No. 81-290 IN THE SUPREME COURT OF THE STATE OF MONTANA 1982

STATE OF MONTANA, Plaintiff and Respondent, VS.

MARET BROWN, Defendant and Appellant.

Appeai from: District Court of the Fourth Judicial District, In and for the County of Missoula Honorable James Wheeiis, Judge presiding

Counsel of Record: For Appellant: Anthony F. Keast, Missoula, Montana For Respondent:

Hon. Mike Greely, Attorney General, Helena, Montana Robert L. Deschamps 111, County Attorney, Missoula, Montana

Submitted on briefs: June 15, 1982 Decided: August 19, 1982 Filed: AUG 19 1982 Mr. J u s t i c e Gece B. Daly d e l i v e r e d the Opicioc of the Court.

The d e f e c d a c t , Maret Browc, appeals from a judgmect issued by the District Court of the Fourth J u d i c i a l District, Missoula Coucty, upoc a jury c o c v i c t i o c f o r f e l o c y t h e f t a s provided ic

s e c t i o c 45-6-301(3), MCA. Defecdact was sectecced to e i g h t years i e the Moctaca S t a t e P r i s o c w i t h a l l b u t c i c e t y days suspecded. T h i s case a r i s e s out of the burglary of a mobile home owced

by Robert White acd located s e a r A r l e e , Moctaca. White had moved t o Alaska w i t h h i s family acd l e f t h i s mobile home to be sold by a r e a l e s t a t e agect. Ic Juce 1980, the r e a l e s t a t e agect disco-

vered that someoce had broker! icto the mobile home acd garage. The agect c o t i f ied the Lake Coucty Sherif f 1s departmert acd oe Juce 30 west through the home with Lake Coucty deputy

s h e r i f f , Racdy Merrymar?. Or? J u l y 2 5 , 1980, White foucd out i c a c o c v e r s a t i o c with h i s brother t h a t the mobile home had beep b u r g l a r i z e d . White q u i t

h i s job acd moved h i s family back to Arlee, Moctaca. White acd officer Merrymac thee wect through the home acd the garage, makicg a list of the persocal property that was stoles,

which iccluded a weldicg torch owced by White. White t o l d ac a c q u a i r t a c c e , J i m F l e i s c h a u e r , t h a t h i s torch had beep s t o l e c . A couple of weeks l a t e r , F l e i s c h a u e r telephoced

White acd t o l d h i m t h a t he had h i s t o r c h . F l e i s c h a u e r said he had purchased the torch from o r e Louis Goodsell. White aed F l e i s c h a u e r wept t o see Goodsell. Goodsell said he had purchased

t h e torch from the d e f e c d a c t , Maret Browc. Accordicg to the testimocy of White, Fleischauer, acd Goodsell, the three thee wect to the house of the defecdact, Maret Browc. They wept up oc d e f e c d a c t l s closed-ic porch ard kcocked or? h i s door. Whec Browc acswered the door, White i c t r o - duced himself acd asked d e f e ~ d a c tif he had a r e c e i p t f o r the

t o r c h he had sold Goodsell. Defecdact said he had a r e c e i p t acd i c v i t e d White ir?si.de the house. White r e f u s e d , sayicg he would

remaic oc the porch. While oe the porch, White coticed that some of h i s stolec

belocgicgs, s l e e p i c g bags, a i r mattresses, a grinding wheel, a s h o v e l , acd a red box, were l y i c g i c the c o r c e r s of the porch.

White t o l d F l e i s c h a u e r acd Goodsell to go g e t a search warrapt.

F l e i s c h a u e r acd Goodsell returced w i t h a deputy s h e r i f f but co search warrapt. The o f f i c e r asked defecdact if they could

s e a r c h h i s house; d e f e c d a c t refused. The o f f i c e r thee wept to g e t a search w a r r a c t .

A search warract was obtaiced upoc icformatioc giver by

White. Several o f f i c e r s acd White returced to d e f e e d a c t ' s house l a t e t h a t evecicg acd completed the s e a r c h . White accmpacied t h e o f f i c e r s i c the s e a r c h . The o f f i c e r s seized a l l the items t h a t they f e l t White had p o s i t i v e l y i d e c t i f i e d . Defecdact was very upset whee the o f f i c e r s came to the house ard s t a t e d t h a t he

