No. 93-513
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
Plaintiff and Respondent,
v.
NIKOS PASTOS,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Diana P. Leibinger, Public Defender Office,
Missoula, Montana (argued)
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Micheal S .
Wellenstein, Assistant Attorney General, Helena,
Montana, (aruged) Robert L. Deschamps, 111,
;
Missoula County Attorney, Karen S. Townsend, Deputy
Missoula County Attorney, Missoula, Montana
Argued: September 15, 1994
Submitted: September 15, 1994
DEC 26 1994 Decided: December 20, 1994
FLRRK OF dUI)ALM% $OUR',
STATE OF MONTANA
f
Clerk
Justice James C . Nelson delivered the Opinion of the Court.
This is an appeal from a Fourth Judicial District Court,
Missoula County, memorandum and order, denying defendant Nikos
Pastos' (Pastos) motion to suppress evidence and from the judgment
dated August 30, 1993, adjudging him guilty of the offense charged.
We affirm.
The sole issue on appeal is whether the District Court erred
in denying Pastos' motion to suppress evidence discovered during an
inventory search of his rucksack at the jail following his arrest.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are taken from the State's motion and
affidavit for leave to file the information and from the record on
appeal.
On February 17, 1992, Missoula City Police Officer Ed Gydas
was on routine patrol when he observed Pastos, whom he knew from
previous contacts, walking down South 5th East in Missoula. Gydas
requested a warrants check and learned that there were active city
warrants out for Pastos' arrest. Gydas stopped Pastos, who was
carrying a blue rucksack; after asking him for identification and
checking his birthday, Gydas confirmed that Pastos was the person
wanted on the city warrants. Pastos was arrested and was
transported to the Missoula County Jail for booking. Pastosf coat,
a black bag and the blue rucksack were transported to the jail with
him.
At the jail, a routine booking inventory was conducted with
respect to each of the items of Pastosr property. A green army
2
style pouch in the blue rucksack was found to contain four baggies
of mushrooms. Police Detective Marty Ludeman transported the bags
of mushrooms seized from Pastosr rucksack to the Montana State
Crime Lab. The mushrooms tested positively for hallucinogenic
psilocybin, a controlled substance.
Pastos was charged with criminal possession of dangerous drugs
in violation of § 45-9-102, MCA. He entered a plea of not guilty
and, subsequently, moved to suppress the evidence obtained during
the inventory search of his rucksack at the jail. The District
Court denied the motion.
Pursuant to a plea bargain agreement, Pastos withdrew his not
guilty plea and entered an Alford guilty plea, reserving his right
to appeal the denial of his motion to suppress. The District Court
accepted Pastosr plea, adjudged him guilty of the charged offense,
and deferred imposition of sentence for three years. Pastos
appeals.
STANDARD OF REVIEW
We review the District Court's conclusions of law in ruling on
a motion to suppress evidence to determine whether the trial
court's interpretation and application of the law is correct.
State v. McCarthy (1993), 258 Mont. 51, 55, 852 P.2d 111, 113;
Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75,
803 P.2d 601, 603.
DISCUSSION
In this case we are called upon to determine whether a routine
inventory search of an arresteels possessions conducted at the
station house in conjunction with the booking process and in
accordance with the law enforcement authority's standard
administrative policy or procedure, passes muster under the Montana
Constitution.
In contending that such searches are unlawful, Pastos argues
that Sections 10 and 11 of Article I1 of the Montana Constitution
provide Montana citizens with a more expansive right of privacy
than that afforded by the Fourth Amendment of the federal.
constitution or the penumbrae of the various amendments to the
federal constitution. According to Pastos this broader right of
privacy was violated by the search of his rucksack after he was
placed in jail. Pastos contends that his right to privacy
outweighs any governmental interest in the search of his rucksack,
and that, therefore, this Court should order the trial court to
suppress the evidence obtained by the police during the search.
Pastos argues that our decision in State v. Sierra (1985), 214
Mont. 472, 692 P.2d 1273, is dispositive of the legal question
presented.
The State counters that the District Court did not err in
denying Pastos' motion to suppress the evidence discovered during
the inventory search because there is a compelling state interest
in conducting such searches which outweighs Pastos' privacy
interest. Moreover, the State asserts that State v. LaMere
(1987), 226 Mont. 323, 735 P.2d 511, a more recent case, and the
case relied upon by the District Court in making its decision,
overruled Sierra by implication and that under the principles
enunciated in LaMere, the search was proper.
In discussing the question on appeal, we note, at the outset,
that no evidence was presented to the District Court that the
search of Pastost possessions was initiated for the purpose of
discovering the fruits of other crimes or to gather evidence of the
offense for which he was arrested. In fact, Pastos admitted during
oral argument that his was a routine inventory search conducted at
the station house pursuant to the law enforcement authority's
standardized police administrative procedure applicable to all
persons arrested. We underscore that fact and emphasize that our
opinion here is limited to those type of searches only.
We begin our analysis by setting forth the two sections of
Article XI of the Montana Constitution which are implicated here.
Section 10 provides:
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 provides:
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.
Since a search and seizure was involved in this case, Section
11, is, obviously, pertinent. Notwithstanding, on appeal, Pastos
argues that the search and seizure conducted here was unlawful in
that his right of privacy under Section 10 was violated. In
support of that argument he relies on our prior cases that have,
for the most part, dealt with inventory searches in the context of
Section 10. Accordingly, in view of the posture in which the
question of law to be decided is presented to us, we will,
likewise, focus our analysis in this opinion on Article 11, Section
10.
In discussing Montana's constitutional right of privacy, we
have heretofore recognized at one and the same time the fundamental
nature of that right, and that the right is not absolute under all
circumstances. "The right of individual privacy is a fundamental
constitutional right expressly recognized as essential to the well-
being of our society. The constitutional guarantee of individual
privacy is not absol~te.~~
State, Etc. v. District Court, Etc.
