                                      No. 12486

         I N THE SUPREME COURT O THE STATE O M N A A
                                F           F OTN

                                            1973



THE STATE O MONTANA,
           F

                              P l a i n t i f f and A p p e l l a n t ,

         -vs   -
JOANN G. HOUGH,

                              Defendant and Respondent.



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 ,
                     Honorable Edward T. D u s s a u l t , Judge p r e s i d i n g .

Counsel of Record :

    For A p p e l l a n t :

               Hon. Robert L. Woodahl, A t t o r n e y General, Helena,
               Montana
               J. C. Weingartner, A s s i s t a n t A t t o r n e y General, appeared,
               Helena, Montana
               Robert L. Deschamps 111, lhp&y County A t t o r n e y , Missoula,
               Montana
               Michael J. Milodragovich, Deputy County A t t o r n e y , argued,
               Missoula , Montana

    F o r Respondent :

               Donald R. Matthews argued, Missoula, Montana



                                                      Submitted:           September 11, 1973

                                                         Decided :        OCT 2 4 1973
Filed:   WT 2 4.1973
M r . Chief J u s t i c e James T. Harrison d e l i v e r e d t h e Opinion o f t h e Court.


                Defendant was charged w i t h unlawful possession o f dangerous

drugs i n t h e d i s t r i c t c o u r t o f Missoula County.                   She moved t o suppress

t h e evidence seized by t h e Missoula County s h e r i f f ' s o f f i c e .                      From t h e

order o f t h e d i s t r i c t c o u r t suppressing t h e evidence, t h e s t a t e appeals.

                B r i e f l y s t a t e d t h e f a c t s a r e as f o l l o w s :   On January 20, 1973,

deputy s h e r i f f s F r o j e n and Churchwell o f Missoula County were p a t r o l l i n g

an area i n Missoula, Montana.                     The deputies, who work f o r t h e drug team,

were d r i v i n g an unmarked c a r and wearing p l a i n c l o t h e s .                  Defendant was

h i t c h h i k i n g on Brooks S t r e e t i n Missoula.              The o f f i c e r s stopped and picked

her up.       They i d e n t i f i e d themselves t o defendant as b i l l c o l l e c t o r s and

expressed t o her an i n t e r e s t i n buying some drugs.                          Defendant t o l d t h e

o f f i c e r s she had extensive involvement w i t h drugs, b u t she d i d n o t have

any w i t h h e r a t t h a t time and d i d n o t know where t h e o f f i c e r s c o u l d o b t a i n

any.

                While d r i v i n g around f o r a p e r i o d o f time, t h e o f f i c e r s urged

defendant t o l e t them know where t h e y c o u l d g e t some n a r c o t i c s .                    Defend-

a n t t o l d t h e o f f i c e r s t h a t she r e a l l y d i d n ' t know many people i n Missoula.

                The o f f i c e r s estimated defendant's age t o be 15 o r 16 because she

looked extremely young.                 Defendant s t a t e d her age was 19 years and t h a t her

f i r s t name was Ginnie.             Suspecting defendant was a runaway j u v e n i l e t h e

o f f i c e r s i d e n t i f i e d themselves as deputy s h e r i f f s .           Defendant t o l d them she

was 18 and n o t 19 years o f age and gave t h e o f f i c e r s a w e l f a r e card and a

check guarantee card f o r i d e n t i f i c a t i o n .             The w e l f a r e card i d e n t i f i e d t h e

s u b j e c t as JoAnn Hough.

                The welfare card revealed the s u b j e c t had two c h i l d r e n .                      Defendant

was unable t o a c c u r a t e l y s t a t e t h e c h i l d r e n ' s b i r t h d a t e s upon being questioned

by t h e o f f i c e r s .   She was asked i f she had graduated from h i g h school.                              She

s t a t e d she had graduated, b u t c o u l d n o t remember t h e year i n which she grad-

ila ted.

                The o f f i c e r s brought defendant t o t h e s h e r i f f ' s o f f i c e f o r t h e
purpose o f i d e n t i f y i n g her, t o c o n t a c t her parents and inform them t h a t

t h e i r daughter had been l o c a t e d .        While a t t h e s h e r i f f ' s o f f i c e O f f i c e r

Churchwell examined t h e contents o f defendant's purse.                             The o f f i c e r s c l a i m

t h a t defendant had no o b j e c t i o n t o them going through h e r purse.                        Officer

Churchwell t e s t i f i e d t h a t defendant v o l u n t a r i l y handed him t h e purse, a1                   -
though he d i d n o t e x p l a i n t o her t h a t she had any a l t e r n a t i v e .            Defendant

claims she objected t o t h e i r going through her purse.

               O f f i c e r Churchwell dumped t h e contents o f defendant's purse o u t

on t h e desk.        He opened a zippered purse which was i n t h e l a r g e r purse and

t h e r e i n found t h e drugs.       Defendant exclaimed, "Well, you have g o t me now,"

b u t t h e r e i s a c o n f l i c t as t o when t h i s statement was made.

               The o f f i c e r discovered a q u a n t i t y o f hashish and marijuana.                         De-

fendant was then f o r m a l l y a r r e s t e d and advised o f her r i g h t s .

               An e v i d e n t i a r y hearing was h e l d on defendant's motion t o suppress

t h e evidence.       The d i s t r i c t c o u r t , t h e Hon. Edward T. Dussault p r e s i d i n g ,

suppressed t h e seized drugs on t h e grounds t h a t t h e search and s e i z u r e was

unreasonable.

               The s i n g l e i s s u e presented on appeal i s whether t h e drugs were

p r o p e r l y seized by t h e deputy s h e r i f f s .

               The 4 t h Amendment t o t h e C o n s t i t u t i o n of t h e United States and

A r t . 111,   s   7, Montana C o n s t i t u t i o n o f 1889 ( A r t . 11, B 11, Montana Consti-

t u t i o n of 1972) p r o t e c t s c i t i z e n s from "unreasonable searches and seizures."

               Section 95-701, R.C.M.             1947, s t a t e s :

               "A search o f a person, o b j e c t o r p l a c e may be made and
               instruments, a r t i c l e s o r t h i n g s may be seized i n accord-
               ance w i t h t h e p r o v i s i o n s of t h i s chapter when t h e search
               i s made:

               "(a)    As an i n c i d e n t t o a l a w f u l a r r e s t .

               " ( b ) With t h e consent o f t h e accused o r o f any person
               who i s l a w f u l l y i n possession o f t h e o b j e c t o r place t o
               be searched, o r who i s believed upon reasonable cause t o
               be i n such l a w f u l possession by t h e person making the
               search.

               "(c)     By t h e a u t h o r i t y o f a v a l i d search warrant.
              " ( d ) Under t h e a u t h o r i t y and w i t h i n t h e scope o f a
              r i g h t of l a w f u l i n s p e c t i o n granted by t h e law."

              The s t a t e presents t h r e e a l t e r n a t i v e s f o r f i n d i n g t h a t t h e

drugs were p r o p e r l y seized.          F i r s t , t h e s t a t e argues t h e r e was no search

under t h e circumstances o f t h i s case as t h e term i s d e f i n e d i n i t s 4 t h

Amendment sense.

              T h i s Court i n S t a t e v. Williams, 153 Mont. 262, 269, 455 P.2d

634, said:

              " * * * we f i n d t h a t a 'search' has been h e l d t o i m p l y an
              examination o f one's premises o r person w i t h a view t o
              t h e d i s c o v e r y o f contraband o r evidence o f g u i l t t o be
              used i n p r o s e c u t i o n o f a c r i m i n a l a c t i o n ; i t i m p l i e s an
              e x p l o r a t o r y i n v e s t i g a t i o n o r quest. ( C i t i n g a u t h o r i t y . )
              I n t h e aggregate,a ' s e a r c h ' i n i t s 4 t h Amendment sense
              simply denotes (1 ) a quest by an o f f i c e r o f t h e l a w (Weeks
              v . U n i t e d States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652)
               (2) w i t h an i n t e n t i o n o f f i n d (United States v. Lodahl,
              D.C.Mont. 264 F.Supp. 927), (3) which invades a c o n s t i -
              t u t i o n a l l y p r o t e c t e d area ( H a r r i s v. U n i t e d States, 331
              U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399); Weeks v. U n i t e d
              States, supra)."

              I n t h e i n s t a n t case t h e o f f i c e r s t e s t i f i e d t h a t t h e drugs were

discovered i n an attempt t o i d e n t i f y t h e defendant.                    There was no "examin-

a t i o n o f one's premises o r person w i t h a view t o t h e d i s c o v e r y o f contraband

o r evidence o f g u i l t t o be used i n prosecution o f a c r i m i n a l a c t i o n " .                   Under

t h e foregoing d e f i n i t i o n    t h e r e was no "search" under t h e f a c t s o f t h i s

case.     The question presented, however, i s whether t h e s e i z u r e was proper,

and t h e s t a t e argues t h a t i t was under t h e " p l a i n view" d o c t r i n e .

              I n t h e r e c e n t case o f S t a t e v . Gallagher,                    Mont   .        , 509
P.2d 852, 30 St.Rep. 467, 476, t h i s Court said:

              "The r u l e i s : Where t h e r e i s p r i o r j u s t i f i c a t i o n f o r
              t h e p o l i c e t o search an area, and i n searching t h e
              area, t h e y i n a d v e r t e n t l y f i n d i n c r i m i n a t i n g evidence
              which t h e y had no reason t o a n t i c i p a t e , t h e y may law-
              f u l l y s e i z e t h a t i n c r i m i n a t i n g evidence." ( C i t i n g
              authority. )

              I n Gallagher t h e s h e r i f f was searching t h e house f o r a p r o w l e r

when he entered t h e bedroom o f defendant and n o t i c e d t h e evidence.                              I n find-

i n g t h a t t h e s h e r i f f ' s reason f o r being i n d e f e n d a n t ' s bedroom was l a w f u l

ana t h a t t h e evidence seized c l e a r l y came w i t h i n t h e " p l a i n view" d o c t r i n e ,
w quoted extensively from the United States Supreme Court decision of
 e
Coolidge v . Nw Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L ed 2d 564, which
              e
thoroughly discusses the "plain view" doctrine, i t s rationale and appl i -
cation.      In Coolidge a t 29 L ed 2d 564, 583, the Court said:
              "The rationale for the 'plain view' exception i s evident
              i f w keep in mind the two distinct constitutional
                   e
              protections served by the warrant requirement. F i r s t ,
              the magistrate's scrutiny i s intended t o eliminate a l -
              together searches not based on probable cause. The
              premise here i s that a?y intrusion in the way of search
              or seizure i s an e v i l , so that no intrusion a t a l l i s
              justified without a careful prior determination of
              necessity. (Citing authority.) The second, d i s t i n c t
              objective i s that those searches deemed necessary should
              be as limited as possible. Here, the specific evil i s
              the 'general warrant' abhorred by the colonists, and the
              problem i s not t h a t of intrusion per se, b u t of a gen-
              eral , exploratory rummaging in a person's belongings.
              (Citing authority.) * * *
              "The 'plain view1-doctrine i s not in conflict with the
              f i r s t objective because plain view does not occur until
              a search i s in progress. In each case, t h i s i n i t i a l
              intrusion i s justified by a warrant or by an exception
              such as 'hot pursuit' or search incident t o a lawful
              a r r e s t , or by an extraneous valid reason f o r the o f f i c e r ' s
              presence. * * *"
              The question in t h i s case becomes whether there was a "prior
justification" f o r the officer to be in defendant's purse.                   There was no
warrant f o r another object.             Hot pursuit was not involved.        Was there an
extraneous valid reason for the o f f i c e r ' s presence in the purse, or pur-
suant t o section 95-701 ( d ) , R.C.M.          1947, was the inspection under the
authority and within the scope of a right granted by law? Let us examine
the facts in more d e t a i l .
             After the officers identified themselves, defendant showed the
officers her welfare card and told them t h a t she lived on Sussex s t r e e t where
she had a birth c e r t i f i c a t e .    Before going t o the s h e r i f f ' s office the
t r i o drove w i t h i n a few blocks of the Sussex address.            In response to
questions asked of Officer Churchwell concerning going t o the house on
Sussex, the officer gave the following answers:
              "Q. And would i t have been much trouble to go to her
              house t o check out the birth c e r t i f i c a t e part of i t ?
              A. That's n o t usually how w operate.
                                           e
                "Q. Well        --   A.     I w o u l d n ' t have done i t t h a t way, no.

                "Q. You o b v i o u s l y d i d n ' t do i t t h a t way; b u t would i t
                have been much t r o u b l e f o r you t o have done t h a t ? A.
                I t c o u l d have been done.

                "Q.     F a i r l y easy, c o u l d i t n o t ? A.        Yes."

                Defendant t o l d t h e o f f i c e r s t h a t her s i s t e r l i v e d w i t h her a t

t h e Sussex address and t h a t her s i s t e r c o u l d prove defendant's i d e n t i f i -

cation.       She a l s o t o l d them t h a t h e r parents l i v e d i n Warm Springs.                 Offi-

c e r Churchwell c o u l d n o t remember whether o r n o t he c a l l e d defendant's

parents.        He t e s t i f i e d as f o l l o w s :

                "Q. M r . Churchwell, i s i t usual f o r you t o phone t h e
                parents when you b r i n g a j u v e n i l e i n ? A. I o f t e n do t h a t ,
                yes.

                "Q. Don't you do t h a t most o f t h e time, p r a c t i c a l l y every
                time? A.          Yes, s i r .

                "Q. Did you phone JoAnn's parents? A. No                  I'm n o t --
                sure whether I d i d o r not. I r e a l l y d o n ' t remember.

                "Q. IfI t o l d you t h a t she t o l d me, and she found o u t
                from her f o l k s t h a t you d i d not, would you be1 i e v e t h a t ?
                A. Yes, s i r . "

                O f f i c e r F r o j e n d i d n o t c a l l defendant's parents.          Defendant's

s i s t e r was c a l l e d l a t e r i n t h e evening.          The drugs were discovered b e f o r e

she a r r i v e d .

                O f f i c e r F r o j e n was handed defendant's w a l l e t w h i l e r i d i n g i n t h e

car.     He t e s t i f i e d t h a t i t was t h e type of b i l l f o l d t h a t would h o l d c r e d i t

cards, papers and i d e n t i f i c a t i o n .           He d i d not, however, a t t h a t t i m e ex-

amine t h e contents o f t h e w a l l e t .              Deferldant t e s t i f i e d t h a t t h e zippered

purse i n which t h e drugs were found was a make-up bag.

                According t o O f f i c e r Churchwell, he asked f o r o t h e r i d e n t i f i c a t i o n

from t h e defendant than what she had produced.                           Defendant informed him t h a t

what she had given t o t h e o f f i c e r was a l l t h a t she had w i t h her.
                O f f i c e r Churchwell was asked what t h e normal procedure i s w i t h a

suspected runaway j u v e n i l e .            He s a i d :
                "A.  Normally I take them t o t h e o f f i c e ; i n t h e case o f
                run-away j u v e n i l e s , take them t o t h e o f f i c e , i n t e r v i e w
                them b r i e f l y and then advise them t h a t I am going t o
            call t h e i r parents. I obtain a phone number from them
            and call the parents."
            I t was the o f f i c e r s ' responsibility to identify the defendant
and notify the proper parties.       W observe from the f a c t s , however, t h a t
                                      e
the officers had several opportunities by which they could obtain identi-
fication.    Present in t h i s case i s an apparent deviation from the normal
procedure f o r identifying the defendant.       This deviation cannot extend
into constitutionally protected areas and be j u s t i f i e d for the purpose of
proving identification.      Noticeably, the available and more r e l i a b l e
alternatives were not pursued by the o f f i c e r s .   There was no valid reason
for the o f f i c e r ' s presence in the defendant's purse, and the "plain view"
doctrine i s not applicable.
            In addition, the s t a t e argues that the seizure can also be
justified on the basis that there was a search made incidental to an a r r e s t .
W do n o t overlook the f a c t that the officers had reasonable grounds t o
e
be1 ieve the defendant was a runaway juvenile.           Defendant, however, was
not arrested; she was simply taken into custody f o r the purpose of proving
her identification.     W note, as did the d i s t r i c t court, that defendant was
                        e
not told that even though she was suspected of being a juvenile that she
could call her parents, her s i s t e r , the address a t Sussex or an attorney.
She was n o t arrested until a f t e r the drugs were found.
            There was no search incident to a lawful a r r e s t .     Therefore, the
seizure was n o t proper on t h i s basis and i t cannot serve as a prior j u s t i f i -
cation f o r the "plain view" doctrine.
            As a third alternative the s t a t e contends t h a t the seizure can be
sanctioned by the Supreme Court of the United States decision in Terry v .
Ohio, 392 U.S. 1 , 88 S.Ct. 1868, 20 L ed 2d 889.          In Terry the court j u s t i -
fied the "stop and f r i s k " procedures used by police officers.        The doctrine
enunciated i n Terry has no application t o the f a c t s of t h i s case.
            For the foregoing reasons, the order of the d i s t r i c t court
suppressing the drugs i s hereby a




W concur:
 e           /7                /




 Justices     --i




Mr. J u s t i c e John Conway Harrison dissenting:
         I dissent.
