IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
STATE OF MONTANA,
Plaintiff and Respondent,
-VS-
GREGORY JOHN JELLISON,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J. Dirk Reccari, Missoula, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Kathy Seeley, Asst. Atty. General, Helena
Robert Deschamps, 111, County Attorney; Fred Van
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Valkenburg, Deputy County Atty., Missoula, Montana
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Submitted on Briefs: Dec. 22, 1988
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Decided: February 28, 1989
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Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
This is an appeal from a judgment of the Fourth Judicial
District, Missoula County. Appellant Jellison was convicted
by a jury of four felony counts of robbery, § 45-5-401, MCA.
He was sentenced to 40 years on each count plus 10 years on
each count for use of a weapon. He was also designated a
dangerous offender. Jellison contends that the District
Court erred by admitting certain evidence. This Court
affirms the District Court.
The issue is whether the District Court erred when it
denied the defendant's motion to suppress as evidence the
tennis shoes the defendant was wearing when arrested for
robbery and the comparison of the tennis shoes with a print
left at the scene of the crime.
On June 2, 1987, Missoula County sheriff deputies
responded to a radio report of an armed robbery at the Orange
Street Inn. They were parked within sight of the Inn at the
time. Within one minute the deputies observed a large white
and brown automobile turn left onto Orange Street heading for
the 1-90 freeway entrance. This car matched the description
of the automobile used in a previous armed robbery. The
description of the suspect was of a white male in his
twenties, brown hair, stocky build around 5'9" tall. The
suspect was reportedly wearing a plaid shirt, blue jeans and
white tennis shoes.
The deputies stopped the car and arrested the defendant,
Jellison and the driver of the car. The deputies observed a
gun in the front seat partially concealed in a K-Mart bag.
They also observed clothing in the car, including a plaid
shirt. Jellison matched the description of the reported
robber. Jellison was taken to jail where his clothing,
including his tennis shoes, were placed in a property locker.
A detective investigating the crime scene soon after the
crime discovered a shoe print on the counter of the motel.
He went to the jail where he obtained Jellison's shoes from
the property locker. He returned to the motel where he
compared the shoes to the print found on the counter. The
shoes were admitted into evidence at trial as was evidence of
the print comparison. Other evidence included the testimony
of the victim of the Orange Street Inn robbery that Jellison
was the man who robbed her.
Jellison contends that taking his tennis shoes from the
property locker after his lawful arrest violated his Fourth
Amendment right to be free from unreasonable searches and
seizures and his right to privacy guaranteed by Article 11, S
10 of the Montana Constitution. We disagree.
First, the seizure of Jellison's tennis shoes was valid
pursuant to 5 46-5-101(1), MCA, which authorizes 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 - - search - -
when the is made ... as
an incident - -a lawful arrest." (Emphasis added.)
to When a
lawful arrest is made, police may reasonably search and seize
anything within such persons immediate presence "which may
have been used in the commission of [the crime] or which 5
constitute evidence - - offense."
of the (Emphasis added.)
Section 46-5-102(4), MCA. The suspect was reported to be
wearing white tennis shoes at the time of the crime and
Jellison was wearing white tennis shoes when he was stopped
within 90 seconds of the dispatch over the radio reporting
the crime to police on patrol. When Jellison was arrested
and brought to the jail and his clothing and tennis shoes
were taken, they were taken incident to a lawful arrest and
their evidentiary value had already been established by the
victim who described the robber. Jellison's tennis shoes
clearly constituted evidence of the crime even before the
detective discovered a shoe print at the crime scene.
The Fourth Amendment proscribes unreasonable searches,
not reasonable ones. "It is well settled that a search
incident to a lawful arrest is a traditional exception to the
warrant requirement of the Fourth Amendment." State v.
Ulrich (1980), 187 Mont. 347, 351, 609 P.2d 1218, 1220
(quoting United States v. Robinson (1973), 414 U.S. 218, 224,
94 S.Ct. 467, 471, 38 L.Ed.2d 427).
With regard to the Montana Constitution's Right of
Privacy Clause, Art. 11, § 10, the defendant, at the time of
his lawful arrest had less or no expectation of privacy with
respect to his personal property lawfully seized by the
police. A Michigan case, People v. Rivard (1975), 230 N.W.2d
6, articulates this rule:
Once the [object] had been exposed to police view
under unobjectionable circumstances and lawfully
taken by the police for safekeeping, any
expectation of privacy with respect to that item
had at least partially dissipated so that no
reasonable expectation of privacy was breached by
[the police] taking a "second look."
Rivard, 230 N.W.2d at 8.
The United States Supreme Court held in United States v.
Edwards (1974), 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771,
that police may, without first obtaining a warrant, seize
items of evidence incident to a lawful arrest.
The facts surrounding Edwards are quite similar to the
case at bar. Edwards was arrested for attempting to break
into a post office. Shortly after he was incarcerated, it
was discovered during investigation of the crime scene that
the attempted break-in had been made through a wooden window
which had been pried with a crow bar leaving paint chips on
the sill. Police thought it probable that paint chips would
be on the clothing of the perpetrator. Examination of
Edwards' clothing revealed paint chips which matched those
found on the window sill. On appeal, the Sixth Circuit Court
of Appeals reversed the admission of the wood chips into
evidence because a warrant was required "after the
administrative process and the mechanics of the arrest have
come to a halt." United States v. Edwards (6th Cir. 1973) ,
474 F.2d 1206, 1211.
The Supreme Court disagreed:
With or without probable cause, the authorities
were entitled at that point [of arrest] not only to
search Edwards' clothing but also to take it from
him and keep it in official custody. There was
testimony that this was the standard practice in
this city. The police were also entitled to take
from Edwards any evidence of the crime within his
immediate possession, including his clothing. And
the Court of Appeals acknowledged that
contemporaneously with or shortly after the time
Edwards went to his cell, the police had probable
cause to believe that the articles of clothing he
wore were themselves material evidence of the crime
for which he had been arrested. 474 F.2d at
1210.. .. Once the accused is lawfully arrested
and is in custody, the effects in his possession at
the place of detention that were subject to search
at the time and place of arrest may lawfully be
searched and seized without a warrant even though a
substantial period of time has elapsed between the
arrest and subsequent administrative processing, on
the one hand, and the taking of the property for
use as evidence, on the other. This is true where
the clothing or effects are immediately seized upon
arrival at the jail, held under the defendant's
name in the "property room" of the jail and at a
later time searched and taken for use at the
subsequent criminal trial.
Edwards, 415 U.S. at 806-07.
In the present case, police thought it probable that the
print found on the counter could be matched with the shoe
worn by the defendant. Comparison of the print to the shoe
proved to be a match. The defendant had been lawfully taken
into custody and the police followed their standard practice
of taking detainees' clothing. The police were also entitled
to take from the defendant any evidence of the crime within
his immediate possession, including his clothes. There was
probable cause to believe the defendant's clothing would
provide material evidence of the crime for which he was
arrested.
This Court concludes that the District Court did not err
by denying Jellison's motion to suppress the tennis shoes as
evidence and the evidence of comparison to the print. The
shoes were lawfully seized incident to the lawful arrest of
the defendant.
Affirmed.
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We Concur: