State v. Pastos

• Decision Date: 20 December 1994
• Docket Number: No. 93-513,93-513
• Parties: STATE of Montana, Plaintiff and Respondent, v. Nikos PASTOS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 199

887 P.2d 199

269 Mont. 43

STATE of Montana, Plaintiff and Respondent, v. Nikos PASTOS, Defendant and Appellant.

No. 93-513.

Supreme Court of Montana.

Argued Sept. 15, 1994.

Submitted Sept. 15, 1994.

Decided Dec. 20, 1994.

[269 Mont. 44] Diana P. Leibinger, Public Defender Office, Missoula (argued), for appellant.

Joseph P. Mazurek, Atty. Gen., Micheal S. Wellenstein, Asst. Atty. Gen., Helena (argued), Robert L. Deschamps, III, Missoula County Atty., Karen S. Townsend, Deputy Missoula County Atty., Missoula, for respondent.

NELSON, Justice.

This is an appeal from a Fourth Judicial District Court, Missoula County, memorandum and order, denying defendant Nikos Pastos' (Pastos) motion to suppress evidence and from the judgment dated August 30, 1993, adjudging him guilty of the offense charged. We affirm.

The sole issue on appeal is whether the District Court erred in denying Pastos' motion to suppress evidence discovered during an inventory search of his rucksack at the jail following his arrest.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are taken from the State's motion and affidavit for leave to file the information and from the record on appeal.

On February 17, 1992, Missoula City Police Officer Ed Gydas was on routine patrol when he observed Pastos, whom he knew from previous contacts, walking down South 5th East in Missoula. Gydas requested a warrants check and learned that there were active city warrants out for Pastos' arrest. Gydas stopped Pastos, who was carrying a blue rucksack; after asking him for identification and checking his birthday, Gydas confirmed that Pastos was the person wanted on the city warrants. Pastos was arrested and was transported to the Missoula County Jail for booking. Pastos' coat, a black bag and the blue rucksack were transported to the jail with him.

At the jail, a routine booking inventory was conducted with respect to each of the items of Pastos' property. A green army style pouch in the blue rucksack was found to contain four baggies of mushrooms. Police Detective Marty Ludeman transported the bags of mushrooms seized from Pastos' rucksack to the Montana State Crime Lab. The mushrooms tested positively for hallucinogenic psilocybin, a controlled substance.

Pastos was charged with criminal possession of dangerous drugs in violation of § 45-9-102, MCA. He entered a plea of not guilty and, subsequently, moved to suppress the evidence obtained during the inventory search of his rucksack at the jail. The District Court denied the motion.

Pursuant to a plea bargain agreement, Pastos withdrew his not guilty plea and entered an Alford guilty plea, reserving his right to appeal the denial of his motion to suppress. The District Court accepted Pastos' plea, adjudged him guilty of the charged offense, and deferred imposition of sentence for three years. Pastos appeals.

STANDARD OF REVIEW

We review the District Court's conclusions of law in ruling on a motion to suppress evidence to determine whether the trial court's interpretation and application of the law is correct. State v. McCarthy (1993), 258 Mont. 51, 55, 852 P.2d 111, 113; Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

DISCUSSION

In this case we are called upon to determine whether a routine inventory search of an arrestee's possessions conducted at the station house in conjunction with the booking process and in accordance with the law enforcement authority's standard administrative policy or procedure, passes muster under the Montana Constitution.

In contending that such searches are unlawful, Pastos argues that Sections 10 and 11 of Article II of the Montana Constitution provide Montana citizens with a more expansive right of privacy than that afforded by the Fourth Amendment of the federal constitution or the penumbrae of the various amendments to the federal constitution. According to Pastos this broader right of privacy was violated by the search of his rucksack after he was placed in jail. Pastos contends that his right to privacy outweighs any governmental interest in the search of his rucksack, and that, therefore, this Court should order the trial court to suppress the evidence obtained by the police during the search. Pastos argues that our decision in State v. Sierra (1985), 214 Mont. 472, 692 P.2d 1273, is dispositive of the legal question presented.

The State counters that the District Court did not err in denying Pastos' motion to suppress the evidence discovered during the inventory search because there is a compelling state interest in conducting such searches which outweighs Pastos' privacy interest. Moreover, the State asserts that State v. LaMere (1987), 226 Mont. 323, 735 P.2d 511, a more recent case, and the case relied upon by the District Court in making its decision, overruled Sierra by implication and that under the principles enunciated in LaMere, the search was proper.

In discussing the question on appeal, we note, at the outset, that no evidence was presented to the District Court that the search of Pastos' possessions was initiated for the purpose of discovering the fruits of other crimes or to gather evidence of the offense for which he was arrested. In fact, Pastos admitted during oral argument that his was a routine inventory search conducted at the station house pursuant to the law enforcement authority's standardized police administrative procedure applicable to all persons arrested. We underscore that fact and emphasize that our opinion here is limited to those type of searches only.

We begin our analysis by setting forth the two sections of Article II of the Montana Constitution which are implicated here. Section 10 provides:

The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.

Section 11 provides:

The people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures. No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing.

Since a search and seizure was involved in this case, Section 11, is, obviously, pertinent. Notwithstanding, on appeal, Pastos argues that the search and seizure conducted here was unlawful in that his right of privacy under Section 10 was violated. In support of that argument he relies on our prior cases that have, for the most part, dealt with inventory searches in the context of Section 10. Accordingly, in view of the posture in which the question of law to be decided is presented to us, we will, likewise, focus our analysis in this opinion on Article II, Section 10.

In discussing Montana's constitutional right of privacy, we have heretofore recognized at one and the same time the fundamental nature of that right, and that the right is not absolute under all circumstances. "The right of individual privacy is a fundamental constitutional right expressly recognized as essential to the well-being of our society. The constitutional guarantee of individual privacy is not absolute." State, Etc. v. District Court, Etc. (1979), 180 Mont. 548, 555-56, 591 P.2d 656, 660. By its terms, Section 10 provides that the right of individual privacy shall not be infringed without a showing of a compelling state interest. Art. II, Sec. 10, Mont. Const.

We also recognize that when the government intrudes upon a fundamental right, any compelling state interest for doing so must be closely tailored to effectuate only that compelling interest. Zablocki v. Redhail (1978), 434 U.S. 374, 388, 98 S.Ct. 673, 682, 54 L.Ed.2d 618.

Under such analysis, the legal question at issue then becomes: "Is there a compelling state interest which justifies a routine, administrative inventory search of the personal property on, or in the possession of the arrestee at the station house following a lawful arrest?" We answer this question in the affirmative, and conclude that, with regard to such searches, the compelling state interest is the protection of the arrestee, the police, other inmates, and persons and property in and about the station house from the harm and potential for harm posed by weapons, dangerous instrumentalities and hazardous substances that might be concealed on or in the possessions of the arrestee. There are also other subordinate interests which support, but which do not, in and of themselves, justify an inventory search of personal property found on or in the possession of a lawfully arrested person.

In discussing the compelling state interest which we conclude justifies the search at issue here, we first must, necessarily, acknowledge the reality of the times in which we live. There is little doubt that we live in a violent society. Hardly a week goes by without news reports of workers, public officials, employees and other innocent citizens being injured or killed in indiscriminate assaults in offices, work places, schools, restaurants, courtrooms, police stations and other private or public institutions. Whether it be the White House or the doctor's office, sadly, no citizen or property is, today, immune from attack by the deranged, the disaffected, the misguided, the terrorist or the zealot.

The reality of violence and the potential for violence in our society dictates that it is a proper and legitimate concern of law enforcement officers that an arrestee may have concealed on his or her person or in his or her possession weapons, dangerous instrumentalities such as explosives or incendiary devices or hazardous substances, which could be used to injure the police, fellow inmates, employees and members of the public in and about the station house.

That fact was recognized by the U.S. Supreme Court in Illinois v. Lafayette (1983), 462 U.S. 640, 103 S.Ct. 2605, 77...