Nos. 89-559 and 89-613
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Appellant,
vs .
WILLIAM CHARLES CHRISTENSEN,
-.
Defendant and Respondent.
c-
f
-- .
APPEAL FROM: District Court of the Eleventh Judicial ~istrict,
In and for the County of Flathead, .I
The Hon. Leif B. Erickson, Judge presiding (N0.~89-559)
.
. \
.J
-
District Court of the Ninth Judicial District,
In and for the County of Glacier
The Hon. R. D. McPhillips, Judge presiding (No. 89-613)
COUNSEL OF RECORD:
For Appellant:
Hon. Marc Racicot, Attorney General, Helena, Montana
James Yellowtail, Asst. Atty. General, Helena, Mont.
(89-559): Ted Lympus, Flathead County Attorney;
Ed Corrigan Deputy County Attorney, Kalispell, Montana
(89-613): James C. Nelson, Glacier County Attorney, Cut
Bank, Montana
For Respondent:
Stephen J. Nardi, Sherlock & Nardi, Kalispell, Montana
Submitted: June 12, 1990
Decided: August 9 , 1990
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
The Montana Attorney General filed this consolidated appeal
to orders by the Eleventh Judicial District Court, Flathead County,
and the Ninth Judicial District Court, Glacier County, excluding
evidence of the respondent's marijuana growing operations because
the evidence resulted from private felonious conduct, burglary, and
was prejudicial other-crimes evidence. We reverse.
ISSUES
The State of Montana raises the following issues.
1. Were the respondent's constitutional rights violated by
the issuance of search warrants based in part upon information
revealed by felonious private conduct?
2. Did the District Courts err in holding that even in the
absence of a constitutional violation, the exclusionary rule
applies to illegal evidence resulting from felonious private
conduct?
3. If the evidence resulting from the burglary is suppressed,
did the Glacier County officials have sufficient independent
information to establish probable cause to search the East Glacier
property?
4. Did the Glacier District Court err in excluding evidence
of the Flathead County drug activity as prejudicial other-crimes
evidence?
FACTS AND PROCEDURE
In April of 1989, Kalispell City Police arrested Charles
Tappan, Blake Davis, and Patrick Looney for possession and sale of
marijuana. Tappan and Davis told the police that the drugs came
from the respondent's marijuana growing operation at his Kalispell
residence. Jim Morrison, a friend of Tappan and Davis, had worked
for the respondent but was fired for stealing a pound of marijuana
and for having an affair with the respondent's common law wife.
Morrison subsequently convinced Tappan and Davis to burglarize the
respondent's residence and steal a portion of the marijuana crop.
Tappan and Davis also disclosed that the respondent may have had
a similar operation in East Glacier. The Kalispell Police passed
this information on to Glacier County law enforcement officials.
The Glacier officials already suspected a growing operation
at the respondent's East Glacier residence, but had not yet applied
for a search warrant. A neighbor had informed the police that she
believed the respondent was growing marijuana because of the smell
around his boarded-up and locked garage, the lack of snow on the
roof in the winter, and the suspiciously heavy and periodic traffic
around his house. Investigating officers confirmed the citizen's
report and, after procuring a subpoena, found that the respondent's
power bills were high and bore no particular relationship to the
weather.
The information disclosed by Tappan and Davis led to the
present charges. Relying on that information to establish probable
cause, the Kalispell and Glacier police obtained search warrants
for the respondent's Kalispell and East Glacier residences. Both
searches produced substantial evidence of marijuana growing
operations. The Flathead County Attorney filed an information in
the Eleventh Judicial District Court charging the respondent with
Criminal Possession of Dangerous Drugs with Intent to Sell, 3 45-
9-103(1), MCA, and Conspiracy to commit Criminal Sale of Dangerous
Drugs, §§ 45-4-102 (1) and 45-9-101(I), MCA. The Glacier County
Attorney filed an information in the Ninth Judicial District Court
charging the respondent with Criminal Sale of Dangerous Drugs,
§ 45-9-101(1), MCA, and Conspiracy, 5 45-4-102(1), MCA.
Several pretrial motions by the respondent and orders by both
courts followed the charges. The Glacier County Attorney notified
the respondent, pursuant to State v. Just (1979), 184 Mont. 262,
602 P.2d 957, that he intended to introduce evidence of the
Kalispell operation. The respondent answered with a motion in
limine to exclude the other-crimes evidence as violative of the
Just guidelines. The respondent also filed a separate motion
asking the Glacier County District Court to suppress the evidence
obtained through the search warrant because the warrant was the
result of felonious conduct by private individuals. The respondent
filed a similar motion to suppress in the Flathead County District
Court and the court granted the motion. The Glacier County
District Court then granted the respondent's motion to suppress and
granted the respondent's motion in limine to exclude the other-
crimes evidence. The State now raises a consolidated appeal to the
orders by both courts.
CONSTITUTIONAL VIOLATIONS
Both parties agree that the burglary occurred without the
encouragement, consent, or knowledge of the police, and, therefore,
did not violate the respondent's right to privacy. See generally
State v. Long (1985), 216 Mont. 65, 71, 700 P.2d 153, 157 (holding
"the privacy section of the Montana Constitution contemplates
privacy invasion by state action only1').
The respondent asserts that the State's acceptance and
retention of the burgled marijuana violates his privilege against
self-incrimination and his right to due process. We decline to
address this assertion. The respondent cites no authority and
provides no explanation to support his statement. Furthermore, we
can envision no theory of law or reason which would require the
State to reject and return illegal drugs seized during a lawful
arrest.
THE EXCLUSIONARY RULE AND PRIVATE FELONIOUS CONDUCT
The principal issue in this appeal is whether private
felonious conduct is subject to the exclusionary rule even though
that conduct does not entail a constitutional violation.
This issue is the direct result of a question reserved in
State v. Long. In Lonq, the defendants' landlord committed
misdemeanor trespass by entering their rental property where he
discovered a grow-light shining on 657 marijuana plants. Based on
the landlord's information, the Yellowstone County Sheriff's Office
obtained a search warrant, seized the plants, and arrested the
defendants. The District Court, however, granted the defendants'
motion to suppress the evidence because it resulted from the
landlord's criminal conduct. Lonq, 216 Mont. at 66-67, 700 P.2d
at 154.
In reversing the district courtls order, this Court used a
two-part analysis. We determined first whether the defendants1
right to privacy had been violated and then determined whether in
the absence of such a violation, the exclusionary rule should
nonetheless be applied because the evidence resulted from the
landlord's misdemeanor conduct. On the first issue, we held that
Montana's right to privacy prohibited only invasions by state
action. Lonq, 216 Mont. at 71, 700 P.2d at 157. In doing so, we
overruled a long line of cases upholding the unique Montana rule
that searches by private individuals violated the defendants1 right
to privacy under Article 11, Section 10, Montana Constitution.
Lonq, 216 Mont. at 69, 700 P.2d at 156. On the second issue, we
held that the exclusionary rule did not apply because it does not
deter the procurement of illegal evidence by private individuals
who are not schooled in the rules of evidence. Lonq, 216 Mont. at
71, 700 P.2d at 157.
Although in Lonq we found no reason to apply the exclusionary
rule to evidence resulting from the landlord's misdemeanor
trespass, we expressed a concern based on the silver platter
doctrine and the imperative of judicial integrity that some private
searches might warrant use of the exclusionary rule. Lonq, 216
Mont. at 71-72, 700 P.2d at 157-58. The silver platter doctrine
was a response by the United States Supreme Court to a loophole in
the early exclusionary rule. See State v. Van Haele (1982), 199
Mont. 522, 526-28, 649 P.2d 1311, 1313-14; overruled on other
grounds, Long, 216 Mont. at 69, 700 P.2d at 156. In Weeks v.
United States (1914), 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, the
Supreme Court held that the exclusionary rule applied to evidence
revealed by unreasonable searches and seizures conducted by federal
officials, but also held that the rule did not apply to state
officials because the Fourth Amendment, at that time, did not
extend to the states. Weeks, 232 U.S. at 398, 34 S.Ct. at 346, 58
L.Ed. at 657-58. As a result, federal officials routinely
circumvented the exclusionary rule by accepting evidence illegally
obtained by state officials and served up on a "silver platterv1
to
federal prosecutors. In Elkins v. United States (1960), 364 U.S.
206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, the Supreme Court addressed
this problem by holding that evidence obtained by state officials
by methods which, if used by federal officials, would have violated
the defendant's Fifth Amendment rights, was inadmissible in federal
criminal proceedings. Elkins, 364 U.S. at 223, 80 S.Ct. at 1447,
4 L.Ed.2d at 1681. In extending the exclusionary rule, the Supreme
Court relied in part on the imperative of judicial integrity. That
imperative expresses the fear that if the courts use illegally
obtained evidence, they would condone and encourage the illegal
activity, and thereby breed contempt for the laws which they are
sworn to uphold. Elkins, 364 U.S. at 222-23, 80 S.Ct. at 1447, 4
L.Ed.2d at 1680-81. Following Elkins the Supreme Court filled out
the current scope of the exclusionary rule by holding that it also
applied to the admission in state courts of illegal evidence seized
by state officials. Mapp v. Ohio (1961), 367 U.S. 643, 655, 81
S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090.
The Supreme Court's decisions left open the possibility that
the exclusionary rule might be applied to evidence obtained by
private individuals who, acting without the state's knowledge,
illegally seized evidence and then served it up to government
prosecutors. Such private actions would not entail a
constitutional violation because they do not entail state action.
The exclusionary rule, however, is a judicially created remedy and
not a personal constitutional right. Stone v. Powell (1976), 428
U.S. 465, 486, 96 S.Ct. 3037, 3048, 49 L.Ed.2d 1067, 1083. It may,
therefore, be used in the absence of a constitutional violation.
In Lonq we raised the possibility of such an application, but
declined to employ the rule against evidence resulting from private
misdemeanor conduct. We did, however, "reserve for another day
the determination of whether to apply the exclusionary rule to
evidence gathered as the result of felonious conduct." Lonq, 216
Mont. at 72, 700 P.2d at 158.
With the present case, that day has come. Both District
Courts excluded the evidence resulting for the burglars'
disclosures because of the concerns this Court expressed in Lonq.
The respondent now argues that use of the challenged evidence will
tarnish the prestige of the courts and encourage neo-vigilantism.
He asserts that use of the evidence would encourage private
citizens to circumvent the exclusionary rule by acting on their own
initiative to illegally seize evidence and then serve it up to
state and federal prosecutors. The respondent's arguments awaken
the image of spectral horsemen riding forth from ~irginiaCity to
enforce law and order in our communities, but leaving in their dust
the trampled remnants of the constitution.
We disagree with the respondent's assessment. The prospect
of serving time along with their victims should be enough to
discourage private citizens from conducting felonious searches.
More importantly, the burglars in this case had no intention of
serving up illegal evidence to state prosecutors; they stole the
drugs for their own purposes. Use of this evidence by the District
Courts would not condone or encourage other thefts from drug
operations. To the contrary, failure to admit highly probative
evidence of a major drug operation produced by legitimate law
enforcement practices would undermine public confidence in the
judicial system. See Stone, 428 U.S. at 490-91, 96 S.Ct. at 3050-
51, 49 L.Ed.2d at 1086. Furthermore, exclusion of this evidence
solely because it was the result of private felonious conduct would
result in the exclusion of accomplice testimony which is now
routinely admitted.
Even if the burglars had taken the marijuana with the
intention of turning it over to state prosecutors, the exclusionary
rule would still not apply to the evidence. The universal rule
under both state and federal constitutions is that the exclusionary
rule does not apply to evidence resulting from the actions of
private individuals unless those individuals are acting as agents
of the state. See e.g. United States v. Jacobsen (1984), 466 U.S.
109, 113-14, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85, 94; Coolidge v.
New Hampshire (1971), 403 U.S. 443, 487, 91 S.Ct. 2022, 2048-49,
29 L.Ed.2d 564, 595; United States v. Black (9th Cir.), 767 F.2d
1334, 1339, cert. den. 474 U.S. 1022, 106 S.Ct. 574, 88 L.Ed.2d
557 (1985); State v. Smith (Wash. 1988), 756 P.2d 722, 727, cert.
den. U.S. , 109 S.Ct. 867, 102 L.Ed.2d 991 (1989);
Commonwealth v. Robinson (Mass. 1987), 503 N.E.2d 654, 658; State
v. Johnson (Idaho 1986), 716 P.2d 1288, 1291; Commonwealth v.
Corley (Pa. 1985), 491 A.2d 829, 831. Most courts reason that
wholly private actions do not trigger the exclusionary rule because
the state and federal constitutions guarantee only against
unreasonable searches and seizures by the state.
Even though the exclusionary rule could be applied to evidence
resulting from illegal private conduct, the courts have uniformly
refused to do so because it would serve no purpose. The
exclusionary rule is meant to deter police from using illegal and
unconstitutional methods of gathering evidence. As this Court
noted in Lonq, 216 Mont. at 71, 700 P.2d at 157, the exclusionary
rule does not deter the actions of private individuals who have no
understanding of the rule's application. See also Gajdos v. State
(Ind. 1984) 462 N.E.2d 1017, 1021; United States v. Coles (D. Me.
1969), 302 F.Supp. 99, 103; United States v. Masterson (S.D. N . Y ) ,
251 F.Supp. 937, 940, cert. den. 385 U.S. 833, 87 S.Ct. 72, 17
L.Ed.2d 67 (1966).
For these reasons, we believe that Montana should join all
other jurisdictions in refusing to apply the exclusionary rule to
evidence resulting from private action. We, therefore, hold that
the exclusionary rule does not apply to evidence resulting from the
conduct of private individuals, even if felonious, unless that
conduct involves state action.
THE GLACIER COUNTY SEARCH WARRANT
The State argues that, even if the disclosures of the burglars
are excluded, evidence resulting from the Glacier County search
warrant should not be suppressed because the Glacier officials had
sufficient independent evidence to establish probable cause to
search the respondent's East Glacier residence. Since we hold that
the burglars' statements are not subject to the exclusionary rule,
we need not address this issue.
OTHER-CRIMES EVIDENCE
The State asserts that the Glacier County District Court erred
in granting the respondent's motion in limine to exclude evidence
of the Flathead County drug operation from the Glacier County
prosecution. The Glacier County District Court ruled that, as
other-crimes evidence, the prejudicial effect of the Flathead
County information outweighed its probative value.
The law governing other-crimes evidence is well settled.
Under Rule 404(b), M.R.Evid., evidence of other crimes or wrongful
acts is admissible to prove motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident. State v. Just imposes four factors in determining the
admissibility of other-crimes evidence: similarity of the crimes;
nearness in time; tendency to establish a common scheme, plan or
system; and whether the probative value of the evidence is
substantially outweighed by the prejudice to the defendant. State
v. Heinrich (Mont. 1990), 788 P.2d 1346, 1350, 47 St.Rep. 314, 320.
Evidence of acts which are part of the corpus delicti of the crime
charged are not subject to the Just requirements.
Evidence of acts which are inextricably or inseparably
linked with the crime charged is admissible without
regard to the rules governing "other crimesn evidence.
State v. Romero (1986), 224 Mont. 431, 438, 730 P.2d 1157, 1162.
The State argues first that the Flathead County evidence is
not other-crimes evidence, but is admissible as an inextricable
and inseparable part of the corpus delicti of the Glacier County
operation. According to the State, the respondent was conducting
a single growing operation in two different locations.
We disagree with the State's argument. While the Flathead
and Glacier Counties operations were nearly identical operations
carried out by the same individuals, the similarity of crimes is
not the test of whether they fall within the same corpus delicti.
The issue is whether the evidence of the Flathead County drug
operation is inextricably or inseparably linked to the Glacier
County operation. We hold that it is not. The State has not shown
that a jury could not fully comprehend the crimes charged in
Glacier County without reference to the Flathead County evidence.
The State argues in the alternative that if the Flathead
County evidence does not fall under the corpus delicti exception,
it is still admissible under the Just rules. The respondent does
not seriously contest the State's assertion that the crimes charged
in Flathead and Glacier Counties are similar, contemporaneous, and
tend to establish a common scheme, plan or system. The only
question is whether, as the Glacier County District Court held, the
probative value of the Flathead County evidence is substantially
outweighed by its prejudice to the defendant.
That question cannot be answered at this stage of the
proceedings. The State has appealed from pretrial orders.
Because the case has not gone to trial, the record has not been
sufficiently developed to allow a determination of the probative
value of the evidence. The State has not explained why the
Flathead County evidence is necessary to prove the respondent's
guilt of the crimes charged in Glacier County. In the recent case
of State v. Heinrich this Court held that the district court erred
in failing to grant the defendant's pretrial motion to exclude
other-crimes evidence because the evidence was clearly prejudicial
and had no probative value. Heinrich, 788 P.2d at 1350-51, 47
St.Rep. at 320.
In the present case, the other-crimes evidence is closely
related to the crimes charged. The same people and the same
equipment were apparently involved in both operations. The
Flathead County evidence may be both relevant and probative in the
Glacier County trial.
We, therefore, overrule the Glacier County District Court's
order to exclude the other-crimes evidence and allow the case to
proceed under the Just guidelines. However, we add this caveat;
if the prosecution has sufficient evidence to establish guilt of
the Glacier County crimes without the Flathead County evidence
which falls within the Just definition of other-crimes evidence,
introduction of such evidence raises an unnecessary risk of
reversal due to prejudice to the defendant.
CONCLUSION
The Eleventh Judicial District Court's order suppressing the
results of the Flathead County search warrant is reversed. The
Ninth Judicial District Court's orders suppressing the results of
the Glacier County search warrant and excluding evidence of the
Flathead County operation are also reversed. Both cases are
remanded to the respective District Courts for further proceeding
We concur:
Justices
Justice William E. Hunt, Sr., dissenting:
I dissent. The District Courts were correct when they granted
defendant's motions in limine and held that the preservation of
judicial integrity necessitates the application ofthe exclusionary
rule to evidence seized illegally as the result of either state
or private action.
Regarding the exclusionary rule, the United States Supreme
Court has said:
If the government becomes a lawbreaker, it breeds
contempt for law; it invites every man to become a law
unto himself; it invites anarchy. To declare that in the
administration of the criminal law the end justifies the
means--to declare that the Government may commit crimes
in order to secure the conviction of a private criminal-
-would bring terrible retribution.
Elkins v. United States, 364 U.S. 206, 223, 80 S.Ct. 1437, 1447,
This Court has adopted the Elkins rationale and applied it to
private action:
[Ulnreasonable or illeqal intrusions knowinsly accepted
and used, from the private sector by the government
amount to an extension of the silver platter doctrine
condemned by Elkins, particularly when viewed in the
light of judicial integrity emphasized in Elkins.
(Emphasis in original.)
State v. Coburn, 165 Mont. 488, 503, 530 P.2d 442, 450 (1974).
Judicial integrity necessitates that the exclusionary rule
extend to the activities of private citizens who, in obtaining
evidence, violate the criminal laws. This type of exclusion
preserves judicial integrity.
As I said in my dissent in State v. Long, 216 Mont. 65, 84,
Montana has rightfully placed privacy paramount to any
illegal public or private intrusion. The constitutional
delegates knew Montana when they wrote:
"The right of individual privacy is essential to the
well-being of a free society and shall not be infringed
without the showing of a compelling state interest."
Mont. Const. art. 11, 5 10.
This has been the law and should remain the law without
exception or qualification.
It is no favor to judicial integrity to use an incident
of an illegal intrusion as a substitute for due process.
The majority of this Court now allows the trespasser and
the snoop to do work properly assigned to lawfully
constituted law enforcement. We should leave law
enforcement to those legally and rightfully entrusted
with that task. It is not an injustice to society to
apply the exclusionary rule to private searches. .. .
Law enforcement should be left to law enforcement
officers who are not only trained to apprehend the
wrongdoer but, just as importantly, to respect the rights
of all Montana citizens including what was, before the
majority opinion, the constitutional right to privacy.
Crooks as well as trespassers and snoops should be outlawed
from doing the work of legally constituted law enforcement
officers.
The private citizen generally knows what types of activities
are legal or illegal. If private citizens are allowed to knowingly
break the laws, and the government reaps the benefits from such
activity, does not the government essentially become the
perpetrator? If the government is allowed to use evidence that was
illegally seized, does not the government become like the recipient
of stolen goods?
A recipient of stolen goods is criminally responsible when he
or she knowingly !!obtains control over stolen property knowing the
property to have been stolen by another" with the purpose of
depriving the owner. Section 45-6-301(3)(a), MCA. In this case,
the government received stolen property knowing it was stolen. It
should be forced to obey the very laws that it is to uphold.
I would affirm the District Courts.
Justice John C. Sheehy:
I concur in the dissent of Justice Hunt.