                            NO.    94-604

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1995


STATE OF MONTANA,
          Plaintiff and Respondent,
     v.
TRACY LEE HOULE, AMOS J. NORQUAY
KEITH LAMOTTE, AND
ROBERT J. ST. CLAIRE
          Defendants and Appellants




APPEAL FROM:   District Court of the Sixteenth Judicial District,
               In and for the County of Rosebud,
               The Honorable Joe L. Hegel, Judge presiding.



COUNSEL OF RECORD:

          For Appellant:

               John Houtz, Forsyth, Montana (Houle); Terry J.
               Hanson, Miles City, Montana (St. Clair); J. Dennis
               Corbin,  Miles City,   Montana (Lamotte) ; Joe A.
               Rodriguez, Lame Deer, Montana (Norquay)

          For Respondent:

               Hon. Joseph P. Mazurek, Attorney General, Crew
               Coughlin,   Assistant  Attorney   General,   Helena,
               Montana;     Lee Kerr,   Rosebud county Attorney,
               Forsyth, Montana; Coleen Magera, Powder River County
               Attorney, Broadus, Montana



                                   Submitted on Briefs:   July 6, 1995

                                               Decided:   September 13, 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court.


     Tracy Lee Houle, Amos J. Norquay, Keith Lamotte, and Robert                 J.

St. Claire (Appellants) were charged in Rosebud County with robbery

or in the alternative, robbery             by    accountability     and   aggravated

assault,    a felony or in the alternative aggravated assault by

accountability.      They were also charged in Powder River County with

criminal trespass to vehicles, criminal mischief, theft, or in the

alternative, theft by accountability.              Appellants moved to suppress

evidence    from     crimes     committed in        Rosebud   and    Powder River

Counties,    claiming that the evidence was obtained through an

illegal search.       The Sixteenth Judicial District, Rosebud County,
denied their motions.          Appellants entered Alford pleas, preserving

their right to appeal.             Appellants subsequently appealed the

District Court's denial of their motions to suppress evidence. We

affirm.

                                       ISSUE

     Appellants present the following issue on appeal:

Did the District Court err in denying Appellants' motion to
suppress evidence obtained through an allegedly illegal search?
                                    BACKGROUND

     On the evening of March 31, 1994, Appellants and the owner of

the vehicle in        which      Appellants      were driving       cruised around

Dunseith,    North    Dakota    drinking       alcohol.   At some point in the

early morning the owner got out of his vehicle.                He testified that

he did not remember if he gave Appellants permission to take the

vehicle out of North Dakota.          Appellants proceeded to Powder River


                                           2
county, Montana,       where they allegedly vandalized a car and stole
the   car    stereo.    Appellants then allegedly stopped at a home
outside of Colstrip, struck the owner of the home in the head, and

took various firearms from the house.        At approximately 1:00 a.m.,
April 2, 1994, a police officer saw Appellants speed through the

town of Sidney, Montana.      He embarked on a high-speed chase, pulled

Appellants     over,   and searched the passenger compartment of the

vehicle.       Appellants were placed in custody and the vehicle was

towed to a local garage.

      At the time of arrest,       it was clear that the vehicle was
registered to someone other than Appellants.        On April 2, 1994, the

Sidney police were notified that the vehicle had been reported

stolen.      On April 4, 1994, while the vehicle was still in the local

garage,     a police officer opened the trunk and saw a car stereo and

a gunstock underneath a blanket.          He pulled back the blanket and

observed firearms in the trunk.           The officer then applied for a

search warrant and indicated the reason for a warrant was to search

further for drugs.       The application for a warrant did not reference

other crimes or the guns.          The City Court issued the warrant.

Confronted with the evidence found in the trunk, several of the

Appellants made incriminating statements.

      Appellants were charged in Rosebud and Powder River Counties

for crimes committed while traveling through Montana.         They moved

to suppress evidence obtained from a search they claim was illegal.

Before      trial,   Appellants pleaded guilty reserving the right to

appeal the District Court's decision to deny their motion to

                                      3
suppress.    The Sixteenth Judicial District Court, Rosebud County,

denied their motions        and found the issue of standing to be
dispositive.     The District Court found that while the search was

illegal, Appellants did not have standing to object to the search

because they did not have lawful possession of the vehicle.

Appellants   subsequently      appealed       the   District   Court's   denial   of

their motions to suppress evidence                  allegedly obtained from an
illegal search.

                            STANDARD OF REVIEW
     "We will not overturn a district court's findings of fact

regarding suppression hearing evidence unless those findings are

clearly erroneous." State v. Kaluza (1993), 262 Mont. 360, 361, 865

P.2d 263,    264 (citing State v. Bower (1992), 254 Mont. 1, 7, 833

P.2d 1106,     1110 and State v. Cope (1991), 250 Mont. 387, 396, 819

P.2d 1280, 1286).

                                  DISCUSSION

Did the District Court err in denying Appellants' motion to
suppress evidence obtained through an allegedly illegal search?

     Appellants contend that they had lawful possession of the

vehicle     and therefore had standing to challenge whether the

warrantless search of the vehicle violated the Fourth Amendment.

On the other hand, the State argues that Appellants lack standing
to claim the protection of the Fourth Amendment.

     The question of whether a search and seizure violated the

Fourth    Amendment   rights    of a criminal defendant who seeks to

exclude evidence obtained during a search requires a determination

of whether the disputed search and seizure invaded an interest of
                                          4
the defendant which the Fourth Amendment was designed to protect.
Rakas v. Illinois (1978), 439 U.S. 128, 140, 99 S.Ct. 421, 429, 58
L.Ed.2d 387, 399.       "The Fourth Amendment guarantees that 1 [~]he
right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not
be violated.'" Mancusi v. DeForte (1968), 392 U.S. 364, 367, 88 S.
Ct. 2120, 2123,     20 L.Ed.2d 1154, 1158.         Standing to claim the
protection of the Fourth Amendment depends not upon a property
right in the invaded place, but upon whether the person who claims
the protection of the Amendment has a legitimate expectation of
privacy in the invaded place.         State v. Allen (1980), 188 Mont.
135,    140, 612 P.2d 199, 202 (citing Katz v. United States (1967),
389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 and Rakas, 439 U.S.
128).
        A legitimate expectation of privacy exists where there is a
reasonable    expectation   of    freedom   from   governmental   intrusion.
State v. Isom (1982), 196 Mont. 330, 336, 641 P.Zd 417, 420 (citing
Mancusi, 392 U.S. at 368).        Thus a standing analysis embraces two

questions.     First,   did the defendant's conduct exhibit an actual
(subjective) expectation of privacy.          Second, is the defendant's
subjective expectation of privacy one that society is prepared to
recognize as reasonable.         Smith v. Maryland (1979), 442 U.S. 735,
740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220, 226-27 (citinq          Katz, 389
U.S. 347 and -I 439 U.S. 128).
             Rakas
        A defendant moving to suppress evidence found in a warrantless
search has the burden of showing that he or she had a reasonable

                                       5
expectation of privacy in the place or object searched.             U.S. v.
Perea (2nd Cir. 1993),   986 F.2d 633, 639; See also Rakas, 439 U.S.
at 131 n.1.      Furthermore,   a defendant relying upon the lawful
possession factor bears the burden of presenting at least some

evidence that his or her possession was lawful.            U.S. v. Benitez-
Arreguin (10th Cir. 1992), 973 F.2d 823, 828.

      In the instant case,       the State claims that there is no
evidence in the record which establishes              that Appellants were

lawfully in possession of the vehicle.            In his initial statement,

the owner of the car        said that he had not given Appellants
permission to use the car.      In subsequent testimony, he stated that

he gave permission to one of the Appellants, and again stated that

he either did not remember or conversely did not give permission.

There is substantial credible evidence that the owner did not give

Appellants permission to take the car and that the owner of the car

asked his aunt to report the car as stolen.           Moreover, at the tine
of the arrest, Appellants denied driving the vehicle and denied

knowledge of who drove the vehicle.         There is no evidence to show

Appellants either requested permission to take the car to Montana

or told the owner of their plans to go to Montana.                    Thus,
Appellants could not meet their burden to establish that they had

a reasonable expectation of privacy in a vehicle that they had no

demonstrated permission to be in.

      Upon reviewing the record in this case, we are unable to say

the   District    Court's    finding       that    Appellants'   subjective

expectation of privacy in the vehicle was not one that society is


                                       6
prepared to recognize as reasonable is clearly erroneous.   Without
a legitimate expectation of privacy in the vehicle, Appellants
lacked standing to claim the protection of the Fourth Amendment.
We further hold that the District Court correctly applied the
findings to deny Appellants' motion to suppress evidence obtained
from the search of the vehicle.
     AFFIRMED.
     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of this Court and by a report of its result to the
West Publishing Company.



We Concur
