Lead Opinion
delivered the Opinion of the Court.
¶1 A Hill County jury convicted Brian Hayden Allen (Allen) of two counts of assault with a weapon and one count of criminal endangerment for beating Louis Escobedo (Escobedo) with a pistol and firing the pistol in a residential neighborhood. Allen appeals the conviction, alleging that the District Court committed reversible error by denying his challenge for cause of a prospective juror, denying his motion to suppress recorded telephone conversations, and denying his request for a jury instruction on accomplice testimony. We reverse and remand for a new trial.
¶2 We address the following issues on appeal:
¶3 1. Whether the District Court abused its discretion when it denied Allen’s challenge for cause.
¶4 2. Whether the District Court erred when it denied Allen’s motion to suppress a warrantless recording of a telephone conversation between Allen and a confidential informant.
¶5 3. Whether the District Court abused its discretion when it denied Allen’s request for a jury instruction on accomplice testimony.
FACTUAL AND PROCEDURAL BACKGROUND
¶6 In February 2008 the State charged Allen with four counts of
¶7 According to the allegations, on that night Allen used a pistol to threaten and then bludgeon (or, “pistol-whip”) Escobedo. The affidavit sketched the following chronology of events. Allen, getting increasingly drunk at the Shanty Bar in Havre, dialed Kristin Golie (Golie) (who was, unbeknownst to Allen, a police informant, working with the local drug task force) to chauffer him to the trailer house where Escobedo was babysitting his nieces. Upon arriving at the trailer house, Allen and Golie somehow (the affidavit glosses over this) drew Escobedo into the backseat of the car. Allen pointed the pistol to Escobedo’s face and demanded money owed to him. Escobedo did not have the money, so Allen struck him repeatedly in the head with the pistol, causing him briefly to lose consciousness. During the fray, Allen fired the pistol, shooting a hole through the car’s rear window. Eventually Escobedo was released, and Allen and Golie returned to the Shanty briefly before retiring to their separate residences for the evening. At numerous points during the incident, Allen also allegedly pointed the gun at Golie and threatened to kill her. At trial Allen testified and admitted to this basic storyline, with two critical exceptions: (1) Allen denied using or discharging a gun during the altercation, and (2) Allen denied ever threatening Golie.
¶8 As mentioned above, Golie was a confidential informant (Cl), and she aided a law enforcement investigation of Allen. As a Cl, Golie surreptitiously recorded her cell phone conversations with Allen. Law enforcement did not obtain a search warrant to record the conversations at issue. Before trial, Allen moved (pursuant to State v. Goetz,
¶9 The District Court held a hearing on the motion. Golie and Allen testified. Golie testified that she was a Cl involved in an investigation of Allen and that she recorded calls with Allen at the behest of law enforcement. Golie was usually alone during the calls, but occasionally law enforcement or family and friends were present. During the phone calls, Golie could also hear voices and other sounds in the background, though the only voice she could identify was that of Allen’s wife. Allen in turn testified that he was unaware that Golie was recording their phone conversations and that he believed the conversations were private. Allen never heard other background voices when he spoke with Golie. Allen also testified that his cell phone would alert him if the person on the other end was using the speaker phone and that he could tell by the echo whether someone was listening on an extension line. Thus, he believed he could detect whether any third parties were overhearing his telephone calls. (Although the testimony indicated that numerous calls were recorded, only one of the calls is at issue.)
¶10 The District Court denied Allen’s motion. The court observed that Allen “had a subjective expectation of privacy in the cell phone calls he made to Golie and the calls she made to him.” Nevertheless, the court concluded that society is unwilling to recognize as reasonable an expectation of privacy in telephone conversations. Unlike face-to-face conversations, the court reasoned, a party to a telephone conversation can never be sure who may be listening to the conversation on the other end. The court also noted Golie’s testimony that Allen was apparently in a public setting during portions of his call to her because she could hear voices in the background. Thus, “[wjhether he made the calls or received them from Golie, it was his choice to use the words he did and that left him at risk that someone would hear them or Golie would be recording them.” Accordingly, the court concluded that the State could present the recordings at trial because no search requiring a warrant had occurred.
¶11 The case went to trial in October 2008. During voir dire (jury selection) the parties disputed whether the court should eliminate a prospective juror, Dennis Morgan, on account of his being partial to the prosecution. Upon the prosecutor’s initial inquiry, Morgan declared that he had made up his mind about the case because he had read the newspaper, he considered himself “a law-and-order sort of person,” and he knew the police officers involved in the case both professionally and personally.
¶13 Defense counsel then challenged Morgan for cause, asking the court to remove him from the jury pool. The prosecution resisted, “The panelist [h]as indicated that he will listen to the evidence before making his determination and he’s already indicated that he’s not automatically going to find guilt or innocence until then.” The court denied the challenge, explaining, “Mr. Morgan has said that he had some biases towards that, but I don’t think he indicated that he couldn’t be fair and listen to the evidence.” Allen subsequently used a peremptory challenge to remove Morgan from the panel and exhausted his peremptory challenges.
¶14 After the jury was selected, the parties gave opening statements and then presented evidence and testimony. Witnesses called by the State during its case in chief included Escobedo, Golie, the bartender (Jodi Pickens) and a patron (Shane Munyan) at the Shanty Bar on the evening of the assault, one of Allen’s friends (Timothy Vigliotti), and various members of the Havre Police Department. During Golie’s testimony, the State introduced the recorded conversation between Golie and Allen that was the subject of Allen’s motion to suppress. The State’s witnesses described a story that closely paralleled the account from the State’s charging documents-that Allen attacked Escobedo with a gun and threatened Golie. Allen, testifying in his own defense, agreed that he had attacked Escobedo in Golie’s car, while Golie looked on. But Allen steadfastly denied using a gun in the attack and denied threatening Golie at any point.
¶15 Also in dispute was whether Golie was an accomplice to the attack. Golie testified at trial that though she agreed to drive Allen to meet Escobedo, she believed that Allen intended only to acquire narcotics from Escobedo and then go home. Pickens, however, testified
She knew the situation. She knew-she didn’t know that that’s why I wanted to go there, because I was mad and I wanted to assault him. She didn’t know that at the time, but she knew I wanted to go to Louis’s.
I called her to come and get me and if he didn’t have my marijuana or my money, I was going to beat him up.
The parties agreed that Golie drove Allen to meet Escobedo and, upon arriving, beckoned Escobedo to approach the car. The witnesses (Allen, Escobedo, and Golie) also testified that Golie immediately began scolding Escobedo for talking to others about her. Escobedo further testified (but Golie denied) that Golie threatened him, saying that “this stuff [talking about her] could get me killed and stuff like that.” After the assault, Golie drove Allen back to the Shanty bar.
¶16 Following presentation of the witnesses, the jury left the courtroom, and the parties and the District Court settled the jury instructions. The only instruction at issue on appeal is “Defendant’s Proposed Instruction No. 3,” regarding the testimony of Golie. The instruction, based on Montana Criminal Jury Instruction 1-112, read:
Testimony has been presented that the witness Kristen Golie may be legally accountable for the offense charged in this case. In this respect, you are to be guided by the following rules of law:
1. A person is legally accountable for the conduct of another when either before or during the commission of an offense with the purpose to promote or facilitate such commission, she solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense.
2. It is a question of fact for the jury to determine from the evidence and from the law as given you by me whether or not in this particular case the witness Kristen Golie is or is not legally accountable within the meaning of the law.
3. The testimony of one legally accountable ought to be viewed with distrust.
4. A conviction cannot be had on the testimony of one legally accountable unless it is corroborated by other evidence which in itself, and without the aid of the testimony of the person legally accountable, tends to connect the Defendant with the commission*502 of the offense or offenses, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
¶17 The District Court questioned the propriety of this instruction, given that there was testimony, in addition to that of Golie, corroborating the charged offenses against Escobedo. The State objected that there was insufficient evidence that Golie was legally accountable (i.e., an accomplice). Ultimately, the court denied the instruction, reasoning that it could confuse the jurors and also that it was improper since Allen had admitted to attacking Escobedo. The court said that Allen was free to challenge the credibility of Golie in his closing argument.
