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                                                               No. 99-514


                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             2000 MT 122N



                                                      STATE OF MONTANA,

                                                      Plaintiff and Respondent,

                                                                      v.

                                                    NANETTE D. JOHNSON,

                                                     Defendant and Appellant.



                         APPEAL FROM: District Court of the Thirteenth Judicial District,

                                             In and for the County of Yellowstone,

                                    The Honorable Susan P. Watters, Judge presiding.


                                                     COUNSEL OF RECORD:


                                                             For Appellant:

                              Brad L. Arndorfer; Arndorfer Law Firm, Billings, Montana

                                                            For Respondent:

                               Hon. Joseph P. Mazurek, Attorney General; Jim Wheelis,

                                       Assistant Attorney General; Helena, Montana


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                           Dennis Paxinos, Yellowstone County Attorney; Sheila R. Kolar,

                                          Deputy County Attorney, Billings, Montana



                                             Submitted on Briefs: February 17, 2000
                                                     Decided: May 4, 2000

                                                                    Filed:

                                    __________________________________________

                                                                     Clerk




Justice W. William Leaphart delivered the Opinion of the Court.


¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Nanette D. Johnson (Johnson) was charged in the Thirteenth Judicial District Court,
Yellowstone County, with criminal possession of dangerous drugs, a felony in violation of
§ 45-9-102, MCA. Johnson filed a motion to suppress evidence. The District Court denied
the motion. Johnson then entered a plea of guilty, reserving her right to appeal the court's
denial of her motion to suppress.

¶3 The issue on appeal is whether the District Court erred in concluding that,
independently of the overbroad search incident to arrest, the contraband in question would
inevitably have been found in a subsequent inventory search at the Yellowstone County
Detention Center.

                                                       Factual Background


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¶4 On August 19, 1998, Laurel City Police Officer Michael Zuhoski (Officer Zuhoski) and
Reserve City Police Officer Lauren Dionne (Officer Dionne) were on patrol in Laurel,
Montana. While driving through the parking lot of the Town Pump, Officer Zuhoski
recognized Johnson whom he had previously arrested on warrants. Officer Zuhoski then
checked with dispatch to see whether there were any outstanding warrants against Johnson
and was told that a "must appear" warrant had been issued against her on a traffic offense.
Bond had been set at $80.

¶5 The officers entered the Town Pump and asked Johnson to step outside. When she did,
she was placed under arrest pursuant to a "must appear" warrant. She was handcuffed and
Officer Dionne did a pat-down search, finding two cigarette packages. A third officer,
Officer Weinreis, had arrived on the scene and pointed to a bulge in Johnson's sock
whereupon Officer Dionne retrieved a third cigarette package. Inside the third cigarette
package Officer Zuhoski found a bindle and a baggie, the contents of which later tested
positive for methamphetamine. Johnson was then transported to the Yellowstone County
Detention Center (YCDF).

¶6 Officer Zuhoski testified it was the Laurel Police Department's policy to take persons
arrested on "must appear" warrants to the Laurel Police Department or the YCDF to be
booked and fingerprinted. He testified that it was not policy to accept bond money before
arrest and booking. Officer Zuhoski further testified that he checked for contraband each
time he made an arrest, but that he had no cause to suspect that Johnson was "involved in
any additional criminal activity."

                                                        Standard of Review

¶7 Because the pertinent facts are not in dispute, we review whether the District Court
correctly applied the law in denying Johnson's motion to suppress. See State v. Anderson,
1999 MT 60, ¶ 7, 293 Mont. 490, ¶ 7, 977 P.2d 983, ¶ 7.

                                                               Discussion

¶8 In addressing Johnson's motion to suppress, the District Court concluded that Johnson's
arrest was valid. However, the District Court determined that Officer Zuhoski's search of
the inside of the cigarette package exceeded the scope of a search incident to an arrest
under § 46-5-102, MCA. Nonetheless, the District Court concluded that the contraband
inside the cigarette package would have been inevitably discovered during a routine


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inventory search at the YCDF. The court cited State v. Pearson (1985), 217 Mont. 363,
704 P.2d 1056, for the proposition that inevitable discovery is an exception to the
exclusionary rule.

¶9 In Pearson, we alluded to the "inevitable discovery" exception to the exclusionary rule.
The exception, however, was not applied or discussed in resolution of the Pearson appeal.
The exception was first recognized by this Court in State v. Allies (1979), 186 Mont. 99,
117-18, 606 P.2d 1043, 1052-53. In Allies, we recognized that:

        There are three general exceptions to exclusion of the fruit of the poisonous tree. (1)
        If the evidence is attenuated from constitutional violation so as to remove its
        primary taint, it will be admissible. (2) If the evidence is obtained from a source
        independent of the defendant's confession, it will be admissible. (3) If it is inevitable
        that the evidence would have been discovered apart from the defendant's confession,
        it is admissible.

Allies, 186 Mont. at 117, 606 P.2d at 1052-53 (citations omitted).

¶10 We then elaborated certain limitations in invoking the inevitable discovery exception.

        In applying the third exception, the inevitable discovery rule, courts must not lose
        sight of the protections guaranteed by the Constitution. To avoid deciding cases on a
        judge's speculation as to what police "might," "could" or "should" have done, it
        must appear that the evidence would have been obtained even in the absence of
        information received in violation of a defendant's rights. It must appear that, as
        certainly as night follows day, the evidence would have been discovered without
        reference to the violation of the defendant's rights.

Allies, 186 Mont. at 118, 606 P.2d at 1053.

¶11 The District Court reasoned that, while conducting booking and fingerprinting, jail
personnel are "allowed" to do routine inventory searches. State v. Pastos (1994), 269
Mont. 43, 887 P.2d 199. Further, the District Court noted that this Court has determined
that inventory searches of open cigarette packages are lawful as part of an inventory
search. City of Helena v. Lamping (1986), 221 Mont. 370, 719 P.2d 1245 (inventory
search prior to placing in jail). In light of the breadth of the authority to conduct inventory
searches, the District Court concluded "it was inevitable that the contraband in the open


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package would have been found during a routine inventory search at YCDF. This
inevitable discovery cuts off any taint that was associated with the illegal search [incident
to arrest]."

¶12 We determine that, in grounding its decision on what the law "allows," the District
Court ran afoul of the limitations expressed in Allies. The fact that the officers may have
had legal authority to engage in an inventory search during a routine booking, merely
establishes what the officers "might," "could" or "should" have done. See Allies, 186
Mont. at 118, 606 P.2d at 1053. Bearing in mind that Johnson was arrested on an
outstanding warrant arising from a traffic offense with a bond of $80, it does not follow
that the contraband necessarily "would" have been discovered. Officer Zuhoski testified
that, when making an arrest such as this, he can take the arrestee to either the YCDF or to
the station in Laurel, where there is no longer a jail. Thus, although he in fact took
Johnson to YCDF, he could have taken her to Laurel. Further, he testified that, at either
facility, arrestees are booked in and allowed to post bond if they can.

¶13 Despite an officer's legal authority to conduct inventory searches, we cannot conclude
"as certainly as night follows day" that it is inevitable that every person who is arrested on
an outstanding traffic warrant and taken to a facility (particularly a facility with no jail)
will be subjected to a complete inventory search wherein a cigarette pack will be removed
from his/her sock and opened for inspection before that person is given the opportunity to
post bond.

¶14 We hold that, under the facts of this case, the District Court incorrectly invoked the
inevitable discovery exception. The Order denying the motion to suppress is reversed and
this matter is remanded to the District Court for further proceedings consistent herewith.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ JAMES C. NELSON

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER
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