State v. Ulrich, 80-29

• Citation: 609 P.2d 1218,187 Mont. 347
• Decision Date: 15 April 1980
• Docket Number: No. 80-29,80-29
• Parties: STATE of Montana, Plaintiff and Appellant, v. Joel Jon ULRICH, Defendant and Respondent.
• Court: United States State Supreme Court of Montana

Page 1218

609 P.2d 1218

187 Mont. 347

STATE of Montana, Plaintiff and Appellant, v. Joel Jon ULRICH, Defendant and Respondent.

No. 80-29.

Supreme Court of Montana.

Submitted Feb. 28, 1980.

Decided April 15, 1980.

Mike Greely, Atty. Gen., Helena, Ted O. Lympus, County Atty., Kalispell, Dennis J. Hester argued, Deputy County Atty., Kalispell, for appellant.

Daley, Sherlock & Nardi, Kalispell, Stephen J. Nardi argued, Kalispell, for respondent.

DALY, Justice.

This is an interlocutory appeal by the State of Montana from a judgment of the District Court of the Eleventh Judicial District, in and for Flathead County, suppressing certain evidence in the case of Joel Jon Ulrich, who is charged with the offense of deliberate homicide.

Testimony received at the preliminary hearing held on August 10, 1979, and at the suppression hearing held on January 4, 1980, indicates that Carolyn Wiley died in her Columbia Falls trailer house as a result of a gunshot wound inflicted in the late evening hours of July 14 or the early morning hours of July 15, 1979. Death was caused by a small caliber bullet entering the back of her head.

At approximately 8:00 a. m. on July 15, 1979, Officer Gregory Dawson of the Columbia Falls Police Department arrived at the trailer house occupied by defendant, Joel Jon Ulrich, and the deceased, Carolyn Wiley, and located the body of Ms. Wiley. During an investigation conducted that morning by Officer Dawson and other officers of the Columbia Falls Police Department, information received from interviews indicated that Carolyn Wiley and defendant had been living together for approximately three years; that they had been arguing the day preceding her death; and that defendant was the last person seen with her in the trailer.

At about 2:30 p. m. that same day, defendant Ulrich walked into the Columbia Falls police station and asked, "Will someone tell me what's going on . . .?" He was taken to the office of the chief of police and placed under arrest. He was then given his Miranda rights. At that time, defendant stated that he was not going to say any more until he saw an attorney. Defendant was asked some questions and several times informed the officers that he wished to have an attorney present. During this time period, Officer Dawson entered the room, prepared his equipment, and performed a neutron activation test upon defendant.

The neutron activation test involves running cotton swabs over the fingers, palms, and top of the hands. The swabs are then placed in a special kit and mailed to a scientific laboratory for examination to determine the presence of barium and antimony, the residue of gunpowder.

At no time did the defendant consent to the taking of the neutron activation test. At no time up to and during the taking of the test was defendant's counsel present or had he consulted with counsel. At no time up to and during the swabbing of defendant's hands did he voice a refusal or offer any physical or verbal resistance to the administration of the neutron activation test. No force of any kind was used in the administration of the neutron activation test by Officer Dawson.

Ulrich was charged with the offense of deliberate homicide by complaint dated July 16, 1979. He has entered a plea of not guilty. On December 26, 1979, defendant filed a motion to suppress the results of the neutron activation test on the grounds that it was an unreasonable and illegal search and seizure under the Fourth Amendment. He also sought to suppress other evidence as being in violation of his rights against self-incrimination under the Fifth Amendment and Miranda, and in violation of his Sixth Amendment right to counsel.

A hearing on the motion to suppress was held on January 4, 1980, at which time the District Court made findings of fact and conclusions of law and ordered certain items of evidence suppressed. The District Court found as a matter of law that the arrest of defendant at the Columbia Falls police department was lawful and proper in that there was probable cause to arrest defendant at that time. The Court also determined as a matter of law that the taking of the neutron activation test without having afforded defendant his right to counsel and without obtaining his affirmative consent violated his constitutional rights. Such evidence obtained was thereby ordered suppressed. The District Court's findings, however, are unclear as to the specific legal basis for suppressing the results of the neutron activation test.

Pursuant to section 46-20-103(2)(e), MCA, the State of Montana appeals only that part of the order suppressing the results of the neutron activation test and presents the following issues for review:

1. Whether defendant's Fourth Amendment right to be secure against unreasonable searches and seizures was violated by the administration of a neutron activation test without a search warrant immediately after his arrest?

2. Whether defendant's Fifth Amendment rights against self-incrimination were violated by administering the neutron activation test?

3. Whether defendant's Sixth Amendment right to counsel applies to the administration of the neutron activation test?

The State contends that the administration of a neutron activation test by police officers upon defendant after a lawful and proper arrest is within the authority of the officer's right to search the defendant's person incident to a lawful arrest under the Fourth Amendment of the United States Constitution and under sections 46-5-102(4) and 46-5-101(1), MCA. The manner of search was reasonable under the standards set forth in Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. The Fourth Amendment does not prohibit all searches and intrusions, only those "which are not justified in the circumstances, or which are made in an improper manner," i. e., "unreasonable." Schmerber, 384 U.S. at 768, 86 S.Ct. at 1834.

Defendant contends that the State failed to meet its burden of proof at the suppression hearing to make an affirmative showing that the evidence seized by the neutron activation test could or would have been destroyed or lost had a search warrant been obtained, citing Cupp v. Murphy (1973), 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900; Schmerber, supra; and State v. Cripps (1979), Mont., 582 P.2d 312, 35 St.Rep. 967. Therefore, the District Court properly suppressed any evidence relating to the taking of or results from the neutron activation test. Furthermore, defendant argues that there could be no valid search incident to arrest because there was insufficient probable cause to allow a warrantless arrest, and defendant's arrest was therefore unlawful.

First, we take note that the trial court found probable cause and a legal arrest. This issue has not been appealed, and is not before this Court.

This appeal concerns the permissible scope of a warrantless search incident to arrest where the material seized from the person of the defendant constitutes evidence of the offense. "It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment." United States v. Robinson (1973), 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed.2d 427. See also United States v. Edwards (1974), 415 U.S. 800, 802, 94 S.Ct. 1234, 39 L.Ed.2d 771. A search incident to a lawful arrest requires no additional justification if it is within the permissible scope, Robinson, 414 U.S. at 235, and there is no requirement that the State make a showing that the evidence is destructible.

"The constitutionality of a search incident to arrest does not depend on whether there is any indication that the person arrested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search. United States v. Robinson . . ." Michigan v. Defillippo (1979), 443 U.S. 31, 99 S.Ct. 2627, 2631, 61 L.Ed.2d 343.

Additionally, although the fact that there was evidence upon defendant's person that could be destroyed or lost over a period of time was a factor considered by the Court in Schmerber and in Cupp v. Murphy, supra, the evidence in this case was also destructible or subject to loss with the passage of time, as were the fingernail scrapings in Cupp and the blood sample in Schmerber.

We are of the opinion that the administration of a neutron activation test by police officers upon defendant following his arrest was within the permissible scope of a search incident to a lawful arrest under the Fourth Amendment. To begin with, the Fourth Amendment does not prohibit all searches and seizures, only those which are "unreasonable"; i. e., "which are not justified in the circumstances, or which are made in an improper manner." Schmerber, 384 U.S. at 768, 86 S.Ct. at 1834. Any intrusion involved in this case was minimal, and the search and the manner in which it was conducted were reasonable under the standards set forth by the United States Supreme Court in Schmerber and Cupp.

In affirming the defendant's conviction for operating a motor vehicle while under the influence of intoxicating liquor, a majority of the Court in Schmerber held that the extraction from the defendant of a blood sample to test for alcohol as an incident to his arrest was not an unreasonable search. The Court compared searches of dwellings and "intrusions into the human body," and went on to observe that the taking of a blood sample to...