                           No. 81-290
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                               1982


STATE OF MONTANA,
                       Plaintiff and Respondent,
     VS.

MARET BROWN,
                       Defendant and Appellant.


Appeai from:    District Court of the Fourth Judicial District,
                In and for the County of Missoula
                Honorable James Wheeiis, Judge presiding

Counsel of Record:
     For Appellant:
           Anthony F. Keast, Missoula, Montana
     For Respondent:

           Hon. Mike Greely, Attorney General, Helena, Montana
           Robert L. Deschamps 111, County Attorney, Missoula,
            Montana


                            Submitted on briefs: June 15, 1982
                                        Decided:   August 19, 1982
Filed: AUG   19 1982
Mr.   J u s t i c e Gece B. Daly d e l i v e r e d the Opicioc of the Court.

      The d e f e c d a c t , Maret Browc, appeals from a judgmect issued by
the     District       Court         of        the    Fourth J u d i c i a l       District,           Missoula
Coucty,      upoc a jury                 c o c v i c t i o c f o r f e l o c y t h e f t a s provided          ic

s e c t i o c 45-6-301(3),           MCA.         Defecdact was sectecced to e i g h t years
i e the Moctaca S t a t e P r i s o c w i t h a l l b u t c i c e t y days suspecded.
      T h i s case a r i s e s out of                 the burglary of a mobile home owced

by Robert White acd located s e a r A r l e e , Moctaca.                                  White had moved
t o Alaska w i t h h i s family acd l e f t h i s mobile home to be sold by
a r e a l e s t a t e agect.              Ic Juce 1980, the r e a l e s t a t e agect disco-

vered       that       someoce            had        broker!     icto       the      mobile           home    acd
garage.         The agect c o t i f ied the Lake Coucty Sherif f 1s departmert
acd    oe Juce         30 west            through the home with Lake Coucty deputy

s h e r i f f , Racdy Merrymar?.
      Or? J u l y 2 5 ,    1980, White foucd out i c a c o c v e r s a t i o c with h i s
brother      t h a t the mobile home had beep b u r g l a r i z e d .                             White q u i t

h i s job    acd moved h i s family back to Arlee, Moctaca.                                           White acd
officer      Merrymac           thee        wect       through        the   home         acd     the    garage,
makicg      a      list        of        the     persocal         property          that       was      stoles,

which        iccluded                a         weldicg           torch        owced              by      White.
      White t o l d ac a c q u a i r t a c c e , J i m F l e i s c h a u e r , t h a t h i s torch
had beep s t o l e c .          A couple of weeks l a t e r , F l e i s c h a u e r telephoced

White acd t o l d h i m t h a t he had h i s t o r c h .                          F l e i s c h a u e r said he
had    purchased          the       torch        from o r e Louis Goodsell.                           White   aed
F l e i s c h a u e r wept t o see Goodsell.                    Goodsell said he had purchased

t h e torch from the d e f e c d a c t , Maret Browc.
      Accordicg           to        the        testimocy        of     White,        Fleischauer,             acd
Goodsell,        the      three          thee wect         to    the    house       of     the    defecdact,
Maret Browc.              They wept             up oc d e f e c d a c t l s closed-ic                 porch ard
kcocked or? h i s door.                   Whec Browc acswered the door, White i c t r o -
duced    himself          acd       asked       d e f e ~ d a c tif    he had a r e c e i p t           f o r the

t o r c h he had sold Goodsell.                       Defecdact said he had a r e c e i p t acd
i c v i t e d White ir?si.de the house.                        White r e f u s e d , sayicg he would

remaic oc the porch.
       While oe the porch,                  White coticed           that     some of        h i s stolec

belocgicgs,           s l e e p i c g bags,      a i r mattresses,          a grinding wheel,               a
s h o v e l , acd a red box, were l y i c g i c the c o r c e r s of                         the porch.

White t o l d F l e i s c h a u e r acd Goodsell to go g e t a search warrapt.

       F l e i s c h a u e r acd Goodsell returced w i t h a deputy s h e r i f f but
co search warrapt.                   The o f f i c e r asked defecdact                 if    they could

s e a r c h h i s house; d e f e c d a c t refused.                 The o f f i c e r thee wept to
g e t a search w a r r a c t .

       A    search       warract         was     obtaiced      upoc     icformatioc           giver       by

White.           Several o f f i c e r s acd White returced to d e f e e d a c t ' s house
l a t e t h a t evecicg acd completed                   the s e a r c h .        White accmpacied
t h e o f f i c e r s i c the s e a r c h .          The o f f i c e r s seized a l l the items
t h a t they f e l t White had p o s i t i v e l y i d e c t i f i e d .               Defecdact was
very upset whee the o f f i c e r s came to the house ard s t a t e d t h a t he

owced       everythicg or! the porch.                    A    s h o r t time i c t o the s e a r c h ,

a f t e r White had i d e c t i f i e d a few persocal items such a s a b l e e d e r
ard ac iror! t h a t had a persocal i c s c r i p t i o c oe i t , d e f e e d a c t was
arrested.
       The s o l e       issue raised            by d e f e c d e r t oe appeal         i s whether a
w a r r a c t l e s s search cocducted by White,                    Fleischauer acd Goodsell
was i c v i o l a t i o c of d e f e c d a c t ' s r i g h t s ucder the Fourth Arnerdmeet

of the Ucited S t a t e s C o c s t i t u t i o c , acd defecdar?t1s r i g h t of p r i -
vacy        as     provided         ic     Sectioe      10,     Art.        I1    of    the      Moctaca
Cocstit u t i o c    .
       It    i s very       importact here            to c o t e t h a t d e f e c d a c t does -
                                                                                                cot

r a i s e the issue based upoc the f a c t s r e l a t e d above.                           H does cot
                                                                                             e
claim t h a t ac u c c o c s t i t u t i o c a l search occurred whee White acd h i s
compaciocs were i c v i t e e s oc the d e f e c d a c t ' s porch acd saw s e v e r a l
of White's possesiocs i c p l a i c view.
       Rather,        defecdact          claims      that     the    u c c o c s t i t u t i o r ? a l search
occurred          earlier     it?    the    aftercooc.           The o c l y evidecce or? the

record       t h a t White      acd        his    compaciocs        were     at   the       defecdact's

r e s i d e c c e e a r l i e r ir! the a f t e r c o o c comes from the                testimocy of

the defecdact's f a t h e r .              The f a t h e r of the defecdact t e s t i f i e d a s
follows :

              I'Q.         What time i c the a f t e r c o o c d i d you
              observe somethicg, ard t e l l u s what you
              observed?           A.      Oh, i t was a r o u ~ d ope, two
              o ' c l o c k somewheres i c t h e r e , maybe a l i t t l e
              l a t e r , I c o t i c e d a c a r d r i v e up t o G o o d s e l l ' s .
              Two guys got out acd walked over t o Goodsell I s
              house.        Louis came out acd they t a l k e d .              From
              t h e r e they wept to Maret's house.
              "Q. They? Who's they? A.            The two guys t h a t
              g o t out of the c a r was White acd F l e i s c h a u e r ,
              o r whatever you c a l l h i m , acd Louis Goodsell.

              "Q.       The t h r e e of      them?        A.   Three of          them,
              yes.
              "Q. What happeced, thee? A.     They wept dowr
              t o Maret's house.    They wept i c , White ard
              Goodsell wept i n the porch.

              "Q.   Did you see them go i c t o the door?                            A.
              Yes, I d i d .
              "Q.   What made it i r t e r e s t i l ? g t h a t you would
              watch them?         A. Maret was c o t home a t t h a t
              time, acd I d i d c ' t know what was goirg or?. I
              was c u r i o u s .
               "Q.    Did you watch i t ?           A.     I watched them.

              "Q.   H w l o r g were they i c t h e r e ? A.
                     o                                                      Five to
              tei? micutes.
               "Q. T h a t ' s i c s i d e a t l e a s t , i c s i d e the porch?
              A.     They was i c s i d e out of s i g h t oc the
              porch.
              "Q. Wher they came o u t , did you say a c y t h i r g
              t o them?     A.        No.      They wept over t o
              Goodsell's t o t h e i r c a r .
              "Q.      Thee what did you observe?             A.      Well,
              they stood t h e r e acd t a l k e d , acd f i c a l l y they
              wept back.        I doc' t h o w , I t h i c k they drove
              o u t o r t o Stoce S t r e e t .
              "Q.         Did you have occasioc t h a t day to see
              those mer, a g a i r ? A.   Yeah, l a t e r oc t h a t day
              they r e t u r c e d   . I coticed      o r e with t h e
              s h e r i f f , acd Maret was home a t t h a t time."
      The    above testimocy does cot support a claim t h a t White acd
h i s compar i o c s cocducted           a search of d e f e r d a r t ' s r e s i d e c c e   .    The
f a t h e r ' s testimocy o ~ l yi c d i c a t e s t h a t White acd h i s compaciocs
may have e c t e r e d d e f e r d a c t ' s porch acd were t h e r e f o r f i v e to t e e
micutes.        Nothicg oe the record s u g g e s t s t h a t a search took place

duricg       this    time.        The    cocvictioc must             t h e r e f o r e be   affirmed
sicce    "   [w] e w i l l not c o c s i d e r r e p r e s e ~ t a t i o c s of    p a r t i e s af t e r

the   fact      or    represertatiocs           dehors      the     records."        S t a t e ex re1
Woodahl     v.     District        Court        (1975),      167     Mo~t.       514,    518,

540 P.2d   312,    314.     S e e a l s o S t a t e v.    Rumley ( 1 9 8 1 ) ,   --     MOI? t   .
---- , 6 3 4 P.2d    446,    38 S t . R e p .   1351A; a ~ d t a t e v.
                                                           S                 Lamb ( 1 9 8 2 ) ,

----       MOP t   ----       f      646        p.2d      516,        39   St.Rep.      1621.
    The      judgeme~t        of      the       District         Court     is     affirmed.




We concur:
