STATE v GODSEY
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NO. 82-129 IN THE SUPREME COURT OF THE STATE OF MONTANA 1982 STATE OF MONTANA, Plaintiff and Respondent, VS . DANNY PAUL GODSEY, Defendant and Appellant. Appeal from: District Court of the Sixteenth Judicial District, In and for the County of Powder River Honorable Alfred B. Coate, Judge presiding. Counsel of Record: For Appellant: Stephens and Cole, Billings, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Robert Brooks, County Attorney, Broadus, Montana Submitted on briefs: October 7, 1982 Decided: December 29, 1982 Filed: < 6 - - - - r , -A : " +. 4+ Clerk Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Defendant was convicted of one count of possession of dangerous drugs, a misdemeanor, and of one count of criminal sale of dangerous drugs, a felony, in a Powder River County trial held before the judge sitting without a jury. The District Court dismissed a third count charging possession of dangerous drugs, cocaine, for Defendant now appeals. insufficient evidence. We affirm. On Saturday morning, March 14, 1981, the Powder River County sheriff's office received a complaint from Broadus resident Anne Amsden that a vehicle was speeding in her neighborhood. She was concerned for the safety of her grandchildren who were playing in the area. Someone had identified defendant as the owner of the car, the only 1972 orange and black two-door Chevy Nova in town. Deputy Dennis Frawley stopped at the Amsden residence later in the morning to get a description from Mrs. Amsden, and he asked her to sign a complaint. She did not want to sign a complaint for the issuance of a citation, but she did want something done. Deputy Frawley told her that he would "go over and talk to Dan and tell him to slow it down." The deputy then went to the residence of defendant's grandparents, which was where defendant stayed when he was in Broadus, and he found the car in the driveway of the residence. Several people were around the garage. The front tires were on the concrete apron in front of the garage, and he noticed someone working under the car. Assuming it was defendant, Frawley reached down and shook the person's foot. It turned out to be a fifteen-year-old friend of defendant, Tim Eustice, who slid part way out from under the car house. and told F r a w l e y t h a t d e f e n d a n t was A s t h e d e p u t y s t o o d back u p , i n the he glanced through t h e o p e n window of t h e c a r and saw a b a g g i e o f w h a t a p p e a r e d t o be m a r i j u a n a l y i n g on t h e f r o n t s e a t . He seized t h e baggie, arrested of secured defendant the scene, for and possession called dangerous the dispatcher for drugs, back-up assistance. S i n c e i t was a weekend, F r a w l e y was t h e o n l y d e p u t y on duty. took It some t i m e for F r a w l e y t h e n booked d e f e n d a n t , Defendant was later another t o arrive. a n d t h e c a r was charged with d r u g ( m a r i j u a n a ) t o a minor officer t h e s a l e of (Tim E u s t i c e ) impounded. a dangerous and w i t h p o s s e s - s i o n of c o c a i n e . Two i s s u e s a r e p r e s e n t e d o n a p p e a l : (1) Whether t h e D i s t r i c t C o u r t e r r e d i n a l l o w i n g t h e i n t r o d u c t i o n of e v i d e n c e s e i z e d a s a r e s u l t o f t h e w a r r a n t - less entry onto private premises by a law enforcement o f f i c e r ; and ( 2) Whether s u f f i c i e n t e v i d e n c e s u s t a i n s t h e c o n v i c - tions. Defendant c h a l l e n g e s t h e s e i z u r e of the basis that was it a warrantless t h e m a r i j u a n a on seizure on private p r o p e r t y f o l l o w i n g w h a t may h a v e b e e n a p r e t e x t e n t r y o n t h e premises. This T h i s argument f a i l s . Court has carefully considered warrantless s e a r c h e s t h a t f a l l w i t h i n t h e " p l a i n view" e x c e p t i o n t o t h e F o u r t e e n t h Amendment p r o h i b i t i o n o n s u c h s e a r c h e s t h a t was first enunciated Coolidge v. New S.Ct. 2038, 2022, by the Hampshire United States (1971), 29 L.Ed.2d 564, Supreme 403 U.S. 583, 443, Court in 466, 91 and S t a t e v. Lane (1977), 175 Lqont. 225, 229, 573 P.2d 198, 201. In order for us to find that evidence obtained without a search warrant falls within the plain view doctrine, it must be demonstrated that: (1) the police officer had a prior justification for the intrusion; (2) that he then inadvertently came across the evidence incriminating the accused; and (3) that exigent circumstances existed seizure imperative. that rendered immediate State v. Lane, 175 Mont. at 229, 573 P.2d at 201. Defendant argues that these conditions did not exist. He contends that Frawley did not have a legitimate reason to intrude upon the premises but rather used the speeding complaint as a pretext for investigating defendant, who was characterized by the officer as a suspected drug user. He also contends that no exigent circumstances existed that required immediate seizure of the baggie of marijuana. These contentions are without merit. The record provides ample support for the officer's claim that he was investigating a traffic complaint. State v. Carlson (1982), St.Rep. 802. Mon t . , Cf. 644 P.2d 498, 39 There is also substantial evidence supporting his claim that he inadvertently came upon the baggie of marijuana. visibility. Both he and Tim Eustice testified to its ready Finally, the facts clearly demonstrate existence of exigent circumstances. the Several people were working or standing in the area near the garage. Deputy Frawley was the only officer on duty at the time he spotted the marijuana. It would take some time officer to be called and to arrive. for a back-up Since it was Saturday, it was likely that the justice of the peace might not be available to sign a search warrant. County And the Powder River attorney, the officer who generally prepared all search warrants, was out of town for the weekend. These circumstances are clearly distinguishable from the situation presented in State v. Lane, supra. In Lane, an officer spotted a marijuana plant from outside the window of a mobile home. There was no indication that anyone observed the officer as he made this discovery or that any threat was presented that the plants would be moved or destroyed in the time needed to procure a search warrant. The officer invaded the sanctity of someone's home, the chief evil against which the Fourth Amendment is directed. Payton v. New York 1371, 63 L.Ed.2d Here, the (1980), 445 U.S. 573, 586, 100 S.Ct. 639, 651. officer did not violate any reasonable expectation of privacy that defendant may have had. State v. Byem (1981), - Mont. - 630 P.2d 202, 38 St.Rep. 891. , He walked onto premises that were open, where people came and went. No fences or gates barred the officer's entry. Indeed, the record indicates that while the bumper and headlights of the car were within the garage itself, part of the car was also parked upon a public right-of-way owned by the township. The deputy's intrusion was for the legitimate purpose of investigating a traffic complaint. His discovery was inadvertent and he faced a very real possibility that the evidence would disappear or be destroyed in the time it took to secure a warrant. He testified that he was startled and did a double-take on seeing the baggie sitting in plain view. There is a clear distinction between a warrantless seizure of property that rests in an open area or is seized without an invasrorl o t privacy and a of seizure property t h a t is s i t u a t e d on p r i v a t e p r e m i s e s t h a t a r e n o t o t h e r w i s e o p e n and a c c e s s i b l e t o the seizing officer. 338, 354, 97 S . C t . has most recently examined t h e p l a i n view d o c t r i n e i n Washington v . Chrisman Corp. U n i t e d S t a t e s ( 1 9 7 7 ) , 429 U.S. Leasing G.M. v. The United ( 1 9 8 2 ) , 452 U.S. States 959, Supreme 102 S.Ct. Court 812, 70 L.Ed.2d 778. In C h r i s m a n , a campus p o l i c e o f f i c e r o b s e r v e d C a r l O v e r d a h l , a student at the University of Washington, student dormitory with a half-gallon p e a r e d t o be underage a n d , t h u s , as he left b o t t l e of gin. a H e ap- i n v i o l a t i o n of a Washing- t o n s t a t u t e p r o h i b i t i n g p o s s e s s i o n