owced everythicg or! the porch. A s h o r t time i c t o the s e a r c h ,

a f t e r White had i d e c t i f i e d a few persocal items such a s a b l e e d e r ard ac iror! t h a t had a persocal i c s c r i p t i o c oe i t , d e f e e d a c t was arrested. The s o l e issue raised by d e f e c d e r t oe appeal i s whether a w a r r a c t l e s s search cocducted by White, Fleischauer acd Goodsell was i c v i o l a t i o c of d e f e c d a c t ' s r i g h t s ucder the Fourth Arnerdmeet

of the Ucited S t a t e s C o c s t i t u t i o c , acd defecdar?t1s r i g h t of p r i - vacy as provided ic Sectioe 10, Art. I1 of the Moctaca Cocstit u t i o c . It i s very importact here to c o t e t h a t d e f e c d a c t does - cot

r a i s e the issue based upoc the f a c t s r e l a t e d above. H does cot e claim t h a t ac u c c o c s t i t u t i o c a l search occurred whee White acd h i s compaciocs were i c v i t e e s oc the d e f e c d a c t ' s porch acd saw s e v e r a l of White's possesiocs i c p l a i c view. Rather, defecdact claims that the u c c o c s t i t u t i o r ? a l search occurred earlier it? the aftercooc. The o c l y evidecce or? the

record t h a t White acd his compaciocs were at the defecdact's

r e s i d e c c e e a r l i e r ir! the a f t e r c o o c comes from the testimocy of

the defecdact's f a t h e r . The f a t h e r of the defecdact t e s t i f i e d a s follows :

I'Q. What time i c the a f t e r c o o c d i d you observe somethicg, ard t e l l u s what you observed? A. Oh, i t was a r o u ~ d ope, two o ' c l o c k somewheres i c t h e r e , maybe a l i t t l e l a t e r , I c o t i c e d a c a r d r i v e up t o G o o d s e l l ' s . Two guys got out acd walked over t o Goodsell I s house. Louis came out acd they t a l k e d . From t h e r e they wept to Maret's house. "Q. They? Who's they? A. The two guys t h a t g o t out of the c a r was White acd F l e i s c h a u e r , o r whatever you c a l l h i m , acd Louis Goodsell.

"Q. The t h r e e of them? A. Three of them, yes. "Q. What happeced, thee? A. They wept dowr t o Maret's house. They wept i c , White ard Goodsell wept i n the porch.

"Q. Did you see them go i c t o the door? A. Yes, I d i d . "Q. What made it i r t e r e s t i l ? g t h a t you would watch them? A. Maret was c o t home a t t h a t time, acd I d i d c ' t know what was goirg or?. I was c u r i o u s . "Q. Did you watch i t ? A. I watched them.

"Q. H w l o r g were they i c t h e r e ? A. o Five to tei? micutes. "Q. T h a t ' s i c s i d e a t l e a s t , i c s i d e the porch? A. They was i c s i d e out of s i g h t oc the porch. "Q. Wher they came o u t , did you say a c y t h i r g t o them? A. No. They wept over t o Goodsell's t o t h e i r c a r . "Q. Thee what did you observe? A. Well, they stood t h e r e acd t a l k e d , acd f i c a l l y they wept back. I doc' t h o w , I t h i c k they drove o u t o r t o Stoce S t r e e t . "Q. Did you have occasioc t h a t day to see those mer, a g a i r ? A. Yeah, l a t e r oc t h a t day they r e t u r c e d . I coticed o r e with t h e s h e r i f f , acd Maret was home a t t h a t time." The above testimocy does cot support a claim t h a t White acd h i s compar i o c s cocducted a search of d e f e r d a r t ' s r e s i d e c c e . The f a t h e r ' s testimocy o ~ l yi c d i c a t e s t h a t White acd h i s compaciocs may have e c t e r e d d e f e r d a c t ' s porch acd were t h e r e f o r f i v e to t e e micutes. Nothicg oe the record s u g g e s t s t h a t a search took place

duricg this time. The cocvictioc must t h e r e f o r e be affirmed sicce " [w] e w i l l not c o c s i d e r r e p r e s e ~ t a t i o c s of p a r t i e s af t e r

the fact or represertatiocs dehors the records." S t a t e ex re1 Woodahl v. District Court (1975), 167 Mo~t. 514, 518,

540 P.2d 312, 314. S e e a l s o S t a t e v. Rumley ( 1 9 8 1 ) , -- MOI? t . ---- , 6 3 4 P.2d 446, 38 S t . R e p . 1351A; a ~ d t a t e v. S Lamb ( 1 9 8 2 ) ,

---- MOP t ---- f 646 p.2d 516, 39 St.Rep. 1621. The judgeme~t of the District Court is affirmed.

We concur: