                                                                                             March 11 2014


                                          DA 12-0453

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2014 MT 66



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

NINA M. DEMONTINEY,

               Defendant and Appellant.



APPEAL FROM:           District Court of the Twelfth Judicial District,
                       In and For the County of Hill, Cause No. DC 11-030
                       Honorable Daniel A. Boucher, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Wade Zolynski, Chief Appellate Defender, Eileen A. Larkin (argued),
                       Assistant Appellate Defender, Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Mardell Ployhar (argued),
                       Assistant Attorney General, Helena, Montana

                       Gina Dahl, Hill County Attorney, Havre, Montana



                                                   Argued and Submitted: January 29, 2014
                                                                Decided: March 11, 2014


Filed:

                       __________________________________________
                                         Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     Nina Demontiney (Demontiney) appeals from an order of the Twelfth Judicial

District Court, Hill County, denying her motion to suppress and dismiss. We affirm.

                                             ISSUE

¶2     A restatement of the dispositive issue on appeal is:

¶3     Did the District Court err in denying Demontiney’s motion to suppress and

dismiss?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶4     On January 5, 2010, Hill County Sheriff Deputies Stephen Martin and Pete

Seymour responded to a report that two women, one of whom was Demontiney, were

being detained at Wal-Mart after exiting the store with stolen purses. After conducting a

warrant check, the deputies learned that Demontiney had an outstanding city warrant for

$310. The deputies handcuffed both women, searched their persons for weapons, and

escorted them to a patrol vehicle to transport them to the Hill County Detention Center.

Demontiney asked to return to her vehicle in the Wal-Mart parking lot to drop off her

purse; the deputies denied this request. Demontiney’s purse was transported to the

Detention Center in another patrol car.

¶5     At the Detention Center, Officer Eckhardt conducted an inventory search of

Demontiney’s purse and found a plastic Wonder Bread sandwich container containing 39

bags of a white rock-like substance, weighing approximately 21.5 grams in total. He also

found $1,845.00 in cash, two razor blades, a straw, a pill grinder containing a

Hydrocodone pill, and a piece of paper with the following notation: “1 $1,500.00;

                                             2
bundle 2 $2,400.00; coke $2,200.00; and weed $425.00.” The white rock-like substance

tested positively for cocaine.

¶6     The State subsequently charged Demontiney with criminal possession of

dangerous drugs with intent to distribute, a felony, in violation of § 45-9-103, MCA

(Count I), and criminal possession of drug paraphernalia, a misdemeanor, in violation of

§ 45-10-103, MCA (Count II). Demontiney filed a motion to suppress or dismiss, and the

District Court held a hearing on the motion on February 6, 2012. Deputy Seymour and

Officer Eckhardt testified, and Demontiney and the State presented arguments about the

lawfulness of the search. On February 22, 2012, the District Court denied Demontiney’s

motion. During a change of plea hearing on March 27, 2012, Demontiney pleaded guilty

to both counts and expressly reserved the right to appeal the denial of her motion to

suppress and dismiss. The District Court accepted Demontiney’s admission and change

of plea. On May 14, 2012, the District Court sentenced Demontiney to three years,

deferred, for Count I and six months with all but three days suspended for Count II.

¶7     Demontiney timely appealed the denial of her motion. She argues that under these

facts, the State did not have a compelling interest outweighing her right of privacy in her

purse and the closed containers within it. Demontiney further argues that the search was

unreasonable and violated her rights under Article II, Sections 10 and 11 of the Montana

Constitution because the officers conducted the search for an investigatory purpose.

Demontiney requests that we overturn State v. Pastos, 269 Mont. 43, 887 P.2d 199

(1994), and adopt the standard set forth in State v. Sierra, 214 Mont. 472, 692 P.2d 1273



                                            3
(1985), overruled in part, Pastos, 269 Mont. at 57, 887 P.2d at 208, and Reeves v. State,

599 P.2d 727 (Alaska 1979).

¶8     The State counters that the search was permissible under Pastos because inventory

searches are an established exception to the warrant requirement, safety is a compelling

state interest, and the search satisfied the requirements for an inventory search. The State

urges us to reaffirm Pastos.

                               STANDARD OF REVIEW

¶9     When reviewing a district court’s ruling on a motion to suppress evidence, we

determine whether the court’s underlying factual findings are clearly erroneous and

whether the court’s interpretation and application of the law are correct.           State v.

Morrisey, 2009 MT 201, ¶ 14, 351 Mont. 144, 214 P.3d 708 (citation omitted). A court’s

findings are clearly erroneous if they are not supported by substantial evidence or if this

Court’s review of the record leaves us with a definite or firm conviction that a mistake

has been made. Morrisey, ¶ 14 (citation omitted).