(l979), 180 Mont. 548, 555-56, 591 P.2d 656, 660. By its terms,
Section 10 provides that the right of individual privacy shall not
be infringed without a showinu of a comvellinu state interest.
Art. 11, Sec. 10, Wont-Const.
We also recognize that when the government intrudes upon a
fundamental right, any compelling state interest for doing so must
be closely tailored to effectuate only that compelling interest.
Zablocki v. Redhail (1978), 434 U.S. 374, 388, 98 S.Ct. 673, 54
L.Ed.2d 618.
Under such analysis, the legal question at issue then becomes:
"Is there a compelling state interest which justifies a routine,
administrative inventory search of the personal property on, or in
the possession of the arrestee at the station house following a
lawful arrest?" We answer this question in the affirmative, and
conclude that, with regard to such searches, the compelling state
interest is the protection of the arrestee, the police, other
inmates, and persons and property in and about the station house
from the harm and potential for harm posed by weapons, dangerous
instrumentalities and hazardous substances that might be concealed
on or in the possessions of the arrestee. There are also other
subordinate interests which support, but which do not, in and of
themselves, justify an inventory search of personal property found
on or in the possession of a lawfully arrested person.
In discussing the compelling state interest which we conclude
justifies the search at issue here, we first must, necessarily,
acknowledge the reality of the times in which we live. There is
little doubt that we live in a violent society. Hardly a week goes
by without news reports of workers, public officials, employees and
other innocent citizens being injured or killed in indiscriminate
assaults in offices, work places, schools, restaurants, courtrooms,
police stations and other private or public institutions. Whether
it be the White House or the doctor's office, sadly, no citizen or
property is, today, immune from attack by the deranged, the
disaffected, the misguided, the terrorist or the zealot.
The reality of violence and the potential for violence in our
society dictates that it is a proper and legitimate concern of law
enforcement officers that an arrestee may have concealed on his or
her person or in his or her possession weapons, dangerous
instrumentalities such as explosives or incendiary devices or
hazardous substances, which could be used to injure the police,
fellow inmates, employees and members of the public in and about
the station house.
That fact was recognized by the U.S. Supreme Court in Illinois
v. Lafayette (1983), 462 U.S. 640, 103 s.Ct. 2605, 77 L.Ed.2d 65,
wherein the court observed:
Arrested persons have also been known to injure
themselves--or others--with belts, knives, drugs, or
other items on their person while being detained.
Dangerous instrumentalities--such as razor blades, bombs,
or weapons--can be concealed in innocent-looking articles
taken from the arresteetspossession.
Lafavette, 462 U.S. at 646. This Court has acknowledged those same
concerns. See, City of Helena v. Lamping (1986), 221 Mont. 370,
373, 719 P.2d 1245; LaMere, 735 P.2d at 512.
We agree with the court in Lafavette, that
[tlhe bare recital of these mundane realities justifies
reasonable measures by police to limit these risks--
either while the items are in police possession or at the
time they are returned to the arrestee upon his release.
Examining all the items removed from the arrestee1s
person or possession and listing or inventorying them is
an entirely reasonable administrative procedure. It is
immaterial whether the police actually fear any
particular package or container; the need to protect
against such risks arises independently of a particular
officer's subjective concerns. Citing United States v.
Robinson (1973) 414 U.S. 218.
Lafavette, 462 U.S. at 646.
Notwithstanding, Pastos argues that:
[plolice do not need to guard against danger from
closed packages with a complete inventory search, either.
To determine what kind of search police should conduct,
we must first determine what danger could possibly lurk
inside an arresteels backpack, luggage, or other closed
container...We must remember we are talking about danger
from items carried in separate packages by ordinary
citizens. I'
We disagree. It is both impractical and unreasonable to
expect law enforcement officers to be responsible for, among the
myriad of tasks to be completed during post-arrest, assessing
whether an arrestee is an "ordinary citizen" or one who is capable
of or likely to be in possession of weapons, dangerous
instrumentalities or hazardous substances which may harm him or
herself or others. The simple fact is the police deal with a wide
variety of people, many of whom are very dangerous and who, as a
matter of course or for some purpose related to a particular
criminal endeavor, conceal weapons, dangerous instrumentalities or
hazardous substances in innocent looking containers such as, for
example, suitcases, rucksacks, purses and wallets. It is both
unrealistic and unsafe for the police to fail to take routine,
administrative steps to protect themselves, the arrestee and others
in the station house from the actual or potential danger such
persons pose.
Pastos , however, argues, [i f an arrestee does carry a weapon
in a separate closed container, that weapon does not pose a threat
to authorities once the item is separated from the suspect.ig
Again, we disagree. While the weapon may not pose a threat while
the arrestee is incarcerated, it cannot be disputed that it only
takes seconds for an arrestee, on his or her release, to open a
closed container, retrieve the weapon and use it against a police
officer or another person in the station house. Moreover, an
explosive, incendiary device or hazardous substance concealed in
the arrestee's possessions poses a continuous threat to the safety
of persons and property while stored on the station house premises.
As stated by Justice Marshall in his concurrence in Lafavette,
joined by Justice Brennan, "[tlhe practical necessities of securing
persons and property in a jailhouse setting justify an inventory
search as part of the standard procedure incident to
incarceration.lV Lafavette, 462 U.S. at 649.
Pastos also asserts that the "less intrusive means rule,"
discussed in State v. Sawyer (1977), 174 Mont. 512, 571 P.2d 1131,
and in Sierra, should be applied to the inventory of an arrestee's
possessions upon his or her incarceration in jail. Pastos contends
that, as a less intrusive means of dealing with the sorts of
potential problems referred to above, the police could have secured
his rucksack for safekeeping, could have inventoried valuable items
found in plain view, could have marked the rucksack in a manner
from which one could determine whether there had been tampering and
then could have placed the rucksack in an appropriate area for
safekeeping during the arrestee's detention.
