text:
    STATE OF MONTANA, BOARD OF DENTISTRY, Plaintiff, Counter-Defendant and Respondent, v. R. BRENT KANDARIAN, Defendant, Counter-Claimant and Appellant.
    No. 93-519.
    Submitted on Briefs August 18, 1994.
    Rehearing Denied Jan. 12, 1995.
    Decided December 16, 1994.
    51 St.Rep. 1381.
    268 Mont. 408.
    886 P.2d 954.

      For Appellant: James C. Bartlett; Hash, O’Brien & Bartlett, Kalispell.
    For Respondent: I. James Heckathom and Mikel L. Moore; Murphy, Robinson, Heckathorn & Phillips, Kalispell.
   JUSTICE GRAY

delivered the Opinion of the Court

R. Brent Kandarian (Kandarian) appeals from an order entered by the Eleventh Judicial District Court, Flathead County, granting the State of Montana, Board of Dentistry’s motion for summary judgment on his counterclaims. We affirm.

Kandarian is a licensed denturist practicing in Kalispell. Kandarian ran an advertisement in a Kalispell paper stating that temporomandibular joint disfunction (TMJ) evaluations would be performed at Kandarian’s place of business. On August 26, 1986, a Kalispell dentist wrote a letter to the Board of Dentistry informing it that, in the dentist’s opinion, Kandarian was performing the unauthorized practice of dentistry. The dentist stated that evaluating TMJ was the practice of dentistry, and that he had personal knowledge of an offer by Kandarian to treat a patient with TMJ disorder via construction of a partial denture.

On September 22, 1986, the Board of Dentistry informed Kandarian of the complaint and requested a response. The Board of Dentistry also wrote to the Board of Denturitry, informing it of the complaint against Kandarian. On November 6, 1986, Kandarian replied to the Board of Dentistry. His letter stated that TMJ evaluations were within the scope of his practice of denturitry, and that the Board of Dentistry did not have the power to regulate his practice.

On November 12,1986, the Board of Dentistry met and decided to request the Flathead County Attorney to file criminal charges against Kandarian for practicing dentistry without a license. At an open meeting held on December 8,1986, the Board of Denturitry discussed the complaint filed against Kandarian and decided to wait and see what action the Flathead County Attorney would take. On the same day, the Board of Dentistry’s counsel released the contents of the complaint against Kandarian to a newspaper reporter. An Associated Press news story subsequently reported the correspondence between Kandarian and the Board of Dentistry’s counsel regarding the allegation that Kandarian was practicing dentistry without a license. The story quoted the Board of Dentistry’s counsel as saying that Kandarian’s response to the Board of Dentistry “threw down the gauntlet,” and that the Board of Dentistry had no choice but to pursue legal action.

On December 30,1986, the Flathead County Attorney informed the Board of Dentistry’s counsel that his office had decided not to prosecute Kandarian. On February 2, 1987, the Board of Dentistry filed a complaint with the District Court seeking to enjoin Kandarian from practicing dentistry without a license. Kandarian filed an answer and counterclaims against the Board of Dentistry on April 6,1987.

James Stobie, D.D.S., whom the Board of Dentistry identified as its expert witness, stated in his deposition that as long as a denturist is practicing denturitry, it would be misfeasance or malfeasance not to do a TMJ evaluation while fitting for partial or full dentures. As a result of Stobie’s deposition and the Board of Dentistry’s failure to produce testimony that Kandarian had performed dental work on natural teeth, the court granted Kandarian’s motion for summary judgment on the Board of Dentistry’s request for an injunction. In January of 1989, the District Court denied the Board of Dentistry’s motion for summary judgment on Kandarian’s counterclaims.

Kandarian filed an amended answer and counterclaims on March 13, 1989. His amended counterclaims included: violation of his right of privacy, wrongful injunction, intentional interference with business and patients, slander and libel, wrongful civil litigation, abuse of process, outrage and intentional infliction of emotional distress, and negligence. On February 8, 1990, the District Court vacated its earlier order and granted the Board of Dentistry summary judgment on Kandarian’s counterclaims. The basis of the court’s order was that the Board of Dentistry had quasi-judicial immunity from suit. Kandarian appealed the grant of summary judgment to the Board of Dentistry on his counterclaims, and the Board of Dentistry cross-appealed the grant of summary judgment to Kandarian on its request for an injunction.

In State Board of Dentistry v. Kandarian (1991), 248 Mont. 444, 813 P.2d 409 (Kandarian I), this Court affirmed the District Court’s grant of summary judgment to Kandarian on the Board of Dentistry’s request for an injunction and reversed its grant of summary judgment in favor of the Board of Dentistry on the basis of quasi-judicial immunity. On remand, the District Court again granted the Board of Dentistry summary judgment on Kandarian’s counterclaims. Kandarian appealed.

On April 22, 1994, this Court issued an order remanding the case to the District Court for the court to set forth its rationale for granting summary judgment to the Board of Dentistry on Kandarian’s counterclaims. The order also stated that the parties would have the opportunity to further brief the issues after the District Court issued its explanatory memorandum. On June 27, 1994, the District Court issued its memorandum. Neither party filed a supplemental brief.

The sole issue on appeal is whether the District Court erred in granting the Board of Dentistry’s motion for summary judgment and in dismissing Kandarian’s counterclaims in their entirety.

STANDARD OF REVIEW

Our standard in reviewing a district court’s grant of a motion for summary judgment is the same as that utilized by the district court; we are guided by Rule 56, M.R.Civ.P. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. Thus, we determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Minnie, 849 P.2d at 214.

PRIVACY CLAIMS

Kandarian identifies three separate theories of recovery under his privacy counterclaim. His first theory is that the Board of Dentistry tortiously intruded on his physical and mental solitude. We previously have recognized the elements of an invasion of privacy action. “An invasion of privacy cause of action is defined as a ‘wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.’ ” Rucinsky v. Hentchel (Mont. 1994), 881 P.2d 616, 618, 51 St.Rep. 887, 888; citing Sistok v. Northwestern Telephone Systems, Inc. (1980), 189 Mont. 82, 92, 615 P.2d 176, 182.

Kandarian claims that the Board of Dentistry’s efforts to obtain a list of Kandarian’s patients through discovery was an attempt to invade his privacy. We reject Kandarian’s argument by noting that the Board of Dentistry never obtained a list of Kandarian’s patients. Even assuming arguendo that Kandarian could establish an attempt to invade his privacy, an attempted invasion of privacy is not the equivalent of an actual invasion of privacy. Thus, Kandarian’s claim for invasion of privacy under this theory must fail.

Next, Kandarian raises a false light invasion of privacy claim and a claim that the Board of Dentistry invaded his privacy by releasing private facts to the public. We have recognized the elements of false light invasion of privacy as:

(1) the publicizing of a matter concerning another that (2) places the other before the public in a false light, when (3) the false light in which the other is placed would be highly offensive to a reasonable person, and (4) the actor knew of or acted in reckless disregard as to the falsity of the publicized matter.

Lence v. Hagadone Investment Co. (1993), 258 Mont. 433, 444, 853 P.2d 1230, 1237; citing Restatement (Second) of Torts § 652E (1977).

The Restatement (Second) of Torts, § 652D, discusses public disclosure of private facts as follows:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.

Kandarian asserts that release of the contents of the complaint against him to the press constituted a public disclosure of private facts which also placed him in a false light. We conclude, however, that Kandarian waived his privacy rights in relation to the complaint.

The Board of Dentistry’s counsel released the complaint against Kandarian to the press on December 8, 1986. The minutes of the Board of Denturitry meeting that same day indicate that the Board of Denturitry discussed the complaint against Kandarian. The minutes also reflect Kandarian’s statement that he wanted discussion of the matter to be open. In addition, Kandarian testified in his deposition as follows:

Q: And that was an open meeting [the meeting of December 8, 1986] of the Board of Denturitry?
A: Yes, it was.
Q: And in fact, you wanted it open; isn’t that true?
A: Absolutely. I think that reflects that in the minutes. I had nothing to hide and I still don’t.

Because the Board of Denturitry meeting was open to the public and Kandarian affirmatively desired that the complaint against him be discussed openly at the meeting, Kandarian waived his privacy claims of false light and releasing private facts to the public. We hold that the District Court properly granted the Board of Dentistry summary judgment on Kandarian’s privacy counterclaims.

WRONGFUL LITIGATION CLAIMS

Kandarian’s counterclaims included wrongful injunction, wrongful civil litigation and abuse of process as separate claims. First, Kandarian advances a claim for wrongful injunction despite the fact that no injunction was issued in this case. Kandarian cites no authority holding that an action for wrongful injunction may be maintained absent the issuance of an injunction.

Kandarian relies on Interstate National Bank v. McCormick (1923), 67 Mont. 80, 214 P. 949, as support for his argument. However, that case involved the issuance of a wrongful injunction in favor of McCormick against a third party which affected Interstate National Bank’s property. McCormick is distinguishable from the case before us in that the court had issued an injunction which affected the plaintiff’s property and the plaintiff succeeded under a theory of conversion, not wrongful injunction. McCormick, 214 P. at 951.

Here, the Board of Dentistry never obtained an injunction. Thus, Kandarian could not demonstrate that the issuance of an injunction damaged him. We hold that the District Court properly granted the Board of Dentistry summary judgment on Kandarian’s wrongful injunction counterclaim.

With regard to Kandarian’s abuse of process claim, such a claim can succeed only where a claimant can establish an attempt to use process to coerce him or her to do some collateral thing which the claimant could not be legally or regularly compelled to do. Brault v. Smith (1984), 209 Mont. 21, 29, 679 P.2d 236, 240. Kandarian argues that the Board of Dentistry’s collateral purpose in filing a lawsuit was to identify a list of Kandarian’s patients to build a stronger case against him.

The effort to obtain the names of Kandarian’s patients was part of the Board of Dentistry’s discovery in this case. “Pressing valid legal claims to their conclusion, even with an ulterior motive, does not by itself constitute an abuse of process.” Brault, 679 P.2d at 240. The Board of Dentistry’s attempt to strengthen its case through discovery does not amount to an abuse of process. We hold that the District Court properly granted the Board of Dentistry summary judgment on Kandarian’s abuse of process counterclaim.

Kandarian also included a claim for wrongful litigation. However, Montana has never adopted the tort of wrongful civil litigation. Kandarian urges this Court to recognize the tort, but offers no compelling argument in favor of our doing so. Under the facts of this case, we decline to adopt the tort of wrongful civil litigation and hold that the District Court properly granted the Board of Dentistry summary judgment on Kandarian’s wrongful litigation counterclaim.

INTENTIONAL INTERFERENCE CLAIM

Kandarian claims that the Board of Dentistry intentionally interfered with his business and patients by releasing the contents of the complaint against him to the press and instituting an action seeking to enjoin him from performing TMJ evaluations.

We have stated that:

[i]n order to establish a prima facie case of tortious interference with business relations, the pleader must show that the acts (1) were intentional and willful; (2) were calculated to cause damage to the pleader in his or her business; (3) were done with the unlawful purpose of causing damage or loss, without right or justifiable cause on the part of the actor; and (4) that actual damages and loss resulted.

Richland National Bank & Trust v. Swenson (1991), 249 Mont. 410, 419, 816 P.2d 1045, 1051; citing Bolz v. Meyers (1982), 200 Mont. 286, 295, 651 P.2d 606, 611. In order to establish a cause of action, the Board of Dentistry must have intentionally committed a wrongful act without justification or excuse. Swenson, 816 P.2d at 1051; citing Lythgoe v. First Security Bank of Helena (1986), 222 Mont. 163, 165, 720 P.2d 1184, 1185.

Here, the Board of Dentistry’s counsel released the contents of the complaint to the press at the same time the Board of Denturitry discussed the complaint in a meeting open to the public. The information was open to the public at that time; therefore, releasing it to the press was not wrongful.

Kandarian also alleges that, by filing for an injunction, the Board of Dentistry attempted to interfere with his business. The law in effect at the time the Board of Dentistry attempted to obtain an injunction against Kandarian stated:

Notwithstanding any other provision of law, a board may maintain an action to enjoin a person from engaging in the practice of the occupation or profession regulated by the board until a license to practice is procured. A person who has been enjoined and who violates the injunction is punishable for contempt of court.

Section 37-1-136(3), MCA (1985). The Board of Dentistry received a complaint from a dentist who claimed that Kandarian was performing TMJ evaluations and that TM.J evaluations constituted the practice of dentistry. The Board of Dentistry’s action in seeking an injunction against Kandarian was authorized by statute and was not tortious. We hold that the District Court properly granted the Board of Dentistry summary judgment on Kandarian’s intentional interference counterclaim.

SLANDER AND LIBEL

Kandarian claims that the release of the complaint against him to the press and statements made to the press constitute slander and libel. Slander and libel both require falsify. Sections 27-1-802 and -803, MCA. The article which Kandarian claims contains defamatory information provided by counsel for the Board of Dentistry essentially reports the fact that the Board of Dentistry intended to pursue legal action against Kandarian and recounts correspondence between Kandarian and the Board of Dentistry’s counsel. This account of events is substantially true.

Kandarian asserts that counsel’s statements that Kandarian “threw down the gauntlet” by his responses to the Board of Dentistry’s correspondence constitute slander and libel. However, we previously have noted that “a basic tenet of the law of defamation is that an expression of opinion is generally not actionable.” Frigon v. Morrison-Maierle, Inc. (1988), 233 Mont. 113, 121, 760 P.2d 57, 62. Comments by counsel for the Board of Dentistry amounted to statements of opinion which were not actionable. We hold that the District Court properly granted the Board of Dentistry summary judgment on Kandarian’s libel and slander counterclaim.

OUTRAGE AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Kandarian contends that the District Court erred in granting summary judgment on his claims of outrage and intentional infliction of emotional distress. Montana has not recognized a tort of outrage, and Kandarian offers no significant argument in favor of its adoption. We have stated that for a claim of emotional distress to succeed,

[t]he victim must show that the defendant’s tortious conduct resulted either in physical or mental injury or in “a substantial invasion of a legally protected interest,” and that it “caused a significant impact,” including emotional distress “so severe that no reasonable person could be expected to endure it.”

Lence, 853 P.2d at 1237; citing First Bank v. Clark (1989), 236 Mont. 195, 205-06, 771 P.2d 84, 91.

In Lence, we affirmed the district court’s grant of summary judgment in favor of the defendant on the plaintiff’s claim of emotional distress. We noted that the plaintiff offered no evidence of severe emotional distress. Lence, 853 P.2d at 1237. In the present case, Kandarian argues that an alleged invasion of privacy by a government agency naturally produces severe emotional distress, but he produces no evidence that he actually suffered severe emotional distress. We hold that the District Court properly granted the Board of Dentistry summary judgment on Kandarian’s counterclaims of outrage and intentional infliction of emotional distress.

NEGLIGENCE

Finally, Kandarian claims that the Board of Dentistry negligently released the contents of its complaint against Kandarian and negligently filed suit against Kandarian. We held above that Kandarian waived his right to privacy regarding release of the complaint. Thus, release of the complaint cannot provide a basis for a proper negligence claim here.

Kandarian also claims that the Board of Dentistry negligently filed suit against him. We disagree. As we previously noted, the law in effect at the time the Board of Dentistry attempted to get an injunction against Kandarian authorized the Board of Dentistry to obtain injunctions against those practicing dentistry without a license. Section 37-1-136(3), MCA (1985). The Board of Dentistry believed that Kandarian was practicing dentistry without a license. The Board of Dentistry’s action in seeking an injunction against Kandarian was not tortious. We hold that the District Court properly granted the Board of Dentistry summary judgment on Kandarian’s negligence counterclaim.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON and NELSON concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from that part of the majority opinion which rejects the tort of wrongful civil litigation, as applied to the facts in this case. In an age when a few frivolous lawsuits threaten to undermine the civil justice system and preclude claims which do have merit, it is especially important to deter and sanction lawsuits like the one filed by the Board of Dentistry. The elements of wrongful civil litigation, as set forth in Restatement (Second) of Torts § 674 (1977) are as follows:

One who takes an active part in the initiation, continuation or procurement of civil proceedings against another is subject to liability to the other for wrongful civil proceedings if
(a) he acts without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based, and
(b) except when they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.

We have, as far back as 70 years ago, recognized a tort known as “malicious prosecution” in Montana (Stephens v. Conley (1914), 48 Mont. 352, 138 R 189), based on the important public policy that everyone has a right to be free from unjustifiable litigation. The right to be free from unjustifiable civil litigation, as described in § 674, is simply a more specific approach from a broad range of rights to be free from unjustifiable litigation and the attendant invasion of a person’s privacy and exhaustion of an individual’s financial resources.

I disagree with the majority’s conclusion that “Kandarian urges this Court to recognize the tort, but offers no compelling argument in favor of our doing so.” The very facts set forth in this Court’s previous decision, State Board of Dentistry v. Kandarian (1991), 248 Mont. 444, 813 P.2d 409 (Kandarian I), establish a compelling argument in favor of doing so. In that case we noted:

[O]n February 2, 1987, the Board filed for an injunction against Kandarian.
The Board identified James Stobie, D.D.S., as the expert witness who would testify as to whether TMJ evaluations were within the practice of denturitry. His deposition stated that as long as a denturist is practicing denturitry, it would be misfeasance or malfeasance not to do a TMJ evaluation while fitting for “partíais” or “fulls.”
Kandarian counterclaimed and moved for summary judgment. The Board asked for “follow up discovery” and represented that it had witnesses who would be contacted and who would produce, by way of affidavit, evidence that Kandarian had done nondenture work on them.
On January 8, 1988, the court dismissed the complaint against Kandarian because the Board had failed to produce affidavits showing that Kandarian had performed work on the natural teeth of two individuals previously named by the Board.

Kandarian I, 813 P.2d at 411 (emphasis added).

As I noted in my concurring and dissenting opinion to our prior decision:

[T]he Board ofDentistry made no reasonable inquiry prior to filing its claim for injunctive relief in naming Kandarian as a defendant. A member of the Association had sent it a copy of an ad, indicating that Brent Kandarian, a denturist, was available for “TMJ evaluations.”
However, none of Kandarian’s patients were interviewed; no investigation was done; and no experts were consulted prior to the filing of suit.
After suit was filed, the Board finally retained James L. Stobie, D.D.S. He was identified in court documents as the Board’s expert for the purpose of establishing that it was a violation of the Dental Practice Act for a denturist to perform TMJ evaluations. When he was deposed, however, his testimony was to the contrary.
Subsequent to Dr. Stobie’s testimony, the defendant moved for summary judgment. At the time of that hearing, the Board’s attorney offered to provide the testim ony of two witnesses who would say that Kandarian had worked on their teeth, even though it was not for the purpose of fitting dentures. The Board was given ten days to provide such information, but failed to do so. In fact, one of the witnesses was subsequently offered as a witness by Kandarian and testified contrary to the representations of the Board’s attorney.

Kandarian I, 813 P.2d at 413.

Kandarian presented evidence that, at the time the Board of Dentistry frivolously sought its injunction, its purpose was to discredit him as chairman of the Board of Denturitry before the Montana Legislature. Therefore, I conclude that the facts in this case alone are sufficient to provide a compelling reason for adopting and applying, in this case, a cause of action for wrongful civil litigation.

However, I am also confused by the inference in the majority opinion that the tort of wrongful civil litigation is somehow radically different than the common law which already exists pursuant to the present tort of malicious prosecution. It is not. It is simply a more specific variation of the same tort.

For these reasons, I dissent from the majority opinion. I would adopt the tort of wrongful civil litigation in Montana. I conclude that the plaintiff has proven sufficient facts in this case to support a cause of action based on that tort. Therefore, I would reverse the District Court’s order awarding summary judgment to the defendant.


source: Caselaw Access Project

author: JUSTICE WEBER

license: Public Domain

text:
    HAROLD DALE FERGUSON, Petitioner and Respondent, v. AMERICAN STORES, d/b/a, BUTTREY FOODS, Insurer, Employer and Appellant.
    No. 94-031.
    Submitted on Briefs May 5, 1994.
    Decided July 6, 1994.
    51 St.Rep. 603.
    268 Mont. 421.
    888 P.2d 417.

      For Appellant: Sara R. Sexe, Marra, Wenz, Johnson & Hopkins, Great Falls.
    For Respondent: Robert C. Melcher, Billings.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a Workers’ Compensation Court decision entitling claimant to thoracic outlet syndrome surgery and reinstating his total disability benefits. We affirm.

We consider the following issues on appeal:

I. Did the Workers’ Compensation Court err in determining that claimant’s current condition was caused by a 1986 injury to his back?

II. Did the Workers’ Compensation Court err in determining that claimant’s request for thoracic outlet syndrome surgery was reasonable and necessary?

III. Did the Workers’ Compensation Court err in reinstating claimant’s temporary total disability benefits?

Harold Dale Ferguson (Ferguson), began his employment with Buttrey Foods Super Market, Havre, Montana, in March of 1986. He started by carrying groceries and later moved to stock clerk. On August 9,1986, Ferguson was injured when a box of paper towels and toilet paper fell and hit him in the head, neck, and back. While Ferguson returned to work, he testified that his symptoms did not go away. He further testified that they grew worse over time and that he had problems lifting heavier items and working overhead.

Ferguson injured his back again in September of 1989 while he was restacking flour and sugar. Ferguson testified that the problems he had after the 1989 injury were the same as those he had after the 1986 injury.

Ferguson continued to work until December 12, 1991, when his treating physicians recommended that he stop working. Ferguson filed a petition for hearing in September of 1992 when he and Buttrey Foods could not reach an agreement. During this time he had been receiving temporary total workers’ compensation benefits which were subsequently terminated on January 4, 1993. On January 28, 1993, Buttrey Foods fired Ferguson because he had taken too much leave of absence.

Ahearing was held on April 26,1993. Ferguson sought to have his disability benefits reinstated as well as payment for thoracic outlet syndrome surgery recommended by Ferguson’s main treating physician but denied by the insurer. Conflicting medical evidence was presented to the Workers’ Compensation Court. Included in the opinions of medical personnel was an evaluation by a seven-person Yellowstone Valley Medical Evaluation Panel. After its examination of Ferguson, the panel determined that Ferguson did not need the suggested surgery.

The Workers’ Compensation Court issued its findings of fact and conclusions of law on December 15, 1993, granting Ferguson reinstatement of his benefits and payment for the surgery. Buttrey Foods appeals the ruling.

Standard of Review

We review the Workers’ Compensation Court’s decision to determine whether it is supported by substantial credible evidence. Plainbull v. Transamerica Insurance (1994), 264 Mont. 120, 870 P.2d 76. When conflicting evidence is presented, our scope of review will be to establish whether substantial evidence supports the Workers’ Compensation Court’s decision — not whether evidence may support contrary findings. Smith-Carter v. Amoco Oil (1991), 248 Mont. 505, 813 P.2d 405. Nor will we substitute our judgment for that of the Workers’ Compensation Court as to weight of evidence on questions of fact. Mennis v. Anderson Steel Supply (1992), 255 Mont. 180, 841 P.2d 528.

I

Did the Workers’ Compensation Court err in determining that claimant’s current condition was caused by a 1986 injury to his back?

The Workers’ Compensation Court found that a preponderance of evidence existed to show that Ferguson suffered from thoracic outlet syndrome as a result of the 1986 injury and needed the requested surgery. Because of Ferguson’s need for surgery, the court determined that he had not been “as far restored as the permanent character of his injuries will permit” and was entitled to reinstatement of temporary total disability benefits. As a result of these determinations, the court concluded that it could not assess Ferguson’s entitlement to rehabilitation or permanent partial disability benefits at this time.

Buttrey Foods argues on appeal that the Workers’ Compensation Court erred when it determined that the 1986 incident caused Ferguson’s current condition. According to Buttrey Foods, the court ignored the preponderance of the medical and occupational evidence which showed that Ferguson’s current condition did not stem from the earlier accident.

Ferguson argues that substantial evidence supports the court’s decision and, therefore, this Court cannot substitute its judgment for that of the Workers’ Compensation Court.

Following Ferguson’s 1986 injury he was treated by two chiropractors, first Dr. Pardis, and then Dr. Nolan. Both doctors released Ferguson to return to work without reaching a decision as to maximum healing. Ferguson testified that he did not complain of pain to his superiors at work because they encouraged him not to be like a former injured employee who complained all the time. Depositions from co-workers at Buttrey Foods indicate that Ferguson did tell co-workers that he was experiencing pain.

In addition to the depositions of Ferguson and his wife, several doctors, including Dr. Snider, Dr. Cook, Dr. Kostelecky and Dr. Kobold, who is a thoracic specialist and Ferguson’s treating physician since 1991, believed or indicated an opinion based on reasonable probability that Ferguson’s current condition stems from the 1986 accident. Buttrey Foods agrees that Dr. Snider and Dr. Kobold are Ferguson’s treating physicians. Dr. Snider, an orthopedic surgeon, referred Ferguson to Dr. Kobold who engaged in specific testing to determine whether Ferguson in truth suffered from the thoracic outlet syndrome. The record contains substantial evidence for the court’s determination that Ferguson’s present condition stems from the 1986 incident. We hold the Workers’ Compensation Court did not err in determining claimant’s current condition was caused by the 1986 injury to Ferguson’s back.

II.

Did the Workers’ Compensation Court err in determining that claimant’s request for thoracic outlet syndrome surgery was reasonable and necessary?

Dr. Kobold is a thoracic specialist. The tests that he performed on Ferguson were done specifically to determine the need for thoracic surgery. Dr. Kobold testified in his deposition that he felt the surgery was necessary to the improvement of Ferguson’s condition.

Although the report of the Yellowstone Medical Panel itself did not recommend thoracic surgery, it indicated that Ferguson’s symptoms could possibly be due to thoracic outlet syndrome. It is important to note that the panel of seven doctors on the Yellowstone Medical Panel consisted of an occupational medicine coordinator, a neurologist, a general surgeon, an orthopedist, a psychiatrist, a psychologist, and a vocational rehabilitation specialist — none a thoracic specialist.

The Workers’ Compensation Court attached more weight to the evaluation of Dr. Kobold, the thoracic specialist and Ferguson’s treating physician, than it did the medical panel. It is clear that a number of the doctors who saw Ferguson indicated that it was medically probable that he suffered from thoracic outlet syndrome. Dr. Snider referred Ferguson to Dr. Kobold with the specific intent that Dr. Kobold determine whether surgery was necessary. Dr. Kobold testified such surgery was needed and therefore, substantial evidence exists that the Workers’ Compensation Court was correct.

We hold that the record clearly indicates that the Workers’ Compensation Court did not err in finding the surgery to be reasonable and necessary.

III.

Did the Workers’ Compensation Court err in reinstating claimant’s temporary total disability benefits?

The Workers’ Compensation Court determined that while earlier opinions and evidence may have indicated that petitioner had reached maximum healing, Dr. Kobold believed that Ferguson needed surgery in order to obtain relief. Because Ferguson would benefit from surgery, the court determined that he had not been “as far restored as the permanent character of the injuries will permit.” Section 39-71-116(19), MCA (1985). The court reinstated the temporary total benefits Ferguson had received during the last portion of December of 1991. On January 4, 1993, the benefits were discontinued. They were subsequently reinstated for a brief period and then stopped again.

Buttrey Foods argues that Ferguson has not proved that a causal connection exists between his current condition and the two incidents that occurred at Buttrey Foods in 1986 and 1989. Further, Buttrey Foods contends that because Ferguson returned to work after both incidents, he has not experienced a loss of wages as required by § 39-71-116(19), MCA (1985) and § 39-71-116(20), MCA (1989), and he is, therefore, not entitled to temporary total disability benefits.

Ferguson argues that it has never been determined that he has reached maximum healing. He contends that without that determination he is entitled to benefits. At the very least, he argues that he is due a review to determine his entitlement to rehabilitation or permanent benefits.

Because this question involves an interpretation of a statute we review this issue as to whether the Workers’ Compensation Court was correct in its interpretation of the law. Francetich v. State Compensation Mut. Ins. Fund (1992), 252 Mont. 215, 827 P.2d 1279. The law in effect at the time of injury is the proper law to apply to the case. Crittendon v. Terri’s Restaurant & Lounge (1991), 247 Mont. 293, 806 P.2d 534. Because we have determined that substantial evidence exists to show that the 1986 injury is the cause of Ferguson’s current problems, we use the 1985 statutes.