                                       DISCUSSION

¶10    Did the District Court err in denying Demontiney’s motion to suppress and

dismiss?

¶11    The Fourth Amendment of the United States Constitution provides the traditional

protections against unwarranted searches; however, Montanans have a heightened

expectation of privacy pursuant to Article II, Sections 10 and 11 of the Montana

Constitution.   State v. Hamilton, 2003 MT 71, ¶ 14, 314 Mont. 507, 67 P.3d 871.

Article II, Section 10 states: “The right of individual privacy is essential to the well-being

                                              4
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.

¶12    “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.” Pastos, 269 Mont. at 47, 887 P.2d at 202.

We have recognized that “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.”   Pastos, 269 Mont. at 52, 887 P.2d at 204.         However, “[t]he

expectations of privacy of an individual taken into police custody necessarily are of a

diminished scope,” a significant factor which the Dissent wholly fails to acknowledge in

its analysis of Demontiney’s privacy interests.      Maryland v. King, ___ U.S. ___,

133 S. Ct. 1958, 1978, 1980 (2013) (citation omitted; internal quotation marks omitted)

(holding that the processing of an arrestee’s DNA sample did not intrude on the arrestee’s

privacy in a way that would make his DNA identification unconstitutional when he was

already in valid police custody for a serious offense supported by probable cause and the

DNA sample was taken as a routine booking procedure for serious offenders).

¶13    When the State intrudes upon a fundamental right, it must demonstrate a

compelling state interest for doing so that is closely tailored to effectuate only that

compelling interest. Pastos, 269 Mont. at 47, 887 P.2d at 202 (citation omitted). In

                                            5
Pastos, this Court concluded that there is a compelling state interest justifying 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. “[T]he 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.” Pastos, 269 Mont. at 47-48, 887 P.2d at 202.

¶14    Demontiney requests that we overrule our decision in Pastos. Demontiney argues

that the Pastos Court should have analyzed inventory searches under Article II, Section

11 because “[t]he heightened protections provided in Article II, Sections 10 and 11

require the State to use less intrusive means of inventory searches for any property in

closed containers that will be stored while an arrestee is in jail and will be returned upon

release.” The State maintains that this argument is unfounded as “it is the operation of

[S]ection 10 upon [S]ection 11 that distinguishes Montana’s jurisprudence from federal

Fourth Amendment rights.”

¶15    In Pastos, this Court set forth Sections 10 and 11, noted that Section 11 was

“obviously” pertinent, and focused its analysis on Section 10 “in view of the posture in

which the question of law to be decided is presented to us.” Pastos, 269 Mont. at 47, 887

P.2d at 202. The fact that the Court focused on Section 10 does not constitute grounds

for overruling the decision. While Article II, Section 11 mirrors the federal Fourth

Amendment, Section 10 has no federal constitutional counterpart and grants Montana

citizens a specific right to privacy. It is the language in Section 10 that is the “unique

                                             6
constitutional language assur[ing] citizens a greater right to privacy and broader

protections.” State v. Hardaway, 2001 MT 252, ¶ 34, 307 Mont. 139, 36 P.3d 900; see

e.g. State v. Bassett, 1999 MT 109, ¶ 42, 294 Mont. 327, 982 P.2d 410 (“Our conclusion

that Bassett had a reasonable expectation of privacy is buttressed by the fact that

Montanans have heightened expectations of privacy, as evidenced by the specific

protection given that right under Article II, Section 10 of Montana’s Constitution.”).

¶16    As we observed in Pastos, there are three problems inherent in the “less intrusive

means” approach that Demontiney urges us to adopt: (1) if a closed container contains a

weapon, an arrestee can retrieve the weapon and use it in a matter of seconds; (2) if an

arrestee is carrying a concealed bomb, explosive or incendiary device, there is little that

the police can do against the potential harm inherent in such a situation short of a

physical search of the arrestee’s possessions; and (3) it is impractical and unreasonable to

expect the police to make decisions on a daily basis about which containers to search and

what the least intrusive means would be in each situation. Pastos, 269 Mont. at 50-51,

887 P.2d at 204. Though we listed these problems, we did not expressly reject the “less

intrusive means” approach but instead concluded that it would be difficult to fashion a

“less intrusive means” of conducting the search of a closed container than opening it. See

Pastos, 269 Mont. at 51, 887 P.2d at 204 (“[I]t does not follow that the less intrusive

means rule mandates that the police use some method short of physically searching the

arrestee’s possessions.”).

