State v. Hamper

MONTANA, OF STATE Respondent, Plaintiff and v. GOETZ, THADDEUS

MICHAEL Appellant. Defendant MONTANA, OF STATE Respondent, Plaintiff and HAMPER, PATRICK JOSEPH Appellant. Defendant Nos. 05-676 & 05-539. July 19, Argued 2006. and Submitted August Decided MT 296. Mont. 421. 191 P.3d 489. concurred, by JUSTICE NELSON. joined

JUSTICE COTTER (argued), County B. Ohman Gallatin Peter Appellants: For Bozeman; Goetz, Office, (argued), Brian K. Gallik Public Defender’s Baldwin, P.C., Bozeman. Gallik & McGrath, General; Attorney Hon. Mike Jim Respondent:

For General, (argued), Attorneys Mark Mattioli Assistant Wheelis and Lambert, County Attorney; Deputy Todd Helena; Marty Whipple, Attorney, County Bozeman. Opinion JUSTICE GRAYdelivered the of the Court.

CHIEF (Goetz) Hamper Joseph Thaddeus Goetz Patrick Michael Defendants) (collectively, appeal judgments from the (Hamper) Corut, County, Eighteenth Judicial Gallatin on entered District distribution felony their for respective convictions criminal dangerous drugs. Specifically, challenge the District Defendants to We reverse and suppress Court’s denial their motions evidence. remand. following We address issue:

¶2 II, 10 and rights Were the Defendants’ under Article Sections ¶3 by the warrantless electronic the Montana Constitution violated recording and of their one-on-one conversations with monitoring informants, notwithstanding the confidential informants’ confidential monitoring? to the consent

BACKGROUND in these primary legal of the issue raised two light identical and argument the cases for oral appeals, purposes we consolidated procedural forth the relevant factual and following resolution. The sets cases. background of individual

State v. Goetz (Collar), with the May 2004, Matt Collar detective On (Task Force), contact with River Task Force made Drug Missouri (Trusler), Suzanne Trusler who previously agreed had to act aas confidential informant for Task Force. Trusler informed Collar she had to arranged purchase gram methamphetamine from Goetz. (Swandal) Trusler met then with Collar and Detective Travis Swandal and them body allowed to outfit her with a wire receiving device. The detectives did not seek obtain a search warrant authorizing use of body gave wire. Collar Trusler purchase which to $200 drug. Trusler then went Goetz’s residence and purchased methamphetamine from him. The conversation between Goetz and during Trusler the drug transaction was monitored and recorded body via of, detectives Trusler’s wire. was Goetz unaware and did to, monitoring recording consent the electronic of his conversation with Trusler. (State) The State of subsequently charged Montana Goetz felony

information with the offense of criminal distribution of dangerous drugs. information, In the the State listed Collar and Swandal as witnesses called to be at trial. State advised also Goetz that it intended to introduce the tape recording of his and Trusler’s conversation, transcript and a recording, into evidence trial. Goetz moved the District Court to suppress evidence derived from electronic conversation on the basis that it rights violated his be free from II, guaranteed by unreasonable searches and seizures as Article Sections 10 and 11 of the Montana Constitution. The District hearing held a and subsequently suppress. denied the motion to Goetz then pled guilty charged offense, expressly reserving his appeal the District suppression Court’s denial of his motion.

State v. Hamper 4, 2004, On August Chrystal Collar made contact with White (White), agreed as a previously who had to act confidential informant with the Task Force. White informed Collar that she had arranged to purchase ounce of marijuana Hamper. 1/8 White met with $50 Collar and Swandal and allowed the her detectives to outfit with a body receiving Collar provided purchase wire device. White with $50 the marijuana. Hamper parking purchased White met in a lot and marijuana drug place from him. The transaction took in White’s Hamper vehicle and conversation between White and was body via monitored and recorded detectives White’s wire. The him following day, again White contacted Collar and informed she had marijuana arranged purchase Hamper to another 1/8ounce of from them to again and and allowed met with Collar Swandal White $50. Hamper’s to residence body wire. White then went outfit her with him. the conversation between marijuana Again, purchased and electronically Hamper regarding drug transaction was White and The body via White’s wire. and recorded detectives monitored authorizing the warrants did not or obtain search detectives seek was recording Hamper conversation. monitoring electronic either monitoring and of, to, electronic and did not consent unaware recording of either conversation. two charged Hamper by information with subsequently The State The State felony dangerous drugs. distribution

counts of criminal trial, its intent to call Collar and Swandal witnesses indicated to of the two recordings and also indicated its intent introduce recordings-into transcripts of those evidence conversations-and Hamper suppress trial. moved to evidence obtained via the electronic that it monitoring recording and two conversations on the basis unreasonable rights free from violated his to and to be II, 10 and 11 guaranteed by searches and seizures as Article Sections hearing Court and the Montana Constitution. District held a Hamper’s suppress. Hamper pled denied then subsequently motion charged offenses, reserving appeal guilty expressly his the denial of his motion. suppression

STANDARD OF REVIEW review a court’s of a criminal defendant’s ¶9 We district denial findings suppress motion evidence determine whether the court’s clearly of fact are erroneous and its interpretation application and 182, 8, Copelton, correct. State v. MT 333 Mont. ¶ law Here, dispute District parties do not only fact. findings Consequently, Court’s relevant we review correctly interpreted applied whether the court the law.

DISCUSSION II, Article rights the Defendants’ under Sections ¶10 Were by the and 11 of the Montana Constitution violated warrantless recording of their one-on-one monitoring electronic informants, notwithstanding confidential conversations with monitoring? informants’ consent the confidential primarily on State motions to relied suppress The Defendants’ (1984), Solis, P.2d in which this 214 Mont. electronic determined the warrantless of the defendant’s with conversations an undercover law enforcement rights II, officer violated the defendant’s Article under Sections 10 and Constitution, the 11 of Montana notwithstanding the undercover that, officer’s consent to monitoring. the The State countered under Brown, 1, v. (1988), State 232 Mont. P.2d the electronic monitoring of a people, conversation between two with the consent of them, one does subject not constitute a search to the warrant search requirement. recognized The District Court the conflict between Solis and

Brown, observation, and noted our in v.Hardaway, own State 2001MT 51, 139, 51, 900, 51, 307 Mont. of jurisprudential ¶ ¶ ¶ privacy through in law the inconsistencies cases from mid-1980s the early Determining required 1990s. stare application decisis Brown, the suppress. District Court denied the motions to It concluded the Defendants have a did not reasonable in privacy thus, their and, conversations with confidential informants electronic of the monitoring body conversations use of wire transmitting rights devices did violate the Defendants’ free or to from be unreasonable searches and seizures. The Defendants legal assert error. Amendment The Fourth to the United States Constitution and II,

Article Section 11 protect of Montana Constitution citizens against unreasonable searches seizures. Defendants do not that, dispute pursuant United Supreme jurisprudence, to States conversations, warrantless electronic of face-to-face conversation, party the consent of one to the does not constitute and, therefore, See e.g. search does violate the Fourth Amendment. (1971). White, They States v. 401 U.S. S. Ct. 1122 United assert, however, II, Article 10 and 11 of Montana Sections turn, greater privacy which, to in right Constitution afford citizens broader than provides protection the Fourth Amendment in situations involving private searches and seizures occurring settings. II, Article Constitution provides Section 10 Montana right of a free well-being “[t]he individual is essential compelling society infringed showing shall not be without the of a II, state interest.” Article Section 11 of Montana Constitution provides that people papers, secure in their homes and persons,

[t]he shall be seizures. effects unreasonable searches and No warrant any any thing seize shall without place, person search or or issue thing describing person to be searched or be place cause, supported by oath or seized, probable or without writing. affirmation reduced to II, II, conjunction 10 in with Article Section address Article Section

We specifically resolving a seizure issue that analyzing 11in search or 32; v. Hardaway, See State right e.g. implicates privacy. ¶ (overruled (1997) 176,184-85 250, 264-65, 934 Siegal, 281 Mont. P.2d 474, 19,970 19,291 Kuneff, MT Mont. ¶ part State 19). Furthermore, of the constitutional light “[i]n P.2d entitled, range we have held that the to which Montanans are lawfully may conducted under searches which be warrantless range of corresponding narrower than the Montana Constitution is lawfully pursuant federal searches that conducted Hardaway, Fourth Amendment.” 35.

I. Solis and Brown parties’ Given and the District Court’s understandable early privacy reliance in this case on Montana and search and seizure Brown, begin Solis a jurisprudence as set forth in and we with Solis, an employed discussion of those law enforcement cases. and, to pawnshop proprietor undercover officer act as a with consent, On videotaped pawnshop. officer’s certain events occasions, videotaped selling numerous Solis was merchandise-some of which stolen-to the undercover officer. The State apparently was at charged rely videotapes with theft intended trial on Solis and to testimony running taping from the officers machine rather any testimony than from the undercover officer who consented Mont, Solis, 312-13, videotaping. 214 at 693 P.2d at 519. appeal videotapes On from the trial court’s ofthe suppression to

testimony, right addressed whether the State violated Solis’s we II, First, 10 of under Article Section the Montana Constitution. privacy whether individual has determining we set forth the test for an (1) right privacy of as does the individual constitutionally protected (2) and, so, if subjective expectation privacy? an of have actual society willing privacy one which view expectation that Mont, 314,693 (citing Missoulian Solis, 214 at P.2d at 520 reasonable? Educ., 513,522, Mont. Regents of Higher Board 207 (1984)). an actual the defendant exhibited 967 We concluded with the his conversations expectation privacy holding small, pawnshop in a enclosed officewithin undercover officer and this only personal present, friend of the defendant which were no areas from reasonable because there was other Solis, individuals could have overheard the conversations. Mont, at 693 P.2d at On the versus electronic issue, monitoring we held that “in face-to-face encounters in a private setting, there ais reasonable monitoring hidden is not Mont, taking Solis, place.” at 693 P.2d at 522. We next proceeded question a compelling whether state justified infringing II, interest right on Solis’s under Article Section 10 of the Montana Constitution. We determined that compelling state interest exists where the enforcing state is its criminal laws for the citizens, benefit and protection especially its under the Solis circumstances where the had suspect engaged repeated activity thought to be criminal. Even when interest in compelling invading existed, however, individual’s required we procedural safeguards right attached the constitutional to be free from unreasonable searches and seizures must first met. In other words, “[t]he State was required probable show cause to support the Mont, Solis, 318-19, issuance of a search warrant.” 693 P.2d at 522. The having exigent trial court found no precluding circumstances law enforcement from a reasonable to seek opportunity a search warrant, we held that the warrantless ofthe defendant’s conversations with the undercover officerviolated right his Solis, to be free 319-20, from unreasonable searches. P.2d at 523. analysis Solis set forth an in-depth discussion and

privacy guaranteed by However, the Montana only Constitution. two Justices concurred in the holding application based on of the Montana Constitution. Three additional Justices concurred in the result of the decision, States, but relied on Katz U.S. v. United 389 88 S. Ct. (1967), 507 and other case federal law to determine that an justified unreasonable warrantless search occurred which not was Mont, any exception requirement. Solis, 320,693 to warrant at JJ., (Sheehy Weber, C.J., P.2d at 523 & & Haswell, concurring). Solis Consequently, controlling precedent is not regarding application II, of Article Sections 10 and 11 the Montana Constitution to the case. substantially present similar circumstances years The Court decided Brown in less than after four Solis. In case, law recorded enforcement monitored and three police and an suspect conversations between a undercover officer via a body transmitting wire device attached to officer. The lot, place conversations took in a vehicle in a over the parking officer, telephone a motel room and in rented undercover and all for the sale single transaction arranging completing and related to felony criminal sale of charged with Upon being marijuana. charge, arguing moved to dismiss the the defendant dangerous drugs, knowledge her her conversations without recording that the part and the the motion to dismiss The trial court denied illegal. was Mont, 3-4, P.2d at 1366. Brown, 232 at appealed. defendant in the conversations addressing the defendant’s face-to-face room, Supreme the United States and motel the Court noted vehicle monitoring offace- electronic holding in White that warrantless Court’s not participant-does the consent of one to-face conversations-with Amendment to of the Fourth provisions the search and seizure violate however, recognized, also Constitution. The Court the United States Constitution, conjunction II, the Montana that Article Section 10 of in the federal II, 11, grants rights beyond those with Article Section analysis of independent privacy requires constitution and Mont, 9-10, Brown, at 755 P.2d at 1369- issues. search seizure person’s of a that some violation The Brown Court observed have occurred before the must reasonable The Court then II, implicated. Article Section 11 are protections of authority-that, citation to analysis little and no determined-with her possessed subjective expectation while defendant private, remain her officer would conversations with undercover and, justifiable reasonably not was Mont, Brown, at no search or seizure occurred. consequently, that the warrantless The Court further determined 755 P.2d at 1370. with the consent of a conversation monitoring electronic II, 10 of the Montana Article Section participant of one did violate Mont, basis, 11,755 P.2d at 1371. On that Brown, 232 Constitution. electronic consensual the Court held that “warrantless transmitting body wire by the use of face-to-face conversations their pursuing enforcement officers while device, performed by law unreasonable right to be free of duties, not violate the official does of the Montana section and seizures nor searches The Court’s P.2d at 1369. Brown, 232 Constitution.” acknowledged nor overruled. neither holding in Solis was prior electronic consensual discussing why the warrantless When did not violate conversation recording of the monitoring and Brown, the Constitution under the Montana rights defendant’s legal one cases and Supreme United States Court cited White, cite expressly Furthermore, Brown did while commentator. concepts contained in the discussion of the Montana Constitution appear Brown directly be taken from the Supreme Court’s White, rationale in 749-54, that case. See 401 U.S. at 91 S. Ct. at 1125- Mont, 27; Brown, 232 10-11, Thus, P.2d at 1370-71. notwithstanding recognition our II, Brown that Article Sections 10 and 11 Constitution, of the Montana together, taken grant rights beyond those contained in the constitution, federal our resolution of merely that case paralleled federal jurisprudence subject on the failed to properly analyze greater rights guaranteed by Montana’s Constitution. differently, having Stated equivocation stated without the Montana expressly Constitution provides more protection than that inferred from the United States Constitution—with the corresponding obligation to provide independent analysis under the Montana through. Brown, Constitution-we failed to follow See 10-11, 755 P.2d at 1370-71. Nor did we do only so in the two cases since 1988 in which we have cited Brown holding for its regarding and recording of face-to-face conversations. (1990) See State v. Belgarde, 500, 244 Mont. 798 P.2d 539 and State v. (1991). Staat, 1, 251 Mont. 822 P.2d 643 years, In more recent readily II, this Court has applied Article Section 10 in search protect and seizure cases to the privacy interests Indeed, of Montana 57, citizens. in Hardaway, we noted our “consistent trend toward protecting interests of our citizens[:]” Sawyer 512, State

[I]n [174 Mont. (1977)], P.2d 1131 this applied II, Court first Article Section 10 to a search and seizure explicitly case and stated that provided greater Section 10 privacy protection individual in such cases than did the federal constitution. We restated Sierra, [SoZis] this rule in and State v. 472, (1985)], [214 Mont. among 692 P.2d 1273 During others. time, however, same the Court ruled on numerous other search II, and seizure cases and made no reference to Article Section 10 whatsoever.... Subsequently, through from the mid-1980s early 1990s, provided greater no protection individual search and seizure cases than parallel provided However, federal law .... City Billings since v. Whalen (1990), 242 Mont. given P.2d this Court has protection privacy rights citizens, increased of Montana cases, limiting scope of search and seizure and since State v. (1995)], Bullock [272 Mont. 901 P.2d 61 the Court has II, applied emphasizing Article Section “privacy as cases.” and seizure ofsearch support interpretation mechanism consistently analyzed search ensuing years, we ... In the under both privacy issues involving significant seizure cases Constitution. 11 of Article II of the Montana Sections 10 and protecting “consistent trend” light of this Hardaway, 51. ¶ Constitution, our rights under heightened privacy citizens’ Montana relevant addressing case overruled an earlier Hardaway premised in the case was prior that the rationale issue on the basis current comport and failed to with jurisprudence on federal exclusively Montana analyses under the right privacy and seizure and search Ulrich, (overruling State v. 187 Hardaway, 55-57 Constitution. ¶¶ (1980)). 347, P.2d 1218 Mont. 609 little, here, any, guidance if Similarly provides we concludeBrown federal light of the reliance on resolving the issue before us analysis application provisions and

jurisprudence-and limited Therefore, that case. we overrule of the Montana Constitution-in controlling As again recognize precedent. and that Solis is not Brown anew, current result, applying more we examine the issue before us II, 10 and 11 of interpretations and consistent of Article Sections Montana Constitution.

II, Under Current Montana Constitutional Analysis Privacy Jurisprudence To Right Search and Seizure and is the warrantless present The issue in the case whether of a face-to-face conversation electronic violates the other participant the consent of one in the conversation and to be free from unreasonable participant’s rights privacy II, 10 and 11. guaranteed by Article Sections searches and seizures determining whether addressing The initial this issue inquiry Scheetz, 41, See State v. 286 Mont. conduct constitutes a search. such (1997). “the use of some means of 46, 722, 724 A search is 950 P.2d infringes upon person’s reasonable evidence which gathering when the Hardaway, 16. “A search occurs privacy.” expectation ¶ expectation an individual’s government infringes upon objectively no reasonable.” Where society objectively considers not occur exists, a “search” does reasonable Montana II, Section 11 of the of Article contemplation within the 507, 71, 17, Mont. Hamilton, MT 314 ¶ 2003 ¶ Constitution. State 725). 46, Scheetz, 950 P.2d 17,67 871, (citing 286 P.3d ¶ citizens from unreasonable II, Montana protects Article Section II, right Similarly, the Article Section searches seizures. absolute, infringed may be but where established-is privacy-even upon showing of a compelling state interest to do so. See State v. (1997). Nelson, 231, 243, 441, However, 283 Mont. 941 P.2d even upon interest, a showing compelling of a state “the State an invade individual’s unless the procedural safeguards attached to the free from unreasonable searches and Elison, 288, seizures are met.” ¶53, State v. 2000 MT 302 Mont. ¶ ¶ We determine whether a state action constitutes an

“unreasonable” or “unlawful” search or seizure in violation of the 1) Montana by analyzing Constitution three factors: whether the person challenging the state’s action subjective has actual 2) privacy; society whether willing recognize 3) subjective expectation reasonable; as objectively the nature of Hill, e.g. 184, 24, state’s intrusion. See State v. 2004 MT ¶ 165, 24,94 Mont. P.3d 24. The first are two factors considered in determining occurred, whether a search or triggering seizure thus II, the protections of Article Sections 10 and 11. The third factor relates to the reasonableness of the search or seizure under the factor, circumstances. Under the third we determine whether the state complained II, action of violated the Article Section 10 and 11 protections it justified by compelling because was not state interest or was undertaken without procedural safeguards properly such as a issued search special warrant or other circumstances. See State e.g. Tackitt, 81, 23, MT 59, 23, 295, 23; 2003 315 Mont. 67 P.3d ¶ ¶ ¶ Mont, Scheetz, 50,950 727; Smith, 234, 286 at P.2d at State v. MT 2004 12-13, 466, 12-13, 567, 322 Mont. 97 P.3d 12-13. ¶¶ ¶¶ We address ¶¶ these factors turn.

A. Subjective Did the Defendants Have an Actual Expectation Privacy? of recognize naturally “[W]e person protect seeks to certain

parts of his or her and it those are at the privacy, desires which foundation for the safeguards protect constitutional that exist to Mont, Scheetz, 48, Moreover, them.” 286 at 950 P.2d at 726. a person normally expects privacy governmental free from intrusion not Graham, authorized a warrant her or his home. See State v. 2004 (citations 385, 21, 110, 1073, MT 325 Mont. 103 P.3d 21 ¶ ¶ ¶ omitted). Thus, traditionally while the home is “the raison d’etre for protection[,]” the constitutional “the to be free from unreasonable Graham, ....” encompasses searches and seizures more than home II, 11 regard, again 22. In that we observe that Article Section ¶ guarantees papers, in their people persons, “[t]he shall be secure and seizures.” searches from unreasonable homes effects added). (Emphasis recognition our that we base principles clarify These fundamental Scheetz, 286 See various factors. privacy on of an actual “ Mont, knowingly exposes to person P.2d at 726. “What at as preserve seeks to what an individual protected, but public may be public, area accessible even in an private, ” Mont, 49,950 at 726- Scheetz, at P.2d constitutionally protected.’ Mont, 70). Indeed, in 375, 901 P.2d at Bullock, 272 (quoting Montana, expose their home and persons leave

when independent and its public and their effects to themselves they expect cannot it is clear that perception, powers themselves or their affairs degree privacy the same preserve However, person when a takes at home. they expect could seats, in trunks items behind or underneath precautions place boxes, ensuring that those items glove or uses other methods there is no permission, and viewed without not be accessed any regard interest with obvious reason to believe that items simply because those those items has been surrendered to be in an automobile. happen (citation omitted). physical involved items

Elison, Elison While ¶ vehicle, applies to a conversation within a the same rationale stowed cannot be overheard person with another in a vehicle which gone to Thus, person has public outside the vehicle. where away from property prying activities and keep considerable trouble to in those subjective expectation eyes, person evinces a MT Pickup, 2005 State v. 1993 Chevrolet property. activities and that 10, 12, Accordingly, we 180, 12, ¶ 328 Mont. something to the knowingly exposed person determine whether a has privacy protections or her and, surrendered his public consequently, Scheetz, of the case. by looking particular at the facts 950 P.2d at 726-27. the Defendants Here, between the face-to-face conversations homes private the Defendants’ individual were within

and one other did Defendants case, of a vehicle. The and, in in the confines Hamper’s present individuals were where other not conduct their conversations In other the conversations. range to overhear physically within away and conversations words, their activities kept the Defendants (and their conversations ears), expose eyes and did prying conclude perception.” of We “independent powers public’s subjective Defendants exhibited expectations actual in the face-to-face they conversations held in private settings. Society