¶18 The parties then presented closing arguments. The State argued that it had met its burden on each count. The defense tried to raise doubts. During its rebuttal, the State referred extensively to incriminating statements made by Allen in the conversation that Golie had secretly recorded. After nearly three hours of deliberation, the jury returned a verdict, convicting Allen of two counts of assault with a weapon for attacking Escobedo and one count of criminal endangerment for firing the pistol in the trailer court. The jury found Allen not guilty of assaulting Golie with a weapon or intimidating her. At a subsequent sentencing hearing, the District Court sentenced Allen to thirty years in prison. The court also awarded restitution to Escobedo and Golie, and recommended myriad conditions in the event Allen is paroled.
¶19 Allen appeals.
STANDARD OF REVIEW
¶20 We review for abuse of discretion a district court’s denial of a challenge for cause of a veniremember (prospective juror). State v. Robinson,
¶21 We review a district court’s denial of a motion to suppress to determine whether the district court’s findings of fact are clearly erroneous and whether its interpretation and application of the law is correct. State v. Goetz,
¶22 Generally, we review jury instructions in a criminal case to determine if, when taken as a whole, they fully and fairly instruct the
DISCUSSION
¶23 1. Whether the District Court abused its discretion when it denied Allen’s juror challenge for cause.
¶24 In denying Allen’s challenge for cause, the District Court reasoned that prospective juror Morgan “said that he had some biases towards that, but I don’t think he indicated that he couldn’t be fair and listen to the evidence.” This was based on Morgan’s negative response to the prosecutor’s question whether Morgan would convict Allen if the prosecutor did not prove the case. On appeal the State argues that this was a permissible discretionary determination by the District Court to which we should defer. We disagree.
¶25 In a criminal trial, a party may challenge a prospective juror for “having a state of mind in reference to the case or to either of the parties that would prevent the juror from acting with entire impartiality and without prejudice to the substantial rights of either party.” Section 46-16-115(2)(j), MCA. This rule is rooted in the fundamental right of criminal defendants to be tried by an impartial jury. State v. Golie,
¶26 In reality, few people are entirely impartial regarding criminal matters, and a district court is not required to remove a prospective juror for cause if the juror convincingly affirms his ability to lay aside any misgivings and fairly weigh the evidence. State v. Robinson,
¶27 Here, Morgan’s statements during voir dire, viewed as a whole, raised serious doubts about his ability to be fair and impartial. When the prosecutor asked him if he had made up his mind about the case, Morgan responded that he had. Morgan explained that he had read newspaper accounts of the incident, that he was a “law-and-order sort of person,” and that he would be partial to testimony by police officers involved in the case, whom he knew professionally and personally. Morgan’s spontaneous explanation of why he had made up his mind in the case and of why he would be partial carries significant weight. Morgan also expressed an unwillingness to consider all the evidence before reaching a conclusion about the case and eventually agreed with Allen’s counsel that he had serious doubts about his ability to be fair in the case.
¶28 Further, and contrary to the State’s argument, subsequent attempts by the prosecution to rehabilitate Morgan failed to convincingly demonstrate Morgan’s ability to be impartial. After Morgan voiced his initial misgivings about his ability to be impartial, the prosecutor asked, “So if I don’t prove the case are you saying that you’re still going to find him guilty?” And Morgan responded, “No. No, I wouldn’t.” This, the quintessential coaxed recantation, was inadequate to rehabilitate Morgan and show that he could lay aside his bias. In effect, the prosecutor asked Morgan if he would convict Allen without some showing of evidence by the State. Morgan could realistically be expected only to answer this leading question negatively, as he did. See Good, ¶¶ 51, 55 (indicating unlikelihood that prospective juror would challenge judge’s loaded question).
¶29 Morgan’s subsequent statements were more telling. He continued to emphasize his pro-police bias, which he evidently could not set aside
¶30 The District Court’s failure to grant Allen’s challenge for cause was an abuse of discretion. Because Allen used a peremptory challenge to remove Morgan and then exhausted his peremptory challenges, we reverse and remand for a new trial. Robinson, ¶ 7.
¶31 Because the remaining issues may arise on retrial, we address them below. State v. Barosik,
¶32 2. Whether the District Court erred when it denied Allen’s motion to suppress a warrantless recording of a telephone conversation between Allen and a confidential informant.
¶33 At trial the State presented the warrantless recording of a phone conversation between Allen and Golie that Golie had recorded at the behest of law enforcement. Allen maintains that this was error and that the recording should have been suppressed.
¶34 The State argues on appeal that under existing precedent, police need not obtain a warrant to record telephone conversations, and consequently, that the District Court properly denied Allen’s motion to suppress. The State further contends that even if the Court reconsiders this precedent, the District Court’s denial of Allen’s motion was still proper because (1) a constitutionally cognizable search did not occur and (2) if one did, no warrant was required in light of Golie’s consent.
A. Evolution of Jurisprudence on Electronic Monitoring by Police
¶35 Initially we must determine whether to revisit our jurisprudence regarding the warrantless electronic monitoring and recording of
¶36 To critique Coleman, we must first examine two earlier cases involving electronic monitoring: State v. Brackman,
¶37 We held that under the plurality opinion in United States v. White,
¶38 Two years later we decided Hanley. In that case an undercover police officer-again, acting without a warrant-recorded a telephone call with the defendant and two other parties in which they arranged a drug sale. Hanley,
¶39 The relevant issue on appeal was whether the district court correctly denied the motion to suppress. Id. at 413,
¶40 The defendant apparently also challenged the legality of the recording of the drug sale (for which the state had a warrant) under federal law (Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522). See Hanley,
¶41 That same year we decided Coleman. That decision involved consolidated cases, only the second of which is relevant to the present analysis. In that case, police monitored and recorded a telephone call between the defendant and a consenting CI. Colman,
¶42 The difficulties with this analysis are apparent, even before considering the subsequent ruling in Goetz. First, the Coleman Court cited (as the State here recognizes) the analysis in Hanley of federal statutes as the controlling analysis under the Montana Constitution. The Coleman Court then repeated this mistake when it cited 18 U.S.C. § 2511(2)(e) to support its conclusion that the Montana Constitution does not prohibit warrantless consensual participant monitoring. Finally, we did not elaborate the questionable (but categorical) assertion that one can have no reasonable expectation of privacy in any communications where one cannot see the other participant.
¶43 Despite the opinion’s analytical shortcomings, we cited Coleman favorably twice in the 1980s. In State v. Canon,
¶45 We first addressed ostensibly conflicting precedent in Brown and Solis on the stated issue. Goetz, ¶¶ 15-24. We determined that since there was not a majority of the Court addressing the protections of the Montana Constitution in Solis, it was not controlling precedent. Id. at ¶ 18. However, we also declined to apply the rule from Brown, which had overruled Brackman in part and held that police need not obtain a warrant to monitor and record an in-person conversation if one party to the conversation consents. Instead, we concluded that Brown offered “little, if any, guidance” because of its reliance on federal jurisprudence in interpreting Section 10 (right to privacy) and Section 11 (right to be free from unreasonable searches and seizures) of the Montana Constitution. Id. at ¶ 24. Accordingly, we overruled Brown and examined “anew” the issue of warrantless electronic monitoring under the provisions of the Montana Constitution. Id. We then engaged in a three-part analysis, giving much weight to the individual’s right to privacy and the concerns about privacy expressed by the delegates at the Montana Constitutional Convention. See id. at ¶¶ 28-54. Ultimately, we concluded that the recordings were warrantless
¶46 Here, as in Goetz, we find our existing precedent on the dispositive issue wanting. Accordingly, we will address anew whether the surreptitious, warrantless participant recording of Allen’s telephone conversation with Golie violated Sections 10 and 11. Coleman, like Brown, analyzed this issue without giving any particularized consideration to the unique provisions of the Montana Constitution and merely adopted a rule identical to the federal interpretation of the Fourth Amendment of the United States Constitution. Coleman,
B. Analysis under Goetz
¶47 The Montana Constitution expressly protects the right to privacy of people in this state: “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 state interest.” Mont. Const, art. II, § 10. The constitution further provides that “[t]he people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures.” Id at § 11. Read together, Sections 10 and 11 provide robust protection to people in Montana against government intrusions. See Goetz, ¶ 14 (noting that together these provisions provide greater protection against government searches than the federal Fourth Amendment). When a state action implicates these rights, we undertake a three-part analysis to determine whether the action is constitutional. Goetz, ¶ 27. First, we determine “whether the person challenging the state’s action has an actual subjective expectation of privacy.” Id. Second, we determine “whether society is willing to recognize that subjective expectation as objectively reasonable.” Id. If, after the first two steps, we conclude that the defendant did not have a subjective expectation of privacy or that society is unwilling to accept the expectation as reasonable, then no search (as contemplated by the Montana Constitution) has occurred: the police activity in question is
C. Subjective Expectation of Privacy ¶48 The touchstone of subjective expectations of privacy is not some physical location, but rather an individual’s desire to keep some aspect of his or her life secure from the perception of the general public. Goetz, ¶ 28; see also Katz v. United States,
¶49 Here, we agree with the District Court that Allen expressed a subjective expectation of privacy in his telephone conversation with Golie. Allen testified at the suppression hearing that he did not know that his conversation with Golie was being recorded and that he believed the conversation was private. Allen also testified that he believed that Golie was not using the speaker phone function on her phone and that no third party was using an extension line to overhear the conversation. The recording of the telephone conversation itself further evidences Allen’s desire to keep the substance of his conversation away from any spying ears of the general public. First, because the conversation was telephonic, half of the conversation was entirely inaudible, making the substance of the conversation poorly intelligible, at best, to any outside listener. Second, it is apparent from the recording that Allen was moving while conversing with Golie: it is
¶50 The State argues that Allen had no subjective expectation of privacy because at one juncture in the recorded conversation he expressed an unwillingness to discuss certain information over the phone. The State cites the portion of the conversation when Golie asked Allen how he would be able to finish a tattoo that he started for her if he were to leave Havre. Allen indicated that she could meet him, and the following exchange occurred:
GOLIE: How am I supposed to do that when you won’t even tell me where you’re at?
ALLEN: I’ll tell you right where I’m at, where I’m going and everything, but I’m not going to do it over the phone, and certainly with no one else around.
GOLIE: That’s fine.
ALLEN: But no, in that situation I would bring you to the town where I am, but I would damn [sure] blindfold you before I took you to my house. I’ll blindfold anybody going to my house. No one’s going to know exactly where I live. Nobody. Because of what I’ll be doing. There’s no way. I don’t want anyone to know where it is ‘cause I don’t want to have to go through the whole situation I just went through to find out who spoke or who talked or whatever, you know. I’m not going to do that. If anything like that happens, I’ll know exactly who did it.
¶51 Contrary to the State’s argument, this exchange does not indicate that Allen had no subjective expectation of privacy in his phone conversation with Golie. The fact that Allen was especially paranoid about divulging where he lived does not prove that he subjectively expected his conversation to be open to the public. The above-quoted exchange indicates that Allen was unwilling to communicate his
D. Whether Society Is Willing to Accept Allen’s Expectation as Reasonable
¶52 We next determine whether society (i.e., the citizens of Montana) is willing to recognize as reasonable the expectation that private cell phone conversations are not being surreptitiously monitored and recorded by agents working for the State. This requires us to evaluate the constitutional values and goals of our state’s political system. Goetz, ¶ 31. We must remember in making this determination that the privacy of all people in Montana is at stake, not merely the privacy of those people known or suspected of breaking the law. Id. at ¶ 32.
¶53 In Goetz we concluded-based on language of the Montana Constitution and the convictions expressed by delegates to the 1972 Constitutional Convention-that society is willing to recognize as reasonable “the expectation that conversations held in a private setting are not surreptitiously being electronically monitored and recorded by government agents.” Id. at ¶¶ 35-37. While this holding was limited to the facts of that particular case (warrantless recording of face-to-face conversations), the stated rationale was in no way limited to face-to-face conversations and logically extends to telephone conversations, as here, where one party maintains a subjective expectation of privacy. ¶54 To resolve the issue in Goetz, we turned to the debates of the state Constitutional Convention. Id. at ¶¶ 33-35. We cited statements by Delegates Campbell and Dahood on the right to privacy and the right to be free from unreasonable searches and seizures. Id. at ¶ 33. Both delegates decried electronic monitoring and eavesdropping in general, indicating that the protections of these rights were not limited to traditional physical locations:
[T]he [Bill of Rights] committee felt very strongly that the people of Montana should be protected as much as possible against eavesdropping, electronic surveillance, and such type of activities .... [I]t is inconceivable to any of us that there would ever exist a situation in the State of Montana where electronic surveillance could be justified.
Id. (quoting Montana Constitutional Convention, Verbatim Transcript,
¶55 It also emerges from the transcript of the convention that the protections of the right to privacy were intended to be dynamic. Delegate Campbell introduced the right to privacy as a means of bolstering the protections against unreasonable searches and seizures by ensuring that those protections would be able to keep pace with and not be outstripped by technological developments:
Certainly, back in 1776, 1789, when they developed our Bill of Rights, the search and seizure provisions were enough .... However, today we have observed an increasingly complex society and we know that our area of privacy has decreased, decreased, decreased .... We feel that this [an express right to privacy], as a mandate to our government, would cause a complete reexamination and guarantee our individual citizens of Montana this very important right-the right to be let alone; and this has been called the most important right of them all .... “As government functions and controls expand, it is necessary to expand the rights of the individual.”
Montana Constitutional Convention, Verbatim Transcript, at 1681 (quoting Editorial, The Right of Privacy, Mont. Standard (Butte) 4 (Feb. 3, 1972)). Thus, as technological advancements allow personal communications to occur beyond a single physical setting, the constitutional protections of the right to privacy keep pace and are not left behind with each passing epoch.
¶56 As United States Supreme Court noted over forty years ago, the telephone has come to play a vital role in private communications. Katz,
¶57 The history of Montana’s constitutional convention indicates that the delegates would not have countenanced warrantless monitoring of private telephone conversations at the time they drafted Montana’s constitution. We are convinced the citizenry of this state would not tolerate such unrestrained government conduct today. We therefore conclude that society is willing to recognize as reasonable the expectation that private cell-phone conversations are not being surreptitiously monitored and recorded by government agents. To the degree that Coleman and its progeny are inconsistent with this conclusion, they are expressly overruled.
¶58 The Dissent challenges this conclusion, advancing that the Montana Constitution does not protect telephone conversations from state electronic surveillance when, as here, one party consents. At bottom this argument rests on the reasoning drawn from the “obscene phone call hypothetical” in which party A receives an obscene phone call from party B. The Dissent contends that in this situation constitutional protections do not come into play and no warrant is required for police to monitor the call because (1) party A can consent to the recording and (2) party B has no expectation of privacy since he is violating the law. But this logic is flawed. It assumes that party B is violating the law before the conversation has been monitored. This turns the presumption of innocence on its head. Nothing in the transcripts of the Constitutional Convention suggests that the delegates wished to jettison the presumption of innocence and presume that all parties to a conversation who do not consent to its monitoring
¶59 The State argues that cell phones, like that used by Allen, are essentially radios, the transmissions of which may be received by unintended parties. Accordingly, citing State v. Cotterell,
¶60 The State next suggests that the debates from the Constitutional Convention support its claim that society is unwilling to accept as reasonable expectations of privacy in telephone conversations. Specifically, the State notes Delegate Robinson’s withdrawal in response to opposition of a proposed amendment to Article II, Section 11, adding that “privacy of communications shall be inviolate.” Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, pp. 1683-87. Contrary to the State’s argument, we cannot conclude that the withdrawal of a blanket prohibition on state intrusion upon private communications was an endorsement of unchecked, warrantless police monitoring of private telephone conversations.
¶61 In sum, we conclude that Allen had a subjective expectation of privacy in his cell-phone conversation with Golie and that our society is willing to recognize that expectation as reasonable.
E. Nature of Government Intrusion
¶62 Having determined that a search occurred, we must next consider whether the search was reasonable; that is, whether it was justified by a narrowly tailored, compelling state interest or subject to adequate procedural safeguards. Goetz, ¶ 27. If not, then the search was unconstitutional. Id. Where, as here, police conduct a search without a warrant, then we consider it “per se unreasonable, absent a recognized exception.” Id. at ¶ 40. The State carries the burden of proving that an exception to the warrant requirement applies. Id.
¶63 The State argues that the consent exception applies by virtue of Golie’s agreement to record the conversation. We disagree. In Goetz, we considered application of the consent exception to police monitoring of face-to-face conversations where only one party to the conversation consents to the recording. Id. at ¶¶ 41-46. We concluded that the consent exception did not excuse the absence of a warrant. Id. at ¶ 46. To reach this conclusion, we adopted the complimentary rules regarding consent of a co-tenant announced in Georgia v. Randolph,
¶64 Contrary to the State’s argument, this reasoning applies, without distortion, to the present situation involving a telephone conversation. While the parties to the conversation here, Allen and Golie, were not in the same physical location, they were both “present” during the conversation in that law enforcement could have obtained the consent of each to record the conversation. However, even though Allen was available to consent (or object) to the recording of the conversation, police did not give him the opportunity to do so. Accordingly, as in Goetz, the consent exception does not apply. The State does not argue that any other exception excuses its failure to obtain a warrant and cites no narrowly-tailored, compelling interest. Consequently, we conclude that the search (i.e., the recording of Allen and Golie’s conversation) was unreasonable and, thus, violative of Sections 10 and 11 of the Montana Constitution.
¶66 3. Whether the District Court abused its discretion when it denied Allen’s request for a jury instruction on accomplice testimony.
¶67 The final issue regards the District Court’s refusal of Allen’s proposed jury instruction regarding the “accomplice” testimony of Golie. Allen contends that this was error. The State disagrees. We conclude that the District Court erred in denying this instruction.
¶68 Section 26-1-303(4), MCA, reads: “The jury is to be instructed by the court on all proper occasions that:... the testimony of a person legally accountable for the acts of the accused ought to be viewed with distrust. . . .” We have interpreted this statute to entitle a criminal defendant to such an instruction in “all proper occasions.” State v. Johnson,
¶69 Here, these elements are met. The first inquiry is whether an accomplice gave direct testimony. A person is an accomplice and legally accountable for the acts of another when “either before or during the commission of an offense with the purpose to promote or facilitate the commission, the person solicits, aids, abets, agrees, or attempts to aid the other person in the planning or commission of the offense.” Section 45-2-302(3), MCA. Whether a person is an accomplice is a question for the jury, unless it is undisputed. Rose v. State,
¶70 Here the record contains ample evidence from which the jury could conclude that Golie was an accomplice to the attack on Escobedo.
¶71 There is no question that there was sufficient testimony from which a jury could conclude that Golie was an accomplice. Golie was one of the State’s principal witnesses and her testimony, which consumes nearly seventy pages of the transcript, was direct evidence against Allen. Allen requested a jury instruction that Golie’s testimony “ought to be viewed with distrust.” This request was not inconsistent with Allen’s claim of innocence: Allen admitted assaulting Escobedo, but denied using a weapon. Thus, Allen was entitled to a jury instruction that Golie’s testimony should be viewed with distrust. The District Court erred in denying this instruction. On retrial, Allen is entitled to a jury instruction regarding accomplice testimony under § 26-1-303(4), MCA.
¶72 For the foregoing reasons, Allen’s conviction is reversed and remanded for a new trial consistent with this opinion.
Notes
The Dissent incorrectly asserts that Hanley, Jones, and State v. Solis,
Justice Nelson’s concurrence suggests that the Court’s decision does not go far enough. He argues that failing to suppress Golie’s testimony “is akin to suppressing evidence obtained by means of an unlawful entry into the defendant’s home, but then allowing the officers to testify about that evidence and the fact that they found it in the defendant’s home.” First of all, since Allen’s motion was to suppress the recording, not Golie’s testimony, the issue is not before the Court. Secondly, the analogy fails. In the hypothetical, but for the illegal entry, the officer would not have been in the home to make observations. Accordingly, his observations and testimony along with the physical evidence obtained are fruits of the poisonous tree. Here Golie’s engaging in a cell phone conversation with Allen is not poisoned by the fact of the recording. It cannot be said that, but for the illegal recording, Golie would not have been conversing with Allen, particularly given that he invited her to participate in this escapade to begin with.
Concurrence Opinion
specially concurring.
¶73 It’s time that we jettison the Katz test. Here’s why.
I. Introduction
¶74 I concur in the Court’s Opinion as to Issues 1 and 3. As to Issue 2, I agree with the Court that the warrantless recording of Allen and Golie’s telephone conversation violated Article II, Sections 10 and 11 of the Montana Constitution. However, I suggest that our decisions here and in State v. Goetz,
¶75 I believe this is totally incongruous and devoid of any persuasive justification. As explained below, one of the rationales proffered in support of these inconsistent results is that surreptitiously recording or eavesdropping on a conversation is a more offensive and invasive evidence-gathering technique than acquiring the same evidence by means of a face-to-face stratagem, such as an agent who masquerades as the person’s confidant and then testifies as to what the person unwittingly said. In my view, however, the fact that one technique may seem more offensive or invasive than another is beside the point. Both techniques involve the extraction of evidence from the speaker, and both implicate the speaker’s right to be secure from unreasonable searches. Another proffered rationale is premised on supposed “risks” and “expectations’-specifically, that people risk or must expect that they may be deceived as to the identity of one with whom they speak, but do not risk or expect that their statements are being secretly
¶76 Accordingly, rather than engage in subjective line-drawing about which privacy expectations we think society is prepared to recognize as reasonable and which law enforcement techniques we feel are too repugnant or invasive, we should simply apply the constitutional language according to its plain meaning. It states that “[t]he people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures.” Mont. Const, art. II, § 11. A “search” is “an endeavor to find, ascertain, recover, or the like; . . . hence, pursuit with a view to finding, etc.” Webster’s New International Dictionary of the English Language 2257 (2d ed. 1934). And to “search” means “ ‘[t]o look over or through for the purpose of finding something; to explore; to examine by inspection.’ ” Kyllo v. United States,
¶77 My analysis below is in two parts. First, I explain that using an agent to acquire a suspect’s verbalized thoughts by means of an in-person stratagem is a “search” requiring a warrant. Second, I explain that allowing an agent to provide testimony regarding illegally obtained (and, therefore, suppressed) evidence undermines the right against unreasonable searches and, thus, is contrary to the purposes of the exclusionary rule.
II. ‘Search”Analysis
¶78 Article II, Section 11 of the Montana Constitution and the Fourth Amendment to the United States Constitution both protect the right of the people to be secure in their persons, papers, homes, and effects from unreasonable searches and seizures. No one would dispute that when a police officer enters a person’s home and rummages through her belongings, it is a “search.” But what about when the police seek a person’s knowledge concerning illegal activities? So far, the government is not able to enter and rummage through a person’s mind for “guilty knowledge’-although that possibility may be on the horizon.
¶79 The Supreme Court considered these issues in a series of cases decided in the 1950s, ’60s, and ’70s. Although my conclusions herein rest on independent state law grounds under the Montana Constitution, our jurisprudence on the subjects of electronic surveillance, privacy in communications, and what constitutes a “search” has borrowed concepts articulated by the Supreme Court in
On Lee
¶80 First, in On Lee v. United States,
¶81 On appeal, the Supreme Court, by a five-justice majority, affirmed the admission of this evidence. The Court relied on the rule, articulated in Olmstead v. United States,
¶82 On Lee urged the Court to reconsider the question of Fourth Amendment rights in the field of overheard or intercepted conversations. But the Court responded that even if it overruled Olmstead and its progeny, On Lee’s challenge would still fail because he
was talking confidentially and indiscreetly with one he trusted, and he was overheard. This was due to aid from a transmitter and*525 receiver, to be sure, but with the same effect on his privacy as if agent Lee had been eavesdropping outside an open window. The use of bifocals, field glasses or the telescope to magnify the object of a witness’ vision is not a forbidden search or seizure, even if they focus without his knowledge or consent upon what one supposes to be private indiscretions. It would be a dubious service to the genuine liberties protected by the Fourth Amendment to make them bedfellows with spurious liberties improvised by farfetched analogies which would liken eavesdropping on a conversation, with the connivance of one of the parties, to an unreasonable search or seizure.
On Lee,
Silverman
¶83 Next, in Silverman v. United States,
¶84 The Supreme Court held that this violated the Fourth Amendment. Writing for the Court, Justice Stewart distinguished Olmstead, Goldman, and On Lee on the ground that those cases did not involve an “unauthorized physical penetration” into the defendants’ premises, whereas here the officers overheard the defendants’ conversations “only by usurping part of the [defendants’] house or office-a heating system which was an integral part of the premises occupied by the [defendants], a usurpation that was effected without their knowledge and without their consent.” Id. at 509, 511,
¶85 Notably, Justice Stewart further observed that “[t]his Court has never held that a federal officer may without warrant and without consent physically entrench into a man’s office or home, there secretly observe or listen, and relate at the man’s subsequent criminal trial what was seen or heard.” Silverman,
Lopez
¶86 The next important decision is Lopez v. United States,
¶87 On the question of whether Lopez’s Fourth Amendment rights were violated, Justice Harlan, writing for the majority, noted that the Supreme Court had sustained against constitutional challenge the
¶88 Justice Brennan wrote a vigorous dissent, in which Justices Douglas and Goldberg joined. First, regarding the government’s argument that Lopez surrendered his right of privacy when he communicated his “secret thoughts” to Davis, Justice Brennan observed:
The assumption, manifestly untenable, is that the Fourth Amendment is only designed to protect secrecy. If a person commits his secret thoughts to paper, that is no license for the police to seize the paper; if a person communicates his secret thoughts verbally to another, that is no license for the police to record the words. Silverman v. United States,365 U.S. 505 . On Lee certainly rested on no such theory of waiver. The right of privacy would mean little if it were limited to a person’s solitary thoughts, and so fostered secretiveness. It must embrace a concept of the liberty of one’s communications, and historically it has. “The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others ... and even if he*528 has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them.” Warren and Brandéis, The Right to Privacy, 4 Harv. L. Rev. 193, 198 (1890). (Emphasis supplied.)
Lopez,
¶89 Justice Brennan went on to discuss the distinct functions served by the two clauses of the Fourth Amendment, which state:
[1] The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and [2] no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The second clause, he explained, was aimed specifically at the evil of the general warrant, often regarded as the single immediate cause of the American Revolution. Id. at 454,
embodies a more encompassing principle. It is... that government ought not to have the untrammeled right to extract evidence from people. Thus viewed, the Fourth Amendment is complementary to the Fifth. Feldman v. United States,322 U.S. 487 , 489-490. The informing principle of both Amendments is nothing less than a comprehensive right of personal liberty in the face of governmental intrusion.
Id. at 454-55,
¶90 Yet, despite these broad views regarding personal liberty, Justice Brennan did not dispute the majority’s conclusion that Agent Davis could testify about his conversations with Lopez. Thus, it seems that Justice Brennan’s objection had less to do with the fact that the government had extracted evidence from Lopez without a warrant and more to do with the nature of the evidence itself. Indeed, his position was that a secretly made recording of a person’s verbalized thoughts violates the Fourth Amendment, but the agent’s testimony from memory as to what the person said does not.
¶91 In support of this distinction, Justice Brennan asserted that there is “a qualitative difference between electronic surveillance, whether the agents conceal the devices on their persons or in walls or under beds, and conventional police stratagems such as eavesdropping and
the risk that third parties, whether mechanical auditors like the Minifon [as in Lopez] or human transcribers of mechanical transmissions as in On Lee-third parties who cannot be shut out of a conversation as conventional eavesdroppers can be, merely by a lowering of voices, or withdrawing to a private place-may give independent evidence[3] of any conversation.
Id. at 450,
¶92 I question Justice Brennan’s assumption that there is no way of mitigating the risk that third parties may give independent evidence of a conversation. The speaker could mitigate this risk by, for example, sweeping the immediate area for bugs and by checking his auditor for hidden microphones and recorders. In fact, taking such precautionary measures may be highly effective in mitigating the risk of mechanical eavesdropping and recording. In contrast, even when the speaker uses “discretion” in choosing an auditor whose character and motives seem trustworthy, such trust may turn out to be misplaced or later circumstances may compel the auditor to divulge the conversation. Bottom line: Steps may be taken to mitigate both risks identified by Justice Brennan-i. e., the risk that one’s statements will be divulged by
¶93 Also problematic with this “risk” approach is the fact that what a person risks is ultimately determined by what the law allows. Thus, when the law allows warrantless participant monitoring or recording (as was the case until our decision in Goetz), the risk of such monitoring or recording becomes as “inherent in the conditions of human society” as the risk of being overheard by an eavesdropper, betrayed by an informer, or deceived as to the identity of one with whom one deals. Indeed, because Allen’s conversation with Golie occurred prior to our decision in Goetz, it could be said that he took the “risk” that this conversation would be recorded without a search warrant, given that our pre-Goefe caselaw allowed for that.
¶94 But regardless of these questionable facets of the “risk” approach, I do not find the question of risk to be pertinent, in any event, to the question posed by the constitutional language: Did the governmental action at issue constitute a “search” which intruded upon the defendant’s person, home, papers, or effects? Justice Brennan’s “risk” approach is premised on the notion that “the Fourth and Fifth Amendments interact to create a comprehensive right of privacy, of individual freedom, [which] has been repeatedly approved in the decisions of this Court.” Lopez,
¶95 While a “risk” approach (or, as discussed below, an “expectations” approach) may be useful for resolving questions of “privacy,” it is not, in my view, proper for resolving questions of “search.” As noted, a “search” is “an endeavor to find, ascertain, recover, or the like; . . . hence, pursuit with a view to finding, etc.” Webster’s New International Dictionary of the English Language 2257 (2d ed. 1934); see also e.g. State v. Arthun,
¶96 For these reasons, I believe the proper focus is not on theoretical risks but, rather, is on whether the government is engaged in acquiring or extracting evidence and whether the defendant has knowingly chosen to expose his thoughts to the public or to someone
Hoffa
¶97 Nonetheless, the Supreme Court again used the “risk” approach in Hoffa v. United States,
¶98 On appeal, the Supreme Court rejected the contention that the government, through Partin, had conducted an illegal “search” for verbal evidence. Writing for the majority, Justice Stewart found it significant that Partin had not been a “surreptitious eavesdropper” but, rather, had been in Hoffa’s presence by invitation, and that every conversation Partin had heard was either directed to him or knowingly carried on in his presence. Hoffa,
Katz
¶99 In contrast, the Court held that the governmental eavesdropping at issue in Katz v. United States,
¶100 The government argued that no Fourth Amendment violation had occurred because the surveillance technique involved “no physical penetration” of the telephone booth. But Justice Stewart rejected this argument, explaining that because the Fourth Amendment extends to the recording of oral statements overheard without any technical trespass under local property law (citing Silverman), and because it protects “people,” and not simply “areas” against unreasonable searches and seizures, “it becomes clear that the reach of that
¶101 This analysis is consistent with the “risk” approach employed in Lopez and Hoffa, although the Katz Court framed the inquiry as what one is justifiably entitled to “assume” under the circumstances. In fact, Justice Stewart’s analysis prompted Justice Harlan, concurring in the decision, to opine that a “search” occurs in the following situations:
My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.” Thus a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the “plain view” of outsiders are not “protected” because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.
Id. at 361,
¶102 The Court’s holding in Nafe-that one who uses a closed telephone booth has a justifiable right of privacy and may assume that the words he utters into the mouthpiece “will not be broadcast to the world”-seems in tension with the holding of Hoffa, which stands for the contrary rule that the speaker must assume the risk that the words he utters into the mouthpiece will (or at least could) be broadcast to the world by the person at the other end of the line, who might be a government informer. Indeed, the FBI agents in Katz might have gathered the very same evidence by enlisting the recipient of the defendant’s calls to record them, which evidently (according to Hoffa and Lopez) would not have infringed the Fourth Amendment. Thus, if Hoffa is still good law after Katz, there must be a critical distinction
¶103 The first apparent distinction is the particular means employed by the FBI agents in Katz: attaching a listening and recording device to the outside of the booth, rather than using a face-to-face ruse to obtain the defendant’s words. Yet, if a person in a closed telephone booth truly has a constitutionally protected right of privacy and is entitled to assume that the words she utters into the mouthpiece are private, then gathering those words invades her privacy regardless of how they are obtained.
¶104 A second distinction involves “risks” and “expectations.” According to the Court majorities in the above cases, a person risks that the person to whom she is speaking is a government agent who is recording (Lopez) or committing to memory (Hoffa) her statements. But a person does not expect that the government is secretly listening in on her conversations with someone who is not a government agent (Katz). This distinction is untenable because it rests on the absurd premise that a person’s expectation of privacy turns on a fact of which she is unaware-namely, whether the person to whom she is speaking is in fact a government agent. Moreover, as noted before, what a person risks or expects is ultimately determined by what the law allows. As Justice Harlan later acknowledged, “[o]ur expectations, and the risks we assume, are in large part reflections of laws that translate into rules the customs and values of the past and present.” United States v. White,
More fundamentally, to make risk analysis dispositive in assessing the reasonableness of privacy expectations would allow the government to define the scope of Fourth Amendment protections. For example, law enforcement officials, simply by announcing their intent to monitor the content of random samples of first-class mail or private phone conversations, could put the public on notice of the risks they would thereafter assume in such communications.
