No. 92-189
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
-v-
DANIEL RICHARD McCARTHY,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Thomas Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Randi M Hood, Public Defender, Helena, Montana
.
For Respondent:
Patricia J. Jordan, Assistant Attorney General,
Helena, Montana: Marc Racicot, Attorney General,
Helena, Montana; Mike McGrath, Lewis and Clark
County Attorney, Helena, Montana; Lisa Leckie,
Deputy County Attorney, Helena, Montana
Submitted on Briefs: October 22, 1992
Decided: April 16, 1993
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from an order of the First Judicial District
Court, Lewis and Clark County, denying appellant's motion to
suppress evidence seized in a warrantless search. We affirm.
The issues on appeal are:
1. Did the District Court err in denying McCarthy 's motion to
suppress evidence due to an illegal warrantless search of a vehicle
and a jacket in that vehicle?
2. Did the District Court err by refusing to suppress
evidence found upon McCarthy8s person at the time of his booking
because such evidence was fruit of the poisonous tree?
Daniel R. McCarthy (McCarthy), Shannon Hiatt (Hiatt), and
Leslie Eddards (Eddards), were involved in a one-vehicle accident
on July 5, 1991 on the Stemple Pass road in Lewis and Clark County.
McCarthy and Hiatt were passengers in the car driven by Eddards.
Montana Highway Patrol Officer Scott Swingley arrived at the scene
and found the automobile in a ditch with its engine running and
Hiatt severely injured.
Swingley suspected that the driver, Eddards, was intoxicated
and administered a breathalizer test. The test results showed -175
blood alcohol content. Swingley arrested Eddards on a DUI charge,
handcuffed him and placed him in the rear seat of the police car.
Swingley then read McCarthy his rights and asked McCarthy if
there was anything illegal in the car, upon which McCarthy said
"You know about the pot pipe?" Both McCarthy and Swingley then
approached the car at which point McCarthy began searching from the
2
passenger side for the pipe which he stated was located around the
car's gearshift. He could not find it.
Swingley went to the driver's side and saw a crumpled jacket
in the back seat with a clear plastic baggie protruding from the
pocket. He reached into the jacket, pulled out the baggie and
determined the green leafy substance might be marijuana. He
replaced the baggie in the pocket and asked McCarthy who the jacket
belonged to. McCarthy said it was his, upon which Swingley pulled
the baggie from the pocket.
Swingley arrested McCarthy and transported him to the county
jail in Helena where jail personnel discovered a small baggie in
McCarthy8s right front pant's pocket. The baggie contained LSD.
McCarthy was charged with felony possession of dangerous drugs.
On August 22, 1991, McCarthy pled not guilty, and on September
10, 1991, filed a motion to suppress evidence. A hearing was held
on October 24, 1991. The District Court denied McCarthy's motion
to suppress on December 10, 1991. McCarthy entered an Alford plea
of guilty on February 6, 1992, and received a two year deferred
sentence on the felony count. McCarthy reserved his right to
appeal the denial of his motion to suppress at the time he pled
guilty. This appeal followed.
I
Did the District Court err in denying McCarthyls motion to
suppress evidence due to an illegal warrantless search of a vehicle
and a jacket in that vehicle?
McCarthy argues that as a passenger in Eddardsl car he had a
reasonable expectation of privacy in both the car and his jacket.
McCarthy contends that he is protected against unreasonable
searches by the Fourth Amendment of the United States Constitution
and Article 11, Section 11 of the Montana Constitution. McCarthy
contends that warrantless searches are per se unreasonable and that
the exception to the rule requires probable cause which did not
exist here.
The State argues that Officer Swingley had probable cause to
search McCarthyfs jacket and such search was valid under the
"automobile exceptionv1 to the Fourth Amendment's warrant
requirement. The State further argues that it was permitted to
search both the automobile and McCarthyps jacket as a search
incident to Eddards' arrest for DUI.
An exception to the warrant requirement is the tcautomobile
excepti~n,~~
which requires the existence of probable cause to
search and the presence of exigent circumstances, that is, that it
was not practicable under the circumstances to obtain a warrant.
State v. Allen (1992), 844 P.2d 105, 49 St.Rep. 1130, 1131. We
first address McCarthyls claim concerning the automobile itself.
McCarthy "bears the burden of proving not only that the
search . . . . was illegal, but also that he had a legitimate
expectation of privacyw in the automobile. Rawlings v Kentucky
.
(l98O), 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633,
641. A person is protected from search and seizure only if it is
reasonable to expect privacy under the surrounding circumstances.
City of Billings v. Whalen (1990), 242 Mont. 293, 790 P.2d 471.
McCarthy offered no reasons nor foundation for his claim of privacy
in the auto. The car was on a public highway, was involved in a
DUI and belonged to the father of the driver. Under these
circumstances, we conclude that it was not reasonable for McCarthy
to have any expectation of privacy in the auto itself, nor has he
offered proof of any.
However, under certain circumstances, McCarthy could have had
a different expectation of privacy in his jacket which was found in
the car. Since McCarthy has claimed ownership of the article
seized, the jacket, we review the circumstances of this case to see
if police had authority to make a warrantless search of McCarthyls
jacket . See, W. Ringel, Searches & Seizures. Arrests &
Confessions, 511.7, pp. 1156-57, (1992).
In its conclusions of law, the District Court determined that,
under the automobile exception, Officer Swingley had probable cause
to search the car including McCarthylsjacket after being told that
there was a pot pipe in the car. Because the District Court
determined that Officer Swingley had probable cause, it denied
McCarthyPsmotion to suppress the evidence. We review conclusions
of law by the District Court as to whether the court's
interpretation of law was correct. Steer Inc. v. Dept. of Revenue
(1990), 245 Mont. 470, 803 P.2d 601.
Warrantless searches are per se unreasonable under the Fourth
Amendment of the United States Constitution. Katz v. United States
(1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. Both federal
and state law acknowledge certain specific exceptions to the need
for a warrant. California v. Acevedo (1991), - U.S. , 111
S.Ct. 1982, 114 L.Ed.2d 619; State v. Evjen (1988), 234 Mont. 516,
765 P.2d 708. One of those exceptions is known as the automobile
exception. Carroll v. United States (l925), 267 U.S. 132, 45 S.Ct.
280, 69 L.Ed. 543. The automobile exception has been adopted by
this Court in State v. Speilmann (1973), 163 Mont. 199, 516 P.2d
617.
The history of the automobile exception to the prohibition
against warrantless searches has been long and varied. The
exception was initially recognized as an attempt to enable
authorities to stop the transport of illegal liquor during the
Prohibition Era. E. Wedlock, Car 54--How Dare You!: Toward a
Unified Theorv of Warrantless Automobile Searches, 75 Marquette Law
Review 79 (1991). Since that time the exception has been broadened
but remains clearly delineated by specific parameters, particularly
in Montana.
In the 1988 case of Evien this Court concluded that an
automobile may be searched by police without a warrant where there
is probable cause to believe the automobile's contents offend
against the law. Evien, 234 Mont. at 520, 765 P.2d at 710. In
that case the Court pointed out that the resolution of the case did
not depend upon whether the officers had made an actual arrest, but
upon whether the officers had probable cause to search the motor
vehicle without a warrant pursuant to the "probable cause
exception." Evien, 234 Mont. at 519, 765 P.2d at 711. In Evien
the Court determined that the officer had specific information from
a reliable informant that she had been in the pickup, saw drugs in
the pickup and described three persons who had arrived in the
truck. The information given by the informant was confirmed when
three persons did approach the truck. The Evien Court concluded
there was probable cause to search the truck, stating:
There is no question that Officer Phillips had probable
cause to search the truck at that time. The alternatives
were to hold the truck until a magistrate or judge could
issue a search warrant, or allow the three persons to get
into their truck and drive away with the contraband
evidence. Because the officer had probable cause to
search the vehicle, the search was not unreasonable under
the Fourth Amendment, even though an actual arrest of the
defendant had not been made.
m, 234 Mont. at 520, 765 P.2d at 711.
In the 1992 case of Allen, we quoted from the U.S. Supreme
Court case of California v. Acevedo (1991), - U. S. -I 111 S.Ct.
1982, 114 L.Ed.2d 619. In Allen, we agreed with the Acevedo
analysis of closed containers found during an automobile search:
We conclude that it is better to adopt one clear-cut rule
to govern automobile searches and eliminate the warrant
requirement for closed containers set forth in Sanders.
Allen, 844 P.2d at 110; citing Acevedo, 111 S.Ct. at 1986. We
concluded in u, do
as we here, that the police may search
without a warrant if their search is supported by probable cause.
Allen, 844 P.2d at 110. That searoh includes any closed containers
found in the automobile.
Here Officer Swingley had come to the scene of an automobile
accident in which a passenger had been seriously injured. He
arrested the driver of the vehicle on a charge of DUI. Officer
Swingley was then informed by defendant that there was a pot pipe
in the car and defendant helped Officer Swingley look for the pot
pipe. In the course of that search, the officer observed a plainly
visible baggie protruding from the jacket. Because the pot pipe
was not found in the gear shift area in the car, it was reasonable
to assume that it could be in the jacket; and in addition, the
baggie suggested the possibility of the presence of marijuana.
Applying the standards of Evien and Allen, we conclude Officer
Swingley had probable cause to search the vehicle without a
warrant; therefore, Officer Swingley could searchMcCarthyvsjacket
as well as any other container located within the vehicle.