B. Is Willing Recognize the Defendants’ Expectations Privacy as Reasonable? We next society address whether willing recognize an subjective

individual’s expectation that a one-on-one conversation conducted in a private setting is being surreptitiously electronically monitored and recorded. Stated differently, society does perceive it expect is reasonable to personal in a conversation private held in a setting? “The inquiry hinges reasonableness on the underlying essence of constitutional values-including respect for both private, subjective expectations and public assessing norms. In constitutionality technologically government enhanced surveillance case, in particular identify risk, we must the values that are at vest the reasonable-expectation-of-privacy test with those values.” (Vt. 1991). Blow, State v. 602 A.2d We observe importance here the of avoiding overly narrow delineation of the nature of the inquiry, reasonableness because to do so would render every conceivable factual difference in a conversation subject Montana, to litigation. II, the protections afforded Article Section 11 of Montana Constitution “extend to all of Montana’s including citizens those suspected charged of a criminal act or with Hardaway, Indeed, one.” we have long principle, observed this even under the search provision and seizure of our 1889 Constitution: power exercise of the of search and absolutely seizure is

essential to the public welfare.... But the process may be exercised, vindicated, and the law enforced and without transgressing guaranties those provided constitutional which are alike, all guiltless guilty. and the State ex Dist, 202, 209, rel. Thibodeau v. Fourth Jud. 70 Mont. 224 P. (1924) added). 866, 869 (emphasis We on prior quoted extensively have occasions from-and delegates

discussed the debates of-the to the constitutional convention regard to the inclusion of in the 1972 276-77, Montana See e.g. Siegal, Constitution. Delegate at 191-92. Campbell Rights] [Bill stated that “the very strongly committee felt that the of Montana should be people protected possible against eavesdropping, as much as electronic surveillance, type [W]e and such of activities.... found that the citizens very suspicious type activity.” Montana were of such Montana Convention, 7, 1972, Constitutional Transcript, p. Verbatim March “[I]t is strongly: even more Delegate reported 1682. Dahood exist a situation to of us that there would ever any inconceivable justified.... could be electronic surveillance State of Montana where of Montana, cannot conceive the State of we [W]ithin area of electronic surveillance.” permit situation where we could ever Thus, delegates Convention p. the Constitutional Transcript, 1687. right on the to place value Montana citizens great were aware of the by existence engendered privacy privacy and the clear risk that law technology by as used enforcement. and advancement ofelectronic of the 1972 Montana Constitutional proceedings “[T]he particular concern part delegates on the Convention disclose government into Montanans over the intrusion of the monitoring of electronic and through types the use of various Mont, at Siegal, 281 184. surveillance.” delegates’ encompassed clear concerns the invasion [I]t is that knowledge by their means of various of citizens’ without audio sorts of electronic and visual surveillance only wary equipment. delegates existing Not were the they sort technology type, recognized of this but that this technology would more would continue to be refined and become widespread easily regard their available. concerns Moreover, that, been also clear in the have well-founded. it is view, delegates’ technology the use of this sort of should be situations, justified only involving in the most serious heinous necessary crimes where it is individual “risk greater because there is a to be served.” purpose 277, 934 Siegal, 281 P.2d at express delegates to the 1972 Montana statements of government’s use of regarding Constitutional Convention against provide electronic surveillance Montana’s citizens direct society willing recognize support for conclusion that private in a setting that conversations held reasonable electronically surreptitiously being are not monitored and recorded government agents. are continue to We convinced that Montanans Thus, by Montana’s Constitution. privacy guaranteed cherish the them person are to risk that a recognize willing while we that Montanans they private setting in their home or other conversing with whom are firmly person, to a third we are may repeat that conversation that the persuaded they unwilling accept that are as reasonable electronically recorded being same monitored and conversation agents government knowledge. without their underlying Nor should the or content purpose ofthe conversations society’s at issue upon willingness subjective reflect accept privacy in those conversations as reasonable. As the Supreme aptly stated, Court of Alaska

[a]ll of us topics expressions person discuss use with one we would undertake with another and we would never broadcast to a New of speak freely crowd. us would ever if we being knew that all our machines captured by words were later potentially release before an unknown and hostile audience. talks No one to a recorder as he talks to a One person.... takes the may risk that his friend repeat what has been One said. shouldn’t required be to take the risk of entirely additional an different character-that his conversation is being surreptitiously transcribed or broadcast. police may justified

.... It is axiomatic that conduct not be on the is, course, basis easy say of fruits obtained. It of to that one engaged activity an no illegal right complain has to if his If, however, conversations are broadcast or recorded. law may lawfully enforcement officials cause participants secretly to conversations, private nothing record transcribe prevents monitoring engaged of those persons illegal activity, who have incurred have displeasure, not conformed or have espoused impopular causes. (Alaska 1978) (internal Glass, 872,

State v. 877-78 citations omitted). foregoing, Based on the conclude we each Defendant’s

expectation of privacy society in the conversations at issue here is one above, is willing accept to as reasonable. As search occurs “[a] stated infringes when government upon of individual’s privacy society Hamilton, objectively that considers reasonable.” 17. ¶ Thus, that we further conclude the electronic ofthe Defendants’ in-person conversations constituted searches within II, rights ofthe Article contemplation privacy Sections 10 and 11 to and to be free unreasonable searches.

C. of Nature the State’s Intrusion We next address whether the intrusion in nature State’s conducting the searches at issue renders those searches unreasonable words, remaining under the circumstances before us. In other question rights is whether the searches violate Defendants’ under II, 11 Article Sections 10 and of the Montana Constitution.

437 II, is not above, right privacy the Article Section As stated showing compelling a state absolute, may infringed upon a but interest, state upon showing compelling to do Even interest so. however, infringes privacy an individual’s upon action which state compelling that interest. closely must be tailored to effectuate right Thus, Hamilton, State not invade an individual’s 37. “the ¶ to be safeguards right attached to procedural unless the Elison, are met.” free from unreasonable searches seizures conducted in the absence long-standing Our rule is searches unreasonable, se absent properly per of a issued search warrant are e.g. See recognized exception requirement. the warrant State 26, 26, 994 McLees, Mont. 10 and 2000 MT 10 and ¶¶ ¶¶ P.2d 10 and 26. ¶¶ presence high

“The of a search warrant serves a function. Absent II, grave emergency, [and Amendment Article some Fourth Section 11 of the Montana has interposed Constitution] magistrate police. between the citizen and the This was done illegal to shield criminals nor to make the home safe haven for might objective weigh activities. It was done so that an mind need invade order enforce the law. The precious was deemed too to entrust discretion job is those whose the detection crime and arrest criminals.” 269,274,

McLees, Sorenson, P.2d (quoting State v. Mont. (1979)). here, Where, a warrantless search has been conducted, establishing exception the State bears the burden of that Sorenson, 180 requirement justifies to the warrant Mont, the search. See at 590 P.2d at 139. The State advances alternative arguments regard in and we them in turn. address

1. Consent argues The the at issue here State first that warrantless searches the authorized the confidential informants’ consent to were Indeed, long we have recording and of the conversations. unlawful it is is not where recognized that a warrantless search Sorenson, voluntarily given. e.g. See freely conducted with consent and Mont, Furthermore, 275, 590 at 140. 180 at P.2d a warrantless search justify “when the seeks to prosecution consent, that consent voluntary proof it is not limited to proof defendant, permission given by the but show that was possessed a third who common party search was obtained from or relationship premises sufficient authority over other 438 sought effects inspected.” to be Mont,

Sorenson, 180 at P.2d (quoting 590 at 140 United States v. Matlock, (1974)). 164, 171, 415 U.S. S. Ct. The State that, asserts because the confidential informants in these cases arranged with body law enforcement wear the and clearly wires consented to the electronic monitoring conversations, justified their consents the warrantless searches. above, As noted we the third-party exception derived consent the requirement constitutional search warrant in Sorenson from the United States Supreme Court’s decision in Matlock. we interpret While provide greater Montana’s Constitution to protections for individuals in the context of search than the and seizure issues does Fourth Constitution, Amendment to the United States we use some federal analysis Fourth Amendment in addressing issues under the Montana Scheetz, 46-49, e.g. 725-27; Constitution. See at 950 P.2d at Hill, regard, In Supreme 32. we that recently observe the Court exception refined the third-party Georgia Randolph, consent (2006). 103, 126 U.S. S. Ct. 1515 Randolph, defendant’s wife contacted law enforcement

regarding a she dispute domestic had with The Randolph. wife upon informed the officers their Randolph drug arrival that was user drug and items of were Randolph, use located the house. who was time, present at the allegations house denied his wife’s unequivocally request refused officers’ for his consent to search the The house. officers then obtained wife’s consent to During search. search, drug officers observed and seized evidence of use. Upon being charged cocaine, possession Randolph suppress moved to consent, given the evidence on the wife’s his express basis his over consent, refusal rendered unlawful. trial court the searches motion, Appeals Georgia Court denied the reversed trial court, the Georgia Supreme Randolph, Court affirmed. 547 U.S. at at 107-08 S. Ct. Supreme granted The United States certiorari address question occupant may give of “whether one law enforcement premises, against

effective consent to search shared co-tenant who present permit Randolph, and states a search.” refusal to 108,126 U.S. S. Court first Supreme Ct. 1520. The reiterated its “ possesses Matlock statement that ‘the consent of one who common authority absent, premises against over or effects is valid as ” authority shared.’ nonconsenting person with whom that Matlock, (quoting at Ct. at 1521 Randolph, U.S. 126 S. 993) added). some After discussion (emphasis 94 Ct. at U.S. at S. co-tenancy, authority over mutual underlying principles the of of the protection the effects, Fourth Amendment’s property Supreme the Court against by government, intrusion individual for evidence over dwelling a shared held that “a warrantless search of cannot present a resident express by physically refusal of consent to the given as him on the basis of consent justified reasonable at at 126 S. Ct. by Randolph, resident.” U.S. police another 1526. Supreme Court further clarified that fact at objecting is in potential

if a defendant with self-interest does objects, permission door not suffice the co-tenant’s search, objector, nearby the potential reasonable whereas out.... part colloquy, but not to take in the threshold loses invited long police So as there is no evidence that the have removed objecting tenant from the entrance for the sake potentially avoiding objection, practical simple there is value in the possible rules, clarity complementary recognizing one co-tenant’s hand, permission occupant when there is no fellow on the other according contrary dispositive weight occupant’s to the fellow he expresses indication when it. 121-22, S.

Randolph, 547 U.S. 126 Ct. at 1527. Here, the search of conversations of electronic means recording, premises, than is at Each rather the search issue. to each at the time of the party physically present conversation was is, a co- search and had an interest-that an interest in the nature of Randolph Under physical premises-in tenant the conversation. expressly adopt private we vis-á-vis face-to-face rationale-which informants’ conversations-the confidential consent the electronic any monitoring and the conversations could override Furthermore, expressed by the because both objection Defendants. were present to the were the time searches parties conversations conducted, object have the parties opportunity both must observed, enforcement Supreme search. As the law removing potentially objecting consent avoid a refusal of “A consent. premises prior requesting individual cannot, expedient law without generalized interest enforcement more, iustify Randolph, 115,126 U.S. at S. search.” warrantless 1524, n. Ct. at here, justify cannot a search under Similarly, State failing exception simple expedient as a result of the

consent inform the potential-and physically present-objecting party search is being conducted. We conclude that the warrantless searches justified by conversations issue here cannot be the consent exception requirement. to the warrant

2. Suspicion Particularized Standard Alternatively, that, the ¶47 State contends if we the conclude electronic and recording of a face-to-face conversation search, subject constitutes a it should be to a particularized suspicion II, standard rather than 11 probable the Article Section cause requirement for the issuance a search In essence, of warrant. the argument is that the State’s intrusion into the Defendants’ privacy expectations the by electronic monitoring of their and, therefore, conversations was minimal did not rise to a of level requiring probable cause. We at the observe outset that the State on relies 1993 Chevrolet

Pickup Hart, and State v. 2004 MT 320 Mont. in support of a applying particularized suspicion justify standard to the searches of present the conversations in the Neither cases. of the cited cases-one placed alley of which involved search of garbage the in an and the other vehicle-remotely a canine sniff of exterior of a supports applying particularized suspicion justify standard to search in an occurring individual’s home. “In we Siegal, Bullock validated the long-standing throughout country, notion but Montana, especially that person’s residence and his are homestead secure from government intrusion, unwarranted be it physical technological Scheetz, 48,950 means.” P.2d at In two here, ofthe issue searches at the State into the sanctity intruded of performing Defendants’ homes for the those purpose searches technological means. We will not countenance an such intrusion under a lesser than probable standard cause. then, turn, argument We the particularized the State’s

suspicion apply standard should to the search the conversation confidential Hamper between and the informant which took place It on confidential informant’s vehicle. first relies 1993 Chevrolet readily Pickup support argument, of its but that case is distinguishable. In 1993 enforcement Pickup, suspect Chevrolet law believed was

operating illegal laboratory. an After a drug several-month activities, investigation suspect’s law enforcement officers conducted on garbage a warrantless “trash dive” cans located in alley suspect’s behind the residence and items discovered related in the found Based on the evidence methamphetamine. manufacture of warrant and obtained a search bags, the officers suspect’s trash residence, truck and boat pickup suspect’s search of subsequent moved to suspect evidence. drug-related additional up turned search, arguing during the warrant found suppress the evidence on evidence obtained because it was based warrant was invalid motion, The trial court denied garbage. of his illegal an search a reasonable suspect did not have determining that Pickup, 3-4. 1993 Chevrolet garbage. ¶¶ in his of a the warrantless search addressed whether appeal, On we II, Article Sections rights under person’s violated the person’s garbage that, where a We determined 11 of the Montana Constitution. 10 and it at a curb or in by placing garbage his or her person has abandoned in the collection, alley any continued Thus, law society willing accept as reasonable. garbage is not one looking bag and removing garbage enforcement’s actions a neither a seizure nor search it for constituted through evidence Pickup, 1993 Chevrolet ¶ the Montana Constitution. contemplated search, placed we of a seizure or a Notwithstanding 17. absence activities, a including such law enforcement constraints on suspicion particularized enforcement have requirement that law garbage. justify looking through being a crime is committed that the Having concluded above Pickup, 19-20. 1993 Chevrolet ¶¶ with the recording Hamper’s conversation monitoring electronic and search, a in the vehicle constituted confidential informant informant’s Pickup further. need not address 1993 Chevrolet we that a support argument of its also relies on Hart The State justify apply standard should particularized suspicion of face-to-face conversations monitoring recording and warrantless Hart involved participant in the conversation. the consent of one We exterior of a vehicle. canine sniff of the drug-detecting constituted a exterior of a vehicle dog sniff of the determined by particularized justified search, that such a search but cause sufficient probable rather than suspicion wrongdoing, 29). Tackitt, Here, Hart, (citing ¶ ¶ issuance of a search warrant. recording monitoring and that, the electronic because the State asserts sniff, particularized dog than a even less intrusive of a conversation is disagree. We standard here. is a sufficient suspicion drug-detecting used Tackitt, enforcement officers law outside parked vehicle exterior of the defendant’s canine to sniff the vehicle, canine on the trank alerted residence and his indicating presence drugs. Tackitt, Elison, 7. We relied on ¶ 51, in concluding that the canine sniff constituted search because Tackitt maintained a reasonable of privacy in the items stowed in his Tackitt, vehicle’s trunk. 21-22. then ¶¶ We determined that, although warrantless generally searches per unreasonable, are se the purpose minimally sniff intrusive nature of such a canine exception warranted an to the warrant requirement, but would “still require particularized suspicion when the area object subject canine already sniff is exposed Tackitt, to the public.” Here, however, private face-to-face conversation the vehicle was not exposed to the public. Consequently, we decline adopt particularized suspicion justify standard to the warrantless electronic monitoring and recording of a one-on-one conversation occurring in a vehicle.

III. Conclusion For the reasons, above-stated we hold that the electronic recording of the Defendants’ conversations with the informants, confidential notwithstanding the consent of the informants, confidential subject constituted searches to the warrant requirement II, ofArticle Section 11 ofthe Montana Constitution. The electronic monitoring of those conversations without a warrant or the existence of an established exception to the warrant requirement violated the rights II, Defendants’ under Article Sections result, and 11. As a we hold the District Court erred in denying the Defendants’ motions to suppress evidence derived from the warrantless electronic monitoring and recording of the three conversations at issue on the basis that the activities at issue did not constitute searches. Reversed and remanded for proceedings further consistent with opinion.

JUSTICES NELSON and COTTER concur. LEAPHART,

JUSTICE specially concurring. specially I 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. (home Although the court private ties its rationale to the settings automobile) cases, involved these I would not limit a Montana citizen’s expectation reasonable of conversational privacy “private settings.” view, In my Montanans do anticipate not have to that a

443 secretly recorded being setting, conversation, matter what no As a search warrant. acting benefit state without agents of the White, U.S. 401 v. in United States in his dissent Harlan noted Justice citizen average (1971), thing subject “it is one 745,91S. Ct. 1122 him will in a conversation participants the risk that another, a different quite but its contents to divulge subsequently may be parties third the risk that unknown upon foist him matter to This 777, Ct. at 1138. at 91 S. listening in.” 401 U.S. simultaneously 105, Brackman, 178 Mont. v. in State relied on this distinction that consensual 1216,1221 (1978), recognized 115,582 where we P.2d parking center shopping in a monitoring of a conversation participant Montana under the privacy expectations Brackman’s lot violated (1984), 310, we Solis, 693 P.2d 518 v. 214 Mont. In State Constitution. expressed eavesdropping the concern with electronic specifically noted Mont, convention, Solis, 214 the constitutional during the debates at that, in “face to face 521-22, concluded 316-18, P.2d at 693 that expectation a reasonable setting, in a there is private encounters 318, Solis, 693 214 monitoring taking place.” is not hidden Brown, 1, v. 232 Mont. in State 522. Brackman was overruled P.2d at (1988). life the Court now breathes 8, 1364, Although 755 P.2d Brown, by overruling in Solis and Brackman back into our decisions i.e., in a home or settings,” “private in the limited context of it does so an automobile. Amendment, 11, protects people II, like the Fourth Article Section 327, 36, 109, 36, Mont. Bassett, ¶ MT State v. places. 347, 351, States, 389 U.S. (citing Katz v. United 511). place rather than person focus on the

S. Ct. This II, Section of Article compelling in the context setting is even more information and encompasses it in the sense that “is which broader Nelson, Mont. State places persons.” in addition to activities (1997). II, that provides Article Section 441,449 231,243,941 P.2d free well-being of a is essential of individual “[t]he compelling of a showing infringed without not be society and shall may an individual’s Although interest.” state home) another, is not than setting (e.g., in one compelling more has no setting public in a more conversing that an individual say the risk of anticipate reasonably and must Harlan observed monitoring. As Justice consensual warrantless “undermine[s] White, consensual warrantless that is another dealing with one security in and sense of confidence in a free citizens between relationships of individual characteristic (Harlan society.” White, dissenting). U.S. 91 S. Ct. at 1143 “free society” designed A what precisely Article Section was guarantee to foster. This constitutional ensures that our citizens discourse, engage private continue to in free speak spontaneity uninhibited that is ofour society. characteristic democratic debates, is evident monitoring As from the constitutional warrantless chilling a citizen thereby has effect on discourse and undermines the “well-being society.” of a free See Montana Constitutional Convention V, Const., Verbatim Transcript pp. 1682-87; X, Vol. Mont. art. 10.§ my view, society In in which conversing individuals outside private setting such their home anticipate must the risk of state instigated, society” warrantless is not the “free envisioned by the framers our Constitution. Accordingly, I would resurrect in holding our Brackman its

entirety recognize expectation of conversational free from monitoring, any setting, including, warrantless consensual in but to, limited public parking lot. I also note that castigates Justice Rice’s dissent framing broadly given the issue too that “the facts here do not involve situations where did not police particularized suspicion have probable cause.” One if the why, police probable 88. wonders had ¶ cause, they simply apply warrant, did not for a as the constitution throughout There is a theme requires. the dissent that someone who in discourse engage endeavors, chooses about criminal has no all expectation privacy.1 examples and rationales cited are circuitous in that assume or they “risky” illegal “nature” of the question. conversation in An officer call is does know that a or that the a drug obscene conversation relates to sale until after the officer listens in officer tape or hears of the conversation. If the prior already does have to believe individual reason that an has calling sales, engaged drug probable obscene then officer has however, probable cause, cause obtain a warrant. the absence of 1Examples considering [drug purpose from the dissent: “without nature and 90; person simply deal] of the “A have conversation.” cannot the same ¶ knowingly exposes illegal drugs purpose selling privacy when he for the commercial engaged private socializing them to a non-confident as does while with friends he 96; family.” society non-private privacy interest in a ¶ “because would not consider a 99; very engaged drug to be reasonable.” “The idea that one ¶ commercial transaction drugs given illegal ‘opportunity must in the commercial sale of to to a non-confidant fanciful, object’ police parties’ flight is a before can monitor conversation into the n.2; only perhaps the ludicrous.” “There is not no indication that the Declaration behavior, Rights applied risky, non-private was intended to be to such but opposite.” just debates demonstrate call) (the justify the illegal nature the ends not let we should someone concluding that This is tantamount (monitoring). means Amendment in theft has no Fourth engages allegedly who house without free to search his police are and thus warrant. commercial discourse distinguish illegal endeavors to The dissent consensual that warrantless socializing; suggesting private transactions. illegal commercial only be allowed

monitoring will “commercial,” the defendant was that were not What if the transaction the dissent’s constitutional charge. free of Would delivering drugs transform, the defendant with suddenly cloaking analysis expectation privacy. of strayed from the facts of that the Court has The dissent believes broadly. The Court’s societal stated the issues too

this case and has when one looks at breadth justified more than however approach is conversation, “a The reasons that of the dissent’s rationale. dissent Once the conversation home, space. unlike is not a shared a commences, participant.... of each property it becomes the individual (absent privilege) the other participant prevent Neither can has full control because each sharing repeating or the conversation of us that those despite protestations it.” 101. Thus the dissent’s over matters need not be legitimate about engaged private in conversations in engaged one concerned, reasoning, no in fact under the dissent’s has an conversation, setting, purpose, whatever wherever the control) (with full participant the other expectation privacy of since recording. The dissent can, monitoring or third-party consent to non setting for conversing private in person reasons that a dinner, or family Thanksgiving example at a purposes, commercial smoking pot at a activity (e.g., engaging illegal even someone in house) than the expectation have more of an friend’s will that, whatever recognize fails to here. What the dissent defendants (be diminished), it can heightened it of the other through the consent by monitoring always be undermined words, party of one consent to the conversation. other party the other. expectation of always trump the conversation will Brown, Mont. in State v. reliance on our decision The dissent’s Court’s Supreme States (1988), and the United P.2d 1364 (1971), this illustrate White, 401 U.S. 745 States v. decision United is, setting, any irrespective point; party. the other in the face of consent dissolves a conversation may trust a defendant strongly “has held that however Supreme Court an apparent colleague, his expectations in respect are not protected by the Fourth Amendment when it turns out that colleague government is a agent regularly communicating with the authorities.” The Fourth Amendment does protect “a wrongdoer’s misplaced person belief that a to whom he voluntarily confides his wrongdoing will not White, reveal it.” 401 U.S. at (quoting Hoffa (1966)). States, v. United 385 U.S. 293 suggests ¶65 Justice Cotter that Justice Rice’srationale would apply just to illegal transactions, commercial but to all commercial Although transactions. I agree, I think the dissent’s rationale is even broader than Justice Cotter suggests. It applies conversations, to all commercial or otherwise. Under the Brown,2 dissent’s reliance on long as one ofthe participants with consents, “full control” third-party recording or monitoring simply is not a search under the constitution. It matters not whether the monitoring occurs the home or on main street USA. enforcement, Law without necessity showing probable warrant, cause or obtaining can use this tool at their whim. Justice Rice opinion is of the society that a in which individuals feel 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 to pursue one’s own life within the solemn confines of the principles upon which democracy “solemn” view, was founded.” In my one of the most the principles upon which our democracy flourishes is the Fourth Amendment’s requirement warrant which protects citizens from unreasonable intrusion the state. Anarchy is the any

¶67 absence of political authority; the theory that all government forms of oppressive are and should be abolished. Heritage American Dictionary 3rd Ed. Justice Rice’s characterization to the contrary, I am not advocating Quite anarchy. I’m opposite; arguing that our constitutional government, form of the Fourth particular, Amendment in should be abolished. enforced-not day age and of high-tech surveillance, ¶68 warrantless monitoring of conversations between individuals does not bode well for a free society. and democratic

JUSTICE joins special NELSON concurrence of JUSTICE monitoring “We now hold that warrantless consensual electronic of face-to-face body transmitting device, conversations performed by the use of wire law pursing duties, right enforcement officers while their official does not violate the to be privacy free of unreasonable searches and seizures nor the section of the Montana Mont, Brown, Constitution.” at 755 P.2d at 1369. LEAPHART. and dissents. concurs MORRIS

JUSTICE Hamper and that Goetz Court’s determination with the I concur conversations in their privacy expectation a reasonable possessed Court’s with the part ways I homes. in their own place that took a reasonable similarly enjoyed however, conclusion, Hamper that place that took with White conversation his expectation privacy White’s vehicle. inside (1988), plainly controls 1,755 P.2d 1364 Brown, 232 Mont. State v. expectation had a reasonable Hamper decision on whether

our This in White’s vehicle. place that took in the conversation in his expectation had no reasonable held that Brown parking in a bar parked in “a vehicle with an informant conversation Mont, should at 1366. We likewise Brown, at 755 P.2d lot.” in his no Hamper that had reasonable conclude meaningful is no vehicle as there White in White’s conversation with at issue in here and the facts the facts at issue distinction between Brown. Brown, seemingly our along with Court discards This 310, 320, 693 P.2d Solis, Mont. in State v.

contradictory holding reliance on federal (1984), however, light of their 518, 523 application analysis their limited jurisprudence that “in face-to-face court stated Constitution. 24. Solis Montana there is a reasonable private setting, in a encounters Mont, 318, 693 Solis, 214 taking place.” is not hidden countered, any attempt The Brown court without P.2d at 522. Montana’s Solis, “there is no violation of distinguish seizures, unreasonable searches prohibition against privacy, or official duties [sic] their pursing enforcement officers when law monitoring of face-to-face electronic consensual perform warrantless at 1371. The Court Brown, conversations.” in Brown and the the broad rule attempt to reconcile foregoes any now it Solis, in favor of what contradictory rule in rule, but equally broad II, Article interpretations and consistent “more current deems 11 of the Montana Constitution.” Sections 10 and unnecessary represents discarding of Brown The Court’s held that decisis. We have of stare principle from the departure wrong. Beckman manifestly if it is only should be overruled precedent 389, 20, 20, 112, ¶ 299 Mont. County, 2000 MT ¶ Bow v. Butte-Silver analysis in has affirmed 348, squarely This Court 1 P.3d 20. ¶ 1,7-8, Stoat, 251 Mont. occasions, including State v. Brown on several 448 643,

822 (1991), P.2d 647 Belgarde, State v. 244 500, 504, Mont. (1990). 539, 798 P.2d 542 Nowhere in these decisions does the Court question the continuing vitality of analysis. Brown’s I agree cannot under these circumstances that the result in Brown is manifestly so wrong that it should be discarded entirely. The Court cites State v. Hardaway, 252, 2001 MT 51, 139, 307 51, Mont. ¶ ¶ 51, P.3d justify discarding ¶ its of Brown and Solis. 23. Hardaway, turn, cites Solis approval. Hardaway, better, worse, For Solis and Brown provide precedent our on very issue before the Court-whether warrantless electronic of party’s one-on-one conversations with a confidential informant violates party’s reasonable expectation of privacy. Eather than discarding them to the heap, rubbish I would reconcile the holdings in Solis and Brown limiting them to the facts that were before those courts. I would read Solis person to hold that a may have a expectation reasonable of privacy in a conversation that place “small, takes in a enclosed office”that ostensibly remains under Mont, the exclusive control of Solis, his confidant. 314,693 at P.2d at 520. Solis reasonably could have assumed pawnbroker that the had “small, exclusive control over his own By contrast, enclosed office.” I would read Brown to hold person may that a not have a reasonable in a conversation that place takes in a vehicle or motel that person reasonably could not assume was under the Mont, exclusive Brown, control of his confidant. at 755 P.2d at 1366. Both the vehicle and the motel room at issue in Brown have been subject to third-party ownership variety and a users, of different any of whom subject could a conversation to monitoring. electronic I would conclude pursuant holding to our in Solis that Goetz and Hamper possessed expectations reasonable of privacy in the conversations with the informants that place took in their homes. Hamper and Goetz reasonably could have expected as much privacy in their own homes as Solis could have expected private office of Mont, Solis, his confidant. 693 P.2d at I 520. would conclude pursuant Brown, to our holding however, Hamper lacked a reasonable in his conversation with vehicle, White in White’s Hamper’s both and Brown’s conversations place took under similar circumstances. White’s vehicle-like parked parking Brown, Brown’s-was in a lot. Furthermore,

at 1366. the record does not indicate Hamper whether reasonably could be sure that his confidant exclusively had control over the vehicle in which their fact, conversation took place. informant, and did not know Hamper indicates that record owned or the informant know whether he would presumably place. took the conversation in which the vehicle controlled search of a warrantless distinguished likewise have Other courts ¶76 automobile. person’s of a search from a warrantless home person’s that warrantless recently held Virginia Court of West Supreme in a conversations monitoring of face-to-face electronic consensual privacy. invasion of unconstitutional an represents home defendant’s that the decision on the basis conflicting its earlier The court overruled existed discussion, that no difference “assumed, without court had home, in his/her expectations privacy reasonable person’s between State v. the home.” expects outside person privacy versus 2007). (W.Va. supported The court its 169, Mullens, 650 S.E.2d 559, Peacher, 280 S.E.2d in State v. its earlier statement assertion with (W.Va. in his expectation privacy 1981), person’s “‘[a] ” home[.]’ in his he would have is less than that which automobile Supreme United States Mullens, at 189. The 650 S.E.2d in an automobile expectation privacy similarly has stated that “one’s from the different significantly in its are operation and of freedom residence.” freedom in one’s and traditional 3074, Ct. Martinez-Fuerte, 96 S. 428 U.S. States v. United (1976). 3084-85 to its respect with reasons, join opinion I the Court’s For these expectations of reasonable Hamper possessed and Goetz

decision place that took the informants in their conversations with reasons, from the Court’s I dissent their homes. For these same enjoyed a reasonable Hamper decision that respect with its opinion place took with White that in his conversation vehicle. inside White’s RICE, dissenting.

JUSTICE protected genuine liberties It be a dubious service would

the Fourth liberties spurious with to make them bedfellows

Amendment liken would analogies which by farfetched improvised of one of conversation, the connivance with on a eavesdropping find no We search or seizure. an unreasonable parties, here. Amendment of the Fourth violation (1952). 967, 72 S. Ct. States, 343 U.S. United On Lee v. regard error with precise makes the today The Court United States which the Rights, Declaration of Constitution’s Montana under the deciding the same issue against in Court warned Supreme Rights Bill of of the United States Constitution. The Court’s error springs analytical issue, from an approach resulting incorrect unnecessarily sweeping broad decision not on the predicated specific Indeed, facts ofthis case. inattentiveness to the facts leads case, Court to point overlook the critical ofthe and the unfortunate overruling is the long-standing precedent result our and the of the right privacy. distortion Today the Court precedent overrules state federal we long re-endorsed, strongly

have followed and and upon which law twenty years. enforcement in this has relied state The Court justifies its overturn precedent characterizing decision to our our non-controlling resolution Solis as decision in Brown as “merely parallelling] federal ... and jurisprudence fail[ing] to properly analyze the greater rights guaranteed by Montana’s Constitution.” Opinion, 22.1 disagree this assessment. First, while I that agree “controlling Solis is not precedent,”

Opinion, 24, I that fact-grounded submit of the reasoning plurality opinion precisely in Solis is correct analysis be and employed, plurality that the Solis reached the correct decision that determines approach. However, under fact-based the Court that is not “controlling,” because Solis it need be at all. considered Opinion, 24. ¶¶ Second, the Court’s contention that our decision in Brown failed properly analyze greater rights guaranteed the Montana

Constitution, Opinion, clearly is without merit. In Brown we recognized protections that “Montana’s an Constitutional have separate which existence is from the Federal Constitutional protections” necessary analysis and that is an independent it to “offer privacy and provisions search seizure the Montana Mont, 9-10, Brown, 232 1370. Constitution.” at 755 P.2d at Accordingly, we Brown lengthened analysis beyond the Fourth Amendment, stating analysis... go “[t]he must further because the specifically framers of the Montana an provided Constitution Brown, protection provision.” additional Mont, with not, Thus, spins, 1370. 755 P.2d at we did as the Court our ignore heightened privacy protections of Montana Constitution in Brown. that, Critically, the court under the Montana Brown concluded

Constitution, the facts demonstrated that the defendant’s claim to an reasonable, not one deem society was would actions, government’s only which effectuated “the Brown, excessively intrusive. words,” were [Brown’s] case, the Court of that Under the facts at 1371. monitoring ofa face-to- electronic consensual the warrantless approved today However, the Court drug deal. regarding face conversation the thin basis that case on holding in Brown and overrules our ignores subject....” on the jurisprudence “merely federal paralleled that Brown Opinion, ¶ Court Supreme the United State upon relied It true that Brown and common sense very practical White, offered a case which

case wary of today, and we should issue we face to the same approach decision practical White established and abandoning the well federal Brown followed merely because overruling Brown emphasized a twentieth High In White jurisprudence. analysis, explaining Amendment “doctrinal” Fourth century drug consensually recorded interest in a of a absence stranger: transaction with a police his connections agent conceals

Concededly police who with a defendant his conversations down for officialuse write authorizing his them, a warrant testify concerning without violating otherwise with the defendant and without encounters States, 385 rights. v. United the latter’s Fourth Amendment Hoffa no different result is U.S., purposes, at 300-03. For constitutional immediately reporting and agent instead of required if the (1) defendant, either transcribing his conversations he equipment which them with electronic simultaneously records (2) States, or supra; United Lopez his carrying person, on simultaneously transmits which equipment carries radio located elsewhere recording equipment conversations either to Lee v. transmitting frequency. On monitoring the agents to other States, and revelations of asent supra. the conduct United If equipment the do not invade without electronic overatins privacy, expectations constitutionally justifiable defendant’s the same conversations does a simultaneous neither by by received from others transmissions the or made asent and whose talkins to whom defendant asent necessarily risks. trustworthiness defendant added). The (emphasis Ct. at 1125-26 White, at 91 S. 401 U.S. justice plurality that, was a four while White Brown court noted decision, Supreme had since years passed opinion, seventeen Caceres, 440 U.S. in U.S. v. holding had since endorsed the federal (1979), applied it had since been 99 S. Ct. 1465 Mont, Brown, circuits. 8-9,755 Thus, P.2d at 1369-70. our Court adopted strong, White’s practical reasoning and we should not discard it now. Moreover, the Court ignores the fact that Brown has been

specifically repeatedly reaffirmed fact, this Court. In Belgarde, when again we entertained an argument that warrantless consensual monitoring violated the Montana Constitution’s provisions, we noted Brown, our decision in and then took the unusual step of holding-emphatically-that “[w]e to reverse refuse this rule.” Belgarde, added). 798 P.2d at 542 (emphasis departure Court’s from stare decisis here is demonstratively weak and unsupported. With one fell swoop, the Court today overturns a longstanding and strongly applied line of authority with little concern for the consequences. Having overruled Brown and dismissed entirely, Solis the Court

then flits to analysis another in order to “examine the issue before us anew, applying more current and consistent interpretations ofArticle II, Sections 10 and 11 of the Montana Constitution.” Opinion, “analysis” This is one wholly which disregards facts, generalizes the issue on appeal, broad, and renders sweeping conclusions under guise of “more current and consistent interpretations” of the Montana Constitution. I submit that there could nothing be more “current and consistent” than the interpretation repeatedly we have applied past twenty years. After setting forth briefly the facts in background section of

the Opinion, 4-8, barely the Court again ¶¶ mentions them diming the remainder Opinion. ofthe An explanation for this detachment from the particulars may Court, be that the from the beginning, appears to have been thinking about broader or different issues than those actually here, raised questions evidenced the Court asked the State during oral argument:

Q. It’s the State’s contention that there’s no need for particularized suspicion probable fact, cause. as I it, understand the State doesn’t even any believe that there is necessity that the cops was, is, believe that a crime or is about to They committed. somebody can run body with a wire into somebody’s cop’s home at the discretion.

A. Because there is no search as this Court held in Brown- Q. Well, isn’t that true? Well, think,

A. I your-the I think question, all respect, phrased broadly. too

453 If, completely if this is broadly? too Q. Well, why phrased it body with a send someone cops, they can discretionary with They can send evidence. gather home to into someone’s wire They can send snoop. just home somebody person’s into a might be used information that gather home to somebody into a completely It’s at all. prosecution or no prosecution in a future discretionary police. Correct?

A. No. too phrased were indeed questions These counsel was correct. State’s at issue. scenarios not from counsel for demanding answers broadly, “complete the exercise case do not involve The facts of this gather or “to “just snoop” to wire someone police discretion” here do at all. The facts be used” or not used might that information particularized not have police did involve situations where informants, wiring the cause. Even before probable suspicion already had that both defendants cause to believe police probable had drugs. dangerous crime of criminal distribution committed the the defendants aside, could have arrested police Authority wire crime.1 already had committed a they because on its facts. critical, should be decided are and this case The facts exposed knowingly has recites, person “whether a As the Court his or her and, surrendered public consequently, to the something facts by looking particular at the determined] privacy protections [is 13, Dunn, 296, 340 2007 MT ¶ 29. See State v. Opinion, of the case.” ¶ “ascertaining that when 31, 13,172 (explaining Mont. P.3d ¶ to the we look expectation privacy, legitimate if a has a person (stating Scheetz, 950 P.2d at ....”); circumstances 250, 273- factors”); 281 Mont. Siegal, State v. that we look to “various (1997) measures taken (detailing the extensive privacy). to ensure his by the defendant analyzing necessity gives “lipservice” to Although the Court 30 and 37 example, paragraphs facts, fails to do so. For largely it held an the Defendants holdings critical contain the However, the Court as reasonable. society accepts case: the issue of this central factual to mention the neglects 45-9-101(1), MCA, person of criminal commits the offense Pursuant to § sell, barter, exchange, alia, by, “offer[ing] dangerous drugs inter distribution of added.) violated any dangerous drug[.]” (Emphasis The defendants give away informants, reported the “offer” who by arranging with the the sale transactions statute any made without monitoring. could have been pobce prior An arrest to monitoring. their case. course, wisely sought evidence to bolster pobce additional Of consensual electronic monitoring of a drug by police. Instead, deal considering without the nature or purpose conversations, Court issues the sweeping proposition that there is an privacy in “face-to-face conversations” in “private held settings.” Opinion, conclusion, 30. This facts, disconnected from the will even prohibit a participant in the conversation testifying about what did, the Defendant said or a unless warrant first is obtained. Not even asking Defendants are for such a holding-but broad that is a consequence leaving the facts behind. The facts of this case should form the basis analysis of the legal the critical question us, before facts, and I thus turn to the beginning with those related to the expectation of privacy and the expectation. reasonableness of that This was a commercial transaction. In each ofthe two cases before us, seller, for the purpose making a profit, financial offered and then product sold a to a buyer. But for the motive, seller’s financial buyer’s payment, assurance of parties these would not have met at all. deal, It was the business and only deal, the business which brought them together. Goetz selling was methamphetamine-Hamper, marijuana. As in the typical transaction, commercial the sellers here offered product

their to members ofthe public-they intentionally exposed and product sold their to customers who were length non-confidants. The of each transaction is impersonal reflective of its and commercial nature as each only lasted moments—similar to other purchases. retail These meetings were not social occasions family. between friends or exchange The product and cash was made parties and the immediately went their way, own only purpose because the of their meeting-the Thus, sale-was completed. transactions, these “knowingly defendants first exposed” their by offering business to sell and then exposed product their during exchange the actual to someone Mont, who Scheetz, was not a confidant to them. See P.2d at 726-27 (explaining that person knowingly “[w]hat a exposes to public protected, is not but what an individual preserve seeks to as private, even in an area public, may accessible to the (internal omitted)). constitutionally protected.” quotations place fact, transaction is also a relevant though not necessarily Siegal, determinative. See 934 P.2d at (stating person knowingly what a exposes “even in his own home or office” is not private). Trusler, considered Goetz invited visitor,” described the District Court a as “mere into his home on Main Street and there conducted the Hamper brief sales transaction. Street, into got lot he in a on Main where parking met Ms. White first sale, the For the the brief conversation and sale. second her car for likewise “mere visitor” Court found that White was District exchange home the brief occurred. Hamper’s where sales specifics of these analysis wholly ignores The Comb’s significantly that the Court’s decision is circumstances it is clear fact, leads this disconnect predicate. the factual disconnected “whether appeal generic on in a form as: the Comb to restate the issue subjective expectation society willing recognize individual’s private setting in a is not that a one-on-one conversation conducted electronically Opinion, being surreptitiously monitored recorded.” only exists Accordingly, the Court considers whether there ¶ 31. held personal reasonable in “a conversation statement, setting[.]” in the Opinion, This and others private readily opinion, governmental is so broad that it would as apply socially among of a conversation friends or relatives Indeed, room, gathered living around the to the facts of this case. disagree society reasonably expects government who would as the private setting” record “conversations held in a such during family confines of one’s home dinner? I Thanksgiving here. The certainly disagree-but would those are not the facts personal family setting in a dinner far privacy than the of in a commercial transaction expectation different a in a product where a is sold to non-confidant brief encounter. different, the Although remarkably imprecise analysis Court’s treats distinguish are if they powerless them as if identical-as the Court is very between these different factual scenarios. law, however, Commercial The does make such distinctions. the public the are not same as social

transactions made with living enterprises friends in the room. Criminal among conversations recall family Thanksgiving the same dinners. We should are not as illegal drugs the Earl about sale of what Chief Justice Warren wrote home. too realized that these were “commercial” out of a He privacy expectation: the transactions which alter home does agent petitioner’s entered The fact the undercover question, the home is a compel different conclusion. Without See range protections. the of Fourth Amendment accorded full (1921); v. United States, 255 Harris Amos v. United U.S. (1947). here, when, States, 145, 151, But as the n. 15 U.S. center to outsiders are into a commercial which home converted business, transacting purposes invited unlawful for of greater sanctity business is entitled to no than it were on carried if store, car, in a on garage, a a the street. A government agent, the same private person, may accept manner as a an invitation do upon business and the premises very enter for the purposes contemplated by occupant. the (1966) States, 206, 211, Lewis United 385 U.S. 87 Ct. S. added). (emphasis Thus, not merely place, it the but circumstances and character meeting-i.e., of a all are facts-which expectation critical the assessment of the privacy. of We should not enterprises just endow criminal with a blanket of expectation privacy they Indeed, because are conducted a home a within or within vehicle. jurist no less concerned about than rights individual Justice William Brennan was clear claims very privacy about the of those engaged the activities of the defendants here:

The protects against Fourth Amendment governmental intrusion sanctity upon “the of a home and the privacies Boyd man’s oflife.” States, However, v. United 116 U.S. can occupant break sanctity the seal and waive privacy his in the of premises. Plainly he does to the he opens extent that his home and anyone willing transaction business invites to enter to come trade in to with him. (J.

Lewis, Brennan, 385 U.S. at 87 S. Ct. at 428 concurring). The public and commercial nature of the criminal enterprise illegal drugs issue here-the sale of to strangers-separates this case crimes, other drug-related, kinds of even further illustrates necessity analysis. instance, of close factual person joining For pot, illegal act, others at a house to though friend’s smoke would expectation have a different than a who person undertakes meeting public drug risk with member to consummate a different, dynamics clearly transaction. ofthese situations are dynamics analysis it is different which instruct the under first test-(l) prongs of search two the unreasonable and seizure actual (2) society’s expectation willingness accept A objectively person simply as reasonable. cannot have he knowingly exposes illegal drugs same when purpose selling commercial them non-confidant he to a family. engaged private socializing does while friends and Indeed, below, as shown the Defendants here as much. expressed approach over-generalizing, Consistent its the Court with delegates summarize attempts to the statements of the to the in a which appears Montana Constitutional Convention manner the Defendants had its and concludes that provide holding, support continue to because “Montanans privacy reasonable by them Montana’s Constitution.” guaranteed privacy cherish the conclusion, and certainly dispute general not Opinion, 35.1 do delegates the to the constitutional general do not the idea that dispute However, Court considers regard. the privacy high convention held specifically delegates words, ignores and other only some of the reality that the altogether, thereby covering up the applicable words electronic surveillance and delegates’ primary concern was over without the consent government undertaken the eavesdropping that such any Delegate Campbell’s which indication party, about taking place not really activity not need and such was activity “was understood, delegates’ at can be as well the actual this time” as at here. Montana expressions about factual scenario issue 7, 1972, March Convention, Transcript, p. Constitutional Verbatim 1682. Delegate Campbell amplified: further you excluding

I “oral feel that with communications” are who, legitimate law with the consent of one people, enforcement calls party, person being by phone who is threatened and this, privacy The of that things like act on behalf of victim. consent, certainly her and individual could be waived with his or certainly there’s no toward obscene caller. 1685. And Dahood added:

Transcript, p. Delegate all, Yes, let me this does not in question. answer that First of situation, way relate to nor does it any phone the obscene call ability company to make traces. The telephone relate to ofthe reason is constitutional or logic personal rights, this: all otherwise, phone Lady receiving A is the obscene waived. company right grants telephone call. She waives her intercept The individual that’s right that communication. right respect with making the call does not have the calls, so the law as a violating making phone obscene rights .... interfering anyone’s we are consequence, p. 1686. Transcript, Mont, sure, delegates, 276- quoted Siegal, ¶98 To be “wiretaps,” “eavesdropping,” condemned monitoring, forms ofnonconsensual “electronic surveillance” and other consenting of a yet spoke party time approvingly at the same had, party wherein the other telephonic of a conversation facts, communication. under the waived the party and case one before us illustrates a similar scenario-consent facts no illustrating reasonable on the part other in delegates the transaction. The clearly distinguished between scenarios, these two different but the Court Neither the does not. does acknowledge Court the delegates’ specific in this regard. views Consequently, the Court a the privacy expectation finds in what delegates clearly stated a non-private was situation. The Court does explain a privacy springs how interest from a non-private forth commercial transaction. In paragraph the Court appears distinguish between the repeated risk that conversation will be and the risk that consensually electronically the same will be conversation by government However, monitored agents. if this is the Court’s distinction, it society is without a constitutional difference because would not a privacy drug consider interest in a non-private commercial Indeed, transaction to be reasonable. our constitutional convention not, delegates legal did neither did some of greatest the minds time, quoted Accordingly, join our herein. I would them and Hamilton, conclude that no “search” took See place. (explaining 17¶ that where objectively no reasonable privacy exists occur). search does not However, arguendo even assuming occur, that a search did analysis

Court’s of the again “nature of State’s intrusion” further ignores present facts case and mischaracterizes the role consent in jurisprudence. our search and seizure Most notably, while the Court overrules Brown “merely paralleled on the basis that it federal in jurisprudence,” its discussion of “consent” the Court opts “use some Fourth analysis addressing federal Amendment issues under the Supreme Montana Constitution” relies on the Court Georgia case of on Randolph. Opinion, 42. The Court’s reliance jurisprudence federal is at an inconsistent best and unfortunate consequence twisting holding Randolph is the to fit the issue at hand. despite involved the of a co- Randolph search home one of the

occupant’s refusal The express to consent the search. United States Supreme occupant Court concluded that the refusal of one to consent trumps of a co-occupant police consent not search the quarters. Randolph, shared 547 U.S. at 126 S. Ct. at 1526. The Randolph fairly situation cannot likened to the instant case. As the deduces, correctly the item searched here is conversation. home, Opinion, However, conversation, unlike a not a shared commences, space. Once the conversation it becomes individual Brown, at property of each See 232 Mont participant. in the interest equal [have] participants that “both (stating (absent ....”). the other prevent can participant Neither conversation each has because repeating conversation privilege) sharing dwelling space A is not the same as it. conversation full control over not required and, accordingly, consent of both conversationalists order to monitor conversation. electronically However, by parties both to an concluding that fails the Court monitoring, must consent

monitored conversation here: that consensual the true distinction work acknowledge of a monitoring monitoring “eavesdropping”-the than is different any party. government without the consent of conversation lumps the informant’s consent consensual failure honor the same purposes, all constitutional because eavesdropping are, either, though according they are even requirements imposed sum, clearly constitutionally distinct. In longstanding jurisprudence, null, it no effect party’s giving the Court renders the “consent” ‘[revelations] is a substantial distinction between “[T]here whatsoever. party to the Government to conversations with the defendant’ of eavesdropping knowledge on the consent conversations without 705, n.4, Karo, 104 either to it.” United States v. 468 U.S. 716 party (Bracket (1984). 3296, original.) explain n.4 this in S. Ct. 3304 We the “It does not important holding open Brown: is to stress that this society that is not floodgates to create an Orwellian the individual protections against inappropriate left electronic without Mont, Brown, 11, 1371. eavesdropping.” 232 at 755 P.2d at ignores High guidance the Court’s ¶103 The Court’s conclusion also assessing “[t]he that constant element Fourth Amendment great significance given ... reasonableness in the consent cases is the 111, Randolph, US. at widely expectations[.T shared social added). (emphasis widely expectation, at 1521 The shared social S. Ct. 35, is the accepts person that each assumes paragraph as this Court repeat the turn around and participant risk that conversation importantly, we share the social the conversation. More Brown, person purports is he be. See that we assume who that “mistaken trust” (explaining Mont at 755 P.2d at 1371 defense). However, expectations Court social behind the leaves these distinguishable Randolph highly rationale onto a and forces the situation. appropriately rationale is assuming Randolph Even (1) here, of that decision: ignores points Court two critical

used (2) here, Randolph, as in neither defendant “refused” consent Randolph expressly Court stated that police need not “take steps potentially affirmative find a objecting co-tenant before acting on permission they [have] already received.” Randolph, U.S. at 126 S. at today Ct. 1527. The Court into Randolph reads requirement give the police each person present “opportunity to object However, to the search.” Opinion, 45.2 the Supreme Court expressly police to require type refused to take of affirmative action, stating: “There ready is no reason to believe that efforts to cases, invite a refusal in many would make a difference every whereas co-tenant consent case turn a test would into about the adequacy the police’s potential efforts to consult with a objector.”Randolph, 547 U.S. 126 S. at conveniently Ct. 1527-28. The Court ignores these portions of the Randolph decision-perhaps this what Court by saying means it will “use federal Fourth analysis some Amendment added). Opinion, (emphasis ....” 42¶ Moreover, by likening the instant Randolph case to analysis

ends its nature the state’s intrusion and fails to consider other pertinent foremost, details. First and the recording did produce any beyond evidence what the informant herself could relayed. have fact This led District Court to conclude that the government here excessively action was “not intrusive.” facts clearly distinguish the monitoring here from the “sense enhancing” technologies of type Siegal, we addressed in which we noted could be used to “surreptitiously signatures generated monitor the heat activities within private [Montanans’] conducted the confines homes and enclosed purpose drawing structures for the inferences about legality Siegal, such activities.” 934 P.2d at such capture private, unexposed No information about the accomplished Nothing defendants was here. that was recorded the consciously state, defendants did not which the informants could having not as relate heard firsthand. argued monitoring It could be that consensual enhances the police

senses of can they because officers hear conversation which However, otherwise could not. this distinction is not one of dimension, by constitutional the only because it relates to mode which received, the information is not the content that information. testifies, Whether the informant or the officer testifies with the tape, 2 very engaged illegal drugs idea that one be in the commercial sale of to a non- object” given “opportunity police confidant must the can before monitor the fanciful, parties’ flight perhaps the conversation is into the ludicrous.

461 Thus, that defendants’ the it is clear evidentiary is same. potential the strategy: they do to trial really claim boils down constitutional pesky truthfulness against daunting fighting task not want the by own, However, explained as well very their recorded words. Harlan, Supreme Lopez, Court in writing for United States Justice that a defendant’s right is in the there no constitutional surreptitiously not be recorded: own words will argument amounts to essentials, petitioner’s to its Stripped rely flaws possible he on that has a constitutional saying credibility memory, challenge agent’s agent’s in or to by corroborating evidence that is being without beset argument justify For no other can impeachment. susceptible agent of a conversation that the excluding an accurate version petitioner testify memory. We think risk could risk that the offering fairly took a bribe Davis included the in court, accurately whether reproduced would be in faultless offer recording. memory or mechanical (1963) States, 427, 439, 1381, Ct. v. United 373 U.S. 83 S. 1388 Lopez added). (emphasis parted ways It true that Justice Harlan later is Supreme Court the issue of warrantless consensual

United States on His in often serves as fodder for monitoring in White. dissent White and, indeed, quoted it in arguments criticizing practice, this Court Brackman, 115, (1978), 105, 1216, P.2d State v. 178 Mont. Brown, overruled, P.2d at 1369. Given Katz, citation, further, that Justice Harlan’s concurrence our generally regarded U.S. at 88 S. Ct. at as the source of to the issue privacy jurisprudence, approach Court’s his White dissent, us Harlan noting. gave is worth his White Justice before following analyzing technological issue: test or construct must, view, assessing the my

This be answered question likely impact particular practice extent its nature of utility security against the on the individual’s sense of balanced of law enforcement. technique of the conduct as a (J. Harlan, White, dissenting). S. 401 U.S. at 91 Ct. at of this case construct to the facts Justice Harlan’s Applying practice,” First, particular the “nature ofthe yields interesting results. above, intrusive, captured here as discussed about, testify thus nothing the informant could also more than nothing than a to be reducing claim to more wish defendants’ of their own words. jury hearing tried without Secondly, “likely impact what the extent of its the on individual’s security’? course, of Of of impact sense the “extent” the is likewise by reduced monitoring, limited information obtained but question fully this is more record, answered other facts from the which are most illustrative. Goetz selling drugs As stated while Trusler: sh**,

[T]he real deal is are they with this all over. The Feds are everywhere f***ing DTF, FBI, in this town. The there’s reason to be supermltraJ***ing-freaked! I suggest would that “likely extent the impact” of of monitoring upon security”

consensual of people “sense of commercially marketing illegal drugs public anin environment is, very of active law respectfully, activity enforcement minimal. This highly risky venture, and, indeed, is a engaging good one in it truly has because, knowledge reason be “freaked” consistent with Goetz’s of risk, Thus, likely law is engaged. enforcement extent of the impact of upon consensual the defendants’ “sense of security,” warrant, with or without a reasonably significant. is not Lastly, requires Justice Harlan’s construct a of balancing these against “utility first two factors of technique the conduct as a of that, law point, disagree enforcement.” On this few would as a technology, great utility this tool is of to law enforcement. In a case involving informant, a acknowledged wired use “[t]he we that long informants recognized police has been as an tool allowable investigation.” 298, Reavley, State v. 2003 MT 318 Mont. ¶ point 36. This was acknowledged further questioning during argument Court’s State’s counsel oral this case: suggesting I the heightened

Counsel: What am standards particularized suspicion government would be imposed burdened with if absent particularized suspicion were really this search finding jeopardize ability would our basically use effectively give people and would informants engage license in criminal businesses their homes. That’s suggesting. what I’m Counsel, I question.

Justice: let me ask broader think us all of of, through have become accustomed to the notion television and conduct, police police investigation,... the movies books about informants, the use criminal and the confidential informants those, body But often times see that the [in] use wires. we mafia, guys, they’re theyre organized crime, are defendants bad need to allow really Do murders involved. we there’s intrusion, we’re when play, come into allow this technology to talking fifty pot buy? dollar about Well, disagree I about people can see would

Counsel: where that, the matter is that government the fact of doing but drugs dangerous people’s of that the involves the criminal sale I illegal. And don’t think have determined to be representatives is whether one interest get determining the Court should into involving Mr. Goetz stronger, you’re dealing whether with Hamper involving marijuana. methamphetamine Mr. [Emphasis added.] Truly, today, only in terms of it a different world

fill use advances, but in the of the of technological expectation also submit, I italicized above likewise technology. questioning would as the indicates, citizens, society especially young people today’s that our in CSI, of and would age who have been raised in the Law and Order think it a reasonable drug unusual that dealer would have during drug sale to non- his conversations being consensually drug were not The dealer confidant monitored. subjective have a but it is not an that our expectation, society would deem reasonable. Moreover, informant, monitoring provides protection for the provides

who for accurate physical police, risks harm work with and Thus, ofthe of the transaction. preservation evidence construct, utility technology purposes of Justice Harlan’s of this very interest in high compelling the furtherance of the state’s state “enforcing] protection” its criminal laws for the benefit 548, 556, Ct, rel 180 Mont. citizens. State ex Zander v. Dist. (1979). factors therefore weighing of Justice Harlan’s practice” here utility “particular

results in a conclusion that the security. clearly outweighs impact upon the defendant’s sense

Conclusion continuing do Montanans This case has little to with homes, privacy” their and even less about Opinion, “cherish the setting” Opinion, a private conversation^] conducted in “one-on-one facts, setting added), because, in view of the (emphasis simply 31¶ facts A focus on the private. proper here not be considered should in commercial transactions engaged reveals that the defendants were that our non-confidants, explain have careful to and we been necessarily engaged conduct “for holdings apply do not purposes.” Gryczan State, 433, 455-56, commercial 283 Mont. (1997). P.2d Rather, this case is about avoiding the truth—the defendants’

raising of a keep truth, is, claim to the recording of words, their own jury thereby gaining a tactical advantage by escaping strong their They evidence of crimes. want this result despite they the fact police are informed of the active point being involvement ultra freaked out” “super about local police presence and high nonetheless assumed the risk exposing their trade and through multiple their wares contacts with non- confidants. Their actions were not consistent with the desire for privacy. Indeed, I believe it is untenable for the Court to conclude that society would find reasonable against claims consensual of such actions. The rightly District Court society concluded that would find this connived claim reasonable. only There is not no indication that the of Rights Declaration was intended be applied risky, behavior, to such non-private but the just debates demonstrate opposite. The Court’s conclusion to the contrary results, my view, cheapening “genuine our liberties,” about which the United Supreme clearly States Lee, warned. On 343 U.S. at Ct. right 72 S. at 971. Our of privacy hijacked has in by engaging been those activities which the was clearly not meant protect, to and has thus been devalued-becoming the refuge new of meth selling public by they dealers to the means well knew risked law enforcement delegates involvement. The to the Constitutional Convention did countenance such a distortion ofthe right they found the well-being society.” “essential to of a free not, And I would I either. dissent. response the by concurrences Justice Cotter and Justice Leaphart, appreciate I that Justice Cotter’s concurrence least facts, recognizes something the commercial nature of the the Court’s opinion However, I disagree does do. must with her suggestion, also by Leaphart’s concurrence, analysis made Justice that the herein only “is intended to apply to those transactions that are criminal in Cotter, by nature.” J. As the concurrence indicated discussion ¶ herein, example in paragraph and the therein-that those gathering act, to smoke pot together, though criminal would nonetheless have a different in expectation engaged than those the actions in this case-the criminal nature of the transaction does not control the paragraph 29, requires outcome. As the Court in recognizes the law determined by that the expectation privacy “looking be the what this dissent precisely the That is facts of case.” particular It regard legality of those facts. bears advocates, without the jurists quoted however, recognized by as the esteemed repeating, considerations, opening house for herein, such as one’s that factual inevitably privacy analysis. transactions, impacts commercial any answer to Leaphart Cotter nor Justice has Neither Justice jurists on these issues. expressed collective wisdom these disagree Justice Cotter’s statement I also might reasonably any one analysis “gut expectation privacy would Cotter, concurrence 125. conversation[.]” J. have his commercial making be careful about broad statements Again, we should commercial from the facts and the law. In addition disconnected facts, transaction, many varying additional nature of the there are case, requires purposes considered. For each which our law brevity, doubt, Justice concurrence does not consider no Cotter’s are However, facts the facts critical additional about this transaction. example, law. For under our garage at a crowded sale the place

commercial transaction which takes going in a are as one consummated closed office? Unless we same case,” regard “particular decide without facts of the these cases Indeed, factual should matter. the law that we requires distinctions society determine whether a claimed is one way considering only to be reasonable. The we can do so believes society properly applying the facts of the matter. If we are how views facts, the law to the then some commercial transactions would be duty private, not. Our is to by society viewed and others would time, particular facts. upon decide one case at based Leaphart’s agents concurrence advocates Justice any warrant, “no without state should not monitor conversation occur setting,” even those conversations which matter what 57, 59. Under private setting.” Leaphart, “outside a J. concurrence conducted, conversations, wherever and however approach, all longer need right. Courts would no would be blanketed with a the case.” This be what “particular to consider facts of No desires, not a ofAmerican law. categorically principle author but is Although it. the concurrence jurisprudential authority can cited for White, clearly Harlan was Harlan’s Justice cites Justice dissent concurrence, by the asserted position for the extreme taken advocating concurrence 58. necessary society.” Leaphart, for a “free J. to be free society” not consistent with the 119 notions of a “free are Such country and society by history of this established the constitutional 466 herein, explained joins

state. As position by dissent taken Supreme U.S. Court on electronic under the federal This interpreted constitution. Court likewise the Montana Constitution and, past twenty years importantly, for the delegates more 1972 Montana Constitutional Convention position took the of this Further, give dissent. and which high should the Court pause, states, courts of our sister consistent with federal authority, have repeatedly reached the conclusion advocated this dissent when interpreting their state See State, constitutions. Hammond v. 354 So. (Ala. 280, 1977); 2d App. Smithey State, 292-93 Crim. v. 602 S.W.2d (Ark. (Cal. 676, 679 1980);People 423, v. 711 Phillips, 1985); P.2d 437 (Colo. People Velasquez, 943, v. 641 1982); Grullon, P.2d 949 State v. (Conn. 481, 1989); 562 A.2d 489 v. Morningstar State, 220, 428 2d So. cert, (Fla. 1982), denied, 221 n.l 464 U.S. (1983); State, 821 Green v. (Ga. 544, Lester, 1983); 299 S.E.2d (Haw. 546 v. 346, State 350-51 (Ill. 1982); People Richardson, 260, v. 264 1975); 328 N.E.2d (Ind. State, 915,918 1983); Lawhorn v. 452 Commw., N.E.2d Carrier v. 115, (Ky. App. 1980); Reeves, 403, 607 S.W.2d 117 State 427 v. So. 2d (La. (Miss. 1983); State, 1382,1386 410 Lee v. 489 So. 1986);People 2d (Mich. Collins, 684, v. 1991); 475 N.W.2d 698 Engleman, State v. (Mo. (N.H. 198,199 1983); Kilgus, A.2d231,240-41 S.W.2d State v. (N.C. 1986); Levan, 429, 1990); State 388 S.E.2d State v. (Ohio Geraldo, 141,145-46 1981); 429N.E.2d v.Blystone, Commw. (Pa. 1988); Ahmadjian, 1070,1081-82 A.2d 87-88 State v. 438 A.2d (R.I. (Tenn. 1981); State, Clariday v. 552 S.W.2d 768-69 Crim. (Utah Boone, App. 1976); State v. 1978); P.2d 573-74 (W. 1982). State, further, Blackburn v. 290 S.E.2d Va. Still Justice, American Bar Association Criminal Electronic Surveillance of 2-5.1(a), Private Communications Standard states as follows: intercept A law enforcement officer should be permitted to private contents of a communication with the ofone ofthe consent order, parties to the communication provided without a court intercepts the officer proper uses communication performance of the officer’sofficial duties. These authorities and sources make clear that Justice society” theory

Leaphart’s “free runs counter to our nation and state’s Indeed, constitutional as enunciated in countless principles cases. theory is more akin to traditional anarchist than thought concurrence’s our history: upon “[Alnarchism constitutional is based idea individual, sovereign the belief that individual conscience and the public body pursuit any of self-interest should be constrained 46, Politics, Key Concepts in Heywood, authority.” Andrew collective 2000). (MacMillan system our was Though privacy, we all desire Press endorsed, right an absolute has ever upon, not formed nor permit a limitless sovereign individual which would premised upon the theory, doing in good may it sound pursuit of self-interest. However is not a free government interference one wants” without “whatever thinking have American society. anarchy. It Such would not allowed is years. our society to over two hundred Under free survive for life constitutions, pursue means the to one’sown within freedom democracy the was upon of which principles the confines the solemn founded. Court, the Supreme the U.S. judgment the collective of Upon

¶121 Convention, justices the delegates to the 1972 Montana Constitutional twenty years, high and the past the Montana Court for the Supreme of states, Court. of I would affirm the District courts our sister WARNER dissents. JUSTICE only agree I the dissent of Justice Rice. The emphatically the will be to increase today

real world result of the Court’s decision criminal all transactions. perpetrator’s types use of a home for safety, might opt law enforcement continue For the sake transmitting electronic officers and citizen informants with equipping securing they dangerous task of evidence devices when undertake offenders, naturally drug dealers, white-slavers and other who against is open. out in the It flagitious decline to conduct their business could used in redirect examination. recordings that such be possible (8th 2005). And, a Burns, 856, Cir. in event U.S. v. 432 F.3d testimony of testify criminal defendant chooses to and contradicts transaction, actually ofwhat State’s to a criminal witness e.g. handy purposes. in See might impeachment come happened (1984); 897, 910, 3405, 3414 Leon, 468 104 S. Ct. Walder v. U.S. U.S. York, U.S., 65, 354, (1954); Harris v. New 62, 347 U.S. S. Ct. (1971). S. 401 U.S. 91 Ct.

JUSTICE COTTER concurs. is no Dissent, that there proposition which stands for is product in a transaction where commercial first (Dissent, 94), on a appeal has surface to a non-confidant sold wherever However, analysis problematic, in is my judgment, read. fall. might it spectrum application on that the Court’s decision complains Dissent While the reach. If the too is its own unnecessarily sweeping, broad and so equally criminal apply rationale is intended Dissent’s law-abiding submit, I alike-which it must-then it stands for the proposition virtually any commercial transaction surreptitiously only recorded without warrant and with one party’s consent, resulting recording being with the admissible in evidence against would, essence, speaker. gut any It one might reasonably conversation, have his commercial regardless of the If, hand, lawfulness of the transaction. on the other analysis apply only intended those transactions are nature, repeatedly suggested throughout criminal as is the Dissent (i.e., Dissent, addressing impact such upon “people commercially marketing illegal drugs public ... ain highly risky venture”; Dissent, Rights Declaration was be applied risky non-private behavior,” etc.), intended “to to such duty then it runs afoul our to treat all persons the same before the law, without distinction for criminal/non-criminal behavior. See Opinion, Respectfully, unacceptable. either result is It repeating that is imposing outright bears the Court ban on only electronic of conversations consent of participant. one All saying we are is that there should be sufficient probable enterprise cause that a criminal support about occur to allowing monitoring. view, issuance of a In my warrant such preferable a far expansive alternative than an rule would which permit the surreptitious introduction into evidence of non-consensual recordings any every conducted in I virtually setting. commercial therefore concur. joins

JUSTICE NELSON in the Concurrence of JUSTICE COTTER.

Case Details

Case Name: State v. Hamper

Court Name: Montana Supreme Court

Date Published: Aug 20, 2008

Citation: 191 P.3d 489

Docket Number: 05-676 & 05-539

Court Abbreviation: Mont.