No. 14807
I N THE SUPREME COURT OF THE STATE O M N A A
F OTN
1980
STATE OF MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
VS.
ERNEST C. HANLEY,
D e f e n d a n t and A p p e l l a n t .
A p p e a l from: D i s t r i c t Court o f t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
H o n o r a b l e C h a r l e s Luedke, J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
R i c h t e r and L e r n e r , B i l l i n g s , Montana
Alan L e r n e r a r g u e d , B i l l i n g s , Montana
F o r Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , a r g u e d , H e l e n a , Montana
Richard Larson appeared, A s s i s t a n t Attorney General,
H e l e n a , Montana
H a r o l d H a n s e r , County A t t o r n e y , a r g u e d , B i l l i n g s , Montana
Submitted: January 21, 1980
Decided :
1 3 1980
-
Filed:
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
On November 20, 1979, this Court issued an opinion
suppressing all evidence against the defendant and reversing
his conviction. A petition for rehearing was filed on
November 30, 1979, was answered by objections on December 3,
1979, and on December 21, 1979, this Court ordered a re-
hearing. The case was reheard on oral argument before this
Court on January 21, 1980, from which this opinion follows.
Defendant Hanley appeals from his conviction on a
felony charge of sale of dangerous drugs. Trial was held in
the District Court, Yellowstone County.
While on parole as a result of a previous drug convic-
tion, defendant was arrested and placed in the Yellowstone
County jail. The arrest came as a result of a complaint by
his wife. Shortly after his incarceration, defendant re-
quested a meeting with detectives from the Yellowstone
County Criminal Investigation Division (C.I.D.).
Two detectives responded to defendant's request. At
the meeting, defendant informed the detectives that he
wanted to become an informer to stop his wife's involvement
in the Billings drug scene. As an expression of sincerity,
he provided the names of several individuals who were in-
volved in drug-related activities. The C.I.D. approved
defendant's request to become an informant. The detectives
instructed defendant to infiltrate a large drug ring in
Billings and gain information for setting up a large buy of
drugs.
There was conflicting testimony as to the specifics of
defendant's scope of authority as an informant. Defendant
testified that the detectives told him to do what he had to
do, (to do anything necessary), to infiltrate these drug
rings and establish a large buy. In defendant's mind this
included making purchases and sales of small amounts of
drugs. The detectives, however, testified that defendant's
role as an informant was simply to gain information con-
cerning drug activities and that C.I.D. personnel would buy
the drugs once a purchase had been arranged. Detective Ford
testified that defendant was asked only to provide informa-
tion, not to participate in drug transactions. Shortly
after defendant agreed to become an informant, he was re-
leased from jail.
After his release, defendant became involved in a
purchase and sale of drugs on January 2, 1979. Three men,
Ron Wiley, Colin Wilson, and defendant, arranged to sell a
quantity of methamphetamine to Tony Carrier, an undercover
agent working for the C.I.D. At approximately 8:00 a.m. on
January 2, 1979, Carrier received a call from Wiley, with
whom Carrier had dealt before, and was told there was a
quantity of methamphetamine for sale. Defendant's partici-
pation in the phone call was primarily to inform Carrier of
the quality of methamphetamine, otherwise known as ncrank,"
which was available. Carrier arranged to purchase the drugs
from the three men at a meeting later that day at Sambo's, a
Billings restaurant. Carrier recorded the telephone con-
versation without a search warrant by means of a device
attached to his phone.
Prior to the meeting, Carrier contacted the C.I.D.,
which applied to the District Court for an order or search
warrant to electronically monitor the sale. The District
Court granted the order, and Carrier was fitted with an
electronic monitoring device.
Carrier later met defendant and the other two men at
Sambo's. Two plain clothes officers were observed by the
men in the restaurant, however, and the meeting was trans-
ferred to defendant's residence where the details of the
purchase were discussed. Carrier agreed to buy two grams of
methamphetamine for approximately $65 per gram. Defendant
and Carrier then left for another residence where defendant
purchased and picked up the drugs. Defendant gave Carrier
two small packages of methamphetamine and took a small
portion of one of the packages as his "cut." Carrier then
drove defendant to his residence, returned to the C.I.D.
office and turned in the packages for analysis. The state
crime laboratory tested the substance in the packages and
confirmed that it was methamphetamine.
On January 19, 1979, defendant was arrested for the
criminal sale of dangerous drugs. Prior to his arrest, de-
fendant made no effort to contact officers regarding the
sale. Defendant appeared with counsel on January 24, 1979,
and entered a plea of not guilty. On March 7, 1979, defen-
dant moved to suppress all evidence on the grounds of con-
stitutional infringement of his right to privacy. The
motion related to the electronic monitoring of conversations
of the sale of drugs. The District Court denied the motion
to suppress on March 8, 1979, and trial began on that day.
At trial the State introduced the tape of the events of the
sale as well as the drugs seized in the sale. Defendant was
convicted on March 9, 1979, and sentenced to ten years in
the Montana State Prison with five years suspended.
~efendant-appellantpresents the following issues for
review by this Court:
1. W a s t h e d e f e n d a n t e n t r a p p e d i n t o committing t h e o f -
f e n s e f o r which h e w a s c o n v i c t e d ?
2. Did t h e D i s t r i c t C o u r t err i n d e n y i n g d e f e n s e
c o u n s e l ' s motion t o s u p p r e s s S t a t e ' s e x h i b i t s 2, 3 and 4?
3. Did t h e D i s t r i c t C o u r t err i n g r a n t i n g t h e S t a t e ' s
motion i n l i m i n e p r e v e n t i n g i n q u i r y i n t o C a r r i e r ' s c r i m i n a l
r e c o r d when such i n q u i r y would have a l l o w e d a d e t e r m i n a t i o n
o f whether C a r r i e r w a s a d u l y a p p o i n t e d o f f i c i a l a u t h o r i z e d
t o w i r e t a p under Montana s t a t u t e s ?
A p p e l l a n t ' s f i r s t i s s u e i s d i r e c t e d t o t h e c h a r g e of
p o l i c e entrapment. A p p e l l a n t rests h i s d e f e n s e on p r e v i o u s
c a s e s of t h i s C o u r t : S t a t e v . Neely ( 1 9 3 1 ) , 90 Mont. 1 9 9 ,
300 P . 561; S t a t e v . Harney ( 1 9 7 2 ) , 160 Mont. 55, 499 P.2d
802; S t a t e v . K a r a t h a n o s ( 1 9 7 2 ) , 158 Mont. 461, 493 P.2d
The d e f e n s e o f e n t r a p m e n t i s s e t f o r t h i n s e c t i o n 45-2-
213, MCA, which r e a d s :
"A p e r s o n i s n o t g u i l t y o f a n o f f e n s e i f h i s
c o n d u c t i s i n c i t e d o r induced by a p u b l i c
s e r v a n t o r h i s a g e n t f o r t h e p u r p o s e of ob-
t a i n i n g e v i d e n c e f o r t h e p r o s e c u t i o n of such
person. However, t h i s s e c t i o n i s i n a p p l i c a b l e
i f a p u b l i c s e r v a n t o r h i s agent merely a f f o r d s
t o such person t h e opportunity o r f a c i l i t y f o r
committing a n o f f e n s e i n f u r t h e r a n c e o f c r i m i n a l
p u r p o s e which s u c h p e r s o n h a s o r i g i n a t e d . "
W e n o t e t h e Commission comment t o t h e above-quoted section
states t h a t :
"An e n t r a p m e n t d e f e n s e i s composed of t h r e e
elements: (1) t h e i d e a of committing a n o f -
fense originates with the authorities, not
t h e suspect; ( 2 ) t h e a u t h o r i t i t e s a c t i v e l y
engage t h e s u s p e c t t o commit t h e o f f e n s e , and
( 3 ) s u c h encouragement i s d e s i g n e d t o o b t a i n
evidence f o r t h e s u s p e c t ' s prosecution."
Montana l a w p r o v i d e s : (1) c r i m i n a l i n t e n t o r d e s i g n o r i -
g i n a t i n g i n t h e mind o f t h e p o l i c e o f f i c e r o r i n f o r m e r ; (2)
a b s e n c e of c r i m i n a l i n t e n t o r d e s i g n o r i g i n a t i n g i n t h e mind
of the accused; and (3) luring or inducing the accused into
committing a crime he had no intention of committing. See
State v. Grenfell (1977), 172 Mont. 345, 564 P.2d 171; State
ex rel. Hamlin v. District Court (1973), 163 Mont. 16, 515
P.2d 74; State v. Karathanos, supra.
We find very little factual similarity between Grenfell
and the present case. There was an informant in each case,
but they played strikingly different roles. In Grenfell the
informant instigated the transaction by means of repeated
entreaties to the defendant. In the present case, the
informant did not initiate the transaction; the sellers did.