o f a l c o h o l i c b e v e r a g e s by a n y o n e u n d e r t h e a g e o f 21. and a s k e d f o r i d e n t i f i c a t i o n . The p o l i c e m a n s t o p p e d G v e r d a h l Overdahl d i d n o t have i d e n t i - f i c a t i o n on him and a s k e d i f t h e o f f i c e r would w a i t w h i l e h e went and g o t i t . The o f f i c e r t o l d O v e r d a h l t h a t u n d e r t h e circumstances would he r e p l i e d "O.K." have to accompany Once i n t h e dorm room, him. Overdahl the officer noticea s e e d s and a s m a l l p i p e and n o t i c e d t h a t O v e r d a h i ' s roommate, Chrisman, was behaving very nervously. He examined the s e e d s and p i p e and on t h e b a s i s o f h i s t r a i n i n g c o n f i r m e d tnat they were marijuana. Overdahl and his roommate, C h r i s m a n , were t h e n r e a d t h e i r M i r a n d a r i g h t s and a g r e e d t o a s e a r c h o f t h e room. The C o u r t h e l d : "The ' p l a i n v i e w 1 e x c e p t i o n t o t h e F o u r t h Amendment w a r r a n t requirement p e r m i t s a law e n f o r c e m e n t o f f i c e r t o s e i z e w h a t c l e a r l y i s i n c r i m i n a t i n g e v i d e n c e o r cont r a b a n d when i t i s d i s c o v e r e d i n a p l a c e w h e r e t h e o ---------------q --------. f f i c e r has a r i h t t o be C o o l i d g e v. N e w H a m p s h i r e , 403 U.S. 4 4 3 , 29 L.Ed.2d 564, 91 S.Ct. 2022 ( 1 9 7 1 ) ; 8 a r r i s v. U n i t e d S t a t e s , 390 U.S. 234, 1 9 L.Ed.2d 1 0 6 7 , 86 S . C t . 992 ( 1 9 6 8 ) . H e r e , the officer had placed Overdahl under lawful arrest, and therefore was authorized to accompany him to his room for the purpose of obtaining identification. The officer had a right to remain literally at Overdahl's elbow at all times; nothing in the Fourth Amendment is to the contrary." 102 S.Ct. at 816, 70 L.Ed.2d at 784-785. (Emphasis added.) The United States Supreme Court then went on to reject the argument that the officer's entry into the room upon observation of the seeds and pipe was not justified by exigent circumstances. Court noted Amendment 102 S.Ct. that the at 816, 70 L.Ed.2d fundamental premise is that it protects only at 785. of the The Fourth against unreasonable intrusion into an individual's privacy. 102 S.Ct. at 817- Officer Frawley had a right to approach defendant's vehicle and the person working under it as he investigated the traffic complaint. His inadvertent discovery of the marijuana in plain view and the likelihood that his discovery was noticed, coupled with the minimal chance that it would still be present upon his return with justified his seizure. (1968), 390 U.S. a warrant, See also, Harris v. United States 234, 236, 88 S.Ct. 992, 9 9 3 , 19 L.Ed.2d Defendant raises as a second issue the argument that there is not substantial evidence to support the verdict. He argues first that where two interpretations exist that may reasonably be placed upon a set of facts, this Court "is bound to adopt that interpretation which will admit of the Defendant's innocence." Second, that defendant was not in exclusive possession of the marijuana and therefore it may not be inferred that he knew of the presence of the drugs and had control of them without circumstances t o support the statements inference. or Third, other he argues t h a t t h e S t a t e f a i l e d t o i n t r o d u c e t h e c o n t r a b a n d items i n t o e v i d e n c e and Finally, he thus f a i l e d t o e s t a b l i s h the corpus d e l i c t i . argues that the testimony of Tim Eustice a c c o m p l i c e t e s t i m o n y and a s such r e q u i r e s c o r r o b o r a t i o n . is W e r e j e c t these contentions. s u f f i c i e n c y of The a p p r o p r i a t e s t a n d a r d o f the evi- d e n c e f o r t h i s C o u r t t o a p p l y was s e t f o r t h by t h e U n i t e d S t a t e s Supreme C o u r t i n J a c k s o n v . V i r g i n i a ( 1 9 7 9 ) , 4 4 3 U.S. 307, 319, S.Ct. 99 2781, 61 L.Ed.2d 560, 573, and a d o p t e d b y t h i s C o u r t i n S t a t e v. P l o u f f e ( 1 9 8 2 ) , , 646 P.2d 533, 39 S t . R e p . " 1064: . . . was Mont . the relevant q u e s t i o n is whether, a f t e r viewing t h e evidence i n t h e l i g h t most favorable to the prosecution, any r a t i o n a l t r i e r o f f a c t c o u l d have found t h e e s s e n t i a l e l e m e n t s of beyond a r e a s o n a b l e d o u b t . " 1070. t h e crime 646 P.2d a t 5 3 8 , 39 S t . R e p . at U s i n g t h a t s t a n d a r d , we f i n d s u f f i c i e n t e v i d e n c e t o support the verdict. W h i l e t h e c o n t r a b a n d was n o t a d m i t t e d a t t r i a l , p r i o r to trial the court suggested and both parties agreed to s t i p u l a t e t h a t t h e e v i d e n c e from t h e s u p p r e s s i o n h e a r i n g be deemed t o h a v e b e e n s u b m i t t e d a t t r i a l . by I t was d e t e r m i n e d t h e S t a t e C r i m e Lab t h a t t h e b a g g i e was f u l l o f juana. mari- T e s t i m o n y by T i m E u s t i c e b u t t r e s s e d t h e i n f e r e n c e t n a t t h e marijuana found i n d e f e n d a n t ' s v e h i c l e belonged t o defendant. Eustice stated t h a t he noticed it, defendant o b s e r v e d h i s i n t e r e s t , a n d d e f e n d a n t t o l d him h e c o u l d " r o l l a joint" i f he s o d e s i r e d . 1 0 1 ( 1 ) , MCA, Eustice d i d so. p r o h i b i t i n g s a l e of S e c t i o n 45-9- dangerous drugs, provides that: "A p e r s o n commits t h e o f f e n s e o f c r i m i n a l s a l e of dangerous drugs i f he s e l l s , b a r t e r s , e x c h a n g e s , g i v e s away o r o f f e r s to - s e l l , b a r t e r , e x c h a n g e o r g i v e away o r m a n u f a c t u r e s , p r e p a r e s , c u l t i v a t e s , compounds, o r p r o c e s s e s any dangerous d r u g , a s d e f i n e d i n 50-32-101." (Emphasis added. ) This Court has noted: " C o n s t r u c t i v e p o s s e s s i o n o c c u r s when t h e accused maintains c o n t r o l o r a r i g h t t o c o n t r o l t h e c o n t r a b a n d ; p o s s e s s i o n may b e imputed where c o n t r a b a n d is found i n a p l a c e t h a t is i m m e d i a t e l y and e x c l u s i v e l y a c c e s s i b l e t o t h e a c c u s e d and is s u b j e c t t o h i s dominion o r c o n t r o l o r t o t h e j o i n t d o m i n i o n and c o n t r o l o f t h e a c c u s e d and a n o t h e r , [ c i t a t i o n o m i t t e d ] . " (Emphas i s a d d e d . ) S t a t e v . Meader ( 1 9 7 9 ) , Mont. , 6 0 1 P.2d 3 8 6 , 3 9 2 , 36 S t . R e p . 1747, 1 5 . 74 Here, d e f e n d a n t e x h i b i t e d c o n t r o l o v e r t h e d r u g and o f f e r e d it t o a n o t h e r . The d r u g was i n h i s v e h i c l e . Eustice testi- f i e d t h a t t h e d r u g was n o t h i s and t h a t h e d i d n o t know t o whom i t b e l o n g e d . However, h e a l s o t e s t i f i e d t h a t d e f e n d a n t e x e r c i s e d c o n t r o l o v e r t h e m a r i j u a n a by o f f e r i n g i t t o him. S u b s t a n t i a l evidence supports t h e conviction. W e rendered reject defendant's argument an accomplice p u r s u a n t to that Eustice s e c t i o n 45-2-301, was FICA, when h e was g r a n t e d immunity f r o m p r o s e c u t i o n on a c h a r g e o f possession person of marijuana. responsible for Section conduct of 45-2-301, another MCA, "when holds a he is l e g a l l y a c c o u n t a b l e f o r s u c h c o n d u c t a s p r o v i d e d i n 45-2-302 . . ." S e c t i o n 45-2-302, MCA, d e f i n e s a p e r s o n ' s l e g a l ac- c o u n t a b i l i t y f o r a n o t h e r ' s c o n d u c t when: " ( 1 ) h a v i n g a m e n t a l s t a t e d e s c r i b e d by the s t a t u t e defining t h e offense, he causes another t o perform t h e conduct, r e g a r d l e s s of t h e l e g a l c a p a c i t y o r mental s t a t e of t h e o t h e r person; "(2) the statute defining the makes him so accountable; or offense "(3) either before or during the commission of an offense with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense." (Emphasis added. ) Defendant has failed to demonstrate that Eustice is legally accountable for defendant's possession of marijuana under any of the provisions of the statute. Affirmed. n&.g uu&q Chief Justice
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