*1
STATE
MONTANA,
OF
Appellant,
Plaintiff
Dependant
Respondent.
DONALD
COBURN,
LEROY
No. 12707.
Submitted
June
1974.
Dec.
Decided
1974.
Rae *2 curiae. Opinion DALY of the Court.
MR. delivered JUSTICE Lewis appeals court, The from an order district state evidence, suppress County, January 23, to and Clark Hillis, i.e., Robert marijuana. The evidence was seized manager Restaurant, belonging from to McDonald’s a coat hanging manager’s in the office of restaurant defendant Helena, Montana. located County Attorneys Association filed a motion
The. Montana appear, brief, with for to file a and oral this Court leave make granted. argument was amicus curiae. Its motion Leroy employed Defendant Donald Coburn was as an assist- manager ant at McDonald’s Restaurant located in Helena. Supervisor manager, was the Robert Hillis. While at home be- Hillis p.m., tween 4:00 and 6:00 on November re- phone Keller, ceived a call from Jason another assistant man- ager McDonald’s, alerting him that defendant had some marijuana premises. on the restaurant’s Hillis then called Billings the owner of the store in inform problem to him of the and ask advice. his
Following Hillis owner, his conversation with went di- rectly police department spoke to the Helena and with one Sgt. Sanguine. transcript shows this examination of Hillis:
“Q. closely possible, you As tell the Court what you Okay, said to officer? A. I went down and I told him who I was and I told Mm marijuana that there was in the I get that didn’t want to involved, store and you store know, necessary, any more than talked we about whether it was legal go get it, for him to he said that he couldn’t for legal reason we some talked about I whether should, and legal know he didn’t whether or sure and he who them, I remember somebody called don’t and talked ato it I we ever came was and don’t remember whether definite what, and forget it or get it or decision as whether should it store, have I couldn’t going I wasn’t it in the leave it, any of knew kids, if them store because if other about might it.” they all do because if one can do testified: cross-examination, On Hillis your know, “Q. get idea, you of what trying I am some department. A. police you frame of mind was when left way Well, gotten it out of there one I would have my- gotten it out other, I would have if the wouldn’t self. '
«# # # you had conver- “Q. Now, testified that some you have you remove whether or not should with the officer about sation Right. package? A. *3 you what “Q. that don’t remember you And also testified A. reached? No. conclusion was feeling you say you had the
“Q. Well, whether or not could it? department you do police that should you left the when going to.” to, I I was feeling going I knew I A. had On redirect: you
“Q. topic police last stated that at the On this station you removing went back with idea of or thereafter prior you that marijuana. going formed idea to Had to general concept marijuana that station, the police should Tes, premises? A. I even from the before went be removed station, definitely. police “Q. So, your a result of it wasn’t as conversation at you marijuana? to that decided remove the A. police station No, absolutely not.”
On recross:
“Q. police steps you had taken had they And told if you presume I wouldn’t steps, any then have would take taken Right.” it? A. to remove action Sgt.
On Sanguine cross-examination testified: “Q. Well, he ask for as to what to do? A. Did advice to, police premises he didn’t want he didn’t want the enter to possibility because but publicity company, bad just going he know go wanted us to he was down there.
“Q. Okay, you do, you respond and what did what did Well, that? A. I advised him that under the circumstances it, mainly that he didn’t want us to into would enter he if on his own as how he wanted to handle it.
# [*] “Q. you us, well, anything you Could tell is there do re- any parting member words he left the when station? A. he left, When he was still undecided about how he was going to I him handle did if he us to advise wanted got duty Mr. that we could wait until Coburn off and we premises. confront him down off the
“Q. you you had, experience your Did feel based as a police sergeant, you you did feel that had sufficient cause at attempt that I time to to seize the substance? A. feel if premises, he could allow us to enter we could have.” On recross:
“Q. I take it that when he came you and told these problems and the fact that he company didn’t want his in- volved, there ensued discussion about a seizure of these packages himself, and rather than a packages seizure of the by you, Well, true? A. I is that didn’t him advise to do it that way.
“Q. right, that, That’s I understand but what I want doing about know is what was said him A. Well, it. I don’t really at the time he didn’t know believe what going he was *4 say do, I can’t there was too much to discussion on him remov- ing it. you expect him
“Q. he Did when back came with the No, I really, didn’t I A. didn’t think stuff? he would come (Emphasis supplied). back.” left Sanguine, Hillis Sgt.
Following with his conversation arriving restaurant; upon police to the and went the station pri- manager’s This office was there, the office. he entered managers manager assistant only to which the and vate office hang- coat unlimited Hillis then saw defendant’s had access. pocket. He bulge hip ing in the on the wall. He could see a marijuana, from substance, be later determined to removed the express or without without a search warrant defendant’s coat implied from Hillis then returned defendant. consent police. marijuana over station and turned the court suppressing the district this evidence its order part: in said adopted by the opinion that
“It is the of this Court Supreme applies in the in case Brecht case Montana bar, therefore, it is at suppress ob- motion to the evidence
“ORDERED granted.” hereby by the the same is tained search added). (Emphasis presented appeal: but issue the state in
There is one suppressing court err the evidence seized Did the district relying this Court’s decision Hillis, Robert State (1971) Brecht, Mont. P.2d unique in that is the state and amicus curiae attack This case They ask that Brecht decision. be reversed regard only application in that arguments their confine Constitution, Amendment the Hnited Fourth States This any other considerations. ignoring indicate explanation Brecht, written, not clear and warranted distinguished. though instant case can be even charged with was the defendant murder In Brecht discharge Her death resulted from the estranged wife. his disputed circumstances shotgun under tavern where aof evening May 17, employed on the 1967. Deceased she with their mother Sandra resided at the mother’s her sister period shooting. of time before for a sister home *5 defend- Sandra received a call at the mother’s home from the prior evening April ant on some two weeks shooting incident; speak and he asked to with his wife telephone. Sandra called her to the the consent Without party, proceeded either to to conversation Sandra listen telephone on an extension in another room. At trial Sandra permitted alleged to relate the conversation which she con- by shotgun tained got my hock, this threat “I out defendant off I coming am down I and will use it if I have to”.
In Brecht agreed the state that had this intrusion and the conversation by agent overheard been obtained of the state it would have by been excluded the court ruling because of the in Katz v. United 507, 19 L.Ed.2d 576 (1967). Katz is an electronic surveillance case and the landmark case that longstanding overturned the doctrine that search and seizure under the Fourth Amendment was unreason able if an trespass intrusion or accompanied the seizure “tangible goods” i.e., indicating property right or enclave theory. Katz rights held personal these protective to be and people simply and not physical areas with no intrusion required. Brecht excluded the conversation of Sandra Brum field based on violation of right privacy defendant’s estab lished Roehm, Welsh v. Mont. 241 P.2d court declared right; constitutional the Fourth Fifth and Amendments of the United Constitution; States Ill, Art. Sec. 7 of the 1899 Constitution; Montana pertinent and stated in part: *
“* * The violation of right pri- the constitutional to vacy against compulsory self-incrimination is as detrimen- person tal to protection to guaranteed whom the in the one case as in distinguish the other. To between classes of * '* * violators tantamount destruction of the itself. present
“This Court case would be remiss were recognize that evidence obtained the unlawful or unrea- constitutionally protected sonable invasion of several tbe rights guaranteed Mon- citizens both federal its contemplation properly tana within the constitutions comes lend of this rule. Court’s To do otherwise approval classes of to a fictional distinction between respect citizens: who those are bound Constitution *6 recognize those who are not. rule to Were the the rule such distinctions it would indirection circumvent rights by this and would established to enforce these Court guarantees in fact render the rule and constitutional protects meaningless.” proceeded argument in on the
The and curiae state amicus premise solely Brecht the Fourth Amendment that rested general in Am.- rule, cases which establish this contained Jur.2d, 13, p. and 670: Searches Seizures § part policy underlying the Amend-
“It is no of Fourth discourage aiding their ment to citizens to the utmost of from ability Accordingly, it has apprehension in the criminals. of long recognized protections been that the Fourth Amendment’s to a against unreasonable and seizure do not extend search individual, by private with- or made conducted search seizure support police.participation. rule, it has been out of this history Amendment origin of the Fourth said that and only upon clearly that it intended as a restraint show sovereign authority, contrary ruling that a activities and of persons would be would have no deterrent since effect #* (Emphasis added). the rule unaware of general holding cited cases based on The and are Supreme in McDowell, Burdeau v. the United States 574, 65 (1921). L.Ed. 1048 argue improvident The and Brecht was state amicus authority. weight reading A against careful of Brecht oversimplification problem. is an this reveals that As part rested Brecht on the heretofore stated Fourth appear any attempt it would Amendment reverse require of additional necessarily Brecht a treatment upon Brecht decision constitutional which the considerations legal issues raised and, further, rests a consideration violated the search defendant here. Defendant contends statutory provisions: these constitutional and II, Article Sec. 1972 Montana Constitution: “Right Privacy. privacy essen- of individual well-being society infringed tial to the of a free not be shall showing compelling without the of a state intérest.” 95-701, Section R.C.M.1947:
“Searches and seizures—when authorized. A search person, object place may instruments, or be made and articles things or may provisions be seized accordance with the chapter when the search is made:
“(a) As an incident to a lawful arrest.
“(b) With the person consent of the accused or of other lawfully possession who is object place to be searched, upon- or who is believed reasonable to be in cause possession by person making such lawful the search.
“(c) By authority of a valid search warrant.
“(d) authority within scope Under the right and of a inspection granted by of lawful law.” interesting problems contentions raise some
Defendant’s when considered with the statute, fact Montana has a section 95-611, provides: R.C.M.1947, which ~by private
“95-611. Arrest person. private person a A may arrest another when:
“(1) believes, on grounds, he reasonable that an offense being attempted presence; committed or in his “(2) felony a has in fact been believes, committed and he grounds, person on reasonable that arrested has committed Also.,the federal specific constitution contains no sec establishing separate independent tion right and of privacy 1972 Montana as does the Constitution. The United States Third, part First, recognizes right of the Constitution as supra. Fourth and Fifth Katz United Amendments. Law Re cited a Montana argument The in oral state 187, note which advised view at 34 Montana Law Review depth in view an dis represented the Court also state’s as exclusionary rule. cussion Brecht and the argu- law article totality state, and review The amicus ments to: reduce themselves satisfactory completely
(1) not a The rule is represents problem that attempt and an to solve a defies rule simple conflicting policy are the solution. The considerations prohibiting society prosecutions interest criminal and the personnel violating Fourth Amend- of law enforcement from privacy proscriptions, proscription extended to ment incentive well. intent of the rule was remove the as and deter misconduct for officers to violate rule official promote Logic that to “judicial integrity”. would dictate persons violating fulfill the the rule function rule in obtaining have an interest the conviction and must must the rule. at least aware They adopt
(2) strict construction doctrine Amendment, general that the authors of the Fourth fear- oppressive ing sovereign, give pro- meant limited government Supreme from action. The United States tection McDowell, 574, Burdeau v. 65 L.Ed. said: protection gives against Amendment unlawful
“The Fourth seizures, previous cases, and as shown its searches applies governmental origin action. protection Its his- clearly upon that it intended as a tory restraint show sovereign authority, and was not intended to activities be a governmental agencies; against than upon limitation other *8 authority purpose it was Fourth Amendment such right occupation unmolested citizen his to secure
497 subject property, his dwelling possession added). (Emphasis duly issued.” process seizure imply that seem arguments would analysis of the A fair expressed as that much the same position parties was majority in a five-four writing for the Taft, Chief Justice 564, 48 438, S.Ct. States, 277 U.S. decision, v. United Olmstead by federal telephone intrusion case (1928), a 944, 954 72 L.Ed. subject not Amendment officers, he held the Fourth where the amend- framers of application beyond the intent of the given a mean- to be could not be stretched ment and its words requirement to trespass was a “intangible” and ing to include property. protected invade the analysis of have avoided parties in instant case
All opinion pro- dissenting which, Black in his Katz in Justice the Fourth have “rewritten majority Katz claims that the heavily relied Black in dissent also his Amendment”. Justice on Olmstead. arguments based strict appear then that the
It would they history, authors as interpretation, origin, and intent of the Katz highly diluted since concern the Fourth Amendment are recognize the former de- majority in 1967. in Katz inquiry Court foreclosed Fourth Amendment cisions citing penetration trespass absent, Olmstead and when or States, 129, 993, 86 L.Ed. S.Ct. Goldman United U.S. thought to limit searches 1322, for the Amendment was property rights tangible property con- and seizures of Katz, majority, in v. United trolled. The cited Silverman departure from L.Ed.2d as the intangibles view and included as well. It went on that narrow protects people the Fourth' Amendment to hold that the Fourth “areas” and therefore the reach of Amend- simply upon presence physical turn absence ment cannot enclosure, trespass any given and the doctrine into intrusion longer controlling. can no in Olmstead and Goldman departure accepted a radical from then demonstrates This *9 498 con-, which,
meaning of the Fourth Amendment the words of period years, trolled for since Olmstead. over a of 40 or more concepts are It further demonstrates that these traditional In Olm- concept by any mot static. means. This is not a new stead, many dissenting justices, Bran- years ago, among four sub- interpretation on the same déis observed in reference to ject as Katz: against protection guaranteeing
“Clauses to the individual adap- (cid:127)specific capacity of power, have a abuses of must similar a changing with reference to such tation to a world. It was n clausethat States, 217 U.S. in v. United this court said Weems ‘Legislation, 793, 801: 30 54 L.Ed. S.Ct. true, from constitutional, it is statutory enacted, both not, language experience evils, general -an should of but its evil had there- therefore, necessarily be confined form changes, brings into existence new taken. Time works tofore n conditionsand must to be vital purposes. principle Therefore gave which capable application wider than the be mischief peculiarly are it birth. This is true Constitutions. They of. enactments, passing ephemeral designed meet occasions. “designed They are, Marshall, to use the words of Chief Justice nearly approach immortality as human institutions can provision approach it.” is their care and for events The future good prophecy of which no can be made. and bad tendencies contempla- application Constitution, therefore, In the of a our may only of what has been but of what be. tion cannot be easy other rule Constitution would indeed be as Under efficacy power. in application as it would be deficient general principles would have little value and converted be Its impotent Bights by precedent into and lifeless formulas. de- ” might reality.’ (Emphasis added). be lost clared in words concerned, recognized privacy Katz Fourth So far as general right privacy right not a but was Amendment amendments, in the Fourth and several other contained First, Fifth, p. and as in Katz Third and the stated at 19 L.Ed.2d p. 581 of U.S., p. S.Ct., 511 of 88 at at * “# # right to his privacy: reference to the prop- protection of his people is, like the let alone other — individ- largely to the law erty very life, left and of his ual States.” 29 L.Ed. 616, 6 Boyd v. United Fifth Amend- Fourth and noted that the (1886), the Court search very closely the unreasonable tied and
ments were
compels a
always
almost
Amendment
seizure of the Fourth
condemned
against himself which is
give
man to
evidence
*10
Fifth
regard
Fourth and
In
the Fifth
Amendment-
This adds to
run into each other.
Amendments almost
Amendment
of the
problem the fact that a violation
Fifth
in all
government, is condemned
rights,
whether
503,
Washington, 373
courts, military
Haynes v.
U.S.
and civil.
Richmond, 365
(1963); Rogers v.
1336,
83
Concerning exclusionary rule it would adopted “exclusionary rule” is a court first that the consider power” “supervisory resting making” and on the “rule rule no roots Supreme over the other courts and has govern or federal or the statutes of the state in the constitution citing and Wolf v. (Dissent in Katz Justice Black ment. 1782; Mapp Colorado, 25, 1359, 69 93 L.Ed. v. 338 S.Ct. U.S. 1081, 643, 6 84 A.L.R.2d Ohio, 367 81 S.Ct. L.Ed.2d U.S. 206, 80 364 4 933; Elkins v. United 1669, 1677, 1680, (1960). L.Ed.2d satisfactory that the rule is characterized
The fact as not argument in remedy the state recommended that a tort and adequate, simply ignores aggrieved for the was that all of the wrong which declare the rule as a deterrent cases because the compensated, merely corrected or but cannot be avoided future, recognized price must have that there could be no right. placed on a constitutional
The People Cahan, court in Cal.2d P.2d (1955), compelled apply observed that the court was remedies, tort, because all had com- such as criminal and pletely rights failed to secure these under the Constitution. Cahan approved long was cited and in Elkins with a discussion problem, citing statements from the chief law enforce- ment support officers of California FBI in of the rule. and the (cid:127) Elkins, the court said:
“The exclusionary subject rule has for decades been the of ardent controversy. arguments antagonists of its and proponents of its many have been so times marshalled as require lengthy no elaboration here.” is,
It however, noteworthy to application comment on its platter the “silver doctrine” that appli- resulted. The first cation rule, 1914, applied only to the federal court system excluded tainted evidence obtained federal officers and as a result platter the so-called “silver doctrine” developed, i.e., was person’s state officers could violate a con- stitutional and hand the evidence to the federal officers platter] silver [on such evidence could be used federal court because no physically federal officer was involved in the violation. practice
This recognized ignored but years for over 40 *11 until Elkins. In case, platter that the “silver doctrine” was finally discredited. Elkins went on to unlikely observe that it is factual data could be assembled to demonstrate that the ex- clusionary rule was depth unworkable and in some demon- opposite strated the interest, conclusion. Of more Elkins cites approval with ground rejecting as a for the so-called “silver platter doctrine”:
“But imperative judi- there is another consideration—the It cial. was of that Mr. Justice Mr. Holmes and Justice eloquently spoke Brandéis so States, Olmstead v. United 277 438, pages 469, 471, pages at U.S. 48 at S.Ct. 72 L.Ed. 944, 953, 952, A.L.R.376], years ago. more than 30 [66 ‘For
501
agree
who
with
Mr.
‘no distinc-
Holmes,
those
said
Justice
me/
prosecutor
tion can be taken
the Government as
between
judge.’
470,
at
page
the Government
Elkins also cites 332, McNabb v. 345, United support L.Ed. of this doctrine and then concludes:
“Even accomplices less should the federal courts be in the willful disobedience of a they up- Constitution are sworn to hold.” course, apply
Of this would to all systems. of the court shortly Elkins, In Mapp, after the last door was closed applied rule was to the state courts. The rule may many have that the deficiencies are contended state, history examination of but close its would seem to strong present a case once the rule was formulated the ignoble application unexplained, uneven and judiciary strength certainly compliment lent no to the rule and no integrity to admit judicial length to the inordinate of time platter ignored. the “silver doctrine” was to this matter the state Incidental emphasis commented with brief, Gardner, that State v. its Mont. (1926), 249P. 574 *12 implication overruled by but was in Brecht considered adopted its Supreme Montana had by Court of Brecht. The Mapp, and time, long prior to exclusionary at that own rule general case, Burdeau, quote the foundation did from the “silver However, involved quoted in Gardner Gardner. illegally evidence platter doctrine” the use obtained used Burdeau in a court and authorities state the federal context than that entirely different justify action in an this fair assume in Brecht. It would seem under consideration overruled, Elkins not Brecht. that wedded to the rule is argument that the organized sovereign because the officialdom are the ones injury because the the victim cannot that can be deterred reparation late, too all others restored or comes and that prosecution no motive and could not be familiar would have generalization completely with rule is an unwarranted that place disregards changes political in our have taken legal impact and the on the and social structure cases 1921; was announced in subject the rule Burdeau with since It particular to Katz Elkins. also reference follows being given cited, including to the cases no consideration merger Brecht, a of the Fourth Fifth where there is Amend- personal right, particularly in a violation of when ments agrees by the state that Fifth authority cited Amendment vio- private person. when done No lations are excluded given pre- to the Montana thought is Constitution statutes altogether Finally, recognize it fails viously cited. the mas- in the incidents of invasions of increase sive private citizen or the privacy of the scientific advances that though possible, even United have made States Con- problem recognized given finally prior- has gress has ity consideration. arguments erroneously
Further, “pri- characterize the lady old next who person” as the little door has a desire vate great many enforcement. When fact a in law to assist
503: *13 pure the Fourth by Amendment cases cited state involve- “institutional”, “quasi” “private” airport guards, police, i.e., building security personnel, private detectives and we also have- private corporation police self-help- like railroad and groups investigators political Experience- and for committees. simply groups “private” persons does not cast these in the- minority. agreed by simply standards the state do not fit segment private this designed sector. Methods to- protect multiple rights citizenry of the whole of our are- not intended to discourage participation: free criminals or of citizens in the enforcement of our laws.
If any one that exclusionary process only considers excludes- intrusions; readily “unreasonable” conduct it can be seen that all are not unreasonable. Like it illegal or not unreasonable or in- knowingly trusions accepted used, and from the sector- by government amount platter- to an extension the silver by Elkins, particularly doctrine condemned when viewed light judicial integrity emphasized in Elkins. has It been argued Burdeau, that Elkins did not may disturb it not have- pure been clear in context, Fourth Amendment but a close examination platter does move one to that believe the silver concept was condemned in context. Court,
This recognize however, does prob- the multitude of lems that arise and have arisen over the attempted decades very problem solution of this difficult and a final may- solution require recognition given well that be disparity- wide knowledge, in terms of motive and awareness of widely^ groups, institutions and sought diverse individuals to be con- by trolled and collusion avoided the exclusionary rule. protected personal rights governmental
If are to be integ- preserved answer rity ignoring does not lie in problem,, system many for years, did the federal so possible- but a rigidity might of the rule examination itself be in order. very partially could well be The solution achieved an exam- reasonableness in ination standards these appli- matters government hand, police cable to on the one institutional process. private persons this This as we move down in diverse statutory “pri- problem faced under a is much same be incident arrest, seizure when it involves a search and vate” thereto. respondent’s brief that and case
The Court is mindful questions statutory analysis have constitutional and there been problem have not directly on which we bear this raised case, we the facts and circumstances of this answered. Under we not therefore have not done so. feel that should opinion, the instant case beginning at the As stated might well to distinguished from Brecht. It establish can be legal distinguished grounds. The Court does integrity question good faith or nor offer criticism call into *14 involved, personal parties here for whatever of of the night. the decisions made that controlled reasons outstanding departures testimony clearly two reveals The urged by amicus. from the doctrine state and transcript reporting the a crime (1) quoted reveals The for probable proper authority, with abundant cause to the state, point against not procedure. At this a crime the arrest McDonalds, public The thereafter was involved. interest was private the man- of a interest when store to that subordinated luxury self-help. No how ager permitted matter the proof publicity motives, is no that adverse the there laudable any greater the matter been handled have had been reported legal if crime is no difference police. There person means. After unnatural been deceased had promptly drug it was over to manager turned obtained example argument in then used police. This motive, government with no conviction assist innocent report delivering of initial and the the evidence why else the or prosecution. for with officials defeats, The conference beforehand
(2) at ignorance concept. impliedly, the least Further the
505 article, 34 Law law Montana endorsed in its cited review state private cooperation with 187, explaining 197, Review while problem might imagined, police than creates less of a be that:
“* * * As soon as a individual acts association cooperation police, with the have held that his the courts Superior act is act of deemed be the the state. Miramontes v. County Mateo, Cal.App.3rd 877, 102 San 25 Cal. Rptr. (1972).] 182 Not will be evidence excluded if supervision private individual works at the direction or police police, guilty it will also but be excluded when are by’ just ‘idly standing of no than ”. more Stapleton Superior County, L.A. Court of 70 Cal.2d Cal.Rptr. 575, (1969); 447 P.2d ex rel. State Sadler Court, (1924). v. District Mont. P.
Admittedly facts presented of the case by the state through law review stronger article much are than ours. Stapleton However does hold:
“* # # requested need not have or directed guilty the search ‘standing idly order by’; knowledge illegal coupled search protect with a failure the [de- rights against such a search suffices.” fendant’s] legal impact The drawn from all of the facts seems to come Stapleton much more Brecht, under than however, in either case the district court was not error. judgment of the district court is affirmed.
MR. JUSTICE HASWELL and the HONORABLEM. JAMES SORTE, Judge, sitting District for MR. CHIEF JUSTICE HARRISON, T. JAMES concur. CASTLES,
MR. Justice (dissenting): JUSTICE I dissent. squarely
I would overrule v. Brecht, State 157 Mont.
In defendant deceased, was allowed degree. sister of the Brumfield, Sandra defendant and testify telephone conversation between to a to time, were, at that deceased Both Sandra the deceased. During telephone residing in the home of their mother. telephone and up conversation, picked an extension Sandra testify at the was allowed conversation. She listened to the got deceased, my “I tell the defendant that she heard the trial I I coming down and will use it if hock, I am shotgun out of testimony this admission of held that the to.” This Court have and Fourteenth Amendment Fourth the defendant’s violated III, 7, of 1889Mon- Article rights rights under Sec. and his pages holding, Court at stated so tana Constitution. exclusionary applied rule page 51, that the at 485 P.2d by individuals: seizures conducted to searches and right privacy “The the constitutional violation is as detrimental to the against compulsory self-incrimination protection guaranteed in the one case person to whom the distinguish violators is To between classes of in the other. itself. to destruction tantamount ¡í# [*] present would be were it not in the case remiss
“This Court unlawful by obtained or unrea- recognize that evidence constitutionally protected several invasion sonable by both Mon- rights guaranteed to its citizens the federal and contemplation within properly comes tana constitutions To exclusionary rule. do lend otherwise would of this Court’s to a fictional distinction between approval classes of respect are bound Constitution and those who citizens: recognize rule to not. who are Were those indirection it circumvent the rule distinctions such rights to enforce these this Court would in established guarantees pro- and the constitutional render the fact meaningless.” tects relating moment issues
Leaving Montana aside
507 by a plain simple truth seizure Constitution, the and Constitution not violate the federal individual does agent be deemed long so as that individual cannot police. the state because of his involvement with McDowell, In the v. case of Burdeau employer (1921), L.Ed. 1048 the defendant’s office, had entered defendant’s drilled his safe and broken the A locks on his desk. few later, employer months the turned government. papers response found over the to a motion asking books, papers, for an order for the return of the memor- anda, correspondence, possession and other data the Special Attorney Assistant to the General of the United the Court stated: gives protection against
“The Fourth Amendment unlawful seizures, previous searches and and as shown in eases, its protection applies governmental origin Its action. and his- tory clearly that it upon show was intended as a restraint sovereign authority, activities of was intended to be upon governmental limitation agencies; against other than authority purpose such it was the of the Fourth Amendment right secure the citizen occupation of unmolested dwelling possession his and the property, subject of his by process duly of seizure issued. present clearly “In the case the record shows that no official (cid:127)of had government anything the federal to do with wrongful petitioner’s property, seizure of the knowledge thereof him property until months several after had been taken from possession the Cities Company. Service It is that there was no invasion of security manifest afforded against the Fourth Amendment unreasonable search seizure, wrong as whatever was done was the act of individuals in tak- ing property of another.”
Although scope of expanded rule has immensely since the decision in Burdeau in 1921, that decision not been deviated from has the courts of country. Colorado, 338 U.S. in Wolf Supreme United States the Fourth (1949), held L.Ed. 1782 1359, 69 S.Ct. applicable prohibitions were and seizure Amendment’s search *17 of the Fourteenth process clause the due to the under states Ohio, 643, 81 Mapp Its decision Amendment. by holding that “all evidence (1961), L.Ed.2d S.Ct. in violation of the Constitu by seizure obtained searches authority, court”, in a is, inadmissible state by tion that same applicable However, to exclusionary the states. rule made the exclusionary on federal constitu to invoke the in order been, precedent, as a condition grounds must have tional there Mapp, supra. A of federal constitution. violation the some private violate by individual does not the- a search and seizure Burdeau, supra. Likewise, the Four as Fourth Amendment. private- to states and not is teenth Amendment directed does, private by individual a individuals, search and seizure a Coolidge Hamp v. New Amendment. not Fourteenth violate the (1971).. 443, 487, 91 29 L.Ed.2d shire, 403 U.S. by a individual Thus, a search and seizure because constitution, it that federal follows the not violate the does mandated the federal constitution. rule is not police transpiring station there Here, at the show the events police by the search no involvement this and seizure police. instrumentality accept of I an the cannot nor was Hillis person instrumentality becomes an proposition the a of' by reporting merely police. an incident the police to On- police person reports, cannot hand, use a who the other police unwitting tool of the a crime an achieve ends for- police Such themselves. is not bidden to the the case here.. absolutely police no evidence to indicate that the con- There is to make sciously dumb or refused the search played and seizure- encouraging by pri- a search and purpose of seizure for the individual. vate actively police not enter into did the incident
The fact making Hillis from the search and by prohibiting seizure or making and seizure search obtaining search warrant and an instru- being in Hillis deemed themselves should not result It evidence. mentality police suppression n reporting of crime policy to inhibit this state throughout inci- Hillis police. One of the motives by preventing reputation protect (cid:127)dent McDonald’s was to publicity might police bad which if uniformed were ensue premises. police make the knew search and seizure report If community “this. aware that a the business n police police response in an without must result immediate regard consequences good- for the or its effect on its business’ will, reporting in- there is no doubt our minds that the police Thus, I cidents to the will be inhibited and lessened. instrumentality would decline to hold Hillis was “the purposes of the instant search and seizure. Defendant contends the search and seizure of the substance *18 "by pocket Robert Hillis from defendant’s coat violated Article II, 10 of 11, Sections the 1972 Montana Constitution and ¡section 95-701, R.C.M.1947, suppressed by and thus must be exclusionary reason of the rule. Those sections read as follows: Right 10. privacy. right “Section The pri- of of individual vacy well-being society is of a essential the free and shall n not infringed showing compelling be without the of a state- interest. 11. people
“Section Searches and seizures. shall ¡secure persons, papers, in their un- homes and effects from any reasonable searches and seizures. No warrant to search place, any person thing or seize or shall issue without describ- ing place the person be searched or thing seized, the or to be n or probable cause, supported without or oath affirmation writing.” reduced to
“95-701. Searches and seizures—when authorized. A search n ofa person, object place or may be made and instruments, things may articles or be seized in accordance with pro- the chapter visions of this when the search is made: 510 lawful arrest.
“(a) an to a As incident per- of other or the accused “(b) the consent of With place object to be- or lawfully possession of the who son to be im cause upon reasonable searched, who is believed making the search. possession by person such lawful warrant. “(c) By authority a valid search scope authority within the “(d) Under inspection granted law.” of lawful by Hillis was a violation Even if the and seizure search of this case do not warrant foregoing provisions, the facts application exclusionary rule. exclusionary rule, the discussing purpose Su- recently preme in United has stated Court of United States 613, 561, Calandra, 338, 94 38 L.Ed.2d 414 S.Ct. States v. U.S. (1974): to redress the purpose “The rule injury privacy search victim:
“ ruptured efffects-. privacy of the victims’ homes and ‘[T]he Reparation too late.’ Linkletter v. be restored. comes cannot 637, 1731, 1742, 14 Walker, L.Ed.2d U.S. (1965). prime purpose
“Instead,
is to deter future unlaw-
the rule’s
thereby
guarantee
effectuate
ful
conduct and
against
search
unreasonable
and seizures:
Fourth Amendment
“
repair.
prevent,
purpose
not to
Its
‘The
is calculated
compel
guaranty
respect for the constitutional
tois
deter—to
removing
way by
the incen-
only effectively available
in the
—
disregard it.’
v. United
tive to
Elkins
(1960).
“Accord, Mapp 1692, v. U.S. S.Ct. (1961); 1081, 6 A.L.R.2d Tehan L.Ed.2d v. United [84 933] 406, 86 States, Shott, 459, 382 416, 465, ex rel. U.S. S.Ct. 15 Terry 1, (1966); Ohio, 29, 392 88 1868, 453 L.Ed.2d sum, In (1968). the rule judicially- 20 L.Ed.2d designed safeguard remedy Fourth created Amendment rights than a effect, rather generally through its deterrent personal aggrieved. party constitutional
“Despite exclusionary rule purpose, its broad deterrent illegally- has interpreted proscribe never been the use against persons. seized proceedings evidence in all all As with device, application been remedial o'f the rule has objectives restricted to those areas where its remedial are thought efficaciously most served.” declining exclusionary extend the rule to the use
grand jury proceedings of evidence in violation of the seized Fourth Amendment, page at the Court Calandra stated of 414 U.S., page S.Ct., page at 621 of 94 at 573 of 38 L.Ed.2d:
“Against potential damage this to the role and functions of grand jury, weigh we must the benefits to be derived from proposed extension of Suppression rule. illegally-seized use of against evidence the search victim in a thought criminal trial important to be an method of (cid:127)effectuating the Fourth Amendment. But it does not follow the Fourth requires adoption Amendment every pro posal might police deter misconduct. In Alderman v. U.S., United S.Ct., at at L.Ed.2d [22 176], example, this Court declined to extend the exclusion ary rule to one who was not the victim of the unlawful search:
“ ‘The preventing deterrent values of the incrimination of rights those whose have violated^have'been consid- justify suppression probative ered sufficient to evidence though against even the case the defendant is weakened or destroyed. judgment. We adhere to that But we are not con- vinced that extending the additional benefits the exclusion- ary justify other defendants would further encroach- upon public ment in prosecuting interest those accused having acquitted of crime and them or convicted on the basis exposes of all the evidence which truth.’ think equally applicable “We this observation present in the context. *20 might achieved
