State v. Romain

No

No. 97-545

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 161

295 Mont. 152

983 P.2d 322

STATE OF MONTANA,

Plaintiff and Respondent,

v.

MONTE RAY ROMAIN,

Defendant and Appellant.

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APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Jeffrey Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Nathan J. Hoines, Attorney at Law; Great Falls, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; C. Mark Fowler,

Assistant Attorney General; Helena, Montana

Mike McGrath, Lewis and Clark County Attorney; Mike Menahan,

Deputy; Helena, Montana

Argued: April 26, 1999

Submitted: May 11, 1999

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Decided: July 8 , 1999

Filed:

__________________________________________

Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1. Defendant, Monte Ray Romain, was charged in the Justice Court for Lewis and
Clark County with possession of an illegally taken cow elk, with failure to properly
validate an elk license, and with violating the State Fish, Wildlife, and Parks
Commission rules and regulations by refusing to return to the kill site. The Justice
Court granted Romain's motion to suppress evidence, and the State appealed the
Justice Court decision to the District Court for the First Judicial District. On appeal,
the District Court denied Romain's motion to suppress evidence. Following a nonjury
trial, Romain was convicted of all charges against him. Romain now appeals the
District Court order which denied his motion to suppress. We reverse the order and
judgment of the District Court.

¶2. The following issue is dispositive on appeal:

¶3. Did the District Court err when it refused to suppress evidence obtained as a
result of the warrantless search of Romain's property?

FACTUAL AND PROCEDURAL BACKGROUND

¶4. On November 12, 1996, between approximately 6:30 and 7:00 p.m., State Fish,
Wildlife, and Parks (FWP) game warden, Wendy Kamm, received an anonymous tip
that Monte Ray Romain and Bill Handel had illegally shot a cow elk near Lincoln,
Montana. The anonymous tipster reported that the cow elk was in the back of a
pickup truck concealed beneath a four-wheel all-terrain vehicle, and provided the
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license plate number of the truck. Officer Kamm contacted another game warden,
Steve Vinnege, and asked him to assist her in the case. Kamm then watched for the
vehicle at the intersection of Highways 223 and 287 while Vinnege ran computer
checks on Romain and Handel at the FWP office in Great Falls. At approximately
8:00 p.m. Officer Vinnege, accompanied by FWP intern Bill Nevens, met Officer
Kamm at the highway intersection where she was waiting to intercept the suspects.
They then proceeded to Romain's farm. Officer Kamm led the way, because she had
been to Romain's house approximately one or two weeks previously to ask Romain's
permission to cross his property to get to adjacent property to investigate a report of
a trespasser.

¶5. Romain's house is located approximately thirty-five miles north of Fort Benton
and thirty-five miles south of Chester in an isolated stretch between Fort Benton and
Chester. Access to Romain's property requires travel over eleven miles of graveled
county road. Romain's land adjoins the county road for approximately seven or eight
miles. It is fenced and marked with fluorescent orange paint in accordance with § 45-
6-201, MCA, to notify others that it is private property to which the public is
excluded. Romain's property is also bounded on one side by his cousin, Steve
Romain's, property. The private road leading directly to Romain's house from the
county road is about a quarter mile in length. There is a gate at the entrance to the
road leading to Romain's house, and weathered "no trespassing" signs are posted at
the gate but are no longer readable. Fluorescent orange paint is sprayed on at least
one of the gate posts. Romain's house is obscured from the road by trees and bushes.

¶6. When the officers arrived at the turnoff to Romain's property, it was dark.
Officer Kamm apparently looked for no trespassing signs and orange paint, but did
not notice any postings. The gate leading to Romain's house was not closed, so the
officers decided to proceed up to Romain's house.

¶7. Upon arriving at Romain's house and pulling into the driveway, the officers saw
the truck with the four-wheeler and the elk in the back. The officers could see the elk,
but they could not determine what sex the elk was. The license plates on the truck
matched the license number given by the anonymous tipster. The officers then
knocked on Romain's door, and his wife answered. She went to get Romain, and he
came to the door. Romain stepped outside to speak with the officers, and the officers
asked if they could look at the tag on the elk in the back of the truck. They explained
that they were following up on an anonymous tip, and wanted to look at the elk and

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the tag. The wardens walked over to the truck with Romain, and one of the wardens
confiscated the tag.

¶8. The officers asked Romain more questions, and Romain asked whether he was
under arrest. The officers told him he was not. They then asked Romain where he
had shot the elk, and asked him to describe the hunt. Romain told the officers that he
had shot the elk in district 422, one of the few areas where a permit to take a cow elk
is not needed. Romain also told the officers that he had shot the elk on Forest Service
land. He further told them that he could not remember the exact spot where he shot
the elk or the exact date on which he had shot it. The officers then asked Romain to
return to the kill site with them. Apparently Romain did not respond to the request
or to any further questioning.