Here appellant did not even contact the law enforcement
authorities, Wiley did.
In Grenfell the informant arranged the transaction to
obtain evidence for the defendant's prosecution. Here, the
informant was involved in a wide-ranging undercover inves-
tigation. He knew Wiley was a dealer; he did not know
appellant.
Here, appellant was not the target of the informant's
activities; he was caught up in those activities. However,
as this Court stated in Karathanos, 158 Mont. at 470, 493
P.2d at 331:
". .. there is a controlling distinction
between inducing a person to do an unlawful
act and setting a trap to catch him in the
execution of a criminal design of his own
conception. The fact that the Yellowstone
County Sheriff's Office afforded the oppor-
tunity or the facility for the commission
of the offense, does not come within the
entrapment rule."
To the same effect, see Harney, supra, and State ex -
- rel.
Hamlin, supra.
The informant did not induce appellant to sell him the
drugs; any inducement would have to be attributed to another
person or persons. While appellant blames the C.I.D. detec-
tives, for whom there is no counterpart in Grenfell, any
similarities between the two cases end there.
To establish entrapment by the C.I.D., appellant must
first show that the criminal intent originated in the minds
of the authorities. Accepting for argument purposes appel-
lant's version of what the detectives told him, at the most
appellant was told to do what he had to do to make a big
buy. Such a request would not include authorization to make
a substantial sale as appellant did here.
The intent of the detectives, according to their testi-
mony, was to utilize appellant as an informant and hopefully
get one of their men into the drug scene undercover with
appellant's help. Their testimony, if believed by the jury,
was more than adequate to show that appellant was given a
clear set of instructions limiting his role in their opera-
tion. TO the extent that he went beyond those directions in
becoming involved in the drug sale for which he was arrested,
appellant was acting on his own.
Appellant acted with an independent intent, evidenced
by his conduct before, during and after the sale. Appellant
had learned of a drug source and a purchaser, but he did not
contact the C.I.D. He knew of the arrangements for a noon
meeting at Sambo's but did not contact the C.I.D. Upon
seeing two C.I.D. detectives at Sambo's, appellant insisted
upon moving the meeting to his home. He admits that he did
nothing more than to nod to one of the officers; he did not
communicate with them in any meaningful manner. After the
sale when he was home alone, appellant had an opportunity to
contact the C.I.D. without fear of being exposed as an
informant. He did nothing. For the following nine days,
until he was arrested, appellant made no effort to contact
the C.I.D. in any way. The day before he was arrested
appellant spoke with his parole officer and was asked what
he was doing for the authorities. Even at that time, he
said nothing.
Appellant's behavior is plainly inconsistent with his
claim that he considered himself a C.I.D. operative and
participated in the drug sale for that reason alone. Ap-
pellant's explanation for his behavior, that he felt he was
being used by the C.I.D. and wanted nothing to do with the
drug, fails to address the other facts which were brought
out in the testimony at trial. For example, when appellant
gave the drugs to the informer, Carrier, appellant took a
"cut" out of one of the packets containing the drugs, stat-
ing in effect that that portion was his compensation for
setting up the sale. Carrier testified that appellant
placed his finger on his nose and "sniffed" or inhaled when
he took his cut. Appellant admitted that he had taken a
small portion of the drugs for his own use in the manner
Carrier described.
Taken as a whole, the picture painted for the jury
shows an opportunistic appellant who was willing to exploit
his drug scene connections as it suited him. He was willing
to provide certain information to the authorities, receiving
nothing in return. He was also willing to make a drug sale
to someone he did not know and to conceal his involvement
from the authorities whom he had agreed to help. There is
no evidence that his intent to sell the drugs originated in
the minds of the C.I.D. detectives. There is no evidence
that appellant did not originate the intent to sell the
drugs himself. And further, there is no evidence that
appellant was lured or induced to commit a crime he had no
intention of committing. On this basis, he cannot establish
entrapment on the facts presented to the jury.
Next appellant alleges that the evidence should have
been suppressed as to the tape of the conversations at
Sambo's; that the drugs seized were a result of the January
2, 1979 incident; and that any testimony or reports dealing
with the drugs or conversations obtained by electric sur-
veillance should be suppressed.
The testimony reveals that appellant participated only
in a portion of the telephone conversations involved herein.
Wiley placed the calls. However, Carrier spoke with Wiley,
Wilson and appellant individually. Wiley quoted prices for
the drugs, and appellant testified that he spoke with Carrier
for five minutes, two minutes, or "briefly." Appellant
testified it was Wilson, not appellant, who arranged the
meeting at Sambo's, and that appellant did not discuss the
price of drugs with Carrier. Carrier's testimony indicated
that appellant's portion of the conversation dealt with the
quality of the drugs which were available. Appellant could
not recall whether he discussed the quality of the drugs
during his conversation with Carrier.
The record indicates that Carrier recorded the tele-
phone call made to him by Wiley, Wilson and appellant on
January 2, 1979. Carrier was informed during that conver-
sation that the callers could supply him with a supply of
drugs for a certain price, and that he could meet them later
that day at Sambo's to close the deal. The tape of that
call was not introduced as evidence. The prosecution
handed the tape to Detective Brennen during direct examina-
tion, but it was not introduced into evidence. The record
indicates that the prosecution meant to refer to the tape of
a monitoring which had been begun after Carrier left the
appellant and others.
Defense counsel had objected to the telephone call tape
because at the time it was made there was no request for a
court order authorizing such a recording. That objection
was sustained by the trial court. Later in the trial the
prosecution offered to play the tape for appellant to re-
fresh his memory while he testified. Defense counsel ob-
jected, and the court denied the prosecution's request.
Appellant argues that because the call was recorded
without authorization and without the caller's knowledge,
all evidence against him was tainted and should have been
suppressed pursuant to the doctrine of "the fruits of the
poisoned tree." The purported factual basis for this con-
tention is stated as "the police found out about the illegal
in
drug transaction/which the defendant was purportedly in-
volved due to an illegal recording of Carrier's phone con-
versations with the appellant."
If that statement were true, if the police had relied
on the recorded tape of the telephone conversation to obtain
evidence against appellant, the argument could be made that
such evidence should have been suppressed; however, that
statement is false. The facts are that Carrier recorded a
conversation that was wholly incidental to and did not
affect the admissibility of evidence presented at trial.
Carrier himself told the C.I.D. contacts of the pending drug
transaction, first in a telephone call and then in person.
One of the police officers with whom he spoke, Detective
Brennen, testified that he learned of the transaction when
Carrier called him.
This Court in State v. Brackman (1978), - Mont. I
582 P.2d 1216, 35 St.Rep. 1103, ruled that tape recordings
and transcripts obtained through the use of an unauthorized
electronic monitoring device were properly suppressed on
constitutional grounds. Later in State v. Jackson (1979),
- Mont. ,
- 589 P.2d 1009, 36 St.Rep. 169, this Court
unanimously held that Brackman was inapplicable where, as in
this case, the State does not introduce or attempt to intro-
duce evidence obtained through the use of an unauthorized
electronic surveillance unit. We find Jackson to be con-
trolling on the facts of this case. Wiley and Wilson gave
Carrier most of the information concerning the proposed drug
sale during the telephone conversation, including the quan-
tity available, its price and the location of the meeting.
This information, without appellant's discussion of the
quality of the drugs, led to Carrier's monitored participa-
tion in the transaction and his purchase of the drugs which
were introduced at trial.
In alleging that the recording of the conversation
tainted all evidence, appellant relied on and invokes
Wiley's and Wilson's privacy rights rather than his own.
Here, appellant lacks standing to do so, and he cannot
assert another's constitutional right. See State v. Smith
(1975), 168 Mont. 93, 99, 541 P.2d 351, 354; State v.
Braden (1973), 163 Mont. 124, 127, 515 P.2d 692, 694.
The next issue raised is whether the federal statutes
prohibit the monitoring and tape recording of a conversation
in which one of the participants consents to the monitoring
and the recording. Appellant argues that the interception
of oral communications was not authorized pursuant to 18
U.S.C. 582516 and 2518 in this case.
The g e n e r a l r u l e i s t h a t i t i s i m p e r m i s s i b l e f o r p o l i c e
o f f i c e r s t o i n t e r c e p t , t r a n s m i t o r r e c o r d p r i v a t e conver-
s a t i o n s ; however, i f one of t h e p a r t i e s t o t h e c o n v e r s a t i o n
c o n s e n t s , even a n i n f o r m e r , such a c t i o n s a r e l e g a l . People
v . P a t r i c k (Mich. 1 9 7 3 ) , 208 N.W.2d 604; U n i t e d S t a t e s v .
Mendoza (U.S.C.A. 5 t h , 1 9 7 8 ) , 574 F.2d 1373 r e h e a r i n g d e n i e d
579 F.2d 644. T h i s i s t r u e a s l o n g a s t h e w i l l of t h e
c o n s e n t i n g p a r t y h a s n o t been s u b j e c t e d t o o v e r b e a r i n g
p r e s s u r e from t h e a u t h o r i t i e s . U n i t e d S t a t e s v. Baynes (Pa.
1 9 7 5 ) , 400 F.Supp. 285, a f f ' d . 517 F.2d 1399. The s e c t i o n s
r e l i e d on by t h e a p p e l l a n t , 1 8 U.S.C. SS2516 and 2518, do
n o t a p p l y h e r e b e c a u s e t h e y a r e p a r t of T i t l e I11 of t h e
Omnibus Crime C o n t r o l and S a f e S t r e e t s Act of 1968, 18
U.S.C. SS2510 t h r o u g h 2520. That a c t does n o t p e r t a i n t o ,
p r o h i b i t o r r e g u l a t e m o n i t o r i n g and r e c o r d i n g c o n v e r s a t i o n s
w i t h t h e c o n s e n t o f one of t h e p a r t i e s t o t h e c o n v e r s a t i o n .
S e c t i o n 2511 ( 2 ) ( c ) p r o v i d e s :
" I t s h a l l n o t be u n l a w f u l under t h i s c h a p t e r
f o r a p e r s o n a c t i n g under c o l o r o f law t o
i n t e r c e p t a w i r e o r o r a l communication, where
s u c h p e r s o n i s a p a r t y t o t h e communication
o r o n e of t h e p a r t i e s t o t h e communication
h a s g i v e n p r i o r c o n s e n t t o such i n t e r c e p t i o n . "
The r e a s o n s f o r a l l o w i n g p o l i c e o f f i c i a l s t o m o n i t o r
and r e c o r d c o n v e r s a t i o n s where one of t h e p a r t i e s c o n s e n t s
i s s e t f o r t h i n U n i t e d S t a t e s v . White ( 1 9 7 0 ) , 401 U.S. 745,
751, 91 S.Ct. 1 1 2 2 , 1125-26, 28 L.Ed.2d 453, 458, wherein
t h e U n i t e d S t a t e s Supreme C o u r t s t a t e d :
"Concededly a p o l i c e a g e n t who c o n c e a l s h i s
p o l i c e c o n n e c t i o n s may w r i t e down f o r o f f i c i a l
u s e h i s c o n v e r s a t i o n s w i t h a d e f e n d a n t and
t e s t i f y c o n c e r n i n g them, w i t h o u t a w a r r a n t
authorizing h i s encounters with t h e defendant
and w i t h o u t o t h e r w i s e v i o l a t i n g t h e l a t t e r ' s
F o u r t h Amendment r i g h t s . Hoffa v . U n i t e d
S t a t e s , 385 U.S. a t 300-303. For c o n s t i t u -
t i o n a l p u r p o s e s , no d i f f e r e n t r e s u l t i s r e -
quired if the agent instead of immediately
reporting and transcribing his conversations
with defendant, he either (1) simultaneously
records them with electronic equipment which
he is carrying on his person. Lopez v. United
States, 373 U.S. 427 (1963); (2) or carries
radio equipment which simultaneously transmits
the conversations either to recording equip-
ment located elsewhere or to other agents
monitoring the transmitting frequency. (Citing
a case.) If the conduct and revelations of an
agent operating without electronic equipment do
not invade thedefendant'sconstitutionally jus-
tifiable expectations of privacy, neither does
a simultaneous recording of the same conversa-
tions made by the agent or by others from trans-
missions received from the agent to whom the
defendant is talking and whose trustworthiness
the defendant necessarily risks."
The attorney general informs us that county attorneys
in this state, since our decision in State v. Brackman,
supra, follow the practice of getting a court order allowing
electronic interception or monitoring of criminal suspects
before the same is undertaken. We agree with this proce-
dure. Moreover, our decision in Brackman is in accord with
what we have quoted from United States v. White, supra,
where, as this Court held, there was a constitutionally
justifiable expectation of privacy on the part of Brackman.
Since the authorities here obtained the consent of the
District Court to the monitoring and recording of appel-
lant's conversation on the basis of a participant's consent,
and since appellant could have no reasonable expectation
that the person he was dealing with in this drug-related
matter was not in fact an informer, no interest legitimately
protected by the Fourth Amendment is involved (United States
v. White, 401 U.S. at 740), and the monitoring and recording
of the conversation was permissible even under state law.
Section 45-8-213 (1)(c), MCA.
Once it is established that the tape recordings are
permissible under federal and state law, even though they
constituted an intercept of appellant's conversation, they
are subject to the ordinary rules of admissibility. We said
in State v. Brubaker (1978), - Mont. , 602 P.2d 974,
"One should not be confused about the admis-
sibility of evidence simply because it is
electronically recorded or preserved. Such
evidence is subject to the same tests for
admissibility as the direct evidence of eye-
witnesses or the testimony of listeners to
oral statements. . . Then the tape recorded
statements may be regarded as independent
direct evidence or as corroborative evidence.
In either case, the tests for admissibility
are the same. Cape v. United States (9th
Cir. 1960), 283 F.2d 430. In this case .
. .
it was merely direct evidence of statements
made by the defendant . . . Since the [in-
former] could have testified directly to such
statements .. . the recorded statements are
themselves admissible. In fact, the tape
is a more reliable record than the oral testi-
mony of the [informer] given the fraility of
human recollection. We note here that a
proper foundation for the admission of the
tape was laid by the prosecution. Again, the
question of admissibility of this type of
evidence is left to the sound discretion of
the trial judge. 29 Am.Jur.2d 495, Evidence,
5436. No question is presented here as to
the integrity of the recording, that is, re-
garding its recording quality or audibility.''
(Bracketed material inserted.)
The tape recordings therefore are not subject to
suppression.
The drugs introduced into evidence did not derive from
the monitoring and recording that occurred. The record
indicates that the law enforcement officials obtained the
drugs through an informant, not through monitoring and
recording. The monitoring and recording were incidental to,
not the cause of, the "seizure of the drugs". The informant
was the independent source of the information concerning the
transaction of the drugs themselves, and the fact that the
monitoring and recording occurred does not affect the admis-
sibility of the evidence. In a recent case, State v. Ribera
(1979) Mont. , 597 P.2d 1164, 1169, 36 St.Rep.
1292, 1298-99, this Court recognized and discussed the
question that must be answered when an illegal seizure is
alleged--that is, whether the initial illegality was a cause
in fact of the discovery of the evidence. In that case, we
cited Wong Sun v. United States (1963), 371 U.S. 471, 83
S.Ct. 407, 9 L.Ed.2d 441. Here the monitoring and recording
was not a cause of the discovery of the evidence; therefore,
the exclusionary rule does not apply even if the monitoring
and recording were to be deemed unlawful. The drugs were
properly admitted by the District Court.
The final issue is whether the District Court erred in
granting the prosecution's motion in limine. Appellant
argues that the District Court committed reversible error in
prohibiting the defense's inquiry into Carrier's prior
criminal behavior and his qualifications to be a Big Horn
County Deputy Sheriff. Appellant contends these matters
were relevant because the desired testimony would have
established that Carrier could not legally serve as a
deputy sheriff and, therefore, any interpretation on his
part of a conversation would be a criminal act under section
45-8-213, MCA, which provides in relevant part:
"(1) . . . a person commits the offense of
violating privacy in communications if he
knowingly or purposely:
"(c) records or causes to be recorded any
conversation by use of a hidden electronic
or mechanical device which reproduces a human
conversation without the knowledge of all
parties to the conversation. Subsection (c)
does not apply to duly elected or appointed
public officials or employees when the trans-
scription or recording is done in the performance
of official duty, to persons speaking at public
meetings, or to persons given warning of the
recording."
Here, Carrier was a public employee, if not a public offi-
cial, and his official duty involved maintaining contact
with persons involved in the drug scene. By express terms
of the statute, Carrier is an exempt person from the provi-
sions of the act. See Brackman, supra.
In addition, it would appear that the evidence appel-
lant sought to get before the jury--Carrier's conviction of
a criminal offense--is prohibited under Rule 609, Mont.R.Evid.
The District Court properly granted the motion to suppress.
Our first opinion in this cause, dated November 20,
1979, 36 St.Rep. 2027, is withdrawn, and this opinion sub-
stituted in its stead.
For the foregoing reasons, the judgment of the District
Court is affirmed.
4
We concur:
Chief ~ustice
l Justices
Mr. Justice Daniel J. Shea concurs, and will file a separate
concurring opinion later.