¶17    “Although stare decisis is not a rigid doctrine that forecloses the reexamination of

cases when necessary, weighty considerations underlie the principle that courts should

                                             7
not lightly overrule past decisions.” Certain v. Tonn, 2009 MT 330, ¶ 19, 353 Mont. 21,

220 P.3d 384 (quotation marks omitted; internal citation omitted). “Faced with viable

alternatives, stare decisis provides the ‘preferred course.’”    Certain, ¶ 19 (citation

omitted). We decline to overrule a decision that has been in effect for over twenty years

and has provided a bright line rule for law enforcement. Because we still find the

reasoning in Pastos persuasive, perhaps even more so today given the “reality of the

times in which we live,” we reaffirm our conclusion in Pastos that “[t]he routine,

administrative inventory search of the personal property on or in the possessions of the

arrestee[, including closed containers,] 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.” Pastos, 269 Mont. at 48, 51-52, 887

P.2d at 202, 204.

¶18   We must now decide whether this search was valid as an inventory search under

Pastos.   Demontiney argues that her case is factually distinguishable from Pastos

because: (1) her purse was not in her immediate possession; (2) the purse was transported

to the police station separately from her and over her objection; and (3) there was

evidence that the search was conducted for investigatory purposes instead of as part of

routine booking procedure.

¶19   We held in Pastos that property in the “immediate possession” of the arrestee at

the time of arrest may be subject to a valid inventory search. Pastos, 269 Mont. at 57,

887 P.2d at 208. Demontiney’s purse was on the floor next to her at the store when the

                                            8
deputies arrived. Because Demontiney was taken into custody at Wal-Mart, the record

indicates that the purse was in her “immediate possession” at the time of arrest. Thus, it

is immaterial that she objected to the deputies transporting the purse, that the purse was

transported in a separate vehicle, and that the purse was not in her possession at the

station. See State v. Boswell, 804 P.2d 1059, 1062 (N.M. 1991) (“The wallet, although

on defendant’s person at the time of arrest, was not in his possession immediately prior to

his incarceration. However, the concerns underlying the reasonableness of an in-station

inventory search justify the officer’s return to the store to retrieve the wallet and its

subsequent inventory.”).

¶20     Law enforcement officers are not required to individually assess the risk posed by

each arrestee before conducting an inventory search, Pastos, 269 Mont. at 49, 887 P.2d at

203, and an inventory search is valid even if there may be an investigative motive. See

U.S. v. Bowhay, 992 F.2d 229, 231 (9th Cir. 1993) (“[T]he department’s policy was to

search everything; the officer had no discretion. Because of this, the presence of an

investigative motive does not invalidate the inventory search.”). In Illinois v. Lafayette,

462 U.S. 640, 103 S. Ct. 2605 (1983), a unanimous United States Supreme Court agreed

that:

        At the station house, it is entirely proper for police to remove and list or
        inventory property found on the person or in the possession of an arrested
        person who is to be jailed. A range of governmental interests supports an
        inventory process. It is not unheard of for persons employed in police
        activities to steal property taken from arrested persons; similarly, arrested
        persons have been known to make false claims regarding what was taken
        from their possession at the station house. A standardized procedure for
        making a list or inventory as soon as reasonable after reaching the station


                                             9
       house not only deters false claims but also inhibits theft or careless
       handling of articles taken from the arrested person.

Lafayette, 462 U.S. at 646, 103 S. Ct. at 2609.

¶21    The Court went on to observe that dangerous instrumentalities, such as razor

blades, bombs, or weapons, can be concealed in articles taken from the possession of the

arrestee. Lafayette, 462 U.S. at 646, 103 S. Ct. at 2609. For these reasons, the Court

deemed the inventory search “an entirely reasonable administrative procedure.”

Lafayette, 462 U.S. at 646, 103 S. Ct. at 2610.

¶22    The Dissent argues that Demontiney’s property posed no actual danger. Dissent,

¶ 39. Of course, it is easy to make this determination in hindsight. As we noted in

Pastos, however, citing Lafayette, “[i]t is immaterial whether the police actually fear any

particular package or container; the need to protect against [the above-referenced risks]

arises independently of a particular officer’s subjective concerns.” Pastos, 269 Mont. at

49, 887 P.2d at 203 (citing Lafayette, 462 U.S. at 646, 103 S. Ct. at 2610 (citation

omitted)). Though a review of the record suggests there may have been an investigatory

purpose for the search,1 there was clearly a standardized procedure in place providing for

the search of the possessions of all arrestees at the station, and the evidence indicates the

search occurred pursuant to this routine procedure during Demontiney’s booking for the

shoplifting crime. At the jail, Demontiney asked the detention officer if he “was going to

1
  In his report, Deputy Martin noted that Demontiney held her purse tightly “as if she did not
want us to discover what the contents of the purse were.” The prosecutor said Martin “perhaps
[believed] there might have been evidence of another crime by the perpetrator,” but she “[did]n’t
know” and “didn’t ask him.” Moreover, the District Court concluded that the “safety rationale
seems particularly disingenuous in the case at bar as to the containers within Demontiney’s
purse.”
                                               10
search her purse,” and he “said yes, it was standard procedure.” We therefore conclude

that the search of Demontiney’s purse and the enclosed containers was a valid inventory

search.

¶23    Having concluded that this was a valid inventory search under Pastos, we take this

opportunity to clarify the distinction between Pastos and Hamilton. The District Court

stated that “[i]t is very difficult . . . to see why the reasoning and limitations in Hamilton

do not apply to routine post-arrest inventory searches.”         We respectfully disagree.

Hamilton applies to the warrantless search of a lost wallet to determine ownership,

Hamilton, ¶ 46, whereas Pastos applies to “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.” Pastos, 269 Mont. at 52, 887 P.2d at 204. Hamilton’s property posed no

apparent danger; because she was not present either when her wallet was found or when

it was turned in at the station, “there was no risk that Hamilton would pull a weapon out

of her lost wallet.” Hamilton, ¶ 39. Moreover, as there had been no arrest and detention

of Hamilton, she had an expectation of privacy in her wallet “diminished only to the

extent necessary for the police to determine ownership,” Hamilton, ¶ 31, unlike Pastos,

whose expectation of privacy at the station house was more greatly reduced. Given that

there generally is an expectation of privacy and no compelling safety interest when

dealing with lost property, “the least intrusive means possible must be used to identify the

owner of lost property, protect the contents of personal property for the owner, and to

protect the public from claims for missing valuables.”         Hamilton, ¶ 46.     The least

intrusive means are securing the contents of a lost wallet in an evidence bag and storing it

                                             11
in a secure place. Hamilton, ¶ 46. For routine inventory searches, however, the police

are not required to use some method short of physically searching the arrestee’s

possessions. Pastos, 269 Mont. at 51, 887 P.2d at 204.

¶24    The Dissent errs in juxtaposing inventory searches and searches incident to arrest.

“[A]n administrative inventory search differs from [a search incident to arrest] in that its

purpose is not to discover and preserve evidence, but rather, is to protect police and other

prisoners from potential danger and to protect police and the arrestee by creating an

accounting of personal items.” Hardaway, ¶ 53 (citing City of Helena v. Lamping, 221

Mont. 370, 372-73, 719 P.2d 1245, 1247 (1986)).           The inventory search “is best

described as a ‘routine administrative caretaking function,’ as opposed to an evidentiary

or investigatory activity.” Hardaway, ¶ 15 (citation omitted). The underlying purposes

of a search incident to arrest, on the other hand, are: (1) protecting the arresting officer

from attack; (2) preventing the arrestee from escaping; (3) discovering and seizing the

fruits of the crime; or (4) discovering and seizing any persons, instruments, articles, or

things that the arrestee may have used in the commission of or which may constitute

evidence of the offense. Section 46-5-102, MCA.

¶25    Because the searches have different purposes, their scopes also differ. Routine,

administrative inventory searches are closely tailored to effectuate the underlying

purposes of an inventory search when the scope is limited to the property, including

closed containers, in the immediate possession of the arrestee at the time of arrest. See

Pastos, 269 Mont. at 51-52, 887 P.2d at 204.          Anything less intrusive would not

adequately satisfy the purposes of creating an accounting of personal items and of

                                            12
protecting the police, the arrestee, and other prisoners from potential danger. The scope

of a warrantless search incident to arrest—which typically occurs immediately upon

arrest and not at the station house—“must be commensurate with its underlying purpose

of preventing an arrestee from using any weapons he or she may have, escaping, or

destroying any incriminating evidence in his or her possession.” Hardaway, ¶ 40.

¶26    Different outcomes may arise despite seemingly similar facts depending on the

type of search conducted, as the Dissent points out. See Dissent, ¶ 39. The search of the

purse in State v. Graham, 271 Mont. 510, 898 P.2d 1206 (1995), would likely have been

deemed valid had it been conducted as an inventory search pursuant to a routine,

administrative procedure. However, nothing in our opinion in Graham suggests the

existence of a routine inventory search policy at the station where the search was

conducted. In fact, the State argued that Graham’s purse “was properly searched at the

jail as an incident to her lawful arrest.” Graham, 271 Mont. at 513, 898 P.2d at 1208. As

such, the requisites of § 46-5-102, MCA, necessarily governed this Court’s analysis in

Graham. While, as the Dissent asserts, the facts in Graham are similar to the facts here,

the underlying premise for the respective searches was wholly different.

¶27    We “must, necessarily, acknowledge the reality of the times in which we live.”

Pastos, 269 Mont. at 48, 887 P.2d at 202. The “reality of violence and potential for

violence in our society” that we acknowledged over twenty years ago has become more

immediate and pronounced in the intervening years. The Pastos Court’s observation that

“sadly, no citizen or property is, today, immune from attack by the deranged, the

disaffected, the misguided, the terrorist or the zealot,” Pastos, 269 Mont. at 48, 887 P.2d

                                            13
at 202, especially applies to our post-September 11th world. However, safety concerns

are not the only reason to uphold Pastos. From a procedural standpoint, we deem a

standardized inventory search procedure applied uniformly to each arrestee who arrives

at the station preferable to an ad hoc analysis by the officer on duty of every arrestee who

comes through the door. An assessment of each person for the possible risk he or she

might pose would by necessity be quick and subjective, and quite possibly wrong. Such

an approach could also prompt complaints of selective enforcement or even bias. The

routine procedure alleviates these issues, provides guidance to the officers assigned to

perform the inventory search, and protects against allegations of theft or destruction of

property. For all these reasons, we reaffirm our decision in Pastos.

                                     CONCLUSION

¶28    For the foregoing reasons, we affirm the District Court’s denial of Demontiney’s

motion to suppress and dismiss.


                                                  /S/ PATRICIA COTTER

We concur:


/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JIM RICE
/S/ BRAD NEWMAN
District Court Judge Brad Newman
Sitting in for former Justice Brian Morris




                                             14
Justice Michael E Wheat dissents.

¶29    I respectfully dissent. Twenty years ago, Pastos provoked separate dissents from

Chief Justice Gray, Justice Trieweiler, and Justice Hunt. All three dissents exposed

different flaws in the reasoning of Pastos: that it accepted alarmism and anxiety for a

compelling state interest, Pastos, 269 Mont. at 58, 887 P.2d at 209 (Trieweiler, J.,

dissenting) (“The majority opinion . . . is that a compelling state interest can be

established based on the majority’s interpretation of what they see on the evening

news.”); that the Court misinterpreted the plain meaning and precedent of Montana’s

right to privacy, Pastos 269 Mont. at 64-65, 887 P.2d at 212 (Gray, C.J., dissenting); that

the Court’s flawed reasoning could easily swallow the right to privacy, Pastos, 269 Mont.

at 66, 887 P.2d at 213 (Hunt, J., dissenting) (“This is another very long step down the

road to making Article II, Sections 10 and 11 . . . worthless.”). I see the same flaws in

today’s Opinion. I would return to our holding in Sierra that a search must employ the

least intrusive means to serve a compelling state interest that is evidenced by the facts

and circumstances of the case.

A. The Meaning of Article II, § 10 of the Montana Constitution

¶30    Article II, Section 10 of the Montana Constitution states: “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.”

¶31    The heart of this case is the true meaning of the phrase “without the showing of a

compelling state interest.” The plain meaning of “showing” is “the act or an instance of

establishing through evidence and argument; proof.”        Black’s Law Dictionary 1413

                                               15
(Bryan A. Garner ed., 8th ed., West 2007). A showing, therefore, is not an assumption or

a theory that is accepted as true without proof. Rather, a showing involves some reliance

on both argument and evidence to establish or prove a certain thing.

¶32    Section 10 requires specific facts and circumstances to justify a search, and that

requirement is well established in this Court’s precedent. We have interpreted Section 10

to require a totality of the circumstances evaluation of the specific situation in every other

search context; for search warrants, State v. Barnaby, 2006 MT 203, ¶ 46, 333 Mont. 220,

142 P.3d 809; for searches incident to arrest, State v. Cooney, 2006 MT 318, ¶¶ 14-17,

335 Mont. 55, 149 P.3d 554; Hardaway, ¶¶ 58-60 (“Under these facts, there were simply

no exigent circumstances requiring a warrantless search, and the search conducted was

not necessary to guarantee any of the safeguards underlying § 46-5-102, MCA.”); for

consent to search, State v. Clark, 2008 MT 419, ¶¶ 27-28, 347 Mont. 354, 198 P.3d 809

(“The inquiry is dependent upon the facts and circumstances. . . . Indeed, it is possible

that, under certain circumstances, even the owner of property will not have authority to

consent to a search.”); and for searches based on any exigent circumstances. State v.

Stone, 2004 MT 151, ¶ 18, 321 Mont. 489, 92 P.3d 1178. Inventory searches, then, are

an outlier among our decisions.

¶33    This interpretation of Section 10 was established long before Pastos. Even when

Pastos was decided, Chief Justice Gray noted that its rationale “fails to focus on the

individual nature of the right to privacy” and “takes into account neither the nature of the

item being searched nor the nature of the reason for the arrest.” Pastos, 269 Mont. at

64-65, 887 P.2d at 212-13 (Gray, C.J., dissenting). Alaska and Hawaii frame their

                                             16
privacy rights in nearly identical language to our own. Haw. Const. art. I, § 61; Alaska

Const. art. I, § 22.2 Both states rejected inventory searches in the 1970s on the grounds

that “each case of search and seizure without a warrant must turn on its own facts,” State

v. Kaluna, 520 P.2d 51, 60 (Haw. 1974), and that officers “may not further search the

arrestee’s possessions . . . in the absence of a warrant or circumstances which provide the

basis for a more intensive search under another recognized exception to the warrant

requirement.” Reeves v. State, 599 P.2d 727, 736 (Alaska 1979).

¶34    It is evident that Section 10 was drafted with the purpose to require case-by-case

evaluation of specific facts and circumstances justifying the search at issue.         The

delegates had a major concern that a “compelling state interest” would be so broadly

construed that it would consume the right of privacy. Delegate George Harper (Harper)

sought to amend Section 10 to exclude the phrase “because that may be interpreted by

whatever state agency happens to have an interest in invading my privacy at that

particular time.” Montana Constitutional Convention, Verbatim Transcript, March 7,

1972, p. 1682. The delegates approved that amendment, but later became concerned that

the lack of “compelling state interest” would create confusion in this Court. Delegate

Thomas Ask (Ask) reassured the delegates that their concerns were better addressed by

including the language; “[b]y putting these words in, we’re giving direction to the court

how they are going to interpret this. If there’s no compelling state interest, you can’t

invade a person’s right of privacy. And this is going to have to be shown, and this is the

1
  “The right of the people to privacy is recognized and shall not be infringed without the
showing of a compelling state interest.”
2
  “The right of the people to privacy is recognized and shall not be infringed.”
                                            17
direction to the court.” Verbatim Transcript, March 9, 1972, p. 1851. During the debate

over whether a ban on wiretapping should be included in Section 11, the delegates

concluded that wiretapping may be required “in matters involving certain heinous federal

crimes where the situation is such that in those instances we must risk the right of

individual privacy because there is a greater purpose to be served.” Transcripts, p. 1687

(emphasis added). The delegates did not think that wiretapping should be allowed based

on the inherent risk that anyone could commit a heinous federal crime, but rather, based

on specific situations where heinous crime was involved. Section 10 means, and was

intended to mean, that “showing of a compelling state interest” is a limited, case-by-case

examination of the specific interest asserted.

¶35    This is where Pastos and the Court err. Privacy cannot be infringed simply

because a compelling state interest may exist in some other instance. Instead, privacy

may be infringed only when a compelling state interest is shown or proven under the

totality of the circumstances of the instant situation. That “showing” requires reliance on

both argument and evidence. The inventory search here was not based on evidence that

Demontiney was violent or carried a dangerous explosive, and the police here had no

reason to fear any of the fears of today’s majority. Instead, the search is based on the

broad assumption that anyone, in any circumstance, could use a concealed gun or

explosive against police after or during incarceration. That remote risk may be based on

argument, but it lacks evidence based in the facts and circumstances in this case. Nor can

I find proof of that risk in general, and the majority cites to none. News stories about

violence in our country are heart-wrenching, but they are not a blanket excuse for

                                             18
abridging the right to privacy under Section 10’s plain meaning, or its original intent, or

our precedent.

¶36    As a final matter, the Court cites to recently decided federal law for the

proposition that an arrestee has a privacy interest in her belongings, but that those

interests are “diminished.” Opinion, ¶ 12 (citing Maryland v. King, ___ U.S. at ___, 133

S. Ct. at 1978).     We have consistently distinguished federal Fourth Amendment

jurisprudence from the stronger protections embodied in Section 10.                   King’s

“diminished” expectation directly contradicts our holding that “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 possession while at the police station.” Pastos, 269 Mont. at 52,

887 P.2d at 204 (the only exception to this privacy interest is a compelling state interest).

Perhaps unsurprisingly, we have previously rejected a search based on the same facts as

King, holding that a defendant does have a reasonable expectation of privacy during his

arrest. See Hardaway, ¶¶ 57-60 (swabbing for DNA was an impermissible search, as no

circumstances justified the search and arrestee had reasonable expectation of privacy).

B.     Less Intrusive Means

¶37    The majority declines to adopt the “less intrusive means” requirement for an

inventory search, reciting the same objections to the least-intrusive means requirement as

in Pastos. Opinion, ¶ 16. First, the majority fears that an arrestee can easily retrieve and

use a weapon upon being released from incarceration. The risk is very remote that a

random arrestee will be released from incarceration, receive her items, and immediately



                                             19
use those items in a violent attack on police.3 But even if that risk were significant, why

does that logic not apply to searches incident to arrest? There, police must observe

“circumstances that would cause a reasonable person to believe that prompt action was

necessary to prevent physical harm to police” before conducting a search on an arrestee.

