e v e n i n g i n t h e company o f d e f e n d a n t . Three

d e p u t i e s who w e r e e n r o u t e t o N e i h a r t w e r e n o t i f i e d t h a t

S t i m s o n s ' J e e p Wagoneer had a l s o been s t o l e n from t h e i r

garage adjacent t o t h e l i q u o r s t o r e . Stimsons informed t h e

o f f i c e r s t h a t d e f e n d a n t ' s p a r t y o f f i v e p e r s o n s , whom t h e y

named, was c u t t i n g wood i n t h e N a t i o n a l F o r e s t o u t of

Neihart. The o f f i c e r s knew d e f e n d a n t was t h e o n l y a d u l t i n

the party. Knowing t h e a r e a i n which d e f e n d a n t c u t wood,

t h e d e p u t i e s d r o v e t h e i r two p o l i c e c a r s up t o t h e Moose

P a r k camping a r e a i n t h e N a t i o n a l F o r e s t a t a b o u t 1:00 a.m.

A s they approached one campsite, t h e deputies recognized

t h e g r e e n p i c k u p t r u c k d e s c r i b e d by S t i m s o n s which t h e

d e p u t i e s knew b e l o n g e d t o d e f e n d a n t ' s m o t h e r ; t h e y d r o v e

t h e i r c a r s up t o t h e c a m p s i t e , w i t h t h e h e a d l i g h t s i l l u m -

i n a t i n g t h e camp. No o n e was p r e s e n t , b u t t h e t h r e e o f f i c e r s

c o u l d see a p i c k u p camper on t h e g r o u n d , and numerous i t e m s

l y i n g i n t h e open a r o u n d t h e c a m p s i t e . Some o f t h e i t e m s

a p p e a r e d b r a n d new, o t h e r s o u t o f p l a c e : Forest Service

snowshoes ( i n J u l y ) , f a n c y c u t g l a s s l a n t e r n s , a non-

p o r t a b l e T.V., s t e r e o and t a p e deck i n a p l a c e f a r from a n y
outlet. The d e p u t i e s s u s p e c t e d t h e i t e m s were s t o l e n , b u t

d i d n o t s e i z e them immediately. I n s t e a d t h e y photographed

them and t o o k down s e r i a l numbers, t h e n d r o v e a s h o r t d i s t a n c e

away from t h e c a m p s i t e .

W i t h i n a few m i n u t e s one of t h e d e p u t i e s h e a r d a s h o u t

and r u n n i n g f o o t s t e p s . The d e p u t i e s a l l r e t u r n e d t o t h e

c a m p s i t e , and found e v i d e n c e t h a t someone had j u s t been

there--the camper d o o r , which had been open, was now c l o s e d ,

a g a r b a g e can of g r o c e r i e s which had been o u t s i d e t h e camper

was now i n s i d e , and s e v e r a l of t h e i t e m s t h e o f f i c e r s s u s p e c t e d

were s t o l e n had been pushed behind t r e e s , p a r t i a l l y c o n c e a l e d

under t h e p i c k u p t r u c k , o r h a l f - c o v e r e d by s l e e p i n g b a g s .

N one was t h e r e , s o t h e d e p u t i e s l e f t a g a i n and r e t u r n e d i n
o

a b o u t twenty m i n u t e s . T h i s t i m e t h e y found d e f e n d a n t and

h i s f o u r companions a t t h e c a m p s i t e .

N a r r e s t o r s e i z u r e of e v i d e n c e was made a t t h a t t i m e ,
o

b u t two of t h e d e p u t i e s remained a t t h e c a m p s i t e w i t h t h e

p a r t y , w h i l e a t h i r d ( O f f i c e r Halvorson) d r o v e back t o

N e i h a r t t o d e t e r m i n e whether any of t h e p r o p e r t y s e e n l y i n g

around t h e c a m p s i t e belonged t o t h e S t i m s o n s . I t d i d not.

O f f i c e r Halvorson t h e n r e t u r n e d t o t h e c a m p s i t e and a r r e s t e d

d e f e n d a n t f o r e n d a n g e r i n g t h e w e l f a r e of a minor. A l l of

t h e party w e r e taken t o t h e s h e r i f f ' s o f f i c e i n t h e deputies'

cars. The i t e m s i n s i g h t on t h e ground were s e i z e d ; t h e

camper was r e s t o r e d t o t h e p i c k u p and t h e p i c k u p was towed

i n t o town. One o t h e r member of t h e p a r t y was c h a r g e d w i t h

v i o l a t i n g p r o b a t i o n ; no c h a r g e s were b r o u g h t a g a i n s t t h e

other three.

Accounts of t h e w i t n e s s e s v a r y w i d e l y a s t o t h e t i m e

t h a t e l a p s e d between t h e d e p u t i e s ' t h i r d a p p e a r a n c e a t t h e

c a m p s i t e and d e f e n d a n t ' s a r r e s t and a s t o t h e freedom t h e

p a r t y had w h i l e O f f i c e r Halvorson went t o N e i h a r t . It is

o b v i o u s t h a t t h e d e l a y was w e l l o v e r h a l f a n h o u r , and t h a t
the party reasonably believed they were not free to depart.
Defendant made no claim to ownership of the property, although
his girlfriend claimed to own the lanterns.
Within several hours of the return to the sheriff's

office, the seized items were identified as belonging to two
burglarized cabins in Neihart. Defendant was charged with
burglary and felony theft. Ten days after defendant's
arrest, two juvenile members of the party (nephews of
defendant) led deputies to the stolen Jeep, which had been
stuck and abandoned on a back road near the campsite.
Warrants were obtained to search the Jeep and the pickup/camper;
more evidence of theft from the two cabins in Neihart was
discovered. Defendant pleaded not guilty to three counts of
felony theft, two counts of burglary, and two counts of
felony mischief. The charge against defendant, of endangering
the welfare of children, was dismissed as being without

probable cause.
The District Court denied defendant's motion to suppress
evidence seized at the campsite and from the vehicles,
finding that the evidence "was not obtained by reason of the
arrest of the Defendant or any illegal action." A jury

found defendant guilty of three counts of felony theft.
Defendant appeals, asserting that the District Court committed
reversible error in denying his motion to suppress evidence.
He argues that the seizure of the evidence at the campsite
was incident to his arrest without probable cause, indeed,
that the arrest was merely a pretext for seizing the items.

He further argues that the evidence seized in the search of
the vehicles and camper must be suppressed as "fruit of the

poisonous tree," tainted by the initial illegal seizure, and
that the trial court's failure to suppress the evidence
constitutes reversible error.
 The first and dispositive question is whether defendant

possessed standing to raise a Fourth Amendment challenge to
the admission of the evidence seized from the campsite and
from the vehicles. Defendant has claimed no possessory
interest in the evidence; in fact, he disclaimed such an

interest before the trial court. Furthermore, he admits to
having a "diminished" expectation of privacy in that the
items initially seized were in plain sight on public land.

His position is that not the search, but the seizure, violated
the Fourth Amendment, and thus the evidence seized at the

campsite, and all evidence gathered by exploration of that
seizure, must be suppressed.
We do not agree. After consideration of those United
States Supreme Court cases which interpreted, and, in 1980,
renounced the "automatic standing" rule articulated in Jones
v. United States (1960), 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d
697, we find that defendant had no reasonable expectation of
privacy in the campsite at Moose Camp and therefore he
lacked standing to assert a Fourth Amendment objection to
admission of the evidence found and seized there. We alsc

find that since the evidence seized from the vehicles and
camper was - tainted by any illegal seizure at Moose Camp,
not
it, too, was properly admitted at trial.
The history of the "automatic standing" rule first

adopted in Jones, supra, is clearly set forth in United States
v. Salvucci (198O), 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d
619, wherein that rule was explicitly overruled. In Jones,
the Supreme Court established an exception to the rule that
only one who established that he himself was the victim of
an invasion of privacy could challenge the legality of a
search as the basis for suppressing relevant evidence.

".. .[i]n cases where possession of the seized
evidence was an essential element of the offense
charged, the [Jones] Court held that the defendant
was not obligated to establish that his own Fourth
 Amendment rights had been violated, but only that
the search and seizure of the evidence was uncon-
stitutional. Upon such a showing, the exclusionary
rule would be available to prevent the admission
of the evidence against the defendant." United
States v. Salvucci, 448 U.S. at 87, 100 S.Ct. at
2550, 65 L.Ed.2d at 625.
The Jones rule was seen as meeting two needs. Any defendant
who asserted a possessory interest in incriminating evidence
prior to Jones risked having that assertion used against him
at trial. The State was allowed to assert that a defendant
possessed the goods for purposes of criminal liability and
that he did not possess them for purposes of claiming Fourth
Amendment protection.
"Thus in order to prevent both the risk that self-
incrimination would attach to the assertion of
Fourth Amendment rights, as well as to prevent the
'vice of prosecutorial self-contradiction,'
[citation omitted] the Court adopted the rule
of 'automatic standing.'" United States v.
Salvucci, 448 U.S. at 88, 100 S.Ct. at 2551, 65
L.Ed.2d at 626.
Since 1960, a number of Supreme Court cases prior to
Salvucci substantially eroded the need for the "automatic
standing" rule. In Simmons v. United States (1968), 390

U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, the Supreme Court

held that testimony given by a defendant in support of a
motion to suppress cannot be admitted as evidence of his

guilt at trial, eliminating the defendant's dilemma ident-
ified in Jones. Thus, even without Jones, the defendant is

no longer obliged to sacrifice either a Fourth Amendment
right or a Fifth Amendment right. Salvucci also noted:
"The simple answer is that the decisions of this
Court, especially our most recent decision in
Rakas v. Illinois, 439 U.S. 128 (1978), clearly
establish that a prosecutor may simultaneously
maintain that a defendant criminally possessed the
seized good, but was not subject to a Fourth
Amendment deprivation, without legal contradic-
tion. To conclude that a prosecutor engaged in
self-contradiction in Jones, the Court necessarily
relied on the unexamined assumption that a defendant's
possession of a seized good sufficient to establish
criminal culpability was also sufficient to estab-
lish Fourth Amendment 'standing.' This assumption,
however, even if correct at the time, is no longer
SO.
 "As we hold today in Rawlings v. Kentucky,
post., p. 38, legal possession~fa seized
good is not a proxy for determining whether
the owner had a Fourth Amendment interest
for it does not invariably represent the
protected Fourth Amendment interest." 448
U.S. at 90-91, 100 S.Ct. at 2552-3, 65 L.Ed.2d
at 627-628.
Salvucci concluded that while property ownership is "a
factor" in determining whether Fourth Amendment rights have

been violated, illegal search only violates - rights
the

- those - - - 'a legitimate expectation - privacy -
of who have of in
the invaded place.'" U.S.

65 L.Ed.2d at 628 (emphasis supplied), citing ~ a k a sv.
-
Illinois (1978), 439 U.S. 128, 99 S.Ct. 421, 58 L.Fd.2d 387.

In abandoning the "automatic standing" rule, the -
Salvucci
court stated:

"As in Rakas, we again reject 'blind adherence' to
the other underlying assumption in Jones that
possession of the seized good is an acceptable
measure of Fourth Amendment interests. As in
Rakas, we find that the Jones standard 'creates
too broad a gauge for measurement of Fourth
Amendment rights' and that we must instead engage
in a 'conscientious effort to apply the Fourth
Amendment' by asking not merely whether the
defendant had a possessory interest in the items
seized, but whether he had an expectation of
privacy in the area searched. Thus neither
prosecutorial 'vice,' nor the underlying assump-
tion of Jones that possession of a seized good is
the equivalent of Fourth Amendment 'standing'
to challenge the search, can save the automatic
standing rule." 448 U.S. at 92-93, 100 S.Ct. at
2553, 65 L.Ed.2d at 629.

This Court has recognized and followed the Supreme

Court's shift in emphasis. In State v. Allen (1980),
Mont. , 612 P.2d 199, 37 St.Rep. 919, a defendant who
permanently resided at his girlfriend's apartment was found
to have standing to challenge the legality of the search and
seizure of that apartment; in State v. Isom (1982),
Mont. , 641 P.2d 417, 39 St.Rep. 137, a defendant, who
was an overnight guest and the sole occupant of his uncle's
house at the time of the search, with the right to exclude

others, had standing to challenge a police search of the
house. The defendant's disclaimer of ownership of a vehicle
during custodial interrogation did not deprive him of standing

to contest the search of that vehicle. His disclaimer of
ownership of the vehicle did not affect defendant's standing
to contest the search of garbage bags found in the trunk of
the car. In both Isom and Allen, this Court recognized "a
legitimate expectation of privacy," as the primary test for
determining standing, although such tests as disclaimer of

ownership, "legitimately on the premises" and permanence of
presence on premises were factors to be considered in deter-
mining standing.
Let us consider the facts of this case in light of the
above cases. Standing has been found where there was temporary
residence in a building, or where the defendant owned the
structure or vehicle searched. The reasonableness of his
expectation of privacy turned on the defendant's right to
exclude others from the premises. The premises in question
concealed the presence of incriminating evidence, or shielded
the defendant from police discovery of incriminating behavior.
Here, the "temporary residence" was public property, a

