State v. Sierra

• Decision Date: 04 January 1985
• Docket Number: No. 84-67,84-67
• Citation: 692 P.2d 1273,214 Mont. 472,42 St.Rep. 106
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Appellant, v. Roberto SIERRA, Defendant and Respondent.

Page 1273

692 P.2d 1273

214 Mont. 472

STATE of Montana, Plaintiff and Appellant, v. Roberto SIERRA, Defendant and Respondent.

No. 84-67.

Supreme Court of Montana.

Submitted on Briefs June 14, 1984.

Decided Jan. 4, 1985.

Mike Greely, Atty. Gen., Mark Murphy, Asst. Atty. Gen., Helena, Wm. Nels Swandal, County Atty., Livingston, for plaintiff and appellant.

Karl Knuchel, Public Defender, Livingston, for defendant and respondent.

SHEA, Justice.

The State of Montana appeals from an order of the Park County District Court suppressing part of the evidence seized from defendant after he and another friend had been arrested and taken to the police station to be detained until it could be determined whether they were legally in the United States. The State seized some marijuana from defendant as he was emptying his pockets at the police station pursuant to police orders, and the court held that this evidence was admissible. However, the State also had ordered the defendant to open his suitcase, and when he did the State discovered a large quantity of marijuana in the suitcase. Defendant moved to suppress this evidence, a felony amount, and the trial court suppressed this evidence, holding that the seizure violated defendant's right to privacy guaranteed by Art. II, Sec. 10 of the Montana Constitution. We affirm.

The State, relying primarily on decisions of the United States Supreme Court, argues that the seizure of the evidence does not violate defendant's right to privacy under Art. II, Sec. 10 of the Montana Constitution. The defendant argues that the pre-incarceration inventory of the contents of the arrestee's suitcase does violate Art. II, Secs. 10 and 11 of the Montana Constitution.

The defendant, Roberto Sierra, is a Cuban who speaks no English, but is legally in the United States and requires no so-called "green card." On the day in question he carried identification with him which included a form I-91 and a social security card which bore his name. His companion, Jose Juarez, a Mexican, speaks only limited English but carried no identification showing his status and whether he is legally in the United States.

During the early evening hours of August 7, 1983, defendant and his companion were walking along Park Street in Livingston and were observed by deputy sheriff Dennis Frawley. The deputy thought the appearance of these two men might mean they were illegal aliens, so he stopped them and questioned Jose Juarez. Juarez, speaking only limited English, could produce no identification authorizing him to be in the United States. Deputy Frawley took Juarez into custody and then approached the defendant and asked for identification. Although defendant could speak no English, he did produce photocopies of a form I-91 and a social security card which bore his name. The deputy arrested defendant also and took them both to the Park County Law Enforcement Center where they were booked and placed in jail.

During the booking procedure Frawley and three other deputies ordered defendant to empty his pockets. When defendant did so he removed a small amount of a substance which looked like and later tested to be marijuana. Immediately afterwards, a suitcase carried by Sierra at the time of his arrest, was opened and its contents were examined. Approximately seven pounds of marijuana were found in the suitcase. At no time before the police discovered the contraband did they attempt to secure an interpreter so that defendant could be advised of his rights or asked what he wanted done with the suitcase and its contents.

The trial court held that the marijuana seized from defendant's pockets was admissible. But as to the marijuana seized from defendant's suitcase the trial court ruled that its discovery was not incident to a lawful arrest and so was improper. The court, in explaining his ruling, concluded that defendant had a more expansive right to privacy than that guaranteed to him by the Fourth Amendment, and therefore the search of his suitcase was unconstitutional. We hold that less intrusive means must be used in these circumstances, that they were not used here, and that in opening defendant's suitcase without a search warrant, the police violated his privacy rights.

In the case of State v. Sawyer (1977), 174 Mont. 512, 571 P.2d 1131, Justice Harrison, speaking for an unanimous Court, expressly held that an inventory search is "a substantial infringement upon individual privacy" and therefore it is subject to the right of privacy provision (Art. II, Sec. 10), as well as the search and seizure provision (Art. II, Sec. 11), of the Montana Constitution, 174 Mont. at 517, 571 P.2d at 1133-1134. This Court has never held that the right of privacy provision makes it any more difficult to obtain a search warrant than was the case before, but we have of course recognized that search and seizure provisions do not undo the right to privacy provisions of our Constitution.

The State relies primarily on the United States Supreme Court decision of Illinois v. Lafayette (1983), 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65, where an inventory search after a lawful arrest for disturbing the peace was upheld on several grounds as promoting legitimate governmental interests that override the interests of the individual. Those legitimate interests were: first, safeguarding the arrested person's property; second, protecting law enforcement from false claims of loss or theft; third, danger from contents of uninventoried packages; and fourth, to assist in identifying arrested persons.

Though we agree that these are legitimate governmental interests, we cannot agree that their existence may permit an inventory search in all circumstances. In State v. Sawyer, supra, we expressly recognized that in many of these circumstances the police should use the least intrusive means possible for conducting an inventory search. In fact, in applying our own Constitution, we expressly rejected the United States Supreme Court's holding in South Dakota v. Opperman (1976), 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000, where, in upholding the inventory search of an abandoned automobile, the United States Supreme Court found no need to consider the existence of less intrusive means of protecting the police and the property in their custody. Locking the door and impounding it in safe storage under guard was not even considered as a less intrusive means. But in State v. Sawyer, supra, we expressly rejected this holding in favor of a less intrusive means interpretation based on our own Constitution.

As long as we guarantee the minimum rights guaranteed by the United States Constitution, we are not compelled to march lock-step with pronouncements of the United States Supreme Court if our own constitutional provisions call for more individual rights protection than that guaranteed by the United States Constitution. And in State v. Sawyer, in rejecting the rationale of South Dakota v. Opperman, supra, we have given a perfect example of our unwillingness to march lock-step with the latest pronouncements of the United States Supreme Court where it is not required as a matter of federal constitutional law.

A less-intrusive means rule is by no means unworkable. In adopting a less-intrusive means test for inventory searches, the Alaska Supreme Court in Reeves v....