¶9. At one point during the questioning, Romain asked if he could go into his house
to use the bathroom. He was allowed to go in alone. After questioning Romain, and
while still at Romain's residence, the wardens contacted Bill Handel via their FWP
cellular phone. His story apparently differed from Romain's. Officer Vinnege then
asked Romain to get into the passenger side of his truck and read Romain Miranda
(1)
warnings. The officers questioned Romain further. Before leaving, Officer Kamm
reiterated that Romain needed to contact her so that they could go to the kill site.

¶10. The following day, the officers obtained a search warrant to search Romain's
property for the elk. Thereafter, Officer Kamm issued Romain three citations
charging him with failure to properly validate an elk license, possession of an illegally
taken elk, and with refusal to return to the kill site. Romain was commanded to
appear before Justice Wallace Jewell, Justice of the Peace for Lewis and Clark
County Justice Court.

¶11. On February 1, 1996, Romain filed a motion to suppress statements and a
motion to suppress evidence. The Justice Court granted his motion to suppress
evidence. In support of its order, Justice Jewell relied on State v. Bullock (1995), 272
Mont. 361, 901 P.2d 61, and found that Romain had a reasonable expectation of
privacy and that, therefore, the warrantless search was improper and any evidence
gathered as a result of that search was inadmissible by virtue of the exclusionary
rule. The State appealed the Justice Court order to the First Judicial District Court
for Lewis and Clark County. The State further requested that the case be wholly
transferred to the District Court pursuant to § 46-20-103(2)(e), MCA.

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¶12. Romain filed motions with the District Court identical to those he filed in the
Justice Court. A hearing on the motions to suppress was held on May 16, 1996. The
District Court denied all of Romain's motions. In its June 7, 1996 order which denied
the motion to suppress, the District Court, like the Justice Court, found that this
Court's decision in State v. Bullock was controlling, but held that the facts of the
present case were distinguishable from those presented in Bullock. The District
Court concluded that Romain did not have a reasonable expectation of privacy on his
property.

¶13. A bench trial was held on December 16, 1996. On March 18, 1997, the District
Court found Romain guilty of all three charges. On June 26, 1997, Romain filed a
notice of appeal to this Court.

STANDARD OF REVIEW

¶14. We review a district court's conclusions of law to determine whether the court
interpreted the law correctly. See Anderson v. Werner Enter., Inc., 1998 MT 333,

¶ 6, 972 P.2d 806, ¶ 6 (citing Carbon County v. Union Reserve Coal Co. (1995), 271
Mont. 459, 469, 898 P.2d 680, 686). We review a district court's findings of fact following
suppression hearings to determine whether they are clearly erroneous. See State v. Grey
(1995), 274 Mont. 206, 209, 907 P.2d 951, 953 (citing State v. Kaluza (1993), 262 Mont.
360, 361, 865 P.2d 263, 264).

DISCUSSION

¶15. Did the District Court err when it refused to suppress evidence and statements
obtained as a result of the warrantless search of Romain's property?

¶16. The District Court found that Romain's house was secluded, and that it could
barely be seen from the road because of a shelter belt of trees and shrubs. The court
also noted that Romain's nearest neighbor was four miles away, and that Romain
testified that he did not expect people to come onto his property. Evidence was
presented at the suppression hearing which showed that Romain's property was
fenced, and that it was posted with fluorescent orange paint in accordance with § 45-
6-201(2), MCA, to notify the public that no trespassing was allowed. Testimony
further showed that Romain's driveway is one quarter mile long, and that he had a

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barbed wire gate at the entrance that was not closed on the night the FWP wardens
went to Romain's to investigate the anonymous tip.

¶17. In its order, the District Court stated that the most important evidence was that
Officer Kamm had been to Romain's house approximately one to two weeks prior to
the incident in question to ask his permission to cross his property, and at that time
Romain did not indicate that Officer Kamm needed Romain's permission to come to
his house. The court held that the "justice court was in error in its order of March 7,
1996, suppressing the seized elk and the observations of the officers." The District
Court concluded that this Court's decision in State v. Bullock (1995), 272 Mont. 361,
901 P.2d 61, was controlling but was "exactly opposite" the facts in the present case.
In Bullock, the defendant was charged with possession of an illegally killed game
animal and with unlawfully killing a game animal. See Bullock, 272 Mont. at 364, 901
P.2d at 63. In that case, we held that Article II, Section 11 of the Montana
Constitution prohibits warrantless searches and seizures on private land that falls
outside the curtilage area of a dwelling under some circumstances, including those
presented in that case. Bullock, 272 Mont. at 69-76, 901 P.2d at 61, 67. We held that
the defendant in Bullock had a reasonable expectation of privacy, and that the
warrantless search on his property was a violation of Article II, Section 11 of the
Montana Constitution. We concluded that the Montana Constitution confers a
greater right of privacy than the right of privacy granted by the U.S. Constitution.
See Bullock, 272 Mont. at 378, 901 P.2d at 72. We stated that:

[I]n 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 other
similar signs, or "by some other means [which] indicate[s] unmistakably that entry is not
permitted" (Scott, 593 N.E.2d at 1338), entry by law enforcement officers requires
permission or a warrant.

See Bullock, 272 Mont. at 384, 901 P.2d at 76. In Bullock, the defendant's property was located about seven
miles up a one-lane Forest Service road, was fenced and gated, and marked with "no trespassing" signs. The
gate was open when the officers unlawfully entered the property. See Bullock, 272 Mont. at 365, 901 P.2d at 64.
The defendant had also moved his cabin behind a hill to obscure it from passersby. See Bullock, 272 Mont. at
365, 901 P.2d at 64. Law enforcement officers had always gotten the defendant's permission to access his
property. See Bullock, 272 Mont. at 366, 901 P.2d at 64.

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¶18. We conclude that the present case is indistinguishable from Bullock in any
material respect. Romain's house is secluded and barely visible from the county road
because it is obscured by trees and shrubs. Romain did not move his house as the
defendant in Bullock did. It was not necessary. His property is fenced, properly
marked in accordance with § 45-6-201(2), MCA, and there is a gate at the entrance
with at least one gatepost spray painted fluorescent orange. There are weathered "no
trespassing" signs at the gateway to Romain's property, although they are no longer
readable. We conclude that under the circumstances of this case, Romain's
expectation of privacy was reasonable. Therefore, the officers' entry onto Romain's
property was unlawful.

¶19. The State argues that because Officer Kamm had been to Romain's house
previously, that his expectation of privacy was not reasonable. However, Officer
Kamm had come to Romain the week prior to the incident in question to ask
Romain's permission to cross his property. The state further contends that § 45-6-201
(1), MCA, required Romain to "revoke the officers' privilege to remain on the land."
Where there was no permission granted in the first instance, there is no such
requirement. Section 45-6-201(1) provides that:

Privilege to enter or remain upon land is extended either by the explicit permission of the
landowner or other authorized person or by the failure of the landowner or other
authorized person to post notice denying entry onto private land. The privilege may be
revoked at any time by personal communication of notice by the landowner or other
authorized person to the entering person.

Romain neither explicitly extended permission to Officer Kamm, nor did he fail to post
notice that entry onto his land was prohibited. Therefore, the game wardens were not
privileged to enter Romain's property, but entered his property unlawfully.

¶20. In Bullock we further held that the exclusionary rule pronounced in Wong Sun
v. United States (1963), 371 U.S. 471, 486-88, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, 445,
prohibited the use of the evidence seized as a result of the unlawful search. See
Bullock, 272 Mont. at 384, 902 P.2d at 76. The state in Bullock contended that the
Defendant allowed the state to inspect the elk, and that the evidence was, therefore,
obtained by consent and did not violate the Fourth Amendment or Article II, Section
11 of the Montana Constitution. See Bullock, 272 Mont. at 384, 902 P.2d at 76. We,

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however, concluded that even if the defendant had consented, it was after the officers
wrongfully entered his property, and that the evidence "flowed from the unlawful
intrusion and cannot be used to justify it." See Bullock, 272 Mont. at 384, 902 P.2d at
76. In Bullock, we concluded that the District Court erred when it denied the
defendant's motion to suppress evidence. See Bullock, 272 Mont. at 384, 902 P.2d at
76.

¶21. In the present case, the state likewise asserts that the information obtained from
observing Romain's elk tag was obtained with Romain's consent. The officers asked
Romain if they could see the elk tag, he apparently consented, and then the officers
looked at and seized the tag. However, as in Bullock, the consent was given only after
the officers wrongfully entered Romain's property, and therefore cannot be used
against Romain.

¶22. We conclude that the District Court erred when it denied Romain's motions to
suppress evidence and statements. We reverse the order of the District Court and the
judgment which followed, and remand for further proceedings consistent with this
opinion.

¶23. Although Romain has raised other issues regarding the constitutionality of §§ 87-
1-102 and -301, MCA, pursuant to which he was prosecuted and convicted for
refusing to return to the kill site, we decline to address those issues at this time. After
excluding all evidence which was derived from the unlawful entry onto Romains'
property, it is unclear to us whether there is a factual basis for further prosecution of
Romain. That issue is best left to the District Court on remand. If no further
prosecution is possible, then it is unnecessary to address the constitutionality of the
challenged statutes. If further prosecution is possible, we conclude that additional
factual development and briefing would be helpful to our consideration of these
issues.

/S/ TERRY N. TRIEWEILER

We Concur:

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/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER

/S/ W. WILLIAM LEAPHART

1. 1 Pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694.

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