“Any which be deterrent effect incremental at proceedings is uncertain grand jury extending the rule to may result police of misconduct best. Whatever deterrence from criminal illegally-seized of evidence from the exclusion application the rule of trials, it is to assume unrealistic further that significantly grand jury proceedings to goal. police investigation Such would deter an extension solely consciously discovery toward of evidence directed the grand jury investigation. in incentive to dis- use a solely regard requirement to- of the Fourth Amendment grand jury substantially negated obtain an a indictment from inadmissibility illegally-seized a evidence in sub- sequent prosecution of the most criminal the search victim. For part, prosecutor unlikely request to an indictment a would be where a conviction obtained. We therefore de- could be speculative cline to embrace a view that would achieve undoubtedly police minimal mis- advance the deterrence expense substantially impeding the conduct at the role grand jury.” Calandra, readily foregoing excerpts it can be
From the from purpose exclusionary rule to deter seen and not as a bonus future unlawful official conduct rights Where- have been violated. criminal defendant whose misconduct, as in has no unlawful official there been present Even situation, the for the fails. factual reason exclusionary if that the reason for rule is it be conceded conduct, illegal private, application, all official or deter to those the rule has been restricted areas where its remedial thought efficaciously Calandra,. most objectives are served. applied' supra. Thus, whether the rule will be given balancing down case comes test: whether outweighs as a to misconduct rule’s value deterrent the' preventing prosecuting public crime. interest Montana 195- in the Note at Law Review As stated 196:
513; if must met requirements “Logic that certain indicates For function. fulfill deterrent going in fact its the rule is must committing and seizure person the search thing, one with the information obtaining a conviction an interest in have where, for ex- rule is no value Obviously the secures. he willing prosecuting, are ‘no interest in ample, the have *21 serving prosecution in the interest of forego to successful * * * goal.’ another ele- which on the surface seems requirement, other “The in search and seizure mental, person involved the the to it is not unusual of the rule. While must at least aware expect police salient rules the to be familiar with certain unlikely layman with interest it does that a no evidence, seem have securing or intent of the of criminals would conviction knowledge much in this area.” majority testimony beginning of the set forth at the removing the
opinion for shows that Hillis had two motives to pocket, from of which was substance defendant’s neither prosecute wanted remove (1) defendant: He to convict get the employees so the substance that the other not they possess the feeling impunity drugs with on could keep premises; (2) police the from McDonald’s he desired to protect reputation Mc- getting involved in to order the keep police the from Donald’s. Whether or not desire to proper, getting involved was not motivated was Hillis any secure conviction of defendant. Neither is there evidence exclusionary of Hillis’ rule. awareness of the if it had Even been established that Hillis had been moti- exclusionary secure a of the vated to conviction or had known application rule, of that rule in the case of a search private individual, here, appropri- seizure would not be exclusionary function deter, ate. The of the rule is to not to Despite knowledge repair. the motivation or of the exclusion- present ary case, in Court is bound to at what look application in an this case would have on effect cases future believe by private individuals. We of search and seizure conducting private individual would be a rare case where a motivation illegal have both the seareh and seizure would Thus, the exclusionary rule. convict and an awareness in case exclusionary rule imposing deterrent effect speculative value is here speculative would be. at best. Such prosecut- outweighed public preventing by the interest ceases, ing a rule so should crime. When the reason of 49-102, rule itself. Section R.C.M.1947. legal just basis
It
what the
is difficult
determine
for the
majority opinion
than a love
other
was
attempted
I
that Hillis
have
show
rule. Heretofore
in no
instrumentality
sense
manner an
involved here.
proverbial
platter doctrine”
“silver
reported
opinion
that when
Moreover, majority
states
Hillis
probable cause for arrest
police there was “abundant
Compare
that.
Surely
majority does not mean
procedure”!
with that
holding
probable
an arrest here
cause for
692, written
528 P.2d
Thorsness, 165 Mont.
State
*22
Daly.
Justice
Justice Haswell
concurred
'
majority approves
Stapleton
the statement
Thereafter the
County,
97, Cal.Rptr.
Superior
L. A.
70 Cal.2d
970, that:
575,
“Not supervision police, but it will at the direction works guilty are than when the of no more also be excluded just 'idly standing by’.” my
(cid:127)In is an unwise extension of the view this rule. concurring in
MR. JOHN C. HARRISON Justice JUSTICE Castles’ dissent: join I
Although participate I in Brecht Castles did Justice juris- Brecht. No other in his dissent here and overrule diction, platter”, doc- “silver I find has. extended can net my opinion Brecht covers. include all that trine to n effect hamstrings officials. enforcement further law of Brecht