State v. T. Larson

11/09/2022

DA 20-0603
Case Number: DA 20-0603

IN THE SUPREME COURT OF THE STATE OF MONTANA

2022 MT 223

STATE OF MONTANA,

Plaintiff and Appellee,

v.

TRENTON MATTHEW LARSON,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. DDC 20-89
Honorable Ed McLean, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant
Appellate Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Roy Brown, Assistant
Attorney General, Helena, Montana

Leo J. Gallagher, Lewis and Clark County Attorney, Helena, Montana

Melissa Broch, Harris Law Office PLLC, Helena, Montana

Submitted on Briefs: July 13, 2022
Decided: November 9, 2022
Filed:

' ,-6A•-if
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Trent Matthew Larson (Larson) was charged with possessing child pornography in

violation of § 45-5-625(1)(e), MCA. He entered into a plea agreement in the First Judicial

District Court, Lewis and Clark County, that reserved his right to appeal the denial of his

suppression motion.

¶2 We affirm and restate the issue as follows:

Did the District Court err when it failed to suppress evidence confiscated by a
manager of a group home, pursuant to the group home’s rules, who subsequently
turned the evidence over to police?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 This case arises out of events occurring at an adult foster care group home in East

Helena where Larson lived. Larson has Asperger’s syndrome. His original placement in

the group home was arranged through his parole and probation officer pursuant to a

sentence for burglary. He lived at the group home for five years until he completed his

probationary term and then continued to live in the group home for another two years until

his electronic devices were confiscated and he was charged with the instant offense.

¶4 Connie Griffin Jacquez (Jacquez) was the owner and manager of the private group

home when Larson lived there. She is neither a law enforcement officer nor a state

employee. When Larson entered the group home, he was advised of the group home’s

rules. The rules were extensive and covered many aspects of a resident’s life, such as

maintenance of regular hygiene; no use of alcohol or drugs; and requirements that a

resident follow their treatment plan, abide by a 10 p.m. curfew, complete assigned chores,

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and participate in household recreational activities. The rules specifically prohibited

certain activities as well. A resident could not possess pornographic material and the use

of an electronic device for such a purpose would subject the device to confiscation. The

rules relevant to these proceedings provided:

6. No pornographic material in the household, computers or movies allowed
in the home . . .
23. Client may not use any computer owned by AFCP.1 Usage of computers,
gaming systems, is up to the discretion of the AFCP and may be
confiscated/banned for violated of house/computer/internet rules at any time.
This also pertains to gaming systems and electronics.
24. AFCP may/will set allotted amounts of time for computer usage. AFCP
also may restrict any computer use in the home. Scheduled times for the use
of the computer is up to the discretion of the house provider.

The rules also provided for a “30-day eviction notice” or, in the case where a resident

continues to violate the rules after frequent warnings, “immediate eviction.” Jacquez

allowed, though not stated in the rules, a resident to have confiscated property back upon

leaving the group home permanently. Larson signed the rules in 2013, thus affirming that

he understood he was not allowed to view or possess pornography and that his electronics

would be confiscated if he did not comply. Every year thereafter, Larson read and signed

the rules indicating that he understood and agreed to them.

¶5 Unfortunately, Larson struggled to follow the rules of the group home. For instance,

he projected adult pornography in a common residential area, which led to complaints from

other residents. He was known to steal children’s and women’s undergarments.

1
AFCP stands for “Adult Foster Care Provider.”
3
Furthermore, he begun “propositioning” Jacquez’s grandchildren and other children in the

neighborhood. To prevent Larson from streaming pornography and engaging in

inappropriate behavior, Jacquez used internet screening technology to block pornography

from coming into the residence over the internet. Larson still found ways to avoid the

blocking technology and continued to view pornography on his phone and computer. As

a result, Jacquez confiscated his electronic devices.

¶6 At some point, Larson enrolled in school so Jacquez decided to give him another

chance with computers. Jacquez allowed him to access his computer for the purpose of

doing schoolwork only. However, Jacquez discovered that Larson was still using the

computer to view pornography. Further attempts by Jacquez to monitor Larson’s

electronics failed and Larson subsequently admitted to Jacquez that “he was having

thoughts of molesting children.” Consequently, Jacquez confiscated Larson’s computer

and the rest of his electronic devices and directed him to seek treatment in a sexual offender

treatment program. He agreed to attend treatment, and Jacquez accompanied him.

¶7 By now, Jacquez had confiscated numerous electronic devices from Larson—a

computer, three or more phones, external hard drives, and video streaming devices.

Notwithstanding, Larson continued to purchase new devices and tried to conceal them from

Jacquez. Jacquez continued to confiscate them and place them in a safe to prevent Larson

from accessing them.

¶8 Jacquez contacted the police on several occasions advising that she had confiscated

pornography from a resident. On the first occasion, police said they would respond but
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never did. Two or three weeks later, a resident informed her that Larson had been hiding

a phone in a plastic bag in the back of the toilet. She confronted Larson about the phone

and saw it contained child pornography when he handed it over to her. Once Jacquez

confiscated the phone, she called the police again, but the police did not answer. Jacquez

then asked Larson to leave the group home permanently. Larson informed her that he was

already planning to move out and had contacted law enforcement for a civil standby so he

could get his electronics back.

¶9 When Larson contacted the police, Deputy Jordan Criske-Hall asked Larson why

he “didn’t just wait until the 30 days was up,” in which case, Jacquez would return his

electronics. Larson replied that “he would probably be arrested” if he answered Deputy

Criske-Hall’s question. The deputy continued to inquire, and Larson eventually disclosed

that he had child pornography on his devices. Deputy Criske-Hall responded to the group

home and informed Jacquez about this conversation. Jacquez told Deputy Criske-Hall that

she had already confiscated some of Larson’s electronics after she observed child

pornography on his computer and phone. Deputy Criske-Hall then asked Jacquez “to

gather up all of the electronics that [she] could find of his.” Jacquez testified that she gave

Deputy Criske-Hall Larson’s electronics that she had already confiscated, along with two

additional thumb drives she seized after Deputy Criske-Hall’s request. Jacquez testified at

the suppression hearing that the only items she believed she had “not confiscated from him

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was like the thumb—some thumb drives[.]”2 Deputy Criske-Hall did not have a warrant

when Jacquez turned over Larson’s electronics.

¶10 After Deputy Criske-Hall confiscated and secured the electronic devices, a detective

from the Criminal Investigation Division applied for a search warrant. The search warrant

was granted on December 11, 2019. The search of the devices revealed “80 or more”

videos and pictures of child pornography involving infants, newborns, and preteen sex with

adult men. Moreover, a search of Larson’s computer yielded anime3 pictures of sex with

toddlers and young females, along with search terms such as “Toddler girls open vagina.”

Larson admitted to detectives that he had used the “Dark Web” to search and look at child

pornography, describing the websites he had visited.

¶11 The State charged Larson with possession of child pornography in violation

of § 45-5-625(1)(e), MCA. Larson moved to suppress any evidence derived from the

electronic devices, arguing that Jacquez became a state actor when she turned over his

electronic devices to police. Larson also maintained that Jacquez, as a third-party, lacked

authority to consent to the State seizing his devices without a warrant. The District Court

held a hearing and Jacquez testified, but Deputy Criske-Hall did not. The District Court

denied Larson’s motion, finding that Jacquez “was not acting at the instigation of law

2
Deputy Criske-Hall took possession of a camcorder, four cell phones, a tablet, a Kindle, a large
external hard drive, a laptop computer, and two thumb drives.
3
“Anime” is a style of “animation in Japan that is characterized by stark colorful graphics depicting
vibrant characters in action-filled plots often with fantastic or futuristic themes.” Anime, Merriam-
Webster’s Dictionary. (10th ed. 1993).
6
enforcement” and that “[s]he was acting to enforce the group home rules to which Larson

had consented.” The District Court concluded that Larson had “assumed the risk” that

Jacquez would see the child pornography on his electronics, confiscate the devices, and

turn the electronics over to law enforcement.

¶12 Larson entered into a plea agreement with the State, where the State agreed to

recommend a ten-year sentence to the Montana State Prison with all time suspended. The

District Court adopted the psychosexual evaluator’s recommendation and designated

Larson a Tier 2 sexual offender. Larson reserved his right to appeal the denial of his motion

to suppress.

STANDARD OF REVIEW

¶13 For the denial of a motion to suppress, this Court reviews findings of fact for clear

error and conclusions of law for correctness. State v. Pham, 2021 MT 270, ¶ 11, 406 Mont.

109, 497 P.3d 217. Findings of fact are clearly erroneous if they are not supported by

substantial evidence, the court misapprehends the effect of the evidence, or appellate

review of the record convinces the court that a mistake has been made. State v. Warclub,

2005 MT 149, ¶ 23, 327 Mont. 352, 114 P.3d 254.

DISCUSSION

¶14 Did the District Court err when it failed to suppress evidence confiscated by a
manager of a group home, pursuant to the group home’s rules, who subsequently turned
the evidence over to police?

¶15 Larson argues that Jacquez became a state actor once Deputy Criske-Hall asked her

to turn over Larson’s electronic devices and that her actions resulted in a warrantless and
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unlawful seizure.4 Larson asserts that Jacquez did not gather up the electronics on her

“own accord,” but instead acted “as an arm of the police.” He contends that Jacquez

“performed the intrusive conduct to assist law enforcement” rather than for the purpose of

implementing her group home rules. Larson also argues that under the third-party consent

doctrine, Jacquez lacked authority to consent to a warrantless seizure by Deputy

Criske-Hall of Larson’s property. We turn first to Larson’s contention that Jacquez was a

state actor.

¶16 The Fourth Amendment to the United States Constitution and Article II, §§ 10 and

11 of the Montana Constitution protect citizens against unreasonable seizures. Katz v.

United States, 389 U.S. 347, 353, 88 S. Ct. 507, 512 (1967); State v. Staker, 2021 MT 151,

¶ 9, 404 Mont. 307, 489 P.3d 489. A seizure occurs when there has been “some meaningful

interference with an individual’s possessory interests” or “dominion and control” over an

individual’s property. United States v. Jacobsen, 466 U.S. 109, 120-21, 104 S. Ct. 1652,

1660 (1984); Horton v. California, 496 U.S. 128, 133, 110 S. Ct. 2301, 2305-06 (1990).

The purpose of §§ 10 and 11 of the Montana Constitution is “to protect the privacy and

security of individuals from unreasonable intrusion or interference.” State v. Hoover, 2017

MT 236, ¶ 14, 388 Mont. 533, 402 P.3d 1224. These protections only take effect when an

unlawful “search” or “seizure” has been established. State v. Funkhouser, 2020 MT 175,

¶ 16, 400 Mont. 373, 467 P.3d 574.

4
Larson does not challenge the scope of the subsequent search or the reasonableness of the time
law enforcement took to obtain a warrant after they took possession of the electronic devices.
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¶17 The Fourth Amendment applies only to government action, and not that of a private

party. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S. Ct. 574, 576 (1921); see also

Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 614, 109 S. Ct. 1402, 1411 (1989)

(holding that “the Fourth Amendment does not apply to a search or seizure, even an

arbitrary one, effected by a private party on his initiative. . .”). In Jacobsen, the United

States Supreme Court explained that “a search or seizure, even an unreasonable one,

effected by a private individual not acting as an agent of the Government or with the

participation or knowledge of any governmental official” does not violate the Fourth

Amendment. 466 U.S. at 114-15 (quoting Walter v. United States 447 U.S. 649, 662, 100

S. Ct. 2395, 2404 (1980)). Thus, when an individual reveals private information to another,

the person assumes the risk that the confidant may reveal the incriminating evidence to

government authorities, and if that occurs, the Fourth Amendment does not protect the

individual from governmental use of the evidence. Jacobsen, 466 U.S. at 115-18. In

contrast, when a private party acts as an “instrument” or “agent” of the State in effecting a

search or seizure, Fourth Amendment protections are implicated. Coolidge v. New

Hampshire, 403 U.S. 443, 489, 91 S. Ct. 2022, 2049 (1971).

¶18 Correspondingly, this Court has held that Article II, §§ 10 and 11 of the Montana

Constitution protect individuals from state action only. State v. Wolfe, 2020 MT 260, ¶ 6,

401 Mont. 511, 474 P.3d 318; State v. Malkuch, 2007 MT 60, ¶¶ 12-14, 336 Mont. 219,

154 P.3d 558; State v. Long, 216 Mont. 65, 67-71, 700 P.2d 153, 155-57 (1985). In Wolfe,

we held that a private person did not act as a state actor when officers suggested the victim
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of a rape answer her cell phone on speakerphone when her perpetrator called her. The

victim was present with law enforcement and reporting the incident when Wolfe repeatedly

texted and called her. Wolfe, ¶ 4. We explained that “[l]ike other constitutional guarantees

of individual liberties, these provisions direct government action only.” Wolfe, ¶ 10. The

Fourth Amendment protections have as their origins and purpose an intent to restrain

sovereign authority and are not intended to be a restraint upon other non-governmental

actors. A private party acting “of her own accord,” therefore, does not effectuate an

unconstitutional and unreasonable search or seizure. Long, 216 Mont. at 71.

¶19 When analyzing whether a private person was acting as a state actor, this Court

determines “(1) whether the government knew of and acquiesced in the intrusive conduct,

and (2) whether the party performing the search intended to assist law enforcement efforts

or to further his own ends.” Malkuch, ¶ 14 (citing United States v. Miller, 688 F.2d 652,

657 (9th Cir. 1982); United States v. Walther, 652 F.2d 788, 791-91 (9th Cir. 1981)). In

Malkuch, we held that a private party’s search was not attributable to the State when the

police officer told the private party he “needed evidence” to support her allegations of

illegal drug activity and the private party subsequently searched the premises and seized

the drugs. Malkuch, ¶ 16. When a private party has a “legitimate, independent motivation”

to advance her own ends, “any dual motive to detect or prevent crime or assist police” does

not make them a government agent. United States v. Cleaveland, 38 F.3d 1092, 1094 (9th

Cir. 1994), as amended (Jan. 12, 1995).

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¶20 Applying these principles here, we conclude Jacquez was not a state actor when she

gave law enforcement Larson’s electronic devices. First, the record establishes the

electronics had been confiscated before police became involved. There was no pending

criminal investigation; indeed, Jacquez made every effort to help Larson by allowing him

to stay in the group home and get into treatment despite Larson having committed

numerous violations. Deputy Criske-Hall was not involved until after the numerous

devices had already been confiscated and therefore could not have “acquiesced in

[Jacquez’s] intrusive conduct.” Malkuch, ¶ 14. Regarding the second Malkuch factor,

Jacquez never expressed any intent to assist law enforcement in the investigation. The

record shows that she had two motives for collecting Larson’s electronics: (1) to require

Larson to comply with her group home rules, and (2) to dispose of the contraband contained

in the devices. Further, Jacquez disclaimed involvement or interest in the investigation

when she stated that she “would have contacted the police again” and given the contraband

to the police so law enforcement could have “done whatever with it.” She wanted Larson’s

contraband out of her possession, and she disposed of it by handing it over to Deputy

Criske-Hall. Jacquez had an interest in confiscating all Larson’s electronics, including the

thumb drives, to rid the premises of pornographic contraband. Her interest in purging her

home of pornography coupled with Deputy Criske-Hall’s request for her to turn over all

Larson’s electronic devices did not make her a state actor. See Cleaveland, 38 F.3d at

1094.

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¶21 We turn now to Larson’s argument that Jacquez did not have third-party authority

to consent to the seizure of his electronic devices by law enforcement. Although we have

already noted that the Supreme Court, in Jacobsen, established a person assumes the risk

that a confidant may reveal incriminating evidence to government authorities, we begin

with some basic principles surrounding third-party consent. “Warrantless seizures are per

se unreasonable subject to only a few carefully drawn exceptions.” State v. Elison, 2000

MT 288, ¶ 39, 302 Mont. 228, 14 P.3d 456. The State bears the burden of proving an

exception to the warrant requirement. State v. Goetz, 2008 MT 296, ¶ 40, 345 Mont. 421,

191 P.3d 489. Consent represents one of the narrowly drawn exceptions to the warrant

requirement. State v. Schwarz, 2006 MT 120, ¶ 14, 332 Mont. 243, 136 P.3d 989. For

third-party consent to be valid against the defendant, “the consenting party must have

actual authority” to consent to the government intrusion. State v. McLees, 2000 MT 6,

¶ 32, 298 Mont. 15, 994 P.2d 683. A third-party’s authority to consent to a search or seizure

must rest on “mutual use of the property by persons generally having joint access or control

for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has

the right to permit the inspection in his own right and that others have assumed the risk that

one of their number might permit the common area to be searched.” McLees, ¶ 13 (quoting

United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993 (1974)). “The Montana

Constitution requires that a court reviewing an issue of third-party consent determine—

without deference to the officer at the scene—whether the third-party had common

12
authority.” State v. Urziceanu, 2015 MT 58, ¶ 16, 378 Mont. 313, 344 P.3d 399 (citations

omitted).

¶22 Larson argues that Jacquez did not have authority as a third-party to consent to law

enforcement’s seizure of his devices. Larson contends that because the deputy had an

“objective indication” that Jacquez lacked common authority over the electronics, then

Jacquez could not have consented to the seizure. He further argues that the State failed to

satisfy its burden to establish that Jacquez had authority to consent because Deputy

Criske-Hall was not aware of the group home rules. Therefore, Larson asserts that the

group home rules cannot be used to establish that Jacquez, as a third-party, had authority

to consent to the seizure.5

¶23 By agreeing to the group home rules, Larson relinquished his right to the exclusive

possession of certain property which he used in violation of those rules. Larson, by signing

the rules, gave the group home manager joint access and control for the purpose of seizing

electronic devices when they contained pornographic material. Larson knew that Rules 6,

5
Larson contends that, although a resident in Jacquez’s group home, he still maintains his rights
and autonomy. He cites Admin. R. Mont. 37.100.101(2), (3)(o), which provides that “[r]esidents’
needs are to be addressed in a manner that supports and enables residents to maximize their ability
to function at the highest level of independence possible” and residents “have the right to . . . be
encouraged and assisted to exercise constitutional and legal rights . . .” See also § 50-5-1104(2)(i),
(l), MCA (stating that residents retain rights “to privacy in [their] room[s],” “to reasonable
safeguards for personal possessions” and to “have reasonable access to” their personal property).
Larson has not developed this argument on appeal by placing the rule and statute within the context
of the facts here. More particularly, however, the law relating to third-party consent, consent, and
state actors, does not vanish in the face of this authority. Residents do not have the right, by virtue
of the authority Larson cites, to possess pornography—a crime in itself—particularly when they
have consented to confiscation of electronic devices containing pornographic material as a
condition for residing in a group home.
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23, and 24 prohibited him from possessing electronic devices containing pornography and

he consented to the confiscation or a third-party obtaining control over any device that

contained pornographic material. Therefore, Jacquez had the authority to control Larson’s

electronic devices as provided in the rules. By virtue of the house rules to which Larson

agreed, Larson himself consented to the house manager confiscating his property. By

giving the house manager authority to confiscate his electronic devices, Larson assumed

the risk that she would discover the child pornography on these devices and turn this

information over to the police. Here, Jacquez had the authority to turn over Larson’s

electronic devices to law enforcement.

¶24 Finally, Larson on appeal does not specifically distinguish the items taken by

Jacquez before and after police involvement. Larson does suggest the seizure was unlawful

because it “extend[ed] beyond” the items taken by Jacquez on her “own accord[.]”

Presumably, Larson is referring to the seizure of the two thumb drives, which Jacquez

confiscated after Deputy Criske-Hall asked her “to gather up all of [Larson’s] electronics.”

However, Larson did not make this argument before the District Court—either in his

motion to suppress, during the hearing, or in supplemental briefing the District Court

ordered. It is well-established that to properly preserve an issue or argument for appeal, a

party must raise it in the district court. State v. Rosling, 2008 MT 62, ¶ 76, 342 Mont. 1,

180 P.3d 1102. An issue or claim must be timely raised in the first instance in the trial

court because “it is fundamentally unfair to fault the trial court for failing to rule correctly

on an issue it was never given the opportunity to consider.” State v. West, 2008 MT 338,
14
¶ 16, 346 Mont. 244, 194 P.3d 683 (citations omitted). Accordingly, we decline to consider

whether Jacquez’s seizure of the thumb drives was unlawful.

CONCLUSION

¶25 The District Court did not err when it denied Larson’s Motion to Suppress. Jacquez

was acting as a private party when she confiscated, pursuant to rules of the group home,

Larson’s electronic devices containing pornography. Further, by virtue of the rules to

which Larson agreed, Larson consented to the group home manager confiscating his

electronic devices.

¶26 Affirmed.

/S/ LAURIE McKINNON

We Concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ INGRID GUSTAFSON
/S/ JIM RICE

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