State v. Lamere

No. 86-347

I N THE SUPREME COURT O THE STATE O MONTANA
F F
..
1987

STATE O MONTANA,
F

P l a i n t i f f and A p p e l l a n t ,
-vs-

ARTHUR JOSEPH LAMERE,

Defendant and Respondent.

APPEAL FROM: D i s t r i c t Court of t h e Twelfth 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 H i l l ,
The Honorable Chan E t t i e n , Judge p r e s i d i n g .

COUNSEL O RECORD:
F

For Appellant:

Hon. 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
John P a u l s o n , A s s t . A t t y . G e n e r a l , Helena
David G. R i c e , County A t t o r n e y , Havre, Montana

F o r Respondent:

Mark Suagee, Havre, Montana

S u b m i t t e d on R r i e f s : Nov. 25, 1986

Decided: A p r i l 7 , 1987

File
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

This is an appeal by the State of Montana from an order
issued by the Twelfth Judicial District Court in and for Hill
County granting defendant's motion to suppress evidence
seized by the Havre police during an inventory search of
defendant's person prior to his incarceration.
We reverse the order of the District Court.
The sole issue on appeal is whether the District Court
erred in granting defendant's motion to suppress evidence.
Both parties stipulated to the following facts from
which the District Court reached its decision:
Defendant Lamere was lawfully arrested
for driving under the influence, in
violation of 5 61-8-401, MCA, on
September 2, 1985 [correction to
September 7, 19851 at approximately 2:00
a.m. in Havre, Hill County, Montana, by
Laurel Zorn of the Havre Police
Department.
At the station following the arrest,
Officer Zorn removed two items of
personal property from the defendant as
part of an inventory search at the police
station. Both of these items were
opened, searched and evidence seized
therefrom.
The first item opened was a leather pouch
which had been removed from the inside
pocket of defendant's jacket which he was
wearing at the time. Police zipped open
this pouch, searched it and seized the
contents. The contents included alleged
drug paraphernalia and a white powder in
the vial which field tested positive as
cocaine.
The second item taken from the defendant
was a bank money bag which was removed
from the defendant's pants leg in a pat
 down search following seizure of the
alleged cocaine. The police zipped open
this bag and searched it producing two
small bags of alleged marijuana.
Both of these searches and seizures were
effected without a search warrant
although there was opportunity to make
application for one. Both searches were
done as part of the standard inventory
procedure used by the Havre Police
Department. Defendant did not consent to
either search.
In addition to these facts we add that an information
was filed charging defendant with two counts of criminal
possession of dangerous drugs and one count of criminal
possession of drug paraphernalia. Defendant filed a motion
to suppress all items seized by the police during the search.
The District Court granted defendant's motion to suppress and
the State now appeals from this decision to suppress.
The District Court concluded that the removal of
defendant's two containers and the opening and searching of
them without the defendant's consent after his arrest but
prior to his incarceration violated his right to be free from
unreasonable seach and seizure under the United States and
Montana Constitutions. The District Court erroneously found
that the facts of the case were governed by the reasoning
stated in State v. Sierra (Mont. 1985), 692 P.2d 1273, 42
St.Rep. 106.
In Sierra, the police removed a closed container of
property--a small suitcase--from the defendant as part of a
routine inventory search prior to incarceration. They opened
and searched it without a warrant. The non-warrant search of
the small, closed container for inventory purposes was found
to be in violation of defendant's rights.
 Appellant State requests this Court to reconsider its
holding in State v. Sierra in light of decisions in other
jurisdictions to follow the United States Supreme Court's
decision in Illinois v. Lafayette (1983), 462 U.S. 640, 103
S.Ct. 2605, 77 L.Ed.2d 65. See People v. Decker (1986), 222
Cal.Rptr. 689; Henderson v. State (Ark. 1985), 699 S.W.2d
419; State v. Cole (Utah 1983), 674 P.2d 119.
While not cited by either brief due to its recent
release, the decision by the United States Supreme Court,
Colorado v. Bertine, No. 85-889, January 14, 1987, reinforces
Illinois v. Lafayette, supra. In Bertine, police officers in
Boulder, Colorado arrested the petitioner, Steven Lee
Bertine, for driving while under the influence of alcohol.
After he was taken into custody, and before the arrival of a
tow truck to take Bertine's van to an impoundment lot,
another officer while acting in accordance with local police
procedure, inventoried the van's contents. The officer
opened a closed backpack in which he found controlled
substances, cocaine paraphernalia, and a large amount of
cash. Prior to Bertine's trial on charges that included
unlawful possession of cocaine with intent to dispense,
sell, and distribute, a state trial court granted Bertine's
motion to suppress the evidence found during the inventory
search. The Colorado trial court ruled that the search did
not violate Bertine's rights under the Fourth Amendment, but
held the search violated the Colorado Constitution. The
Colorado Supreme Court affirmed, but premised its ruling on
the United States Constitution. The United States Supreme
Court reversed, holding that the Fourth Amendment did not
prevent the state from proving criminal charges with evidence
discovered during the inventory of Bertine's van.
The State argues, and we agree, that City of Helena v.
Lamping (Mont. 1986), 719 P.2d 1245, 43 St.Rep. 901, should
have governed the District Court's decision and not State v.
Sierra, supra. In Lamping the defendant was lawfully
arrested for unrelated offenses and taken to the county jail
to be jailed. Prior to incarceration the jailer inventoried
Lamping's personal property. While searching him the jailer
took an open cigarette package out of Lamping's shirt pocket
and discovered a hand rolled marijuana cigarette in it.
Lamping was charged with possession of dangerous drugs. In
Lamping, we pointed out that dangerous instrumentalities can
be concealed in innocent looking articles taken from an
arrestee's possession and the State has a compelling interest
in protecting prisoners from potential dangers and must also
protect the defendant and the officer by accounting for any
money the person has. We concluded that the inventory search
in Lamping was not unreasonable for failure to secure a
search warrant.
We conclude that the theory of Lamping is applicable
here. We further point out that in Bertine, the Court
analyzed the inventory procedure in a manner which we find
directly applicable to the present case:
In the present case, as in Opperman and
Lafayette, there was no showing that the
police, who were following standardized
procedures, acted in bad faith or for the
sole purpose of investigation. In
addition, the governmental interests
justifying the inventory searches in
Opperman and Lafayette are nearly the
same as those which obtain here. In each
case, the police were potentially
responsible for the property taken into
their custody. By securing the property,
the police protected the property from
unauthorized interference. Knowledge of
the precise nature of the property helped
guard against claims of theft, vandalism,
or negligence. Such knowledge also
helped to avert any danger to police or
 o t h e r s t h a t may have been posed by t h e
property.

Bertine, supra, a t 5.
W a d o p t t h e B e r t i n e r a t i o n a l e f o r i n v e n t o r y s e a r c h and
e
conclude that in the present case, the order suppressing
evidence s h o u l d be reversed and the case returned t o the

W concur:
e A-
'-

Justices
Mr. Justice William E. Hunt, Sr., dissenting:

I strongly dissent from the majority opinion and argue
two separate authorities should control this matter. First I
argue that State v. Sierra (Mont. 1985), 42 St.Rep. 106, 692
P.2d 1273 should be determinative of this case. The majority
opinion overturns Sierra by its blanket adoption of City of
Helena v. Lamping (Mont. 1986), 43 St.Rep. 901, 719 P.2d
1245, and Illinois v. Lafayette (l.983), 462 U.S. 640, 77
L.Ed.2d 65, 103 S.Ct. 2605 and the United State Supreme
Court decision of Colorado v. Bertine, U.S. Slip Opinion 11,
Jan. 14, 1987 to the facts of this case, and in so doing
ignores the mandates of our Montana Constitution's righ-t of
privacy provision.
Lamping appears to rely on a 1981 Supreme Court case
U.S. v. Monclavo-Cruz (9th Cir. 1981), 662 F.2d 1285 for its
authority. The majority erroneously adopts Lamping as
controlling law in this case. The contradictions within the
Lamping opinion and now this majority opinion are glaring and
problematic. It is unclear precisely what was upheld in
Lamping and it is unclear in this majority opinion what
aspects of Lampinq are being reaffirmed here. The rationale
in the Monclavo-Cruz decision upon which Lampinq relied
regarding inventory searches was that searches of the person
could be distinguished from searches of possessions within
the immediate control of the arrestee-the later having a
greater expectation of privacy. The State in the present
case argues that the Supreme Court case, Lafayette, removed
this distinction by now allowing a warrantless inventory
search of any container or article in an arresteels
possession if it is done as a routine administrative
procedure incident to incarceration. The majority agree with
the State's claim that Lamping confirmed this Court's
agreement with Lafayette which, in my opinion, Lamping does
not do. Lamping utilizes the Monclavo-Cruz distinctions
which Lafayette had already done away with. Lamping states:
We concur with this distinction drawn between
searches of the person and searches of possessions
within an arrestee's immediate control . .. 43
St.Rep. at 903, 719 P.2d at 1247.
In reality this distinction in Monclavo-Cruz did not even go
to the discussion of inventory search issues but addressed
searches incident to an arrest. Lamping also adds another
distinction. The defendant's cigarette pack in his shirt was
open and the court held:
... 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 ... Id.. at 904, 1248.
Thus Lamping appears to premise its decision on what the
U.S. Supreme Court indicated is an out-moded federal
distinction between possessions on and off the person as well
as whether a container is open or closed. These premises
contradict the Lafayette and Bertine cases which the majority
now rely on.
Regardless of the convoluted reasoning relied on in
citing the Lamping decision, the majority is in error here in
a more fundamental way.
It is my opinion that the framers of our Montana
Constitution provided a more expansive right of privacy than
either Lafayette or Bertine indicate is provided for in the
penumbras of our federal Constitution. Sierra was decided
by this Court on this very issue and bears out this position.
- - State v. Sawyer (19771, 174 Mont. 512, 571 P.2d
See also

The appellant State requests this Court to reconsider
its holding in Sierra in light of decisions in other
jurisd.ictions to follow Lafayette. That is not necessary
since the Sierra court did fully consider the inventory
search issue raised there as well as similar issues recently
raised in Bertine. The Sierra court concluded the
non-warrant search of the arrestee's small closed suitcase
not on defendant's person conducted for inventory purposes
prior to his incarceration was a violation of his right of
privacy guaranteed by Art. 11, Sections 10 and 11 of the
Montana Constitution since, under those circumstances, less
intrusive means were available to accomplish the task of
inventorying the arrestee's belongings. That search was
therefore held to be unreasonable.
The right to privacy provision of the Montana
Constitution affords an individual greater protection than
its federal counterpart as interpreted by recent federal case
law. As such, ". . . we are not compelled to march lock step
with pronouncements of the United States Supreme Court if our
own constitutional provisions call for more individual rights
protections than that guaranteed by the U.S. Constitution."
Sierra at 1276.
Again we quote the Sierra court's adoption of the
holding in Reeves v. State (Alaska 1979), 599 P.2d 727, and
find it applicable to this case:
The search of an arrestee's person should be no
more intensive than reasonably necessary to prevent
the entry of weapons, illegal drugs, and other
contraband or other potentially dangerous items
into the jail. Any items taken from the arrestee's
possession in this search may not be further
searched or opened except pursuant to a search
warrant or another recognized exception to the
warrant requirement applicable in the
circumstances. Finally, the inventory conducted
shall consist of a cataloging of the arrestee's
property thus seized and may not, without a
specific request - - K arrestee, extend to
from t a
search and inventory - - contents - any object;
of the of
closed or sealed container, -, briefcase, or
pcae
akg. We believe that a pe-tor-ain
search thus limited both adequately protects the
reasonable interests of the state and appropriately
 respects an arrestee's reasonable expectation of
privacy. (Emphasis added. )

We have also dealt with this issue in State v. Sawyer
(1977), 174 Mont. 512, 571 P.2d 1131. There we held that the
U.S. Fourth Amendment issue need not be reached in a case
involving an inventory search of an automobile without a
warrant and seizure of amphetamine pills from under the seat
of the automobile. This Court found the situation was
governed by the Montana Constitution's right of privacy
provision.
The following quote from that case is equally applicable
here :
We need not consider the Fourth Amendment issue
because we view the Montana Constitution to afford
- individual greater protection in this instance
an
than is found under the Fourth Amendment in
.
Opperman
The 1972 Montana Constitution, Art. 11, Sections 10
and 11, provided:
Section 10. 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.
Section 11. Searches and seizures. The people
shall be secure in their persons, papers, homes and
effects from unreasonable searches and seizures.
No warrant to search any place, or seize any person
or thing shall issue without describing the place
to be searched or the person or thing to be seized,
or without probable cause, supported by oath or
affirmation reduced to writing.
The importance of the right of individual
privacy to the framers of the Montana Constitution
is obvious from these provisions. This Court has
previously noted the significance of the explicit
guarantee of the right of individual privacy
contained in Section 10, as a comparable provision
exists in the United States Constitution. State v.
Coburn, 165 Mont. 488, 495, 5 3 0 P.2d 442 (1974),
 It is also clear that an inventory search such
as the one considered here is a significant
invasion of individual privacy, the inventory
search must meet the "reasonableness" and
"compelling state interest'' standards of the
Montana Constitution. ... (Emphasis added.)
Id. at 517, 1133-1134.
In the instant case, the Havre police had a legitimate
governmental interest in performing an inventory search of
defendant prior to incarceration. No evidence was presented
that the police station's storage facility was not secure or
could not reasonably be made secure, nor that the two
containers could not have been well protected from theft or
destruction without searching them. Further the police had
no reason to believe the containers held weapons or
explosives so a search of their contents was not justified on
that count.
Because of this State's more expansive right of privacy
provision as discussed in Sierra and in Sawyer, the existence
of these legitimate governmental interests does not permit an
inventory search in these circumstances since the police
could have used less intrusive means to inventory the
defendant's belongings.
The second issue is equally determinative of this case.
Unlike Lamping, there were no open containers at issue.
The defendant was carrying two closed, zippered containers on
his person. The police found the first container on the
inside of defendant's jacket pocket. This container should
not have been searched without defendant's consent but it
was. It could easily have been sealed and placed in storage
or treated with less intrusive means unless other
circumstances were shown establishing probable cause to do an
investigatory search of the container.
The second container was discovered after the first one
had been opened and the contents observed. This is the
precise situation which suggests that the inventory procedure
was a "pretext concealing an investigatory police motive" as
forbidden in South Dakota v. Opperman (1976), 428 U.S. 364,
96 S.Ct. 3092 and other cases. The existence of such a
possible pretext drastically changes the nature of this
search from a warrantless routine inventory search into an
investigatory search which mandates a warrant, the strictest
Fourth Amendment protections of a defendant in this
situation.
The police were not foreclosed from discovering the
contents of these containers if they could establish probable
cause to search the containers. After the discovery of the
money bag in defendant's pants, an arguably suspicious
situation, application for a search warrant could have been
made by the police. No attempt was made to obtain a warrant
at any stage in these proceedings.
This possible pretext concealing an investigatory police
motive is an elemental prohibition and an ever constant
threat to any defendant's Fourth Amendment rights. Even the
recent Bertine case which was relied on by the majority
upheld the particular inventory search in part because "There
was no showing ... that the police, who were following
standardized caretaking procedures acted in bad faith or for
the sole purpose of investigation or on the suspicion of
evidence of criminal activity." U.S. Slip Opinion 11, Jan.
14, 1987. Therefore, on this issue also the majority erred
by not upholding the lower court's

I concur in the foregoing dissent:
n
42 &!.a&-
stice John 6. Sheehy