State v. McCarthy

• Decision Date: 16 April 1993
• Docket Number: No. 92-189,92-189
• Citation: 258 Mont. 51,852 P.2d 111
• Parties: STATE of Montana, Plaintiff and Respondent, v. Daniel Richard McCARTHY, Defendant and Appellant.
• Court: Montana Supreme Court

Page 111

852 P.2d 111

258 Mont. 51

STATE of Montana, Plaintiff and Respondent, v. Daniel Richard McCARTHY, Defendant and Appellant.

No. 92-189.

Supreme Court of Montana.

Submitted on Briefs Oct. 22, 1992.

Decided April 16, 1993.

Randi M. Hood, Public Defender, Helena, for defendant and appellant.

Patricia J. Jordan, Asst. Atty. Gen., Marc Racicot, Atty. Gen., Mike McGrath, Lewis and Clark County Atty., Lisa Leckie, Deputy County Atty., Helena, for plaintiff and respondent.

WEBER, Justice.

This is an appeal from an order of the First Judicial District Court, Lewis and Clark County, denying appellant's motion to suppress evidence seized in a warrantless search. We affirm.

The issues on appeal are:

1. Did the District Court err in denying McCarthy's motion to suppress evidence due to an illegal warrantless search of a vehicle and a jacket in that vehicle?

2. Did the District Court err by refusing to suppress evidence found upon McCarthy's person at the time of his booking because such evidence was fruit of the poisonous tree?

Daniel R. McCarthy (McCarthy), Shannon Hiatt (Hiatt), and Leslie Eddards (Eddards), were involved in a one-vehicle accident on July 5, 1991 on the Stemple Pass road in Lewis and Clark County. McCarthy and Hiatt were passengers in the car driven by Eddards. Montana Highway Patrol Officer Scott Swingley arrived at the scene and found the automobile in a ditch with its engine running and Hiatt severely injured.

Swingley suspected that the driver, Eddards, was intoxicated and administered a breathalizer test. The test results showed .175 blood alcohol content. Swingley arrested Eddards on a DUI charge, handcuffed him and placed him in the rear seat of the police car.

Swingley then read McCarthy his rights and asked McCarthy if there was anything illegal in the car, upon which McCarthy said "You know about the pot pipe?" Both McCarthy and Swingley then approached the car at which point McCarthy began searching from the passenger side for the pipe which he stated was located around the car's gearshift. He could not find it.

Swingley went to the driver's side and saw a crumpled jacket in the back seat with a clear plastic baggie protruding from the pocket. He reached into the jacket, pulled out the baggie and determined the green leafy substance might be marijuana. He replaced the baggie in the pocket and asked McCarthy who the jacket belonged to. McCarthy said it was his, upon which Swingley pulled the baggie from the pocket.

Swingley arrested McCarthy and transported him to the county jail in Helena where jail personnel discovered a small baggie in McCarthy's right front pant's pocket. The baggie contained LSD. McCarthy was charged with felony possession of dangerous drugs.

On August 22, 1991, McCarthy pled not guilty, and on September 10, 1991, filed a motion to suppress evidence. A hearing was held on October 24, 1991. The District Court denied McCarthy's motion to suppress on December 10, 1991. McCarthy entered an Alford plea of guilty on February 6, 1992, and received a two year deferred sentence on the felony count. McCarthy reserved his right to appeal the denial of his motion to suppress at the time he pled guilty. This appeal followed.

I

Did the District Court err in denying McCarthy's motion to suppress evidence due to an illegal warrantless search of a vehicle and a jacket in that vehicle?

McCarthy argues that as a passenger in Eddards' car he had a reasonable expectation of privacy in both the car and his jacket. McCarthy contends that he is protected against unreasonable searches by the Fourth Amendment of the United States Constitution and Article II, Section 11 of the Montana Constitution. McCarthy contends that warrantless searches are per se unreasonable and that the exception to the rule requires probable cause which did not exist here.

The State argues that Officer Swingley had probable cause to search McCarthy's jacket and such search was valid under the "automobile exception" to the Fourth Amendment's warrant requirement. The State further argues that it was permitted to search both the automobile and McCarthy's jacket as a search incident to Eddards' arrest for DUI.

An exception to the warrant requirement is the "automobile exception," which requires the existence of probable cause to search and the presence of exigent circumstances, that is, that it was not practicable under the circumstances to obtain a warrant. State v. Allen (1992), --- Mont. ----, ----, 844 P.2d 105, 108, 49 St.Rep. 1130, 1131. We first address McCarthy's claim concerning the automobile itself.

McCarthy "bears the burden of proving not only that the search.... was illegal, but also that he had a legitimate expectation of privacy" in the automobile. Rawlings v. Kentucky (1980), 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633, 641. A person is protected from search and seizure only if it is reasonable to expect privacy under the surrounding circumstances. City of Billings v. Whalen (1990), 242 Mont. 293, 790 P.2d 471. McCarthy offered no reasons nor foundation for his claim of privacy in the auto. The car was on a public highway, was involved in a DUI and belonged to the father of the driver. Under these circumstances, we conclude that it was not reasonable for McCarthy to have any expectation of privacy in the auto itself, nor has he offered proof of any.

However, under certain circumstances, McCarthy could have had a different expectation of privacy in his jacket which was found in the car. Since McCarthy has claimed ownership of the article seized, the jacket, we review the circumstances of this case to see if police had authority to make a warrantless search of McCarthy's jacket. See, W. Ringel, Searches & Seizures, Arrests & Confessions, § 11.7, pp. 1156-57 (1992).

In its conclusions of law, the District Court determined that, under the automobile exception, Officer Swingley had probable cause to search the car including McCarthy's jacket after being told that there was a pot pipe in the car. Because the District Court determined that Officer Swingley had probable cause, it denied McCarthy's motion to suppress the evidence. We review conclusions of law by the District Court as to whether the court's interpretation of law was correct. Steer Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

Warrantless searches are per se unreasonable under the Fourth Amendment of the United States Constitution. Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. Both federal and state law acknowledge certain specific exceptions to the need for a warrant. California v. Acevedo (1991), --- U.S. ----, 111 S.Ct. 1982, 114 L.Ed.2d 619; State v. Evjen (1988), 234 Mont. 516, 765 P.2d 708. One of those exceptions is known as the automobile exception. Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. The automobile exception has been adopted by this Court in State v. Spielmann (1973), 163 Mont. 199, 516 P.2d 617.

The history of the automobile exception to the prohibition against warrantless searches has been long and varied. The exception was initially recognized as an attempt to enable authorities to stop the transport of illegal liquor during the Prohibition Era. E. Wedlock, Car 54--How Dare You!: Toward a Unified Theory of Warrantless Automobile Searches, 75 Marquette Law Review 79 (1991). Since that time the exception has been broadened but remains clearly delineated by specific parameters, particularly in Montana.

In the 1988 case of Evjen this Court concluded that an automobile may be searched by police without a warrant where there is probable cause to believe the automobile's contents offend against the law. Evjen, 234 Mont. at 520, 765 P.2d at 710. In that case the Court pointed out that the resolution of the case did not depend upon whether the officers had made an actual arrest, but upon whether the officers had probable cause to search the motor vehicle without a warrant pursuant to the "probable cause exception." Evjen, 234 Mont. at 519, 765 P.2d at 711. In Evjen the Court determined that the officer had specific information from a reliable informant that she had been in the pickup, saw drugs in the pickup and described three persons who had arrived in the truck. The information given by the informant was confirmed when three persons did approach the truck. The Evjen Court concluded there was probable cause to search the truck, stating:

There is no question that Officer Phillips had probable cause to search the truck at that time. The alternatives were to hold the truck until a magistrate or judge could issue a search warrant, or allow the three persons to get into their truck and drive away with the contraband evidence. Because the officer had probable cause to search the vehicle, the search was not unreasonable under the Fourth Amendment, even though an actual arrest of the defendant had not been made.

Evjen, 234 Mont. at 520, 765 P.2d at 711.

In the 1992 case of Allen, we quoted from the U.S. Supreme Court case of California v. Acevedo (1991), --- U.S. ----, 111 S.Ct. 1982, 114 L.Ed.2d 619. In Allen, we agreed with the Acevedo analysis of closed containers found during an automobile search:

We conclude that it is better to adopt one clear-cut rule to govern automobile searches and eliminate the warrant requirement for closed containers set forth in [Arkansas v.] Sanders [442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235].

Allen, --- Mont. at ----, 844 P.2d at 110; citing Acevedo, --- U.S. at ----, 111 S.Ct. at 1986. We concluded in Allen, as we do here, that the police may search without a warrant if their search is supported by probable cause. Allen, --- Mont. at ----, 844 P.2d at 110. That search includes any closed containers found in the automobile.

Here Officer Swingley had come to the scene of an automobile accident in which a passenger had been seriously injured. He arrested the driver of the vehicle on a...