Buttrey Foods is correct that in describing temporary total benefits § 39-71-116(19), MCA (1985), means “total loss of wages” precludes receipt of any wages by claimant:

“Temporary Total Disability” means a condition resulting from an injury as defined in this chapter that results in total loss of wages and exists until the injured worker is as far restored as the permanent character of the injuries will permit. A worker shall be paid temporary total disability benefits during a reasonable period of retraining. Disability shall be supported by a preponderance of medical evidence. (Emphasis added.)

Section 39-71-116(19), MCA (1985); Chagnon v. Tilleman Motor Co. (1993), 259 Mont. 21, 855 P.2d 1002. However, Ferguson did not begin to receive benefits until he stopped working in 1991. He is not now working and has not worked since the end of December 1991.

We have stated that temporary total disability ceases when the workman’s physical condition is as far restored as the permanent character of the injuries permit. Sharkey v. Atlantic Richfield Co. (1989), 238 Mont. 159, 777 P.2d 870. Dr. Kobold, Ferguson’s treating thoracic specialist, stated in his deposition that he believed that the thoracic surgery would improve Ferguson’s condition. We conclude that the Workers’ Compensation Court was correct in concluding that because the surgery was needed and would most likely benefit Ferguson, he was not at the time of the hearing “as far restored as the permanent character of the injuries permit.” Therefore, Ferguson is due temporary total disability benefits (up to the statutory maximum of 500 weeks total) until the surgery restores his condition as far as the permanent character of his injuries will permit.

A determination of “maximum healing” must then be made by Ferguson’s treating physician and will trigger a reevaluation of the claimant’s disability status as either permanently totally disabled or permanently partially disabled. Jaenish v. Super 8 Motel (1991), 248 Mont. 383, 812 P.2d 1241.

We hold that the Workers’ Compensation Court was correct in reinstating claimant’s temporary total disability benefits.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON and HUNT concur.


author: CHIEF JUSTICE TURNAGE JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CHRISTOPHER DION WILLIAMS and BRYAN EARL SMITH, Defendants and Appellants.
    No. 93-493.
    Submitted on Briefs April 7, 1994.
    Decided June 28, 1994.
    51 St.Rep. 556.
    268 Mont. 428.
    887 P.2d 1171.

      For Appellants: L. Sanford Selvey, II, Yellowstone Public Defender Office, (Williams), Curtis L. Bevolden, Billings (Smith).
    For Respondent: Joseph Mazurek, Attorney General, Patricia Jordan, Assistant Attorney General, Helena; Susan P. Watters and Dale R. Mrkich, Deputy County Attorneys, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Christopher Williams and Bryan Smith appeal from an order denying their motions to suppress evidence seized from a motel room. After the District Court for the Thirteenth Judicial District, Yellowstone County, ruled the evidence admissible under the “plain view” doctrine, Williams and Smith entered guilty pleas to charges of criminal possession of dangerous drugs with intent to sell. We affirm.

The issues are whether the court should have suppressed the evidence because it was obtained as a result of an illegal search of the motel room, and whether Smith has standing to object to use of the evidence.

On the afternoon of October 11, 1992, Deputy Sheriff Dennis McCave of the Yellowstone County Sheriff’s Office received a phone call from a known informant concerning a black Cadillac driving around in the North Park area of Billings, Montana, in a suspicious manner. According to the informant, the car was then parked at the Rimview Inn.

McCave checked records on the Cadillac and learned it was registered to Jason Hibit-Smith, a minor on whom there was an outstanding arrest warrant for sales of dangerous drugs to an informant. McCave obtained the arrest warrant and went to the Rimview Inn with Deputy Eugene Johnson. McCave was in plain clothes and Johnson was in uniform.

The Rimview Inn motel clerk told McCave that the two men who got out of the black Cadillac were in Room 122, which was registered to Chris Williams. When the deputies knocked on the door of that room, defendant Bryan Smith, in stocking feet, opened it.

McCave asked the two men in the room for their identification. Smith replied that he was Jason Hibit-Smith, and McCave advised him that he was under arrest pursuant to the arrest warrant. (Jason Hibit-Smith was actually Smith’s younger brother.) Deputy Johnson handcuffed Smith, then sat him down in a chair in the room so that they could put his shoes on. The officers observed a suitcase and a pile of clothes on the floor and a stack of money on a bed. Defendant Christopher Williams was sitting on another bed.

McCave asked Williams who he was and why he was there. Williams replied that he had just arrived from Seattle, that he knew Smith from Seattle, and that Smith had picked him up from the bus and taken him to the motel. McCave, concerned that the money on the bed might be Smith’s and that it might be the fruit of drug transactions, asked whose money it was. Smith and Williams both replied that the money belonged to Williams. McCave asked how much money there was, and Williams replied, “$2,000.” While McCave counted the money, Smith said there was not that much there. The stack contained a little over $1,000. McCave said he intended to seize the money until its ownership was cleared up.

Deputy Johnson, meanwhile, was writing down information from the defendants’ I.D.’s. Anticipating leaving with the deputies rather than in the Cadillac, Smith asked Williams to call his uncle, and began to give a phone number. Williams asked for a pen.

Johnson only had one pen, which he was using. McCave said he did not have a pen and commented that motels always have pens in the room. McCave looked at the open shelf on the telephone stand and did not see a pen there. He then opened the desk drawer, immediately exposing

three baggies that contained approximately... 20 to 25 little folded pieces of paper with cocaine. There was also a small baggie by itself with an eighth ounce, an eight-ball of cocaine.

McCave closed the drawer and advised Williams he was under arrest.

Based upon the discovery of suspected cocaine in the drawer, the deputies obtained warrants to seize the evidence and to search the room and the Cadillac. Both Smith and Williams were charged with possession of dangerous drugs with intent to sell. Smith was also charged with obstructing a peace officer, for misidentifying himself as his brother.

At the consolidated hearing on the motions to suppress, the court heard testimony by both deputies and by defendant Williams. Smith did not appear at the hearing, although his counsel was present.

Williams’s testimony differed from that of the deputies on several matters. Williams testified that when the officers first came to the door, they stated they were delivery people. On cross-examination, however, he admitted that it “could have been” that they instead said “Sheriff’s Office.” Deputy McCave testified that, when he knocked on the door of Room 122, he stated, “Sheriff’s Office, please open the door.”

Williams testified that he addressed his request for a pen to Deputy Johnson and that Johnson had several pens in his shirt. Johnson testified that he only had one pen with him in the motel room.

The court heard Smith’s testimony several days later. At that time, Smith testified he had missed the suppression hearing because the thermostat went out in his car. As to the events of October 11, he testified that the officers said nothing when they knocked on the door of the motel room. He stated Deputy Johnson had “a lot of pens” in his pocket. He also testified that McCave went into the bathroom and picked up some keys by the sink and that McCave “started opening drawers” after Williams asked for a pen.

The District Court ruled that the “plain view” exception to the search warrant requirement applied to this situation, because the sheriff’s deputies were lawfully in the motel room and McCave inadvertently discovered the cocaine while looking for a pen for Williams. The court also ruled that Smith lacked standing to contest the legality of the search and seizure of the cocaine in the motel room, because he had no legitimate expectation of privacy in the room.

Should the court have suppressed the evidence because it was obtained as a result of an illegal search of the motel room, and does Smith have standing to object to use of the evidence?

We first address Smith’s standing to raise Fourth Amendment objections to the opening of the drawer. In Minnesota v. Olson (1990), 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85, the Court held that an overnight guest in an apartment had a legitimate expectation of privacy in the home. Smith argues that the Olson holding extends to him, as a guest in Williams’s motel room.

Status as an overnight guest was critical in Olson:

From the overnight guest’s perspective, he seeks shelter in another’s home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside. We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend.

Olson, 495 U.S. at 99, 110 S.Ct. at 1689. In the present case, Smith does not claim that he intended to stay or had stayed in Williams’s room overnight. He denied even taking a nap, or intending to do so, in the room. He testified that he was just “waiting for Chris to get out of the shower.” We conclude that Olson is not controlling.

The idea that anyone legitimately on a premises may raise Fourth Amendment objections to a search of the premises has been rejected as “too broad a gauge for measurement of Fourth Amendment rights.” Rakas v. Illinois (1978), 439 U.S. 128, 142, 99 S.Ct. 421, 429, 58 L.Ed.2d 387, 400. The protections offered by the Fourth Amendment may more properly be said to extend to anyone who has a legitimate expectation of privacy in the place. Rakas, 439 U.S. at 143, 99 S.Ct. at 430. This requires more than a subjective expectation of not being discovered.

Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.

Rakas, 439 U.S. at 144, n.12, 99 S.Ct. at 431, n.12.

Smith does not articulate any reason, other than his mere presence in the motel room, why he had a legitimate expectation of privacy in the desk drawer in that room. In the absence of such a showing, we hold that the District Court did not err in ruling that Smith is not entitled to raise Fourth Amendment objections to Deputy McCave opening the drawer.

On the other hand, Williams, as the registered guest in the room, undisputedly has standing to object to McCave looking in the desk drawer. See, e.g., State v. Ottwell (1989), 239 Mont. 150, 779 P.2d 500. We therefore proceed with our analysis of the “plain view” doctrine.

The Fourth Amendment prohibition against warrantless searches and seizures is not violated when the circumstances fall within the “plain view” doctrine. The elements of the “plain view” doctrine were first defined in Coolidge v. New Hampshire (1971), 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564, 583, as (1) the law enforcement officer had a prior justification for an intrusion; and (2) in the course of the intrusion the officer inadvertently came across a piece of evidence. Prior justification for the intrusion may consist of “a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused.” Coolidge, 403 U.S. at 466, 91 S.Ct. at 2038. Exigent circumstances are necessary to justify immediate seizure of evidence in plain view, but that requirement does not apply here because the deputies obtained a warrant before seizing the cocaine.

The applicability of the “plain view” doctrine to this case depends upon factual determinations of (1) whether the deputies were lawfully in the motel room (prior justification for the intrusion), and (2) whether McCave inadvertently came across the cocaine in the drawer. It is within the province of the district court to find the facts based upon the testimony at a suppression hearing, and this Court will not overturn such findings unless they are clearly erroneous. State v. Cope (1991), 250 Mont. 387, 396, 819 P.2d 1280, 1286, modified, State v. Bower (1992), 254 Mont. 1, 833 P.2d 1106. The credibility of the witnesses and the weight to be given their testimony are matters within the discretion of the district court.

Williams argues that the entry by the deputies into the motel room after Smith’s arrest was an intrusion into a protected area not within Smith’s immediate control. He cites State v. Kao (1985), 215 Mont. 277, 697 P.2d 903, as authority that exigent circumstances, probable cause, or consent was necessary before the deputies could lawfully enter the motel room.

The testimony conflicted on whether Smith’s arrest after he misidentified himself as his brother occurred inside or immediately outside the motel room. But regardless of where the arrest occurred, it is undisputed that the deputies went into the room with Smith to get his shoes and his identification. There were no such circumstances in Kao.

It is not unreasonable under the Fourth Amendment for a police officer, as a matter of routine, to monitor the movements of an arrested person. Washington v. Chrisman (1982), 455 U.S. 1, 102 S.Ct. 812, 70 L.Ed.2d 778. In Washington, the facts were very similar to those here — the arrestee had to return to a dorm room to retrieve his identification. The Court held that the arresting officer rightfully followed him and observed marijuana in plain view in the dorm room. Similarly, we conclude that the deputies in the present case were lawfully in the room for purposes of allowing Smith to retrieve his shoes and his identification.

Williams offers no factual support for his claim that looking for a pen was a “pretext” for opening the desk drawer. McCave testified that he and Johnson were nearly ready to leave the room with Smith when Williams made the request for a pen. Williams admits that he asked for a pen to write down the telephone number Smith was giving him. McCave’s testimony that he did not have a pen was unrefuted. It was within the discretion of the District Court to determine which was more credible, Johnson’s testimony that he had only one pen which he was already using, or the testimony of Smith and Williams that Johnson had more than one pen. Further, McCave testified without contradiction that he opened the drawer only to accommodate Williams’s request for a pen.

Smith also made unsupported comments that Deputy McCave may have opened more than one drawer, hinting at a ransacking of the motel room. Other than Smith’s somewhat equivocal comments, there is no evidence of this. McCave stated that, in trying to locate a pen for Williams, he looked on the open shelf under the phone and then opened the desk drawer containing the cocaine. We conclude the District Court did not abuse its discretion in ruling that discovery of the cocaine was inadvertent.

The dissent cites as Montana authority for its position State v. Carlson (1982), 198 Mont. 113, 644 P.2d 498. The dissent fails to acknowledge that this Court has specifically limited its reasoning in Carlson to cases involving traffic-related misdemeanor offenses. See State v. Wood (1983), 205 Mont. 141, 143, 666 P.2d 753, 754.

The officers went to the Rimview Inn to serve a felony arrest warrant for sales of dangerous drugs on Jason Hibit-Smith. The officers were not trying to serve an arrest warrant for a minor traffic offense as in Carlson. In Wood, the defendant was charged with issuing a bad check, a felony. This Court specifically and unequivocally stated that Carlson is limited to arrests for traffic-related misdemeanors:

The Corut, in Carlson, clearly limited its ruling to traffic-related misdemeanors. The interests of society in the administration of justice is [sic] greater here than in Carlson since a felony is involved. This is a sufficient compelling interest to justify a full custodial arrest.
... Carlson is limited to traffic-related misdemeanors. In Carlson this Court addressed the issue whether a full custodial arrest was proper for misdemeanor traffic offenses. ...
The rationale for our holding was based on the misdemeanor traffic offenses.

Wood, 666 P.2d at 754.

We hold that the District Court did not err in denying the motion to suppress. Affirmed.

JUSTICES HARRISON, GRAY, NELSON and WEBER concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion which, in order to sustain defendants’ convictions, ignores Montana statutory law and prior case law, and seriously erodes the right of Montanans to be free from unreasonable warrantless searches of areas where they have a reasonable expectation of privacy.