National Forest campsite, where defendant had set his camper
top a i a few pieces of property (no tent); there were no
rd
people present; and the suspiciou.~
character of the items
strewn about the campsite was exposed for all to see.
Defendant himself correctly concedes that the deputies had
a legal right to be where they were. He admits that, under
State v. Charvat (1978), 175 Mont. 267, 269, 573 P.2d 660,
661, such areas as an "open field, farmland, or a corral"
are not embraced within the constitutional guarantee of
unreasonable searches and seizure, and, thus, the intrusion
into the camp was permissible. He admits that the location
of the campsite on public land next to a public road led to

a diminished expectation of privacy.
 Defendant would have this Court separate the search,

which he himself concedes is constitutional, from the
seizure, which he argues occurred without probable cause to
believe the items seized were stolen. However, the facts of
this case, and defendant's own concessions, finally establish
that defendant had no reasonable expectation of privacy in

the area searched as to the items he sought to suppress,
whether. on account of the search or the seizure.
Even if we were to separate the seizure from the search,
it is evident that probable cause existed for the deputies
to reasonably believe the items seized from Moose Camp were
stolen, and that, as the trial judge ruled, the seizure was
not incident to defendant's arrest for endangering the
welfare of a minor. The appearance of the items alone roused
the officers' suspicion that they were stolen. Some of them
were brand-new (still in wrappings). Others were electrical
appliances, obviously not portable, lying around a campsite

where there was no outlet. There were Forest Service snowshoes
(in July) and fancy glass lanterns. Still more suspicious
was the evidence of attempted concealment by the campers of
both themselves and the property. In the few minutes that
the officers were absent from the camp after their first
visit, the suspicious items ( T . V . , stereo, tape deck, etc.)
were moved behind trees and under the pickup, or were partially
covered by sleeping bags. When the officers entered camp
the third time, they saw the campers, including defendant,
"crouching" or otherwise attempting to conceal themselves.

Probable cause does not require absolute proof that a
crime was committed, that the persons taken into custody
committed it, or that the evidence seized is contraband or
the fruit of a crime. This Court has frequently stated that
only the probability, and not a prima facie showing, of
criminal activity is the standard of probable cause. State
v. ~roglia (1971), 157 Mont. 22, 482 P.2d 143. Nor does

the officers' attempt to establish more firmly that the

items were stolen indicate that probable cause to seize the

items did not exist without the additional proof. We find
that there was probable cause to support the seizure of the

items at the Moose Camp. The fact that the items were
seized at the same time defendant was arrested for an unrelated
crime does not establish that they were seized incident to

that arrest.
This Court has also held that absent exigent circum-

stances, evidence cannot be seized without a warrant, despite
the observation of'evidence in plain sight and the existence
of probable cause. State v. Lane (1977), 175 Mont. 225, 573
P.2d 198. In the case at bar, however, the deputies were
faced with three alternatives besides warrantless seizure of

the evidence. They could have taken in only one or two of

the party, and left the others in camp with the evidence,
despite the fact that efforts had already been made by
defendant's party to conceal the evidence. Those left behind

would undoubtedly have destroyed or hidden the evidence as
soon as the officers left. Or, the officers could have
simply left the items unguarded out in the open in a public
spot, and returned hours or days later with a warrant.
Finally, they could have left one officer at the campsite,
guarding the property, while they took defendant's party

in, obtained a warrant, and returned many miles to pick up
the evidence. None of the alternatives to seizure is accept-
able; clearly, circumstances existed which made seizure,
even without a warrant, the only reasonable way to protect
the evidence. Exigent circumstances, although jealously
limited, are not absolutely limited. This is one case where
the unusual situation amounted to exigent circumstances.
The District Court committed no error in denying defendant's
We concur: