*1 MONTANA, STATE OF appellant, Plaintiff CHRISTENSEN, CHARLES WILLIAM Respondent. Defendant Nos. 89-613. June 1990. Submitted Aug. 9, Decided 1990. P.2d *2 Racicot, Atty. Gen., Marc Yellowtail, Atty. Gen., James Asst. Helena, (89-559); Atty., Ted Lympus, Flathead Ed Corrigan Deputy (89-613); County Atty., Nelson, Kalispell, James C. Glacier Bank, Atty., Cut for and plaintiff appellant. Nardi, Nardi,
Stephen J. Kalispell, Sherlock & for defendant and respondent.
CHIEF JUSTICE Opinion TURNAGE delivered the of the Court. Attorney The Montana filed this appeal General consolidated Court, County, orders the Eleventh Judicial District Flathead Court, County, excluding the Ninth Judicial evidene the respondent’s marijuana growing operations because the evi- conduct, burglary, private dence resulted from felonious and was prejudicial other-crimes evidence. reverse.
ISSUES following raises issues. The State of Montana by the rights violated 1. Were the constitutional upon information revealed part issuance of search warrants based felonious conduct? holding Did err in that even the absence 2. the District Courts violation, applies of constitutional conduct? resulting from felonious suppressed, did burglary If from the 3. the evidence independent information the Glacier officials have sufficient East probable property? to search the to establish cause excluding Did Court err evidence of the Glacier District activity as County drug prejudicial Flathead other-crimes evidence? FACTSAND PROCEDURE City Tappan, In arrested Charles April Kalispell Police Davis, Looney and sale of mari- possession Blake and Patrick for drugs came from the juana. police told the Tappan Davis Kalispell at his residence. growing operation *3 Davis, the Morrison, Tappan had worked for Jim a friend of and for stealing pound a and respondent but was fired for having respondent’s common law wife. Morrison an affair with the burglarize the subsequently Tappan and Davis to convinced marijuana crop. of the respondent’s portion residence and steal a may have had respondent disclosed that the Tappan and Davis also passed Police Kalispell in East Glacier. The operation a similar County to law enforcement officials. information on Glacier the already growing operation a suspected The Glacier officials residence, yet had not for East Glacier but respondent’s the that police A had informed she believed neighbor search warrant. of the smell around respondent growing marijuana was because the in the garage, the lack of snow on roof boarded-up his and locked his winter, traffic suspiciously heavy periodic and around and the and, after report the citizen’s Investigating officers confirmed house. respondent’s power were subpoena, found that the bills procuring a particular relationship to the weather. high and no bore by present and Davis led Tappan The information disclosed cause, the probable to establish charges. Relying on that information for the search warrants Kalispell police and Glacier obtained Both searches Kalispell and East Glacier residences. respondent’s The marijuana growing operations. evidence of produced substantial Judi- County Attorney filed an information the Eleventh Flathead Possession charging respondent cial District Court with Criminal 45-9-103(1), MCA, Sell, and Dangerous Drugs with Intent to § Dangerous Drugs, Criminal Sale of 45-4- Conspiracy §§ to Commit 102(1) 45-9-101(1), County Attorney MCA. The filed an and charging respon- in the Ninth Judicial District Court information 45-9-101(1), MCA, Dangerous Drugs, dent with Criminal Sale of § 45-4-102(1), Conspiracy, MCA. § pretrial respondent by Several motions and orders both County Attorney charges. courts followedthe The Glacier notified (1979), respondent, pursuant to State v. Just 184 Mont. 602 P.2d Kalispell operation. that he intended to introduce evidence ofthe respondent The answered with a motion limine to exclude the The guidelines. respon- other-crimes evidence as violative ofthe Just separate asking dent also filed a motion the Glacier suppress through Court to the evidence obtained the search warrant by private because the warrant was the result of felonious conduct similar The filed a respondent suppress individuals. motion granted Flathead District Court and the court the motion. granted then District Court granted motion motion in limine to suppress exclude the other-crimes evidence. The State now raises a consoli- appeal dated to the orders both courts. VIOLATIONS
CONSTITUTIONAL agree burglary occurred parties Both without consent, and, therefore, encouragement, knowledge police, of the respondent’s right privacy. generally did not See violate Long (holding “the privacy privacy contemplates section of the Montana Constitution only”). invasion state action acceptance that the State’s and reten asserts against self- burgled marijuana privilege of the violates his
tion decline to address this right process. incrimination and his to due *4 authority provides expla no assertion. The cites no Furthermore, no we can envision support nation to his statement. reject require the State theory of law or reason which drugs during a lawful arrest. illegal return seized 316 PRIVATE RULE AND
THE EXCLUSIONARY
FELONIOUS CONDUCT
felonious
is whether
appeal
issue
principal
that conduct
though
rule even
exclusionary
subject
conduct
violation.
entail a constitutional
reserved
question
result of a
is the direct
This issue
committed misdemeanor
landlord
Long,
In
the defendants’
Long.
he discovered a
rental
where
entering
property
their
trespass by
the landlord’s
Based on
shining
plants.
on 657
grow-light
a
County Sheriff’s Office obtained
information,
Yellowstone
and arrested the defendants.
warrant,
plants,
seized
search
suppress
motion to
Court, however,
the defendants’
granted
landlord’s criminal conduct.
it resulted from the
because
the evidence
66-67,
317
by unreasonable searches and
applied
rule
to evidence revealed
officials,
by federal
but also held that the rule did
seizures conducted
Amendment, at that
apply
not
to state officials because the Fourth
Weeks,
time,
398,
at
at
did not extend to the states.
232 U.S.
34 S.Ct.
346,
result,
routinely
federal
cir-
The left that Court’s decisions exclusionary might rule to evidence obtained who, acting knowledge, illegally individuals without the state’s seized up government prosecutors. evidence and then served it Such private actions would not entail a constitutional violation because rule, however, exclusionary do not entail state action. The is a remedy judicially personal right. created and not a constitutional Stone Powell 96 S.Ct. therefore, may, It
L.Ed.2d
be used
the absence
Long
possibility
constitutional
In
raised the
of such an
violation.
we
against
declined to
the rule
evidence result
application,
employ
but
did, however,
ing
misdemeanor conduct. We
“reserve for
day
another
the determination of whether to
gathered
rule to evidence
as the result of felonious conduct.”
With the has come. burglars’ excluded the for the disclosures because Long. now expressed this Court of the concerns prestige challenged evidence will tarnish argues that use of the asserts that use of encourage neo-vigilantism. He the courts and to circumvent the encourage private citizens the evidence would illegally initiative to seize by acting on their own prosecutors. The upit to state and federal evidence and then serve image spectral horsemen arguments awaken law and order our Virginia City to enforce riding forth from remnants of the communities, leaving trampled in their dust the but constitution. prospect assessment. disagree with *6 enough discourage their victims should be
serving
along
time
with
More
conducting felonious
searches.
citizens
from
private
serving up
burglars in this case had no intention of
importantly, the
drugs for their own
prosecutors; they stole the
illegal evidence to state
District Courts would not
this evidence
purposes. Use of
drug operations. To the
encourage other thefts from
condone or
major drug
contrary,
highly probative
admit
evidence
failure to
practices
law enforcement
produced by legitimate
operation
Stone, 428
judicial system.
See
public
undermine
confidence
Furthermore,
91, 96
51, 49L.Ed.2d at 1086.
at 490-
S.Ct. at 3050-
U.S.
private
solely because it was the result
exclusion of this evidence
accomplice testi
result in the exclusion of
felonious conduct would
routinely
now
admitted.
mony which is
the inten
burglars had taken the
with
Even if the
exclusionary
rule
turning
prosecutors,
it over to state
tion
rule under
to the evidence. The universal
both
apply
would still not
exclusionary
that the
rule does not
and federal constitutions is
state
private
the actions of
individuals
resulting from
apply to evidence
e.g.
acting
agents
as
of the state. See
those individuals are
unless
109, 113-14,
(1984),
104 S.Ct.
466 U.S.
United States v. Jacobsen
(1971),
85, 94;
Hampshire
1652, 1656,
Coolidge v. New
80 L.Ed.2d
2022, 2048-49, 29
564, 595;United
443, 487, 91
L.Ed.2d
403 U.S.
S.Ct.
(9th
1334, 1339,
Cir.), 767 F.2d
cert. den.
v. Black
States
(1988),
(1985);
574,
557
State v. Smith
1022, 106 S.Ct.
88 L.Ed.2d
1042, 109
658,
cert. den. 488 U.S.
110 Wash.2d
(1989);
v. Robinson
867,
319 trigger exclusionary actions do not rule because the state and only guarantee against federal constitutions unreasonable searches state. seizures though exclusionary Even rule could evidence conduct, resulting uniformly private from the courts have purpose. refused to do so it would no because serve police using illegal rule is meant to deter from and unconstitutional gathering methods of evidence. As this Court 216 noted Mont. at P.2d at rule does not deter the understanding actions of no individuals who have ofthe rule’s (Ind. 1984) application. Gajdos also See v. State 462 N.E.2d (D. 1021; 1969), 99, 103; United v. Coles F.Supp. States Me. United (S.D. N.Y), States v. F.Supp. Masterson cert. den. 385 (1966). U.S. 87 S.Ct. L.Ed.2d reasons, For join these we believe that Montana should all other jurisdictions refusing apply exclusionary rule to evidence resulting We, therefore, from private action. hold that the exclusion- ary resulting to evidence conduct of individuals, felonious, even if unless that conduct involves state action.
THE GLACIER SEARCH COUNTY WARRANT that, argues The State burglars even if disclosures are excluded, from the Glacier search warrant should not be suppressed because Glacier officials had sufficient independent probable evidence to establish cause search the *7 Glacier burglars’ East residence. Since we hold that the subject rule, statements are not to the we need not address this issue.
OTHER-CRIMES EVIDENCE The County State asserts that the Glacier Court erred in granting the motion in limine to evidence of the exclude Flathead County drug operation County prosecu- from the Glacier that, tion. The County Glacier District Court ruled as other-crimes evidence, County prejudicial the effect of the Flathead information outweighed probative its value.
The governing law evidence settled. Under other-crimes is well 404(b), M.R.Evid., Rule wrongful evidence of other crimes or acts is motive, intent, prove plan, admissible to opportunity, preparation, knowledge, identity, or mistake or absence of accident. State v. Just determining admissibility in the of other-crimes imposes four factors crimes; time; tendency similarity evidence: the nearness scheme, system; proba the plan a common or and whether establish substantially prejudice the outweighed tive ofthe evidence is value (Mont. 110,] 1990), [242 State Mont. the defendant. v.Heinrich are St.Rep. part 320. Evidence of acts which P.2d charged subject to the corpus delicti of crime are not Just the the requirements. inextricably or linked inseparably
“Evidence of acts which are with charged regard governing is without to the rules crime admissible ‘other crimes’ evidence.”
State v. Romero is argues County that the Flathead evidence not first insep as an other-crimes but is admissible inextricable corpus County operation. part of the delicti of Glacier arable State, conducting a According respondent single to the was growing operation two different locations. argument. the Flathead and disagree with the State’s While nearly operations operations were identical carried
Glacier Counties individuals, similarity not the out the same of crimes is test of corpus fall within the same delicti. The issue is whether whether County drug operation inextricably ofthe is or Flathead County operation. linked to the We hold that it inseparably Glacier jury fully not a comprehend is not. The State has shown that could not County to the charged crimes without reference Flat- County evidence. head argues County
The State in the alternative that if the Flathead corpus fall it is exception, evidence does not under delicti still seriously under the rules. The admissible Just the crimes in Flathead charged the State’s assertion that contest similar, contemporaneous, are and tend to establish Glacier Counties scheme, only whether, plan system. question as common held, probative District Court value substantially outweighed preju evidence is its Flathead dice to the defendant. stage proceedings. cannot answered ofthe question
That pretrial the case appealed has orders. Because has The State trial, developed has been sufficiently not record not gone probative of the value of the evidence. The allow a determination explained why the Flathead evidence is neces- State has not *8 charged in sary prove respondent’s guilt of the crimes held that County. In the recent case of State v. Heinrich this Court failing grant pretrial the defendant’s the district court erred the evidence motion to exclude other-crimes evidence because was Heinrich, P.2d at clearly prejudicial probative and had no value. St.Rep. at 320. case, closely In the related to present other-crimes evidence charged. the crimes The same and the same were people equipment apparently operations. County The Flathead evi- involved both may probative County dence both relevant and trial. We, therefore, County overrule the Glacier District Court’s order to exclude the proceed other-crimes evidence and allow the case to guidelines. However, caveat; under the Just add if prose- we guilt County cution has sufficient evidence to establish of the Glacier crimes without the Flathead falls which within Just definition of other-crimes introduction of such evi- ary dence raises an mine cess risk prejudice of reversal due to to the defendant.
CONCLUSION The Eleventh suppressing Judicial District Court’s order results ofthe Flathead search warrant is reversed. The Ninth Judicial District Court’s suppressing orders the results ofthe Glacier excluding search warrant and evidence of the Flathead County operation are also reversed. Both cases are remanded to the respective proceeding District Courts for further consistent with this opinion. HARRISON, BARZ,
JUSTICES McDONOUGH and WEBER concur. HUNT,
JUSTICE dissenting: I dissent. The granted District Courts were correct when defendant’s preservation motions limine and held that judicial integrity necessitates the ofthe application illegally to all evidence seized as the result of either state action. rule,
Regarding Supreme the United States Court has said: government lawbreaker,
“If the contempt becomes a it breeds for law; himself; it every invites man to a law unto it invites become anarchy. To declare that in the administration ofthe criminal law the — may declare that the Government justifies end the means criminal commit crimes in order to secure the conviction *9 (cid:127)— n bring terrible retribution.” States, Elkins v. United 80 S.Ct. (1960).
L.Ed.2d This the Elkins rationale and it to adopted Court has private action: used, knowingly accepted and illegal
“[Unreasonable or intrusions private government sector amount to an extension of Elkins, particularly when platter the silver doctrine condemned judicial in in Elkins” light integrity emphasized viewed of (Emphasis original.) in (1974). Coburn,
State v. 530 P.2d exclusionary rule to integrity Judicial necessitates that the extend who, private obtaining the activities of citizens violate type preserves judicial integrity. the criminal laws. This of exclusion my I Mont. As said dissent State v. (1985):
153, 165 rightfully placed privacy paramount any illegal has to “Montana public private delegates or intrusion. The constitutional knew Mon- tana when wrote: right privacy well-being to the
“‘The of individual is essential not society infringed showing free and shall without the of Const, II, compelling state interest.’ Mont. art. 10.§ and excep- “This has been the law should remain the law without qualification. tion or judicial integrity
“It is no favor to to use an incident of an process. majority a substitute for due of this Court intrusion as trespasser snoop properly assigned now allows the and the to dowork lawfully to constituted law enforcement. Weshould leave law enforce- rightfully legally ment to those entrusted with that task. It is not society injustice private an to rule to searches. . . . Law enforcement should be left to law enforcement only but, apprehend wrongdoer officers who are not trained to just importantly, respect rights of all Montana citizens as was, majority including opinion, before the the constitutional what right privacy.” trespassers snoops
Crooks as well as should be outlawed from constituted doing legally the work of law enforcement officers. generally citizen knows what types activities are legal illegal. If knowingly citizens are allowed to break the laws, and the government reaps activity, the benefits from such does government not the essentially If the perpetrator? gov- become ernment is seized, allowed use evidence that was illegally government recipient goods? like become of stolen
A recipient goods criminally responsible stolen when he or she knowingly “obtains control property knowing over stolen the property to have been stolen another” with the purpose depriving the 45-6-301(3)(a), case, owner. Section MCA. In government received stolen property knowing it was stolen. It should be forced to obey the very that it laws is to uphold.
I would affirm District Courts. SHEEHY, JUSTICE concurs in the dissent of JUSTICE HUNT.