STATE OF MONTANA, Plaintiff and Respondent, v. MICHAEL THADDEUS GOETZ, Defendant and Appellant. STATE OF MONTANA, Plaintiff and Respondent, v. JOSEPH PATRICK HAMPER, Defendant and Appellant.
No. 05-676 | No. 05-539
IN THE SUPREME COURT OF THE STATE OF MONTANA
August 20, 2008
2008 MT 296
FILED August 20 2008 Ed Smith CLERK OF THE SUPREME COURT STATE OF MONTANA
COUNSEL OF RECORD:
For Appellants:
Peter B. Ohman (argued), Gallatin County Public Defender‘s Office, Bozeman, Montana
Brian K. Gallik (argued), Goetz, Gallik & Baldwin, P.C., Bozeman, Montana
Hon. Mike McGrath, Attorney General; Jim Wheelis and Mark Mattioli (argued), Assistant Attorneys General, Helena, Montana
Marty Lambert, County Attorney; Todd Whipple, Deputy County Attorney, Bozeman, Montana
Argued and Submitted: July 19, 2006
Decided: August 20, 2008
Filed:
Clerk
¶1 Michael Thaddeus Goetz (Goetz) and Joseph Patrick Hamper (Hamper) (collectively, the Defendants) appeal from the judgments entered by the Eighteenth Judicial District Court, Gallatin County, on their respective convictions for felony criminal distribution of dangerous drugs. Specifically, the Defendants challenge the District Court‘s denial of their motions to suppress evidence. We reverse and remand.
¶2 We address the following issue:
¶3 Were the Defendants’ rights under
BACKGROUND
¶4 In light of the identical primary legal issue raised in these two appeals, we consolidated the cases for purposes of oral argument and resolution. The following sets forth the relevant factual and procedural background of the individual cases.
State v. Goetz
¶5 On May 19, 2004, Matt Collar (Collar), a detective with the Missouri River Drug Task Force (Task Force), made contact with Suzanne Trusler (Trusler), who previously had agreed to act as a confidential informant for the Task Force. Trusler informed Collar she had arranged to purchase a gram of methamphetamine from Goetz. Trusler then met with Collar and Detective Travis Swandal (Swandal) and allowed them to outfit her with a body wire receiving device. The detectives did not seek or obtain a search warrant
¶6 The State of Montana (State) subsequently charged Goetz by information with the offense of felony criminal distribution of dangerous drugs. In the information, the State listed Collar and Swandal as witnesses to be called at trial. The State also advised Goetz that it intended to introduce the tape recording of his and Trusler‘s conversation, and a transcript of the recording, into evidence at trial. Goetz moved the District Court to suppress the evidence derived from the electronic monitoring and recording of the conversation on the basis that it violated his rights to privacy and to be free from unreasonable searches and seizures as guaranteed by State v. Hamper ¶7 On August 4, 2004, Collar made contact with Chrystal White (White), who previously had agreed to act as a confidential informant with the Task Force. White informed Collar that she had arranged to purchase 1/8 ounce of marijuana for $50 from Hamper. White met with Collar and Swandal and allowed the detectives to outfit her with a body wire receiving device. Collar provided White with $50 to purchase the ¶8 The State subsequently charged Hamper by information with two counts of felony criminal distribution of dangerous drugs. The State indicated its intent to call Collar and Swandal as witnesses at trial, and also indicated its intent to introduce the recordings of the two conversations—and transcripts of those recordings—into evidence at trial. Hamper moved to suppress evidence obtained via the electronic monitoring and recording of the two conversations on the basis that it violated his rights to privacy and to be free from unreasonable searches and seizures as guaranteed by ¶9 We review a district court‘s denial of a criminal defendant‘s motion to suppress evidence to determine whether the court‘s findings of fact are clearly erroneous and its interpretation and application of the law correct. State v. Copelton, 2006 MT 182, ¶ 8, 333 Mont. 91, ¶ 8, 140 P.3d 1074, ¶ 8. Here, the parties do not dispute the District Court‘s relevant findings of fact. Consequently, we review only whether the court correctly interpreted and applied the law. ¶10 Were the Defendants’ rights under ¶11 The Defendants’ motions to suppress relied primarily on State v. Solis, 214 Mont. 310, 693 P.2d 518 (1984), in which this Court determined that the warrantless electronic monitoring and recording of the defendant‘s conversations with an undercover law enforcement officer violated the defendant‘s rights under ¶12 The District Court recognized the conflict between Solis and Brown, and noted our own observation, in State v. Hardaway, 2001 MT 252, ¶ 51, 307 Mont. 139, ¶ 51, 36 P.3d 900, ¶ 51, of jurisprudential inconsistencies in privacy law cases from the mid-1980s through the early 1990s. Determining stare decisis required the application of Brown, the ¶13 The ¶14 [t]he people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures. No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing. ¶15 Given the parties’ and the District Court‘s understandable reliance in this case on early Montana privacy and search and seizure jurisprudence as set forth in Solis and Brown, we begin with a discussion of those cases. In Solis, law enforcement employed an undercover officer to act as a pawnshop proprietor and, with the officer‘s consent, videotaped certain events in the pawnshop. On numerous occasions, Solis was videotaped selling merchandise—some of which apparently was stolen—to the undercover officer. The State charged Solis with theft and intended to rely at trial on the videotapes and testimony from the officers running the taping machine rather than any testimony from the undercover officer who consented to the videotaping. Solis, 214 Mont. at 312-13, 693 P.2d at 519. ¶17 We next proceeded to the question of whether a compelling state interest justified infringing on Solis‘s right under ¶18 Solis set forth an in-depth discussion and analysis of the right to privacy guaranteed by the Montana Constitution. However, only two Justices concurred in the holding based on application of the Montana Constitution. Three additional Justices concurred in the result of the decision, but relied on Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967), and other federal case law to determine that an unreasonable warrantless search occurred which was not justified by any exception to the warrant requirement. Solis, 214 Mont. at 320, 693 P.2d at 523 (Sheehy & Weber, JJ., & Haswell, C.J., concurring). Consequently, Solis is not controlling precedent regarding application of ¶19 The Court decided Brown in 1988, less than four years after Solis. In that case, law enforcement monitored and recorded three conversations between a suspect and an undercover police officer via a body wire transmitting device attached to the officer. The conversations took place in a vehicle in a parking lot, over the telephone and in a motel room rented by the undercover officer, and all related to arranging and completing a ¶20 In addressing the defendant‘s face-to-face conversations in the vehicle and motel room, the Court noted the United States Supreme Court‘s holding in White that warrantless electronic monitoring of face-to-face conversations—with the consent of one participant—does not violate the search and seizure provisions of the ¶21 The Brown Court observed that some violation of a person‘s reasonable expectation of privacy must have occurred before the protections of ¶22 When discussing why the warrantless consensual electronic monitoring and recording of the conversation did not violate the defendant‘s rights under the Montana Constitution in Brown, the Court cited United States Supreme Court cases and one legal commentator. Furthermore, while Brown did not expressly cite White, the concepts contained in the discussion of the Montana Constitution in Brown appear to be taken directly from the Supreme Court‘s rationale in that case. See White, 401 U.S. at 749-54, 91 S. Ct. at 1125-27; Brown, 232 Mont. at 10-11, 755 P.2d at 1370-71. Thus, notwithstanding our recognition in Brown that ¶23 In more recent years, this Court has readily applied [I]n State v. Sawyer [174 Mont. 512, 571 P.2d 1131 (1977)], this Court first applied Hardaway, ¶ 51. In light of this “consistent trend” of protecting Montana citizens’ heightened privacy rights under our Constitution, the Hardaway Court overruled an earlier case addressing the relevant issue on the basis that the rationale in the prior case was premised exclusively on federal jurisprudence and failed to comport with current ¶24 Similarly here, we conclude Brown provides little, if any, guidance in resolving the issue before us in light of the reliance on federal jurisprudence—and limited analysis and application of the provisions of the Montana Constitution—in that case. Therefore, we overrule Brown and again recognize that Solis is not controlling precedent. As a result, we examine the issue before us anew, applying more current and consistent interpretations of ¶25 The issue in the present case is whether the warrantless electronic monitoring and recording of a face-to-face conversation with the consent of one participant in the conversation violates the other participant‘s rights to privacy and to be free from unreasonable searches and seizures guaranteed by ¶26 ¶27 We determine whether a state action constitutes an “unreasonable” or “unlawful” search or seizure in violation of the Montana Constitution by analyzing three factors: 1) whether the person challenging the state‘s action has an actual subjective expectation of privacy; 2) whether society is willing to recognize that subjective expectation as objectively reasonable; and 3) the nature of the state‘s intrusion. See e.g. State v. Hill, 2004 MT 184, ¶ 24, 322 Mont. 165, ¶ 24, 94 P.3d 752, ¶ 24. The first two factors are considered in determining whether a search or seizure occurred, thus triggering the protections of ¶28 “[W]e recognize that naturally a person seeks to protect certain parts of his or her privacy, and it is those desires which are at the foundation for the constitutional safeguards that exist to protect them.” Scheetz, 286 Mont. at 48, 950 P.2d at 726. Moreover, a person normally expects privacy free from governmental intrusion not authorized by a warrant in her or his home. See State v. Graham, 2004 MT 385, ¶ 21, 325 Mont. 110, ¶ 21, 103 P.3d 1073, ¶ 21 (citations omitted). Thus, while the home is traditionally “the raison d‘être for the constitutional protection[,]” “the right to be free from unreasonable searches and seizures encompasses more than the home . . . .” Graham, ¶ 22. In that regard, we observe again that ¶29 These fundamental principles clarify that we base our recognition of an actual expectation of privacy on various factors. See Scheetz, 286 Mont. at 48, 950 P.2d at 726. “What a person knowingly exposes to the public is not protected, but what an individual seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Scheetz, 286 Mont. at 49, 950 P.2d at 726-27 (quoting Bullock, 272 Mont. at 375, 901 P.2d at 70). Indeed, in Montana, when persons leave the privacy of their home and expose themselves and their effects to the public and its independent powers of perception, it is clear that they cannot expect to preserve the same degree of privacy for themselves or their affairs as they could expect at home. However, when a person takes precautions to place items behind or underneath seats, in trunks or glove boxes, or uses other methods of ensuring that those items may not be accessed and viewed without permission, there is no obvious reason to believe that any privacy interest with regard to those items has been surrendered simply because those items happen to be in an automobile. Elison, ¶ 51 (citation omitted). While Elison involved physical items stowed within a vehicle, the same rationale applies to a conversation with another person in a vehicle which cannot be overheard by the public outside the vehicle. Thus, where a person has gone to considerable trouble to keep activities and property away from prying eyes, the person evinces a subjective expectation of privacy in those activities and that property. State v. 1993 Chevrolet Pickup, 2005 MT 180, ¶ 12, 328 Mont. 10, ¶ 12, 116 P.3d 800, ¶ 12. Accordingly, we determine whether a person has knowingly exposed something to the public and, consequently, surrendered his or her privacy protections by looking at the particular facts of the case. Scheetz, 286 Mont. at 49, 950 P.2d at 726-27. ¶30 Here, the face-to-face conversations between the Defendants and one other individual were within the Defendants’ private homes and, in Hamper‘s case, in the confines of a vehicle. The Defendants did not conduct their conversations where other individuals were present or physically within range to overhear the conversations. In other words, the Defendants kept their activities and conversations away from prying eyes (and ears), and did not expose their conversations to the public‘s “independent ¶31 We next address whether society is willing to recognize an individual‘s subjective expectation that a one-on-one conversation conducted in a private setting is not being surreptitiously electronically monitored and recorded. Stated differently, does society perceive it is reasonable to expect privacy in a personal conversation held in a private setting? “The reasonableness inquiry hinges on the essence of underlying constitutional values—including respect for both private, subjective expectations and public norms. In assessing the constitutionality of technologically enhanced government surveillance in a particular case, we must identify the values that are at risk, and vest the reasonable-expectation-of-privacy test with those values.” State v. Blow, 602 A.2d 552, 555 (Vt. 1991). ¶32 We observe here the importance of avoiding an overly narrow delineation of the nature of the reasonableness inquiry, because to do so would render every conceivable factual difference in a conversation subject to litigation. In Montana, the protections afforded by the exercise of the power of search and seizure is absolutely essential to the public welfare. . . . But the process may be exercised, and the law enforced State ex rel. Thibodeau v. Fourth Jud. Dist., 70 Mont. 202, 209, 224 P. 866, 869 (1924) (emphasis added). ¶33 We have on prior occasions quoted extensively from—and discussed the debates of—the delegates to the constitutional convention with regard to the inclusion of the right to privacy in the 1972 Montana Constitution. See e.g. Siegal, 281 Mont. at 276-77, 934 P.2d at 191-92. Delegate Campbell stated that “the [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. . . . [W]e found that the citizens of Montana were very suspicious of such type of activity.” Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, p. 1682. Delegate Dahood reported even more strongly: “[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. . . . [W]ithin the area of the State of Montana, we cannot conceive of a situation where we could ever permit electronic surveillance.” Transcript, p. 1687. Thus, the Constitutional Convention delegates were aware of the great value Montana citizens place on the right to privacy and the clear risk to that privacy engendered by the existence and advancement of electronic technology as used by law enforcement. ¶34 “[T]he proceedings of the 1972 Montana Constitutional Convention disclose on the part of the delegates a particular concern over the intrusion of the government into the [I]t is clear that the delegates’ concerns encompassed the invasion of citizens’ privacy without their knowledge by means of various sorts of electronic audio and visual monitoring and surveillance equipment. Not only were the delegates wary of existing technology of this type, but they recognized that this sort of technology would continue to be refined and would become more widespread and easily available. In this regard their concerns have been well-founded. Moreover, it is also clear that, in the delegates’ view, the use of this sort of technology should be justified only in the most serious of situations, involving heinous crimes where it is necessary to “risk the right of individual privacy because there is a greater purpose to be served.” Siegal, 281 Mont. at 277, 934 P.2d at 192. ¶35 The express statements of the delegates to the 1972 Montana Constitutional Convention regarding the government‘s use of electronic surveillance against Montana‘s citizens provide direct support for a conclusion 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. We are convinced that Montanans continue to cherish the privacy guaranteed them by Montana‘s Constitution. Thus, while we recognize that Montanans are willing to risk that a person with whom they are conversing in their home or other private setting may repeat that conversation to a third person, we are firmly persuaded that they are unwilling to accept as reasonable that the same conversation is being electronically monitored and recorded by government agents without their knowledge. ¶36 Nor should the underlying purpose or content of the conversations at issue reflect upon society‘s willingness to accept a subjective expectation of privacy in those conversations as reasonable. As the Supreme Court of Alaska aptly stated, [a]ll of us discuss topics and use expressions with one person that we would not undertake with another and that we would never broadcast to a crowd. Few of us would ever speak freely if we knew that all our words were being captured by machines for later release before an unknown and potentially hostile audience. No one talks to a recorder as he talks to a person. . . . One takes the risk that his friend may repeat what has been said. One shouldn‘t be required to take the additional risk of an entirely different character—that his conversation is being surreptitiously transcribed or broadcast. . . . . . . . . It is axiomatic that police conduct may not be justified on the basis of the fruits obtained. It is, of course, easy to say that one engaged in an illegal activity has no right to complain if his conversations are broadcast or recorded. If, however, law enforcement officials may lawfully cause participants secretly to record and transcribe private conversations, nothing prevents monitoring of those persons not engaged in illegal activity, who have incurred displeasure, have not conformed or have espoused unpopular causes. State v. Glass, 583 P.2d 872, 877-78 (Alaska 1978) (internal citations omitted). ¶37 Based on the foregoing, we conclude each Defendant‘s expectation of privacy in the conversations at issue here is one society is willing to accept as reasonable. As stated above, “[a] search occurs when the government infringes upon an individual‘s expectation of privacy that society considers objectively reasonable.” Hamilton, ¶ 17. Thus, we further conclude that the electronic monitoring and recording of the Defendants’ in-person conversations constituted searches within the contemplation of the ¶39 As stated above, the ¶40 Our long-standing rule is that searches conducted in the absence of a properly issued search warrant are per se unreasonable, absent a recognized exception to the warrant requirement. See e.g. State v. McLees, 2000 MT 6, ¶¶ 10 and 26, 298 Mont. 15, ¶¶ 10 and 26, 994 P.2d 683, ¶¶ 10 and 26. “The presence of a search warrant serves a high function. Absent some grave emergency, the McLees, ¶ 26 (quoting State v. Sorenson, 180 Mont. 269, 274, 590 P.2d 136, 140 (1979)). Where, as here, a warrantless search has been conducted, the State bears the burden of ¶41 The State first argues that the warrantless searches at issue here were authorized by the confidential informants’ consent to the monitoring and recording of the conversations. Indeed, we long have recognized that a warrantless search is not unlawful where it is conducted with consent freely and voluntarily given. See e.g. Sorenson, 180 Mont. at 275, 590 P.2d at 140. Furthermore, “when the prosecution seeks to justify a warrantless search by proof of a voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” Sorenson, 180 Mont. at 275, 590 P.2d at 140 (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993 (1974)). The State asserts that, because the confidential informants in these cases arranged with law enforcement to wear the body wires and clearly consented to the electronic monitoring and recording of the conversations, their consents justified the warrantless searches. ¶42 As noted above, we derived the third-party consent exception to the constitutional search warrant requirement in Sorenson from the United States Supreme Court‘s decision in Matlock. While we interpret ¶43 In Randolph, the defendant‘s wife contacted law enforcement regarding a domestic dispute she had with Randolph. The wife informed the officers upon their arrival that Randolph was a drug user and items of drug use were located in the house. Randolph, who was present in the house at the time, denied his wife‘s allegations and unequivocally refused the officers’ request for his consent to search the house. The officers then obtained the wife‘s consent to search. During the search, the officers observed and seized evidence of drug use. Upon being charged with possession of cocaine, Randolph moved to suppress the evidence on the basis that his wife‘s consent, given over his express refusal to consent, rendered the searches unlawful. The trial court denied the motion, the Court of Appeals of Georgia reversed the trial court, and the Georgia Supreme Court affirmed. Randolph, 547 U.S. at 107-08, 126 S. Ct. at 1519. ¶44 The United States Supreme Court granted certiorari to address the question of “whether one occupant may give law enforcement effective consent to search shared premises, as against a co-tenant who is present and states a refusal to permit the search.” Randolph, 547 U.S. at 108, 126 S. Ct. at 1520. The Supreme Court first reiterated its Matlock statement that “the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” Randolph, 547 U.S. at 110, 126 S. Ct. at 1521 (quoting Matlock, 415 U.S. at 170, 94 S. Ct. at 993) (emphasis added). After some discussion of the underlying principles of co-tenancy, mutual authority over property or effects, and the ¶45 The Supreme Court further clarified that if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant‘s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out. So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant‘s permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant‘s contrary indication when he expresses it. Randolph, 547 U.S. at 121-22, 126 S. Ct. at 1527. Here, the search of conversations by means of electronic monitoring and recording, rather than the search of premises, is at issue. Each party to each conversation was physically present at the time of the search and had an interest—that is, an interest in the nature of a co-tenant in physical premises—in the conversation. Under the Randolph rationale—which we expressly adopt vis-à-vis private face-to-face conversations—the confidential informants’ consent to the electronic monitoring and recording of the conversations could not override any objection expressed by the Defendants. ¶46 Similarly, here, the State cannot justify a search under the consent exception as a result of the simple expedient of failing to inform the potential—and physically present—objecting party that the search is being conducted. We conclude that the warrantless searches of the conversations at issue here cannot be justified by the consent exception to the warrant requirement. ¶47 Alternatively, the State contends that, if we conclude the electronic monitoring and recording of a face-to-face conversation constitutes a search, it should be subject to a particularized suspicion standard rather than the ¶48 We observe at the outset that the State relies on 1993 Chevrolet Pickup and State v. Hart, 2004 MT 51, 320 Mont. 154, 85 P.3d 1275, in support of applying a particularized suspicion standard to justify the searches of the conversations in the ¶49 We turn, then, to the State‘s argument that the particularized suspicion standard should apply to the search of the conversation between Hamper and the confidential informant which took place in the confidential informant‘s vehicle. It first relies on 1993 Chevrolet Pickup in support of its argument, but that case is readily distinguishable. ¶50 In 1993 Chevrolet Pickup, law enforcement believed a suspect was operating an illegal drug laboratory. After a several-month investigation of the suspect‘s activities, law enforcement officers conducted a warrantless “trash dive” on garbage cans located in the alley behind the suspect‘s residence and discovered items related to the manufacture of methamphetamine. Based on the evidence found in the suspect‘s trash bags, the officers obtained a search warrant and the subsequent search of the suspect‘s residence, pickup truck and boat turned up additional drug-related evidence. The suspect moved to suppress the evidence found during the warrant search, arguing the warrant was invalid ¶51 On appeal, we addressed whether the warrantless search of a person‘s garbage violated the person‘s rights under ¶52 The State also relies on Hart in support of its argument that a particularized suspicion standard should apply to justify the warrantless monitoring and recording of face-to-face conversations with the consent of one participant in the conversation. Hart involved a drug-detecting canine sniff of the exterior of a vehicle. We determined the dog sniff of the exterior of a vehicle constituted a search, but that such a search may be ¶53 In Tackitt, law enforcement officers used a drug-detecting canine to sniff the exterior of the defendant‘s vehicle parked outside his residence and the canine alerted on the trunk of the vehicle, indicating the presence of drugs. Tackitt, ¶ 7. We relied on Elison, ¶ 51, in concluding that the canine sniff constituted a search because Tackitt maintained a reasonable expectation of privacy in the items stowed in his vehicle‘s trunk. Tackitt, ¶¶ 21-22. We then determined that, although warrantless searches generally are per se unreasonable, the purpose and minimally intrusive nature of such a canine sniff warranted an exception to the warrant requirement, but would “still require particularized suspicion when the area or object subject to the canine sniff is already exposed to the public.” Tackitt, ¶ 29. Here, however, the private face-to-face conversation in the vehicle was not exposed to the public. Consequently, we decline to adopt a particularized suspicion standard to justify the warrantless electronic monitoring and recording of a one-on-one conversation occurring in a vehicle. ¶54 For the above-stated reasons, we hold that the electronic monitoring and recording of the Defendants’ conversations with the confidential informants, notwithstanding the consent of the confidential informants, constituted searches subject to the warrant ¶55 Reversed and remanded for further proceedings consistent with this opinion. /S/ KARLA M. GRAY We concur: /S/ JAMES C. NELSON /S/ PATRICIA COTTER Justice W. William Leaphart, specially concurring. ¶56 I specially concur in the court‘s conclusion that evidence obtained through warrantless, consensual participant recording of a conversation in a home or automobile is not admissible in court. Although the court ties its rationale to the private settings (home and automobile) involved in these cases, I would not limit a Montana citizen‘s reasonable expectation of conversational privacy to “private settings.” ¶58 ¶59 In my view, a society in which individuals conversing outside a private setting such as their home must anticipate the risk of state instigated, warrantless monitoring is not the “free society” envisioned by the framers of our Constitution. ¶61 I also note that Justice Rice‘s dissent castigates the Court for framing the issue too broadly given that “the facts here do not involve situations where police did not have particularized suspicion and probable cause.” ¶ 11. One wonders why, if the police had probable cause, they did not simply apply for a warrant, as the constitution requires. There is a theme throughout the dissent that someone who chooses to engage in discourse about criminal endeavors, has no expectation of privacy. (the illegal nature of the call) justify the means (monitoring). ¶62 The dissent endeavors to distinguish illegal commercial discourse from private socializing; suggesting that warrantless consensual monitoring will only be allowed in illegal commercial transactions. What if the transaction were not “commercial,” that the defendant was delivering drugs free of charge. Would the dissent‘s constitutional analysis suddenly transform, cloaking the defendant with an expectation of privacy. ¶63 The dissent believes that the Court has strayed from the facts of this case and has stated the issues too broadly. The Court‘s societal approach is more than justified however when one looks at the breadth of the dissent‘s rationale. The dissent reasons that “a conversation, unlike a home, is not a shared space. Once the conversation commences, it becomes the individual property of each participant. . . . Neither participant can prevent the other (absent privilege) from sharing or repeating the conversation because each has full control over it.” ¶ 25. Thus despite the dissent‘s protestations that those of us engaged in private conversations about legitimate matters need not be concerned, in fact under the dissent‘s reasoning, no one engaged in a conversation, wherever the setting, whatever the purpose, has an expectation of privacy since the other participant (with full control) can, consent to third-party monitoring or recording. The dissent reasons that a person conversing in a private setting for non commercial purposes, for example at a family Thanksgiving dinner, or even someone engaging in illegal activity (e.g., smoking pot at a friend‘s house) will have more of an ¶64 The dissent‘s reliance on our decision in State v. Brown, 232 Mont. 1, 755 P.2d 1364 (1988), and the United States Supreme Court‘s decision in United States v. White, 401 U.S. 745 (1971), illustrate this point; that is, irrespective of the setting, any expectation of privacy in a conversation dissolves in the face of consent by the other party. The Supreme Court “has held that however strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the ¶65 Justice Cotter suggests that Justice Rice‘s rationale would apply not just to illegal commercial transactions, but to all commercial transactions. Although I agree, I think the dissent‘s rationale is even broader than Justice Cotter suggests. It applies to all conversations, commercial or otherwise. Under the dissent‘s reliance on Brown, as long as one of the participants with “full control” consents, third-party recording or monitoring simply is not a search under the constitution. It matters not whether the monitoring occurs in the home or on main street USA. Law enforcement, without the necessity of showing probable cause or obtaining a warrant, can use this tool at their whim. ¶66 Justice Rice is of the opinion that a society in which individuals feel that they can speak freely with one another confident that the government cannot monitor the conversation without a warrant would result in anarchy. He argues that “freedom means the right to pursue one‘s own life within the confines of the solemn principles upon which the democracy was founded.” In my view, one of the most “solemn” of the principles upon which our democracy flourishes is the ¶67 Anarchy is the absence of any political authority; the theory that all forms of government are oppressive and should be abolished. American Heritage Dictionary 3rd Ed. Justice Rice‘s characterization to the contrary, I am not advocating anarchy. Quite the opposite; I‘m arguing that our constitutional form of government, the ¶68 In this day and age of high-tech surveillance, warrantless monitoring of conversations between individuals does not bode well for a free and democratic society. /S/ W. WILLIAM LEAPHART Justice James C. Nelson joins the special concurrence of Justice Leaphart. /S/ JAMES C. NELSON ¶69 I concur with the Court‘s determination that Goetz and Hamper possessed a reasonable expectation of privacy in their conversations that took place in their own homes. I part ways with the Court‘s conclusion, however, that Hamper similarly enjoyed a reasonable expectation of privacy in his conversation with White that took place inside White‘s vehicle. ¶70 State v. Brown, 232 Mont. 1, 755 P.2d 1364 (1988), plainly controls our decision on whether Hamper had a reasonable expectation of privacy in the conversation that took place in White‘s vehicle. This Court held that Brown had no reasonable expectation of privacy in his conversation with an informant in “a vehicle parked in a bar parking lot.” Brown, 232 Mont. at 3, 755 P.2d at 1366. We likewise should conclude that Hamper had no reasonable expectation of privacy in his conversation with White in White‘s vehicle as there is no meaningful distinction between the facts at issue here and the facts at issue in Brown. ¶71 This Court discards Brown, along with our seemingly contradictory holding in State v. Solis, 214 Mont. 310, 320, 693 P.2d 518, 523 (1984), however, in light of their ¶72 The Court‘s discarding of Brown represents an unnecessary departure from the principle of stare decisis. We have held that precedent should be overruled only if it is manifestly wrong. Beckman v. Butte-Silver Bow County, 2000 MT 112, ¶ 20, 299 Mont. 389, ¶ 20, 1 P.3d 348, ¶ 20. This Court squarely has affirmed the analysis in Brown on several occasions, including State v. Staat, 251 Mont. 1, 7-8, 822 P.2d 643, 647 (1991), and State v. Belgarde, 244 Mont. 500, 504, 798 P.2d 539, 542 (1990). Nowhere in these decisions does the Court question the continuing vitality of Brown‘s analysis. ¶73 I cannot agree under these circumstances that the result in Brown is so manifestly wrong that it should be discarded entirely. The Court cites State v. Hardaway, 2001 MT 252, ¶¶ 51, 307 Mont. 139, ¶¶ 51, 36 P.3d 900, ¶ 51, to justify its discarding of Brown and Solis. ¶ 23. Hardaway, in turn, cites Solis with approval. Hardaway, ¶ 51. ¶74 For better, or worse, Solis and Brown provide our precedent on the very issue before the Court—whether warrantless electronic monitoring and recording of a party‘s one-on-one conversations with a confidential informant violates the party‘s reasonable expectation of privacy. Rather than discarding them to the rubbish heap, I would reconcile the holdings in Solis and Brown by limiting them to the facts that were before those courts. I would read Solis to hold that a person may have a reasonable expectation of privacy in a conversation that takes place in a “small, enclosed office” that ostensibly remains under the exclusive control of his confidant. Solis, 214 Mont. at 314, 693 P.2d at 520. Solis reasonably could have assumed that the pawnbroker had exclusive control over his own “small, enclosed office.” By contrast, I would read Brown to hold that a person may not have a reasonable expectation of privacy in a conversation that takes place in a vehicle or motel that the person reasonably could not assume was under the exclusive control of his confidant. Brown, 232 Mont. at 3, 755 P.2d at 1366. Both the vehicle and the motel room at issue in Brown may have been subject to third-party ownership and a variety of different users, any of whom could subject a conversation to electronic monitoring. ¶75 I would conclude pursuant to our holding in Solis that Goetz and Hamper possessed reasonable expectations of privacy in the conversations with the informants that took place in their homes. Hamper and Goetz reasonably could have expected as much privacy in their own homes as Solis could have expected in the private office of his ¶76 Other courts likewise have distinguished a warrantless search of a person‘s home from a warrantless search of a person‘s automobile. The Supreme Court of West Virginia recently held that warrantless consensual electronic monitoring of face-to-face conversations in a defendant‘s home represents an unconstitutional invasion of privacy. The court overruled its earlier conflicting decision on the basis that the court had “assumed, without discussion, that no difference existed between a person‘s reasonable expectations of privacy in his/her home, versus the privacy a person expects outside the home.” State v. Mullens, 650 S.E.2d 169, 189 (W.Va. 2007). The court supported its assertion with its earlier statement in State v. Peacher, 280 S.E.2d 559, 578 (W.Va. 1981), that “‘[a] person‘s expectation of privacy in his automobile is less than that which he would have in his home[.]‘” Mullens, 650 S.E.2d at 189. The United States Supreme Court similarly has stated that “one‘s expectation of privacy in an automobile and of” ¶77 For these reasons, I join the Court‘s opinion with respect to its decision that Hamper and Goetz possessed reasonable expectations of privacy in their conversations with the informants that took place in their homes. For these same reasons, I dissent from the Court‘s opinion with respect to its decision that Hamper enjoyed a reasonable expectation of privacy in his conversation with White that took place inside White‘s vehicle. /S/ BRIAN MORRIS ¶78 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. We find no violation of the Fourth Amendment here. On Lee v. United States, 343 U.S. 747, 754, 72 S. Ct. 967, 972 (1952). ¶79 The Court today makes the precise error with regard to the ¶80 Today the Court overrules the state and federal precedent we have long followed and strongly re-endorsed, and upon which law enforcement in this state has relied for twenty years. The Court justifies its decision to overturn this precedent by characterizing our resolution in Solis as non-controlling and our decision in Brown as “merely parallel[ing] federal jurisprudence . . . and fail[ing] to properly analyze the greater rights guaranteed by ¶81 First, while I agree that Solis is not “controlling precedent,” Opinion, ¶ 24, I submit that the fact-grounded reasoning of the plurality opinion in Solis is precisely the correct analysis to be employed, and that the Solis plurality reached the correct decision ¶82 Second, the Court‘s contention that our decision in Brown failed to properly analyze the greater rights guaranteed by the ¶83 Critically, the Brown court concluded that, under the ¶84 It is true that Brown relied upon the United State Supreme Court case of White, a case which offered a very practical and common sense approach to the same issue we face today, and we should be wary of abandoning the well established and practical White decision by overruling Brown merely because Brown followed federal jurisprudence. In White the High Court emphasized a twentieth century “doctrinal” Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter‘s Fourth Amendment rights. Hoffa v. United States, 385 U.S., at 300-03. For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, supra. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant‘s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks. White, 401 U.S. at 751, 91 S. Ct. at 1125-26 (emphasis added). The Brown court noted that, while White was a four justice plurality opinion, seventeen years had passed since the decision, the Supreme Court had since endorsed the holding in U.S. v. Caceres, 440 U.S. 741, 99 S. Ct. 1465 (1979), and it had since been applied in the federal circuits. Brown, 232 Mont. at 8-9, 755 P.2d at 1369-70. Thus, our Court adopted White‘s strong, practical reasoning and we should not discard it now. ¶85 Moreover, the Court ignores the fact that Brown has been specifically and repeatedly reaffirmed by this Court. In fact, in Belgarde, when we again entertained an argument that warrantless consensual monitoring violated the ¶86 Having overruled Brown and dismissed Solis entirely, the Court then flits to another analysis in order to “examine the issue before us anew, applying more current and consistent interpretations of ¶87 After setting forth briefly the facts in the background section of the Opinion, ¶¶ 4-8, the Court barely mentions them again during the remainder of the Opinion. An Q. It‘s the State‘s contention that there‘s no need for particularized suspicion or probable cause. In fact, as I understand it, the State doesn‘t even believe that there is any necessity that the cops believe that a crime was, is, or is about to be committed. They can run somebody with a body wire into somebody‘s home at the cop‘s discretion. A. Because there is no search as this Court held in Brown – Q. Well, isn‘t that true? A. Well, I think, I think your – the question, with all respect, is phrased too broadly. Q. Well, why is it phrased too broadly? If, if this is completely discretionary with the cops, they can send someone with a body wire into someone‘s home to gather evidence. They can send somebody into a person‘s home just to snoop. They can send somebody into a home to gather information that might be used in a future prosecution or no prosecution at all. It‘s completely discretionary with the police. Correct? A. No. State‘s counsel was correct. These questions were indeed phrased too broadly, demanding answers from counsel for scenarios not at issue. ¶88 The facts of this case do not involve the exercise of “complete discretion” by police to wire someone “just to snoop” or “to gather information that might be used” or not used at all. The facts here do not involve situations where police did not have particularized suspicion and probable cause. Even before wiring the informants, police had probable cause to believe that both defendants had already committed the crime of ¶89 The facts are critical, and this case should be decided on its facts. As the Court recites, “whether a person has knowingly exposed something to the public and, consequently, surrendered his or her privacy protections [is determined] by looking at the particular facts of the case.” Opinion, ¶ 29. See State v. Dunn, 2007 MT 296, ¶ 13, 340 Mont. 31, 13, 172 P.3d 110, ¶ 13 (explaining that when “ascertaining if a person has a legitimate expectation of privacy, we look to the circumstances . . . .”); Scheetz, 286 Mont. at 48, 950 P.2d at 726 (stating that we look to “various factors”); State v. Siegal, 281 Mont. 250, 273-74, 934 P.2d 176, 190 (1997) (detailing the extensive measures taken by the defendant to ensure his privacy). ¶90 Although the Court gives “lip service” to the necessity of analyzing the facts, it largely fails to do so. For example, paragraphs 30 and 37 contain the critical holdings that the Defendants held an expectation of privacy that society accepts as reasonable. However, the Court neglects to mention the central factual issue of this case: the consensual electronic monitoring of a drug deal by police. Instead, and without considering the nature or purpose of the conversations, the Court issues the sweeping proposition that there is an expectation of privacy in “face-to-face conversations” held in ¶91 This was a commercial transaction. In each of the two cases before us, the seller, for the purpose of making a financial profit, offered and then sold a product to a buyer. But for the seller‘s financial motive, and the buyer‘s assurance of payment, these parties would not have met at all. It was the business deal, and only the business deal, which brought them together. Goetz was selling methamphetamine—Hamper, marijuana. ¶92 As in the typical commercial transaction, the sellers here offered their product to members of the public—they intentionally exposed and sold their product to customers who were non-confidants. The length of each transaction is reflective of its impersonal and commercial nature as each lasted only moments—similar to other retail purchases. These meetings were not social occasions between friends or family. The exchange of product and cash was made and the parties immediately went their own way, because the only purpose of their meeting—the sale—was completed. Thus, in these transactions, the defendants first “knowingly exposed” their business by offering to sell and then exposed their product during the actual exchange to someone who was not a confidant to them. See Scheetz, 286 Mont. at 53, 950 P.2d at 726-27 (explaining that “[w]hat a person ¶93 The place of the transaction is also a relevant fact, though not necessarily determinative. See Siegal, 281 Mont. at 260, 934 P.2d at 181 (stating that what a person knowingly exposes “even in his own home or office” is not considered private). Goetz invited Trusler, described by the District Court as a “mere visitor,” into his home on Main Street and there conducted the brief sales transaction. Hamper met Ms. White first in a parking lot on Main Street, where he got into her car for the brief conversation and sale. For the second sale, the District Court found that White was likewise a “mere visitor” in Hamper‘s home where the brief sales exchange occurred. ¶94 The Court‘s analysis wholly ignores the specifics of these circumstances and it is clear that the Court‘s decision is significantly disconnected from the factual predicate. In fact, this disconnect leads the Court to restate the issue on appeal in a generic form as: “whether society is willing to recognize an individual‘s subjective expectation that a one-on-one conversation conducted in a private setting is not being surreptitiously electronically monitored and recorded.” Opinion, ¶ 31. Accordingly, the Court only considers whether there exists a reasonable expectation of privacy in “a personal conversation held in a private setting[.]” Opinion, ¶ 31. This statement, and others in the opinion, is so broad that it would apply as readily to governmental recording of a conversation among friends or relatives socially gathered around the living room, as to the facts of this case. Indeed, who would disagree that society reasonably expects the ¶95 The law, however, does make such distinctions. Commercial transactions made with the public are not the same as social conversations among friends in the living room. Criminal enterprises are not the same as family Thanksgiving dinners. We should recall what Chief Justice Earl Warren wrote about the sale of illegal drugs out of a home. He too realized that these were “commercial” transactions which alter the privacy expectation: The fact that the undercover agent entered petitioner‘s home does not compel a different conclusion. Without question, the home is accorded the full range of Fourth Amendment protections. See Amos v. United States, 255 U.S. 313 (1921); Harris v. United States, 331 U.S. 145, 151, n. 15 (1947). But when, 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 premises for the very purposes contemplated by the occupant. Lewis v. United States, 385 U.S. 206, 211, 87 S. Ct. 424, 427 (1966) (emphasis added). Thus, it is not merely the place, but the circumstances and character of a meeting—i.e., all the facts—which are critical to the assessment of the expectation of privacy. We The Fourth Amendment protects against governmental intrusion upon “the sanctity of a man‘s home and the privacies of life.” Boyd v. United States, 116 U.S. 616, 630. However, the occupant can break the seal of sanctity and waive his right to privacy in the premises. Plainly he does this to the extent that he opens his home to the transaction of business and invites anyone willing to enter to come in to trade with him. Lewis, 385 U.S. at 213, 87 S. Ct. at 428 (J. Brennan, concurring). ¶96 The public and commercial nature of the criminal enterprise at issue here—the sale of illegal drugs to strangers—separates this case from other kinds of crimes, even drug-related, and further illustrates the necessity of a close factual analysis. For instance, a person joining others at a friend‘s house to smoke pot, though an illegal act, would have a different privacy expectation than a person who undertakes the risk of meeting with a member of the public to consummate a drug transaction. The dynamics of these situations are clearly different, and it is the different dynamics which instruct the analysis under the first two prongs of the unreasonable search and seizure test—(1) actual expectation of privacy and (2) society‘s willingness to accept the expectation as objectively reasonable. A person simply cannot have the same expectation of privacy when he knowingly exposes illegal drugs for the commercial purpose of selling them to a non-confidant as he does while engaged in private socializing with friends and family. Indeed, as shown below, the Defendants here expressed as much. I feel that with “oral communications” you are not 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 the 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. Transcript, p. 1685. And Delegate Dahood added: Yes, let me answer that question. 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 traces. The logic and reason is this: all personal rights, constitutional or otherwise, may be waived. Lady Transcript, p. 1686. ¶98 To be sure, the delegates, as quoted in Siegal, 281 Mont. at 276-77, 934 P.2d at 192, condemned “wiretaps,” “eavesdropping,” “electronic surveillance” and other forms of nonconsensual monitoring, yet at the same time spoke approvingly of a party consenting to the monitoring of a telephonic conversation wherein the other party had, under the facts, waived the right to privacy in the communication. The case before us illustrates a similar scenario—consent by one party and facts illustrating no reasonable expectation of privacy on part of the other in the transaction. The delegates clearly distinguished between these two different scenarios, but the Court does not. Neither does the Court acknowledge the delegates’ specific views in this regard. ¶99 Consequently, the Court finds a privacy expectation in what the delegates clearly stated was a non-private situation. The Court does not explain how a privacy interest springs forth from a non-private commercial transaction. In paragraph 35, the Court appears to distinguish between the risk that a conversation will be repeated and the risk that the same conversation will be consensually electronically monitored by government agents. However, if this is the Court‘s distinction, it is without a constitutional difference because society would not consider a privacy interest in a non-private commercial drug transaction to be reasonable. Indeed, our constitutional convention delegates did not, and neither did some of the greatest legal minds of our time, as quoted herein. Accordingly, I ¶100 However, even assuming arguendo that a search did occur, the Court‘s analysis of the “nature of the State‘s intrusion” again further ignores the facts of the present case and mischaracterizes the role of consent in our search and seizure jurisprudence. Most notably, while the Court overrules Brown on the basis that it “merely paralleled federal jurisprudence,” in its discussion of “consent” the Court opts to “use some federal Fourth Amendment analysis in addressing issues under the Montana Constitution” and relies on the Supreme Court case of Georgia v. Randolph. Opinion, ¶ 42. The Court‘s reliance on federal jurisprudence is inconsistent at best and an unfortunate consequence is the twisting of the holding in Randolph to fit the issue at hand. ¶101 Randolph involved the search of a home despite one of the co-occupant‘s express refusal to consent to the search. The United States Supreme Court concluded that the refusal of one occupant to consent trumps the consent of a co-occupant and the police may not search the shared quarters. Randolph, 547 U.S. at 120, 126 S. Ct. at 1526. The Randolph situation cannot fairly be likened to the instant case. As the Court correctly deduces, the item searched here is the conversation. Opinion, ¶ 45. However, a conversation, unlike a home, is not a shared space. Once the conversation commences, it becomes the individual property of each participant. See Brown, 232 Mont at 10, 755 P.2d at 1370 (stating that “both participants [have] an equal interest in the conversation . . . .”). Neither participant can prevent the other (absent privilege) from sharing or ¶102 However, by concluding that both parties to an electronically monitored conversation must consent to the monitoring, the Court fails to acknowledge the true distinction at work here: that consensual monitoring is different than “eavesdropping”—the monitoring of a conversation by the government without the consent of any party. The failure to honor the informant‘s consent lumps consensual monitoring with eavesdropping for all constitutional purposes, because the same requirements are imposed for either, even though they are, according to longstanding jurisprudence, clearly constitutionally distinct. In sum, the Court renders the party‘s “consent” null, giving it no effect whatsoever. “[T]here is a substantial distinction between ‘[revelations] to the Government by a party to conversations with the defendant’ and eavesdropping on conversations without the knowledge or consent of either party to it.” United States v. Karo, 468 U.S. 705, 716 n.4, 104 S. Ct. 3296, 3304 n.4 (1984). (Bracket in original.) We explain this in Brown: “It is important to stress that this holding does not open the floodgates to create an Orwellian society and that the individual is not left without protections against inappropriate electronic eavesdropping.” Brown, 232 Mont. at 11, 755 P.2d at 1371. ¶103 The Court‘s conclusion also ignores the High Court‘s guidance that “[t]he constant element in assessing Fourth Amendment reasonableness in the consent cases . . . is the great significance given to widely shared social expectations[.]” Randolph, 547 US. at 111, 126 S. Ct. at 1521 (emphasis added). The widely shared social expectation, as this Court accepts in paragraph 35, is that each person assumes the risk that a participant to the conversation may turn around and repeat the conversation. More importantly, we share the social expectation that we assume a person is who he purports to be. See Brown, 232 Mont at 11, 755 P.2d at 1371 (explaining that “mistaken trust” is not a defense). However, the Court leaves these social expectations behind and forces the Randolph rationale onto a highly distinguishable situation. ¶104 Even assuming that the Randolph rationale is appropriately used here, the Court ignores two critical points of that decision: (1) neither defendant “refused” consent here, as in Randolph, and (2) the Randolph Court expressly stated that the police need not “take affirmative steps to find a potentially objecting co-tenant before acting on the permission they [have] already received.” Randolph, 547 U.S. at 122, 126 S. Ct. at 1527. The Court today reads into Randolph the requirement that the police give each person present an “opportunity to object to the search.” Opinion, ¶ 45.2 However, the Supreme Court expressly refused to require police to take this type of affirmative action, stating: “There is no ready reason to believe that efforts to invite a refusal would make a difference in many cases, whereas every co-tenant consent case would turn into a test about the adequacy of the police‘s efforts to consult with a potential objector.” Randolph, 547 U.S. at 122, 126 S. Ct. at 1527-28. The Court conveniently ignores these ¶105 Moreover, by likening the instant case to Randolph the Court ends its analysis of the nature of the state‘s intrusion and fails to consider other pertinent details. First and foremost, the recording did not produce any evidence beyond what the informant herself could have relayed. This fact led the District Court to conclude that the government action here was “not excessively intrusive.” The facts clearly distinguish the monitoring here from the “sense enhancing” technologies of the type we addressed in Siegal, which we noted could be used to “surreptitiously monitor the heat signatures generated by activities conducted within the confines of [Montanans‘] private homes and enclosed structures for the purpose of drawing inferences about the legality of such activities.” Siegal, 281 Mont. at 274, 934 P.2d at 190. No such capture of private, unexposed information about the defendants was accomplished here. Nothing was recorded that the defendants did not consciously state, and which the informants could not relate as having heard firsthand. ¶106 It could be argued that consensual monitoring enhances the senses of police because officers can hear a conversation which they otherwise could not. However, this distinction is not one of constitutional dimension, because it relates only to the mode by which the information is received, not the content of that information. Whether the informant testifies, or the officer testifies with the tape, the evidentiary potential is the same. Thus, it is clear that defendants’ constitutional privacy claim really boils down to trial strategy: they do not want the daunting task of fighting against the pesky Stripped to its essentials, petitioner‘s argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent‘s memory, or to challenge the agent‘s credibility without being beset by corroborating evidence that is not susceptible of impeachment. For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory. We think the risk that petitioner took in offering a bribe to Davis fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording. Lopez v. United States, 373 U.S. 427, 439, 83 S. Ct. 1381, 1388 (1963) (emphasis added). ¶107 It is true that Justice Harlan later parted ways with the United States Supreme Court on the issue of warrantless consensual monitoring in White. His dissent in White often serves as fodder for arguments criticizing the practice, and, indeed, this Court quoted it in State v. Brackman, 178 Mont. 105, 115, 582 P.2d 1216, 1221 (1978), overruled, Brown, 232 Mont. at 8, 755 P.2d at 1369. Given that citation, and further, that Justice Harlan‘s concurrence in Katz, 389 U.S. at 361, 88 S. Ct. at 516, is generally regarded as the source of our Court‘s privacy jurisprudence, his approach in White to the issue before us is worth noting. In his White dissent, Justice Harlan gave the following test or construct for analyzing this technological issue: 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. White, 401 U.S. at 786, 91 S. Ct. at 1143 (J. Harlan, dissenting). [T]he real deal is with this sh**, they are all over. The Feds are f***ing everywhere in this town. The DTF, the FBI, there‘s reason to be super-ultra-f***ing-freaked! ¶109 I would suggest that the “likely extent of the impact” of consensual monitoring upon the “sense of security” of people commercially marketing illegal drugs to the public in an environment of active law enforcement is, respectfully, very minimal. This activity is a highly risky venture, and, indeed, one engaging in it truly has good reason to be “freaked” because, consistent with Goetz‘s knowledge of the risk, law enforcement is engaged. Thus, the likely extent of the impact of consensual monitoring upon the defendants’ “sense of security,” with or without a warrant, is not reasonably significant. ¶110 Lastly, Justice Harlan‘s construct requires a balancing of these first two factors against the “utility of the conduct as a technique of law enforcement.” On this point, few would disagree that, as a technology, this tool is of great utility to law enforcement. In a case involving a wired informant, we acknowledged that “[t]he use of informants has Counsel: What I am suggesting is that the heightened standards of particularized suspicion that the government would be burdened with if particularized suspicion were imposed absent this Court finding a search would really jeopardize our ability to use informants effectively and would basically give people a license to engage in criminal businesses in their homes. That‘s what I‘m suggesting. Justice: Counsel, let me ask a broader question. I think all of us have become accustomed to the notion of, through television and the movies and books about police conduct, police investigation, . . . the use of criminal informants, confidential informants and the use of body wires. But often times we see [in] those, that the defendants are bad guys, they‘re mafia, they‘re organized crime, there‘s murders involved. Do we really need to allow this technology to come into play, allow this intrusion, when we‘re talking about a fifty dollar pot buy? Counsel: Well, I can see where people would disagree about the government doing that, but the fact of the matter is that this involves the criminal sale of dangerous drugs that the people‘s representatives have determined to be illegal. And I don‘t think the Court should get into determining whether one interest is stronger, whether you‘re dealing with Mr. Goetz involving methamphetamine or Mr. Hamper involving marijuana. [Emphasis added.] ¶111 Truly, it is a different world today, not only in terms of technological advances, but also in the expectation of the use of technology. I would submit, as the questioning italicized above likewise indicates, that our citizens, especially young people in today‘s society who have been raised in the age of Law and Order and CSI, would think it unusual that a drug dealer would have a reasonable expectation that his conversations during a drug sale to a non-confidant were not being consensually monitored. The drug ¶112 Moreover, monitoring provides protection for the informant, who risks physical harm to work with police, and provides for accurate recording and preservation of the evidence of the transaction. Thus, for purposes of Justice Harlan‘s construct, the utility of this technology is very high in the furtherance of the state‘s compelling state interest in “enforc[ing] its criminal laws for the benefit and protection” of the citizens. State ex rel Zander v. Dist. Ct., 180 Mont. 548, 556, 591 P.2d 656, 660 (1979). The weighing of Justice Harlan‘s factors therefore results in a conclusion that the utility of the “particular practice” here clearly outweighs the impact upon the defendant‘s sense of security. ¶113 This case has little