State v. Sawyer
| Citation | 571 P.2d 1131,174 Mont. 512,34 St.Rep. 1441 |
| Decision Date | 16 November 1977 |
| Docket Number | No. 13731,13731 |
| Parties | The STATE of Montana, Plaintiff and Appellant, v. Wade Turner SAWYER, Defendant and Respondent. |
| Court | United States State Supreme Court of Montana |
Mike Greely, Helena, Robert Yunck (argued), Cut Bank, for plaintiff and appellant.
Hooks & Sherlock, Townsend, Jeffrey M. Sherlock (argued), Townsend, for defendant and respondent.
The state appeals from an order of the district court, Broadwater County, suppressing evidence obtained in an inventory search of defendant's automobile.
Defendant was apprehended August 14, 1976, after Undersheriff Michael Walrod observed him making an illegal turn on the streets of Townsend, Montana. Officer Walrod recognized defendant and proceeded with Ted Ingersoll, a forest service director who was accompanying the officer, to look for defendant. They found defendant's car at a bar parking lot and noticed the car had a ten-day registration sticker which had expired. The officer found defendant in the bar and informed him he was charged with reckless driving and improper vehicle registration, and that he would be ticketed at the sheriff's office. Officer Walrod rode to the sheriff's office with defendant, in defendant's car.
At the sheriff's office Officer Walrod informed defendant bond would be $125; $100 for reckless driving and $25 for improper vehicle registration. Defendant was unable to meet the bond, so he was booked and placed in the county jail. At that time officers impounded defendant's automobile and made a complete inventory of its contents, discovering pills they believed to be amphetamines under the driver's seat. As a result, defendant was charged with criminal possession of dangerous drugs.
The district court suppressed the evidence obtained in the inventory, based on these conclusions of law:
First, we consider the state's contention the district court erred in its finding that bail was improperly set by a law enforcement officer. Although it is a constitutional and statutory requirement that bail be set by a judicial officer, section 95-1103, R.C.M.1947, allows a peace officer to accept bail in limited circumstances:
* * * "
The state argues there is no evidence in the record to support the conclusion of the district court that bond was not accepted "in accordance with the schedule" as required by section 95-1103. While the officer admitted he did not physically refer to the bond schedule set by the justice of the peace, he explained:
We decline to hold that a peace officer may not rely on his everyday experience and memory in accepting bond in behalf of a magistrate. There was no evidence the bond accepted by the officer in the instant case was any different from that listed in the bond schedule. The district court finding of a violation of section 95-1103 is not supported by substantial evidence.
Second, is the question of the constitutionality of the inventory search of defendant's vehicle. The state freely admits the officers had no probable cause or even any suspicion that contraband might be found in the vehicle. No search warrant was ever obtained. The inventory was conducted, according to the officers who testified, solely as a matter of standard police procedure for the protection of any valuable items which the owner may have left in the automobile. The constitutionality of such a search is a question of first impression in Montana.
It is axiomatic that a search must comport with state and federal constitutional law. The reasonableness of an inventory search under the Fourth Amendment of the United States Constitution was discussed in the recent United States Supreme Court decision South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). The Court in Opperman upheld, by a 5-4 majority, an inventory search of an abandoned automobile impounded for multiple overtime parking violations.
The district court in the instant case factually distinguished Opperman and found a violation of the Fourth Amendment. We need not consider the Fourth Amendment issue because we view the Montana Constitution to afford an individual greater protection in this instance than is found under the Fourth Amendment in Opperman.
The 1972 Montana Constitution, Art. II, Sections 10 and 11, provide:
The importance of the right of individual privacy to the framers of the Montana Constitution is obvious from these provisions. This Court has previously noted the significance of the explicit guarantee of the right of individual privacy contained in Section 10, as no comparable provision exists in the United States Constitution. State v. Coburn, 165 Mont. 488, 495, 530 P.2d 442 (1974).
It is also clear that an inventory search such as the one considered here is a significant invasion of individual privacy. One of the officers testified that the standard inventory search is no different in scope than a warranted search of an automobile. As was noted in Mozzetti v. Superior Court, 4 Cal.3d 699, 94 Cal.Rptr. 412, 416, 484 P.2d 84, 88, 89 (1971):
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State v. Arthur Ray Peoples
... ... See, e.g., ... State v. Hardaway , 2001 MT 252, ¶ 51, 307 Mont ... 139, 36 P.3d 900; State v. Scheetz , 286 Mont. 41, ... 47, 950 P.2d 722, 725 (1997); State v. Solis , 214 ... Mont. 310, 316-18, 693 P.2d 518, 521-22 (1984); State v ... Sawyer , 174 Mont. 512, 515-18, 571 P.2d 1131, 1133-34 ... (1977), overruled on other grounds by State v. Long , ... 216 Mont. 65, 67-69, 700 P.2d 153, 155-56 (1985). Similar to ... the test that triggers the implicit privacy protection ... provided by the Fourth Amendment and Article II, Section 11 ... ...
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§ 15.01 AUTOMOBILE INVENTORIES
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TABLE OF CASES
...A.2d 1132 (Conn. 1993) , 154 Savva, State v., 616 A.2d 774 (Vt. 1991), 225 Sawyer v. Whitley, 505 U.S. 333 (1992), 28 Sawyer, State v., 571 P.2d 1131 (Mont. 1977), 239 Scales, State v., 518 N.W.2d 587 (Minn. 1994) , 433 Schmerber v. California. 384 U.S. 757 (1966), 61, 141, 183, 195, 416, 4......