concluding that statute prohibiting the possession of "any dangerous drug" required separate offenses because the legislature specifically stated what types of drugs were prohibited and what the different penalties were depending on the type and amount of the drug involved (internal quotation marks omitted)
How later courts described this case
- concluding that statute prohibiting the possession of "any dangerous drug" required separate offenses because the legislature specifically stated what types of drugs were prohibited and what the different penalties were depending on the type and amount of the drug involved (internal quotation marks omitted)
- legislature did not intend to treat all prohibited drugs as a generic drug or unit, but meant to provide a distinct crime for possessing each different type of prohibited drug
Written by the judges who cited it.
The opinion
MR. JUSTICE SHEA
dissenting:
The majority decision will encourage policemen to search in many situtations where they would not have done so previously. If they search, without making an arrest, they may just luck out and find contraband or other evidence of illegal activity. On the other hand, if they search someone and find nothing, it is doubtful that the vast majority of those persons searched will ever complain to the authorities or take other action. The incidence of searches will increase dramatically.
I fail to see the compelling logic of People v. Simon (1955), 45 *111 Cal.2d 645 , 290 P.2d 531, 533 , on which the majority relies. If an officer arrests before a search, and then finds nothing justifying the continued retention of the individual involved, he is just as free to release him as he would be if he searched first and then found nothing. In either event the individual is detained pending the outcome of the search. The defendant who is first searches is no more free to go than the person who is first arrested.
Moreover, there are compelling reasons to prohibit a search before an arrest. Article II, Section 4, 1972 Montana Constitution, Individual Dignity, provides in part: “The dignity of the human being is inviolable. * * *” Article II, Section 10, Right of Privacy, provides: “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling sate interest.” Article II, Section 11, Searches and Seizures provides in part: “The people shall be secure in their persons, papaers, homes and effects from unreasonable searches and seizures. * * *”
The individual is provided no dignity when police are allowed to search him even before they arrest him. The well-being of a free society cannot be fostered by holding there is a compelling state interest in allowing a search to precede an arrest. No person can be secure in his person if any officer can search his person when he is not even under arrest.
It would appear also that the majority has unwittingly created a new cause of action — one of false search. Previously, for a false arrest, one had a cause of action if it turned out that there was no probable cause..Now one has a cause of action for false search it it turned out that there was no probable cause to justify the search. However, this new cause of action will provide little or no practical redress to the multitude who are searched and then sent on their way. I fear that those lowest on the totem pole of success in our society will be those who will be most often searched. That is why we should not allow it to happen.