State v. Holzapfel
| Decision Date | 14 January 1988 |
| Docket Number | No. 86-550,86-550 |
| Citation | 230 Mont. 105,748 P.2d 953,45 St.Rep. 53 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. David HOLZAPFEL, Defendant and Appellant. |
| Court | Montana Supreme Court |
Arthur D. Agnellino, Missoula, for defendant and appellant.
Mike Greely, Atty. Gen., Marc Racicot, County Prosecutors Services, Joe Roberts, Asst. Atty. Gen., Helena, Harold Hanser, Co. Atty., Billings, for plaintiff and respondent.
Defendant, David F. Holzapfel, appeals his conviction of two counts of accountability for the criminal sale of dangerous drugs (felony) in the Thirteenth Judicial District, Yellowstone County. Holzapfel was sentenced to 20 years on each count, the sentences to be served concurrently, with the last ten years suspended in lieu of restrictive probation. We reverse and remand for dismissal of Count I (hereinafter referred to as the Motel Count) and affirm as to Count II (hereinafter referred to as the Apartment Count).
Defendant raises five issues on appeal:
1. Whether the District Court erred in admitting into evidence the results of a post-arrest, nonconsensual, warrantless search of defendant's wallet?
2. Whether the fruits of a warrantless search of defendant's hands after arrest with an ultraviolet light are admissible?
3. Whether it was error to instruct the jury that the State's witness was an accomplice of the defendant as a matter of law?
4. Whether there existed sufficient corroboration of accomplice Mohland to support conviction on the Motel Count?
5. Whether there is sufficient credible evidence to support defendant's conviction on the Apartment Count?
The facts relevant to this appeal are as follows:
Motel Count: On July 16, 1985, an undercover agent for the Montana Criminal Investigation Bureau, Doug King, contacted John Mohland in a Billings bar. While meeting with Mohland, arrangements were made by King to purchase an ounce of cocaine through Mohland for $2,200.
On July 19, 1985, King met Mohland at the same bar. The two men drove to a Thrifty Scot Motel where King waited in Mohland's truck while Mohland went inside the motel. Mohland returned to the truck in a short time stating that the person whom he was seeking was not there. Mohland and King came back to the Thrifty Scot Motel later that evening. Again, Mohland took King's $2,200 and entered the motel while King waited outside in the truck. Mohland returned from the motel with a baggie containing white powder purported to be cocaine. The two men separated and King turned the alleged cocaine over to a police agent.
Trial testimony shows that David Holzapfel, address 3930 Victory Circle, Billings, Montana, was registered at the Thrifty Scot Motel on July 19, 1985. The record states that Holzapfel was staying at the motel for a few days because of an argument between he and his wife.
Apartment Count: On July 23, 1985, King again contacted Mohland at a Billings bar. On this date King asked Mohland to help him purchase 4 ounces of cocaine. As a result of this meeting King met with Mohland at a designated location on July 25, 1985. They drove in Mohland's truck to Victory Circle, a Billings apartment complex. King gave Mohland $8,400 to purchase the drugs. The money had been dusted with invisible detection powder which shows up only under ultraviolet light. Mohland took the money and disappeared into Building 3930. An agent stationed outside of the complex as part of a surveillance team testified that he saw Mohland at the door of Apartment 18 in Building 3930. There were approximately 12 officers attempting to completely surround the apartment buildings for a 360? surveillance.
After approximately ten minutes, Mohland returned to King's location and gave him a baggie containing a white substance which was later identified as cocaine. Police agents and officers surrounded the vehicle and Mohland was arrested.
Following Mohland's arrest, an officer of the Billings police department and two special agents proceeded to Apartment 18 in Building 3930. No one answered the door to Apartment 18 when they knocked so the officer kicked the door open.
Although the agents and officer did not have a search warrant at the time they kicked the door to Apartment 18 open, they testified that because no one was observed leaving the apartment or the apartment building they believed the suspected drug seller was inside. They apparently believed that they needed to get inside quickly to preserve any evidence in the apartment.
The only people inside Apartment 18 were a woman and a baby, later identified as Esther and Jennifer Holzapfel, David Holzapfel's wife and infant daughter. However, one of the agents testified that Esther Holzapfel told the police that her husband had just left the residence. The apartment was secured until a search warrant was obtained approximately three hours later. The search warrant was obtained in the name of Esther Holzapfel for the apartment of Esther Holzapfel. The search revealed books about drugs and drug manufacturing, a scale, plastic baggies, plastic vials and other alleged drug paraphernalia.
Around 3:30 or 4:00 that afternoon, while the police were waiting for the search warrant, David Holzapfel appeared at the apartment with a friend. The friend, Harold C. James, Jr., testified that he had been with David Holzapfel since approximately noon of that day, July 25, 1985. However, on cross-examination James indicated that Holzapfel may have arrived at least two hours after noon. Holzapfel supposedly came to James' house to solicit his help in moving some heavy furniture. After watching T.V. and talking for "a while" they proceeded to Apartment 18, in Victory Circle where defendant lived with his wife, Esther Holzapfel and their daughter. When confronted at the apartment door and denied entrance, David Holzapfel walked away from the apartment complex. James was retained and questioned for approximately 2 to 3 hours.
At the time of his arrest, John Mohland told the police that David Holzapfel had sold him cocaine on July 19 at the Thrifty Scot Motel and on July 25 at Apartment 18, Building 3930, Victory Circle. On July 25, David Holzapfel called an attorney, Allen Beck, and requested Beck to find out if a warrant for his arrest had been issued. Beck talked with the Yellowstone County Special Deputy County Attorney and made arrangements with him to have David Holzapfel arrested at Beck's office the following day.
David Holzapfel was arrested at Allen Beck's office on July 26, 1985. Special agent McKay transported Holzapfel to the Yellowstone County Jail where he was booked. Without obtaining a search warrant, Agent McKay took Holzapfel's wallet from the jailer and examined it under an ultraviolet light. McKay testified that in the wallet he found "apparent traces of invisible flourescent detection powder." Immediately after searching the wallet, agent McKay searched defendant's hands with the ultraviolet light. He found traces of the detection powder on the knuckle of defendant's right ring finger.
At trial Mohland testified as the State's witness. He claimed that David Holzapfel sold to him for Doug King one ounce of cocaine on July 19, 1985, at the Thrifty Scot Motel, and 4 ounces of cocaine on July 25, 1985, at Apartment 18, Building 3930, Victory Circle. The District Court instructed the jury that Mohland was Holzapfel's accomplice as a matter of law.
Defendant moved the District Court to suppress the evidence obtained during the search of Apartment 18, Building 3930, Victory Circle and from the warrantless searches of his wallet and hands while being jailed. All motions were denied. In spite of objections by defendant at trial, all the evidence obtained during these searches was introduced.
David Holzapfel was found guilty on both Counts for accountability for the criminal sale of dangerous drugs (felony). From these convictions, David Holzapfel appeals.
Whether the District Court erred in admitting into evidence the results of a post-arrest, nonconsensual warrantless search of defendant's wallet.
Holzapfel argues that Officer McKay's inspection of the wallet violated his privacy rights under the U.S. Constitution and the Montana Constitution because McKay did not obtain a warrant prior to the search. The State responds that § 46-5-101, MCA excepts McKay's actions from the warrant requirement.
Section 46-5-101, MCA, states:
46-5-101. Searches and seizures--when authorized. A search of a person, object, or place may be made and instruments, articles, or things may be seized in accordance with the provisions of this chapter when the search is made:
(1) as an incident to a lawful arrest;
This statute and the State's interest in conducting a search, whether it be incident to lawful arrest or an inventory search, must be weighed against the individual's expectation of privacy and the other rights afforded individuals by the U.S. Constitution, Fourth Amendment and the Montana Constitution, Art. II, §§ 10 and 11.
In balancing the Fourth Amendment interest, the Ninth Circuit Court of Appeals has held that a "warrantless search of personal possessions at the station house pursuant to a valid arrest does not violate one's Fourth Amendment rights." United States v. King, 472 F.2d 1, 7 (9th Cir.1972), cert. denied, 414 U.S. 864, 94 S.Ct. 40, 38 L.Ed.2d 84 (1973); and see generally Annot., 29 A.L.R.4th 771, 847. In United States v. Ziller (9th Cir.1980), 623 F.2d 562, cert. denied, 449 U.S. 877, 101 S.Ct. 221, 66 L.Ed.2d 99 (1980), and in United States v. Passaro (9th Cir.1980), 624 F.2d 938, cert. denied, 449 U.S. 1113, 101 S.Ct. 925, 66 L.Ed.2d 842 (1981), the Court faced the issue of the validity of a warrantless investigatory search at the station house of an arrestee's wallet. In Passaro, the Court stated that a wallet is an element of clothing, "which is, for a reasonable time following a legal arrest, taken out of the...
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