Id. at 750,
¶105 Lastly, it could be argued that the cases are distinguishable in that the government (through its agent) was a party to the conversations in Hoffa but was a third-party intruder on the conversation in Katz. However, neither Hoffa nor the defendant in Katz knew whether the persons to whom they were speaking were in fact government agents; and, as noted, it is implausible that an individual’s expectation of privacy would turn on a fact of which she is unaware. It is also untenable that the government could nullify a person’s right of privacy in her communications through the mere expedient of deceiving the person as to the auditor’s police connections. The waiver of a constitutional right must be made knowingly and voluntarily. State v. McCarthy,
White
¶106 The last case in this discussion is United States v. White,
¶107 On appeal, a plurality of four (Justice White, joined by Chief Justice Burger and Justices Stewart and Blackmun) concluded that the electronic surveillance did not violate the Fourth Amendment because it did not invade a constitutionally justifiable expectation of privacy. More specifically, the plurality concluded that an individual does not have a constitutionally justifiable expectation that the person to whom she is speaking is not recording or transmitting the conversation to government agents. This conclusion was premised not on a plain-language interpretation of the Fourth Amendment, but rather on the privacy expectations that the Supreme Court itself had created during the preceding two decades through its decisions in On Lee, Lopez, Hoffa, and Lewis v. United States,
as here, the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street. A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the*538 premises for the very purposes contemplated by the occupant.
Lewis,
¶108 Based on these decisions, Justice White (speaking for the White plurality) pointed out that regardless of “what the privacy expectations of particular defendants in particular situations may be or the extent to which they may in fact have relied on the discretion of their companions,” the fact remains that, “[s]o far, the law permits the frustration of actual expectations of privacy by ... authorizing the use of informants in the manner exemplified by Hoffa and Lewis.” White,
[i]f the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy [Hoffa], neither does a simultaneous recording of the same conversations made by the agent [Lopez] or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks [On Lee and White].
... If the law gives no protection to the wrongdoer whose trusted accomplice is ... a police agent [Hoffa], neither should it protect him when that same agent has recorded [Lopez] or transmitted [On Lee and White] the conversations which are later offered in evidence to prove the State’s case.
Id. at 751-52,
¶109 Justice White thus implicitly disagreed with Justice Brennan’s contention in his Lopez dissent that there are constitutionally significant distinctions between electronic surveillance and conventional police stratagems. Indeed, Justice White argued that a person, in deciding whether to speak to a companion, would not distinguish between a possible government informer on the one hand and a possible government informer with a recorder or transmitter on the other. In fact, it is doubtful that Allen would have drawn such a distinction in the present case in deciding whether to speak to Golie.
Given the possibility or probability that one of his colleagues is cooperating with the police, it is only speculation to assert that*539 the defendant’s utterances would be substantially different or his sense of security any less if he also thought it possible that the suspected colleague is wired for sound. At least there is no persuasive evidence that the difference in this respect between the electronically equipped and the unequipped agent is substantial enough to require discrete constitutional recognition
Id. at 752,
¶110 Finally, Justice White noted that an electronic recording “will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent.” Id. at 753,
¶111 While there is logic in this reasoning, it must be kept in mind that Justice White’s conclusion was based on the plurality’s subjective view of “what expectations of privacy are constitutionally ‘justifiable,’ ” id. at 752,
¶112 Regardless of the validity of the second, third, and fourth of these propositions (and I do not concede their validity), I cannot agree with the first. “The Katz test-whether the individual has an expectation of privacy that society is prepared to recognize as reasonable-has often been criticized as circular, and hence subjective and unpredictable.” Kyllo v. United States,
¶113 Notably, in the course of his analysis, Justice White distinguished the outcome in Katz on the ground that “Katz involved no revelation to the Government by a party to conversations with the defendant.” White,
¶114 Justice Black concurred in the judgment in White on the ground that the Fourth Amendment does not apply to eavesdropping. White,
¶115 Justice Harlan disputed the plurality’s contention that if A can relay verbally what is revealed to him by B (as in Lewis and Hoff a), or record and later divulge it (as in Lopez), then A can contemporaneously transmit to it another. Justice Harlan argued that “it is one thing to subject the average citizen to the risk that participants in a conversation with him will subsequently divulge its contents to another, but quite a different matter to foist upon him the risk that unknown third parties may be simultaneously listening in.” Id. at 777,
The impact of the practice of third-party bugging, must, I think, be considered such as to undermine that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society. It goes beyond the impact on privacy occasioned by the ordinary type of “informer” investigation upheld in Lewis and Hoff a. The argument of the plurality opinion, to the effect that it is irrelevant whether secrets are revealed by the mere tattletale or the transistor, ignores the differences occasioned by third-party monitoring and recording which insures full and accurate disclosure of all that is said, free of the possibility of error and oversight that inheres in human reporting.
Authority is hardly required to support the proposition that words would be measured a good deal more carefully and communication inhibited if one suspected his conversations were*542 being transmitted and transcribed. Were third-party bugging a prevalent practice, it might well smother that spontaneity-reflected in frivolous, impetuous, sacrilegious, and defiant discourse-that liberates daily life. Much off-hand exchange is easily forgotten and one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said, as well as the listener’s inability to reformulate a conversation without having to contend with a documented record. All these values are sacrificed by a rule of law that permits official monitoring of private discourse limited only by the need to locate a willing assistant.
Id. at 787-89,
¶116 Yet, while it may be true, for the reasons stated by Justice Harlan, that third-party bugging has a unique effect on privacy and security (as compared to “the ordinary type of‘informer’ investigation upheld in Lewis and Hoffa”) and, thus, poses a different “risk” to the average citizen, I do not believe such considerations are pertinent to the question of whether a “search” has occurred. Just because one evidence-gathering technique has the potential to create a greater chilling effect on speech than another does not mean that the former constitutes looking for evidence and the latter does not-unless we are to determine the “search” question based on the utility and desirability of a particular law enforcement practice.
¶117 That, in fact, is what Justice Harlan proposed. He acknowledged that the risk approach of Lewis, Lopez, and On Lee and the expectations approach of Katz “have their limitations and can, ultimately, lead to the substitution of words for analysis.” White,
whether under our system of government, as reflected in the Constitution, we should impose on our citizens the risks of the electronic listener or observer without at least the protection of a warrant requirement. This question must, in my view, be answered by assessing the nature of a particular practice and the likely extent of its impact on the individual’s sense of security balanced against the utility of the conduct as a technique of law enforcement.
Id. (paragraph break omitted). For the reasons quoted above, Justice
¶118 I disagree with this approach for a number of reasons, not the least of which is that it is even more arbitrary and subjective than the original formulation of the Katz test. It is a dubious assumption in the first place that courts are qualified to divine whether society is prepared to recognize a particular expectation of privacy as reasonable. But it is even more doubtful that courts should be judging the “utility” of a particular police practice and deciding whether the likely extent of its impact on the individual’s sense of security is enough to justify requiring a warrant. Most importantly, however, as noted above, whether the police are looking for evidence is not answered by whether we should impose a particular “risk” on our citizens. Again, a “search” is a pursuit with a view to finding something, and to “search” means to look over or through for the purpose of finding something. “Risks” and “expectations” simply are not part of the equation.
Montana Law
¶119 Turning now to Montana law, our caselaw on the issue of warrantless electronic monitoring and recording with the consent of the informant or agent (i.e., warrantless participant monitoring/recording) is summarized in ¶¶ 15-22 of State v. Goetz,
¶120 In Brackman, we followed the approach suggested by Justice Harlan in his White dissent and, thus, “weighted] what effect a decision favorable to the defendant would have on law enforcement abilities against this intrusion of privacy and what consequent effect that may have on freedom of speech.’’Brackman,
¶121 Our subsequent cases strayed from the analysis used in Brackman and aligned themselves instead with the views of the White plurality. See e.g. State v. Coleman,
‘Search” Redefined
¶122 I signed our Goetz decision and agree with much of the Court’s analysis under Issue 2 of today’s decision because I believe they both correctly apply the law as it presently stands. However, for the reasons set forth above and reiterated below, I believe that the present law-in particular, the Katz approach to search analysis-is incorrect and must be changed.
¶123 As noted, the “expectations” approach is problematic for a number of reasons. For one thing, the test is circular in that our expectations and the risks we assume are the product of what the law allows while the law, conversely, is the manifestation of our values and expectations. See ¶¶ 93, 104, supra. If the Legislature passed a law making it unlawful for anyone to record a conversation without the
¶124 Even our own decisions can have the same effect. Prior to Goetz, any expectation that the government first had to obtain a warrant in order to monitor or record a person’s conversations with an informant was arguably unreasonable, due to authorities such as Coleman and Brown. In this regard, the State points out that “[i]t is illogical that society would view as reasonable a privacy expectation that conflicted with established law.” Of course, it’s possible that this expectation was reasonable but that we failed to recognize that fact in Coleman and Brown, which would highlight yet another flaw in the approach: this Court’s inability to discern accurately which privacy expectations society is prepared to recognize as reasonable. But, in any event, such an expectation is now reasonable under the authority of Goetz. The reason: We simply decided in Goetz that society was prepared to recognize as reasonable an expectation that the government is not monitoring or recording our conversations, regardless of the auditor’s consent.
¶125 This points up another problem with the test: How do we know whether society is prepared to recognize a particular expectation as reasonable? Is it possible to know this without surveying our citizens? Do the parties need to provide us with concrete evidence of society’s views on the matter? The Court’s lack of citation to any such evidence in the present case reflects the fact that none was presented. Allen cites an “empirical study,” but the State points out that this study is inapposite to the issue of participant recording. And while a handful of Convention delegates commented on the issue almost 40 years ago, their views are certainly open to more than one interpretation, as Justice Rice’s Dissent reflects. See also e.g. Keller v. Smith, 170 Mont.
¶126 Finally, aside from the impracticality of the test, the reasonableness of a person’s expectation of privacy does not, in my view, tell us whether the police are conducting a “search.” As explained above, the “expectations” test evolved in the Supreme Court’s Lopez, Hoff a, and Katz decisions as a method for determining whether a defendant’s right of“privacy” had been infringed. In fact, under federal law, “privacy” analysis has totally supplanted “search” analysis. And since this Court has adopted wholesale the Supreme Court’s approach, as summarized by Justice Harlan in his Katz concurrence, there is no distinct “search” analysis under Montana law either.
¶127 Yet, there should be. As noted, I do not agree with the proposition that the right of “privacy” and the right against unreasonable “searches” are one and the same. See ¶ 94, supra. And the Montana Constitution, in fact, treats “privacy” and “searches” separately. Article II, Section 10 ensures the right of individual privacy, but Article II, Section 11 ensures a substantively different right: the right to be secure in one’s person, papers, home, and effects from unreasonable searches. It is error to treat these two provisions as creating just one single right of “privacy.”
¶128 Thus, while an analysis of “risks” or “expectations” may be relevant for resolving questions of “privacy,” it is not, in my view, proper for resolving questions of “search.” Again, as pointed out before, a “search” is “an endeavor to find, ascertain, recover, or the like; . . . hence, pursuit with a view to finding, etc.” Webster’s New International Dictionary of the English Language 2257 (2d ed. 1934); see also e.g. Arthun,
¶129 First, the protection guaranteed by Article II, Section 11 is that the “people” shall be “secure” in their “persons, papers, homes and effects” from unreasonable searches.
¶130 Second, it is important to note that this approach does not require us to judge the “utility” of a particular police practice. It simply requires that when the practice involves finding, extracting, acquiring, or recovering evidence from a person, the police must first procure a warrant (or the person’s consent) and the search must be otherwise reasonable. Also, in this regard, I do not propose to outlaw all police stratagems and all monitoring or recording of conversations by the police. Rather, my argument is that the Constitution requires that those activities be conducted with a warrant, absent there being an established and well-recognized exception to the warrant requirement.
Allen and Golie’s Telephone Conversation
¶132 Applying these principles to Allen and Golie’s telephone conversation, there is no question that Golie was a government agent who was enlisted to aid in an investigation of Allen, which included surreptitiously recording her telephone conversations with him. Hence, the State was engaged in acquiring verbal evidence from Allen and, thus, was conducting a “search.” That the State was endeavoring to find something (in particular, Allen’s thoughts and communications about illegal activity) is reflected in the fact that it had to use surreptitious methods in order to gain access to what it sought.
¶133 Allen did not knowingly choose to expose his verbalized thoughts to the public generally or to law enforcement specifically. In this connection, I reject the notion that Golie’s so-called “consent” to record her conversations with Allen at the behest of the police nullified the warrant requirement. It is axiomatic that Golie cannot waive Allen’s right against unreasonable searches under Article II, Section 11 (or, for that matter, his right of privacy under Article II, Section 10) any more than he can waive hers. I also reject the proposition that Allen surrendered his right against unreasonable searches just because he communicated his thoughts to Golie. It is well-established by cases such as Silverman, Wong Sun, Katz, and Goetz that the constitutional protections encompass verbalized thoughts.
¶134 Finally, law enforcement’s evidence-gathering activities here resulted in two types of evidence: Golie’s testimony about her conversation with Allen, and the recording she made of that conversation. Both, in my view, are the product of an unlawful warrantless search and, thus, both are subject to suppression. As discussed above, I am not persuaded that one type of evidence is the result of a search and the other is not. Such a distinction depends on
¶135 In conclusion, for the purpose of conducting search analysis under Article II, Section 11,1 believe we should jettison the Katz test in favor of a plain interpretation of the word “search.” Applying that here, I conclude that enlisting Golie to acquire evidence against Allen was a search requiring a warrant.
III. Exclusionary Rule Analysis
¶136 The second primary point addressed in this concurrence concerns application of the exclusionary rule to Golie’s testimony about her conversation with Allen. For the reasons just discussed, I conclude that this evidence was the product of an unlawful warrantless search. But that conclusion aside, I believe Golie’s testimony should be subject to the exclusionary rule as well.
¶137 “The exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawful search and of testimony concerning knowledge acquired during an unlawful search.” Murray v. United States,
¶138 In the instant case, as in Goetz, it is undisputed that Golie, a confidential informant, was acting as an agent of the State when she surreptitiously recorded her cell phone conversation with Allen at the behest of law enforcement. The Court holds that this warrantless recording of the conversation violated Allen’s right to be free from unreasonable searches and seizures under Montana’s Constitution, Article II, Section 11, as bolstered by the right of individual privacy, Article II, Section 10. Opinion, ¶ 64. The Court thus directs that the recording may not be admitted into evidence in the event of a retrial. Opinion, ¶ 65.
¶139 Yet, while we suppress the recording itself, the Court leaves open the possibility that the agent who unlawfully made it can still be called to testify personally about the substance of the recording. The
¶140 As noted at the outset, this approach of suppressing the recording, but not the conversation itself, is akin to suppressing evidence obtained by means of an unlawful entry into the defendant’s home, but then allowing the officers to testify about that evidence and the fact that they found it in the defendant’s home. While the Court asserts that this analogy fails, see Opinion, ¶ 65 n. 2, it appears that the Court has simply missed the point. Allowing an agent to testify about evidence which he acquired through an illegal search, and which has therefore been suppressed, defeats the purpose of the exclusionary rule-which, it must be recalled, is intended to deter constitutional violations, applies to indirect as well as direct evidence, and includes knowledge acquired during an unlawful search. Obviously, there is little, if any, deterrent when the prosecution is permitted to introduce otherwise excluded evidence through the mere expedient of having one of its witnesses describe that evidence to the jury. In this regard, we must not forget that Allen’s objection is not so much to the recording itself as it is to the contents of the recording. Surely we would not be here debating this issue if all that Golie had managed to record was perfectly innocuous statements. Again, it is the evidence of his inculpatory statements which Allen seeks to suppress. And if the mechanical evidence of those statements must be suppressed as the product of a constitutional violation, then so too should the verbal evidence (i.e., the agent’s testimony about them) if the exclusionary rule is to serve its function.
¶141 Notably, the Court proffers a distinction between the illegal intrusion in my hypothetical and the illegal intrusion in the present case. The Court suggests that whereas my hypothetical officer would not have been in the house to make his observations but for his illegal entry, Allen invited Golie to participate in a conversation with him
¶142 For reasons discussed in Part II above, I suggest that the “poisonous tree” in cases such as this is not the mere fact of the recording. Rather, it is the fact of gathering evidence from the defendant without a warrant, with the recording being just one fruit on that tree. Nevertheless, for purposes of the present case, treating “the fact of the recording” as the poisonous tree is arguably correct, given that Allen requested suppression of only the recording, and not Golie’s testimony about their conversation. However, the Court’s dictum on this matter-consisting of two conclusory sentences at the end of a footnote regarding an issue that wasn’t even raised-is far from a holding. In this regard, and for clarification, I note that my argument herein is not that we should grant Allen relief that he did not request. Rather, the purpose of this concurrence is to point up the problematic aspects of the Katz “expectations” test and the illogicality of suppressing the recording but not the agent’s testimony. Ultimately, a definitive holding on the question of whether the State’s warrantless acquisition of a person’s verbalized thoughts is unlawful, whether or not a recording device is used, must await a future case where the issue is squarely presented for decision.
IV. Conclusion
¶143 The rule we should adopt for search-and-seizure analysis is a simple one. When the government looks over or through, explores, examines, inspects, or otherwise engages in conduct designed to find, extract, acquire, or recover evidence, it is a “search,” and when the search implicates an individual’s person, papers, homes, or effects, it must be conducted with a warrant or in reliance on one of the well-recognized exceptions to the warrant requirement. Whether the courts deem the defendant’s expectation of privacy as reasonable and whether we believe the evidence-gathering technique is sufficiently utilitarian are not part of the equation. Likewise, it does not matter whether the search is conducted by law enforcement directly or, as here and in Goetz, indirectly by means of government agents. Finally, all evidence gathered as a result of an illegal search must be suppressed. Where
¶144 If Article II, Section 11 means anything, this constitutional right requires scrupulous adherence to the warrant requirement when the government engages in evidence-gathering activities which implicate an individual’s person, papers, home, or effects. That constitutional mandate is not lessened, and cannot be avoided, by using an agent to obtain evidence which the government could not obtain directly through a law enforcement officer. How and through whom the government conducts its evidence-gathering activities and what form the government uses to preserve the evidence it acquires (whether a recording or the agent’s memory) are immaterial. Without a warrant, all evidence gathered by the government as a result of the warrantless and illegal search should be suppressed.
¶145 I specially concur.
Minnesota v. Carter,
See ScienceDaily, Mind Reading, Brain Fingerprinting and the Law, http://www.sciencedaily.com/releases/2010/01/100120085459.htm (Jan. 24, 2010).
3 Earlier in his dissent, Justice Brennan explained that a mechanical recording is “independent evidence” of the person’s statements, as opposed to evidence that merely repeats or corroborates the agent’s testimony. Lopez,
Searches conducted without a warrant are per se unreasonable, subject to only a few carefully drawn exceptions. Arizona v. Gant,
As a corollary to this, I have previously argued that an officer’s personal, direct observations made independently of the warrantless audio or visual recordings would not necessarily have to be excluded, though his characterizations of the recording’s substance should be. See State v. Foston,
Concurrence Opinion
concurring in part and dissenting in part.
¶146 I concur with the Court’s resolution of Issues 1 and 3, but dissent from Issue 2.
¶147 After Allen lured Louis Escobedo to Golie’s vehicle and violently attacked him, which included discharging a gun next to Escobedo’s head and pistol whipping him until he was unconscious and bleeding profusely from a head wound, Allen spoke about his actions to Golie over the telephone. Golie, working with the police, thereafter recorded her cell phone conversations with Allen. On the recording, Allen can be heard talking with other people on numerous occasions during his conversations with Golie, all the while downplaying the assault by claiming he had merely inflicted a “cut” on Louis’s “hand,” Allen clearly had no intention of engaging in a private conversation because he knowingly exposed his admissions about the assault to others during these conversations. “What a person knowingly exposes to the public is not protected....” State v. Scheetz,
¶148 Despite these facts, the Court extends the decision in State v. Goetz,
¶ 149 In U.S. v. White, the Supreme Court held that the Constitution “permit[s] authorities to use the testimony of those associates who for one reason or another have determined to turn to the police, as well as by authorizing the use of informants ....” The White Court explained that, “[i]f the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State’s case.” U.S. v. White,
¶150 Then, to justify its departure from these principles, the Court offers that Montana’s constitutional right to privacy was intended to be broader than the federal Constitution on this issue. However, for over three decades our own jurisprudence has followed the principles established in White, holding that the Montana Constitution, including
¶151 However, the Court’s decision today clearly conflicts with the expressed intention of the Constitutional Convention delegates regarding the right to privacy. First, when debating the privacy clause, the delegates discussed an outright ban upon third party (without consent) wiretapping and electronic surveillance, but rejected this proposal. Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, pp. 1682-83 (Delegate Campbell).
¶152 Then, Delegate Robinson, seeking a stronger right to privacy, offered an amendment which would have added “Privacy of communications shall be inviolate” to the Constitution. Delegate Holland opposed the amendment, suggesting the number of actions which would be prohibited by such an amendment, including recording or searching of obscene phone calls and telegrams. Delegate Campbell offered a counter-proposal to weaken Delegate Robinson’s amendment, explaining that the convention should not be:
excluding the legitimate law enforcement people who, with the consent of one party, the person who is being threatened by phone calls and things like this, to act on behalf of that victim. The privacy of that individual certainly could be waived with his or her consent, and there’s certainly no privacy toward the obscene caller. I feel that this would not hinder law enforcement in that respect at all .... The federal law does provide a number of areas for wiretapping. They certainly are available; they could be used.
Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, p. 1685 (emphasis added). Delegate Melvin echoed these concerns, and Delegate Dahood, who had chaired the Bill of Rights Committee, offered an answer to a question about whether the privacy provisions would interfere with recording of obscene phone calls-and
First of all, this does not in any way relate to the obscene phone call situation, nor does it relate to the ability of the telephone company to make the traces. The logic and the reason is this: all personal rights, constitutional or otherwise, may be waived. Lady A is receiving the obscene phone call. She waives her right and grants the telephone company the right to intercept that communication. The individual that’s making the call does not have the right of privacy with respect to violating the law and making the obscene phone calls, so as a consequence, we are not interfering with anyone’s rights by having the telephone company attempt to intercept and discover and determine who the caller is; we are protecting the right of privacy.
Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, p. 1686. Then, perhaps most tellingly, Delegate Robinson conceded, in response to a question, that telephone conversations with one consenting party would not be deemed private, even under her stronger privacy amendment:
Oh, no. You’re-there’s a difference between your knowing that you’re telling me and you know whether there is someone around us listening or if it’s just you and I; whereas, on the telephone, you may tell me that and you may suspect that I’m the only one listening, but you certainly may not know that.
Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, p. 1686 (emphasis added). Delegate Robinson eventually withdrew her amendment to the privacy clause, leaving the clause intact and as originally proposed by the Bill of Rights Committee.
¶153 These statements by the Constitutional Convention delegates on the specific issue before us are virtual echoes of the statements in White,
¶155 The logical conclusion of the Court’s reasoning is found in the position taken by the Concurrence that, in addition to the electronic recordings, the conversations between Golie and Allen should have been suppressed as well. Concurrence, ¶ 134. If the electronic monitoring and recording of Golie’s conversation with Allen, notwithstanding Golie’s consent, really constitutes a prohibited search under Article II, Sections 10 and 11 of the Montana Constitution, then the Concurrence is logically correct that the conversations themselves, in addition to the recordings, must also be suppressed as fruits of a warrantless, unconstitutional search. In my view, this illustrates, as a matter of logic, the ultimate difficulty of the Goetz rule and its extension here.
¶156 Therefore, upon the judgment of the U.S. Supreme Court in White and its progeny, this Court’s precedent over the past 30 years, and the expressed intention of the delegates to the 1972 Montana Constitutional Convention, I would conclude that Article II, Sections 10 and 11 of the Montana Constitution are not violated when police electronically monitor and record telephone conversations with the voluntary consent of one of the parties, and would affirm the District Court’s holding on this issue.
All federal Circuit Courts of Appeals have accepted White as constitutional authority for the principle that search warrants are not required to authorize electronic recording when one party to the conversation consents. See State v. Brown,