State v. Isom

• Decision Date: 15 March 1982
• Docket Number: No. 81-18,81-18
• Citation: 641 P.2d 417,196 Mont. 330
• Parties: STATE of Montana, Plaintiff and Respondent, v. Howard Michael ISOM, Defendant and Appellant.
• Court: Montana Supreme Court

Page 417

641 P.2d 417

196 Mont. 330

STATE of Montana, Plaintiff and Respondent, v. Howard Michael ISOM, Defendant and Appellant.

No. 81-18.

Supreme Court of Montana.

Submitted Sept. 17, 1981.

Decided Jan. 21, 1982.

Rehearing Denied March 15, 1982.

Leo Gallagher argued, Helena, for defendant and appellant.

Mike Greely, Atty. Gen., John Maynard, Asst. Atty. Gen., argued, Charles Graveley, County Atty., Steve Garrison, Deputy County Atty., argued, Helena, for plaintiff and respondent.

DALY, Justice.

Defendant was charged by information with possession of dangerous drugs with intent to sell, as provided in section 45-9-103(1), MCA. He pleaded not guilty. His motion to suppress was denied by the District Court of the First Judicial District, Lewis and Clark County. After a jury trial defendant was found guilty of felony possession of dangerous drugs, a lesser included offense of possession with intent to sell. On October 15, 1980, the defendant was sentenced to five years in the Montana State Prison, with two years suspended. Defendant appeals his conviction.

Based on information from an informant, the Lewis and Clark County Sheriff's Department placed under surveillance the residence located at 1014 Elm Street, Helena, Montana. About noon on January 11, 1980, two deputy sheriffs observed a man later identified as John Stemple, a suspected drug dealer, leave the Elm Street residence. He was carrying a large green garbage bag which he put into a tool box in the back of his pickup truck parked in front of the residence.

Stemple went back into the residence. A brown Ford station wagon pulled up. A man later identified as the defendant got out of the station wagon and went into the residence. Stemple then left the residence and drove away in his pickup, followed by the two deputies in an unmarked car.

According to the deputies, Stemple made evasive maneuvers by turning several corners sharply. They lost sight of Stemple and called for the aid of a third officer. The third officer stopped Stemple within a matter of minutes.

The officers searched Stemple's truck but could not find the green garbage bag that Stemple had placed in the tool box. Because of a recent snowfall the officers were able to retrace the tracks of the pickup. The tracks led to an alley behind a gas station where they found a large green garbage bag which apparently had been placed there recently since it was not covered with snow. The deputies looked inside the bag and found it full of marijuana contained in small plastic bags.

An officer went to get a search warrant for the Elm Street residence and for a maroon Chrysler Cordoba parked in front of the residence which the officers believed had been used to transport narcotics. A search warrant for both the residence and the car was issued by a justice of the peace. The warrant application contained the above information, except there was no mention of the surveillance being based on an informant's tip and no mention that John Stemple was a suspected drug dealer.

At least eight officers and the county attorney executed the search warrant. When the officers arrived at the Elm Street residence, they noticed that the motor was running on the Chrysler. A couple of officers stayed with the car, while the others went to search the residence. Defendant answered the door of the residence. The officers handed him the search warrant as they entered. Defendant was only wearing a pair of blue jeans. He testified that he was half-dressed because he was getting ready to take a shower. Defendant was ordered to sit on the couch and not to leave the room.

Defendant was the only occupant of the residence when the officers entered. He was a guest of his uncle who rented the residence. He had been sleeping on the couch in the living room and had stored his belongings in the living room and in a bedroom.

The officers searched the entire house, finding marijuana residue and drug paraphernalia in nearly every room, including the living room, bathroom and kitchen. A small plastic bag of marijuana was found in the bedroom of defendant's uncle.

One uniformed officer was told to stay with defendant and watch him while the others completed the search. He asked defendant if he owned the car parked in front of the residence. Defendant said he did not own the car. In response to further questioning, defendant said he did not know who did own the car and did not know where the keys to the car's trunk were located. Defendant was not arrested prior to these questions and had not been given a Miranda warning.

The officers searched the car. Upon finding the glove compartment and the trunk locked, they forced the glove compartment open, and inside it they found a key to open the trunk. Inside the trunk the officers found several large green garbage bags which contained approximately eighty to ninety pounds of marijuana. After the search of the residence and the car, defendant was arrested.

At the suppression hearing, defendant introduced evidence to show that he owned the car in which the marijuana was found.

This case may be resolved by looking at the three primary issues presented:

1. Whether the defendant has standing to contest the legality of the search of the residence where he was an overnight guest;

2. Whether the defendant has standing to contest the search of his car and the garbage bags found in its trunk when he denied ownership of the car at the time of the search; and

3. Whether the District Court erred in its denial of defendant's motion to suppress evidence seized from the residence and the car.

With respect to defendant's standing to contest the search of the house, the State would have this Court adopt the perspective and reasoning of the most recent United States Supreme Court decisions which have overruled the automatic standing rule of Jones v. United States (1960), 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. See, United States v. Salvucci (1980), 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619, and Rawlings v. Kentucky (1980), 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633.

Jones had set down two alternative holdings: (1) when the fruits of a search are proposed to be used against a defendant at the trial, he has "automatic standing" to contest the legality of the search; and (2) anyone "legitimately on the premises where a search occurs may challenge its legality by way of a motion to suppress". Jones, 362 U.S. at 267, 80 S.Ct. at 734. The purpose of the automatic standing rule was to quash the "vice of prosecutorial self-contradiction" in which the State could charge a person with possession as a crime, and at the same time claim that the possession was not sufficient to give the person standing to challenge the legality of the search or seizure. See, Brown v. United States (1973), 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208.

In overruling the automatic standing rule in Jones, both Salvucci and Rawlings relied heavily upon the earlier case of Rakas v. Illinois (1978), 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387.

In Rakas, the Court stated that the Jones test of "legitimately on the premises" cannot be taken in its full sweep beyond the facts of that one case. Rather, said the Court, the true test of whether a Fourth Amendment right has been violated is found in Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, in which the Supreme Court said that the capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Fourth Amendment has a legitimate expectation of privacy in the invaded place. Katz, 389 U.S. at 353, 88 S.Ct. at 512; Rakas, 439 U.S. at 143, 99 S.Ct. at 430.

Notwithstanding the limitations placed on Jones, the Court in Rakas, and again in Salvucci, emphasized that ownership is not a key element in determining standing. The test for standing is not to be based on distinctions out of property and tort law: "In defining the scope of that interest, we adhere to the view expressed in Jones and echoed in later cases that arcane distinctions in property and tort law between guests, licensees, invitees, and the like ought not to control." See Jones, 362 U.S. at 266, 80 S.Ct. at 733; Rakas, 439 U.S. at 143, 99 S.Ct. at 430; Salvucci, 448 U.S. at 91, 100 S.Ct. at 2553; and Rawlings, 448 U.S. at 105, 100 S.Ct. at 2561. The controlling view, then, seems to be that expressed in Mancusi v. DeForte (1968), 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154, in which the Court said that the Katz test of " 'legitimate expectation of privacy' makes it clear that capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place, but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion." See Mancusi, 392 U.S. at 368, 88 S.Ct. at 2124. (Emphasis added.) Following the rationale that ownership is not the controlling factor in the determination of standing, although it is one factor to consider, the Supreme Court has pointed out that the actual holding in Jones was not overruled. In Rawlings, the Court referred to parts of Rakas which explained why the defendant in Jones would still have standing under the recent narrow tests for standing. The Court in Rakas reasoned that the defendant in Jones, who was using an apartment with the tenant's permission, would continue to have standing under the recent tests because the defendant "had complete dominion and control over the apartment and could exclude others from it." Rakas, 439 U.S. at 149, 99 S.Ct. at 433. The Court in Rakas also reasoned that the defendant in Katz, who was in a phone booth, had standing to contest a search of the booth because he had an expectation of privacy when he "shut the door behind him to exclude all others and paid the toll." Rakas, 439 U.S. at 149, 99 S.Ct. at 433.

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