BACKGROUND

Although the evidence presented to the District Court was in conflict, I support the principle that resolving those conflicts is the province of the District Court, and therefore, the following facts are derived from the testimony of Officer Dennis McCave, and are those which are most favorable to the position of the State.

After McCave and Deputy Sheriff Eugene Johnson arrived at the motel room which was registered to Chris Williams, and in which both Williams and Jason Smith were occupants, they entered without invitation and without permission. Upon gaining entry, McCave observed all that was in sight. He observed a suitcase, clothing, money, and a few personal items, but nothing that was illegal.

Smith was placed under arrest and handcuffed with his arms behind him. He was then seated on a chair near the door while Williams was questioned regarding his identity and his reasons for being in Billings.

McCave and Johnson did not have a search warrant. Neither were they given permission to enter the room. At no time did either defendant act in a threatening manner, and McCave testified he had no probable cause to think there was contraband or fruits of a crime located in the drawers of the motel room. Johnson also testified that the officers had no concern for their safety at any time during the arrest or while present in the defendants’ room.

It is clear from the testimony of all the witnesses that there were no drugs in “plain view” when McCave and Johnson entered the defendants’ room. The drawer in which the drugs were ultimately found was completely closed, and neither McCave nor Johnson were given permission to open the drawer. McCave opened one, and possibly several, drawers in response to Williams’ request for a pen. The fact that the majority could construe such a request as permission to go through the drawers in the defendants’ room, or even worse, conclude that once the drawers were opened without permission, the drugs were in “plain view” is nothing short of preposterous. Any court which would misconstrue the facts to this extent in order to arrive at a conclusion that the Constitution was not violated has no respect for the Fourth Amendment nor Article II, Section 11, of the Montana Constitution.

In arriving at its conclusion that the District Court was correct in denying defendants’ motions to suppress evidence obtained in their motel room, the majority relies on two incorrect conclusions of law. They are addressed separately in the following part of this opinion:

STANDING

First of all, it is clear that the Fourth Amendment protection against unreasonable searches and seizures applies to a guest in a hotel room, as well as the resident of a home. In Stoner v. California (1964), 376 U.S. 483, 490, 84 S. Ct. 889, 893, 11 L. Ed. 2d 856, 861, the U.S. Supreme Court held that:

No less than a tenant of a house, or the occupant of a room in a boarding house, McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 [1948,] a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 [1948].

Furthermore, whether the motel room was registered in Williams’ name or Smith’s name is irrelevant. The United States Supreme Court has repeatedly made clear that the right to be free from unreasonable warrantless searches does not depend on an occupant’s proprietary interest in the area that is to be searched. In Rakas v. Illinois (1978), 439 U.S. 128, 143, 99 S. Ct. 421, 430, 58 L. Ed. 2d 387, 401-02, the Supreme Court reaffirmed that:

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), provides guidance in defining the scope of the interest protected by the Fourth Amendment. In the course of repudiating the doctrine derived from Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), and Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942), that if police officers had not been guilty of a common-law trespass they were not prohibited by the Fourth Amendment from eavesdropping, the Court in Katz held that capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place. 389 U.S. at 353, [88 S.Ct. at 512]; see United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, [1126], 28 L.Ed.2d 453 (1971). Viewed in this manner, the holding in Jones can best be explained by the fact that Jones had a legitimate expectation of privacy in the premises he was using and therefore could claim the protection of the Fourth Amendment with respect to a governmental invasion of those premises, even though his “interest” in those premises might not have been a recognized property interest at common law. See Jones v. United States, 362 U.S. at 261, [80 S.Ct. 725, 730, 4 L.Ed.2d 697 (1960)].

For the reasons set forth in Katz and Rakas, the Supreme Court recently held in Minnesota v. Olson (1990), 495 U.S. 91, 110 S. Ct. 1684, 109 L. Ed. 2d 85, that an overnight guest in another’s home had a sufficient expectation of privacy in that home to invoke the Fourth Amendment protection against unreasonable searches and seizures. In language relevant to this case, the Court stated that:

It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend. Society expects at least as much privacy in these places as in a telephone booth — “a temporarily private place whose momentary occupants’ expectations of freedom from intrusion are recognized as reasonable.” Katz, 389 U.S. at 361, 88 S.Ct. at 517 (Harlan, J., concurring).

Olson, 495 U.S. at 99, 110 S.Ct. at 1689.

The only difference between the situation of the accused in Olson and Smith in this case, was that Smith was not an “overnight” guest. However, he was still a guest in the private, even though temporary, quarters of another, and as such had, by our society’s standards, a reasonable expectation of privacy and freedom from governmental intrusion while present at that location.

As pointed out in the Olson decision, Smith, in this case, had at least as much expectation of privacy while behind the closed door of a companion’s room as Katz had while talking on the telephone in a glass telephone booth.

The majority concludes that the critical distinction between this case and Olson is that the defendant in that case was an “overnight” guest, rather than a day time guest. However, I can think of no rational basis for concluding that a person’s expectation of privacy depends on the length of time during which he is a guest in another’s home, or the time of day during which he is present in another’s home or motel room. The majority opinion simply substitutes an arbitrary and irrelevant criterion for the real test from the Rakas decision which is whether an expectation of privacy under these circumstances is reasonable in light of “understandings that are recognized and permitted by society.” Rakas, 439 U.S. at 144 n.12, 99 S.Ct. at 431 n.12.

For these reasons, I dissent from that part of the majority opinion which concludes that Bryan Earl Smith did not have standing to move to suppress the evidence seized from Room 122 of the Rimview Inn in Billings on October 11, 1992.

PLAIN VIEW DOCTRINE

McCave and Johnson had no search warrant which authorized them to search the room occupied by Williams and Smith. They did have a warrant for Smith’s arrest, even though they did not bring it with them to the room when he was arrested. Section 46-5-102, MCA, sets forth the circumstances under which a search will be permitted pursuant to a lawful arrest. That section provides that:

When a lawful arrest is effected, a peace officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of:
(1) protecting the officer from attack;
(2) preventing the person from escaping;
(3) discovering and seizing the fruits of the crime; or
(4) discovering and seizing any persons, instruments, articles, or things which have been used in the commission of or which may constitute evidence of the offense.

The first circumstance does not apply because both officers testified that they were not concerned about attack from either Williams or Smith. Smith, in fact, had already been arrested, handcuffed, and was seated on a chair near the door. Obviously, the second circumstance does not apply because going through the drawers in the room had nothing to do with preventing Smith’s escape. Finally, neither the third nor fourth circumstances apply because the crime for which Smith had been arrested involved a previous drug transaction and no one testified that there was any reason to suspect that evidence of that crime was present in the motel room when McCave started opening drawers.

The majority incredibly concludes that even though these two law officers had no search warrant nor any permission to search the defendants’ room, and even though the search was not pursuant to arrest as provided for by statute, the officers had authority to search the area where drugs were found under the “plain view” doctrine. The majority’s conclusion is erroneous for several reasons. First of all, the conclusion that the officers were in the defendants’ room legally in the first place is premised on the U.S. Supreme Court’s decision in Washington v. Chrisman (1982), 455 U.S. 1, 102 S. Ct. 812, 70 L. Ed. 2d 778. The majority opinion fails to note that we declined to follow Chrisman under similar circumstances in State v. Carlson (1982), 198 Mont. 113, 644 P.2d 498. Furthermore, even if the officers were legitimately in the motel room, the drugs ultimately discovered were not in “plain view” in that room and were not discovered until one of the officers started going through drawers which they had no prior permission to open. The fact that one of the occupants asked one of the officers to borrow his pen was not a request to rummage through the motel room drawers looking for another pen, and did not satisfy the requirement from Coolidge v. New Hampshire (1971), 403 U.S. 443, 467, 91 S. Ct. 2022, 2038, 29 L. Ed. 2d 564, 583, that there be prior justification for intrusion in the area where the evidence is found. Presence in the defendants’ room did not place the contents of the defendants’ drawers in “plain view” for purposes of establishing an exception to the requirement that searches be conducted pursuant to a search warrant.

In Carlson, Helena City Police Officers came to the defendant’s home to serve misdemeanor arrest warrants. The defendant appeared at the door, where he was advised that he was under arrest. However, he, like Smith in this case, requested the opportunity to complete dressing, and therefore, the officers accompanied him into his home while he did so. They were never told that they could not enter, and were never given specific permission to enter.

Once inside the home, the officers in Carlson observed drugs and drug paraphernalia which was in plain view on a coffee table in the living room. They did not seize the evidence but, like the officers in this case, used the observation to obtain a warrant with which they later returned and searched the defendant’s home.

The defendant moved to suppress the evidence seized in his home, and the State opposed the motion, based on the “plain view” doctrine.

After acknowledging the “plain view” doctrine, this Court held that:

If therefore, the officers in this case were lawfully in Carlson’s front room when they made the visual observations, a “search” within the constitutional sense did not occur; on the other hand, if their presence in the front room was not consented to, as the District Court determined, the visual examination does constitute a “search” in the constitutional sense.
The validity of the officers’ entry into Carlson’s front room is the fulcrum therefore on which this case turns.

Carlson, 644 P.2d at 501.

This Court concluded that under these circumstances valid consent had not been given because:

In order to show that voluntary consent to search was obtained, the State must show that the consent was unequivocal, specific, intelligently given and uncontaminated by duress or coercion. This Court has held that there is a heavy burden of proof required to show that there was consent to a search. State v. LaFlamme (1976), 177 [170] Mont. 202, 204, 551 P.2d 1011, 1012. Equivocal conduct alone is insufficient as a basis for inference of consent to a search, which consent is a waiver of a constitutional right. [Citations omitted].

Carlson, 644 P.2d at 502.

Based on this standard, there can hardly be any intellectually honest argument that either Williams or Smith consented to have their drawers searched in their motel room by requesting a pen from Officer Johnson.

The majority bases its conclusion on Coolidge and Chrisman. However, both cases were considered in Carlson and rejected as a basis for entrance into the defendant’s home. Regarding Coolidge, we stated that:

The high court noted in Coolidge v. New Hampshire (1971), 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564, 583, that what the “plain view” cases had in common was that the police officer in each case had a prior justification for an invasion into the property of the accused. The District Court noted this distinction and decided that in this case there was no prior justification for the intrusion. ...
We agree with the District Court. There was no prior justification or exigency for the entry by the police officers in this case. Their entry under the facts of this case was unreasonable, and it is that factor that converted their observation while in the house into a warrantless search, which is always presumed unreasonable. E.g., Payton v. New York (1980), 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639; Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564.

Carlson, 644 P.2d at 504.

We also specifically addressed the applicability of Chrisman to these circumstances. We stated that:

We are aware of Washington v. Chrisman (1982), [455] U.S. [1], 102 S.Ct. 812, 70 L.Ed.2d 778, in which the high court upheld the seizure of marijuana seeds and a pipe where a Washington State University policeman had entered the room to allow an arrested person to procure identification. Chrisman was the roommate of the arrested person. ... We distinguish this case however. The District Court in this case found that the entry of the police to the defendant’s home occurred through the defendant’s coerced consent. We have previously held that full custodial arrest and mandatory search for a minor traffic violation is unreasonable. State v. Jetty [(1978), 176 Mont. 519, 579 P.2d 1228]. We have, moreover, our unique state constitutional provision which defends the right of individual privacy absent a showing of compelling state interest. Art. II, § 10, 1972 Mont. Const. A compelling state interest is lacking here to overcome defendant’s reasonable expectation of privacy in his home.

Carlson, 644 P.2d at 504.

The facts in this case are even more offensive to the right to be free from unreasonable searches than the facts in Carlson. In this case, not only did the officers enter the defendants’ motel room without permission and without a warrant, but the evidence ultimately seized was not even in “plain view” once they arrived in the motel room. It was only discovered after the defendants’privacy was further invaded by opening drawers in that room without their permission. The fact that one of the defendants asked for a pen did not justify going through the defendants’ drawers, it was merely a pretext for a search which was constitutionally prohibited.

The majority attempts to distinguish this case from Carlson based on the fact that these defendants were arrested for an alleged felony and the defendant in Carlson was arrested for an alleged misdemeanor. According to the majority, Carlson was overruled by our decision in State v. Wood (1983), 205 Mont. 141, 666 P.2d 753. However, the majority opinion misconstrues the basis for our decision in Carlson and exaggerates the extent to which it was modified by Wood.

In Carlson, we discussed two issues: (1) whether the defendant had freely consented to the entry of police into Ms home or whether entry was subtly coerced; and (2) whether custodial arrest is ever appropriate for a misdemeanor.

In Wood, we merely concluded that the proMbition against custodial arrest for a misdemeanor did not apply to felomes. In that case, there was no discussion about the circumstances under wMch an arrest warrant could serve as a pretext for entering someone’s home or private quarters. Neither did we reconsider our prior determination that the uMque guarantee of privacy in the State of Montana required a greater showing than was reqmred in Chrisman for entry into a person’s home or room. Wood simply has no applicability to tMs case.

The majority’s analysis ends with its conclusion that the arresting officers lawfully entered the defendants’ room, and then as an afterthought, concludes that the defendants did not prove that ‘looking for a pen was a ‘pretext’ for opening the desk drawer.” However, the majority has it backwards. The defendants did not have to prove anything. Since the State did not have a warrant wMch authorized it to go through the defendants’ drawers, it had to prove that its officers had permission, or some other justification for doing so, and there was a total failure of such proof. The majority does not even bother to address this issue, but simply concludes that it was sufficient that one of the defendants asked one of the officers (not the one who conducted the search) for a pen.

We have come a long way from the days when the State had the burden to show that “consent was unequivocal, and intelligently given.” Unfortunately, this progress has been at the expense of the Constitution and sound judicial reasoning.

The majority’s willingness to distort the law to justify a search under these circumstances may, in the short term, punish a couple more small-time drug dealers, but the benefit does not justify the long-term detriment that has been done to the right of all citizens to be free from unreasonable and warrantless government searches. This decision is just one more step toward the erosion of the right to privacy guaranteed to all Montanans and one with which I cannot concur.

For these reasons, I dissent from the majority’s conclusion that the evidence seized from the motel room occupied by defendants Williams and Smith was acceptable under the “plain view” doctrine. I would reverse the order of the District Court.

JUSTICE HUNT joins in the foregoing dissent.