to do with Montanans continuing to “cherish the privacy” of their homes, Opinion, ¶ 35, and even less about “one-on-one conversation[s] conducted in a private setting,” Opinion, ¶ 31 (emphasis added), simply because, in view of the facts, the setting here should not be considered private. A proper focus on the facts reveals that the defendants were engaged in commercial transactions with non-confidants, and we have been careful to explain that our privacy holdings do not necessarily apply to conduct engaged in “for commercial purposes.” Gryczan v. State, 283 Mont. 433, 455-56, 942 P.2d 112, 126 (1997). ¶114 Rather, this case is about avoiding the truth—the defendants’ raising of a privacy claim to keep the truth, that is, the recording of their own words, from the jury and thereby gaining a tactical advantage by escaping the strong evidence of their crimes. ¶115 And I would not, either. I dissent. ¶116 In response to the concurrences by Justice Cotter and Justice Leaphart, I appreciate that Justice Cotter‘s concurrence at least recognizes the commercial nature of the facts, something the Court‘s opinion does not do. However, I must disagree with her suggestion, made also by Justice Leaphart‘s concurrence, that the analysis herein “is ¶117 I also disagree with Justice Cotter‘s statement that the analysis would “gut any expectation of privacy one might reasonably have in his commercial conversation[.]” J. Cotter, concurrence ¶ 125. Again, we should be careful about making broad statements disconnected from the facts and the law. In addition to the commercial nature of the transaction, there are many additional facts, varying in each case, which our law requires to be considered. For purposes of brevity, no doubt, Justice Cotter‘s concurrence does not consider the additional facts about this transaction. However, the facts are critical under our law. For example, is the expectation of privacy in a commercial transaction which takes place at a crowded garage sale the same as one consummated in a closed office? Unless we are going to decide cases without regard to the “particular facts of the ¶118 Justice Leaphart‘s concurrence advocates that agents of the state should not monitor any conversation without a warrant, “no matter what the setting,” even those conversations which occur “outside a private setting.” J. Leaphart, concurrence ¶¶ 57, 59. Under this approach, all conversations, wherever and however conducted, would be blanketed with a privacy right. Courts would no longer need to consider the “particular facts of the case.” This may be what the author desires, but is categorically not a principle of American law. No jurisprudential authority can be cited for it. Although the concurrence cites Justice Harlan‘s dissent in White, Justice Harlan was clearly not advocating for the extreme position taken by the concurrence, asserted to be necessary for a “free society.” J. Leaphart, concurrence ¶ 58. ¶119 Such notions of a “free society” are not consistent with the free society established by the constitutional history of this country and state. As explained herein, this dissent joins the position taken by the U.S. Supreme Court on electronic monitoring under the federal constitution. This Court likewise interpreted the A law enforcement officer should be permitted to intercept the contents of a private communication with the consent of one of the parties to the communication without a court order, provided that the officer intercepts and uses the communication in the proper performance of the officer‘s official duties. ¶121 Upon the collective judgment of the U.S. Supreme Court, the delegates to the 1972 Montana Constitutional Convention, the justices of the Montana Supreme Court for the past twenty years, and the high courts of our sister states, I would affirm the District Court. /S/ JIM RICE ¶122 I emphatically agree with the dissent of Justice Rice. The only real world result of the Court‘s decision today will be to increase the use of a perpetrator‘s home for all types of criminal transactions. ¶123 For the sake of safety, law enforcement might opt to continue equipping officers and citizen informants with electronic transmitting devices when they undertake the dangerous task of securing evidence against drug dealers, white-slavers and other offenders, who naturally decline to conduct their flagitious business out in the open. It is possible that such recordings could be used in redirect examination. U.S. v. Burns, 432 F.3d 856, 860 (8th Cir. 2005). And, in the event a criminal defendant chooses to testify and contradicts the testimony of a State‘s witness to a criminal transaction, a recording of what actually happened might come in handy for impeachment purposes. See e.g. U.S. v. Leon, 468 U.S. 897, 910, 104 S. Ct. 3405, 3414 (1984); Walder v. U.S., 347 U.S. 62, 65, 74 S. Ct. 354, 356 (1954); Harris v. New York, 401 U.S. 222, 226, 91 S. Ct. 643, 646 (1971). /S/ JOHN WARNER Justice Patricia O. Cotter concurs. ¶124 The Dissent, which stands for the proposition that there is no expectation of privacy in a commercial transaction where a product is sold to a non-confidant (Dissent, ¶125 While the Dissent complains that the Court‘s decision is unnecessarily broad and sweeping, so too is its own reach. If the Dissent‘s rationale is intended to apply equally to the criminal and the law-abiding alike—which I submit, it must—then it stands for the proposition that virtually any commercial transaction may be surreptitiously recorded without a warrant and with only one party‘s consent, with the resulting recording being admissible in evidence against the speaker. It would, in essence, gut any expectation of privacy one might reasonably have in his commercial conversation, regardless of the lawfulness of the transaction. If, on the other hand, the analysis is intended to apply to only those transactions that are criminal in nature, as is repeatedly suggested throughout the Dissent (i.e., Dissent, ¶ 109, addressing the impact of such monitoring upon “people commercially marketing illegal drugs to the public . . . in a highly risky venture”; Dissent, ¶ 114, the Declaration of Rights was not intended “to be applied to such risky non-private behavior,” etc.), then it runs afoul of our duty to treat all persons the same before the law, without distinction for criminal/non-criminal behavior. See Opinion, ¶ 32. Respectfully, either result is unacceptable. ¶126 It bears repeating that the Court is not imposing an outright ban on electronic monitoring of conversations with the consent of only one participant. All we are saying is that there should be sufficient probable cause that a criminal enterprise is about to occur to support the issuance of a warrant allowing such monitoring. In my view, this is a far preferable alternative than an expansive rule which would permit the introduction /S/ PATRICIA COTTER Justice James C. Nelson joins in the Concurrence of Justice Patricia O. Cotter. /S/ JAMES C. NELSONDISCUSSION
I. Solis and Brown
II. Analysis Under Current Montana Constitutional Search and Seizure and Right To Privacy Jurisprudence
A. Did the Defendants Have an Actual Subjective Expectation of Privacy?
B. Is Society Willing to Recognize the Defendants’ Expectations of Privacy as Reasonable?
C. Nature of the State‘s Intrusion
1. Consent
2. Particularized Suspicion Standard
III. Conclusion
Conclusion
Notes
Examples from the dissent: “without considering the nature and purpose [drug deal] of the conversation.” ¶ 13; “A person simply cannot have the same expectation of privacy when he knowingly exposes illegal drugs for the commercial purpose of selling them to a non-confident as he does while engaged in private socializing with friends and family.” ¶ 19; “because society would not consider a privacy interest in a non-private commercial drug transaction to be reasonable.” ¶ 23; “The very idea that one engaged in the commercial sale of illegal drugs to a non-confidant must be given the ‘opportunity to object’ before police can monitor the parties’ conversation is a flight into the fanciful, perhaps the ludicrous.” ¶ 28 n.2; “There is not only no indication that the Declaration of Rights was intended to be applied to such risky, non-private behavior, but the debates demonstrate just the opposite.” ¶ 38.
Pursuant to“We now hold that warrantless consensual electronic monitoring of face-to-face conversations by the use of body wire transmitting device, performed by law enforcement officers while pursing their official duties, does not violate the right to be free of unreasonable searches and seizures nor the privacy section of the Montana Constitution.” Brown, 232 Mont. at 8, 755 P.2d at 1369.
The very idea that one engaged in the commercial sale of illegal drugs to a non-confidant must be given the “opportunity to object” before police can monitor the parties’ conversation is a flight into the fanciful, perhaps the ludicrous.