Hardaway, ¶¶ 40-41 (quoting Elison, ¶ 56). Certainly, officers are more at risk of having

a gun pulled on them while conducting an arrest, where they are often alone or

outnumbered by their arrestees and the arrestee has a chance of escape through violence.

See Cooney, ¶ 16. But even in this situation of heightened danger, we require a search to

be based on specific facts and circumstances. Yet, in a less dangerous situation back at

the station, we require no articulation of any facts, circumstances, or danger. I cannot

understand how we see a danger in one situation but not the other; dangerous items in an

arrestee’s possession do not become more dangerous after she is separated from them,

processed and incarcerated.

¶38    The contradiction is further highlighted by State v. Graham, 271 Mont. 510, 898

P.2d 1206 (1995), a case factually indistinguishable from this case. There, an individual

was arrested and separated from her purse, but the officer later retrieved the purse and

performed a search incident to arrest because the purse had been in her grab area at the

time of arrest. Graham, 271 Mont. at 512-13, 898 P.2d at 1207. We prohibited that

search because Graham had been separated from her purse, and therefore, there was no


3
  As counsel for Appellant points out, many arrestees are more than happy to be released
from incarceration, and are more likely to feel relief rather than anger or vengeance. It is
during the arrest itself that the arrestee is more likely to use violence in an attempt to
escape police.
                                            20
interest in protecting the police officer, preventing the destruction of evidence, or

otherwise. Graham, 271 Mont. at 513, 898 P.2d at 1208. But, under Pastos, the same

search would have been valid if the officer had waited until he was at the station. In two

factually indistinguishable cases, we see an opposite result depending on what search

warrant exception is applied.

¶39    Second, the majority relies on an even more remote possibility of an even greater

danger; that the arrestee has an explosive or incendiary device in her purse. The majority

notes that, since the horrific events of September 11, 2001, this concern is even more

pronounced today than when Pastos was decided. Again, does the remote possibility of

terrorism justify a search of a purse incident to arrest? Or does the pervasive anxiety of

9-11 limit itself to the inventory rooms of police stations? In any event, we have

specifically rejected that a “remote possibility of harm” justified “a general search of the

wallet for weapons, explosives or hazardous material” in Hamilton, ¶ 39. The majority

distinguishes Hamilton on the grounds that there was no risk of Hamilton pulling a gun

out of the lost container. Opinion, ¶ 23. But surely, an angry possessor could use a gun

in her lost purse just as easily as she could use a gun in her seized purse, and a terrorist

could just as easily place a bomb in either. The difference between a lost and seized

purse is simply a distinction without a difference.      The majority also distinguishes

Hamilton because the defendant was separated from her wallet and could not access it for

a weapon. That is precisely the case here; Demontiney was separated from her purse

upon her arrest, she never regained control over it, and neither the District Court nor the



                                            21
officers involved believed that the purse posed any danger, explosive or otherwise. The

only possible inference of danger in this situation comes from this Court.

¶40    Next, the Court cites to Lafayette to hold that police must protect themselves from

the arrestee’s false claims of stolen property, and that the arrestee’s property is also

protected from theft by police. How does the inventory search procedure protect either of

those interests? A corrupt officer could easily leave a stolen item off the list of items in

inventory, and a lying arrestee could just as easily fabricate allegations of stolen property.

In any event, “[t]he government’s interest in protecting itself against fraudulent post-

incarceration claims of loss or damage to property is at best a tenuous reason for

infringing the privacy of an individual’s belongings . . . . To the extent that the basic

purposes of an inventory search can be accomplished by means which are less intrusive

on an internee’s privacy, then the constitutional rule of reason requires such means to be

employed.” Kaluna, 520 P.2d at 61 (citations omitted).

¶41    Finally, the majority claims that inventory searches are the less intrusive means to

combat any danger and preserve property, reasoning that “it is impractical and

unreasonable” for police to assess threats on a case-by-case basis, Opinion, ¶ 16, and that

such a threat assessment would be “quick and subjective, and quite possibly wrong.”

Opinion, ¶ 27. I would give more credit to our officers of the law. Police officers

constantly make fact-based legal judgments about reasonable suspicion, probable cause,

and exigency. In fact, we already demand that our officers employ this less intrusive

means requirement when conducting an inventory search of a lost item. Hamilton, ¶ 42.

Nor is the majority’s concern supported by the experiences of other states; the police of

                                             22
Hawaii and Alaska also operate under this standard and have effectively incorporated it

into their policies for more than thirty years. In these states, the simple method for

preventing illicit or dangerous objects from entering the prison is to (1) search the

arrestee’s person for any objects, (2) separate the arrestee from any repositories in her

possession, and (3) place all objects and repositories into an evidence bag and store them

until the arrestee is released. See Kaluna, 520 P.2d at 61. This “bag it, tag it” method

prohibits the arrestee from bringing weapons or drugs into prison, protects the police

from any exposure to hazardous chemical or biological agents, protects the arrestee’s

property, and shields the police from false claims. The compelling interests asserted, if

they are compelling at all, are well served by the less intrusive “bag-it tag-it” method.

The majority overcomplicates a procedure that has previously existed in Montana and

currently exists elsewhere.

¶42    The more subjective, unreasonable, and wrong method would be the type of search

permitted by the majority. The officer testified that “[w]e search everybody’s property or

purse” and the containers inside, without regard to the item’s size or nature. It is the

officer’s unfettered discretion to root through a purse, an opaque sandwich container

inside the purse, and any other container or object no matter its propensity for danger.

Upon finding a phone, a device which is commonly used as a detonator for improvised

explosives, the officer could search its contents on the grounds that a vengeful arrestee

will detonate an explosive upon her release.      Had the sandwich container actually

contained a sandwich, the officer could search the sandwich on the remote possibility that

it contains a bomb or gun.        The majority requires no evaluation of facts and

                                           23
circumstances, only a vivid imagination, so it is the officer’s unlimited discretion which

objects ought to be searched and the scope of that search, without any evaluation of

danger whatsoever. This standard is more subjective, unreasonable, and prone to bias

and misuse than the simple “bag it, tag it” method employed in Hawaii and Alaska.

C.     Stare Decisis

¶43    The majority invokes stare decisis in support of Pastos. The irony is that Pastos

itself was major departure from our Section 10 jurisprudence. See Sierra, 214 Mont. at

477, 692 P.2d at 1275; State v. Sawyer, 174 Mont. 512, 518, 571 P.2d 1131, 1134 (1977).

“Stare decisis is the preferred course because it promotes evenhanded, predictable, and

consistent development of legal principles . . . .” Payne v. Tennessee, 501 U.S. 808, 827,

111 S. Ct. 2597, 2609 (1991). Conversely, stare decisis is unwarranted when a given

decision is applied unpredictably, unevenly, or is inconsistent with developing legal

principles.

¶44    Pastos has wreaked havoc in our Section 10 jurisprudence. In Hamilton, the Court

recognizes the error in reasoning, and limits Pastos to its facts while asserting that “the

Constitution does not allow a general search of a benign object based on such a remote

possibility of harm . . . .” Hamilton, ¶¶ 37-39. This Court now tries to reconcile Pastos

and Hamilton by distinguishing the inherent danger of lost items from the inherent danger

of seized items; a distinction without a difference. Six years after writing Pastos, even its

author confusingly minimized and distinguished that decision’s handling of the less

intrusive means requirement. See Deserly v. Department of Corrections, 2000 MT 42,

¶ 44, 298 Mont. 328, 995 P.2d 972 (“[W]e have adopted a ‘less intrusive means rule’ in

                                             24
the context of inventory search cases.”). We are not the only jurists struggling with this

decision, as the District Court also felt that the application of Pastos was disingenuous,

unreasonable, and inequitable under the circumstances in this case. Finally, the blanket

searches in Pastos are gradually creeping into other privacy protections.          We have

previously rejected an overbroad search incident to arrest when it was not based on

sufficient facts and circumstances. Hardaway, ¶¶ 58-59; Galpin, ¶ 56. Yet in more

recent precedent we have allowed an overbroad search incident to arrest because the

arrestee would inevitably be subjected to an inventory search. State v. Hilgendorf, 2009

MT 158, ¶¶ 25-27, 350 Mont. 42, 208 P.3d 401.

¶45    Pastos is troublesome to lower courts, it is applied inconsistently in our own

precedent, and its reasoning is slowly eroding the privacy protections in our

jurisprudence; these are the symptoms of a decision in distress. The interests promoted

by adhering to stare decisis are the very interests that require overturning Pastos. That

decision and its doctrine of fact-blind, categorical justifications in our warrant exceptions

have been stretched far beyond their breaking points. Thornton v. United States, 541

U.S. 615, 625, 124 S. Ct. 2127, 2133 (2004) (Scalia, J., concurring). It is time to leave

behind anxiety and alarmism in our legal reasoning, and replace it with an objective and

realistic examination of facts as required by Section 10.


                                                  /S/ MICHAEL E WHEAT




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