State v. Bullock

NO. 92-536
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995

STATE OF MONTANA,
Plaintiff and Respondent,
v.
BILL K. BULLOCK and
EDDIE J. PETERSON,
Defendants and Appellants

APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Jefferson,
The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD:
For Appellants:
Paul B. Smith (argued),Attorney at Law,
Boulder, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Chris D. Tweeten (argued), Assistant Attorney
General, Helena, Montana
Richard Llewellyn, Jefferson County Attorney,
Deborah J. Butler, Deputy County Attorney,
Boulder, Montana

Submitted: January 17, 1995

Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The defendants, Eddie Peterson and Bill Bullock, were charged
in Jefferson County Justice Court with unlawfully killing a game
animal in violation of § 87-3-103, MCA, and possession of an
unlawfully killed animal in violation of § 87-3-112, MCA. The
Justice Court suppressed all of the State's evidence pertaining to
Peterson, and dismissed the charges against Bullock. The State
appealed to the District Court for a trial denovo pursuant to

§ 46-17-311, MCA. On appeal, the District Court denied the
defendants' motions to dismiss and to suppress evidence. Peterson
then pled guilty to unlawfully killing a gdrnt: dnimdl; Bullock pled
guilty to unlawfully possessing a game animal; and both defendants
reserved their right to appeal the District Court's order denying
their motions to dismiss and suppress evidence pursuant to
§ 46-12-204(3), MCA. Following two orders by this Court which
remanded this case to the District Court for further proceedings,
we affirm the District Court's order which denied the defendants'
motion to dismiss, and reverse the District Court's order which
denied the defendants' motion to suppress evidence.
The issues presented on appeal are as follows:
I. Did the District Court err when it denied the defendants
motion to dismiss the charges against them pursuant to § 46-13-
401121, MCA, based on the State's failure to bring them to trial
within six months from the date of their plea entry?
 2. Did defendant Bullock have standing to challenge the
State's entry upon and search of land owned by Peterson?
3. Does Article 11, Section 11, of the Montana Constitution,
prohibit warrantless searches and seizures, under the circumstances
in this case, on private land that falls outside the curtilage of
a dwelling?
FACTUAL BACKGROUND
At about 6:30 a.m. on October 31, 1991, while returning home
from work, Chuck Wing observed what he estimated was a large six or
seven point antlered bull elk on Boulder Hill near Boulder,
Montana. He recognized that the elk was in Hunting District 380
where hunters were allowed to shoot only "spikes" unless they had
a special permit. As Wing observed the elk, he heard a gunshot,
saw the elk fall, and observed two men and a boy standing near a
pickup truck in the vicinity of the fallen elk. He believed the
pickup belonged to defendant Eddie J. Peterson. He then observed
the three people drag the elk to the truck and load it without
field-dressing it. Wing reported the incident to Jefferson County
Sheriff Tom Dawson, who, in turn, relayed the information to Game
Warden Chris Anderson, an employee of the Montana Department of
Fish, Wildlife, and Parks. Anderson traveled from Helena to
Boulder that morning to investigate the incident.
Anderson first interviewed Wing who related the above
information. He then drove to Peterson's home in Boulder, but
Peterson was not at home. Anderson returned to the sheriff's
office where he learned that Peterson had a cabin in Basin Creek.
Rather than try to give directions, Dawson agreed to accompany him
to the cabin. To reach Peterson's cabin, it is necessary to travel
approximately seven miles on a one-lane forest service road which
is bounded by forest on both sides. At least one sign along that
road indicates that the road is bordered by private property and
advises the public to remain on the road.
Peterson's property is separated from the road by a fence.
There is a gate which provides access to his property from the
forest service road. "No Trespassing" signs are posted on trees on
each side of the gate. His cabin is located at the end of a
private road 334 feet from the forest service road. Between the
forest service road and Peterson's cabin, the terrain is slightly
elevated in a way that conceals Peterson's cabin and the other
structures on his property. He moved his cabin beyond the hill at
an earlier time so that it would not be evident to passers by.
When Anderson and Dawson reached Peterson'sproperty, the gate
was open. They entered the property through the gate and drove
approximately 180 feet down Peterson's private road. As they
descended the crest of the hill between his cabin and the forest
service road, they first observed a large bull elk hanging from a
tree in an area about 126 feet from Peterson's cabin. The elk
could not be seen from the public road, nor was there evidence that
it could be seen from any other public location. Peterson
testified that the elk was hanging between his cabin, several
vehicles, and a guest sleeping cabin.
The parties agreed that, in the past, anyone who wished to
enter Peterson's property or drive on his private road had called
co ask permission. In fact, the Jefferson County Sheriff's Office
had done so a few days earlier prior to conducting a search for
lost hunters. On the date in question, neither Dawson nor Anderson
asked or received permission to be on Peterson's property. Neither
had they secured a search warrant, in spite of the fact that
Anderson testified in Justice Court that he believed there was
probable cause that a crime had been committed, that Peterson was
involved, and that Peterson still possessed evidence of that crime.
At the hearing held in the District Court pursuant to the
defendants' motion to suppress, there was disagreement about
exactly what Anderson and Dawson did after observing the elk
hanging near Peterson's cabin. However, in stipulations filed with
the court earlier, the parties agreed that after observing the elk,
Anderson and Dawson went over to examine it. After conducting the
examination, Anderson then requested that Peterson take him and
Dawson to the place where the elk was killed. Peterson did so, hut
at the site where the law enforcement officers were taken, there
were no elk tracks--only a pile of the elk's entrails. It was
apparent to Anderson that the elk had not been killed at that
location.
 Anderson then confronted Peterson with the information he had
received from Wing. Peterson provided him with an explanation that
ultimately was found to be inaccurate. Bullock was then
questioned, provided responses consistent with Peterson's, and
declined the State's offer of immunity in exchange for testimony
that would incriminate Peterson.
The following day, Anderson returned to Peterson's cabin and
confiscated the elk carcass.
On November 8, 1991, Peterson was charged in Jefferson County
Justice Court with unlawfully killing a game animal in violation of
5 87-3-103, MCA. Bullock was charged with possession of an
unlawfully killed animal in violation of § 87-3-112, MCA. Both
defendants pled not guilty to those charges on November 18, 1991.
An amended complaint was filed on December 3, 1991, which included
additional charges against Bullock. The defendants filed their
initial appearance and pled not guilty to the amended complaint on
December 18, 1991.
The charges against both defendants were set for trial on
March 6, 1992. However, on January 22, 1992, the defendants moved
to suppress all evidence obtained by the State as a result of
Anderson's and Dawson's entry onto Peterson's property without a
search warrant.
On February 28, 1992, the Justice Court granted the
defendants' motion; it suppressed all evidence, whether verbal or
physical "connected to the chain of events concerning Eddie
Peterson's case"; and it dismissed all charges against Bill
Bullock.
On March 2, 1992, the State appealed to the District Court for
the Tenth Judicial District in Jefferson County pursuant to
§ 46-17-311,MCA, and asked for trial denovo. On June 30, 1992, the

defendants moved the District Court for an order dismissing the
charges against them pursuant to § 46-13-401(2),MCA, because the
offenses alleged were misdemeanors, and they had not been brought
to trial within six months. In the alternative, the defendants
renewed their motion to suppress all evidence that had been
gathered by the State without the benefit of a search warrant.
On August 7, 1992, the District Court denied defendants'
motions based on the facts which had been stipulated to by the
parties. On August 26, 1992, the defendants pled guilty pursuant
to 5 46-12-204(3),MCA, while preserving their right to appeal the
District Court's denial of their motions.
The defendants originally filed their notice of appeal on
October 23, 1992. However, we have since remanded to the District
Court for evidentiary proceedings and for imposition of sentence.
Those proceedings have been completed. We now consider the merits
of the issues raised on appeal.
ISSUE 1
Did the District Court err when it denied the defendants'
motion to dismiss the charges against them pursuant to
5 46-13-401(2), MCA, based on the State's failure to bring them to
trial within six months from the date of their plea entry?
Peterson and Bullock contend that since they were charged with
misdemeanor offenses, § 46-13-401(2), MCA, required that they be
brought to trial within six months from the date of their initial

appearance. They initially appeared on November 18, 1991, and
trial was not scheduled in the District Court until August 26,
1992, which was more than six months later. They contend that our
prior decisions in Stale v. Knox (l984), 207 Mont. 537, 675 P.2d 950,

and Stare v. Sunford (19901, 244 Mont. 411, 796 P.2d 1084, are

inapplicable because there was no trial in the Justice Court, and
that instead, the result in this case is controlled by our decision
in Slale v. Ronrzingen (19841, 213 Mont. 358, 691 P.2d 1348. The State

responds that § 46-13-401(2),MCA, applies only to justice court
and that there is no practical reason for distinguishing this case
from Sanford based simply on the manner in which the cases were

resolved in the Justice Court
Whether the District Court properly denied the motion to
dismiss is a legal issue which we review to determine whether the
district court's interpretation was correct. tale v. Muntz (Mont.

1994), 887 P.2d 251, 253, 51 St. Rep. 1527, 1528 (citing Dotingv. Trunk

(1993), 259 Mont. 343, 856 P.2d 536)
Section 46-13-401(2),MCA, provides that:

After the entry of a plea upon a misdemeanor charge,
the court, unless good cause to the contrary is shown,
shall order the prosecution to be dismissed, with
 prejudice, if a defendant whose trial has not been
postponed upon the defendant's motion is not brought to
trial within 6 months.

We held in Ronningen that the "speedy trial" test which is

applicable in district court is not applicable to misdemeanors
prosecuted in justice court, and that where a defendant has not

requested a delay, the six month standard is the sole consideration
for speedy trial analysis, absent good cause to hold otherwise. In
that case we held that the retirement of the presiding judge did
not constitute good cause for delay past six months. However,

Ronningen was not concerned with the situation where charges are

resolved in justice court and one or the other party appeals to the
district court for a trial de n o w . We first addressed the

applicability of § 46-13-401(21, MCA, to that situation in State 1)

Knox. There, we held that where the defendant had received a trial

in city court within six months from the date of his initial

appearance, and then appealed to district court for a trial denovo,

5 46-13-401(2), MCA, was inapplicable to the proceedings in
district court, but that the time for conducting a trial in the
district court is controlled by the criteria established in Barkerv

Wingo (19721, 407 U . S . 514, 523, 92 S. Ct. 2182, 2188, 33 L. Ed. 2d

101, 112-13. We affirmed that rule in Sunford, and again in Mantz,

887 P.2d at 253 (citing Doting, 856 P.2d 536).

In Mantz, 887 P.2d at 253, we pointed out that "we have already

interpreted this statute as inapplicable to those situations in
which the case comes from justice court to a trial de novo in

district court."
We cited from Surford for the principle that:

Once an action is appealed from justice to district
court, it is treated as if it were a new trial.
Questions regarding speedy trial in cases concerning new
trials are analyzed under the constitutional standards of
Barkerv. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101
(1972).

The defendants contend, however, that a trial denovo infers a

second trial and that there can be no trial denovo without a first

trial. While that may be correct based on a strict definition of

the term, it is not correct as the term is used in our statutes

providing for trial denovo in district court. Section 46-17-311,

MCA, provides that all cases appealed from a justice court to the

district court must be tried anew, and that the prosecution may
appeal under the circumstances provided for in § 46-20-103, MCA.
That statute provides in relevant part that:
(2) The state may appeal from any court order or
judgment the substantive effect of which results in:
(a) dismissing a case;
. . . .
(e) suppressing evidence . . . .
While this Court was not unanimous in its conclusion that

46-13-401 , MCA, does not apply to misdemeanor charges appealed
(2)

to the district court ( e Mintz,
se Justices Trieweiler and Hunt

dissenting), all members do concur that for purposes of applying
that rule there is no basis for distinguishing between cases
appealed after trial in the justice court and cases appealed from
disposition in some other fashion in justice court. So long as the
justice court jurisdiction is exhausted within six months by some
action which authorizes appeal de novo to the district court,

5 46-13-401(2), MCA, has been satisfied. For these reasons, we
analyze the defendants' motion to dismiss based on the test
established in Barkerv. Wingo.

The Barker test requires courts to consider (1) the length of

the delay; (2) the reason for the delay; 1 1 the assertion of the
3
right to a speedy trial by the defendant; and (4) the prejudice to
the defense. Mantz, 887 P.2d at 253 (citing Barker, 407 U.S. at 530) .

When considering the first factor, the time for calculating
the length of delay commences on the date that the State files its
notice of appeal from justice court. See State v. h'ekon (l99:), 251

Mont. 139, 142, 822 P.2d 1086, 1088. In this case, the State filed
its notice of appeal from the Justice Court on March 2, 1992. The
District Court scheduled a trial for August 26, 1992, 176 days
later. The defendants pled guilty on or before the date set for
trial.
The length of the delay is of primary importance, and the
other factors need not be considered unless the length of delay is
presumptively prejudicial. Slatev. Thompson (l993), 263 Mont. 17, 32,

865 P.2d 1125, 1134-35 (citing Statev. Dahms (1992), 252 Mont 1, 12,

825 P.2d 1214, 1220) . In JVe\lelson, we stated that a delay of less than
six months was not presumptively prejudicial. Likewise, we hold
that the delay of 176 days in this case is not presumptively
prejudicial under the facts in this case. Therefore, we will not
address the other Barker criteria. We affirm the District Court's

denial of the defendants' motion to dismiss.
ISSUE 2
Did defendant Bullock have standing to challenge the State's
entry upon and search of land owned by Peterson?
The State contends that Bullock has no standing to challenge
the legality of the State's entry onto and search of Peterson's
land because he had no ownership interest in that land. It
contends that pursuant to this Court's recent decisions in Slate v.

Gonzales (1988), 231 Mont. 242, 751 P.2d 1063, and Stutev. Powers (1988),

233 Mont. 54, 758 P.2d 761, a party must have some interest in the
property searched before he or she can contest the admissibility of
evidence gathered during the search.
Bullock responds that he was charged with possessing the elk
carcass seized from Peterson's property, and that under our prior
decisions, that possessory interest was sufficient to establish
standing.
We agree that the State construes our prior decisions
regarding standing too narrowly.
Even after the United States Supreme Court retreated from its
"automatic standing" rule in cases where a defendant is charged
with illegal possession of some item, in UnitedStute.sv. Sulvucci (1980),
448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619, we held that
ownership of the property searched is not necessary to establish
standing to object to the legality of a search. Statev. lsom (1982),

196 Mont. 330, 641 P.2d 417. We stated:

Notwithstanding the limitations placed on .Jones[v.
UniledStates (l96O), 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d
6971, the Court in Rakas[v. I1linoi.r (1978), 439 U.S. 128, 99
S.Ct. 421, 58 L.Ed.2d 3871, and again in Salvucci,
emphasized that ownership is not a key element in
determining standing. The test for standing is not to be
based on distinctions out of property and tort law: "In
defining the scope of that interest, we adhere to the
view expressed in Jones and echoed in later cases that
arcane distinctions in property and tort law between
guests, licensees, invitees, and the like ought not to
control." See Jones, 362 U.S. at 266, 80 S.Ct. at 733;
Rakus, 439 U.S. at 143, 99 S.Ct. at 430; Salvucci, 448 U.S.
at 91, 100 S.Ct. at 2553; and Rawlings[v. Kentucky (1980)1,
448 U.S. 1981 at 105, 100 S.Ct. 125561 at 2561. The
controlling view, then, seems to be that expressed in
Mancusiv. DeForte (1968), 392 U.S. 364, 88 S.Ct. 2120, 20
L.Ed.2d 1154, in which the Court said that the Katz test
of "'legitimate expectation of privacy' makes it clear
that capacity to claim the protection of the Fourth
Amendment depends not upon a property right in the
invaded place, but upon whether the area was one in which there wu.s a
governmental intrusion . " See Mancusi,
veasonable expectation offr.eedotn~om
392 U.S. at 368, 88 S.Ct. at 2124.

Following this rationale, we concluded in Isom that a defendant

who was a guest in his uncle's home at the time that it was
searched had standing to object to the government search of that
home, even though he had no ownership interest in the premises

We have since held in both Gonzales and Powers that a possessory

interest in either the premises searched or the propertv seized is
sufficient to establish standing. However, we have never modified
nor reversed our position in Isom

Other states which have held that a possessory interest in the
items seized is sufficient to establish standing to challenge the
legality of a search or the property's seizure, have adopted
automatic standing rules on independent state grounds where the
defendant is charged with unlawfully possessing that item.
For example, in State v. Alston (N.J. 1981), 440 A.2d 1311, the

defendants were passengers in a vehicle from which weapons were
seized during a search of the vehicle. They were later charged
with unlawful possession of the weapons. Pursuant to the
defendants' motion, the evidence was suppressed by the trial court,
based on the illegality of the police search. On appeal, the state
contended that the defendant passengers had no standing to
challenge the legality of the search of the vehicle, despite their
possessory interest in the weapons which had been seized.
After reviewing the U.S. Supreme Court's decisions on
standing, including Sulvtrcci, that court noted an inconsistency in the

federal law which appeared to allow prosecutors to assert
contradictory positions:
[Tlhat the defendant possessed the contraband property
for the purposes of proving criminal liability, but that
he had insufficient possessory interest in the property
for the purposes of defending the legality of the search
and seizure.
Alston, 440 A.2d at 1317. The court pointed out that a basic

principle of American federalism confers on state courts the power
to afford citizens of each state greater protection against
unreasonable searches and seizures than may be required by the
Supreme Court ' s interpretation of the Fourth Amendment, and on that
basis, concluded that the Salvucci decision afforded inadequate

protection against unreasonable searches and seizures. Alston, 440

Finally, the New Jersey Supreme Court concluded that based on
its rule of standing which provided that "a criminal defendant is
entitled to bring a motion to suppress evidence obtained in an
unlawful search and seizure if he has a proprietary, possessory or
participatory interest in either the place searched or the nropertv
seized," it would retain the automatic standing rule where a
defendant is charged with an offense in which possession of the
seized evidence at the time of the contested search is an essential
element of guilt. Alston, 440 A.2d at 1320. It adopted reasoning

from former Justice Thurgood Marshall that
[tlhe automatic standing rule is a salutary one which
protects the rights of defendants and eliminates the
wasteful requirement of making a preliminary showing of
standing in pretrial proceedings involving possessory
offenses, where the charge itself alleges an interest
sufficient to support a Fourth Amendment claim.
Alston, 440 A.2d at 1320 (citing Salvucci, 448 U.S. at 97, 100 S. Ct.

at 2556, 65 L. Ed. 2d at 632 (Marshall, J., dissenting))
Other states have also adopted the rule of automatic standing
for crimes of possession. See State v. E'hite (Ariz. App. 1978), 574 P.2d

840; Slate v. Alosn ( N . H . l993), 623 A.2d 218
 We agree with the reasoning in Alston. Based on independent

state grounds pursuant to Article 11, Section 11, of the Montana
Constitution, we hold that when the charge against the defendant
includes an allegation of a possessory interest in the property
which is seized, the defendant has standing to object to the
prosecutorial use of that evidence based on either the unlawful

search of the location where it was found, or its unlawful seizure.
Since Bullock was accused by the State of unlawfully
possessing the elk carcass which was found on Peterson's property,

we conclude, based on our prior decisions and the logical
application of those decisions as set forth above, that he had
standing to object to the State's search of Peterson's property and

seizure of that carcass.
ISSUE 3
Does Article 11, Section 11, of the Montana Constitution,
prohibit warrantless searches and seizures, under the circumstances
in this case, on private land that falls outside the curtilage of

a dwelling?
We review a district court's conclusions of law regarding a

motion to suppress to determine whether the district court's

interpretation of the law was correct. State v. Pastos (Mont. 1994),

887 P.2d 199, 201, 51 St. Rep. 1441, 1442. The defendants contend

that the elk discovered by the State pursuant to its warrantless
entry onto Peterson's property, and any further evidence which
resulted from the discovery of that carcass, including statements
made by both defendants, should be suppressed based upon the Fourth
Amendment to the United States Constitution, and Article 11,

Section 11, of the Montana Constitution, which guarantee the
defendants the right to be free from unlawful searches and
seizures. As evidence that the State's entry upon Peterson's land
and seizure of the elk carcass were unlawful, the defendants point
out that no search warrant had been issued, that permission had not
been given for Anderson and Dawson to enter Peterson's land, and
that the search which led to discovery of the elk was not made
pursuant to any statutory exception provided for game wardens at
§ 87-1-506(2), MCA. They contend that pursuant to State v. Osteen

(1985), 216 Mont. 258, 261, 700 P.2d 188, 191, and Statev. Cadson

(19821, 198 Mont. 113, 119, 644 P.2d 498, 501, the plain view
doctrine does not apply because the law enforcement officers were
not legally at the place where they first observed the elk carcass;
that pursuant to the criteria set forth in Unitedstates .' Dunn (1987),

480 U.S. 294, 301, 107 S. Ct. 1134, 1139, 94 L. Ed 2d 326, 334-35,
the carcass was located in the curtilage of Peterson's home, rather
than in the "open field" and that at that location defendants had
a subjective expectation of privacy which should be recognized as
reasonable by society.
The State responds that Anderson's presence on Peterson's
property, and his observation of and subsequent seizure of
contraband at that location, was constitutionally permissible
pursuant to the "open fields" doctrine recognized by the U.S.
Supreme Court in Oliverv. 1JnitedStates (1984), 466 U.S. 170, 104 S. Ct.

1735, 80 L. Ed. 2d 214, and previously recognized by this Court in
State v. Charvat (1978), 175 Mont. 267, 573 P.2d 660, and subsequent

cases. The State also contends that the location of the elk
carcass did not meet the criteria for constitutionally protected
curtilage set forth in D m n , and that pursuant to § 87-1-502(6),

MCA, Anderson had the authority to inspect the carcass at any
location other than a residence or dwelling.
The Fourth Amendment to the United States Constitution
provides that:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be
seized.
Article 11, Section 11, of the Montana Constitution, provides
similarly that:
The people shall be secure in their persons, papers,
homes and effects from unreasonable searches and
seizures. No warrant to search any place, or seize any
person or thing shall issue without describing the place
to be searched or the person or thing to be seized, or
without probable cause, supported by oath or affirmation
reduced to writing.
Pursuant to these provisions, searches conducted without
warrants are presumed to be unreasonable subject to a few
delineated exceptions. Osteen, 700 P.2d at 191 (citing Kalz v. United

States (1367), 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d

576, 585) . The State contends that a search of open fields was
either never intended for protection pursuant to these amendments,
or is an exception to the warrant requirement, depending on which

precedent is considered.
Because of what appear to be seeming inconsistencies in the
decisions of the United State Supreme Court, our prior willingness
to apply those decisions under circumstances which were different
than those presented in this case, and contrary decisions in other
jurisdictions based on the same high regard for privacy that
prevails in this State, we deem it appropriate to trace the origins

of the "open fields" doctrine, and reconsider its applicability to
Article 11, Section 11, of the Montana Constitution.

The open fields doctrine was first established in Hesterv. United

States (1924), 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898. In Hester,

the Court held that the Fourth Amendment protects "persons, houses,
papers, and effects," and is not extended to the open fields.
Hester, 265 U.S. at 59 (citing 4 B1. Comm. 223, 225, 226). Shortly

thereafter, the Supreme Court clarified that the Fourth Amendment
provides protection from invasion of one's house or curtilage.

Olmsreadv. UnitedStates (19271, 277 U.S. 438, 466, 48 S. Ct. 564, 568, 72

L. Ed 944, 951.
Subsequently, however, that Court recognized that the Fourth
Amendment protects people--not places--fromunreasonable searches.
Katz, 389 U.S. 347.' In Kutz, the Court stated that the Fourth

Amendment protects individual privacy against certain kinds of
government intrusion, but its protections go further and often do
not relate to privacy. Katz, 389 U.S at 350. A person's right to

privacy, or right to be let alone, is largely left to the law of
the states. Katz, 389 U.S. at 350-51. What a person knowingly

exposes to the public is not protected, but what an individual
seeks to preserve as private, even in an area accessible to the
public, may be constitutionally protected. Katz, 389 U.S. at 351.

Finally, the Court discredited the previous notion that property
interests control the government ' s right to search and seize. Katz,

389 U.S. at 353. However, the two-part test that this Court has
followed since Charvat to determine whether a search is unlawful was

set forth in Justice Harlan's concurring opinion in Katz, 389 U.S.

at 361 (Harlan, J., concurring). That test requires that (1) a
person have an actual expectation of privacy; and (2) the
expectation must be one society is willing to recognize as
reasonable.
In a seeming return to concepts discredited in Katz, the Court

,
reaffirmed notions grounded in Nester in Oliver v. United Stales (1984) 466

U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214. Oliver was based on two

I
Commentators have suggested that the Fourth Amendment
protects people and places. See Elison and NettikSimmons, R g t of
ih
Privacy, 18 Mont. L . Rev. 1, 5, 24 (1987).
similar fact patterns where law enforcement officials ignored "No
Trespassing" signs and fences, entered private property, and
observed illegal drug activity. The Court held that the specific
language of the Fourth Amendment does not include open fields.
Oliver, 466 U.S. at 177. The amendment's protection extends only to

the curtilage area immediately surrounding one's home. Oliser, 466

U.S. at 178. Following Oliver, it appears that if an area is not

curtilage, it is an open field unprotected by the Fourth Amendment.
Despite the Court's intent to eliminate case-by-case determina-
tions, the Oliver Court did not discuss how courts were to determine

the distinction between curtilage and open fields.
Based on this omission, the Supreme Court suggested a
four-part test for determining the extent of the curtilage area in
Dunn, 480 U.S. at 301-03. In Dunn, officers who did not initially

obtain a warrant, crossed a perimeter fence, entered a ranch, and
observed a drug operation through an open barn door. The Court
concluded that the barn and the area surrounding the barn were
beyond the curtilage and were not protected by the Fourth
Amendment. Dunn, 480 U.S. at 301.

The Court stated that curtilage questions should be resolved
with particular reference to the following factors:
[Tlhe proximity of the area claimed to be curtilage to
the home, whether the area is included within an
enclosure surrounding the home, the nature of the uses to
which the area is put, and the steps taken by the
resident to protect the area from observation by people
passing by.
Dunn, 480 U.S. at 301 (citing Californiav. Ciraolo, 476 U.S. 207, 221, 106

S. Ct. 1809, 1817, 90 L. Ed. 2d 210, 222 (Powell,J., dissenting)).

Each party in this case contends that the Dunn factors weigh in his

or its favor. However, based on this State's Constitution, and its
expressed regard for individual privacy, we decline to follow the
U.S. Supreme Court's distinction between curtilage and open fields,
and therefore, will not consider the applicability of the Dzmn

criteria to this case.
Although we have not previously followed Dunn, we have, in the

past, applied the "open fields" doctrine in cases which are
factually distinguishable from this case.
Before Montana's Constitution was amended in 1972, the
doctrine was discussed in several cases. We initially followed
Hesler and held that the constitutional protections of Montana's

analogous provision to the Fourth Amendment do not extend to an
open field. Statev.Arnold (1929), 84 Mont. 348, 275 P. 757; Statev.Ladue

(19251, 73 Mont. 535, 237 P. 495. Relying on Arnold and Ladue, we

held that open pastures and farm lands are not protected by the
Fourth Amendment, State v. Perkins (l969), 153 Mont. 361, 457 P.2d 465,

or Montana s analogous constitutional provision, Slate v. Johnson

(1967), 149 Mont. 173, 424 P.2d 728.
Following the amendment of Montana's Constitution in 1972, and
after Katz, this Court began to analyze the open fields doctrine

differently. In State v. Charvat (l978), 175 Mont. 267, 573 P.2d 660,
relying on Nester, this Court held that neither the Fourth Amendment,

nor Article 11, Section 11, of the Montana Constitution, extended
protection to open fields. Churvaf, 573 P.2d at 661. However,

because Katz was decided after Hester, we stated that the

determination of whether an intrusion was unreasonable depended
upon whether one had an actual (subjective) expectation of privacy
that society would recognize as reasonable. Churvut, 573 P.2d at

662. This Court, like the Court in Kalz, cited authority for the

proposition that the focus of search and seizure analysis is no
longer on common law property concepts. Charvat, 573 P.2d at 662

(citing Wattenburgv. LC'nitedStates (9th Cir. 1968), 388 F.2d 853).

In Statev. Dess (19821, 201 Mont. 456, 464, 655 P.2d 149, 153, we

held that the "reasonableness of his expectation of privacy turned
on the defendant's right to exclude others from the premises."
Because the defendant admitted he had a diminished expectation of
privacy in a public campground, and because of other facts, we held
that the defendant did not have a reasonable expectation of privacy
in the area searched. Dess, 655 P.2d at 154.

In 1983, we addressed an appeal from the denial of a motion to
suppress evidence seized from an area of the defendant's fields.
,
Statev. Bennett (1983) 205 Mont. 117, 666 P.2d 747. In Bennetl, a deputy

sheriff following an anonymous tip observed marijuana plants
growing in the defendant's garden through a 60 power scope from a
nearby road. We concluded that the area surrounding the fenced
portion of the property was open field, and that the use of the
spotting scope did not violate the defendant's reasonable
expectation of privacy in an area that could be observed from a
public road. Bennett, 666 P.2d at 749 (citing Hester, 265 U.S. 57) .

"Where no reasonable expectation of privacy exists, there is
neither a 'search' nor a 'seizure' within the contemplation of the
Fourth Amendment of the United States Constitution or Article 11,
Section 11 of the Montana Constitution." Bennett, 666 P.2d at 749.

We concluded that the defendant voluntarily exposed the marijuana
to the public by growing it in a garden near a county road, and
therefore, that even if the defendant had a subjective expectation
of privacy, it was not one society would recognize as reasonable.
Bennett, 666 P.2d at 749.

Finally, in another case involving a marijuana grow operation,
we held that the defendant did not have a legitimate expectation of
privacy. In Statex, Sorensen (1990), 243 Mont. 321, 792 P.2d 363, law

enforcement officials, who were acting on a tip that the defendant
was growing marijuana on forest service land and storing it on his
property, began observing the defendant's property. The officers
later obtained a warrant and seized evidence of the marijuana
operation. The defendant contended that Article 11, Section 10, of
the Montana Constitution, protected him from trespass by law
enforcement, and he contended they must have trespassed, or they
could not have described his buildings in such detail in the search
warrant.

24
 We acknowledged that Montana's constitutional right of privacy
is broader than the right of privacy under the Federal

Constitution. Sorensen, 792 P.2d at 366 (citing Statev.Sierra (1985),

214 Mont. 472, 692 P.2d 12731. However, we concluded that "[tlhe
"open fields" doctrine, providing that the right of privacy in
one's home does not extend to open fields within the view of the

public, has been recognized under Montana's right of privacy."

Sorensen, 792 P.2d at 366 (citing Charvai, 573 P.2d at 661).2 We held

that the defendant did not have a legitimate expectation of privacy

that would prevent law enforcement officers from observing
buildings located on his unfenced land. Sorensen, 792 P.2d at 366.

As these developments illustrate, we have followed the principles
established in Katz, but have applied the "open fields" doctrine to

our consideration of whether a person's expectation of privacy is
one that society would consider reasonable. However, we have not
had occasion to consider reasonableness under precisely the
circumstances presented in this case.
Nor have we discussed the distinction between curtilage and

open fields, or the impact of Dunn on Montana's constitutional

guarantee of freedom from unreasonable searches. Therefore, we
look to other jurisdictions which have addressed the open fields

doctrine as applied to state constitutional provisions similar to
ours under circumstances similar to those presented in this case.

This citation to Charvat is inaccurate because Charvai discussed
Article 11, Section 11, not Section 10.
 In 1988, the Oregon Supreme Court held that that state's
nearly identical right to be free from unreasonable searches and
seizures provided broader privacy protection in open fields than
the United States Supreme Court had provided pursuant to the Fourth
Amendment. Stotev.Dixson/Digby (Or. 1988), 766 P.2d 1015.

In Dixson, sheriff's deputies received information that

marijuana was growing on heavily forested land owned by a lumber
company. After an officer flew over the land and observed
marijuana, officers were granted permission to drive on the land.
As they approached the land, they came to an impassable dirt
logging road which was on property being purchased by the Dixsons,
who resided on the land. The officers walked on, passed several
"no hunting" signs, pushed some brush aside, and observed marijuana
plants located on the Dixsons' property. Dixson, 766 P.2d at 1016.

The next day, officers returned and discovered Lorin Dixson
and Jeff Digby near the plants, arrested both of them, and seized
the plants. The defendants moved to suppress the evidence based on
the Fourth Amendment and the Oregon Constitution. The trial court
denied the motion but was reversed by the Court of Appeals.
On appeal, that court was urged by the state to adopt the
"open fields" exception to Oregon's constitutional warrant
requirement based on the rationale in Oliver. However, that court,

based on the same constitutional language considered by the U.S.
Supreme Court in Oliver, declined to do so. It began its analysis

by pointing out that the term "open fields" is not precise. In

26
fact, it was applied in Olivev to lands which were "neither fields

nor, in any fair sense of the word, open; the open fields doctrine
denies Fourth Amendment protection to all undeveloped and
unoccupied land outside the curtilage of a residence." Dixson, 766

P.2d at 1020 (citing Oliver, 466 U.S. at 180 n.11). The court went

on to explain that neither is the common law concept of curtilage
applicable to constitutional analysis. It explained that:
The rationale underlying the curtilage concept as it
was used at common law--to provide a zone of protection
to sleeping residents from the "midnight terror" of
burglary--simply is not the same as the rationale
underlying Article I, section 9, or, for that matter, the
Fourth Amendment, each of which protects the privacy of
the individual from warrantless invasion and scrutiny by
the government and its minions. Reliance on the
common-law concept of curtilage to justify excluding land
outside the curtilage from the protections of either
constitutional provision is misplaced.
Dixson, 766 P.2d at 1023.

The Oregon court pointed out that that state's right to be
free from unreasonable searches and seizures was based not on a
person's "reasonable expectation of privacy'' but upon each
"individual's interest in freedom from scrutiny, i e . , his privacy."

Dixson, 766 P.2d at 1023.

The court next concluded that land owners who have, at some
expense, taken steps to exclude others from their property by use
of signs, fences, or other measures, have expressed an intention to
establish privacy which is protected under Oregon's constitutional
right to be free from unreasonable searches and seizures. For that
reason, the Oregon court established the following test to enable
police to determine whether an uninvited intrusion on private
property constitutes a search under that state's constitution which
requires a warrant:
An individual's privacy interest in land he or she has
left unimproved and unbounded is not sufficient to
trigger the protections of Article I, section 9. Thus,
it is not sufficient that the property in question is
privately owned, or that it is shielded from view by
vegetation or topographical barriers, because those
features do not necessarily indicate the owner's
intention that the property be kept private. A person
who wishes to preserve a constitutionally protected
privacy interest in land outside the curtilage must
manifest an intention to exclude the public by erecting
barriers to entry, such as fences, or by posting signs.
This rule will not unduly hamper law enforcement officers
in their attempts to curtail the manufacture of and
trafficking in illegal drugs, because it does not require
investigating officers to draw any deduction other than
that required of the general public: if land is fenced,
posted or otherwise closed off, one does not enter it
without permission or, in the officers' situation,
permission or a warrant.

Applying this rule, however, to the facts in that case, the
Oregon Court held that the search was not illegal
The Court of Appeals of New York has also refused to follow
the United States Supreme Court's distinction between curtilage and
an open field. People v. Scott (N.Y. 1992), 593 N.E.2d 1328

In Scott, police had information that the defendant was growing

marijuana on his property which consisted of 165 acres of rural,
undeveloped woodlands. In spite of the fact that the property was
conspicuously posted with no trespassing signs, and without the
defendant's permission, police entered upon the property where they
personally observed plants. Based on those observations, and
testimony of a private citizen, the police obtained a search
warrant, pursuant to which they found and recovered marijuana
plants beyond the curtilage of the residence which was located on
the property. The defendant moved to suppress that evidence.
However, based upon Oliver, New York's trial court and appellate

division denied that motion. On appeal, New York's highest court
was asked to decide whether it should follow Oliver and exclude open

fields from the protection of its state constitutional right to be
free from unreasonable searches and seizures. After thoughtful
consideration, it declined to apply Oliver in the State of New York

for the following reasons: (1) the conclusion that the Fourth
Amendment does not apply to land was "contrary to the basic concept
of post-Kazz decisions that the amendment protects a person's

privacy, not places"; ( 2 ) the constitutional history relied upon in
Oliveeu was inapplicable to the comparable provision in New York's

Constitution; (3) its effect was incompatible with Justice
Brandeis's Olmstead dissent declaring the "right to be let alone--the

most comprehensive of rights and the right most valued by civilized
men"; (4) that state's private property laws indicated that the
interest in privacy on land beyond the curtilage was one that New
York society was prepared to recognize as reasonable; and
(5) giving state agents unbridled license to roam freely on private
land without permission was repugnant to basic notions of fairness
in that state's criminal law. Scott, 593 N.E.2d at 1334-37. For

these reasons, the New York Court held that:
[Wlhere landowners fence or post "No Trespassing" signs
on their private property or, by some other means,
indicate unmistakably that entry is not permitted, the
expectation that their privacy rights will be respected
and that they will be free from unwanted intrusions is
reasonable.

Therefore, that court held that the warrantless entry by
police on the defendant's land violated that state's constitutional
right to be free from unreasonable searches and seizures
Like the Dixson court, the Scott court recognized that the Fourth

Amendment was not literally interpreted in Katz. Neither a

telephone booth, nor a conversation therein, can be described as a
person, house, paper, or effect. Scott, 593 N.E.2d at 1334-35.

Moreover, the Court had extended protection beyond the Fourth
Amendment's literal language, e.g.,business premises are protected
but not included in the literal language. Scott, 593 N.E.2d at 1335

(citing Mclcrhallv. bar low!^, Inc. (1977), 436 U.S. 307, 311, 98 S. Ct.

1816, 1819, 56 L. Ed. 2d 305, 310; G.M.
Leasing COT. V. CTniledStates

(l976), 429 U.S. 338, 358-59, 97 S. Ct. 619, 631, 50 L. Ed. 2d 530,

547). In its final analysis, however, the court found those
contradictions irrelevant because it was concerned with "a
provision in a different Constitution with its own unique history."
Scott, 593 N.E.2d at 1335.
 That court refused, as this Court has in the past (seestate v.

Sawyer (l977), 174 Mont. 512, 571 P.2d ll3), to march " [llockstep"

with the United States Supreme Court's interpretation of similar
provisions in the federal constitution. Instead, it agreed, as we
do, with the observation by former Justice William Brennan that
"state courts cannot rest when they have afforded their citizens
the full protection of the federal Constitution" and without "the
independent protective force of state law . . . the full
realization of our liberties cannot be guaranteed." Scott, 593

N . E .2 at 1338 ( citing Brennan , State Constitutions and the Protection of Individual
d

Rights, 90 Harv. L . Rev. 489, 491).

Finally, and most recently, a Washington Court of Appeals
found additional protection based on its state constitution. State

v. Johnson, (1994 Wash. Ct. App. Div. 21, 879 P.2d 984.

In ,Johnson, federal and state officers, acting on information

they received that Johnson was growing marijuana on his property,
drove to his property and walked to the edge, but were unable to
view any buildings. Johnson's property was bounded with a fence
and a closed chain link gate and was posted with "Private Property"
and "No Trespassing" signs on trees nearby. Aerial photographs
were taken and DEA officers returned a couple days later at about
1:00 a.m., found the gate unlocked, and proceeded down a dirt road
toward Johnson's property. They observed a barn, smelled marijuana
growing, used a thermal imaging device, and discovered a grow
operation. The officers later received and executed a warrant
based partly on these observations. Johnson, 879 P.2d at 987.

Johnson's motion to suppress was denied, and on appeal he argued
that the DEA activity violated the Washington Constitution.
The court first stated that the Washington Constitution
provides more protection than the Fourth Amendment, partly because
Washington has a strong tradition of protecting private property
from unwanted intrusions and recognized criminal trespass for
similar conduct. Johnson, 879 P.2d at 990.

The court acknowledged that the officers did not enter the
curtilage, but that did not end its analysis under the Washington
Constitution. Neither the open fields doctrine, nor the reasonable
expectation test, was dispositive, but both were factors used to
determine if the entry unconstitutionally intruded into a person's
private affairs. That court concluded that its Constitution "does
not foreclose a person's ability to protect his or her private
affairs in an open field." Johnson, 879 P.2d at 993.

It held that fields that are fenced and posted with no
trespassing signs are protected, and therefore, that the agents'
entry was an unreasonable intrusion into Johnson's private affairs.
Johnson, 879 P.2d at 993.

Like our sister states, Montana has a strong tradition of
respect for the right to individual privacy.
The Montana Constitution also provides that the
people shall be free from unreasonable searches and
seizures. Mont. Const. Art. 11, § 11. Although the
 language of this provision is nearly identical to that
contained in the Fourth Amendment to the United States
Constitution, we recognize that such a provision in the
Montana Constitution may be interpreted so as to provide
a greater amount of rights than that contained in the
Federal Constitution. See, Slate v. .Johnson (19861, 12211
Mont. 1503, 5131, 719 P.2d 1248, 1254-55; and Butte
Communi@ Union v. Lewis (1986), 12191 Mont. [426, 4331 , 712
P.2d 1309, 1313. Additionally, the Montana Constitution
provides that the right of individual privacy shall not
be infringed without the showing of a compelling state
interest. Mont. Const. Art. 11, § 10. There is no
similar textual language in the United States
Constitution and we have therefore recognized that this
section grants rights beyond that inferred from the
United States Constitution. See generally, iUontana Human
Rights Division v. City of Billings ( 1982) , 199 Mont . 434 , 649 P . 2d
1283. Because Montana's Constitutional protections have
an existence which is separate from the Federal
Constitutional protections it is necessary to offer an
independent analysis of the privacy and search and
seizure provisions of the Montana Constitution.

Statev. Brown (l988), 232 Mont. 1, 9-10, 755 P.2d 1364, 1370

We conclude, based on this State's strong tradition of respect

for individual privacy as reflected in our own unique Constitution,
that the preceding discussions from our sister states are
persuasive.
States are free to grant citizens greater protections based on

state constitutional provisions than the United States Supreme

Court divines from the United States Constitution. State v. Suvtyer

(1977), 174 Mont. 512, 515, 571 P.2d 1131, 1133 (overruled on other
grounds by Slaiev.Long (1985), 216 Mont. 65, 700 P.2d 153). We have

chosen not to "march lock-step" with the United States Supreme
Coilrt , even when applying nearly identical language. State v. .Johnson

(1986), 221 Mont. 503, 512, 719 P.2d 1248, 1254. In addition, we
have held that Montana's unique constitutional language affords
citizens a greater right to privacy, and therefore, broader
protection than the Fourth Amendment in cases involving searches
of, or seizures from, private property. Smvyer, 571 P.2d at 1133.

As the New York Court of Appeals stated in Scott, the rule that

an individual may never have an expectation of privacy in open
fields would be repugnant to our State's explicit recognition of
privacy as a fundamental right which will not be violated absent a
compelling state interest. Mont. Const. art. 11, 5 10. Likewise,
as the Washington Court stated in Johnson, the fact that the officers

did not enter the curtilage does not end our analysis based on
Article 11, Section 11. In this case, we decline to apply the
United States Supreme Court's Oliver decision to Article 11,

Section 11, of the Montana Constitution.
We conclude that in Montana a person may have an expectation
of privacy in an area of land that is beyond the curtilage which
the society of this State is willing to recognize as reasonable,
and that where that expectation is evidenced by fencing, "No
Trespassing," or similar signs, or "by some other means [which]
indicatefs] unmistakably that entry is not permitted" (Scott, 593

N.E.2d at 1338), entry by law enforcement officers requires
permission or a warrant. As in our prior decisions, however, this
requirement does not apply to observations of private land from
public property. To the extent that our prior decisions in Chawat,
Dess, Bennett, and Sorensen are inconsistent with this holding, they are

overruled.
We next discuss whether the State's entry onto Peterson's
property without a warrant, and without permission, was prohibited
under the circumstances in this case.
Peterson's cabin was initially built near a public road.
However, due to vandalism, he moved his cabin away from the road to
where it is barely visible from the road. After the move,
Peterson's cabin was located in a forested area approximately 334
feet down a private road. A fence separated Peterson's property
from the public road and a large metal gate controlled access to
his property. Although the gate was open on this occasion, trees
on either side of the gate were posted with "No Trespassing" signs.
It was stipulated that people in the past, including members of the
Jefferson County Sheriff's Department, requested permission to
enter his land.
Peterson took numerous precautions to ensure that others would
not enter his property without permission. We conclude that
Peterson's expectation of privacy was reasonable. Therefore, under
these circumstances, we hold that the entry onto Peterson's
property and observation of the elk carcass, which could not have
otherwise been observed, was an unreasonable search in violation of
Article 11, Section 11, of the Montana Constitution. Evidence that
was gathered thereafter as a result of the unlawful search was
inadmissible by virtue of the exclusionary rule. See Wong Sun v. L'nited
States (19631, 371 U.S. 471, 486-88, 83 S. Ct. 407, 417, 9 L. Ed. 2d

441, 455.
The State contends that Peterson allowed Anderson to inspect
the elk and offered to take the officers to the kill site, and
therefore, that the evidence was obtained from consensual activity
which does not violate either the Fourth Amendment or its Montana
counterpart. Even if Peterson consented, it was after the officers
wrongfully entered his property and saw the elk. Consequently, it
flowed from the unlawful intrusion and cannot be used to justify
it.
We affirm the District Court's denial of the defendants'
motion to dismiss. However, we hold that the District Court erred
when it failed to grant the defendants' motion to suppress evidence
obtained after the officers entered Peterson's property without
permission or a warrant and observed the elk carcass. Because we
base our decision on this issue, we do not find it necessary to
address the other issues raised on appeal.

We concur: