No. 8 6 - 5 5 0
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DAVID HOLZAPFEL,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Arthur D. Agnellino, Missoula, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Marc Racicot, County Prosecutors Services, Helena
Joe Roberts, Asst. Atty. General, Helena
Harold Hanser, County Attorney, Billings, Montana
Submitted on Briefs: Aug. 20, 1 9 8 7
Decided : January 14, 1958
Filed: TAN1 4 1988;
Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
Defendant, David F. Holzapfel, appeals his conviction of
two counts of accountability for the criminal sale of
dangerous drugs (felony) in the Thirteenth Judicial District,
Yellowstone County. Holzapfel was sentenced to 20 years on
each count, the sentences to be served concurrently, with the
last ten years suspended in lieu of restrictive probation.
We reverse and remand for dismissal of Count I (hereinafter
referred to as the Motel Count) and affirm as to Count 11
(hereinafter referred to as the Apartment Count).
Defendant raises five issues on appeal:
1. Whether the District Court erred in admitting into
evidence the results of a post-arrest, nonconsensual,
warrantless search of defendant's wallet?
2. Whether the fruits of a warrantless search of
defendant's hands after arrest with an ultraviolet light are
admissible?
3. Whether it was error to instruct the jury that the
State's witness was an accomplice of the defendant as a
matter of law?
4. Whether there existed sufficient corroboration of
accomplice Mohland to support conviction on the Motel Count?
5. Whether there is sufficient credible evidence to
support defendant's conviction on the Apartment Count?
The facts relevant to this appeal are as follows:
Motel Count: On July 16, 1985, an undercover agent for
the Montana Criminal Investigation Bureau, Doug King,
contacted John Mohland in a Billings bar. While meeting with
Mohland, arrangements were made by King to purchase an ounce
of cocaine through Mohland for $2,200.
On July 19, 1985, King met Mohland at the same bar. The
two men drove to a Thrifty Scot Motel where King waited in
Mohland's truck while Mohland went inside the motel. Mohland
returned to the truck in a short time stating that the person
whom he was seeking was not there. Mohland and King came
back to the Thrifty Scot Motel later that evening. Again,
Mohland took King's $2,200 and entered the motel while King
waited outside in the truck. Mohland returned from the motel
with a baggie containing white powder purported to be
cocaine. The two men separated and King turned the alleged
cocaine over to a police agent.
Trial testimony shows that David Holzapfel, address 3930
Victory Circle, Billings, Montana, was registered at the
Thrifty Scot Motel on July 19, 1985. The record states that
Holzapfel was staying at the motel for a few days because of
an argument between he and his wife.
Apartment Count: On July 23, 1985, King again contacted
Mohland at a Billings bar. On this date King asked Mohland
to help him purchase 4 ounces of cocaine. As a result of
this meeting King met with Mohland at a designated location
on July 25, 1985. They drove in Mohland's truck to Victory
Circle, a Billings apartment complex. King gave Mohland
$8,400 to purchase the drugs. The money had been dusted with
invisible detection powder which shows up only under
ultraviolet light. Mohland took the money and disappeared
into Building 3930. An agent stationed outside of the
complex as part of a surveillance team testified that he saw
Mohland at the door of Apartment 18 in Building 3930. There
were approximately 12 officers attempting to completely
surround the apartment buildings for a 360° surveillance.
After approximately ten minutes, Mohland returned to
King's location and gave him a baggie containing a white
substance which was later identified as cocaine. Police
agents and officers surrounded the vehicle and Mohland was
arrested.
Following Mohland's arrest, an officer of the Billings
police department and two special agents proceeded to
Apartment 18 in Building 3 9 3 0 . No one answered the door to
Apartment 18 when they knocked so the officer kicked the door
open.
Although the agents and officer did not have a search
warrant at the time they kicked the door to Apartment 18
open, they testified that because no one was observed leaving
the apartment or the apartment building they believed the
suspected drug seller was inside. They apparently believed
that they needed to get inside quickly to preserve any
evidence in the apartment.
The only people inside Apartment 18 were a woman and a
baby, later identified as Esther and Jennifer Holzapfel,
David Holzapfel's wife and infant daughter. However, one of
the agents testified that Esther Holzapfel told the police
that her husband had just left the residence. The apartment
was secured until a search warrant was obtained approximately
three hours later. The search warrant was obtained in the
name of Esther Holzapfel for the apartment of Esther
Holzapfel. The search revealed books about drugs and drug
manufacturing, a scale, plastic baggies, plastic vials and
other alleged drug paraphernalia.
Around 3 : 3 0 or 4 : 0 0 that afternoon, while the police
were waiting for the search warrant, David Holzapfel appeared
at the apartment with a friend. The friend, Harold C. James,
Jr., testified that he had been with David Holzapfel since
approximately noon of that day, July 25, 1985. However, on
cross-examination James indicated that Holzapfel may have
arrived at least two hours after noon. Holzapfel supposedly
came to James' house to solicit his help in moving some heavy
furniture. After watching T.V. and talking for "a while"
they proceeded to Apartment 18, in Victory Circle where
defendant lived with his wife, Esther Holzapfel and their
daughter. When confronted at the apartment door and denied
entrance, David Holzapfel walked away from the apartment
complex. James was retained and questioned for approximately
2 to 3 hours.
At the time of his arrest, John Mohland told the police
that David Holzapfel had sold him cocaine on July 19 at the
Thrifty Scot Motel and on July 25 at Apartment 18, Building
3930, Victory Circle. On July 25, David Holzapfel called an
attorney, Allen Beck, and requested Beck to find out if a
warrant for his arrest had been issued. Beck talked with the
Yellowstone County Special Deputy County Attorney and made
arrangements with him to have David Holzapfel arrested at
Beck's office the following day.
David Holzapfel was arrested at Allen Beck's office on
July 26, 1985. Special agent McKay transported Holzapfel to
the Yellowstone County Jail where he was booked. Without
obtaining a search warrant, Agent McKay took Holzapfel's
wallet from the jailer and examined it under an ultraviolet
light. McKay testified that in the wallet he found "apparent
traces of invisible flourescent detection powder."
Immediately after searching the wallet, agent McKay searched
defendant's hands with the ultraviolet light. He found
traces of the detection powder on the knuckle of defendant's
right ring finger.
At trial Mohland testified as the State's witness. He
claimed that David Holzapfel sold to him for Doug King one
ounce of cocaine on July 19, 1985, at the Thrifty Scot Motel,
and 4 ounces of cocaine on July 25, 1985, at Apartment 18,
Buildinq 3930, Victory Circle. The District Court instructed
the jury that Mohland was Holzapfel's accomplice as a matter
of law.
Defendant moved the District Court to suppress the
evidence obtained during the search of Apartment 18, Building
3930, Victory Circle and from the warrantless searches of his
wallet and hands while being jailed. All motions were
denied. In spite of objections by defendant at trial, all
the evidence obtained during these searches was introduced.
David Holzapfel was found guilty on both Counts for
accountability for the criminal sale of dangerous drugs
(felony). From these convictions, David Holzapfel appeals.
Issue No. 1
Whether the District Court erred in admitting into
evidence the results of a post-arrest, nonconsensual
warrantless search of defendant's wallet.
Holzapfel argues that Officer McKay's inspection of the
wallet violated his privacy rights under the U.S.
Constitution and the Montana Constitution because McKay did
not obtain a warrant prior to the search. The State responds
that S 46-5-101, MCA, excepts McKay's actions from the
warrant requirement.
Section 46-5-101, MCA, states:
46-5-101. Searches and seizures--when authorized.
A search of a person, object, or place may be made
and instruments, articles, or things may be seized
in accordance with the provisions of this chapter
when the search is made:
(1) as an incident to a lawful arrest;
This statute and the State's interest in conducting a
search, whether it be incident to lawful arrest or an
inventory search, must be weighed against the individual's
expectation of privacy and the other rights afforded
individuals by the U.S. Constitution, Fourth Amendment and
the Montana Constitution, Art. 11, S S 10 and 11.
In balancing the Fourth Amendment interest, the Ninth
Circuit Court of Appeals has held that a "warrantless search
of personal possessions at the station house pursuant to a
valid arrest does not violate one's Fourth Amendment rights."
United States v. King, 472 F.2d 1, 7 (9th Cir. 1972), cert.
denied, 414 U.S. 864 (1973); and see generally Annot., 29
A.L.R.4th 771, 847. In United States v. Ziller (9th Cir.
1980), 623 F.2d 562, cert. denied, 449 U.S. 877 (1980), and
in United States v. Passaro (9th Cir. 1980), 624 F.2d 938,
cert. denied, 449 U.S. 1113 (1981), the Court faced the issue
of the validity of a warrantless investigatory search at the
station house of an arrestee's wallet. In Passaro, the Court
stated that a wallet is an element of clothing, "which is,
for a reasonable time following a legal arrest, taken out of
the realm of protection from police interest." Passaro, 624
F.2d at 944, and see Ziller, 623 F.2d at 563. Thus, the
search of the wallet in this case, as in Ziller and Passaro,
was valid under the Fourth Amendment to the U.S.
Constitution.
The search also satisfies the privacy guarantees of the
Montana Constitution. See City of Helena v. Lamping (Mont.
1986), 719 P.2d 1245, 43 St.Rep. 901. In Lamping we adopted
the Ninth Circuit's distinction between searches of the
person and objects immediately associated with the person,
and searches of possessions within an arrestee's immediate
control. The item searched in Lamping was an open pack of
cigarettes found in the arresteels pocket. We held in
Lamping that a search incident to arrest of the person or of
objects immediately associated with the person requires no
warrant because the arrest reduces the arrestee's expectation
of privacy. Lamping, 719 at 1247. Under Ziller and Passaro,
a wallet is a possession immediately associated with the
person which may be searched pursuant to a search of the
person following a valid arrest. We adopt this
characterization of wallets, and thus McKay's intrusion was
reasonable. Once a search incident to arrest is found to be
reasonable, the State need not show that the evidence was
destructible. State v. Ulrich (1980), 187 Mont. 347, 354,
609 P.2d 1218, 1222.
We affirm admission of evidence showing the presence of
the detection powder in defendant's wallet.
Issue No. 2
Whether the fruits of a warrantless search of
defendant's hands after arrest with an ultraviolet light are
admissible.
The first problem presented by this issue is the
question of whether exposing an arrestee's hand to an
ultraviolet light constitutes a search under the plain view
doctrine. If the exposure does not constitute a search,
Holzapfel does not have a legitimate expectation of privacy
in what may be revealed by shining such a light on his hands.
See State v. Allen (1980), 188 Mont. 135, 612 P.2d 199.
According to one authority, courts have had
"considerable difficulty of whether such use of an
ultraviolet lamp itself constitutes a search." See 1 W.
Lafave, Search and Seizure .§ 2.2(d) at 350 (2d ed. 1987).
However, the "numerical majority have reached the conclusion
that this conduct is not a search in the Fourth Amendment
sense." 1 W. Lafave, Search and Seizure S 2.2(d) at 350 (2d
ed. 1987). One of the courts in the numerical majority,
facing a fact pattern similar to the case currently before
us, stated the rationale for holding that shining an
ultraviolet light may not always constitute a search:
[Dlefendants had no reasonable expectation of
privacy as to the presence of foreign matter on
their hands independent of the expectation of
privacy of their premises which had been
legitimately invaded by the police. The
[flourescent] grease may be compared to a physical
characteristic, such as a fingerprint or one's
voice, which 'is constantly exposed to the public.'
United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct.
764, 35 L.Ed.2d 67 (1973). The Fourth Amendment
provides no protection for what 'a person
knowlingly exposes to the public. ' Katz v. United
States, supra at 351 of 389 U.S., at 511 of 88
S.Ct. It is true that the grease could not be
detected with the naked eye, but then, neither may
a fingerprint be examined until there has been an
application of ink. Furthermore, the examination
was both limited and controlled, affording no
opportunity to learn any information other than
that specifically sought: Have the persons hands
been in contact with treated contraband? In this
respect, t.he examination was more circumscribed
than any eavesdropping, electronic surveillance,
long-distance viewing with binoculars, or even the
use of a flashlight. Also, it involved no personal
indignities or physical discomfort, and was neither
annoying, frightening, nor humiliating.
Commonwealth v. DeWitt (Pa.Super. 1973), 314 A.2d 27, 30-31.
We agree with the rationale of DeWitt and hold that under the
facts of this case, the shining of the ultraviolet light does
not constitute a search so as to implicate privacy rights
under the U.S. or Montana Constitution. The fact that
Holzapfel was validly arrested; that the wallet was properly
seized; and that the light only afforded an opportunity to
learn if Holzapfel's hand may have touched the drug money,
persuades us in this respect.
We affirm admission of evidence showing the traces of
detection powder on defendant's hand.
Issue No. 3
Whether it was error to instruct the jury that the
State's witness was an accomplice of the defendant. as a
matter of law.
Jury Instruction No. 25 read:
You are instructed that John Mohland is an
accomplice in this case. In this respect, you are
to be guided by the following rules of law:
1). The testimony of an accomplice ought to be
viewed with distrust. This does not mean that you
may arbitrarily disregard such testimony, but
should give it the weight to which you find it
entitled, after examining it wit.h care and caution,
and in light of all the evidence in the case.
2). A conviction cannot be had on the testimony of
an accomplice unless he is corroborated by other
evidence which in itself, and without the aid of
the testimony of the accomplice, tends to connect
the defendant with the commission of the offense,
and the corroboration is not sufficient if it
merely shows the commission of the offense or the
circumstances thereof.
The defendant did not object to the instruction as
given. He cannot now argue that it is in error. Failure to
object to the instruction at the trial level amounts to a
waiver of the right to raise an objection on appeal. State
v. Long (Mont. 1986), 726 P.2d 1364, 1369, 43 St.Rep. 1948,
1950.
Issue No. 4
Whether there existed sufficient corroboration of
accomplice Mohland to support conviction on the Motel Count.
The sufficiency of evidence necessary to corroborate
accomplice testimony is a question of law. State v. Standlev
(1978), 179 Mont. 153, 158, 586 P.2d 1075, 1078. The
relevant statutory provision, S 46-16-213, MCA, provides:
Testimony of person legally accountable. A
conviction cannot be had on the testimony of one
responsible or legally accountable for the same
offense, as defined in 45-2-301, unless the
testimony is corroborated by other evidence which
in itself and without the aid of the testimony of
the one responsible or legally accountable for the
same offense tends to connect the defend.ant with
the commission of the offense. The corroboration
is not sufficient if it merely shows the commission
of the offense or the circumstances thereof.
In reviewing the sufficiency of corroborating testimony,
it is viewed in a light most favorable to the State. State
v. Pascgo (1977), 173 Mont. 121, 125, 566 P.2d 802, 805.
However, an accused cannot be convicted solely on accomplice
testimony. State v. Harvey (1979), 184 Mont. 423, 431, 603
P.2d 661, 666.
Corroborating evidence may be circumstantial, but it
must raise more than a suspicion of the defendant's
involvement in, or opportunity to commit the crime charged.
State v. Kemp (1979), 182 Kont. 383, 387, 597 P.2d 96, 99.
The evidence convicting Holzapfel of the Motel Count was
almost entirely the testimony of accomplice John Mohland.
Mohland testified that he purchased one ounce of cocaine
from Holzapfel in the Thrifty Scot Motel while undercover
agent, Doug King, waited outside. No one saw Holzapfel in or
near the motel at the time of the drug sale. No one saw
which room Mohland entered or exited while inside the motel.
The only corroborating testimony Linking Holzapfel to the
Thrifty Scot Motel was that of two motel employees who
testified that David Holzapfel was registered at the Thrifty
Scot Motel on July 19, 1985, the date Mohland purchased the
drugs. The prosecution bears the burden of producing
"corroborating evidence which, of itself and without word or
direction from the accompli.ces' testimony, tends to connect
the defendant with commissi.on of the offense." Kemp, 597
--
P. 3 6 at 99-100.
The corroborating testimony in this situation is
insufficient to convict Holzapfel of the Motel Count, and we
therefore remand for dismissal of the Motel Count.
Issue No. 5
Whether there is sufficient credible evidence to support
defendant's conviction on the Apartment Count.
The test for "the sufficiency of the evidence to support
the judgment of conviction is whether there is substantial
evidence to support the conviction viewed in a light most
favorable to the State. " State v. Stokoe (Mont. 1986) , 730
P.2d 415, 417, 43 St.Rep. 2336, 2338. Substantial evidence
is such "'relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. ' " Stokoe, 730 P.2d at
417 (quoting State v. Kutnyak (Mont. 1984), 685 P.2d 901,
910-911, 41 St.Rep. 1277, 1289).
Substantial relevant evidence in the record supports
Holzapfel's conviction on the Motel Count. Mohland ' s
testimony that Holzapfel sold him the drugs is accompanied by
evidence showing that Holzapfel resided in the apartment
Mohland emerged from in possession of the cocaine, that
Holzapfel was in the apartment at the time of the sale of the
drugs, that Holzapfel touched the money used by Mohland to
buy the cocaine, and that Holzapfel possessed equipment used
to measure and contain illegal drugs.
Thus we affirm the conviction on the Apartment Count.
We Concur:
Mr. Justice William E. Hunt, Sr., dissenting:
I strongly disagree with the majority's affirmation of
the first issue presented. Unfortunately, law in this state,
as well as nationally, has reflected a trend toward
diminishing the individual rights of suspected criminals.
The police procedure in this case goes beyond that which can
be tolerated under the guise of a reasonable inventory search
or a search incident to arrest.
In State v. Sawyer (1977), 174 Mont. 512, 571 P.2d 1131,
a unanimous court held that an inventory search is a
substantial infringement upon individual privacy and
therefore it is subject to the right of privacy provision, as
well as the search and seizure provision of the Montana
Constitution.
The majority agrees that using the ultraviolet light to
look for detection powder in Holzapfel's wallet amounted to a
search. The majority then relies upon Lamping, 719 P.2d
1245, in finding that the search fell within acceptable
privacy limits following a lawful arrest.
To check the contents of defendant's wallet with respect
to the amount of money contained therein would have been
permissible as part of an inventory search. See State v.
Armstrong (1980), 189 Mont. 407, 616 P.2d 341. To inventory
the amount of cash carried on a defendant before
incarceration does not go beyond a person's reasonable
expectation of privacy.
Likewise, the wallet in and of itself would have been
admissible as evidence seized incident to lawful arrest. See
State v. Leavens (Mont. 1986), 723 P.2d 236, 238, 43 St.Rep.
1431, 1434.
David Holzapfel was arrested at his attorney's office,
then taken to the jailhouse to be booked. His wallet was in
the jailor's possession when agent McKay retrieved it and
searched it with an ultraviolet light. It is intellectually
dishonest to call such a procedure a lawful "search incident
to arrest."
The United States Supreme Court has faced a similar
question in Cupp v. Murphey (1973), 412 U.S. 291, 93 S.Ct.
2000, 36 L.Ed.2d 900. It is helpful to see what this
country's highest court said in delineating the boundaries
beyond which law enforcement cannot exceed when conducting
searches and seizures.
In Cupp, the defendant voluntarily appeared at the
police station to be questioned about the strangulation of
his estranged wife. During questioning a dark spot
underneath defendant's fingernail was noticed. Upon request
to look more closely at the spot, defendant hid his hands in
his pockets, rubbed them together and refused to cooperate
with the police. Against defendant's will, the police
scraped under defendant's nail, obtaining what was later
identified as blood, skin and nightgown fibers from his
wife's body. In reversing the Ninth Circuit Court of
Appeals, the United States Supreme Court held that the
substances found during that "search and seizure" were
admissible as evidence even though a search warrant was not
obtained. The court stated that the circumstances "justified
the police in subjecting him to the very limited search
necessary - preserve the highest evanescent evidence they
to
found under his fingernails." (Emphasis added.) 412 U.S. at
296.
Justice Marshall, in a concurring opinion, clarified the
application of the decision. "The scope of search must be
strictly limited in terms of the circumstances that justify
the search." 412 U.S. at 299.
In the recent case of State v. Lamere (Mont. 1987), -
P.2d - , 44 St.Rep. 690, this Court addressed the
permissible scope of search of a defendant or his belongings
prior to incarceration. In Lamere, this Court adopted the
rule from the very recent United States Supreme Court
decision, Colorado v. Bertine, No. 85-889, decided January
14, 1987. Bertine held that inventory searches were
admissible when: 1) police are following standardized
procedures; 2) police are not acting in bad faith or for the
sole purpose of investigation; and 3) by securing the
property, police are protecting it from unauthorized
interference and to protect against claims of vandalism,
theft or negligence. 44 St.Rep. at 693.
In the present case, the record is void of any reason
why a search warrant could not be obtained before defendant's
wallet was searched with an ultraviolet light for traces of
detection powder. Once the wallet was in the jailer's
custody there was no danger of the detection powder being
lost, destroyed or disappearing. The powder certainly was
not endangering anyone by its invisible presence in
defendant's wallet. Nor was the powder an illicit drug or
contraband. Searching with an ultraviolet light is not a
usual, standardized procedure. It is evident that agent
McKay was searching defendant's wallet with an ultraviolet
light solely for the purpose of investigation. A search
warrant should have been required. I believe that the
failure to obtain a search warrant renders the admission of
evidence of fluorescent powder found inside the wallet
reversible error.
Mr. J u s t i c e John C . Sheehy j o i n s in the foregoing d i s s e n t of
Mr. William E . Hunt, S r .
Justice
16