Lead Opinion
delivered the Opinion of the Court.
¶1 Michael Thaddeus Goetz (Goetz) and Joseph Patrick Hamper (Hamper) (collectively, the Defendants) appeal from the judgments entered by the Eighteenth Judicial District Corut, Gallatin County, on their respective convictions for felony criminal distribution of dangerous drugs. Specifically, the Defendants challenge the District Court’s denial of their motions to suppress evidence. We reverse and remand.
¶2 We address the following issue:
¶3 Were the Defendants’ rights under Article II, Sections 10 and 11 of the Montana Constitution violated by the warrantless electronic monitoring and recording of their one-on-one conversations with confidential informants, notwithstanding the confidential informants’ consent to the monitoring?
BACKGROUND
¶4 In light of the identical primary legal issue raised in these two appeals, we consolidated the cases for purposes of oral argument and resolution. The following sets forth the relevant factual and procedural background of the individual cases.
State v. Goetz
¶5 On May 19, 2004, Matt Collar (Collar), a detective with the Missouri River Drug Task Force (Task Force), made contact with Suzanne Trusler (Trusler), who previously had agreed to act as a confidential informant for the Task Force. Trusler informed Collar she had arranged to purchase a gram of methamphetamine from Goetz. Trusler then met with Collar and Detective Travis Swandal
¶6 The State of Montana (State) subsequently charged Goetz by information with the offense of felony criminal distribution of dangerous drugs. In the information, the State listed Collar and Swandal as witnesses to be called at trial. The State also advised Goetz that it intended to introduce the tape recording of his and Trusler’s conversation, and a transcript of the recording, into evidence at trial. Goetz moved the District Court to suppress the evidence derived from the electronic monitoring and recording of the conversation on the basis that it violated his rights to privacy and to be free from unreasonable searches and seizures as guaranteed by Article II, Sections 10 and 11 of the Montana Constitution. The District Court held a hearing and subsequently denied the motion to suppress. Goetz then pled guilty to the charged offense, expressly reserving his right to appeal the District Court’s denial of his suppression motion.
State v. Hamper
¶7 On August 4, 2004, Collar made contact with Chrystal White (White), who previously had agreed to act as a confidential informant with the Task Force. White informed Collar that she had arranged to purchase 1/8 ounce of marijuana for $50 from Hamper. White met with Collar and Swandal and allowed the detectives to outfit her with a body wire receiving device. Collar provided White with $50 to purchase the marijuana. White met Hamper in a parking lot and purchased marijuana from him. The drug transaction took place in White’s vehicle and the conversation between White and Hamper was monitored and recorded by the detectives via White’s body wire. The following day, White again contacted Collar and informed him she had arranged to purchase another 1/8 ounce of marijuana from Hamper for $50. White met with Collar and Swandal and again allowed them to outfit her with a body wire. White then went to Hamper’s residence and purchased marijuana from him. Again, the conversation between White and Hamper regarding the drug transaction was electronically monitored and recorded by the detectives via White’s body wire. The detectives did not seek or obtain search warrants authorizing the electronic monitoring or recording of either conversation. Hamper was unaware of, and did not consent to, the electronic monitoring and recording of either conversation.
¶8 The State subsequently charged Hamper by information with two counts of felony criminal distribution of dangerous drugs. The State indicated its intent to call Collar and Swandal as witnesses at trial, and also indicated its intent to introduce the recordings of the two conversations-and transcripts of those recordings-into evidence at trial. Hamper moved to suppress evidence obtained via the electronic monitoring and recording of the two conversations on the basis that it violated his rights to privacy and to be free from unreasonable searches and seizures as guaranteed by Article II, Sections 10 and 11 of the Montana Constitution. The District Court held a hearing and subsequently denied Hamper’s motion to suppress. Hamper then pled guilty to the charged offenses, expressly reserving his right to appeal the denial of his suppression motion.
STANDARD OF REVIEW
¶9 We review a district court’s denial of a criminal defendant’s motion to suppress evidence to determine whether the court’s findings of fact are clearly erroneous and its interpretation and application of the law correct. State v. Copelton,
¶10 Were the Defendants’ rights under Article II, Sections 10 and 11 of the Montana Constitution violated by the warrantless electronic monitoring and recording of their one-on-one conversations with confidential informants, notwithstanding the confidential informants’ consent to the monitoring?
¶11 The Defendants’ motions to suppress relied primarily on State v. Solis,
¶12 The District Court recognized the conflict between Solis and Brown, and noted our own observation, in State v. Hardaway, 2001MT 252, ¶ 51,
¶13 The Fourth Amendment to the United States Constitution and Article II, Section 11 of the Montana Constitution protect citizens against unreasonable searches and seizures. The Defendants do not dispute that, pursuant to United States Supreme Court jurisprudence, warrantless electronic monitoring of face-to-face conversations, with the consent of one party to the conversation, does not constitute a search and, therefore, does not violate the Fourth Amendment. See e.g. United States v. White,
¶14 Article II, Section 10 of the Montana Constitution provides that “[t]he right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.” Article II, Section 11 of the Montana Constitution provides that
[t]he people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures. No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing.
We address Article II, Section 10 in conjunction with Article II, Section 11 in analyzing and resolving a search or seizure issue that specifically implicates the right to privacy. See e.g. Hardaway, ¶ 32; State v. Siegal,
I. Solis and Brown
¶15 Given the parties’ and the District Court’s understandable reliance in this case on early Montana privacy and search and seizure jurisprudence as set forth in Solis and Brown, we begin with a discussion of
¶16 On appeal from the trial court’s suppression of the videotapes and testimony, we addressed whether the State violated Solis’s right to privacy under Article II, Section 10 of the Montana Constitution. First, we set forth the test for determining whether an individual has a constitutionally protected right of privacy as (1) does the individual have an actual or subjective expectation of privacy? and, if so, (2) is that expectation of privacy one which society is willing to view as reasonable? Solis,
¶17 We next proceeded to the question of whether a compelling state interest justified infringing on Solis’s right under Article II, Section 10 of the Montana Constitution. We determined that a compelling state interest exists where the state is enforcing its criminal laws for the benefit and protection of its citizens, especially under the Solis circumstances where the suspect had engaged in repeated activity thought to be criminal. Even when a compelling interest in invading an individual’s privacy existed, however, we required that the procedural safeguards attached to the constitutional right to be free from unreasonable searches and seizures must first be met. In other words, “[t]he State was required to show probable cause to support the issuance of a search warrant.” Solis,
¶18 Solis set forth an in-depth discussion and analysis of the right to privacy guaranteed by the Montana Constitution. However, only two Justices concurred in the holding based on application of the Montana Constitution. Three additional Justices concurred in the result of the decision, but relied on Katz v. United States,
¶19 The Court decided Brown in 1988, less than four years after Solis. In that case, law enforcement monitored and recorded three conversations between a suspect and an undercover police officer via a body wire transmitting device attached to the officer. The conversations took place in a vehicle in a parking lot, over the telephone and in a motel room rented by the undercover officer, and all related to arranging and completing a single transaction for the sale of marijuana. Upon being charged with felony criminal sale of dangerous drugs, the defendant moved to
¶20 In addressing the defendant’s face-to-face conversations in the vehicle and motel room, the Court noted the United States Supreme Court’s holding in White that warrantless electronic monitoring of face-to-face conversations-with the consent of one participant-does not violate the search and seizure provisions of the Fourth Amendment to the United States Constitution. The Court also recognized, however, that Article II, Section 10 of the Montana Constitution, in conjunction with Article II, Section 11, grants rights beyond those in the federal constitution and requires an independent analysis of privacy and search and seizure issues. Brown,
¶21 The Brown Court observed that some violation of a person’s reasonable expectation of privacy must have occurred before the protections of Article II, Section 11 are implicated. The Court then determined-with little analysis and no citation to authority-that, while the defendant possessed a subjective expectation that her conversations with the undercover officer would remain private, her expectation of privacy was not reasonably justifiable and, consequently, no search or seizure occurred. Brown,
¶22 When discussing why the warrantless consensual electronic monitoring and recording of the conversation did not violate the defendant’s rights under the Montana Constitution in Brown, the Court cited United States Supreme Court cases and one legal commentator. Furthermore, while Brown did not expressly cite White, the concepts contained in the discussion of the Montana Constitution in Brown appear to be taken directly from the Supreme Court’s rationale in that case. See White,
¶23 In more recent years, this Court has readily applied Article II, Section 10 in search and seizure cases to protect the privacy interests of Montana citizens. Indeed, in Hardaway, ¶ 57, we noted our “consistent trend toward protecting the privacy interests of our citizens[:]”
[I]n State v. Sawyer [174 Mont. 512 ,571 P.2d 1131 (1977)], this Court first applied Article II, Section 10 to a search and seizure case and explicitly stated that Section 10 provided greater individual privacy protection in such cases than did the federalconstitution. We restated this rule in [SoZis] and State v. Sierra, [ 214 Mont. 472 ,692 P.2d 1273 (1985)], among others. During this same time, however, the Court ruled on numerous other search and seizure cases and made no reference to Article II, Section 10 whatsoever.... Subsequently, from the mid-1980s through the early 1990s, the Court provided no greater protection for individual privacy in search and seizure cases than parallel federal law provided .... However, since City of Billings v. Whalen (1990),242 Mont. 293 ,790 P.2d 471 , this Court has given increased protection to the privacy rights of Montana citizens, limiting the scope of search and seizure cases, and since State v. Bullock [272 Mont. 361 ,901 P.2d 61 (1995)], the Court has applied Article II, Section 10, emphasizing “privacy as a mechanism to support interpretation of search and seizure cases.” ... In the ensuing years, we consistently analyzed search and seizure cases involving significant privacy issues under both Sections 10 and 11 of Article II of the Montana Constitution.
Hardaway, ¶ 51. In light of this “consistent trend” of protecting Montana citizens’ heightened privacy rights under our Constitution, the Hardaway Court overruled an earlier case addressing the relevant issue on the basis that the rationale in the prior case was premised exclusively on federal jurisprudence and failed to comport with current search and seizure and right to privacy analyses under the Montana Constitution. Hardaway, ¶¶ 55-57 (overruling State v. Ulrich,
¶24 Similarly here, we conclude Brown provides little, if any, guidance in resolving the issue before us in light of the reliance on federal jurisprudence-and limited analysis and application of the provisions of the Montana Constitution-in that case. Therefore, we overrule Brown and again recognize that Solis is not controlling precedent. As a result, we examine the issue before us anew, applying more current and consistent interpretations of Article II, Sections 10 and 11 of the Montana Constitution.
II, Analysis Under Current Montana Constitutional Search and Seizure and Right To Privacy Jurisprudence
¶25 The issue in the present case is whether the warrantless electronic monitoring and recording of a face-to-face conversation with the consent of one participant in the conversation violates the other participant’s rights to privacy and to be free from unreasonable searches and seizures guaranteed by Article II, Sections 10 and 11. The initial inquiry in addressing this issue is determining whether such conduct constitutes a search. See State v. Scheetz,
¶26 Article II, Section 11 protects Montana citizens from unreasonable searches and seizures. Similarly, the Article II, Section 10 right to privacy-even where established-is not absolute, but may be infringed upon a showing of a compelling state interest to do so. See State v. Nelson,
¶27 We determine whether a state action constitutes an “unreasonable” or “unlawful” search or seizure in violation of the Montana Constitution by analyzing three factors: 1) whether the person challenging the state’s action has an actual subjective expectation of privacy; 2) whether society is willing to recognize that subjective expectation as objectively reasonable; and 3) the nature
A. Did the Defendants Have an Actual Subjective Expectation of Privacy?
¶28 “[W]e recognize that naturally a person seeks to protect certain parts of his or her privacy, and it is those desires which are at the foundation for the constitutional safeguards that exist to protect them.” Scheetz,
¶29 These fundamental principles clarify that we base our recognition of an actual expectation of privacy on various factors. See Scheetz,
when persons leave the privacy of their home and expose themselves and their effects to the public and its independent powers of perception, it is clear that they cannot expect to preserve the same degree of privacy for themselves or their affairs as they could expect at home. However, when a person takes precautions to place items behind or underneath seats, in trunks or glove boxes, or uses other methods of ensuring that those items may not be accessed and viewed without permission, there is no obvious reason to believe that any privacy interest with regard to those items has been surrendered simply because those items happen to be in an automobile.
Elison, ¶ 51 (citation omitted). While Elison involved physical items stowed within a vehicle, the same rationale applies to a conversation with another person in a vehicle which cannot be overheard by the public outside the vehicle. Thus, where a person has gone to considerable trouble to keep activities and property away from prying eyes, the person evinces a subjective expectation of privacy in those activities and that property. State v. 1993 Chevrolet Pickup,
¶30 Here, the face-to-face conversations between the Defendants and one other individual were within the Defendants’ private homes and, in Hamper’s case, in the confines of a vehicle. The Defendants did not conduct their conversations where other individuals were present or physically within range to overhear the conversations. In other words, the Defendants kept their activities and conversations away from prying eyes (and ears), and did not expose their conversations to the public’s “independent powers of perception.”
B. Is Society Willing to Recognize the Defendants’ Expectations of Privacy as Reasonable?
¶31 We next address whether society is willing to recognize an individual’s subjective expectation that a one-on-one conversation conducted in a private setting is not being surreptitiously electronically monitored and recorded. Stated differently, does society perceive it is reasonable to expect privacy in a personal conversation held in a private setting? “The reasonableness inquiry hinges on the essence of underlying constitutional values-including respect for both private, subjective expectations and public norms. In assessing the constitutionality of technologically enhanced government surveillance in a particular case, we must identify the values that are at risk, and vest the reasonable-expectation-of-privacy test with those values.” State v. Blow,
¶32 We observe here the importance of avoiding an overly narrow delineation of the nature of the reasonableness inquiry, because to do so would render every conceivable factual difference in a conversation subject to litigation. In Montana, the protections afforded by Article II, Section 11 of the Montana Constitution “extend to all of Montana’s citizens including those suspected of a criminal act or charged with one.” Hardaway, ¶ 14. Indeed, we have long observed this principle, even under the search and seizure provision of our 1889 Constitution:
the exercise of the power of search and seizure is absolutely essential to the public welfare.... But the process may be exercised, and the law enforced and vindicated, without transgressing those constitutional guaranties which are provided for all alike, the guiltless and the guilty.
State ex rel. Thibodeau v. Fourth Jud. Dist,
¶33 We have on prior occasions quoted extensively from-and discussed the debates of-the delegates to the constitutional convention with regard to the inclusion of the right to privacy in the 1972 Montana Constitution. See e.g. Siegal,
¶34 “[T]he proceedings of the 1972 Montana Constitutional Convention disclose on the part of the delegates a particular concern over the intrusion of the government into the privacy of Montanans through the use of various types of electronic monitoring and surveillance.” Siegal,
[I]t is clear that the delegates’ concerns encompassed the invasion of citizens’ privacy without their knowledge by means of various sorts of electronic audio and visual monitoring and surveillance equipment. Not only were the delegates wary of existing technology of this type, but they recognized that this sort of technology would continue to be refined and would become more widespread and easily available. In this regard their concerns have been well-founded. Moreover, it is also clear that, in the delegates’ view, the use of this sort of technology should be justified only in the most serious of situations, involving heinouscrimes where it is necessary to “risk the right of individual privacy because there is a greater purpose to be served.”
Siegal,
¶35 The express statements of the delegates to the 1972 Montana Constitutional Convention regarding the government’s use of electronic surveillance against Montana’s citizens provide direct support for a conclusion that society is willing to recognize as reasonable the expectation that conversations held in a private setting are not surreptitiously being electronically monitored and recorded by government agents. We are convinced that Montanans continue to cherish the privacy guaranteed them by Montana’s Constitution. Thus, while we recognize that Montanans are willing to risk that a person with whom they are conversing in their home or other private setting may repeat that conversation to a third person, we are firmly persuaded that they are unwilling to accept as reasonable that the same conversation is being electronically monitored and recorded by government agents without their knowledge.
¶36 Nor should the underlying purpose or content of the conversations at issue reflect upon society’s willingness to accept a subjective expectation of privacy in those conversations as reasonable. As the Supreme Court of Alaska aptly stated,
[a]ll of us discuss topics and use expressions with one person that we would not undertake with another and that we would never broadcast to a crowd. New of us would ever speak freely if we knew that all our words were being captured by machines for later release before an unknown and potentially hostile audience. No one talks to a recorder as he talks to a person.... One takes the risk that his friend may repeat what has been said. One shouldn’t be required to take the additional risk of an entirely different character-that his conversation is being surreptitiously transcribed or broadcast.
.... It is axiomatic that police conduct may not be justified on the basis of the fruits obtained. It is, of course, easy to say that one engaged in an illegal activity has no right to complain if his conversations are broadcast or recorded. If, however, law enforcement officials may lawfully cause participants secretly to record and transcribe private conversations, nothing prevents monitoring of those persons not engaged in illegal activity, who have incurred displeasure, have not conformed or have espoused impopular causes.
State v. Glass,
¶37 Based on the foregoing, we conclude each Defendant’s expectation of privacy in the conversations at issue here is one society is willing to accept as reasonable. As stated above, “[a] search occurs when the government infringes upon an individual’s expectation of privacy that society considers objectively reasonable.” Hamilton, ¶ 17. Thus, we further conclude that the electronic monitoring and recording of the Defendants’ in-person conversations constituted searches within the contemplation of the Article II, Sections 10 and 11 rights to privacy and to be free from unreasonable searches.
C. Nature of the State’s Intrusion
¶38 We next address whether the nature of the State’s intrusion in conducting the searches at issue renders those searches unreasonable under the circumstances before us. In other words, the remaining question is whether the searches violate the Defendants’ rights under Article II, Sections 10 and 11 of the Montana Constitution.
¶39 As stated above, the Article II, Section 10 right to privacy is not absolute, but may be infringed upon a showing of a compelling state interest to do so. Even upon the showing of a compelling state interest, however, state action which infringes upon an individual’s privacy right must be closely tailored to effectuate that compelling interest. Hamilton, ¶ 37. Thus, “the State may not invade an individual’s privacy unless the procedural safeguards attached to the right to be free from unreasonable searches and seizures are met.” Elison, ¶ 53.
¶40 Our long-standing rule is that searches conducted in the absence of a properly issued search warrant are per se unreasonable, absent a recognized exception
“The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment [and Article II, Section 11 of the Montana Constitution] has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals.”
McLees, ¶ 26 (quoting State v. Sorenson,
1. Consent
¶41 The State first argues that the warrantless searches at issue here were authorized by the confidential informants’ consent to the monitoring and recording of the conversations. Indeed, we long have recognized that a warrantless search is not unlawful where it is conducted with consent freely and voluntarily given. See e.g. Sorenson,
“when the prosecution seeks to justify a warrantless search by proof of a voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.”
Sorenson,
¶42 As noted above, we derived the third-party consent exception to the constitutional search warrant requirement in Sorenson from the United States Supreme Court’s decision in Matlock. While we interpret Montana’s Constitution to provide greater protections for individuals in the context of search and seizure issues than does the Fourth Amendment to the United States Constitution, we use some federal Fourth Amendment analysis in addressing issues under the Montana Constitution. See e.g. Scheetz,
¶43 In Randolph, the defendant’s wife contacted law enforcement regarding a domestic dispute she had with Randolph. The wife informed the officers upon their arrival that Randolph was a drug user and items of drug use were located in the house. Randolph, who was present in the house at the time, denied his wife’s allegations and unequivocally refused the officers’ request for his consent to search the house. The officers then obtained the wife’s consent to search. During the search, the officers observed and seized evidence of drug use. Upon being charged with possession of cocaine, Randolph moved to suppress the evidence on the basis that his wife’s consent, given over his express refusal to consent, rendered the searches unlawful. The trial court denied the motion, the Court of Appeals of Georgia reversed the trial court, and the Georgia Supreme Court affirmed. Randolph,
¶44 The United States Supreme Court granted certiorari to address the question of “whether one occupant may give law enforcement effective consent to search shared premises, as against a co-tenant who is present and states a refusal to permit the
¶45 The Supreme Court further clarified that
if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.... So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant’s permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant’s contrary indication when he expresses it.
Randolph,
Here, the search of conversations by means of electronic monitoring and recording, rather than the search of premises, is at issue. Each party to each conversation was physically present at the time of the search and had an interest-that is, an interest in the nature of a co-tenant in physical premises-in the conversation. Under the Randolph rationale-which we expressly adopt vis-á-vis private face-to-face conversations-the confidential informants’ consent to the electronic monitoring and recording of the conversations could not override any objection expressed by the Defendants. Furthermore, because both parties to the conversations were present at the time the searches were conducted, both parties must have the opportunity to object to the search. As the Supreme Court observed, law enforcement may not avoid a refusal of consent by removing a potentially objecting individual from the premises prior to requesting consent. “A generalized interest in expedient law enforcement cannot, without more, iustify a warrantless search.” Randolph,
¶46 Similarly, here, the State cannot justify a search under the consent exception as a result of the simple expedient of failing to inform the potential-and physically present-objecting party that the search is being conducted. We conclude that the warrantless searches of the conversations at issue here cannot be justified by the consent exception to the warrant requirement.
2. Particularized Suspicion Standard
¶47 Alternatively, the State contends that, if we conclude the electronic monitoring and recording of a face-to-face conversation constitutes a search, it should be subject to a particularized suspicion standard rather than the Article II, Section 11 probable cause requirement for the issuance of a search warrant. In essence, the argument is that the State’s intrusion into the Defendants’ privacy expectations by the electronic monitoring and recording of their conversations was minimal and, therefore, did not rise to a level of requiring probable cause.
¶48 We observe at the outset that the State relies on 1993 Chevrolet Pickup and State v. Hart,
¶49 We turn, then, to the State’s argument that the particularized suspicion standard should apply to the search of the conversation between Hamper and the confidential informant which took place in the confidential informant’s vehicle. It first relies on 1993 Chevrolet Pickup in support of its argument, but that case is readily distinguishable.
¶50 In 1993 Chevrolet Pickup, law enforcement believed a suspect was operating an illegal drug laboratory. After a several-month investigation of the suspect’s activities, law enforcement officers conducted a warrantless “trash dive” on garbage cans located in the alley behind the suspect’s residence and discovered items related to the manufacture of methamphetamine. Based on the evidence found in the suspect’s trash bags, the officers obtained a search warrant and the subsequent search of the suspect’s residence, pickup truck and boat turned up additional drug-related evidence. The suspect moved to suppress the evidence found during the warrant search, arguing the warrant was invalid because it was based on evidence obtained from an illegal search of his garbage. The trial court denied the motion, determining that the suspect did not have a reasonable expectation of privacy in his garbage. 1993 Chevrolet Pickup, ¶¶ 3-4.
¶51 On appeal, we addressed whether the warrantless search of a person’s garbage violated the person’s rights under Article II, Sections 10 and 11 of the Montana Constitution. We determined that, where a person has abandoned his or her garbage by placing it at a curb or in an alley for collection, any continued expectation of privacy in the garbage is not one society is willing to accept as reasonable. Thus, law enforcement’s actions of removing the garbage bag and looking through it for evidence constituted neither a seizure nor a search as contemplated by the Montana Constitution. 1993 Chevrolet Pickup, ¶ 17. Notwithstanding the absence of a seizure or a search, we placed constraints on such law enforcement activities, including a requirement that law enforcement have particularized suspicion that a crime is being committed to justify looking through the garbage. 1993 Chevrolet Pickup, ¶¶ 19-20. Having concluded above that the electronic monitoring and recording of Hamper’s conversation with the confidential informant in the informant’s vehicle constituted a search, we need not address 1993 Chevrolet Pickup further.
¶52 The State also relies on Hart in support of its argument that a particularized suspicion standard should apply to justify the warrantless monitoring and recording of face-to-face conversations with the consent of one participant in the conversation. Hart involved a drug-detecting canine sniff of the exterior of a vehicle. We determined the dog sniff of the exterior of a vehicle constituted a search, but that such a search may be justified by particularized suspicion of wrongdoing, rather than probable cause sufficient for issuance of a search warrant. Hart, ¶ 20 (citing Tackitt, ¶ 29). Here, the State asserts that, because the electronic monitoring and recording of a conversation is even less intrusive than a dog sniff, particularized suspicion is a sufficient standard here. We disagree.
¶53 In Tackitt, law enforcement officers used a drug-detecting canine to sniff the exterior of the defendant’s vehicle parked outside his residence and the canine alerted on the trank of the vehicle, indicating the presence of drugs. Tackitt, ¶ 7. We relied on Elison, ¶ 51, in concluding that the canine sniff constituted a search because Tackitt maintained a reasonable expectation of privacy in the items stowed in his vehicle’s trunk. Tackitt, ¶¶ 21-22. We then determined that, although warrantless searches generally are per se unreasonable, the purpose and minimally
III. Conclusion
¶54 For the above-stated reasons, we hold that the electronic monitoring and recording of the Defendants’ conversations with the confidential informants, notwithstanding the consent of the confidential informants, constituted searches subject to the warrant requirement of Article II, Section 11 of the Montana Constitution. The electronic monitoring and recording of those conversations without a warrant or the existence of an established exception to the warrant requirement violated the Defendants’ rights under Article II, Sections 10 and 11. As a result, 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.
¶55 Reversed and remanded for further proceedings consistent with this opinion.
Concurrence Opinion
specially concurring.
¶56 I specially concur in the court’s conclusion that evidence obtained through warrantless, consensual participant recording of a conversation in a home or automobile is not admissible in court. Although the court ties its rationale to the private settings (home and automobile) involved in these cases, I would not limit a Montana citizen’s reasonable expectation of conversational privacy to “private settings.”
¶57 In my view, Montanans do not have to anticipate that a conversation, no matter what the setting, is being secretly recorded by agents of the state acting without benefit of a search warrant. As Justice Harlan noted in his dissent in United States v. White,
¶58 Article II, Section 11, like the Fourth Amendment, protects people not places. State v. Bassett,
¶59 In my view, a society in which individuals conversing outside a private setting such as their home must anticipate the risk of state instigated, warrantless monitoring is not the “free society” envisioned by the framers of our Constitution.
¶60 Accordingly, I would resurrect our Brackman holding in its entirety and recognize an expectation of conversational privacy free from warrantless consensual monitoring, in any setting, including, but not limited to, a public parking lot.
¶61 I also note that Justice Rice’s dissent castigates the Court for framing the issue too broadly given that “the facts here do not involve situations where police did not have particularized suspicion and probable cause.” ¶ 88. One wonders why, if the police had probable cause, they did not simply apply for a warrant, as the constitution requires. There is a theme throughout the dissent that someone who chooses to engage in discourse about criminal endeavors, has no expectation of privacy.
¶62 The dissent endeavors to distinguish illegal commercial discourse from private socializing; suggesting that warrantless consensual monitoring will only be allowed in illegal commercial transactions. What if the transaction were not “commercial,” that the defendant was delivering drugs free of charge. Would the dissent’s constitutional analysis suddenly transform, cloaking the defendant with an expectation of privacy.
¶63 The dissent believes that the Court has strayed from the facts of this case and has stated the issues too broadly. The Court’s societal approach is more than justified however when one looks at the breadth of the dissent’s rationale. The dissent reasons
¶64 The dissent’s reliance on our decision in State v. Brown,
¶65 Justice Cotter suggests that Justice Rice’s rationale would apply not just to illegal commercial transactions, but to all commercial transactions. Although I agree, I think the dissent’s rationale is even broader than Justice Cotter suggests. It applies to all conversations, commercial or otherwise. Under the dissent’s reliance on Brown,
¶67 Anarchy is the absence of any political authority; the theory that all forms of government are oppressive and should be abolished. American Heritage Dictionary 3rd Ed. Justice Rice’s characterization to the contrary, I am not advocating anarchy. Quite the opposite; I’m arguing that our constitutional form of government, the Fourth Amendment in particular, should be enforced-not abolished.
¶68 In this day and age of high-tech surveillance, warrantless monitoring of conversations
Notes
Examples from the dissent: “without considering the nature and purpose [drug deal] of the conversation.” ¶ 90; “A person simply cannot have the same expectation of privacy when he knowingly exposes illegal drugs for the commercial purpose of selling them to a non-confident as he does while engaged in private socializing with friends and family.” ¶ 96; “because society would not consider a privacy interest in a non-private commercial drug transaction to be reasonable.” ¶ 99; “The very idea that one engaged in the commercial sale of illegal drugs to a non-confidant must be given the ‘opportunity to object’ before police can monitor the parties’ conversation is a flight into the fanciful, perhaps the ludicrous.” ¶ 104 n.2; “There is not only no indication that the Declaration of Rights was intended to be applied to such risky, non-private behavior, but the debates demonstrate just the opposite.” ¶ 114.
“We now hold that warrantless consensual electronic monitoring of face-to-face conversations by the use of body wire transmitting device, performed by law enforcement officers while pursing their official duties, does not violate the right to be free of unreasonable searches and seizures nor the privacy section of the Montana Constitution.” Brown,
Concurrence Opinion
concurs and dissents.
¶69 I concur with the Court’s determination that Goetz and Hamper possessed a reasonable expectation of privacy in their conversations that took place in their own homes. I part ways with the Court’s conclusion, however, that Hamper similarly enjoyed a reasonable expectation of privacy in his conversation with White that took place inside White’s vehicle.
¶70 State v. Brown,
¶71 This Court discards Brown, along with our seemingly contradictory holding in State v. Solis,
¶72 The Court’s discarding of Brown represents an unnecessary departure from the principle of stare decisis. We have held that precedent should be overruled only if it is manifestly wrong. Beckman v. Butte-Silver Bow County,
¶73 I cannot agree under these circumstances that the result in Brown is so manifestly wrong that it should be discarded entirely. The Court cites State v. Hardaway,
¶74 For better, or worse, Solis and Brown provide our precedent on the very issue before the Court-whether warrantless electronic monitoring and recording of a party’s one-on-one conversations with a confidential informant violates the party’s reasonable expectation of privacy. Eather than discarding them to the rubbish heap, I would reconcile the holdings in Solis and Brown by limiting them to the facts that were before those courts. I would read Solis to hold that a person may have a reasonable expectation of privacy in a conversation that takes place in a “small, enclosed office” that ostensibly remains under the exclusive control of his confidant. Solis,
¶75 I would conclude pursuant to our holding in Solis that Goetz and Hamper possessed reasonable expectations of privacy in the conversations with the informants that took place in their homes. Hamper and Goetz reasonably could have expected as much privacy in their own homes as Solis could have expected in the private office of his confidant. Solis,
¶76 Other courts likewise have distinguished a warrantless search of a person’s home from a warrantless search of a person’s automobile. The Supreme Court of West Virginia recently held that warrantless consensual electronic monitoring of face-to-face conversations in a defendant’s home represents an unconstitutional invasion of privacy. The court overruled its earlier conflicting decision on the basis that the court had “assumed, without discussion, that no difference existed between a person’s reasonable expectations of privacy in his/her home, versus the privacy a person expects outside the home.” State v. Mullens,
¶77 For these reasons, I join the Court’s opinion with respect to its decision that Hamper and Goetz possessed reasonable expectations of privacy in their conversations with the informants that took place in their homes. For these same reasons, I dissent from the Court’s opinion with respect to its decision that Hamper enjoyed a reasonable expectation of privacy in his conversation with White that took place inside White’s vehicle.
Dissenting Opinion
dissenting.
¶78 It would be a dubious service to the genuine liberties protected by the Fourth
Amendment to make them bedfellows with spurious liberties improvised by farfetched analogies which would liken eavesdropping on a conversation, with the connivance of one of the parties, to an unreasonable search or seizure. We find no violation of the Fourth Amendment here.
On Lee v. United States,
¶79 The Court today makes the precise error with regard to the Montana Constitution’s Declaration of Rights, which the United States Supreme Court warned against in deciding the same issue under the Bill of Rights of the United States Constitution. The Court’s error springs from an incorrect analytical approach to the issue, resulting in an unnecessarily broad and sweeping decision not predicated on the specific facts of this case. Indeed, the inattentiveness to the facts leads the Court to overlook the critical point of the case, and the unfortunate result is the overruling of our long-standing precedent
¶80 Today the Court overrules the state and federal precedent we have long followed and strongly re-endorsed, and upon which law enforcement in this state has relied for twenty years. The Court justifies its decision to overturn this precedent by characterizing our resolution in Solis as non-controlling and our decision in Brown as “merely parallelling] federal jurisprudence ... and fail[ing] to properly analyze the greater rights guaranteed by Montana’s Constitution.” Opinion, ¶ 22.1 disagree with this assessment.
¶81 First, while I agree that Solis is not “controlling precedent,” Opinion, ¶ 24, I submit that the fact-grounded reasoning of the plurality opinion in Solis is precisely the correct analysis to be employed, and that the Solis plurality reached the correct decision under that fact-based approach. However, the Court determines that because Solis is not “controlling,” it need not be considered at all. Opinion, ¶¶ 18, 24.
¶82 Second, the Court’s contention that our decision in Brown failed to properly analyze the greater rights guaranteed by the Montana Constitution, Opinion, ¶ 22, is clearly without merit. In Brown we recognized that “Montana’s Constitutional protections have an existence which is separate from the Federal Constitutional protections” and that it is necessary to “offer an independent analysis of the privacy and search and seizure provisions of the Montana Constitution.” Brown,
¶83 Critically, the Brown court concluded that, under the Montana Constitution, the facts demonstrated that the defendant’s claim to an expectation of privacy was not one society would deem reasonable, and that the government’s actions, which effectuated only “the recording of [Brown’s] words,” were not excessively intrusive. Brown,
¶84 It is true that Brown relied upon the United State Supreme Court case of White, a case which offered a very practical and common sense approach to the same issue we face today, and we should be wary of abandoning the well established and practical White decision by overruling Brown merely because Brown followed federal jurisprudence. In White the High Court emphasized a twentieth century “doctrinal” Fourth Amendment analysis, explaining the absence of a privacy interest in a consensually recorded drug transaction with a stranger:
Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter’s Fourth Amendment rights. Hoffa v. United States,385 U.S., at 300-03 . For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency.On Lee v. United States, supra. If the conduct and revelations of an asent overatins without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the asent or by others from transmissions received from the asent to whom the defendant is talkins and whose trustworthiness the defendant necessarily risks.
White,
¶85 Moreover, the Court ignores the fact that Brown has been specifically and repeatedly reaffirmed by this Court. In fact, in Belgarde, when we again entertained an argument that warrantless consensual monitoring violated the Montana Constitution’s privacy provisions, we noted our decision in Brown, and then took the unusual step of holding-emphatically-that “[w]e refuse to reverse this rule.” Belgarde,
¶86 Having overruled Brown and dismissed Solis entirely, the Court then flits to another analysis in order to “examine the issue before us anew, applying more current and consistent interpretations of Article II, Sections 10 and 11 of the Montana Constitution.” Opinion, ¶ 24. This “analysis” is one which wholly disregards the facts, generalizes the issue on appeal, and renders broad, sweeping conclusions under the guise of “more current and consistent interpretations” of the Montana Constitution. I submit that there could be nothing more “current and consistent” than the interpretation we have repeatedly applied for the past twenty years.
¶87 After setting forth briefly the facts in the background section of the Opinion, ¶¶ 4-8, the Court barely mentions them again diming the remainder of the Opinion. An explanation for this detachment from the particulars may be that the Court, from the beginning, appears to have been thinking about broader or different issues than those actually raised here, as evidenced by the questions the Court asked the State during oral argument:
Q. It’s the State’s contention that there’s no need for particularized suspicion or probable cause. In fact, as I understand it, the State doesn’t even believe that there is any necessity that the cops believe that a crime was, is, or is about to be committed. They can run somebody with a body wire into somebody’s home at the cop’s discretion.
A. Because there is no search as this Court held in Brown-
Q. Well, isn’t that true?
A. Well, I think, I think your-the question, with all respect, is phrased too broadly.
Q. Well, why is it phrased too broadly? If, if this is completely discretionary with the cops, they can send someone with a body wire into someone’s home to gather evidence. They can send somebody into a person’s home just to snoop. They can send somebody into a home to gather information that might be used in a future prosecution or no prosecution at all. It’s completely discretionary with the police. Correct?
A. No.
State’s counsel was correct. These questions were indeed phrased too broadly, demanding answers from counsel for scenarios not at issue.
¶88 The facts of this case do not involve the exercise of “complete discretion” by police to wire someone “just to snoop” or “to gather information that might be used” or not used at all. The facts here do not involve situations where police did not have particularized suspicion and probable cause. Even before wiring the informants, police had probable cause to believe that both defendants had already committed the crime of criminal distribution of dangerous drugs. Authority to wire aside, the police could have
¶89 The facts are critical, and this case should be decided on its facts. As the Court recites, “whether a person has knowingly exposed something to the public and, consequently, surrendered his or her privacy protections [is determined] by looking at the particular facts of the case.” Opinion, ¶ 29. See State v. Dunn,
¶90 Although the Court gives “lip service” to the necessity of analyzing the facts, it largely fails to do so. For example, paragraphs 30 and 37 contain the critical holdings that the Defendants held an expectation of privacy that society accepts as reasonable. However, the Court neglects to mention the central factual issue of this case: the consensual electronic monitoring of a drug deal by police. Instead, and without considering the nature or purpose of the conversations, the Court issues the sweeping proposition that there is an expectation of privacy in “face-to-face conversations” held in “private settings.” Opinion, ¶ 30. This conclusion, disconnected from the facts, will even prohibit a participant in the conversation from testifying about what the Defendant said or did, unless a warrant is first obtained. Not even the Defendants are asking for such a broad holding-but that is a consequence of leaving the facts behind. The facts of this case should form the basis of the analysis for the critical legal question before us, and I thus turn to the facts, beginning with those related to the expectation of privacy and the reasonableness of that expectation.
¶91 This was a commercial transaction. In each of the two cases before us, the seller, for the purpose of making a financial profit, offered and then sold a product to a buyer. But for the seller’s financial motive, and the buyer’s assurance of payment, these parties would not have met at all. It was the business deal, and only the business deal, which brought them together. Goetz was selling methamphetamine-Hamper, marijuana.
¶92 As in the typical commercial transaction, the sellers here offered their product to members of the public-they intentionally exposed and sold their product to customers who were non-confidants. The length of each transaction is reflective of its impersonal and commercial nature as each lasted only moments — similar to other retail purchases. These meetings were not social occasions between friends or family. The exchange of product and cash was made and the parties immediately went their own way, because the only purpose of their meeting-the sale-was completed. Thus, in these transactions, the defendants first “knowingly exposed” their business by offering to sell and then exposed their product during the actual exchange to someone who was not a confidant to them. See Scheetz,
¶93 The place of the transaction is also a relevant fact, though not necessarily determinative. See Siegal,
¶94 The Comb’s analysis wholly ignores the specifics of these circumstances and it is clear that the Court’s decision is significantly disconnected from the factual predicate. In fact, this disconnect leads the Comb to restate the issue on appeal in a generic form as: “whether society is willing to recognize an individual’s subjective expectation that a one-on-one conversation conducted in a private setting is not being surreptitiously electronically monitored and recorded.” Opinion, ¶ 31. Accordingly, the Court only considers whether there exists a reasonable expectation of privacy in “a personal conversation held in a private setting[.]” Opinion, ¶ 31. This statement, and others in the opinion, is so broad that it would apply as readily to governmental recording of a conversation among friends or relatives socially gathered around the living room, as to the facts of this case. Indeed, who would disagree that society reasonably expects the government to not record “conversations held in a private setting” such as the confines of one’s home during a family Thanksgiving dinner? I certainly would not disagree-but those are not the facts here. The expectation of privacy in a personal family dinner setting is far different than the expectation of privacy in a commercial transaction where a product is sold to a non-confidant in a brief encounter. Although remarkably different, the Court’s imprecise analysis treats them as if they are identical-as if the Court is powerless to distinguish between these very different factual scenarios.
¶95 The law, however, does make such distinctions. Commercial transactions made with the public are not the same as social conversations among friends in the living room. Criminal enterprises are not the same as family Thanksgiving dinners. We should recall what Chief Justice Earl Warren wrote about the sale of illegal drugs out of a home. He too realized that these were “commercial” transactions which alter the privacy expectation:
The fact that the undercover agent entered petitioner’s home does not compel a different conclusion. Without question, the home is accorded the full range of Fourth Amendment protections. See Amos v. United States,255 U.S. 313 (1921); Harris v. United States,331 U.S. 145 , 151, n. 15 (1947). But when, as here, the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street. A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant.
Lewis v. United States,
The Fourth Amendment protects against governmental intrusion upon “the sanctity of a man’s home and the privacies of life.” Boyd v. United States,116 U.S. 616 , 630. However, the occupant can break the seal of sanctity and waive his right to privacy in the premises. Plainly he does this to the extent that he opens his home to the transaction of business and invites anyone willing to enter to come in to trade with him.
Lewis,
¶96 The public and commercial nature of the criminal enterprise at issue here-the sale of illegal drugs to strangers-separates this case from other kinds of crimes, even drug-related, and further illustrates the necessity
¶97 Consistent with its approach of over-generalizing, the Court attempts to summarize the statements of the delegates to the 1972 Montana Constitutional Convention in a manner which appears to provide support for its holding, and concludes that the Defendants had a reasonable expectation of privacy because “Montanans continue to cherish the privacy guaranteed them by Montana’s Constitution.” Opinion, ¶ 35.1 certainly do not dispute this general conclusion, and do not dispute the general idea that the delegates to the constitutional convention held privacy in high regard. However, the Court considers only some of the delegates words, and ignores other specifically applicable words altogether, thereby covering up the reality that the delegates’ primary concern was over electronic surveillance and eavesdropping undertaken by the government without the consent of any party, about which Delegate Campbell’s indication that such activity “was really not a need and such activity was not taking place at this time” can be understood, as well as the delegates’ actual expressions about the factual scenario at issue here. Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, p. 1682. Delegate Campbell further amplified:
I feel that with “oral communications” you are not excluding the legitimate law enforcement people, who, with the consent of one party, the person who is being threatened by phone calls and things like this, to act on behalf of the victim. The privacy of that individual certainly could be waived with his or her consent, and there’s certainly no privacy toward the obscene caller.
Transcript, p. 1685. And Delegate Dahood added:
Yes, let me answer that question. First of all, this does not in any way relate to the obscene phone call situation, nor does it relate to the ability of the telephone company to make traces. The logic and reason is this: all personal rights, constitutional or otherwise, may be waived. Lady A is receiving the obscene phone call. She waives her right and grants the telephone company the right to intercept that communication. The individual that’s making the call does not have the right of privacy with respect to violating the law and making the obscene phone calls, so as a consequence, we are not interfering with anyone’s rights ....
Transcript, p. 1686.
¶98 To be sure, the delegates, as quoted in Siegal,
¶99 Consequently, the Court finds a privacy expectation in what the delegates clearly stated was a non-private situation. The Court does not explain how a privacy interest springs forth from a non-private commercial transaction. In paragraph 35, the Court appears to distinguish between the risk that a
¶100 However, even assuming arguendo that a search did occur, the Court’s analysis of the “nature of the State’s intrusion” again further ignores the facts of the present case and mischaracterizes the role of consent in our search and seizure jurisprudence. Most notably, while the Court overrules Brown on the basis that it “merely paralleled federal jurisprudence,” in its discussion of “consent” the Court opts to “use some federal Fourth Amendment analysis in addressing issues under the Montana Constitution” and relies on the Supreme Court case of Georgia v. Randolph. Opinion, ¶ 42. The Court’s reliance on federal jurisprudence is inconsistent at best and an unfortunate consequence is the twisting of the holding in Randolph to fit the issue at hand.
¶101 Randolph involved the search of a home despite one of the co-occupant’s express refusal to consent to the search. The United States Supreme Court concluded that the refusal of one occupant to consent trumps the consent of a co-occupant and the police may not search the shared quarters. Randolph,
¶102 However, by concluding that both parties to an electronically monitored conversation must consent to the monitoring, the Court fails to acknowledge the true distinction at work here: that consensual monitoring is different than “eavesdropping”-the monitoring of a conversation by the government without the consent of any party. The failure to honor the informant’s consent lumps consensual monitoring with eavesdropping for all constitutional purposes, because the same requirements are imposed for either, even though they are, according to longstanding jurisprudence, clearly constitutionally distinct. In sum, the Court renders the party’s “consent” null, giving it no effect whatsoever. “[T]here is a substantial distinction between ‘[revelations] to the Government by a party to conversations with the defendant’ and eavesdropping on conversations without the knowledge or consent of either party to it.” United States v. Karo,
¶103 The Court’s conclusion also ignores the High Court’s guidance that “[t]he constant element in assessing Fourth Amendment reasonableness in the consent cases ... is the great significance given to widely shared social expectations[.T Randolph, 547 US. at 111,
¶104 Even assuming that the Randolph rationale is appropriately used here, the Court ignores two critical points of that decision: (1) neither defendant “refused” consent here, as in Randolph, and (2) the Randolph Court expressly stated that the police need not “take affirmative steps to find a potentially objecting co-tenant before acting on the permission they [have] already received.” Randolph,
¶105 Moreover, by likening the instant case to Randolph the Court ends its analysis of the nature of the state’s intrusion and fails to consider other pertinent details. First and foremost, the recording did not produce any evidence beyond what the informant herself could have relayed. This fact led the District Court to conclude that the government action here was “not excessively intrusive.” The facts clearly distinguish the monitoring here from the “sense enhancing” technologies of the type we addressed in Siegal, which we noted could be used to “surreptitiously monitor the heat signatures generated by activities conducted within the confines of [Montanans’] private homes and enclosed structures for the purpose of drawing inferences about the legality of such activities.” Siegal,
¶106 It could be argued that consensual monitoring enhances the senses of police because officers can hear a conversation which they otherwise could not. However, this distinction is not one of constitutional dimension, because it relates only to the mode by which the information is received, not the content of that information. Whether the informant testifies, or the officer testifies with the tape, the evidentiary potential is the same. Thus, it is clear that defendants’ constitutional privacy claim really boils down to trial strategy: they do not want the daunting task of fighting against the pesky truthfulness of their very own, recorded words. However, as well explained by Justice Harlan, writing for the United States Supreme Court in Lopez, there is no constitutional right in the expectation that a defendant’s own words will not be surreptitiously recorded:
Stripped to its essentials, petitioner’s argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent’s memory, or to challenge the agent’s credibility without being beset by corroborating evidence that is not susceptible of impeachment. For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory. We think the risk that petitioner took in offering a bribe to Davis fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording.
Lopez v. United States,
This question must, in my view, be answered by assessing the nature of a particular practice and the likely extent of its impact on the individual’s sense of security balanced against the utility of the conduct as a technique of law enforcement.
White,
¶108 Applying Justice Harlan’s construct to the facts of this case yields interesting results. First, the “nature of the particular practice,” as discussed above, is not intrusive, as the monitoring here captured nothing more than the informant could also testify about, thus reducing defendants’ privacy claim to nothing more than a wish to be tried without the jury hearing a recording of their own words. Secondly, what is the “likely extent of its impact on the individual’s sense of security’? Of course, the “extent” of the impact is likewise reduced by the limited information obtained by the monitoring, but this question is more fully answered by other facts from the record, which are most illustrative. As Goetz stated while selling drugs to Trusler:
[T]he real deal is with this sh**, they are all over. The Feds are f***ing everywhere in this town. The DTF, the FBI, there’s reason to be supermltraJ***ing-freaked!
¶109 I would suggest that the “likely extent of the impact” of consensual monitoring upon the “sense of security” of people commercially marketing illegal drugs to the public in an environment of active law enforcement is, respectfully, very minimal. This activity is a highly risky venture, and, indeed, one engaging in it truly has good reason to be “freaked” because, consistent with Goetz’s knowledge of the risk, law enforcement is engaged. Thus, the likely extent of the impact of consensual monitoring upon the defendants’ “sense of security,” with or without a warrant, is not reasonably significant.
¶110 Lastly, Justice Harlan’s construct requires a balancing of these first two factors against the “utility of the conduct as a technique of law enforcement.” On this point, few would disagree that, as a technology, this tool is of great utility to law enforcement. In a case involving a wired informant, we acknowledged that “[t]he use of informants has long been recognized as an allowable tool of police investigation.” State v. Reavley,
Counsel: What I am suggesting is that the heightened standards of particularized suspicion that the government would be burdened with if particularized suspicion were imposed absent this Court finding a search would really jeopardize our ability to use informants effectively and would basically give people a license to engage in criminal businesses in their homes. That’s what I’m suggesting.
Justice: Counsel, let me ask a broader question. I think all of us have become accustomed to the notion of, through television and the movies and books about police conduct, police investigation,... the use of criminal informants, confidential informants and the use of body wires. But often times we see [in] those, that the defendants are bad guys, they’re mafia, theyre organized crime, there’s murders involved. Do we really need to allow this technology to come into play, allow this intrusion, when we’re talking about a fifty dollar pot buy?
Counsel: Well, I can see where people would disagree about the government doing that, but the fact of the matter is thatthis involves the criminal sale of dangerous drugs that the people’s representatives have determined to be illegal. And I don’t think the Court should get into determining whether one interest is stronger, whether you’re dealing with Mr. Goetz involving methamphetamine or Mr. Hamper involving marijuana. [Emphasis added.]
fill Truly, it is a different world today, not only in terms of technological advances, but also in the expectation of the use of technology. I would submit, as the questioning italicized above likewise indicates, that our citizens, especially young people in today’s society who have been raised in the age of Law and Order and CSI, would think it unusual that a drug dealer would have a reasonable expectation that his conversations during a drug sale to a non-confidant were not being consensually monitored. The drug dealer may have a subjective expectation, but it is not an expectation that our society would deem reasonable.
¶112 Moreover, monitoring provides protection for the informant, who risks physical harm to work with police, and provides for accurate recording and preservation of the evidence of the transaction. Thus, for purposes of Justice Harlan’s construct, the utility of this technology is very high in the furtherance of the state’s compelling state interest in “enforcing] its criminal laws for the benefit and protection” of the citizens. State ex rel Zander v. Dist. Ct,
Conclusion
¶113 This case has little to do with Montanans continuing to “cherish the privacy” of their homes, Opinion, ¶ 35, and even less about “one-on-one conversation^] conducted in a private setting” Opinion, ¶ 31 (emphasis added), simply because, in view of the facts, the setting here should not be considered private. A proper focus on the facts reveals that the defendants were engaged in commercial transactions with non-confidants, and we have been careful to explain that our privacy holdings do not necessarily apply to conduct engaged in “for commercial purposes.” Gryczan v. State,
¶114 Rather, this case is about avoiding the truth — the defendants’ raising of a privacy claim to keep the truth, that is, the recording of their own words, from the jury and thereby gaining a tactical advantage by escaping the strong evidence of their crimes. They want this result despite the fact they are informed of the active police involvement to the point of being “super ultra freaked out” about local police presence and nonetheless assumed the high risk of exposing their trade and their wares through multiple 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 the privacy claims against the consensual monitoring of such actions. The District Court rightly concluded that society would not find this connived claim reasonable. There is not only no indication that the Declaration of Rights was intended to be applied to such risky, non-private behavior, but the debates demonstrate just the opposite. The Court’s conclusion to the contrary results, in my view, to the cheapening of our “genuine liberties,” about which the United States Supreme Court clearly warned. On Lee,
¶115 And I would not, either. I dissent.
¶116 In response to the concurrences by Justice Cotter and Justice Leaphart, I appreciate that Justice Cotter’s concurrence at least recognizes the commercial nature of the facts, something the Court’s opinion does not do. However, I must disagree with her suggestion, made also by Justice Leaphart’s concurrence,
¶117 I also disagree with Justice Cotter’s statement that the analysis would “gut any expectation of privacy one might reasonably have in his commercial conversation[.]” J. Cotter, concurrence ¶ 125. Again, we should be careful about making broad statements disconnected from the facts and the law. In addition to the commercial nature of the transaction, there are many additional facts, varying in each case, which our law requires to be considered. For purposes of brevity, no doubt, Justice Cotter’s concurrence does not consider the additional facts about this transaction. However, the facts are critical under our law. For example, is the expectation of privacy in a commercial transaction which takes place at a crowded garage sale the same as one consummated in a closed office? Unless we are going to decide cases without regard to the “particular facts of the case,” these factual distinctions should matter. Indeed, the law requires that we determine whether a claimed expectation of privacy is one society believes to be reasonable. The only way we can do so is by considering how society views the facts of the matter. If we are properly applying the law to the facts, then some commercial transactions would be viewed by society as private, and others would not. Our duty is to decide one case at a time, based upon the particular facts.
¶118 Justice Leaphart’s concurrence advocates that agents of the state should not monitor any conversation without a warrant, “no matter what the setting,” even those conversations which occur “outside a private setting.” J. Leaphart, concurrence ¶ 57, 59. Under this approach, all conversations, wherever and however conducted, would be blanketed with a privacy right. Courts would no longer need to consider the “particular facts of the case.” This may be what the author desires, but is categorically not a principle of American law. No jurisprudential authority can be cited for it. Although the concurrence cites Justice Harlan’s dissent in White, Justice Harlan was clearly not advocating for the extreme position taken by the concurrence, asserted to be necessary for a “free society.” J. Leaphart, concurrence ¶ 58.
¶ 119 Such notions of a “free society” are not consistent with the free society established by the constitutional history of this country and state. As explained herein, this dissent joins the position taken by the U.S. Supreme Court on electronic monitoring under the federal constitution. This Court likewise interpreted the Montana Constitution for the past twenty years and, more importantly, the delegates of the 1972 Montana Constitutional Convention took the position of this dissent. Further, and which should give the Court pause, the high courts of our sister states, consistent with federal authority, have repeatedly reached the conclusion advocated by this dissent when interpreting their state constitutions. See Hammond v. State,
A law enforcement officer should be permitted to intercept the contents of a private communication with the consent of one of the parties to the communication without a court order, provided that the officer intercepts and uses the communication in the proper performance of the officer’s official duties.
¶120 These authorities and sources make clear that Justice Leaphart’s “free society” theory runs counter to our nation and state’s constitutional principles as enunciated in countless cases. Indeed, the concurrence’s theory is more akin to traditional anarchist thought than our constitutional history: “[Alnarchism is based upon the idea of the sovereign individual, the belief that individual conscience and the pursuit of self-interest should not be constrained by any public body or collective authority.” Andrew Heywood, Key Concepts in Politics, 46, (MacMillan Press 2000). Though we all desire privacy, our system was not formed upon, nor has ever endorsed, an absolute privacy right premised upon the sovereign individual which would permit a limitless pursuit of self-interest. However good it may sound in theory, doing “whatever one wants” without government interference is not a free society. It is anarchy. Such thinking would not have allowed American free society to survive for over two hundred years. Under our constitutions, freedom means the right to pursue one’s own life within the confines of the solemn principles upon which the democracy was founded.
¶121 Upon the collective judgment of the U.S. Supreme Court, the delegates to the 1972 Montana Constitutional Convention, the justices of the Montana Supreme Court for the past twenty years, and the high courts of our sister states, I would affirm the District Court.
Pursuant to § 45-9-101(1), MCA, a person commits the offense of criminal distribution of dangerous drugs by, inter alia, “offer[ing] to sell, barter, exchange, or give away any dangerous drug[.]” (Emphasis added.) The defendants violated this statute by arranging the sale transactions with the informants, who reported the “offer” to pobce prior to the monitoring. An arrest could have been made without any monitoring. Of course, the pobce wisely sought additional evidence to bolster their case.
The very idea that one engaged in the commercial sale of illegal drugs to a non-confidant must be given the “opportunity to object” before police can monitor the parties’ conversation is a flight into the fanciful, perhaps the ludicrous.
Concurrence Opinion
concurs.
¶124 The Dissent, which stands for the proposition that there is no expectation of privacy in a commercial transaction where a product is sold to a non-confidant (Dissent, ¶ 94), has surface appeal on a first read. However, in my judgment, the analysis is problematic, wherever on the spectrum of application it might fall.
¶126 It bears repeating that the Court is not imposing an outright ban on electronic monitoring of conversations with the consent of only one participant. All we are saying is that there should be sufficient probable cause that a criminal enterprise is about to occur to support the issuance of a warrant allowing such monitoring. In my view, this is a far preferable alternative than an expansive rule which would permit the introduction into evidence of surreptitious non-consensual recordings conducted in virtually any and every commercial setting. I therefore concur.
Dissenting Opinion
dissents.
¶122 I emphatically agree with the dissent of Justice Rice. The only real world result of the Court’s decision today will be to increase the use of a perpetrator’s home for all types of criminal transactions.
¶123 For the sake of safety, law enforcement might opt to continue equipping officers and citizen informants with electronic transmitting devices when they undertake the dangerous task of securing evidence against drug dealers, white-slavers and other offenders, who naturally decline to conduct their flagitious business out in the open. It is possible that such recordings could be used in redirect examination. U.S. v. Burns,