*1 MONTANA, v. DALE Appellant, OF STATE Plaintiff Respond EFFINGER, HYEM CYNTHIA Defendants ents. No. 80-364. 26, 1981. March
Submitted
4, 1981.
Decided June
Overfelt Law Overfelt Billings, Gary argued, Billings, for defend- Jarussi, & Gene Stacey Billings, argued, Billings, Jarussi ants and respondents.
MR. delivered the of the Court. opinion SHEEHY JUSTICE of the District from an order of Montana appeals The State District, de- Court, County, granting Carbon Thirteenth Judicial an from resulting evidence all fendants’ motion suppress and seizure. search unreasonable 25, 1980, alter- defendants were with February charged
On — stolen a native counts of theft either felony having pair 12, 1980, on skis Rossignol Equipe January having possessed SM 21, 1980, were stolen. The them on February knowing they Welch, skis, arose when to Buzz were found in charges belonging and seized officers of the County defendants’ residence Carbon by local to a search warrant issued by sheriff’s office pursuant on af- of the warrant was based The issuance justice peace. Welch, stolen, fidavits of who said his skis had been and of Kurt Marcure, Hallock and who stated had seen the skis at they Jack defendants’ rented home in Red Montana. The cir- Lodge, cumstances the latter affiants’ surrounding must be discovery scrutinized in this closely appeal.
The defendants and affiants were all in various employed at season, Red capacities Ski area. Lodge 1980 ski During rash of ski thefts were reported, two thefts including reported by Welch and Marcure. The skis stolen Welch and reported by Mar- cure were identical in except length, binding serial type number. After discussing skis with numerous missing acquain- tances, Hallock formed the opinion skis were in the posses- sion of the defendants at their rented home.
The defendants were tenants in a residence owned Mr. Prather. residence was listed for sale the Marshall through Real Estate The real Agency. estate agent charge selling house was Barbara Marshall. Defendant was aware that she Hyem had to the house and keys had shown it to prospective purchasers his absence. off-season,
In the Hallock and Marcure purchase remodel old houses and had done business with previously Marshall. Aware market, that the house was on the- contacted Marshall and they asked to be shown the house. Hallock testified that he wanted to tour skis, the house both for business reasons and to for search while Marcure’s sole was to search for the stolen purpose Rossignols.
At the Hallock and Marshall were called hearing, testified that during witnesses. Hallock inspection premsises, bed, and saw the skis his beside a then sunglasses Marcure dropped removed the skis from under the bed halfway thereunder. Marcure *4 that of Welch’s missing and found that the number matched serial skis out from under the skis. stated that only by pulling Hallock identification be ascer- bed could the serial number positive the skis further testified that until Marcure pulled tained. Hallock out, was to see of the skis. any he unable part house she admonished entering Marshall testified upon con- not to touch personal property and Marcure any Hallock that her observation of the further testified tained therein. She of the skis were visible area disclosed that tips bedroom beneath the bed. house, and Marcure a tour of the Hallock
After completing office, to the attorney’s their Carbon discovery County reported for and received a search warrant. which in turn applied defendants, motion of the District Court agreed On search, and evidence had been obtained an unreasonable by is from that order that the ordered the evidence It State suppressed. appeals. (1) the citizen issues to be considered on are: Whether appeal and, (2) Whether
search violated the defendants’ right privacy; their defendants consented to the search and waived thereby right of privacy. constitution be read as a whole and its
Montana’s
must
separate
relation to one another.
the federal
sections
Unlike
interpreted
constitution,
for an in-
our constitution particularly provides
Mont.Const.,
II,
dividual’s
in 1972
Art.
right
privacy
§
which states: “The
of individual
is essential
right
of a free
and shall not be
without the
society
infringed
well being
of a
state interest.”
showing
compelling
is as
as the
this
diverse
components
Application
as a citizen’s
which make
a free ordered
Inasmuch
society.
per
up
so
a citizen’s
are
are
sonality
thoughts
protected
private,
Moreover, 1972
to be let alone.
solitude
physical
Mont.Const.,
II,
Amendment
which mirrors
Fourth
Art.
§
Constitution, states that:
to the United States
homes and
shall be secure in their persons, papers,
“The people
No warrant
from unreasonable searches and seizures.
effects
shall issue without
or
or thing
search
seize
any place,
any person
to be
thing
to be searched or
person
describing
place
cause,
seized,
oath or affirma-
or without probable
supported
added.)
tion reduced writing.” (Emphasis
*5
unreasonable,
A warrantless search is
se
unless it falls
per
within
of the
one
defined
to the warrant
exceptions
requirement.
(1971),
443,
2022,
v.New
Coolidge
91 S.Ct.
Hampshire
search,
Since the warrantless search here was se it was per constitutions, unconstitutional under our federal and state therefore unlawful. It violated the Fourth Amendment of the Constitution, United Mont.Const., II, States and also 1972 Art. § addition, the warrantless search violated the defendants’ rights Mont.Const., II, under the 1972 privacy Art which § Here, we have quoted previously. of individual rights were privacy without the infringed of a showing state compelling interest. Since Hallock and Marcure were in their individual acting capacities, state, involved, and not for the state action was not and the search ers could never be in a position showing state in compelling Constitution, terest. Under the 1972 Montana only exception the restriction the invasion of against .individual ais com privacy here, state pelling interest. The private on their own parties acting hook, could not establish a state interest. compelling one’s individual to be secure in right privacy, home, of the 1972 in Montana even before the adoption prized Montana 125 Mont. Constitution. In Welsh Roehm 816, was a verdict of 241 P.2d it held valuable enough support without the invaders damages damages punitive general a tenants’ In State v. Brecht 157 Mont. rights. possessory 47, this 485 P.2d Court applied defendant, in- conversation overheard an telephone case, on an extension terloper line. In this Court found of individual adequately expressed, though Mont.Const., in 1889 Art. which penumbrally, read § *6 follows: in their persons, papers, 7. shall be secure
“Section The people effects, and homes, searches and seizures from unreasonable thing or shall to or seize any person no warrant search any place or or the to be searched person describing place issue without cause, seized, oath supported by nor probable to be without thing affirmation, or reduced to writing.” Brecht, be it was out that there cannot a fictional dif- pointed classes those who are commanded to ference between of citizens: the constitution and those who are not. Our constitutional obey of to all against unreasonable invasion prohibition privacy applies for the state or acting whether persons, privately. of store on the set a policy special
The Mont.Const., II, Art. was in § enunciated expressly Court, was this of that continued policy by and the implementation 816, 36 600 P.2d in State v. Mont. Helfirch evidence There we upheld suppression St.Rep. to ob a entered a fenced garden citizen who gathered by private turned over which the citizen marijuana, tain a sample growing as there is no was no in showing Helfrich, to the authorities. There bar, was in acting at citizen at case private showing Nevertheless, we held sup authorities. with the police concert Here, the same have nearly evidence we proper. such pression to the situation, gained entry that and Marcure Hallock except excuse, on an ostensibly legitimate defendants’ rented premises cannot see We purchasers. view the real prospective property by entrance otherwise private property that a citizen gaining is ruse in any better position obtain evidence incriminating (as against lawful. possessor distinguished from guest licensee) of that than one property gaining entrance by trespass. — result The in each is case the same invasion of the possessor’s therefore, private Under property. Helfrich, evidence resulting from the unreasonable search of the citizens is premises by private obtained, must illegally citizens, When suppressed. initiative, on acting their own invade unreasonably the privacy individuals, rights the evidence thus obtained the other individuals is to the subject exclusionary rule. This the teaching of Helfrich, supra.
The State evidence argues obtained private citizen should be it suppressed if obtained an “illegal manner.” We understand the essence of The State argument. means that the evidence should be if the evidence suppressed only obtained violation statutory law. argument, however, which, overlooks that searches and seizures though they law, not violate may statutory nevertheless may be unreasonable in sense, therefore, the constituitonal unlawful. In State v. Coburn 165 Mont. 530 P.2d we stated that the everincreasing presence with private police, a ctizen’s coupled *7 arrest, to ability mandated that the sector be the subject Thus, same constitutional as the scrutiny public sector. the actions of Hallock and in Marcure case present must be measured a standard of if reasonableness determine violated they defendants’ of This us back to what said privacy. brings we at discussion, the outset of this that a warrantless search is unreasonable se unless the search falls within one per defined unreasonable, The search exceptions. being and the rights been privacy having invaded the unconstitutional inva thereby, sion of the defendants’ was an rights unlawful act. counts, of the state and two a violation is that on it
Thus and a further viola searches and seizures on constitutions federal the evidence pro privacy, the state constitutional tion of rule. the exclusionary the application herein is subject duced
59 of considerable has been the subject rule exclusionary The not months. Perhaps in recent and editorial discussion legislative Court first that the United States Supreme is the fact well-known (1914), Weeksv. United States rule ago 67 years announced L.Ed.652, 341, of evidence 383, where the use 58 34 S.Ct. 232 U.S. was barred in of the Fourth Amendment in violation obtained Company Lumber After Silverthorne federal prosecutions. L.Ed.319, 182, 385, (1920), 64 251 U.S. United States tree” doctrine. of the poisonous be as the “fruit rule came to known (1961), Court, 1961, v. Ohio Supreme Mapp United States the exclu- 6 made 81 L.Ed.2d 367 U.S. S.Ct. to the states under Fourteenth rule fully applicable sionary this fruit” rule was recognized by The “poisoned Amendment. 409 P.2d 146 Mont. in dictum in State v. Yoss Court of some writings out grew seats on the United States most men ever to occupy esteemed Holmes, Court, Oliver Wendell including Supreme Justice train of at the long Louis Brandéis. became They aghast Justice had constitutional protections cases where federal agents ignored evidence, and had been themselves willing perjure in obtaining acted, so said: as if had not Holmes they forbidding acquisition essence of a provision “The evidence so acquired is that not merely evidence in a certain way but that it shall not be used at all. used before the Court shall not be become not mean that the facts thus obtained this does Of course from an in- of them is gained sacred and inaccessible. If knowledge others, source, but like may proved any dependent they used own cannot be government’s wrong knowlege gained Silverthorne, at in the supra, itby way proposed.” at 183. Brandéis said: Justice contempt breeds a lawbreaker it becomes
“. . .If the government 483-485, v. U.S. . . .” Olmstead for law *8 574-575, 564, 72 L.Ed. 60 courts,
At first the rule in the federal in exclusionary applied only federal not prosecutions. It was in the states. This applied duality resulted in For anomalies. in v. application example, State Court, (1928), 501, District et al. 82 Mont. P. the 268 Mon- tana court that held the the provisions federal constitution unreasonble searches and seizures had no application case, state officers. federal officers In had violated the con- of a stitutional sent rights person by opening through the package mail the The sheriff arrested the ad- containing drug morphine. dressee seized the on information package imparted to him by the as to federal officers its contents. The sheriff was not in acting or collusion with the federal This cooperation officers. Court held seizure in mode did not render the inadmissi- package evidence, constitution, ble in under state and held that the Court, evidence, District in committed error. suppressing Thus, the was able to use evidence in a state court prosecution that would have been barred in a prosecution federal prosecution at that time. result now seems
If the in 1928 Montana case incongruous, was not alone in Irvine be assured that Montana its incongruity. L.Ed.561, (1954), 98 California so so as to be “almost outrageous case misconduct involving police admitted,” not incredible if it were not Court did im- Supreme state, rule on the even the misconduct exclusionary pose though Irvine, was Until the time of more Mapp, supra, extreme. supra. evidence. than states were still twenty admitting illegally-seized California, noted, it should be one the states that adopted rule before the It its holding changed Mapp. time, judicial mind between the when it held that illegally-seized evidence admissible v. Gonzalez (People 44) P.2d Cal.2d the case the ex- adopting clusionary (People in 1955 v. Cahan 44 Cal.2d 905). 282 P.2d The California court could no longer stomach situation “law where enforcement officers . . regarded . casually searches than [illegal more nothing perform- seizures] *9 Justice, at 907. Its Chief duties ...” 282 P.2d ordinary anee of their later wrote in 1962: Roger Traynor, of illegally-seized about . . . admissiblity “My misgivings [the of- time after time it was being as I observed that grew evidence] was It one thing and admitted as routine ... procedure fered blunder, to his illegally occasional constable’s accept condone an so would not free. It go quite evidence that the guilty obtained that of illegal another to condone a course steady police procedures the constitution of the United violated deliberately flagrantly as well as the state constitution. States However “Ah, grave not free? go should still but surely guilty at the exclusionary directed it seemed improperly the question, as as well States Constitution in the United answer is rule. The hard would go clear that the guilty make it They in state constitutions. been ob- have only convict could necessary if the evidence free were if such evidence free would they go illegally, just tained the constitutional had observed because police lacking however, to suggest misleading, It is them. seriously restraints upon of the exclu- consequence is a of the guilty wholesale release that in- have that the police assumption It is large rule. sionary legally evidence obtaining exhausted the possibilities variably evidence. It is more obtained illegally have relied upon when they of illegally-obtained the offer when opposite to assume rational in the v. Ohio At Large routine.” Traynor, Mapp evidence becomes added.) 319, 321, 322. (Emphasis Duke States Fifty L.J. casually not a judicial plaything, rule is exclusionary to un- answer is a constitutional waived. It and casually adopted that a free government is an affirmation It constitutional activity. than of its agents activities tolerate the unlawful can no more in- for the bones our is and cover the streets. It paste crime in were which such rights without constitutional rights, dividual skeleton. an unfleshed danger becoming result Sometimes, regret, the deepest it is to be admitted with is free. That criminal goes of the is that the guilty exclusionary go times criminals that many is irrefutable liberty. It price free because officers are careful to act constitutionally. There is no judicial logic contending should they not go free when of- ficers act unconstitutionally. case,
An important distinction must be made in this however, because here the unreasonable search made not by officers but police individuals. by private The State has out pointed Ohio, us extended the Mapp supra, of the Four operation Amendment, teenth and the rule to application cases, state but only when state action involved. This is necessari Amendment, true because of ly provisions Fourteenth which apply states and not to As individuals. we have *10 above, however, out pointed Montana applies exclusionary to actions individuals by where the state constitution has been Brecht, violated. surpa; Helfrich, The wisdom of that course supra. should be obvious: the Montana law to of applies equally agents the state and to individuals. We have no private of duality rights, involved, one set of laws when state action is operating another involved; set of laws when action is we avoid applying private such for, anomalies as occur when may individuals act but private not in concert or collusion with officers. We have not police adopted course of An legal across-the-board of schizophrenia. application result, rule results in a clear of equality does not fortuitous depend upon circumstances which might excuse in one situation violation of constitutional and dis rights, countenance such violations in another situation.
The second of part the issues to be considered here is whether the defendants here consented to the search which was made and waived thereby their This privacy. involves the determina- tion and application of standards for the invasion of privacy. has
Privacy been defined as the to control access ability to Fried, information about (1968), oneself. 77 Yale Privacy L.J. 483. In Katz v. 389 U.S. 88 S.Ct. L.Ed.2d the Supreme Court determined under the federal con stitution that is privacy if the protected defendant has an actual subjective expectation and that privacy expectation objective- Therefore, what is to sought preserved private, reasonable. ly be constitutionally even in an area accessible to public, may See, Rios v. United States protected.
1431, 4 1688. L.Ed.2d that their rented house was for
The defendants were aware in their absence. The sale and shown being prospective buyers defendants, therefore, could not have reasonable expectation the areas of the house which are to in normally subject privacy however, skis, were per spection by prospective purchasers. sale, sonal not for and not items which are normally property, house the bedroom Even subject inspection by buyers. though bed, was accessible the skis under the out public, by placing view,. defendants the skis as public’s sought preserve thus, and, be afforded constitutional We find protection. that such an is reasonable. expectation not in con-
The search was conducted citizens by private acting thus the asser- cert with law enforcement any agency, precluding Mont.Const., II, Art. state interest. 1972 § tion of compelling that Marcure’s the house It is sole undisputed purpose inspecting were to inspection by to search for the skis. The premises open not attempting dispel prospective purchasers, persons outset, on substantiate rumors. From the Marcure improperly an invasion of defendants’ expecta- unreasonable premises Moreover, from removing personal property tion of privacy. *11 it, and Marcure bed and both Hallock underneath the inspecting on the went their for being premises beyond legitimate purpose and real estate they thereby agent, the admonition defendants’ violated right privacy.
The skis were seized to a search war by police pursuant rant which was issued on affiants’ based the the skis. discovery Hallock and Marcure could only way positively identify skis was them from under the bed and removing by checking action was an serial numbers. This unconstitutional violation of defendants’ absence of identifica right privacy. positive skis, tion of the it is that mere Hallock’s would unlikely suspicion of a justify Therefore, issuance search warrant. the evidence was properly suppressed fruit of an unreasonable search and seizure.
The State takes the position allow consenting house to be shown to prospective purchasers, defendants waived their right (1938), privacy. In v. 458, Zerbst Johnson 82 L.Ed. waiver is defined as “an intentional or relinquishment abandonment a known privilege.” Thus, if a waiver, consent search is a matter of then the consent would be effective upon showing the individual who consented, purportedly agreed the search that occurred. Here the defendants did not consent to a search and seizure of the per sonal in their property possession. we
Accordingly, affirm the judgment District Court in sup- pressing evidence.
MR. CHIEF HASWELL DALY JUSTICE JUSTICES SHEA concur.
MR. MORRISON dissenting: JUSTICE I dissent from the respectfully majority opinion.
The facts of this case do not form the basis for this dissent. Rather purpose reexamine State Brecht 157 Mont. 47; P.2d State v. 183 Mont. 600 P.2d Helfrich 36 St.Rep. and the rationale expressed by majority at the case bar. In Brecht and this Court held that the Montana con- Helfrich stitution’s sections on unreasonable search and seizure address action as well as state action. The court further held that the rule is if con- automatically applied stitutional is invaded. These two are followed in the holdings instant case.
A careful reading these three decisions discloses lack of ra- tionale a radical from supporting departure established precedent other by every court. Montana appellate is the only jurisdiction my knowledge which has extended either “search and seizure” or
65 to we are the action. Additionally “privacy” provisions private has rule to ac- court which applied exclusionary private only tion. addressed in two which should be there are issues my opinion 10, 2, (1) of the Montana Constitution pro- Does Article
this case: § 11, 2, of the Montana or Article privacy, for viding § search from unreasonable security for providing Constitution seizure, state as to action? to individual action opposed apply ob- (2) to evidence suppress rule applied Should exclusionary does act in con- where that individual not an individual tained by hold I would constitutional with state? agents cert herein, state action I to contemplate only. referred provisions does not apply would hold further action. private
Montana is one of ten states to have an for express provision the state constitution. As mentioned none of privacy previously, these states have held the to be privacy protections applicable acts persons. Arizona has held that the private directly privacy to state action. prohibition applies only Farmers Insurance Cluff v. (1969), 460 P.2d has 669. Alaska Exchange Ariz.App. limited its state activities. e. v. application See Allred State g., (1976) 411, 416; 554 P.2d v. Alaska Falcon Public Com’n Offices 570 P.2d action in State
Montana first extended privacy rights private Brecht, wife and case man his In that supra. telephoned an exten- in on listening to shoot her. Another threatened person, sion, wife was shot and When the overheard the conversation. later, the eavesdrop- the District Court allowed killed a short time reversed she This Court what overheard. to testify regarding per an from inva- protected that Brecht’s holding Katz v. United The court individual. private sion from cited L.Ed.2d sup- States action, However, government Katz involves its holding. for port this Court’s position no for support action and provides not in Brecht.
In State v. Helfrich, court supra, followed the holding of *13 Brecht, but the expanded discussion. The court relied upon from the transcripts constitutional convention in that concluding the framers of the constitution intended for the of right privacy both protect persons against and private government action. The court cited the following transcript quotations: 1776, 1789, . . Certainly,
“. back when our they developed Bill of the and Rights, search seizure were when provisions enough, a was man’s home his castle and the state could not intrude upon his home a without the of search warrant with procuring probable cause stated a a being before and search warrant magistrate being issued. No other was and this was protection necessary certainly the amount of free its greatest protection any society has.given course, a individuals. of of the was society, In type neighbor three four miles There no real maybe away. infringement However, the his individual and we upon today privacy. an have observed and we know our increasingly complex society decreased, decreased, has area and privacy decreased . . . Tr. Convention, VII, the Montana Constitutional Vo. 5180-81. pp. “ ‘. . . It isn’t a careless that has this government power firms, political organizations, information pry, private gathering and even an individual can now more more effec- snoop easily than . . at ever before .’ Tr. 5182.” P.2d tively pp. Helfrich, 600 818, 37 1766. St.Rep. quotation
The second resulted from a actually delegate reading from editorial which an newspaper supported expanded right However, the balance of statement is privacy. delegate’s very reads: significant. It
“It what would a semi wall of produces separa- I call permeable state; tion the wall of between individuals just separation absolute, wall of we between church state is are separation is, this as a with section would be semi That permeable. proposing we all that the state member participating society recognize at must come into our lives some but what it is says private point, our unless have a reason for good don’t come into lives private you this, mandate our We feel that as a government, there. being our in- reexamination and guarantee would cause complete of Montana this important right.” (Emphasis dividual citizens very atTr. supplied.) pp. little solace from can find majority reading my opinion, about When Transcript. talking Convention Constitutional action, section, than is em- state action rather
privacy Furthermore, section, 2, §10, Article privacy phasized. essential states: “The of individual specifically of a free and shall not without infringed well being society state interest.” supplied.) showing compelling (Emphasis framers of the section indicates that the con- itself language an state action invasion where there by allowing templated state interest. compelling *14 a for constitutions have been means
Historically always people to their In rare instances the constitutional government. address has framework embraced sections specifically speaking private II, in Article of the Montana Constitution persons. provides § . : Neither the state nor part: any “. person, firm, corporation, shall any person (Emphasis institution discriminate ...” against the section does Notably private not address in- supplied.) privacy dividuals. as Montana’s constitutional
By interpreting a action, as as well state Court this has prohibition against private, foursquare set the the courts of all position itself other states, the and in intention of the framers my opinion, against Montana’s constitution. addressed issue which must be is the application
The second to me has majority rule. It exclusionary apparent to constitutional status. This conclu- rule elevated exclusionary of its automatic in light application sion seems in the inescapable Brecht, states: “It is and this As here majority case. Helfrich, . . for the bones of our constitutional .” rights and cover paste confusion on this point there seems to be Nevertheless vetoed, abolishing continues legislature pass legislation, though rule exclusionary a “deterent” providing alternative. Under the current of Montana posture constitutional law such legislation is unconstitutional. patently
The
rule was first enunciated in Weeks v.
exclusionary
United
States
In Burdeau v. McDowell L.Ed. Court United limited Supreme States applica- Therefore, tion of the rule to acts of the sovereign. exclusionary a evidence was not subject exclusion procured private person even if in obtained an unreasonable search. for the rule exclusionary arises from desire to deter
Justification unlawful has deterrent action. The rule minimal value police when If the rule private is to have deterrent ef- applied persons. fect, violators It is must be aware the rule. doubtful potential private individuals in our understand society appreciate rule, and there is little evidence that application exclusionary rule to violators would reduce number exclusionary of violations. cannot
Automatic exclusionary certainly application harm. The ef- the basis of constitutional justified on repairing the case of an fect of the rule offers no reparation applying evidence. no criminal yielding unreasonable search seizure crime, is limited who have committed remedy The rule’s to those to all others. reparation thereby denying rule is a valuable tool deterring *15 cases private unreasonable action. In action the police purpose wanes. hold, case, seized,
I would in this skis the which were were the fruit of action and therefore not subject I suppression. would the District reverse Court remand this case for trial.
MR. WEBER and HARRISON concur with the JUSTICES dissent. foregoing
69 concurring: DALY specially MR. JUSTICE however, I, it necessary find the opinion. I concur with majority in the dissent- overzealous statements contained to comment on the of constitutional history. the roots opinion they go ing case, this that in the supra, the is made Brecht First allegation 389 used case Katz v. United States U.S. Court the decision, 576, a landmark to sup- L.Ed.2d 19 federal true, that con- not in the in Brecht. This is especially holding port text. of the the Fourth Amendment history
A constitutional study Taft was head of the federal will reveal that when Chief Justice his he was belief the Fourth adamant judicial system was cast in nonflexible concrete. Amendment and Holmes that a in- telephone Taft with Brandéis argued tap of the did not come within sovereign protection trusion into Amendment because a intrusion trespass Fourth physical required protection enclave protected trigger that a test Amendment. He further additionally Fourth explained that the did at time the was obvious in not exist telephone and, therefore, it was not Amendment written possible Fourth intrusion within the contemplation to have telephone Holmes, course, Brandéis and framers the Amendment. for argued flexibility. and, storm for the case finally, continued many years, States, reversed the rule in Olmstead
Katz v. United supra, (1928), 277 States L.Ed. United Taft). held, essence, (authored Katz by Chief Justice was no valid because completely pro- enclave position longer fol- was a tection of the Amendment personal Fourth e., element, was not a i. necessary A person. trespass lowed static, was not but rather that the Fourth Amendment meaning that is to in- of constitution flexible, breathing part subject living, and, that will modern day technology accommodate terpretations hence, has of time. not worn thin with passing document This is the Katz, rationale of in a constitu- properly applied
70 context, involvement, it is very
tional minus emotional meaningful to this historic and has a rational connection. problem dissent, a
The is well in case not cited problem explained (1974), v. 165 P.2d and State Coburn Mont. 530 I quote therefrom:
“ ‘The Amendment unlawful gives protection Fourth against seizures, cases, as searches and and shown in the its previous pro- tection action. Its clear- governmental origin applies history show that it was intended as a of ly upon restraint the activities and was not intended to be a limitation sovereign authority, upon other than as such was governmental it agencies; authority of the Fourth Amendment to secure the citizen in the purpose unmolested his and the occupation dwelling possession of his to the seizure property, subject by process duly 465, 475, issued.’ v. McDowell 256 41 U.S. S.Ct. [Burdeau added.) [576], 574 65 L.Ed. (Emphasis 1048.] “A fair would seem to that the analysis arguments imply was much the same position parties expressed by Taft, decision, Chief for the in five-four writing majority Justice States, [473], [570], Olmstead United 277 438 48 72 L.Ed. intrusion case of- by federal telephone ficers, held where he the Fourth Amendment not subject applica- tion the intent of the framers of the amendment and its beyond words could not ‘in- be stretched to include meaning given tangible’ requirement was to invade trespass protected property.
“All in the instant case have avoided parties any analysis Katz which, in Black in his dissenting proclaims opinion Justice in Katz have ‘rewritten the Fourth majority Amendment.’ Justice in his also Black dissent relied on heavily Olmstead.
“It would then that the based appear arguments on strict inter- and intent the authors as concern pretation, origin, history, they the Fourth Amendment are in The diluted since Katz highly Katz the former decisions of the majority recognize Court foreclosed Fourth when Amendment inquiry penetration absent, and Goldman v. Olmstead United citing trespass States, 86 L.Ed. for Amend- and seizures of tangible to limit searches thought ment Katz, controlled. rights majority, property property *17 679, States, 5 v. 81 S.Ct. cited Silverman United 734, as the from that narrow view and included departure L.Ed. as went on to hold that the Fourth Amendment well. It intangibles of and therefore the reach and not ‘areas’ protects simply people or absence Amendment cannot turn upon presence the Fourth enclosure, and the doc- of intrusion into any given trespass physical and can no be longer controlling. trine in Olmstead Goldman then demonstrates a radical from the accepted “This departure of which controlled the words Fourth Amendment meaning a or more since Olmstead. It further years, for over of 40 period that are not is these traditional static. This demonstrates concepts Olmstead, a new means. concept years ago, not by any many the four Brandéis observed in reference justices, among dissenting same subject on the as Katz: interpretation “ ‘Clauses to the individual guaranteeing protection against abuses of must have a similar of adapta- specific power, capacity It was a clause tion to world. with reference to such changing States, 217 this court said in Weems v. United U.S. 544, 551, L.Ed. statutory 54 801: both “Legislation, enacted, evils, constitutional, true, it is from an of experience and is not, should be con- therefore, necessarily but its general language evil had taken. Time works fined form theretofore existence now conditions and purposes. into changes, brings wider Therefore to be vital must be capable applica- principle is true of which it birth. This peculiarly than gave tion mischief enactments, are not ephemeral designed Constitutions. They are, words occasions. to use the of Chief They meet passing Justice Marshall, as as human immortality ‘designed approach nearly can it.’ The future is their care and provision institutions approach be bad of which no can event of and tendencies good prophecy for Constitution, therefore, our con- made. In application but be. been of what may cannot be what has templation 72
Under other rule Constitution as any would indeed be easy ap- as it would plication be deficient in efficacy Its power. general would have little value and be principles converted by precedent into and lifelessformulas. impotent declared in words Rights might ’ added.) lost in reality.” (Emphasis concerned, as “So far privacy Katz recognized Fourth Amendment anot but the general right amendments, contained First, Fourth and several other Fifth, U.S., Third and the stated in Katz at 389 350 of p. at S.Ct., 511 p. of 88 at 581 of 19 L.Ed.2d in p. reference to the right — is, ‘. . . his to be let privacy: alone other like people life, of his protection and of his left to the property very largely law of the individual States.’ States,
“In
United
29
Boyd
L.Ed.
the Court
noted
Fourth
Fifth Amendments
were
tied and the
closely
unreasonable search and seizure of
very
the Fourth Amendment almost
a man to
always compels
give
evidence
himself which is condemned in the Fifth Amend-
*18
ment. In this
the
and
almost
regard
Fourth
Fifth Amendments
run
into each
This
to
other.
adds
the
the fact that a violation
problem
of the
Amendment
whether
is
rights,
government,
Fifth
courts,
condemned
all
and civil.
v.
military
Haynes Washington,
503,
1336,
(1963);
373
83
“Concerning exclusionary rule rule’ is a court ‘exclusionary resting sider first that adopted of the Court Supreme on the and making’ ‘supervisory power’ ‘rule courts has in the constitution or the over the other no roots (Dissent in Katz by statutes of state of federal government. Colorado, 25, 338 69 S.Ct. v. U.S. Black citing Justice Wolf 1684, 1782; Ohio, U.S. 93 L.Ed. v. 367 Mapp States, 933; 364 84 v. United 6 L.Ed.2d A.L.R.2d Elkins 1447], 4 223], [1443, L.Ed.2d [216, 206 80 1437 1677, 1680, (1960)). as not satisfactory “The fact that the rule is characterized that tort for argument the state in recommended remedy ag all cases which ignores grieved adequate, simply cannot be cor wrong declare the rule as deterrent because future, must rected or but avoided in merely compensated, have could no on a there be constitu recognized price placed Coburn, 496-499, tional Mont. at 530 P.2d State right.” dissent, to the Further, as it speaks I would only say Montana, the State contained in the Constitution of privacy are as the comments feeling, a personal can be characterized supporting authority. any recognized lacking rule, the Court to it accuses As the dissent speaks I think if time to position. rule a constitutional elevating Coburn, the confusion would supra, read State v. were taken makes no would It and the apparent. Court’s position disappear, or its history application difference in the constitutional the Mon- Court that law the United States Supreme Montana in that area. It legislate tana continues attempt Legislature and, is this duty follows it Court’s day night, their prerogative; defect. for constitutional to examine legislative product