Keeping in mind that the protection of the arrestee, the
police and other persons in and about the station house from the
potential harm posed by weapons, dangerous instrumentalities and
hazardous substances concealed on or in the arrestee's possessions
is the primary justification for administrative inventory searches,
as a practical matter, there are several problems inherent in the
'Oless intrusive meanstqapproach.
First, if, as pointed out above, the closed container contains
a weapon, it can take but a matter of seconds for the arrestee to
retrieve the weapon and use it against an unsuspecting person.
This concern alone vitiates Pastos' argument that a less intrusive
means of conducting an inventory search will accomplish the State's
goal of safeguarding persons and property in the station house. A
search of a closed container found on or in the possession of the
arrestee & the least intrusive method of alleviating any risk from
weapons and dangerous instrumentalities that may be used by an
arrestee upon his or her release from the jail.
Second, if an arrestee is carrying a concealed bomb, explosive
or incendiary device, there is little, short of a physical search
of the arrestee's possessions, that the police can do to protect
against the potential harm inherent in such a situation. While
Pastos suggested at oral argument that the police could store
prisoners' personal possessions in a bomb-proof room, it is not
likely that Montana police stations and sheriff's offices would
have access to such a room and even less likely that city councils,
county commissioners and taxpayers would be willing to finance the
cost to construct that type of facility. Again, a physical
inventory search is the most practical and least intrusive method
of dealing with the problem.
Third, it is impractical and unreasonable to expect the police
to make decisions on a daily basis about which containers to search
and what, if any, is the least intrusive means available to
inventory an arrestee's personal property on or in his or her
possession. Lafavette, 462 U.S. at 648. "[Ilt would be
unreasonable to expect police officers in the everyday course of
business to make fine and subtle distinctions in deciding which
containers or items may be searched and which must be sealed as a
unit." Lafavette, 4 6 2 U.S. at 648. The potential for danger alone
justifies the inventory of items found on or in the possession of
a lawfully arrested person at the station house. "[A] single
familiar standard is essential to guide police officers, who have
only limited time and expertise to reflect on and balance the
social and individual interests involved in the specific
circumstances they c~nfront.~~
Lafavette, 462 U.S. at 6 4 8 , citing
New York v. Belton (1981), 453 U.S. 4 5 4 . To a certain extent, we
must defer to police departments in their development of
standardized administrative procedures which will best serve to
protect the interests of the arrestee, the police, others
incarcerated in jail, and society at large. Lafavette, 462 U. S. at
648.
While Pastos argues, correctly, that the right of privacy can
only be infringed by a compelling state interest closely tailored
to effectuate that interest, it does not follow that the less
intrusive means rule mandates that the police use some method short
of physically searching the arresteels possessions. The routine,
administrative inventory search of the personal property on or in
the possessions of the arrestee at the police station following
arrest is closely tailored to effectuate the compelling interest of
safeguarding persons and property in the station house from
weapons, dangerous instrumentalities and hazardous substances which
might be concealed in the arrestee's possessions.
Under Article 11, Section 10, an arrestee has an expectation
of and constitutional right of privacy in the personal property on
his or her person or in his or her possessions while at the police
station. However, that privacy interest is not absolute. We
conclude that the State has a legitimate and compelling interest in
protecting, to the extent possible, the safety of the arrestee and
other persons in and about the station house from weapons,
dangerous instrumentalities, and hazardous substances which might
be concealed on or in the personal property and possessions of the
arrestee. We hold that this compelling interest justifies the
routine, administrative inventory search of the personal property
on or in the possession of the arrestee at the police station
following a lawful arrest.
While the State's interest in protecting the arrestee, the
police and other persons in and about the station house from harm
is, alone, sufficient to justify the sort of routine,
administrative inventory search at issue here, the cases also
discuss other purposes which serve to justify--though, we conclude,
to a subordinate extent--such searches. We reiterate those briefly
in the interest of fully discussing this issue.
Courts generally recognize that a state also has an interest
in protecting an arrestee8sproperty by accounting for any money,
articles or items he or she may have in his or her possession at
the time he or she is placed in jail. LaMere, 735 P.2d at 513;
Lamvinq, 719 P.2d at 1247; Lafavette, 462 U.S. at 646. As stated
in Lafavette, If[i]t is not unheard of for persons employed in
police activities to steal property taken from arrested persons. .
. . Lafavette, 462 U.S. at 646. The inventory search is a
reasonable way to ensure the protection of an arresteels property
during his or her detention. Colorado v. Bertine (1987), 479 U.S.
367, 107 S.Ct. 738, 93 L.Ed.2d 739. "Knowledge of the precise
nature of the property help[s] guard against claims of theft,
vandalism, or negligence." LaMere, 735 P.2d at 513, citing
Bertine, 479 U.S. at 372-73. See also State v. Swanson (l986), 222
Mont. 357, 362, 722 P.2d 1155, 1158, (one of the purposes of
inventory searches is the safekeeping of prisoners' property,
citing Lafavette.)
Courts also acknowledge that a former arrestee may bring false
claims for items taken while in the custody of the police. "A
standardized procedure for making a list or inventory as soon as
reasonable after reaching the station house not only deters false
claims but also inhibits theft or careless handling of articles
taken from the arrested person.It Lafavette, 462 U.S. at 646. The
police cannot protect themselves against false claims if they do
not know the extent of the arresteels possessions they have in
safekeeping. See also, Swanson, 722 P.2d at 1158.
In support of his position, Pastos argues throughout his brief
that Sierra is on all fours with and should control this Court's
disposition of the instant case. He also argues that LaMere, which
is in conflict with the principles enunciated in Sierra, should be
overruled. As pointed out above, the State maintains that LaMere
implicitly overruled Sierra and controls the disposition of the
instant case. In view of the apparent conflict in our cases
dealing with the subject of inventory searches, we discuss them
with a view to clarifying our case law on this subject.
We first analyzed a search and seizure issue in light of the
Montana right of privacy, ~rticle11, Section 10, in Sawver. That
case, unlike the present, involved a routine inventory search of
the defendantqs automobile following his arrest and detention on
reckless driving charges. The search uncovered amphetamines under
the driver's seat of the car. Sawver, 571 P.2d at 1132. Rejecting
a Fourth Amendment analysis under South Dakota v. Opperman (1976)
428 U . S . 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000, we, instead,
concluded that the inventory search conducted by the police
significantly infringed the defendant's right of privacy under the
Montana Constitution. Sawyer, 571 P.2d at 1134. We held that
neither protecting the contents of the vehicle for the benefit of
the owner, (where he had the ability to, but had not consented to
the search,) nor protecting the police from claims for lost
property, (where as Ngratuitouslqbailees, the police owed the
defendant only a duty of "slight caref1 protecting his property,)
in
justified the warrantless search. Sawer, 571 P.2d at 1134.
Since Sawver involved the inventory search of an automobile,
we necessarily did not discuss or address the different and more
serious concerns which justify the routine booking search at issue
in the instant case. Instead, our focus in Sawyer was on
protecting t h e defendant s greater constitutional r i g h t of privacy
in the face of a less compelLing need to protect his property in
the hands of the police.
In sierra, the defendant and a friend were arrested by the
Livingston police and were taken to the station house to be
detained until it could be determined whether they were legally in
the United States. During the booking procedure defendant was
ordered to empty his pockets. In doing so he removed a small
quantity of a substance that turned out to be marijuana.
Immediately afterwards, his suitcase, which he carried at the time
of his arrest, was opened to reveal a substantial quantity of
marijuana. Sierra, 692 P.2d at 1275. The trial court ruled that
the marijuana removed from the defendantfspocket was admissible,
while that discovered in his suitcase was not. Sierra, 692 P.2d at
1275.
On appeal, we concluded that a means "less intrusivegtthan
opening the defendant's suitcase was required under the
circumstances; that the police should not have opened the closed
suitcase; and that the search of the suitcase violated the
defendant's privacy interests under Article 11, Section 10, of the
Montana Constitution. Sierra, 692 P.2d at 1275. Citing our
decision in Sawyer and to our application of Article 11, Section 10
in that case, w e , again, required that the police use the less
intrusive means of separating the defendant from his possessions
and cataloging, rather than searching, the arresteels personal
property. Sierra, 692 P.2d at 1276.
Significantly, however, aside from a passing reference to the
"danger from contents of uninventoried packagesw in our rejection
of the Fourth Amendment approach of Lafayette, we did not discuss
or analyze whether the State might, under ~rticleXI, Section 10,
of the Montana Constitution, demonstrate a compelling interest in
protecting the police, the arrestee and other persons in and about
the station house from weapons, dangerous instrumentalities and
hazardous substances concealed in the arresteets personal
possessions, which would, in turn, justify a routine booking
search.
Following Sierra, w e decided Larnpinq. In that case, the
defendant, under arrest at the county jail, was subjected to a
routine booking search of his personal property. While searching
Lamping's person, the jailer pulled out of Lampingts shirt pocket
what appeared to be a crumpled, open cigarette pack. On inspecting
the pack, the jailer recovered a marijuana cigarette, which the
defendant subsequently moved to suppress. Lam~inq,719 P.2d at
1246-47. We distinguished Sierra on its facts noting a difference
"between searches of the person [Lampinql and searches of
possessions within an arresteets immediate control [Sierra].l1
Lam~inq,719 P.2d at 1247.
While Lam~inqinvolved the search of an article of personal
property that the defendant would have been allowed to keep on his
person in his jail cell, rather than an article which the police
would have retained until his release from custody, we,
nevertheless, for the first time acknowledged that li[d]angerous
instrumentalities can be concealed in innocent looking articles
taken from an arrestee1s possession, [and that] [tlhe state has a
compelling interest in protecting prisoners from potential danger."
~ampinq,719 P.2d at 1247. While we did not otherwise discuss or
analyze whether, under Article 11, Section 10, that same compelling
interest might also extend to the protection of the police and
other persons in and about the station house and cover weapons,
dangerous instrumentalities and hazardous substances concealed in
possessions of the arrestee which were to be stored at the station
house until his release, it was unnecessary that we do so under the
facts of that case.
In LaMere, we reversed the trial courtls granting of the
defendant's motion to suppress evidence seized during a routine
inventory search of his person prior to his incarceration at the
county jail. At the station house, following LaMere'e arrest, two
items of personal property were taken from him, were opened, were
searched and evidence seized therefrom. One item was a leather
pouch located in the inside pocket of defendant's jacket; the other
was a bank money bag removed from under the defendant's pants leg.
Both items were found to contain controlled substances. LaMere,
735 P.2d at 511.
In granting the defendant's motion to suppress, the trial
court relied on Sierra. On appeal, we were asked to reconsider our
decision in that case in light of Lafavette; and, sua sponte, we
also raised a then recent case not argued by the parties, Bertine,
an automobile inventory search case. LaMere, 735 P.2d at 512. In
reversing the district court, we held that Lam~inq controlled,
again pointing out that g*dangeraus instrumentalities can be
concealed in innocent looking articles taken from an arresteels
possession and [that] the State has a compelling interest in
protecting prisoners from potential dangers and [in protecting] the
defendant and the officer by accounting for any money the person
has." LaMere, 735 P.2d at 512. We also specifically adopted the
Bertine rationale, that knowledge of the precise nature of (and
securing) the arrestee1s property protected against unauthorized
interference and claims of theft, vandalism or negligence.
Moreover, we observed that "[sluch knowledge also helped to avert
any danger to police or others that may have been posed by the
property.** LaMere, 735 P.2d at 513.
While, as regards the instant case, the State argues that
LaMere is dispositive, we conclude that is not necessarily clear.
If we assume that the two containers taken from LaMere were not
going to be returned to him but were going to be stored until his
release, LaMere is factually more akin to Sierra. If, on the other
hand, the two items were going to be returned to LaMere, then his
case is factually closer to Lamwinq. Our decision does not
indicate the intended disposition of the two articles of personal
property although we concluded that Lamwinq controlled. LaMere, 735
P.2d at 512.
Moreover, we reached our decision in LaMere without any
reference to or analysis of the defendant's right of privacy under
Article 11, Section 10. We simply adopted the rationale of
Bertine, an automobile inventory search case as the justification
for the inventory search of defendant's person and possessions.
Bertine, of course, runs directly counter to our decision in
Sawver, which was an automobile search case and in which we held
that the defendant's Article 11, Section 10, right to privacy, had
been violated by the warrantless inventory search. We did not
overrule Sawver notwithstanding our adoption of the Bertine
rationale. Furthermore, although the State, here concludes (as did
Justice Hunt in his LaMere dissent) that we overruled Sierra in
LaMere, our opinion does not reflect that, if that was our
intention at the time.
Finally, since we did not refer to Article 11, Section 10, in
LaMere, we had no occasion to focus on whether there was any
compelling state interest that justified the inventory search of
the defendant's person and possessions. We simply referenced the
passages from Lam~inqand Bertine mentioned above.
Our decision in State v. Holzapfel (1988), 230 Mont. 105, 748
P.2d 953, followed LaMere. In that case, following Holzapfel's
arrest on an outstanding warrant for drug charges, he was
transported to the county jail and was booked. Without obtaining
a search warrant, a law enforcement officer took the defendant's
wallet from the jailer and examined it under ultraviolet light,
finding traces of detection powder. The defendant's hands were
thereafter likewise examined and traces of detection powder were
found. Holzapfel moved to suppress the results of the post-arrest,
nonconsensual warrantless search of his wallet. Holza~fel,748
P.2d at 109.
In affirming the trial court's denial of the motion to
suppress, we determined that the search was justified as incident
to the defendant's arrest, citing various Ninth Circuit cases, and
that the defendant's constitutional privacy guarantees were
satisfied on the basis of Lam~ins'sdistinction between searches of
the person and objects immediately associated with the person and
searches of possessions within the arrestee's immediate control.
A close reading of Holzawfel, however, leads to the conclusion
that the search at issue in that case was not conducted as a
routine, inventory booking search, but, rather, as a search for
specific evidence of the offense with which the defendant was
charged. Accordingly, and without commenting on the rationale of
HolZaDfel as applied to its facts, we conclude that case has no
application here.
In view of the above discussion of our prior decisions and in
view of our holding in the instant case, we take this opportunity
to clarify our prior case law on the subject of routine inventory
searches. First, as pointed out initially, our decision here is
not applicable to routine inventory searches of vehicles. Because
of the defendant's greater State constitutional right of privacy,
our decision in Sawyer continues to be the law in this State as
regards routine automobile inventory searches where the defendant
has been arrested and his or her vehicle impounded and where there
are no exigent circumstances or other recognized exceptions from
the warrant requirement which justify a warrantless search.
Second, the police may conduct a routine, administrative
inventory search at the station house of the arrestee and of closed
containers on his or her person or in his or her immediate
possession at the time of his arrest. Such a search is authorized
if conducted pursuantto a standardized policy or procedure adopted
by the police and routinely utilized in the booking process. In
Montana, such a search is in derogation of the arresteels
constitutional right to privacy under Article 11, Section 10, but
is, nevertheless, justified on the basis of the compelling state
interest in protecting the arrestee, the police, other inmates and
persons and property in and about the station house from the harm
and potential for harm posed by weapons, dangerous
instrumentalities and hazardous substances which might be concealed
on the person of the arrestee or in closed containers on his or her
person or in his or her possessions.
~hird, to the extent that our decision in sierra is
inconsistent with our opinion here, that case is expressly
overruled to the extent of such incansistencies. Moreover, while
Lam~inqand LaMere are consistent as to result with our decision
here, henceforth, the legal principles set forth in this opinion
shall govern cases involving routine station house booking
searches.
In conclusion and based on our discussion above, we hold that
the District Court1 denial of Pa
s
and is, hereby, AFFIRMED.
We Concur:
Justices
Justice Terry N. Trieweiler dissenting
It's gotten so that between tennis shoes (see State v. Mummey
(1994), 264 Mont. 2 7 2 , 8 7 1 P . 2 d 8 6 8 ) and backpacks, it's just not
safe to leave your house anymore
Nevertheless, Article 11, Section 10, of the Montana
Constitution, provides as follows:
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.
Article 11, Section 11, of the Montana Constitution provides:
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.
These provisions are set forth in this dissent in their
entirety because their clarity of purpose is otherwise lost in the
maze of governmental and judicial rationalizations for their
erosion and eventual elimination. The majority opinion is simply
the most recent example of those ill-founded rationalizations.
It should not be necessary to cite over ten other decisions to
apply these clear provisions to the facts in this case.
I would conclude that there was no compelling state interest
for invading the privacy of the defendant after he had been
arrested and was no longer in control of his property. I also
conclude that there was no probable cause for searching the
defendant's property and that the facts in this case did not
present any legitimate exception to the requirement that before his
effects are searched by governmental officials, probable cause be
shown and a search warrant obtained.
Before further discussion, it is necessary to clarify what
this case is not about. Without foundation, authority, or
reference to anything other than the sensationalized news coverage
provided by the commercial media, the majority opinion takes
judicial notice that:
There is little doubt that we live in a violent society.
Hardly a week goes by without news reports of workers,
public officials, employees and other innocent citizens
being injured or killed in indiscriminate assaults in
offices, work places, schools, restaurants, courtrooms,
police stations and other private or public institutions.
Whether it be the White House or the doctor's office,
sadly, no citizen or property is, today, immune from
attack by the deranged, the disaffected, the misguided,
the terrorist or the zealot.
The majority opinion stands for a new principle of
constitutional law which is that a compelling state interest can be
established based on the majority's interpretation of what they see
on the evening news
Presumably, based on these generalized concerns, a
rationalization could be set forth for the suspension of all
constitutional rights. Certainly, if a backpack brought into a
police station is potentially dangerous, it would be equally
dangerous if brought into a school yard, basketball game, doctor's
office, or any other government building. Based on the majority's
alarm at the general state of affairs in this Country (at least as
reported on CNN), everyone, everywhere should be searched. There
is no way to distinguish the defendant in this case from any other
citizen.
This case is not about someone who came to the police station
making threats. It is not even about someone who expected to come
to the police station.
This case is not about someone arrested for a violent act. It
is not even about someone arrested in the act.
This case is not about someone with a violent history, nor any
history of using weapons. Nor is it about what other members of
the court may have seen on the evening news involving some other
person under other circumstances.
This case is not about anyone who the police had any reason to
suspect might have a bomb, a gun, a knife, or any other weapon in
his backpack.
This case is about someone who was unexpectedly arrested for
failure to pay a city court fine, and who, at the time of his
arrest, was walking down a public street, minding his own business,
but who, unfortunately, did not have enough money to post a minor
bond after his arrest.
This case is about a police station pretext for invading the
defendant's privacy by going on a fishing expedition and digging
through his personal effects without any reason to suspect that the
police needed to do so.
There was no more reason to suspect that the defendant had
concealed weapons, dangerous instrumentalities, explosives or
incendiary or hazardous substances in his backpack than there was
to suspect any other person walking down the street wearing a
backpack. The danger of some unexpected incendiary or explosive
device detonating in a police station was no greater than the
danger of a similar device detonating at any other location where
people carry backpacks.
The majority's rationale for searching the defendant's
backpack applies to every backpack worn by every person at every
location in the country.
The majority reasons that if a backpack contains a weapon, the
arrestee could recover the weapon after his release and use it
against police officers. However, if the arrestee is lawfully in
possession of a weapon, the police have to give it back to him when
he is released anyway. Furthermore, the police have a right to
retain all of defendant's possessions while he is in custody. They
do not need to search the backpack in order to recover weapons that
are inside. Once the backpack was taken from defendant's
possession, the State's interest in regulating the jail environment
was protected, and no further intrusion was necessary.
The majority also discussed the State's interest in protecting
an arrestee's property by accounting for his possessions at the
time he was placed in jail. However, if it is the arrestee's
interest that the State is concerned with, then the arrestee should
have the option of either waiving his right to privacy or assuming
the risk that some of his possessions might be gone when he is
released. The assumption that the State has a greater interest in
protecting the defendant's property than he has himself, impresses
me as a classic example of a pretext for invading someone's
privacy. This transparent justification was best disposed of in
Statev. Sawyer (1977), 174 Mont. 512, 571 P.2d 1131, overruledonother
grounds b State v. Long (1985), 216 Mont. 65, 69, 700 P.2d 153, 156,
y
where we stated:
It would be anomalous to justify a search of an
automobile to be for the owner's benefit, when the owner
is available but does not consent to the search. Surely
the property owner is an adequate judge of the treatment
of the property that would most benefit him.
Sawyer, 571 P.2d at 1134.
The majority's concerns about jailhouse safety and the
well-being of the arrestee were appropriately analyzed by the
Supreme Court of Alaska in Reeves v. State (Alaska 1979), 599 P .2d 727.
That case presented facts nearly identical to those in this case.
The defendant in Reeves was arrested for driving under the influence
of alcohol. However, after his arrest, the arresting officer
learned of an outstanding bench warrant because of Reeves' failure
to appear in connection with a traffic violation. He was
transferred to the police station for sobriety testing where he was
searched prior to incarceration. As a result of the search, an
opaque balloon which contained a brownish colored powdery substance
was removed from his pocket. The contents were examined, and the
police ultimately learned that it was an illegal drug. The issue
decided by the Alaska Supreme Court was whether pre-incarceration
inventory searches, like the one conducted in this case, violated
Article I, Section 14, of the Alaska Constitution, which is similar
to the first sentence in Article 11, Section 11, of the Montana
Constitution.
First, addressing the majority's apparent conclusion that
invasions of privacy are somehow preferable if they are routine,
rather than with a specific intent to discover evidence, the Alaska
Supreme Court stated that:
[Tlhere can be no doubt that a pre-incarceration
inventory procedure such as that followed in this case is
a "search" in the sense that the term is employed in
article I, section 1 4 of the Alaska Constitution. The
qovernmental intrusion inherent in a re-incarceration
inventorv search of an arrestee's person is no less an
intrusion because it is routine in nature. Nor does the
fact that such an inventory is conducted at least in part
for the purpose of securing and protecting the arrestee's
property alter the fact of intrusion.
Reeves, 5 9 9 P.2d at 733 (emphasis added) (footnote omitted)
The Alaska Supreme Court noted that based on interpretations
by the United States Supreme Court, the Fourth Amendment to the
United States Constitution does not prohibit inventory searches,
but in a responsible approach to interpreting and preserving its
own constitutional protections, stated that:
As we have frequently noted, the Alaska constitutional
guarantee against unreasonable searches and seizures is
broader in scope than fourth amendment guarantees under
the United States Constitution, at least in part because
of the more extensive right of privacy guaranteed Alaskan
citizens by article I, section 22 of our state
constitution.
Reeves, 5 9 9 P.2d at 734 (footnote omitted) .
We, likewise, have an extensive right of privacy guaranteed by
the Montana Constitution at Article 11, Section 10.
The Alaska Supreme Court, appropriately began its discussion
by reiterating the fundamental principle of privacy law that "'a
search without a warrant is per se unreasonable unless it clearly
falls within one of the narrowly defined exceptions to the warrant
requirement.' " Reeves, 599 P.2d at 735 (quoting Erickson v. Alaska
(Alaska 1973), 507 P.2d 508, 514). The court then went on to point
out that:
There are two valid justifications for allowing a
pre-incarceration inventory search exception to the
warrant requirement. The first is the institutional
interest in prohibiting the introduction of weapons,
illegal drugs, and other contraband or potentially
dangerous items into the jail environment. The second is
the protection of the arrestee's property and the related
interest of the jail administration in protecting itself
against claims that loss or damage to that property
occurred while the property was under the control of jail
authorities.
Reeves, 599 P.2d at 735.
With regard to the first concern, the Alaska court held that
it is addressed when the arrestee is required to surrender any
items on his possession prior to incarceration, but that that
interest is not furthered by searching those items after they are
taken from the arrestee's possession. The Alaska court held that:
Whatever the contents of the balloon, once the balloon
was removed from Reeves' person the institutional
interest in regulatingthe jail environment was protected
and no further intrusion was necessary.
Reeves, 599 P.2d at 736.
With regard to the second valid concern, which was protection
of the arrestee's property or protecting the State from invalid
claims of damage to that property, the Alaska court noted that:
An arrestee's property can be sufficiently protected
simply by placing it in a "property bag," as was
apparently the practice at the jail involved here, or
other segregated, secure place or container and storing
it in a reasonable manner. If, as the state suggests,
there is some question whether any items of the
arresteels property are particularly fragile or
perishable, or otherwise unamenable to normal storage and
handling, the arrestee could so inform the correctional
officer conducting the search in response to an
appropriate inquiry. However benevolent the state's
intentions in this regard, the possibility that an item
of the arrestee's property might require special care,
handling, or storage cannot serve as a justification for
a general search of the arrestee's possessions.
. . . The state can effectively insulate itself
against fraudulent claims by simply listing by
description any items of property taken from an arrestee;
securing those items in a property bag or other secure
storage container used in the facility, preferably in the
arrestee's presence; and obtaining the arrestee's
signature acknowledging the correctness of the inventory
so taken. If there is any question as to the contents of
any container, the arrestee should be "consulted and
offered the opportunity to request that an inventory be
made of the contents" of such containers. We think the
above procedure and limited search fairly and reasonably
protects the state against fraudulent claims.
Reeves, 599 P.2d at 736-37 (footnotes omitted)
In conclusion, the Alaska court held that pursuant to its
constitutional right to be free from unreasonable searches and
seizures :
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
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 from the arrestee, extend
to a search and inventory of the contents of any object,
closed or sealed container, luggage, briefcase, or
package.
Reeves, 599 P.2d at 737-38.
I agree with these conclusions and observations set forth by
the Supreme Court of Alaska in Reevesv. State. Interestingly, so did
the rest of this Court at one time. See State v. Sierra (1985), 2 1 4
Mont. 472, 692 P.2d 1273 (where we declined to march lock-step with
the same U.S. Supreme Court with which today we gladly march
lock-step.) The only thing that has apparently justified a
reversal of our previous constitutional analysis is a concern for
hidden bombs based on what some of the members of the majority have
observed on television.
If I understand the basis for the majority's conclusion that
there was a compelling State interest to invade defendant's privacy
by searching his backpack, it is that based on news reports of
other violent incidents by other people elsewhere in the country,
there is a reasonable possibility that this defendant, who was
minding his own business when he was removed from the street for
failing to pay city fines, and taken to the police station against
his will and without any prior plan to go there, might have had a
bomb in his backpack which, if stored, could explode and harm the
police. What I do not understand is why the danger presented once
defendant arrived at the police station was any greater than the
danger presented before he arrived.
For example, under the majority's rationale, why wait until
the police and defendant arrived at the police station. Couldn't
the bomb have caused just as much damage if it blew up while in the
police car?
Who should be allowed to open sealed packages that are
inventoried in police stations? Should ordinary desk clerks be
allowed to handle inventory searches, or should special training in
the handling of explosives be required?
What about backpacks being worn at other locations by other
people? In light of what we see on the news, are any of them safe?
If not, should they be allowed?
In short, the possibilities for invading the privacy of
Montana's citizens under the majority's rationale are endless. To
make people in this country really safe we could suspend the entire
bill of rights and then all they would have to worry about is being
safe from the government. If we are going to do that, I wish the
majority would rely on a little better authority than what it has
seen on the evening news.
Since in this case we appear to have a smorgasbord of
precedent from which to choose, I would conclude that the better
reasoned opinions--those that are more consistent with my higher
regard for the State Constitution than the U.S. Supreme Court
apparently has for the Federal Constitution--are our decisions in
Sierra and Sawyer. I would reverse State v. LaMere (1987) 226 Mont . 323,
,
735 P.2d 511, which is poorly reasoned, fails to distinguish prior
inconsistent cases, and does not give proper regard to the greater
right of privacy found in the Montana Constitution.
For these reasons, while I conclude that the District Court's
order is better reasoned than some of our prior cases, and while I
believe it is a correct interpretation of this Court's prior
decisions, I would reverse the order of the District Court which
denies defendant's motion to suppress, and I dissent from the
majority's decision to affirm it.
Justice William E. Hunt Sr., joins in the foregoing dissenting
opinion.
Justice Karla M. Gray, dissenting.
I respectfully dissent from the Court's opinion. while
purporting to recognize the right of individual privacy guaranteed
by the Montana Constitution and that Constitution's guaranteed
right to be free from unreasonable searches, the Court
significantly undermines those rights. Nor do I find support for
the Court's action in our earlier cases. Moreover, it is my view
that none of those cases is inconsistent. Indeed, when read,
applied and distinguished appropriately, those cases compel a
reversal of the District Court's denial of Pastos' motion to
suppress evidence discovered during a routine inventory search of
his rucksack at the jail following his arrest. I note first my
general disagreement with the Court's approach and then briefly
address our earlier cases.
First, I disagree that a compelling state interest was
actually established here. In addition, it is my opinion that the
Court fails to focus on the individual nature of the right to
privacy under the Montana Constitution in addressing whether the
compelling state interest it determines exists for intruding on
this fundamental right is "closely tailoredw to effect only that
compelling state interest, as required by the United States Supreme
Court's Zablocki decision. My point is best illustrated by the
Court's anomalous conclusion that the individual right to privacy
is not violated by a routine inventory search.
In this regard, the Court moves from the constitutionally
guaranteed individual right to privacy to a conclusion that the
routine inventory search is the most practical means of dealing
with the problem it has identified as a compelling state interest.
In other words, the individual right to privacy gives way to a
"practical and routine" approach which takes into account neither
the nature of the item being searched nor the nature of the reason
for the arrest. I cannot understand how such a "practical"
approach comports with either Zablocki's "closely tailored"
requirement or the fundamental rights guaranteed by the Montana
Constitution.
More specifically, I disagree with the Court's extensive
reliance on Illinois v. Lafayette, a case and approach soundly--and
properly--rejected by us in Sierra in favor of the Alaska Supreme
Court's "less-intrusive means" approach in Reeves. No suitable
rationale is offered for this embrace of Lafavette, and no
justification is offered for the Court's retreat from our firm and
repeated stance in refusing to march in lock-step with the United
States Supreme Court where the Montana Constitution calls for more
protection of individual rights than does the U.S. Constitution.
See, m, Sierra, 692 P.2d at 1276; Sawyer, 571 P.2d at 1133.
Lafavette addressed only the Fourth Amendment to the U.S.
Constitution and, therefore, it is not appropriate authority
regarding the enhanced constitutional rights the people of Montana
have provided for themselves in the Montana Constitution.
Finally, I disagree with the Court's view of the "apparent
conflict" in our cases. An abbreviated synopsis of those cases
will suffice to support my conclusion that they compel a reversal
of the District Court here.
Our cases addressing inventory searches of an arresteels
person and belongings maintain a consistent theme. All such cases
differentiate between the search of an arrestee's person and a
search of the contents of separate and closed items merely being
carried by the arrestee--such as luggage, a brief case or a package.
In this regard, Sierra involved a closed suitcase being carried by
the arrestee at the time of his arrest. We properly concluded that
the inventory search of the suitcase constituted a prohibited
intrusion into the arresteels right to privacy under the Montana
Constitution. The facts of that case are nearly identical to those
presently before us.
The subsequent Lam~inq,
LaMere and Holzapfel decisions are not
inconsistent with Sierra. All maintain the differentiation between
inventory searches of the arrestee and inventory searches of items
not found on the person of the arrestee. Larn~inq involved the
search and seizure of a pack of cigarettes taken from the
arresteels person. In upholding the search, we properly
distinguished Sierra on the basis of the differentiation
established therein.
Similarly, LaMere involved an inventory search of the
arrestee's person. The State asked this Court to reconsider
Sierra; we did not do so. Again, as in Lam~inq,we properly
distinguished Sierra based on the differentiation we had
established in that case.
Finally, in Holzapfel, we relied on Lampinq for the
distinction between searches of an arrestee's person and of other
possessions not taken from the arrestee's person to uphold the use
of an ultraviolet light to examine the wallet taken from the
arrestee's person. We concluded that Holzapfel's right to privacy
had not been violated.
I conclude that our cases are not inconsistent. Because the
case presently before us involves a search not of items on the
arrestee's person, but of a separate and closed possession of the
kind before us in Sierra, I further conclude that the routine
inventory search of Pastos' rucksack violated his individual right
to privacy in that any compelling state interest was not met by the
least intrusive means available and was not closely tailored to
meeting any such interest.
I would reverse the District Court's denial of Pastos' motion
to suppress evidence and vacate the judgment finding him guilty of
the offense charged.
Justice William E. Hunt, Sr., dissenting.
I dissent from the majority opinion for the reasons stated in
my dissent in State v. LaMere ( 1 9 8 7 1 , 226 Mont. 323, 735 P.2d 511.
This is another very long step down the road to making Article 11,
Sections 10 and 11, of the 1972 Montana Constitution worthless. I
will not bother to repeat those reasons here, nor comment in any
detail upon the statement of the majority that their opinion is
limited to routine inventory searches conducted at station houses
under standardized police administrative procedures applicable to
all persons arrested. The constitutional protection was for the
benefit of all citizens, and was intended as a mandate prohibiting
intrusion on the privacy of individuals. This prohibition extends
to us all, including law enforcement officials, not just some of
the time, but all of the time, unless there is a compelling state
interest. In my judgment, absolutely no compelling state interest
has been shown here. If there was a compelling state interest to
search the knapsack in this case, then all knapsacks are subject to
search at any time for any reason.
December 20, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Diana P. Leibinger, Esq.
Public Defender's Office
317 Woody St.
Missoula, MT 59802
Hon. Joseph P. Mazurek, Attorney General
Micheal Wellenstein, Assistant
Justice Bldg.
Helena, MT 59620
Robert L. Deschamps, 111, County Attorney
Karen S. Townsend, Deputy
Missoula County Courthouse
Missoula, MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA