                                            NO.    82-142

                    I N THE SUPREME C O U R T OF THE STATE OF M O N T A N A

                                                   1983




STATE OF MONTANA,

                                         Plaintiff       and Respondent,

         vs.

ABRAHAM KERRY C A Y E ,

                                         Defendant and A p p e l l a n t .




Appeal    from:        D i s t r i c t Court of t h e F o u r t h J u d i c i a l D i s t r i c t ,
                       I n and        f o r t h e County o f Lake
                       Honorable James B . Wheelis, Judge p r e s i d i n g .

Counsel of        Record:

      For Appellant:

               R i c h a r d P i n s o n e a u l t a r g u e d and James Manley a r g u e d ,
                S t . I g n a t i u s , Montana

      For Respondent:

               Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
               Dorothy McCarter a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l ,
                 H e l e n a , Montana
               J o h n F r e d e r i c k , C o u n t y A t t o r n e y , P o l s o n , Montana
               Duke Wolf a r g u e d , D e p u t y C o u n t y A t t o r n e y , P o l s o n , M o n t a n a




                                                   Submitted:             J a n u a r y l l r 1983

                                                      Decided:            February 2 4 , 1983

Filed:
                   2 4 1983
Mr. Justice John C.            Sheehy delivered the Opinion of         the
Court.


        This is an appeal from a          judgment of conviction for
criminal possession of dangerous drugs issued by the District
Court of the Fourth Judicial District, Lake County.                    The
appellant, Abraham Caye, filed a motion to quash the warrant
alleging that the Justice Court did not have jurisdiction and
that the action for which the warrant was issued, if pursued,
would    constitute d-ouble jeopardy for Caye.            The District
Court denied this motion.            We affirm the judgment of the
District Court in all respects.
        The issue in this case is whether an arrest warrant
issued    for criminal trespass/mischief and           the   seizure of

evidence pursuant to the arrest are valid notwithstanding a
subsequent assertion that the prosecution is barred by former
jeopardy because this defendant had already been convicted in
Tribal Court.
      Caye, and      his   girlfriend, Vicki Hitchcock, are both
members of the Confederated Salish and Kootenai Tribes of the
Flathead Reservation.          At the time this action began, Vicki
was     living    with   her    mother,   Carole    Hitchcock,    on   the
reservation.       On April 17, 1981, the Flathead Tribal Court
ordered    Caye    to    stay away   from the      residence of    Carole
Hitchcock.       On May 2, 1981, Caye destroyed a lock on the door
of the Hitchcock residence and entered the home.             No one was
in the residence at the time.         On June 2, Caye pled guilty to
criminal contempt of the Tribal Court order and was sentenced
by the Tribal Court to spend 28 days at Galen State Hospital.
      Unsatisfied with the Tribal. Court proceedings, Carole
Hitchcock filed a complaint against Caye with the Lake County
sheriff on June 1, 1981.              Without knowing of the Tribal Court
proceeding,        the    Lake    County     Attorney    filed    alternative
charges of criminal mischief and criminal trespass in the
Justice Court of Lake County.                An arrest warrant was issued
by the Justice Court on July 13, 1981.
       On July 23, 1981, Caye was arrested on the reservation
and taken to the Lake County jail.               During a preincarceration
search, Lyscergic Acid Diethylamide, LSD, was found in his
possession.
       He    was   charged       in   the District Court with            illegal
possession of dangerous drugs.               Some time after the filing of
the District Court criminal action and before the trial, the
Justice Court action against Caye was dismissed.
       On October 2, 1981, Caye filed a motion to quash the
arrest warrant issued by the Justice Court because,                       ". . .
the arrest of this Defendant ultimately proved to be conduct
for which        the Defendant had           been    tried, convicted, and
sentenced in the Tribal Court of the Salish and Kootenai
Tribes. "      The motion         also provided       that Caye    should be
protected from violation of his rights to equal protection,
due process and freedom from double jeopardy.                     This motion
was    treated     as a motion          to   suppress and denied by         the
District Court.          Caye was found guilty of illegal possession
of dangerous drugs and sentenced to 3 years in the Montana
State prison with credit for time served.
       The    tribes      of    the   Flathead      Reservation   have    ceded
certain concurrent jurisdiction of Indian cases to the State
of    Montana.       It    is    evidenced     by    Tribal Ordinance      40-A
Revised.
       Subsection 2 ( a ) of the Ordinance provides:
              "Concurrent jurisdiction remains with the
              Tribal Court in the Tribal Government of all
              matters referred to in Subsection 1; and any
              matter initiated in either a state or Federal
              Government Court or the Tribal Court shall be
              completed and disposed of in that Court, and
              shall not be subject to re-examination in the
              courts of the other jurisdiction."
        Subsection 2 (b) provides:
              "No person, once convicted of a crime falling
              within the jurisdiction of the State or
              Federal Government, or the Tribes, pursuant to
              this ordinance, shall be punished for the
              identical act in the courts of the other
              jurisdiction, but shall be accorded the
              benefit of the doctrine of former jeopardy as
              if the separate jurisdictions were one."
        Pursuant to Subsection 1 of the Ordinance, the state

courts and the tribal courts have concurrent jurisdiction of
criminal misdemeanor cases.
        The effect of the cession of concurrent jurisdiction has
been discussed in Larrivee v. Morigeau (1979), - Mont. -I


602 P.2d 563, 36 St.Rep. 1798, cert.den. 445 U.S.                 964, 100
S.Ct.    1653, 64 L.Ed.2d        240; and State ex rel. McDonald v.
District Court of the Fourth Judicial District (1972), 159
Mont. 156, 496 P.2d 78.

        Caye contends that the evidence seized pursuant to the
Justice       Court    warrant    and   the    subsequent      arrest   was
inadmissable.         Caye grounds this assertion on the theory that
the warrant has no "legal efficacy" because the Justice Court
did     not   have    jurisdiction of the       cause.       Therefore, he
a-sserts, the         subsequent arrest,      search   and   seizure were
illegal and the evidence thereby obtained inadmissable.                 Caye
contends that his arrest under the Justice Court wa-rrant was
invalid because         the underlying     crime had previously been
adjudicated in the Tribal Court and was thus barred from
adjudication in the state courts pursuant to Tribal Ordinance
40-A Revised.
        The   Sta-te contends    that,     notwithstanding    concurrent
jurisdiction, Caye      was     properly    charged   and    that   double
ieopardy does not apply in this case.          Caye contends that the
Justice Court action constitutes double jeopardy.
        It is questionable whether         the Justice Court action
offends the former jeopardy provision of this Ordinance but
it makes no difference here.        When the complaint was filed in
the Justice Court, that Court had personal jurisdiction of
Caye.     If Caye wished to avail himself of the protections
afforded against double jeopardy, res judicata or collateral
estoppel he would have had          to claim them as affirmative
defenses later in the Justice Court proceedings.
        Former jeopardy, or double jeopardy, does not attach
                                                        C
until the jury is empaneled and sworn.           Willha*     v. Flanagan
(1980), 448 U.S. 1323, 101 S.Ct. 10, 65 L.Ed.2d              1147; Crist
v. Bretz (1978), 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d                24.
In a case tried without a jury double jeopardy atta.ches when,
"the court begins to hear the evidence."                Lee v.      United
States (1977), 432 U.S.         23, 97 S.Ct. 2141, 53 L.Ed.2d          80;
Serfass v. United States (1975), 420 U.S. 377, 95 S.Ct. 1055,
43 L.Ed.2d 265.
        In this case, the search took place as a             preliminary
proceeding and before the judge heard any evidence in the
Justice Court case.        Procedural matters preliminary to a
trial do not constitute jeopardy.           Collins v. Loisel (1923),
262 U.S. 426, 43 S.Ct. 618, 67 L.Ed. 1062.
        The first jeopardy attached when the Tribal Court heard
the evidence.       State v. Hagerud       (1977), 174 Mont. 361, 570
P.2d    1131.    Caye would have been twice placed in jeopardy
when a second jury was empaneled and sworn or when the judge
began to hear the evidence in the Justice Court.              This would
have been the proper time for Caye to raise the affirmative
defense of former jeopardy.
          The plea of former jeopardy should be raised in the

court where jeopardy attaches.           Here, the Justice Court was
the proper tribunal for resolution of the issue, not the
District Court.           Since a    second jeopardy did not attach
before the cause was dismissed in the Justice Court, former
jeopardy could not be a basis in the District Court as a
ground to suppress the evidence.               Therefore, Caye is not
entitled      to   the    remedies available to an          individual        for
violation of his constitutional right to be free from being
twice place in jeopardy.
          We affirm the District Court's denial of Caye's motion
to    suppress and        its   judgment and   conviction for      illegal
possession of dangerous drugs.

                                                    \


                                               .    LALI.- k,
                                                     -
                                                     -
                                                   / t
                                                       ji 1-
                                                        Justice
                                                                         r,
                                                        i


We Concur:


     ?&
     A         4,L A &
                *
          Chief Justice
Mr. Justice Daniel J. Shea, concurring:

     I a.gree with the result.          The essential question is
whether the state court had authority to issue the warrant of
arrest.    It did.    A valid complaint preceded the issuance of
the arrest warrant.     Defendant Caye was searched as a result
of the issuance of this arrest warrant.        The drugs were found
pursuant    to   this   search,   and    the   State   clearly   had
jurisdiction to prosecute him for this separate crime.           This
is so even if        for some reason the defendant could have
prevailed in a contention that the Justice Court placed him
on trial for having been convicted essentially on the same
facts as were presented to the Tribal Court.