McCarthy relies on a Supreme Court case to argue that the
police could not search his jacket without a warrant. Contrary to
McCarthy8s arguments, the U.S. Supreme Court has expressly
overruled Robbins v. California (l98l), 453 U.S. 420, 101, S.Ct.
2841, 69 L.Ed.2d 744, upon which he relies so heavily. See United
States v. Ross (l982), 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d
572. The Robbins reasoning states that a container in a vehicle
must clearly announce its contents. Robbins, 453 U.S. at 427-28.
The second consideration concerning a warrantless search is
exigent circumstances which are those circumstances where it is not
practicable to secure a warrant. Allen, 844 P.2d at 109. When the
automobile exception was first created, exigent circumstances meant
that the vehicle was movable, as in Allen, thus endangering
preservation of the fruits of a crime. Today, certain authorities
suggest a "totality of the circumstances" approach to the
appropriateness of a warrantless search. J. Hall, Search and
seizure, 5 14:3 (1992). We therefore conclude that exigent
circumstances should be considered on the Iftotality of
circumstances." We have stated that although still jealously
limited in Montana, exigent circumstances are not absolutely
limited. State v. Dess (1982), 201 Mont. 456, 655 P.2d 149.
Police may need to consider not just the mobility of the vehicle,
but the possible destruction of evidence, the safety of police
officers, emergency situations, and the possible gravity of the
crime committed. J. Hall, Search and Seizure, 9 14:3 et seq.
Also, see Allen.
In Allen, we found exigent circumstances to be the need to
ensure the safety of police at the roadblock due to Allen's
dangerous reputation, the mobility of the vehicle, and the possible
insufficient time to obtain a warrant.
Here, Officer Swingley had one intoxicated person in custody,
another one had indicated a pot pipe was somewhere in the car and
a third person had been seriously injured and life-flighted from
the scene. Unlike in Allen, the car here was not moveable. But
the alleged pot pipe certainly was; and not being in custody,
McCarthy could easily have removed it as well as any other evidence
associated with the pot pipe or the accident in general. We take
judicial notice that it is approximately one hour from the scene of
the accident to Helena. Therefore, both the jail and appropriate
authority for obtaining a warrant were an hour away. Had Officer
Swingley taken the intoxicated driver to jail and then gone to get
a warrant, McCarthy would have been left at the scene; the evidence
which Swingley suspected may be present could have been removed or
destroyed by McCarthy unless the car had already been towed. We
conclude it was impracticable for Swingley to stay at the scene
until the car was towed. Therefore, the possibility existed that
McCarthy, or the real owner of the automobile, could have removed
evidence easily after officers left the scene. Further, the car
was on a public road, anyone could have removed evidence from the
car had officers left before it was towed.
We conclude that possible destruction of evidence and the
emergency nature of the situation constitute exigent circumstances
under the facts of this case.
Because the District Court correctly determined that the
search performed by authorities in this case was appropriate under
the automobile exception, we do not find it necessary to consider
the appropriateness of a search incident to an arrest under the
facts of this case as the State argues.
We finally conclude that taking all the facts of this case
into consideration, both probable cause and exigent circumstances
existed for a warrantless search under the automobile exception.
We hold that the District Court did not err in denying defendant's
motion to suppress the evidence on the basis of an illegal
warrantless search.
II
Did the District Court err by refusing to suppress evidence
found upon McCarthyrs person at the time of his booking because
such evidence was fruit of the poisonous tree?
10
McCarthy argues that because the marijuana found in his jacket
was illegally seized, his arrest was illegal and anything removed
from his person during booking is fruit of the poisonous tree.
City of ~ i l l i n g sv. Whalen (l99O), 242 Mont. 293, 790 P.2d 471.
Because we have determined that the search of the automobile and
the jacket were appropriate under the automobile exception to
prohibition against warrantless searches, there is no basis to
apply the doctrine of the fruit of the poisonous tree, We hold
that the D i s t r i c t Court did n o t err i n refusing to suppress such
evidence.
Aff inned.
Justices
Justice Karla M. Gray dissenting.
I respectfully dissent from the majority opinion.
In my dissent in State v. Allen (Mont. 1992) , 844 P.2d 105, 49
St.Rep. 1130, I expressed my concerns regarding this Court Is new
interpretation of the "exigent circumstancesw test; in addition, I
questioned the Court's record-based assertions. I reiterate those
concerns and questions here. The majority s purported reliance on
the cardinal constitutional principle that warrantless searches are
per se unreasonable rings hollow indeed in light of its continued
broadening of the automobile exception. I cannot agree.
With regard to the majority's analysis of the probable cause
prong of the automobile exception to the warrant requirement, I
disagree totally with the majority that it was llreasonableto
assumeM that the pipe was in the jacket because the pipe was not
found where McCarthy thought he had seen it. This "reasonable
assumption" is the creation of the majority and not of the officer
at the scene. Indeed, Officer Swingley did not testify or even
suggest that he removed the baggie from McCarthyfs jacket as part
of a search for the pipe; he merely saw the baggie, assumed based
on his training that it might contain marijuana, and removed it
from the jacket.
I also disagree with the majority's analysis of the "exigent
circumstance^^^ prong. Its construct that McCarthy could have
removed or destroyed the evidence is belied by the record. Officer
Swingley testified that McCarthy had access to the vehicle before
12
the arrival of law enforcement personnel and, of course, during the
time that he made a limited search for the pot pipe in Swingley's
presence. Officer Swingley also testified that, after the arrival
of law enforcement personnel, he was allowing access to the vehicle
only by them or emergency medical personnel. In addition, the
majority's conclusion that it was impracticable for Officer
Swingley to remain at the scene is irrelevant, since the record
reflects that a Lewis and Clark County deputy sheriff also was at
the scene. In this regard, the majority's statements that either
McCarthy, the owner of the vehicle or "anyone" could have removed
evidence from the car had officers left before it was towed
constitute a speculative spinning out of potential problems which
simply are not supported by the record before us, particularly
given the presence of Deputy Sheriff Weisner. Under these facts,
I do not believe the "exigent circumstances~~test is met:
therefore, it is my view that McCarthytsconstitutional right to be
free from unreasonable searches and seizures was violated.
My most fundamental concern with the majority opinion,
however, is this Court's apparent intention to continue to broaden
the automobile exception to the warrant requirement to cover any
possible set of facts. It accomplishes this objective by (1)
accepting and adopting the United States Supreme Court's
pronouncements of federal constitutional law in the context of a
challenge brought under both the United States and Montana
Constitutions; and (2) adopting the ttsuggestionll
of "certain
authorities1'--here,a treatise by J. Hall--for the concept that it
is appropriate under the Montana Constitution to overlay a
"totality of circumstances" standard onto the "exigent
circumstancesw test. Such an approach is a far and, in my view,
unwarranted cry fromthe constitutional standard enunciated by this
Court in State v. Sawyer (1977), 174 Mont. 512, 571 P.2d 1131.
In considering challenges under the Montana Constitution to an
inventory search of a vehicle in Sawver, this Court stated that
"[ilt is axiomatic that a search must comport with state and
federal constitutional law." Sawver, 571 P.2d at 1133 (emphasis
added). We went on to conclude that it was not necessary to
consider the Fourth Amendment to the United States Constitution,
"because we view the Montana Constitution to afford an individual
greater protection in this instance than is found under the Fourth
Amendment . . . . Sawyer, 571 P.2d at 1133. We continued by
quoting both the individual right to privacy section and the search
and seizure section of the Montana Constitution, stating that the
inventory search at issue was a "significant invasion of individual
privacy." Sawyer, 571 P.2d at 1133. Interestingly, we noted that
while an automobile and a home may differ for constitutional
purposes, [t] he word lvautomobilelr not a talisman in whose
is
presence the Fourth Amendment fades away and disappears. Sawver,
571 P.2d at 1133 (citations omitted). On the basis of the
significant invasion of individual privacy inherent in the
inventory search, we held the State to the "reas~nableness~~
and
"compelling state interestw standards of the Montana Constitution
and affirmed the district court's suppression of the evidence.
In the case now before us, the word "automobile1'magically has
become the talisman before which constitutional prohibitions
against unreasonable searches fade away and disappear. While the
majority is willing to walk away from this Statels constitution and
its significant protections, I am not. In addition to my
conclusion that the facts of this case constitute a violation of
the constitutional guarantee against unreasonable searches on a
stand-alone basis, I would apply the Montana ~onstitutionls
combined privacy right and prohibition against unreasonable
searches to McCarthy ' s jacket under the facts of this case. To me,
it is neither logical nor supportable that McCarthyFs privacy
interest in his jacket, and the protection to which he and the
jacket would have been entitled had he been wearing it, must give
way to an automobile wexceptionl*
now so broad as to swallow the
warrant requirement altogether, given Sections 10 and 11 of Article
I1 of the 1972 Montana Constitution,
Like the majority, I am mindful of the pitfalls faced by law
enforcement officers on the front line in attempting to meet
constitutional requirements in this difficult area of searches.
Those efforts are undertaken in good faith in the face of practical
and often dangerous constraints. In addition, I understand the
appeal of "bendingtt
the constitution--particularly in these Itlaw
and orderv1days--when those involved are or may be offenders
against the law. My view, however, apparently not shared by the
majority, is that to undermine specific constitutional protections
in one instance is to weaken and make vulnerable the full panoply
of constitutional protections to which each of us is entitled in
our daily lives.
Justices Terry N. Trieweiler and William E. Hunt, Sr., join in the
foregoing dissent of Justice Karla M. Gray.