State v. Allen

October 6 2010

DA 09-0091

IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 214

STATE OF MONTANA,

Plaintiff and Appellee,

v.

BRIAN HAYDEN ALLEN,

Defendant and Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District,
In and For the County of Hill, Cause No. DC 08-022
Honorable David Rice, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Joslyn Hunt, Chief Appellate Defender; Taryn S. Hart, Tammy A.
Hinderman, Gem Koan Mercer (argued), Assistant Appellate Defenders,
Helena, Montana

For Appellee:

Steve Bullock, Montana Attorney General; Matthew T. Cochenour
(argued), Assistant Attorney General, Helena, Montana

Gina Dahl, Hill County Attorney, Havre, Montana

Orally Argued: May 3, 2010
Submitted: May 4, 2010
Decided: October 6, 2010

Filed:

__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1 A Hill County jury convicted Brian Hayden Allen (Allen) of two counts of assault

with a weapon and one count of criminal endangerment for beating Louis Escobedo

(Escobedo) with a pistol and firing the pistol in a residential neighborhood. Allen

appeals the conviction, alleging that the District Court committed reversible error by

denying his challenge for cause of a prospective juror, denying his motion to suppress

recorded telephone conversations, and denying his request for a jury instruction on

accomplice testimony. We reverse and remand for a new trial.

¶2 We address the following issues on appeal:

¶3 1. Whether the District Court abused its discretion when it denied Allen’s

challenge for cause.

¶4 2. Whether the District Court erred when it denied Allen’s motion to suppress a

warrantless recording of a telephone conversation between Allen and a confidential

informant.

¶5 3. Whether the District Court abused its discretion when it denied Allen’s

request for a jury instruction on accomplice testimony.

FACTUAL AND PROCEDURAL BACKGROUND

¶6 In February 2008 the State charged Allen with four counts of assault with a

weapon and one count of criminal endangerment, all felonies. The State later added a

count of felony intimidation. According to the supporting affidavit, the charges (save for
2
the first count of assault with a weapon, which was eventually severed and then

dismissed) arose from an incident that occurred on the night of January 27, 2008, in

Havre, Montana.

¶7 According to the allegations, on that night Allen used a pistol to threaten and then

bludgeon (or, “pistol-whip”) Escobedo. The affidavit sketched the following chronology

of events. Allen, getting increasingly drunk at the Shanty Bar in Havre, dialed Kristin

Golie (Golie) (who was, unbeknownst to Allen, a police informant, working with the

local drug task force) to chauffer him to the trailer house where Escobedo was babysitting

his nieces. Upon arriving at the trailer house, Allen and Golie somehow (the affidavit

glosses over this) drew Escobedo into the backseat of the car. Allen pointed the pistol to

Escobedo’s face and demanded money owed to him. Escobedo did not have the money,

so Allen struck him repeatedly in the head with the pistol, causing him briefly to lose

consciousness. During the fray, Allen fired the pistol, shooting a hole through the car’s

rear window. Eventually Escobedo was released, and Allen and Golie returned to the

Shanty briefly before retiring to their separate residences for the evening. At numerous

points during the incident, Allen also allegedly pointed the gun at Golie and threatened to

kill her. At trial Allen testified and admitted to this basic storyline, with two critical

exceptions: (1) Allen denied using or discharging a gun during the altercation, and

(2) Allen denied ever threatening Golie.

¶8 As mentioned above, Golie was a confidential informant (CI), and she aided a law

enforcement investigation of Allen. As a CI, Golie surreptitiously recorded her cell
3
phone conversations with Allen. Law enforcement did not obtain a search warrant to

record the conversations at issue. Before trial, Allen moved (pursuant to State v. Goetz,

2008 MT 296, 345 Mont. 421, 191 P.3d 489) to suppress these warrantless recordings,

arguing that they were obtained in violation of his rights under the Montana Constitution

to privacy and to be free from unreasonable searches and seizures. The State opposed the

motion, responding that no constitutionally cognizable search had actually occurred

because Allen had no expectation of privacy in his cell phone calls. In fact, the State

proclaimed that “one can never have an expectation of privacy in a phone conversation,”

since existing technology makes it possible for third-parties to eavesdrop on telephone

conversations. Further, the State added, society is not willing to recognize as reasonable

an expectation of privacy in phone conversations.

¶9 The District Court held a hearing on the motion. Golie and Allen testified. Golie

testified that she was a CI involved in an investigation of Allen and that she recorded

calls with Allen at the behest of law enforcement. Golie was usually alone during the

calls, but occasionally law enforcement or family and friends were present. During the

phone calls, Golie could also hear voices and other sounds in the background, though the

only voice she could identify was that of Allen’s wife. Allen in turn testified that he was

unaware that Golie was recording their phone conversations and that he believed the

conversations were private. Allen never heard other background voices when he spoke

with Golie. Allen also testified that his cell phone would alert him if the person on the

other end was using the speaker phone and that he could tell by the echo whether
4
someone was listening on an extension line. Thus, he believed he could detect whether

any third parties were overhearing his telephone calls. (Although the testimony indicated

that numerous calls were recorded, only one of the calls is at issue.)

¶10 The District Court denied Allen’s motion. The court observed that Allen “had a

subjective expectation of privacy in the cell phone calls he made to Golie and the calls

she made to him.” Nevertheless, the court concluded that society is unwilling to

recognize as reasonable an expectation of privacy in telephone conversations. Unlike

face-to-face conversations, the court reasoned, a party to a telephone conversation can

never be sure who may be listening to the conversation on the other end. The court also

noted Golie’s testimony that Allen was apparently in a public setting during portions of

his call to her because she could hear voices in the background. Thus, “[w]hether he

made the calls or received them from Golie, it was his choice to use the words he did and

that left him at risk that someone would hear them or Golie would be recording them.”

Accordingly, the court concluded that the State could present the recordings at trial

because no search requiring a warrant had occurred.

¶11 The case went to trial in October 2008. During voir dire (jury selection) the

parties disputed whether the court should eliminate a prospective juror, Dennis Morgan,

on account of his being partial to the prosecution. Upon the prosecutor’s initial inquiry,

Morgan declared that he had made up his mind about the case because he had read the

newspaper, he considered himself “a law-and-order sort of person,” and he knew the

police officers involved in the case both professionally and personally.
5
¶12 The prosecutor attempted to rehabilitate Morgan and explained the need for jurors

to hear all the evidence before deliberating. She asked, “So if I don’t prove the case are

you saying that you’re still going to find him guilty?” Morgan responded that he would

not. But under further examination by the prosecution and the defense, Morgan said that

he would be “a very impatient juror” if the trial lasted more than two days and that, if it

did last more than two days, he would summarily convict Allen to—as the prosecutor put

it—“hurry up and get out of here.” Morgan also repeated that he would be “a great juror”

for the prosecution, that he was “very law and order,” and that he “kn[ew] all the

officers.” When the defense had its turn to question the jurors, Allen’s counsel

immediately asked Morgan if he had serious doubts about his ability to be fair in the case.

Morgan confirmed that he did.

¶13 Defense counsel then challenged Morgan for cause, asking the court to remove

him from the jury pool. The prosecution resisted, “The panelist [h]as indicated that he

will listen to the evidence before making his determination and he’s already indicated

that he’s not automatically going to find guilt or innocence until then.” The court denied

the challenge, explaining, “Mr. Morgan has said that he had some biases towards that, but

I don’t think he indicated that he couldn’t be fair and listen to the evidence.” Allen

subsequently used a peremptory challenge to remove Morgan from the panel and

exhausted his peremptory challenges.

¶14 After the jury was selected, the parties gave opening statements and then presented

evidence and testimony. Witnesses called by the State during its case in chief included
6
Escobedo, Golie, the bartender (Jodi Pickens) and a patron (Shane Munyan) at the Shanty

Bar on the evening of the assault, one of Allen’s friends (Timothy Vigliotti), and various

members of the Havre Police Department. During Golie’s testimony, the State

introduced the recorded conversation between Golie and Allen that was the subject of

Allen’s motion to suppress. The State’s witnesses described a story that closely

paralleled the account from the State’s charging documents—that Allen attacked

Escobedo with a gun and threatened Golie. Allen, testifying in his own defense, agreed

that he had attacked Escobedo in Golie’s car, while Golie looked on. But Allen

steadfastly denied using a gun in the attack and denied threatening Golie at any point.

¶15 Also in dispute was whether Golie was an accomplice to the attack. Golie testified

at trial that though she agreed to drive Allen to meet Escobedo, she believed that Allen

intended only to acquire narcotics from Escobedo and then go home. Pickens, however,

testified that Golie was instigating Allen to “go take care of business at Louis’s.” Allen

also testified that Golie knew he intended to assault Escobedo: “She was all for it.

Absolutely. She knew exactly what was going on.” Later, on cross-examination Allen

was more equivocal, testifying:

She knew the situation. She knew—she didn’t know that that’s why I
wanted to go there, because I was mad and I wanted to assault him. She
didn’t know that at the time, but she knew I wanted to go to Louis’s.
. . . .
I called her to come and get me and if he didn’t have my marijuana or my
money, I was going to beat him up.

7
The parties agreed that Golie drove Allen to meet Escobedo and, upon arriving, beckoned

Escobedo to approach the car. The witnesses (Allen, Escobedo, and Golie) also testified

that Golie immediately began scolding Escobedo for talking to others about her.

Escobedo further testified (but Golie denied) that Golie threatened him, saying that “this

stuff [talking about her] could get me killed and stuff like that.” After the assault, Golie

drove Allen back to the Shanty bar.

¶16 Following presentation of the witnesses, the jury left the courtroom, and the

parties and the District Court settled the jury instructions. The only instruction at issue

on appeal is “Defendant’s Proposed Instruction No. 3,” regarding the testimony of Golie.

The instruction, based on Montana Criminal Jury Instruction 1-112, read:

Testimony has been presented that the witness Kristen Golie may be legally
accountable for the offense charged in this case. In this respect, you are to
be guided by the following rules of law:

1. A person is legally accountable for the conduct of another when either
before or during the commission of an offense with the purpose to
promote or facilitate such commission, she solicits, aids, abets, agrees,
or attempts to aid such other person in the planning or commission of
the offense.

2. It is a question of fact for the jury to determine from the evidence and
from the law as given you by me whether or not in this particular case
the witness Kristen Golie is or is not legally accountable within the
meaning of the law.

3. The testimony of one legally accountable ought to be viewed with
distrust.

4. A conviction cannot be had on the testimony of one legally accountable
unless it is corroborated by other evidence which in itself, and without
the aid of the testimony of the person legally accountable, tends to
8
 connect the Defendant with the commission of the offense or offenses,
and the corroboration is not sufficient if it merely shows the
commission of the offense or the circumstances thereof.

¶17 The District Court questioned the propriety of this instruction, given that there was

testimony, in addition to that of Golie, corroborating the charged offenses against

Escobedo. The State objected that there was insufficient evidence that Golie was legally

accountable (i.e., an accomplice). Ultimately, the court denied the instruction, reasoning

that it could confuse the jurors and also that it was improper since Allen had admitted to

attacking Escobedo. The court said that Allen was free to challenge the credibility of

Golie in his closing argument.

¶18 The parties then presented closing arguments. The State argued that it had met its

burden on each count. The defense tried to raise doubts. During its rebuttal, the State

referred extensively to incriminating statements made by Allen in the conversation that

Golie had secretly recorded. After nearly three hours of deliberation, the jury returned a

verdict, convicting Allen of two counts of assault with a weapon for attacking Escobedo

and one count of criminal endangerment for firing the pistol in the trailer court. The jury

found Allen not guilty of assaulting Golie with a weapon or intimidating her. At a

subsequent sentencing hearing, the District Court sentenced Allen to thirty years in

prison. The court also awarded restitution to Escobedo and Golie, and recommended

myriad conditions in the event Allen is paroled.

¶19 Allen appeals.

STANDARD OF REVIEW
9
¶20 We review for abuse of discretion a district court’s denial of a challenge for cause

of a veniremember (prospective juror). State v. Robinson, 2008 MT 34, ¶ 7, 341 Mont.

300, 177 P.3d 488. “If a district court abuses its discretion in denying a challenge for

cause, the defendant uses a peremptory challenge to remove the juror, and also uses all of

his peremptory challenges, we will reverse the judgment and order a new trial.” Id.

¶21 We review a district court’s denial of a motion to suppress to determine whether

the district court’s findings of fact are clearly erroneous and whether its interpretation and

application of the law is correct. State v. Goetz, 2008 MT 296, ¶ 9, 345 Mont. 421, 191

P.3d 489.

¶22 Generally, we review jury instructions in a criminal case to determine if, when

taken as a whole, they fully and fairly instruct the jury on the applicable law. State v.

Dewitz, 2009 MT 202, ¶ 66, 351 Mont. 182, 212 P.3d 1040. However, under § 26-1-

303(4), MCA, it is error for a district court to fail to give an instruction on accomplice

testimony when (1) an accomplice gives direct testimony, (2) the defendant requests such

an instruction, and (3) the instruction is not inconsistent with the defendant’s claim of

innocence. See State v. Hall, 2003 MT 253, ¶ 30, 317 Mont. 356, 77 P.3d 239; State v.

Johnson, 257 Mont 157, 163, 848 P.2d 496, 499 (1993).

DISCUSSION

¶23 1. Whether the District Court abused its discretion when it denied Allen’s juror

challenge for cause.

10
¶24 In denying Allen’s challenge for cause, the District Court reasoned that

prospective juror Morgan “said that he had some biases towards that, but I don’t think he

indicated that he couldn’t be fair and listen to the evidence.” This was based on

Morgan’s negative response to the prosecutor’s question whether Morgan would convict

Allen if the prosecutor did not prove the case. On appeal the State argues that this was a

permissible discretionary determination by the District Court to which we should defer.

We disagree.

¶25 In a criminal trial, a party may challenge a prospective juror for “having a state of

mind in reference to the case or to either of the parties that would prevent the juror from

acting with entire impartiality and without prejudice to the substantial rights of either

party.” Section 46-16-115(2)(j), MCA. This rule is rooted in the fundamental right of

criminal defendants to be tried by an impartial jury. State v. Golie, 2006 MT 91, ¶ 29,

332 Mont. 69, 134 P.3d 95; U.S. Const. amend. VI; Mont. Const. art. II, § 24. A district

court abuses its discretion if it fails to grant a challenge for cause when a juror’s

statements during voir dire raise serious doubts about the juror’s ability to be fair and

impartial. Golie, ¶¶ 28, 30; State v. Good, 2002 MT 59, ¶ 53, 309 Mont. 113, 43 P.3d

948; see also State v. Crosley, 2009 MT 126, ¶ 32, 350 Mont. 223, 206 P.3d 932 (citing

cases), abrogated in part on other grounds, State v. Robinson, 2010 MT 108, ¶ 12 n. 1,

356 Mont. 282, ___ P.3d ___.

¶26 In reality, few people are entirely impartial regarding criminal matters, and a

district court is not required to remove a prospective juror for cause if the juror
11
convincingly affirms his ability to lay aside any misgivings and fairly weigh the

evidence. State v. Robinson, 2008 MT 34, ¶ 10, 341 Mont. 300, 177 P.3d 488. Whether

a prospective juror can do this is a determination that a district court makes based on the

totality of the circumstances. Id. at ¶ 8. District courts, able to observe the disposition of

prospective jurors, are best placed to make this qualitative determination, for which we

grant them a degree of deference. State v. Hart, 2009 MT 268, ¶ 13, 352 Mont. 92, 214

P.3d 1273. To guide district courts in evaluating possible impartiality, we have observed

that a prospective juror’s spontaneous and unprompted statements are the most

meaningful. State v. Braunreiter, 2008 MT 197, ¶ 9, 344 Mont. 59, 185 P.3d 1024. A

district court or litigant may ask open-ended questions to allow a veniremember to clarify

initial, suspect statements and thereby allay concerns about impartiality. Robinson, ¶ 11.

Conversely, “coaxed recantations” in response to leading questions by counsel “fail to

demonstrate” the impartiality required of jurors. Braunreiter, ¶ 11.

¶27 Here, Morgan’s statements during voir dire, viewed as a whole, raised serious

doubts about his ability to be fair and impartial. When the prosecutor asked him if he had

made up his mind about the case, Morgan responded that he had. Morgan explained that

he had read newspaper accounts of the incident, that he was a “law-and-order sort of

person,” and that he would be partial to testimony by police officers involved in the case,

whom he knew professionally and personally. Morgan’s spontaneous explanation of why

he had made up his mind in the case and of why he would be partial carries significant

weight. Morgan also expressed an unwillingness to consider all the evidence before
12
reaching a conclusion about the case and eventually agreed with Allen’s counsel that he

had serious doubts about his ability to be fair in the case.

¶28 Further, and contrary to the State’s argument, subsequent attempts by the

prosecution to rehabilitate Morgan failed to convincingly demonstrate Morgan’s ability to

be impartial. After Morgan voiced his initial misgivings about his ability to be impartial,

the prosecutor asked, “So if I don’t prove the case are you saying that you’re still going to

find him guilty?” And Morgan responded, “No. No, I wouldn’t.” This, the quintessential

coaxed recantation, was inadequate to rehabilitate Morgan and show that he could lay

aside his bias. In effect, the prosecutor asked Morgan if he would convict Allen without

some showing of evidence by the State. Morgan could realistically be expected only to

answer this leading question negatively, as he did. See Good, ¶¶ 51, 55 (indicating

unlikelihood that prospective juror would challenge judge’s loaded question).

¶29 Morgan’s subsequent statements were more telling. He continued to emphasize

his pro-police bias, which he evidently could not set aside (“[I] guess I believe in our law

enforcement community.” “[I]’m very law and order.”). The implication of these

statements is that Morgan would give disproportionate weight to any law enforcement

testimony, to the detriment of any testimony from the defense. Additionally, in response

to continued questioning by the prosecutor, Morgan repeatedly displayed a disinclination

to consider all the evidence presented. He stated that would be a “very impatient juror if

this thing lasts over two days.” Then, after the prosecutor asked him if he would find

Allen “guilty because you want to hurry up and get out of here,” Morgan responded, “If it
13
lasts more than two days, yes.” Finally, the prosecutor probed, “You understand that you

won’t get to deliberate until we are done with the case?” Morgan, making no concession,

replied, “And again, if it lasts more than two days, that’s going to be a problem.”

Apparently exasperated, the prosecutor conceded (“Okay. Okay.”) and moved on to other

jurors. The prosecutor’s attempts at rehabilitation were to no avail.

¶30 The District Court’s failure to grant Allen’s challenge for cause was an abuse of

discretion. Because Allen used a peremptory challenge to remove Morgan and then

exhausted his peremptory challenges, we reverse and remand for a new trial. Robinson,

¶ 7.

¶31 Because the remaining issues may arise on retrial, we address them below. State

v. Barosik, 2009 MT 260, ¶ 3, 352 Mont. 16, 214 P.3d 776.

¶32 2. Whether the District Court erred when it denied Allen’s motion to suppress a

warrantless recording of a telephone conversation between Allen and a confidential

informant.

¶33 At trial the State presented the warrantless recording of a phone conversation

between Allen and Golie that Golie had recorded at the behest of law enforcement. Allen

maintains that this was error and that the recording should have been suppressed.

¶34 The State argues on appeal that under existing precedent, police need not obtain a

warrant to record telephone conversations, and consequently, that the District Court

properly denied Allen’s motion to suppress. The State further contends that even if the

Court reconsiders this precedent, the District Court’s denial of Allen’s motion was still
14
proper because (1) a constitutionally cognizable search did not occur and (2) if one did,

no warrant was required in light of Golie’s consent.

A. Evolution of Jurisprudence on Electronic Monitoring by Police

¶35 Initially we must determine whether to revisit our jurisprudence regarding the

warrantless electronic monitoring and recording of telephone conversations by law

enforcement with the consent of one party (or, “warrantless participant recording”). A

line of cases, beginning with State v. Coleman, 189 Mont. 492, 502-03, 616 P.2d 1090,

1096 (1980), and continuing through State v. Jones, 2008 MT 440, ¶¶ 10-12, 347 Mont.

512, 199 P.3d 216, has condoned warrantless participant recording. Allen contends that

the seminal case, Coleman, was wrongly decided and should therefore be overruled,

along with its progeny. We agree that the reasoning in Coleman was flawed and that, in

light of Goetz, we should reassess our jurisprudence on this topic.

¶36 To critique Coleman, we must first examine two earlier cases involving electronic

monitoring: State v. Brackman, 178 Mont. 105, 582 P.2d 1216 (1978), overruled, State v.

Brown, 232 Mont. 1, 755 P.2d 1364 (1988), overruled in part, Goetz, ¶ 24, and State v.

Hanley, 186 Mont. 410, 608 P.2d 104 (1980). In Brackman, police—acting without a

warrant—monitored and recorded a face-to-face conversation between the defendant and

a police informant in a public parking lot by placing an electronic monitoring device on

the informant. Brackman, 178 Mont. at 107, 582 P.2d at 1217. The State subsequently

charged the defendant with intimidation. Id. In response to a motion in limine by the

defendant, the district court suppressed the taped conversations for having been obtained
15
in violation of the defendant’s constitutional rights. Id. On appeal, we considered

whether warrantless participant monitoring and recording violates the United States or

Montana Constitutions. Id. at 108, 582 P.2d at 1217.

¶37 We held that under the plurality opinion in United States v. White, 401 U.S. 745,

91 S. Ct. 1122 (1971) (plurality), such surveillance does not violate the United States

Constitution. Brackman, 178 Mont. at 117, 582 P.2d at 1222. However, we further

concluded that warrantless participant recording of a face-to-face conversation does

violate the Montana Constitution. Id. We indicated that the express right to privacy

(“Article II, Section 10” or “Section 10”) and the right to be free from unreasonable

searches (“Article II, Section 11” or “Section 11”) of the Montana Constitution, read in

conjunction, provide greater protection to people in Montana than does the Fourth

Amendment of the United States Constitution. Brackman, 178 Mont. at 113-17, 582 P.2d

at 1220-22; accord Goetz, ¶ 14; see also U.S. Const. amend. IV; Mont. Const. Art. II,

§§ 10-11. We reasoned that effective law enforcement is not hindered by requiring

police to obtain a warrant prior to conducting participant recording. Brackman, 178

Mont. at 115-16, 582 P.2d at 1221-22. We also agreed with the reasoning of Justice

Harlan’s dissent in White that electronic monitoring of a conversation is a greater

invasion of privacy than allowing police to merely use a confidential informant (without

a monitoring or recording device) and that, consistent with “the goals and values of our

political system,” such surveillance should be subject to warrant requirements, not merely

16
the self-restraint of law enforcement. Id. at 115, 582 P.2d at 1221 (paraphrasing White,

401 U.S. at 785, 91 S. Ct. at 1143 (Harlan, J., dissenting)).

¶38 Two years later we decided Hanley. In that case an undercover police officer—

again, acting without a warrant—recorded a telephone call with the defendant and two

other parties in which they arranged a drug sale. Hanley, 186 Mont. at 412, 608 P.2d at

105-06. The police then secured a warrant for the undercover officer to electronically

monitor and record the actual sale. Id. at 412, 608 P.2d at 106. Following the sale, the

defendant was arrested and charged with the criminal sale of dangerous drugs. Id. at 413,

608 P.2d at 106. The defendant moved to suppress the recorded telephone conversation

and all other evidence, which he argued was obtained as a result of the telephone

recording. Id. The district court denied the defendant’s motion. Id. At trial the district

court refused to admit the warrantless recording of the telephone conversation, but

allowed the prosecution to admit the recordings of the actual drug sale, as well as the

drugs seized. Id. at 413, 417-18, 608 P.2d at 106, 108. After being convicted, the

defendant appealed, inter alia, the district court’s denial of his motion to suppress. Id. at

413, 608 P.2d at 106.

¶39 The relevant issue on appeal was whether the district court correctly denied the

motion to suppress. Id. at 413, 608 P.2d at 106. We found no error and affirmed. Id. at

422-23, 608 P.2d at 111. In reaching this conclusion, we first rejected the defendant’s

argument that the recording of the drug sale (for which the police had obtained a warrant)

and the drugs seized were the rotten fruit of an illegal search and therefore inadmissible.
17
Id. at 418, 608 P.2d at 108-09; see also Wong Sung v. United States, 371 U.S. 471, 484,

83 S. Ct. 407, 416 (evidence obtained as direct or indirect result of unconstitutional

search is inadmissible). This was because the police relied, not on the warrantless

telephone recording, but on the testimony of the undercover agent to obtain the warrant.

Id. at 418, 608 P.2d at 108-09. Thus, the undercover agent was an independent source of

the information necessary to obtain the warrant, obviating the warrantless telephone

recording. Hanley, 186 Mont. at 422, 608 P.2d at 110. For this same reason, we

concluded that Brackman (and, thus, analysis under the Montana Constitution) did not

apply. Id. at 418, 608 P.2d at 109. Nevertheless, as a nod toward Brackman, we

observed that “if the police had relied on the recorded tape of the telephone conversation

to obtain evidence against appellant, the argument could be made that such evidence

should have been suppressed.” Id. at 418, 608 P.2d at 108.

¶40 The defendant apparently also challenged the legality of the recording of the drug

sale (for which the state had a warrant) under federal law (Title III of the Omnibus Crime

Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522). See Hanley, 186 Mont.

at 419, 608 P.2d at 109 (“The next issue raised is whether federal statutes prohibit the

monitoring and tape recording of a conversation in which one of the participants consents

. . . .”). We rejected the defendant’s challenge, observing that 18 U.S.C. § 2511(2)(c)

expressly permits participant recording. Hanley, 186 Mont. at 419-20, 608 P.2d at 109.

We further cited the rationale of the plurality in White (though it was not a statutory

analysis), which also condoned such police recording. Id. at 420, 608 P.2d at 109. Next
18
(apparently addressing the legality of the recording under the United States Constitution)

we obliquely noted that because the defendant “could have no reasonable expectation that

the person he was dealing with in this drug-related matter was not in fact an informer,”

and because the police had obtained a warrant, in any case, to record the drug sale, “no

interest legitimately protected” by the United States Constitution was involved. Id. at

421, 608 P.2d at 110. Finally we added, without explanation, that such monitoring was

also permissible under § 45-8-213(1)(c), MCA. Thus, we resolved the issue without

addressing the protections of the Montana Constitution.

¶41 That same year we decided Coleman. That decision involved consolidated cases,

only the second of which is relevant to the present analysis. In that case, police

monitored and recorded a telephone call between the defendant and a consenting CI.

Colman, 189 Mont. at 502, 616 P.2d at 1095. This apparently exceeded the scope of the

warrant. Id. The defendant was subsequently arrested and convicted of possession of

dangerous drugs. Id. at 498, 616 P.2d at 1093. On appeal, the defendant argued that the

recording of the telephone conversation violated his right to privacy under the Montana

Constitution. Id. at 502, 616 P.2d at 1096. In the space of one paragraph, we rejected

this argument on the basis of Hanley—even though Hanley had avoided the question of

the legality under the Montana Constitution of warrantless participant monitoring. Id. at

502-03, 616 P.2d at 1096. We interpreted Hanley as holding “that interception of

telephone conversations by police officers is legal if one of the parties to the conversation

consents.” Id. Next we distinguished Brackman, reasoning that unlike the participants in
19
that case (who conversed face-to-face in an open parking lot), a party to a telephone

conversation cannot have a reasonable expectation of privacy because he cannot see the

party on the other end and cannot be sure whether the conversation is being overheard.

Id. at 502-03, 616 P.2d at 1096. We then abruptly concluded, “Neither the Montana nor

the federal constitution prohibits such monitoring where one of the participants

consents.” Id. at 503, 616 P.2d at 1096.

¶42 The difficulties with this analysis are apparent, even before considering the

subsequent ruling in Goetz. First, the Coleman Court cited (as the State here recognizes)

the analysis in Hanley of federal statutes as the controlling analysis under the Montana

Constitution. The Coleman Court then repeated this mistake when it cited 18 U.S.C.

§ 2511(2)(c) to support its conclusion that the Montana Constitution does not prohibit

warrantless consensual participant monitoring. Finally, we did not elaborate the

questionable (but categorical) assertion that one can have no reasonable expectation of

privacy in any communications where one cannot see the other participant.

¶43 Despite the opinion’s analytical shortcomings, we cited Coleman favorably twice

in the 1980s. In State v. Canon, 212 Mont. 157, 162-63, 687 P.2d 705, 707-08 (1984),

we affirmed a district court’s denial of a motion to suppress a warrantless recording of a

telephone conversation between the defendant and a consenting CI. Without independent

analysis, we cited the abovementioned paragraph from Coleman and concluded: “We

hold that the . . . telephone tapes were properly admitted in evidence.” Id. at 162-63, 687

P.2d at 708. Four years later, in State v. Brown, 232 Mont. 1, 6-7, 755 P.2d 1364, 1368
20
(1988), overruled in part, Goetz, ¶ 24, we again addressed the issue of warrantless

participant monitoring. There, citing Hanley, Coleman, and Canon, we announced that

consistent with the Montana Constitution, “if one party to a telephone conversation freely

consents, the conversation can be electronically monitored and recorded without a

warrant, and the evidence obtained is admissible in a subsequent criminal trial.” Id. at 7,

755 P.2d at 1368.1

¶44 We conclude that the weak analytical underpinnings of Coleman do not survive

our landmark ruling in Goetz. The facts in Goetz resemble those of the abovementioned

cases. Police surreptitiously and without a warrant monitored and recorded conversations

between the defendants and CIs, who were outfitted with electronic recording devices.

Goetz, ¶¶ 5, 7. One conversation took place in one defendant’s home, and another, in the

other defendant’s car. Id. After the defendants were arrested and charged for distributing

dangerous drugs, both moved to suppress evidence obtained from the electronic

monitoring. Id. at ¶¶ 6, 8. The district court denied the motions, and the defendants then

pled guilty (reserving their rights to appeal) and appealed the denial of the motions to

1
The Dissent incorrectly asserts that Hanley, Jones, and State v. Solis, 214 Mont. 310, 693 P.2d
518 (1984), held that warrantless participant monitoring is permissible under the Montana
Constitution. Dissent, ¶ 150. However, as mentioned above, the Court in Hanley declined to
address the legality of warrantless participant monitoring under the Montana Constitution. In
Solis, the Court actually rejected the argument that warrantless participant monitoring of face-to-
face conversations is constitutionally permissible with the consent of one party. Solis, 214 Mont.
at 315-320, 693 P.2d at 520-23 (plurality); Solis, 214 Mont. at 320, 693 P.2d at 523 (Sheehy,
Haswell, Weber, JJ., specially concurring). Indeed, foreshadowing today’s ruling, the plurality
in Solis recognized that Coleman and Cannon “may have gone farther than the Constitutional
Convention delegates intended.” Id. at 318, 693 P.2d at 522 (plurality). Finally, in Jones, the
Court declined to address the merits of the appellant’s constitutional challenge on account of
inadequate briefing; thus, there was no constitutional holding. Jones, at ¶¶ 10-12.
21
suppress. Id. On appeal we considered whether warrantless participant recording of

face-to-face conversations with CIs violated the defendants’ constitutional rights under

Section 10 and Section 11, despite the CIs’ consent to the monitoring. Id. at ¶ 3.

¶45 We first addressed ostensibly conflicting precedent in Brown and Solis on the

stated issue. Goetz, ¶¶ 15-24. We determined that since there was not a majority of the

Court addressing the protections of the Montana Constitution in Solis, it was not

controlling precedent. Id. at ¶ 18. However, we also declined to apply the rule from

Brown, which had overruled Brackman in part and held that police need not obtain a

warrant to monitor and record an in-person conversation if one party to the conversation

consents. Instead, we concluded that Brown offered “little, if any, guidance” because of

its reliance on federal jurisprudence in interpreting Section 10 (right to privacy) and

Section 11 (right to be free from unreasonable searches and seizures) of the Montana

Constitution. Id. at ¶ 24. Accordingly, we overruled Brown and examined “anew” the

issue of warrantless electronic monitoring under the provisions of the Montana

Constitution. Id. We then engaged in a three-part analysis, giving much weight to the

individual’s right to privacy and the concerns about privacy expressed by the delegates at

the Montana Constitutional Convention. See id. at ¶¶ 28-54. Ultimately, we concluded

that the recordings were warrantless searches that violated Sections 10 and 11, and that

the district court erred in denying the defendants’ motions to suppress. Id. at ¶ 54.

¶46 Here, as in Goetz, we find our existing precedent on the dispositive issue wanting.

Accordingly, we will address anew whether the surreptitious, warrantless participant
22
recording of Allen’s telephone conversation with Golie violated Sections 10 and 11.

Coleman, like Brown, analyzed this issue without giving any particularized consideration

to the unique provisions of the Montana Constitution and merely adopted a rule identical

to the federal interpretation of the Fourth Amendment of the United States Constitution.

Coleman, 189 Mont. at 502-03, 616 P.2d at 1096. No case following Coleman has

provided the analysis of the Montana Constitution that was lacking in Coleman. See

Jones, ¶¶ 9-12, Brown, 232 Mont. at 6-7, 755 P.2d at 1368; Canon, 212 Mont. at 162-63,

687 P.2d at 707-08. Furthermore, as mentioned above, Coleman misread Hanley, which

avoided analyzing the Montana Constitution, and cited a federal statute to support its

interpretation of the Montana Constitution. Coleman, 189 Mont. at 502-03, 616 P.2d at

1096. As such, we cannot accept Coleman as the final word on the scope of the

fundamental rights under the Montana constitution.

B. Analysis under Goetz

¶47 The Montana Constitution expressly protects the right to privacy of people in this

state: “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. II, § 10. The constitution further provides that “[t]he people shall be secure in their

persons, papers, homes and effects from unreasonable searches and seizures.” Id. at § 11.

Read together, Sections 10 and 11 provide robust protection to people in Montana against

government intrusions. See Goetz, ¶ 14 (noting that together these provisions provide

greater protection against government searches than the federal Fourth Amendment).
23
When a state action implicates these rights, we undertake a three-part analysis to

determine whether the action is constitutional. Goetz, ¶ 27. First, we determine “whether

the person challenging the state’s action has an actual subjective expectation of privacy.”

Id. Second, we determine “whether society is willing to recognize that subjective

expectation as objectively reasonable.” Id. If, after the first two steps, we conclude that

the defendant did not have a subjective expectation of privacy or that society is unwilling

to accept the expectation as reasonable, then no search (as contemplated by the Montana

Constitution) has occurred: the police activity in question is not limited by the Montana

Constitution, and (absent controlling statute) police may conduct the activity at their

discretion, checked only by their own self-restraint. See State v. Siegal, 281 Mont. 250,

274, 934 P.2d 176, 190 (1997), overruled in part on other grounds, State v. Kuneff, 1998

MT 287, ¶ 19, 291 Mont. 474, 970 P.2d 556. However, if there is a subjective

expectation of privacy that society is willing to accept as reasonable, then the police

conduct constitutes a search, subject to constitutional safeguards. Goetz, ¶ 27. We then

consider the third step: whether the state action was justified by a compelling state

interest or was undertaken with “procedural safeguards such as a properly issued search

warrant or other special circumstances.” Id.

C. Subjective Expectation of Privacy

¶48 The touchstone of subjective expectations of privacy is not some physical location,

but rather an individual’s desire to keep some aspect of his or her life secure from the

perception of the general public. Goetz, ¶ 28; see also Katz v. United States, 389 U.S.
24
347, 351, 88 S. Ct. 507, 511 (1967) (“[T]he Fourth Amendment protects people, not

places.”). “Where a person has gone to considerable trouble to keep activities and

property away from prying eyes, the person evinces a subjective expectation of privacy in

those activities and that property.” Goetz, ¶ 29. Furthermore, to maintain a subjective

expectation of privacy in an activity or property, a person need not take extraordinary

precautions to shield that activity or property from the public. See Wayne R. LaFave,

Search and Seizure: A Treatise on the Fourth Amendment, vol. 1, § 2.1(c), 438-39 (4th

ed., Thompson West 2004). Rather the focus of the inquiry should be on the “degree of

public exposure” that occurs. Id. at 439 n. 95.

¶49 Here, we agree with the District Court that Allen expressed a subjective

expectation of privacy in his telephone conversation with Golie. Allen testified at the

suppression hearing that he did not know that his conversation with Golie was being

recorded and that he believed the conversation was private. Allen also testified that he

believed that Golie was not using the speaker phone function on her phone and that no

third party was using an extension line to overhear the conversation. The recording of the

telephone conversation itself further evidences Allen’s desire to keep the substance of his

conversation away from any spying ears of the general public. First, because the

conversation was telephonic, half of the conversation was entirely inaudible, making the

substance of the conversation poorly intelligible, at best, to any outside listener. Second,

it is apparent from the recording that Allen was moving while conversing with Golie: it is

highly unlikely that any listener would glean any intelligible information from
25
overhearing a passing snippet spoken by one party to a conversation. Third, during the

brief intervals in the conversation when background voices are audible, Allen limited his

speech to innocuous platitudes, conveying no information about the topics that he and

Golie were discussing (their relationship following the assault on Escobedo). The degree

of police intrusion into Allen’s privacy by electronically recording the conversation far

exceeded the degree to which Allen knowingly exposed this conversation to the public

(passing snippets). We conclude that Allen had a subjective expectation of privacy that

the conversation was not being surreptitiously recorded by a police informant.

¶50 The State argues that Allen had no subjective expectation of privacy because at

one juncture in the recorded conversation he expressed an unwillingness to discuss

certain information over the phone. The State cites the portion of the conversation when

Golie asked Allen how he would be able to finish a tattoo that he started for her if he

were to leave Havre. Allen indicated that she could meet him, and the following

exchange occurred:

GOLIE: How am I supposed to do that when you won’t even tell me
where you’re at?
ALLEN: I’ll tell you right where I’m at, where I’m going and
everything, but I’m not going to do it over the phone, and certainly with no
one else around.
GOLIE: That’s fine.
. . . .
ALLEN: But no, in that situation I would bring you to the town
where I am, but I would damn [sure] blindfold you before I took you to my
house. I’ll blindfold anybody going to my house. No one’s going to know
exactly where I live. Nobody. Because of what I’ll be doing. There’s no
way. I don’t want anyone to know where it is ‘cause I don’t want to have
to go through the whole situation I just went through to find out who spoke
26
 or who talked or whatever, you know. I’m not going to do that. If anything
like that happens, I’ll know exactly who did it.

¶51 Contrary to the State’s argument, this exchange does not indicate that Allen had no

subjective expectation of privacy in his phone conversation with Golie. The fact that

Allen was especially paranoid about divulging where he lived does not prove that he

subjectively expected his conversation to be open to the public. The above-quoted

exchange indicates that Allen was unwilling to communicate his whereabouts to anyone

by any means. It also indicates that Allen had some (evidently justified) misgivings

about the security of telephone conversations. However, if Allen did not expect his

conversation to be private, he would not have limited the conversation as he did when he

approached other people. The record indicates that Allen strove to shield his

conversation from the public. His unwillingness to divulge his whereabouts does not

negate this conclusion.

D. Whether Society Is Willing to Accept Allen’s Expectation as Reasonable

¶52 We next determine whether society (i.e., the citizens of Montana) is willing to

recognize as reasonable the expectation that private cell phone conversations are not

being surreptitiously monitored and recorded by agents working for the State. This

requires us to evaluate the constitutional values and goals of our state’s political system.

Goetz, ¶ 31. We must remember in making this determination that the privacy of all

people in Montana is at stake, not merely the privacy of those people known or suspected

of breaking the law. Id. at ¶ 32.

27
¶53 In Goetz we concluded—based on language of the Montana Constitution and the

convictions expressed by delegates to the 1972 Constitutional Convention—that society

is willing to recognize as reasonable “the expectation that conversations held in a private

setting are not surreptitiously being electronically monitored and recorded by government

agents.” Id. at ¶¶ 35-37. While this holding was limited to the facts of that particular

case (warrantless recording of face-to-face conversations), the stated rationale was in no

way limited to face-to-face conversations and logically extends to telephone

conversations, as here, where one party maintains a subjective expectation of privacy.

¶54 To resolve the issue in Goetz, we turned to the debates of the state Constitutional

Convention. Id. at ¶¶ 33-35. We cited statements by Delegates Campbell and Dahood on

the right to privacy and the right to be free from unreasonable searches and seizures. Id.

at ¶ 33. Both delegates decried electronic monitoring and eavesdropping in general,

indicating that the protections of these rights were not limited to traditional physical

locations:

[T]he [Bill of Rights] committee felt very strongly that the people of
Montana should be protected as much as possible against eavesdropping,
electronic surveillance, and such type of activities . . . . [I]t is inconceivable
to any of us that there would ever exist a situation in the State of Montana
where electronic surveillance could be justified.

Id. (quoting Montana Constitutional Convention, Verbatim Transcript, March 7, 1972,

pp. 1682, 1687); see also Siegal, 281 Mont. at 276, 934 P.2d at 191 (noting that “the

delegates . . . voiced clear opposition to any form of electronic surveillance of Montana

citizens” (emphasis added)). This generalized distrust of electronic monitoring also
28
appears in the comment of the Bill of Rights Committee that “the privacy of

communications should remain inviolate ‘from state-level interceptions.’” Montana

Constitutional Convention, Committee Proposals, Feb. 22, 1972, p. 633. Further

indicating that all communications should enjoy protections from government intrusion,

the committee commented that “any . . . legislative enactment [allowing wiretapping]

would require, [under Section 10 and Section 11], the showing of a compelling state

interest.” Id.

¶55 It also emerges from the transcript of the convention that the protections of the

right to privacy were intended to be dynamic. Delegate Campbell introduced the right to

privacy as a means of bolstering the protections against unreasonable searches and

seizures by ensuring that those protections would be able to keep pace with and not be

outstripped by technological developments:

Certainly, back in 1776, 1789, when they developed our Bill of Rights, the
search and seizure provisions were enough . . . . However, today we have
observed an increasingly complex society and we know that our area of
privacy has decreased, decreased, decreased . . . . We feel that this [an
express right to privacy], as a mandate to our government, would cause a
complete reexamination and guarantee our individual citizens of Montana
this very important right—the right to be let alone; and this has been called
the most important right of them all . . . . “As government functions and
controls expand, it is necessary to expand the rights of the individual.”

Montana Constitutional Convention, Verbatim Transcript, at 1681 (quoting Editorial, The

Right of Privacy, Mont. Standard (Butte) 4 (Feb. 3, 1972)). Thus, as technological

advancements allow personal communications to occur beyond a single physical setting,

29
the constitutional protections of the right to privacy keep pace and are not left behind

with each passing epoch.

¶56 As United States Supreme Court noted over forty years ago, the telephone has

come to play a vital role in private communications. Katz, 389 U.S. at 352, 88 S. Ct. at

512. This role is even more pronounced today, and cell phones are ubiquitous in

Montana, as elsewhere. See City of Ontario v. Quon, ___ U.S. ___, ___ S. Ct. ___, 177

L. Ed. 216, 227 (2010) (“Cell phone . . . communications are so pervasive that some

persons may consider them to be essential means or necessary instruments for self-

expression, even self-identification.”). To allow participant monitoring and recording of

telephone conversations without a warrant and, thus, subject only to the self-restraint of

law enforcement would “undermine that confidence and sense of security in dealing with

one another that is characteristic of individual relationships between citizens in free

society.” White, 401 U.S. at 787, 91 S. Ct. at 1143 (Harlan, J., dissenting); see also id.

(Douglas, J., dissenting) (“Monitoring, if prevalent, certainly kills free discourse and

spontaneous utterances. Free discourse—a First Amendment value—may be frivolous or

serious, humble or defiant, reactionary or revolutionary, profane or in good taste; but it is

not free if there is surveillance.”). This respect for free and spontaneous discourse is

reflected not only in our constitutional guarantee of privacy but also in § 45-8-213(1)(c),

MCA, which criminalizes (with four exceptions) the surreptitious recording of a

telephone conversation.

30
¶57 The history of Montana’s constitutional convention indicates that the delegates

would not have countenanced warrantless monitoring of private telephone conversations

at the time they drafted Montana’s constitution. We are convinced the citizenry of this

state would not tolerate such unrestrained government conduct today. We therefore

conclude that society is willing to recognize as reasonable the expectation that private

cell-phone conversations are not being surreptitiously monitored and recorded by

government agents. To the degree that Coleman and its progeny are inconsistent with

this conclusion, they are expressly overruled.

¶58 The Dissent challenges this conclusion, advancing that the Montana Constitution

does not protect telephone conversations from state electronic surveillance when, as here,

one party consents. At bottom this argument rests on the reasoning drawn from the

“obscene phone call hypothetical” in which party A receives an obscene phone call from

party B. The Dissent contends that in this situation constitutional protections do not

come into play and no warrant is required for police to monitor the call because (1) party

A can consent to the recording and (2) party B has no expectation of privacy since he is

violating the law. But this logic is flawed. It assumes that party B is violating the law

before the conversation has been monitored. This turns the presumption of innocence on

its head. Nothing in the transcripts of the Constitutional Convention suggests that the

delegates wished to jettison the presumption of innocence and presume that all parties to

a conversation who do not consent to its monitoring are engaged in criminal activity. To

the contrary, our presumption must be that persons conversing on phones are doing so
31
legitimately and thus they have a reasonable expectation of privacy. The Dissent also

suggests that police will be hindered in their ability to enforce the law unless allowed to

monitor phone calls with the consent of only one party. This concern, however, ignores

the basic constitutional principle that police must obtain warrants to conduct searches. If,

to return to the hypothetical, police have probable cause to believe someone is making

obscene phone calls, they can obtain a warrant to record the calls. When we allow the

police to bypass the warrant requirement as an undue hindrance to effective law

enforcement, we have effectively forfeited our rights to privacy and freedom from

unreasonable searches.

¶59 The State argues that cell phones, like that used by Allen, are essentially radios,

the transmissions of which may be received by unintended parties. Accordingly, citing

State v. Cotterell, 2008 MT 409, 347 Mont. 231, 198 P.3d 254, the State argues that users

of cell phones have no reasonable expectation of privacy. In Cotterell we concluded that

the defendant did not have a reasonable expectation of privacy in communications over a

hand-held radio. Id. at ¶ 52. Unlike Cotterell, here, the State cites no evidence from the

record (aside from the unsupported assertions of the prosecutor) that Allen communicated

over a public channel or that the transmissions could be overheard with equipment that is

“easily obtained and readily available.” Id. at ¶ 53. Accordingly, we reject the State’s

argument based on the radio analogy.

¶60 The State next suggests that the debates from the Constitutional Convention

support its claim that society is unwilling to accept as reasonable expectations of privacy
32
in telephone conversations. Specifically, the State notes Delegate Robinson’s withdrawal

in response to opposition of a proposed amendment to Article II, Section 11, adding that

“privacy of communications shall be inviolate.” Montana Constitutional Convention,

Verbatim Transcript, March 7, 1972, pp. 1683-87. Contrary to the State’s argument, we

cannot conclude that the withdrawal of a blanket prohibition on state intrusion upon

private communications was an endorsement of unchecked, warrantless police

monitoring of private telephone conversations.

¶61 In sum, we conclude that Allen had a subjective expectation of privacy in his cell-

phone conversation with Golie and that our society is willing to recognize that

expectation as reasonable. Accordingly, Golie’s recording of the conversation at the

behest of law enforcement constituted a search under Article II, Sections 10 and 11 of the

Montana Constitution.

E. Nature of Government Intrusion

¶62 Having determined that a search occurred, we must next consider whether the

search was reasonable; that is, whether it was justified by a narrowly tailored, compelling

state interest or subject to adequate procedural safeguards. Goetz, ¶ 27. If not, then the

search was unconstitutional. Id. Where, as here, police conduct a search without a

warrant, then we consider it “per se unreasonable, absent a recognized exception.” Id. at

¶ 40. The State carries the burden of proving that an exception to the warrant

requirement applies. Id.

33
¶63 The State argues that the consent exception applies by virtue of Golie’s agreement

to record the conversation. We disagree. In Goetz, we considered application of the

consent exception to police monitoring of face-to-face conversations where only one

party to the conversation consents to the recording. Id. at ¶¶ 41-46. We concluded that

the consent exception did not excuse the absence of a warrant. Id. at ¶ 46. To reach this

conclusion, we adopted the complimentary rules regarding consent of a co-tenant

announced in Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515 (2006): (1) the consent

of a co-tenant to a search of shared premises is valid if the other co-tenant is absent, but

(2) such consent is not valid if the other co-tenant is physically present and objects to the

search. Goetz, ¶¶ 44-45. Applying this rule, the Goetz Court reasoned that since both

parties were present, each must have the opportunity to object before police could

conduct the search. Id. at ¶ 45.

¶64 Contrary to the State’s argument, this reasoning applies, without distortion, to the

present situation involving a telephone conversation. While the parties to the

conversation here, Allen and Golie, were not in the same physical location, they were

both “present” during the conversation in that law enforcement could have obtained the

consent of each to record the conversation. However, even though Allen was available to

consent (or object) to the recording of the conversation, police did not give him the

opportunity to do so. Accordingly, as in Goetz, the consent exception does not apply.

The State does not argue that any other exception excuses its failure to obtain a warrant

and cites no narrowly-tailored, compelling interest. Consequently, we conclude that the
34
search (i.e., the recording of Allen and Golie’s conversation) was unreasonable and, thus,

violative of Sections 10 and 11 of the Montana Constitution.

¶65 In the event of a new trial, the recording of Golie and Allen’s conversation may

not be admitted into evidence.2

¶66 3. Whether the District Court abused its discretion when it denied Allen’s

request for a jury instruction on accomplice testimony.

¶67 The final issue regards the District Court’s refusal of Allen’s proposed jury

instruction regarding the “accomplice” testimony of Golie. Allen contends that this was

error. The State disagrees. We conclude that the District Court erred in denying this

instruction.

¶68 Section 26-1-303(4), MCA, reads: “The jury is to be instructed by the court on all

proper occasions that: . . . the testimony of a person legally accountable for the acts of the

accused ought to be viewed with distrust . . . .” We have interpreted this statute to entitle

a criminal defendant to such an instruction in “all proper occasions.” State v. Johnson,

257 Mont 157, 163, 848 P.2d 496, 499 (1993). Our case law indicates that an occasion is

2
Justice Nelson’s concurrence suggests that the Court’s decision does not go far enough. He
argues that failing to suppress Golie’s testimony “is akin to suppressing evidence obtained by
means of an unlawful entry into the defendant’s home, but then allowing the officers to testify
about that evidence and the fact that they found it in the defendant’s home.” First of all, since
Allen’s motion was to suppress the recording, not Golie’s testimony, the issue is not before the
Court. Secondly, the analogy fails. In the hypothetical, but for the illegal entry, the officer
would not have been in the home to make observations. Accordingly, his observations and
testimony along with the physical evidence obtained are fruits of the poisonous tree. Here
Golie’s engaging in a cell phone conversation with Allen is not poisoned by the fact of the
recording. It cannot be said that, but for the illegal recording, Golie would not have been
conversing with Allen, particularly given that he invited her to participate in this escapade to
begin with.
35
proper when (1) an accomplice gives direct testimony, (2) the defendant requests such an

instruction, and (3) the instruction is not inconsistent with the defendant’s claim of

innocence. State v. Hall, 2003 MT 253, ¶ 30, 317 Mont. 356, 77 P.3d 239; Johnson, 257

Mont at 163, 848 P.2d at 499.

¶69 Here, these elements are met. The first inquiry is whether an accomplice gave

direct testimony. A person is an accomplice and legally accountable for the acts of

another when “either before or during the commission of an offense with the purpose to

promote or facilitate the commission, the person solicits, aids, abets, agrees, or attempts

to aid the other person in the planning or commission of the offense.” Section 45-2-

302(3), MCA. Whether a person is an accomplice is a question for the jury, unless it is

undisputed. Rose v. State, 1998 MT 342, ¶ 13, 292 Mont. 350, 972 P.2d 321.

¶70 Here the record contains ample evidence from which the jury could conclude that

Golie was an accomplice to the attack on Escobedo. Golie aided Allen in his assault on

Escobedo by driving him to the residence were Escobedo was babysitting his nieces

(which is undisputed). Moreover, the testimony of Pickens, Allen, Escobedo, and Golie,

herself, if believed, supports the conclusion that Golie had the intention of promoting or

facilitating the assault. Pickens testified that Golie encouraged Allen to go to Escobedo’s

to “take care of business.” Allen’s testimony, while somewhat equivocal, seemed to

indicate that Golie knew he wanted to assault Escobedo. Defense counsel asked Allen if

he told Golie why he wanted to visit Escobedo, to which Allen responded, “Absolutely,

yeah. She was all for it. Absolutely. She knew exactly what was going on.” Further,
36
both Allen and Escobedo testified (and Golie agreed) that as soon as Escobedo entered

the car Golie began to upbraid him for talking to others about her and that she was angry

and threatening towards him.

¶71 There is no question that there was sufficient testimony from which a jury could

conclude that Golie was an accomplice. Golie was one of the State’s principal witnesses

and her testimony, which consumes nearly seventy pages of the transcript, was direct

evidence against Allen. Allen requested a jury instruction that Golie’s testimony “ought

to be viewed with distrust.” This request was not inconsistent with Allen’s claim of

innocence: Allen admitted assaulting Escobedo, but denied using a weapon. Thus, Allen

was entitled to a jury instruction that Golie’s testimony should be viewed with distrust.

The District Court erred in denying this instruction. On retrial, Allen is entitled to a jury

instruction regarding accomplice testimony under § 26-1-303(4), MCA.

¶72 For the foregoing reasons, Allen’s conviction is reversed and remanded for a new

trial consistent with this opinion.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS

37
Justice James C. Nelson, specially concurring.

¶73 It’s time that we jettison the Katz test. Here’s why.

I. Introduction

¶74 I concur in the Court’s Opinion as to Issues 1 and 3. As to Issue 2, I agree with

the Court that the warrantless recording of Allen and Golie’s telephone conversation

violated Article II, Sections 10 and 11 of the Montana Constitution. However, I suggest

that our decisions here and in State v. Goetz, 2008 MT 296, 345 Mont. 421, 191 P.3d 489,

do not fully rectify the constitutional violation. In fact, our approach creates an anomaly

in that the more reliable evidence of what Allen said (the recording) is not admissible but

the less reliable evidence (Golie’s testimony about what he said, based on her unaided

memory) is admissible. Not only that, while we uphold Allen’s constitutional rights by

suppressing the actual recording, we simultaneously undermine those rights by allowing

Golie to testify (albeit, based on her unaided memory) as to the contents of the recording.

This is akin to suppressing evidence obtained by means of an unlawful entry into the

defendant’s home, but then allowing the officers to testify about that evidence and the

fact that they found it in the defendant’s home. Granted, seeing physical evidence (such

as the murder weapon or the baggie of marijuana) is often more compelling to the jurors

than hearing a witness simply describe it. And this is even more true about verbal

evidence: Hearing a recording played in court carries greater weight than hearing a

witness testify about what was said, especially if the defense is able to undercut the

witness’s credibility. But the point is that we not only suppress the murder weapon or the
38
baggie of marijuana obtained pursuant to an unlawful search or seizure, we also disallow

any testimony about it. See Murray v. United States, 487 U.S. 533, 536, 108 S. Ct. 2529,

2533 (1988); Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416 (1963).

Correspondingly, then, not only should the illegal recording of the defendant’s

conversation be excluded, but so should any testimony about the contents of the

recording. “Whether the informant testifies, or the officer testifies with the tape, the

evidentiary potential is the same.” Goetz, ¶ 106 (Rice, J., dissenting). Hence, the

constitutional violation is left only half rectified when we suppress only the tape.

¶75 I believe this is totally incongruous and devoid of any persuasive justification. As

explained below, one of the rationales proffered in support of these inconsistent results is

that surreptitiously recording or eavesdropping on a conversation is a more offensive and

invasive evidence-gathering technique than acquiring the same evidence by means of a

face-to-face stratagem, such as an agent who masquerades as the person’s confidant and

then testifies as to what the person unwittingly said. In my view, however, the fact that

one technique may seem more offensive or invasive than another is beside the point.

Both techniques involve the extraction of evidence from the speaker, and both implicate

the speaker’s right to be secure from unreasonable searches. Another proffered rationale

is premised on supposed “risks” and “expectations”—specifically, that people risk or

must expect that they may be deceived as to the identity of one with whom they speak,

but do not risk or expect that their statements are being secretly recorded or monitored.

Again, however, I believe that theoretical risks or expectations are beside the point. In
39
this regard, I have reconsidered and now disagree with the notion—which we adopted

from Justice Harlan’s concurrence in Katz v. United States, 389 U.S. 347, 361, 88 S. Ct.

507, 516 (1967)—that a “search” is determined by whether a person’s expectation of

privacy is one that society is prepared to recognize as “reasonable.” See e.g. State v.

Bullock, 272 Mont. 361, 375, 901 P.2d 61, 70 (1995); State v. Cotterell, 2008 MT 409,

¶¶ 26-27, 347 Mont. 231, 198 P.3d 254. For one thing, when this “self-indulgent test”1 is

employed, the privacy expectations that society is prepared to recognize as reasonable

ultimately turn out to be the privacy expectations that a majority of the members of this

Court decide are reasonable. It is doubtful that we are qualified or equipped to make

such proclamations, especially in the absence of a factual record telling us what society’s

views and expectations are. Moreover, as applied in the present case, the “expectations”

test leads to the illogical conclusion that a person’s conversation with an informant has

been “searched” to the extent that the informant records the conversation but has not been

“searched” to the extent that the informant simply commits the conversation to memory.

At a more fundamental level, however, the underlying premise that a “search” is defined

by “risks” or “expectations” is itself implausible, for reasons I explain below.

¶76 Accordingly, rather than engage in subjective line-drawing about which privacy

expectations we think society is prepared to recognize as reasonable and which law

enforcement techniques we feel are too repugnant or invasive, we should simply apply

1
Minnesota v. Carter, 525 U.S. 83, 97, 119 S. Ct. 469, 477 (1998) (Scalia &
Thomas, JJ., concurring).
40
the constitutional language according to its plain meaning. It states that “[t]he people

shall be secure in their persons, papers, homes and effects from unreasonable searches

and seizures.” Mont. Const. art. II, § 11. A “search” is “an endeavor to find, ascertain,

recover, or the like; . . . hence, pursuit with a view to finding, etc.” Webster’s New

International Dictionary of the English Language 2257 (2d ed. 1934). And to “search”

means “ ‘[t]o look over or through for the purpose of finding something; to explore; to

examine by inspection.’ ” Kyllo v. United States, 533 U.S. 27, 32 n. 1, 121 S. Ct. 2038,

2042 n. 1 (2001) (quoting N. Webster, An American Dictionary of the English Language

66 (1828) (reprint 6th ed. 1989)). When the government engages in such activity, it is

conducting a “search”; and when that search implicates an individual’s person, papers,

home, or effects, the government must first procure a warrant (absent an exception to the

warrant requirement). If it fails to do so, then the evidence obtained, in whatever form,

should be suppressed.

¶77 My analysis below is in two parts. First, I explain that using an agent to acquire a

suspect’s verbalized thoughts by means of an in-person stratagem is a “search” requiring

a warrant. Second, I explain that allowing an agent to provide testimony regarding

illegally obtained (and, therefore, suppressed) evidence undermines the right against

unreasonable searches and, thus, is contrary to the purposes of the exclusionary rule.

II. “Search” Analysis

¶78 Article II, Section 11 of the Montana Constitution and the Fourth Amendment to

the United States Constitution both protect the right of the people to be secure in their
41
persons, papers, homes, and effects from unreasonable searches and seizures. No one

would dispute that when a police officer enters a person’s home and rummages through

her belongings, it is a “search.” But what about when the police seek a person’s

knowledge concerning illegal activities? So far, the government is not able to enter and

rummage through a person’s mind for “guilty knowledge”—although that possibility may

be on the horizon.2 And while direct questioning sometimes yields such evidence, the

fact is that it is often necessary to employ stratagem or secret monitoring in order to catch

those engaged in criminal enterprises. See Lewis v. United States, 385 U.S. 206, 208-09,

87 S. Ct. 424, 426 (1966). The question then arises as to whether the government is

conducting a “search” when it acquires verbal evidence through such techniques. Can

verbal evidence be the subject of a search? Do people have a privacy interest in their

communications? Is there a material distinction, for constitutional purposes, between

memorizing what a suspect says and simultaneously recording what the suspect says?

¶79 The Supreme Court considered these issues in a series of cases decided in the

1950s, ’60s, and ’70s. Although my conclusions herein rest on independent state law

grounds under the Montana Constitution, our jurisprudence on the subjects of electronic

surveillance, privacy in communications, and what constitutes a “search” has borrowed

concepts articulated by the Supreme Court in those cases. See e.g. Opinion, ¶¶ 37, 40;

Goetz, ¶ 22; Cotterell, ¶¶ 26-27. Notably, that Court’s decisions in this area proceed on a

2
See ScienceDaily, Mind Reading, Brain Fingerprinting and the Law,
http://www.sciencedaily.com/releases/2010/01/100120085459.htm (Jan. 24, 2010).
42
tortuous path and are difficult to reconcile. Nevertheless, they provide important context

for my analysis. Thus, I begin with a discussion of six of the cases.

On Lee

¶80 First, in On Lee v. United States, 343 U.S. 747, 72 S. Ct. 967 (1952), the defendant

(On Lee), who owned a laundry, was suspected of engaging in illegal narcotics traffic.

Government agents enlisted the services of one Chin Poy, an old acquaintance and former

employee of On Lee. Chin Poy was equipped with a small microphone and transmitting

device which enabled one of the agents (Agent Lee), stationed outside, to monitor Chin

Poy’s conversations with On Lee. Chin Poy, acting without a warrant, then engaged On

Lee in a conversation at the laundry during which On Lee made incriminating statements

which were overheard by Agent Lee. At trial, Chin Poy was not called to testify about

On Lee’s admissions; rather, Agent Lee related the conversations as heard through his

receiving set.

¶81 On appeal, the Supreme Court, by a five-justice majority, affirmed the admission

of this evidence. The Court relied on the rule, articulated in Olmstead v. United States,

277 U.S. 438, 48 S. Ct. 564 (1928), that the Fourth Amendment is violated only where

there has been (1) a search and seizure of the defendant’s person, (2) a seizure of his

papers or his tangible material effects, or (3) an actual physical invasion of his house or

curtilage for the purpose of making a seizure. Id. at 466, 48 S. Ct. at 568; see also

Goldman v. United States, 316 U.S. 129, 134-35, 62 S. Ct. 993, 996 (1942). In other

words, as applicable here, the Amendment is limited to the tangible fruits of actual
43
trespasses. Based on this restrictive view of the constitutional language, the Court held

that the conduct of Chin Poy and Agent Lee did not amount to an unlawful search and

seizure because “no trespass was committed. Chin Poy entered a place of business with

the consent, if not by the implied invitation, of [On Lee].” On Lee, 343 U.S. at 751-52,

72 S. Ct. at 971.

¶82 On Lee urged the Court to reconsider the question of Fourth Amendment rights in

the field of overheard or intercepted conversations. But the Court responded that even if

it overruled Olmstead and its progeny, On Lee’s challenge would still fail because he

was talking confidentially and indiscreetly with one he trusted, and he was
overheard. This was due to aid from a transmitter and receiver, to be sure,
but with the same effect on his privacy as if agent Lee had been
eavesdropping outside an open window. The use of bifocals, field glasses
or the telescope to magnify the object of a witness’ vision is not a forbidden
search or seizure, even if they focus without his knowledge or consent upon
what one supposes to be private indiscretions. It would be a dubious
service to the genuine liberties protected by the Fourth Amendment to
make them bedfellows with spurious liberties improvised by farfetched
analogies which would liken eavesdropping on a conversation, with the
connivance of one of the parties, to an unreasonable search or seizure.

On Lee, 343 U.S. at 753-54, 72 S. Ct. at 972 (emphasis added). Implicit in this reasoning

is the principle, reflected in subsequent cases discussed below, that a person’s privacy

interest is the same whether (a) the auditor (i.e., the person being spoken to) is wearing a

transmitting device, (b) the auditor is secretly recording the conversation at the behest of

the government, or (c) the auditor is committing the conversation to memory.

Silverman

44
¶83 Next, in Silverman v. United States, 365 U.S. 505, 81 S. Ct. 679 (1961), the police

suspected that certain premises were being used for a gambling operation. They obtained

permission to enter a vacant adjoining row house, and from there inserted a “spike mike”

through the party wall until it made contact with a heating duct serving the defendants’

house, “thus converting their entire heating system into a conductor of sound.” Id. at

507, 81 S. Ct. at 680. The officers then listened to conversations taking place in the

defendants’ house, about which the officers testified at trial.

¶84 The Supreme Court held that this violated the Fourth Amendment. Writing for the

Court, Justice Stewart distinguished Olmstead, Goldman, and On Lee on the ground that

those cases did not involve an “unauthorized physical penetration” into the defendants’

premises, whereas here the officers overheard the defendants’ conversations “only by

usurping part of the [defendants’] house or office—a heating system which was an

integral part of the premises occupied by the [defendants], a usurpation that was effected

without their knowledge and without their consent.” Id. at 509, 511, 81 S. Ct. at 681,

682. Justice Stewart stated that “an actual intrusion into a constitutionally protected area”

violates the Fourth Amendment “whether or not there was a technical trespass under the

local property law relating to party walls.” Id. at 511, 512, 81 S. Ct. at 682, 683. He thus

implicitly rejected the trespass rationale underlying Olmstead, Goldman, and On Lee.

Likewise, in finding a constitutional violation here, he implicitly held that the fruits of

electronic surveillance, though intangible, are within the reach of the Fourth Amendment.

45
This holding was reaffirmed two years later in Wong Sun v. United States, 371 U.S. 471,

485-86, 83 S. Ct. 407, 416 (1963).

¶85 Notably, Justice Stewart further observed that “[t]his Court has never held that a

federal officer may without warrant and without consent physically entrench into a man’s

office or home, there secretly observe or listen, and relate at the man’s subsequent

criminal trial what was seen or heard.” Silverman, 365 U.S. at 511-12, 81 S. Ct. at 683.

One would think that this rule should apply to all secret encroachments upon a person’s

privacy for purposes of evidence gathering. In this regard, Justice Douglas concurred in

the Court’s decision but found it incongruous that a listening device placed on the outside

wall of a house or office is a permissible invasion of privacy (Goldman) while a listening

device that penetrates the wall is not (Silverman). He argued—correctly, in my view—

that the invasion of privacy occurs not because there is “an unauthorized physical

penetration into the premises,” but because “the intimacies of the home [are] tapped,

recorded, or revealed.” Id. at 512-13, 81 S. Ct. at 683 (Douglas, J., concurring).

Lopez

¶86 The next important decision is Lopez v. United States, 373 U.S. 427, 83 S. Ct.

1381 (1963). In that case, the defendant (Lopez) was charged with attempting to bribe an

agent of the Internal Revenue Service (Agent Davis). The charges arose out of several

conversations between Lopez and Agent Davis at Lopez’s business office. During a

meeting on October 21, 1961, Lopez offered Agent Davis money to drop his

investigation into possible evasion of excise taxes. Agent Davis reported this to his
46
superior and thereafter met with four Internal Revenue Inspectors, who instructed him to

keep his appointment with Lopez on October 24, to pretend to play along with the

scheme, and to draw the conversation back to the October 21 meeting. Agent Davis was

equipped with a pocket wire recorder, which recorded his October 24 conversation with

Lopez during which Lopez made incriminating statements. Agent Davis later testified

about this conversation at trial, and the recording was also admitted into evidence.

¶87 On the question of whether Lopez’s Fourth Amendment rights were violated,

Justice Harlan, writing for the majority, noted that the Supreme Court had sustained

against constitutional challenge the government’s use of electronic devices to eavesdrop

on conversations, id. at 438, 83 S. Ct. at 1387-88 (citing Olmstead and Goldman), so long

as the device was not “planted by an unlawful physical invasion of a constitutionally

protected area,” id. at 438-39, 83 S. Ct. at 1388 (citing Silverman). Yet here, there had

not even been any “eavesdropping,” since the government did not use an electronic

device to listen in on conversations it could not otherwise have heard, but rather used the

device “to obtain the most reliable evidence possible of a conversation in which the

Government’s own agent was a participant and which that agent was fully entitled to

disclose.” Id. at 439, 83 S. Ct. at 1388. Moreover, the device was not planted by means

of an unlawful physical invasion of Lopez’s premises, but rather was carried in and out

by an agent who was there with Lopez’s assent, and it neither saw nor heard more than

the agent himself. Id. Thus, Justice Harlan wrote, Lopez’s claim was, in essence, that he

had “a constitutional right to rely on possible flaws in the agent’s memory, or to
47
challenge the agent’s credibility without being beset by corroborating evidence that is not

susceptible of impeachment,” since “no other argument can justify excluding an accurate

version of a conversation that the agent could testify to from memory.” Id. Justice

Harlan rejected this claim, stating: “We think the risk that [Lopez] took in offering a

bribe to Davis fairly included the risk that the offer would be accurately reproduced in

court, whether by faultless memory or mechanical recording.” Id.

¶88 Justice Brennan wrote a vigorous dissent, in which Justices Douglas and Goldberg

joined. First, regarding the government’s argument that Lopez surrendered his right of

privacy when he communicated his “secret thoughts” to Davis, Justice Brennan observed:

The assumption, manifestly untenable, is that the Fourth Amendment is
only designed to protect secrecy. If a person commits his secret thoughts to
paper, that is no license for the police to seize the paper; if a person
communicates his secret thoughts verbally to another, that is no license for
the police to record the words. Silverman v. United States, 365 U.S. 505.
On Lee certainly rested on no such theory of waiver. The right of privacy
would mean little if it were limited to a person’s solitary thoughts, and so
fostered secretiveness. It must embrace a concept of the liberty of one’s
communications, and historically it has. “The common law secures to each
individual the right of determining, ordinarily, to what extent his thoughts,
sentiments, and emotions shall be communicated to others . . . and even if
he has chosen to give them expression, he generally retains the power to fix
the limits of the publicity which shall be given them.” Warren and
Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 198 (1890).
(Emphasis supplied.)

Lopez, 373 U.S. at 449-50, 83 S. Ct. at 1393 (ellipsis in original).

¶89 Justice Brennan went on to discuss the distinct functions served by the two clauses

of the Fourth Amendment, which state:

48
 [1] 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 [2] 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.

The second clause, he explained, was aimed specifically at the evil of the general

warrant, often regarded as the single immediate cause of the American Revolution. Id. at

454, 83 S. Ct. at 1396. But of greater significance here, the first clause

embodies a more encompassing principle. It is . . . that government ought
not to have the untrammeled right to extract evidence from people. Thus
viewed, the Fourth Amendment is complementary to the Fifth. Feldman v.
United States, 322 U.S. 487, 489-490. The informing principle of both
Amendments is nothing less than a comprehensive right of personal liberty
in the face of governmental intrusion.

Id. at 454-55, 83 S. Ct. at 1396. Justice Brennan noted that “a comprehensive right of

privacy” under the Fourth and Fifth Amendments had been recognized and repeatedly

approved in the Court’s decisions. See id. at 456-57, 83 S. Ct. at 1397.

¶90 Yet, despite these broad views regarding personal liberty, Justice Brennan did not

dispute the majority’s conclusion that Agent Davis could testify about his conversations

with Lopez. Thus, it seems that Justice Brennan’s objection had less to do with the fact

that the government had extracted evidence from Lopez without a warrant and more to do

with the nature of the evidence itself. Indeed, his position was that a secretly made

recording of a person’s verbalized thoughts violates the Fourth Amendment, but the

agent’s testimony from memory as to what the person said does not.

49
¶91 In support of this distinction, Justice Brennan asserted that there is “a qualitative

difference between electronic surveillance, whether the agents conceal the devices on

their persons or in walls or under beds, and conventional police stratagems such as

eavesdropping and disguise.” Id. at 465, 83 S. Ct. at 1402. He argued that “[t]he latter

do not so seriously intrude upon the right of privacy” because “[t]he risk of being

overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of

one with whom one deals is probably inherent in the conditions of human society. It is

the kind of risk we necessarily assume whenever we speak.” Id. He suggested that this

risk “is not an undue risk to ask persons to assume, for it does no more than compel them

to use discretion in choosing their auditors, to make damaging disclosures only to persons

whose character and motives may be trusted.” Id. at 450, 83 S. Ct. at 1393. However,

electronic surveillance, he posited, imposes a risk of “a different order.” Id. Specifically,

it is

the risk that third parties, whether mechanical auditors like the Minifon [as
in Lopez] or human transcribers of mechanical transmissions as in On
Lee—third parties who cannot be shut out of a conversation as conventional
eavesdroppers can be, merely by a lowering of voices, or withdrawing to a
private place—may give independent evidence[3] of any conversation.

Id. at 450, 83 S. Ct. at 1394. Justice Brennan argued that “[t]here is no security from that

kind of eavesdropping, no way of mitigating the risk, and so not even a residuum of true

3
Earlier in his dissent, Justice Brennan explained that a mechanical recording is
“independent evidence” of the person’s statements, as opposed to evidence that merely
repeats or corroborates the agent’s testimony. Lopez, 373 U.S. at 448, 83 S. Ct. at
1392-93.
50
privacy.” Id. at 466, 83 S. Ct. at 1402. He concluded that “[t]here is only one way to

guard against such a risk, and that is to keep one’s mouth shut on all occasions.” Id. at

450, 83 S. Ct. at 1394.

¶92 I question Justice Brennan’s assumption that there is no way of mitigating the risk

that third parties may give independent evidence of a conversation. The speaker could

mitigate this risk by, for example, sweeping the immediate area for bugs and by checking

his auditor for hidden microphones and recorders. In fact, taking such precautionary

measures may be highly effective in mitigating the risk of mechanical eavesdropping and

recording. In contrast, even when the speaker uses “discretion” in choosing an auditor

whose character and motives seem trustworthy, such trust may turn out to be misplaced

or later circumstances may compel the auditor to divulge the conversation. Bottom line:

Steps may be taken to mitigate both risks identified by Justice Brennan—i.e., the risk that

one’s statements will be divulged by one’s auditor and the risk that one’s statements will

be monitored, recorded, and divulged through electronic means. But regardless of how

many steps are taken to ensure confidentiality, the fact remains that whenever we speak,

there is a risk that our statements may be repeated. And the only way to guard against

such risk, whether it is created by the possibility of an unreliable auditor or the possibility

of a hidden electronic device, is simply not to speak—i.e., “to keep one’s mouth shut on

all occasions.” Of course, as Justice Brennan points out earlier in his dissent, “[t]he right

of privacy would mean little if it were limited to a person’s solitary thoughts, and so

fostered secretiveness.” Lopez, 373 U.S. at 449-50, 83 S. Ct. at 1393. Indeed, what,
51
then, will be the protection of Article II, Sections 10 and 11, when the government has

the technology to surreptitiously read another’s thoughts? See ¶ 78 n. 2, supra.

¶93 Also problematic with this “risk” approach is the fact that what a person risks is

ultimately determined by what the law allows. Thus, when the law allows warrantless

participant monitoring or recording (as was the case until our decision in Goetz), the risk

of such monitoring or recording becomes as “inherent in the conditions of human

society” as the risk of being overheard by an eavesdropper, betrayed by an informer, or

deceived as to the identity of one with whom one deals. Indeed, because Allen’s

conversation with Golie occurred prior to our decision in Goetz, it could be said that he

took the “risk” that this conversation would be recorded without a search warrant, given

that our pre-Goetz caselaw allowed for that.

¶94 But regardless of these questionable facets of the “risk” approach, I do not find the

question of risk to be pertinent, in any event, to the question posed by the constitutional

language: Did the governmental action at issue constitute a “search” which intruded

upon the defendant’s person, home, papers, or effects? Justice Brennan’s “risk” approach

is premised on the notion that “the Fourth and Fifth Amendments interact to create a

comprehensive right of privacy, of individual freedom, [which] has been repeatedly

approved in the decisions of this Court.” Lopez, 373 U.S. at 456-57, 83 S. Ct. at 1397-98

(citing Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524 (1886), and other cases). He

thus frames the issue as one of “privacy,” rather than one of “search” and “security” in

one’s person, home, papers, and effects. I do not believe the two are the same, however.
52
For example, a person might create a site on the Internet advertising the sale of illicit

drugs out of his home, and thus forfeit any claim of privacy in such activity; but this does

not give the police carte blanche to barge into his house without a warrant and conduct a

search. More to the point, though, I do not believe that “privacy” and “search” should be

treated the same under the Montana Constitution. While it might be argued that there is

an implicit right of privacy under the Fourth and Fifth Amendments together, as well as a

separate right against unreasonable searches under the Fourth Amendment alone, the

reality is that both of these rights are set out separately in the Montana Constitution under

Article II, Section 10 (privacy) and Section 11 (searches). Thus, it is error to treat them

as creating just one single right of privacy. Section 10 ensures the right of individual

privacy, but Section 11 ensures a substantively different right: the right to be secure in

one’s person, papers, home, and effects from unreasonable searches.

¶95 While a “risk” approach (or, as discussed below, an “expectations” approach) may

be useful for resolving questions of “privacy,” it is not, in my view, proper for resolving

questions of “search.” As noted, a “search” is “an endeavor to find, ascertain, recover, or

the like; . . . hence, pursuit with a view to finding, etc.” Webster’s New International

Dictionary of the English Language 2257 (2d ed. 1934); see also e.g. State v. Arthun, 274

Mont. 82, 88, 906 P.2d 216, 220 (1995) (“ ‘A “search” is a prying into hidden places for

that which is concealed.’ ” (quoting State v. Carlson, 198 Mont. 113, 118, 644 P.2d 498,

501 (1982))). And to “search” means “ ‘[t]o look over or through for the purpose of

finding something; to explore; to examine by inspection.’ ” Kyllo v. United States, 533
53
U.S. 27, 32 n. 1, 121 S. Ct. 2038, 2042 n. 1 (2001) (quoting N. Webster, An American

Dictionary of the English Language 66 (1828) (reprint 6th ed. 1989)). The “risk” test

tells us nothing about whether the government is engaged in such activity. It shifts the

focus from what the government is doing—looking for evidence—to what risks we think

are okay to impose on society and what evidence-gathering techniques we think intrude

“seriously” on the right of privacy. The constitutional language mandates, however, that

whenever the government is “searching,” the individual in question has the right to be

secure in her person, home, papers, and effects that the search will be reasonable—

regardless of the risks she supposedly assumed and regardless of how seriously the

particular evidence-gathering technique may intrude on her privacy.

¶96 For these reasons, I believe the proper focus is not on theoretical risks but, rather,

is on whether the government is engaged in acquiring or extracting evidence and whether

the defendant has knowingly chosen to expose his thoughts to the public or to someone

he knows to be a law enforcement agent. In Lopez, there is no question that Agent Davis

was engaged in extracting evidence from Lopez. But Lopez knew full well that he was

speaking with a government agent, and he knowingly chose to expose his thoughts (the

attempted bribes) to that agent. A person who does so cannot be heard to complain that

the evidence of those verbalized thoughts—whether in the form of the agent’s testimony

or an electronic recording—was the product of an illegal search. On the other hand, an

entirely different situation is presented where the auditor’s status as an agent of the

government is kept hidden. There, the speaker does not make a knowing choice to waive
54
his right against a warrantless search of his thoughts and communications. And I suggest

that his security in his person is violated no less when the agent, masquerading as a

confidant, commits the person’s verbalized thoughts to memory versus when the agent

simultaneously records those thoughts.

Hoffa

¶97 Nonetheless, the Supreme Court again used the “risk” approach in Hoffa v. United

States, 385 U.S. 293, 87 S. Ct. 408 (1966). That case involved an individual named

Partin, who was an associate of James Hoffa. At the time (autumn 1962), Hoffa was on

trial for violating the Taft-Hartley Act, and federal agents suspected that he might attempt

to tamper with the jury in his trial. They accordingly enlisted Partin as a government

informer, asking him to be on the lookout for such attempts and to report any wrongdoing

he discovered. Ultimately, Hoffa made incriminating statements in Partin’s presence, and

Partin’s reports and his subsequent testimony at Hoffa’s trial contributed to Hoffa’s

conviction for endeavoring to bribe members of the jury in his 1962 trial.

¶98 On appeal, the Supreme Court rejected the contention that the government,

through Partin, had conducted an illegal “search” for verbal evidence. Writing for the

majority, Justice Stewart found it significant that Partin had not been a “surreptitious

eavesdropper” but, rather, had been in Hoffa’s presence by invitation, and that every

conversation Partin had heard was either directed to him or knowingly carried on in his

presence. Hoffa, 385 U.S. at 302, 87 S. Ct. at 413. Hoffa, evidently, had simply relied on

a “misplaced confidence” that Partin would not reveal his wrongdoing. Quoting Justice
55
Brennan’s Lopez dissent, Justice Stewart observed that “ ‘[t]he risk of being overheard by

an eavesdropper or betrayed by an informer or deceived as to the identity of one with

whom one deals is probably inherent in the conditions of human society. It is the kind of

risk we necessarily assume whenever we speak.’ ” Id. at 302-03, 87 S. Ct. at 413-14.

Katz

¶99 In contrast, the Court held that the governmental eavesdropping at issue in Katz v.

United States, 389 U.S. 347, 88 S. Ct. 507 (1967), did violate the defendant’s privacy in

his conversations. In that case, FBI agents attached an electronic listening and recording

device to the outside of the public telephone booth from which the defendant placed his

calls. Evidence of the defendant’s end of his conversations was then used at trial to

convict him of transmitting wagering information by telephone in violation of federal

law. At the outset of his opinion for the Court, Justice Stewart addressed the parties’

focus on whether the telephone booth was a “constitutionally protected area”—a term the

Court had used in Silverman. He rejected the premise that Fourth Amendment questions

depend on whether a given “area,” viewed in the abstract, is “constitutionally protected.”

He explained that “the Fourth Amendment protects people, not places.” Id. at 351, 88

S. Ct. at 511; see also Warden v. Hayden, 387 U.S. 294, 304, 87 S. Ct. 1642, 1648 (1967)

(“[T]he principal object of the Fourth Amendment is the protection of privacy rather than

property . . . .”). Thus, “[w]hat a person knowingly exposes to the public, even in his

own home or office, is not a subject of Fourth Amendment protection. But what he seeks

to preserve as private, even in an area accessible to the public, may be constitutionally
56
protected.” Katz, 389 U.S. at 351, 88 S. Ct. at 511 (citations omitted). Here, for instance,

while a telephone booth is generally accessible to the public, “[o]ne who occupies it,

shuts the door behind him, and pays the toll that permits him to place a call is surely

entitled to assume that the words he utters into the mouthpiece will not be broadcast to

the world.” Id. at 352, 88 S. Ct. at 511-12. Thus, when the defendant entered the booth

and sought to exclude “the uninvited ear” by shutting the door, he could expect that his

words were private, particularly given “the vital role that the public telephone has come

to play in private communication.” Id. at 352, 88 S. Ct. at 511, 512.

¶100 The government argued that no Fourth Amendment violation had occurred

because the surveillance technique involved “no physical penetration” of the telephone

booth. But Justice Stewart rejected this argument, explaining that because the Fourth

Amendment extends to the recording of oral statements overheard without any technical

trespass under local property law (citing Silverman), and because it protects “people,”

and not simply “areas” against unreasonable searches and seizures, “it becomes clear that

the reach of that Amendment cannot turn upon the presence or absence of a physical

intrusion into any given enclosure.” Id. at 353, 88 S. Ct. at 512. He thus concluded that

“[t]he Government’s activities in electronically listening to and recording the

[defendant’s] words violated the privacy upon which he justifiably relied while using the

telephone booth and thus constituted a ‘search and seizure’ within the meaning of the

Fourth Amendment.” Id.

57
¶101 This analysis is consistent with the “risk” approach employed in Lopez and Hoffa,

although the Katz Court framed the inquiry as what one is justifiably entitled to “assume”

under the circumstances. In fact, Justice Stewart’s analysis prompted Justice Harlan,

concurring in the decision, to opine that a “search” occurs in the following situations:

My understanding of the rule that has emerged from prior decisions is that
there is a twofold requirement, first that a person have exhibited an actual
(subjective) expectation of privacy and, second, that the expectation be one
that society is prepared to recognize as “reasonable.” Thus a man’s home
is, for most purposes, a place where he expects privacy, but objects,
activities, or statements that he exposes to the “plain view” of outsiders are
not “protected” because no intention to keep them to himself has been
exhibited. On the other hand, conversations in the open would not be
protected against being overheard, for the expectation of privacy under the
circumstances would be unreasonable.

Id. at 361, 88 S. Ct. at 516 (Harlan, J., concurring). Here, he reasoned, a telephone booth

is “a temporarily private place whose momentary occupants’ expectations of freedom

from intrusion are recognized as reasonable.” Id. at 361, 88 S. Ct. at 516-17.

¶102 The Court’s holding in Katz—that one who uses a closed telephone booth has a

justifiable right of privacy and may assume that the words he utters into the mouthpiece

“will not be broadcast to the world”—seems in tension with the holding of Hoffa, which

stands for the contrary rule that the speaker must assume the risk that the words he utters

into the mouthpiece will (or at least could) be broadcast to the world by the person at the

other end of the line, who might be a government informer. Indeed, the FBI agents in

Katz might have gathered the very same evidence by enlisting the recipient of the

defendant’s calls to record them, which evidently (according to Hoffa and Lopez) would

58
not have infringed the Fourth Amendment. Thus, if Hoffa is still good law after Katz,

there must be a critical distinction between the cases which allows the sort of warrantless

evidence gathering conducted in Hoffa but disallows the sort of warrantless evidence

gathering conducted in Katz.

¶103 The first apparent distinction is the particular means employed by the FBI agents

in Katz: attaching a listening and recording device to the outside of the booth, rather than

using a face-to-face ruse to obtain the defendant’s words. Yet, if a person in a closed

telephone booth truly has a constitutionally protected right of privacy and is entitled to

assume that the words she utters into the mouthpiece are private, then gathering those

words invades her privacy regardless of how they are obtained.

¶104 A second distinction involves “risks” and “expectations.” According to the Court

majorities in the above cases, a person risks that the person to whom she is speaking is a

government agent who is recording (Lopez) or committing to memory (Hoffa) her

statements. But a person does not expect that the government is secretly listening in on

her conversations with someone who is not a government agent (Katz). This distinction

is untenable because it rests on the absurd premise that a person’s expectation of privacy

turns on a fact of which she is unaware—namely, whether the person to whom she is

speaking is in fact a government agent. Moreover, as noted before, what a person risks or

expects is ultimately determined by what the law allows. As Justice Harlan later

acknowledged, “[o]ur expectations, and the risks we assume, are in large part reflections

of laws that translate into rules the customs and values of the past and present.” United
59
States v. White, 401 U.S. 745, 786, 91 S. Ct. 1122, 1143 (1971) (Harlan, J., dissenting).

Justice Marshall made a similar point in Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577

(1979):

More fundamentally, to make risk analysis dispositive in assessing the
reasonableness of privacy expectations would allow the government to
define the scope of Fourth Amendment protections. For example, law
enforcement officials, simply by announcing their intent to monitor the
content of random samples of first-class mail or private phone
conversations, could put the public on notice of the risks they would
thereafter assume in such communications.

Id. at 750, 99 S. Ct. at 2585 (Marshall & Brennan, JJ., dissenting). Likewise, if a court

decides that the law allows warrantless participant recording of telephone calls, then the

risk/expectation of being recorded becomes a risk/expectation that we assume whenever

we speak. I disagree with the premise that the constitutional protections were intended to

be left to the whims of judges who may think that one privacy expectation is objectively

reasonable and another is not. Cf. Minnesota v. Carter, 525 U.S. 83, 97, 119 S. Ct. 469,

477 (1998) (Scalia & Thomas, JJ., concurring) (“In my view, the only thing the past three

decades have established about the Katz test (which has come to mean the test enunciated

by Justice Harlan’s separate concurrence in Katz) is that, unsurprisingly, those ‘actual

(subjective) expectations of privacy’ ‘that society is prepared to recognize as

“reasonable,” ’ bear an uncanny resemblance to those expectations of privacy that this

Court considers reasonable.” (citations omitted)).

¶105 Lastly, it could be argued that the cases are distinguishable in that the government

(through its agent) was a party to the conversations in Hoffa but was a third-party intruder
60
on the conversation in Katz. However, neither Hoffa nor the defendant in Katz knew

whether the persons to whom they were speaking were in fact government agents; and, as

noted, it is implausible that an individual’s expectation of privacy would turn on a fact of

which she is unaware. It is also untenable that the government could nullify a person’s

right of privacy in her communications through the mere expedient of deceiving the

person as to the auditor’s police connections. The waiver of a constitutional right must

be made knowingly and voluntarily. State v. McCarthy, 2004 MT 312, ¶ 32, 324 Mont.

1, 101 P.3d 288. Likewise, consent to a warrantless search must be given knowingly and

voluntarily. State v. Bieber, 2007 MT 262, ¶ 29, 339 Mont. 309, 170 P.3d 444. To be

voluntary, the waiver or consent must be “the product of a free and deliberate choice

rather than intimidation, coercion, or deception.” Moran v. Burbine, 475 U.S. 412, 421,

106 S. Ct. 1135, 1141 (1986) (emphasis added). Accordingly, a person does not

voluntarily waive her right of privacy in her communications or consent to a warrantless

search where the government uses deception to gain access to those communications.

Bottom line: Whether the government uses pretense to acquire statements made directly

to an agent masquerading as a confidant, or whether the government secretly listens in on

statements the person makes to a nongovernmental party, her privacy is invaded without

her knowledge or consent. As noted, an invasion of privacy is effected where the

intimacies of the person are tapped, recorded, extracted, or revealed—whether that

involves in-person deception (Hoffa) or stealth tactics (Katz). But more to the point of

this concurrence, both techniques are used to extract evidence from the person and, thus,
61
constitute “searching.” Indeed, that the government is looking for evidence is reflected

by the fact that it is using artifice or surreptitious methods to gain access to what it seeks.

White

¶106 The last case in this discussion is United States v. White, 401 U.S. 745, 91 S. Ct.

1122 (1971). The issue there was whether the Fourth Amendment barred the testimony

of government agents about conversations which had occurred between the defendant and

a government informant (Jackson) and which the agents had overheard by means of a

radio transmitter carried by Jackson and concealed on his person. On four occasions, the

conversations took place in Jackson’s home, and each of these conversations was

overheard by an agent outside using a radio receiver. Four other conversations—one in

the defendant’s home, one in a restaurant, and two in Jackson’s car—were overheard by

the use of radio equipment. The prosecution was unable to locate and produce Jackson at

trial, and the trial court overruled objections to the agents’ testimony.

¶107 On appeal, a plurality of four (Justice White, joined by Chief Justice Burger and

Justices Stewart and Blackmun) concluded that the electronic surveillance did not violate

the Fourth Amendment because it did not invade a constitutionally justifiable expectation

of privacy. More specifically, the plurality concluded that an individual does not have a

constitutionally justifiable expectation that the person to whom she is speaking is not

recording or transmitting the conversation to government agents. This conclusion was

premised not on a plain-language interpretation of the Fourth Amendment, but rather on

the privacy expectations that the Supreme Court itself had created during the preceding
62
two decades through its decisions in On Lee, Lopez, Hoffa, and Lewis v. United States,

385 U.S. 206, 87 S. Ct. 424 (1966). I have already discussed the first three of these

decisions. As for Lewis, a federal narcotics agent, by misrepresenting his identity and

stating his willingness to purchase narcotics, was invited into the defendant’s home

where an unlawful narcotics transaction was consummated. Thereafter, the narcotics

were introduced at the defendant’s criminal trial over his objection. The Supreme Court

held that this did not violate the Fourth Amendment, explaining that when,

as here, the home is converted into a commercial center to which outsiders
are invited for purposes of transacting unlawful business, that business is
entitled to no greater sanctity than if it were carried on in a store, a garage,
a car, or on the street. A government agent, in the same manner as a private
person, may accept an invitation to do business and may enter upon the
premises for the very purposes contemplated by the occupant.

Lewis, 385 U.S. at 211, 87 S. Ct. at 427.

¶108 Based on these decisions, Justice White (speaking for the White plurality) pointed

out that regardless of “what the privacy expectations of particular defendants in particular

situations may be or the extent to which they may in fact have relied on the discretion of

their companions,” the fact remains that, “[s]o far, the law permits the frustration of

actual expectations of privacy by . . . authorizing the use of informants in the manner

exemplified by Hoffa and Lewis.” White, 401 U.S. at 752, 91 S. Ct. at 1126. Indeed, the

starting premise of Justice White’s analysis was this: “Concededly a police agent who

conceals his police connections may write down for official use his conversations with a

defendant and testify concerning them, without a warrant authorizing his encounters with

63
the defendant and without otherwise violating the latter’s Fourth Amendment rights.” Id.

at 751, 91 S. Ct. at 1125-26 (citing Hoffa). He then reasoned that

[i]f the conduct and revelations of an agent operating without electronic
equipment do not invade the defendant’s constitutionally justifiable
expectations of privacy [Hoffa], neither does a simultaneous recording of
the same conversations made by the agent [Lopez] or by others from
transmissions received from the agent to whom the defendant is talking and
whose trustworthiness the defendant necessarily risks [On Lee and White].
. . . If the law gives no protection to the wrongdoer whose trusted
accomplice is . . . a police agent [Hoffa], neither should it protect him when
that same agent has recorded [Lopez] or transmitted [On Lee and White] the
conversations which are later offered in evidence to prove the State’s case.

Id. at 751-52, 91 S. Ct. at 1126.

¶109 Justice White thus implicitly disagreed with Justice Brennan’s contention in his

Lopez dissent that there are constitutionally significant distinctions between electronic

surveillance and conventional police stratagems. Indeed, Justice White argued that a

person, in deciding whether to speak to a companion, would not distinguish between a

possible government informer on the one hand and a possible government informer with

a recorder or transmitter on the other. In fact, it is doubtful that Allen would have drawn

such a distinction in the present case in deciding whether to speak to Golie.

Given the possibility or probability that one of his colleagues is cooperating
with the police, it is only speculation to assert that the defendant’s
utterances would be substantially different or his sense of security any less
if he also thought it possible that the suspected colleague is wired for
sound. At least there is no persuasive evidence that the difference in this
respect between the electronically equipped and the unequipped agent is
substantial enough to require discrete constitutional recognition . . . .

Id. at 752, 91 S. Ct. at 1126.

64
¶110 Finally, Justice White noted that an electronic recording “will many times produce

a more reliable rendition of what a defendant has said than will the unaided memory of a

police agent.” Id. at 753, 91 S. Ct. at 1126. And, similar to Justice Harlan’s reasoning in

Lopez, he rejected the notion “that a defendant who has no constitutional right to exclude

the informer’s unaided testimony nevertheless has a Fourth Amendment privilege against

a more accurate version of the events in question.” Id. at 753, 91 S. Ct. at 1126-27.

Thus, for the foregoing reasons, Justice White concluded that it is “untenable to consider

the activities and reports of the police agent himself, though acting without a warrant, to

be a ‘reasonable’ investigative effort and lawful under the Fourth Amendment but to

view the same agent with a recorder or transmitter as conducting an ‘unreasonable’ and

unconstitutional search and seizure.” Id. at 753, 91 S. Ct. at 1127.

¶111 While there is logic in this reasoning, it must be kept in mind that Justice White’s

conclusion was based on the plurality’s subjective view of “what expectations of privacy

are constitutionally ‘justifiable,’ ” id. at 752, 91 S. Ct. at 1126 (citing Katz), which in turn

was based on what the Court had said was permissible in its prior decisions in On Lee,

Lopez, Hoffa, and Lewis—particularly the holdings in On Lee and Hoffa that the police

may extract verbal evidence from people by means of in-person stratagems without a

warrant. Thus, in order to reach the same conclusion as the plurality, one must accept the

propositions that (1) whether a “search” has occurred depends on whether the defendant

had an expectation of privacy that was constitutionally justifiable; (2) the police may,

without a warrant, surreptitiously seek out verbal evidence from a person by means of an
65
informant or undercover agent who is not equipped with electronic equipment but who

instead remembers and testifies as to what was said; (3) there is no constitutionally

material difference where that same agent is equipped with electronic equipment that

simultaneously records or transmits the conversation; and (4) hence, any expectation an

individual has that the person to whom she is speaking will not repeat, record, or transmit

her conversation at the government’s behest is not constitutionally justifiable.

¶112 Regardless of the validity of the second, third, and fourth of these propositions

(and I do not concede their validity), I cannot agree with the first. “The Katz test—

whether the individual has an expectation of privacy that society is prepared to recognize

as reasonable—has often been criticized as circular, and hence subjective and

unpredictable.” Kyllo v. United States, 533 U.S. 27, 34, 121 S. Ct. 2038, 2043 (2001)

(citing critics). But even more problematic, I believe the test conflates the question of

“privacy” with the question of “search.” As noted, these are two separate rights (see

¶ 94, supra); and it is implausible that the question of whether there has been a “search”

turns not on what the government was doing, but rather on what the subject of that search

expected with respect to her right of “privacy” (more specifically, whether her privacy

expectation was constitutionally justifiable or one that society, presumably, is prepared to

recognize as reasonable). Again, a “search” is “an endeavor to find, ascertain, recover, or

the like; . . . hence, pursuit with a view to finding, etc.” Webster’s New International

Dictionary of the English Language 2257 (2d ed. 1934); see also e.g. Arthun, 274 Mont.

at 88, 906 P.2d at 220 (a “search” is “ ‘a prying into hidden places for that which is
66
concealed’ ”). And to “search” means “ ‘[t]o look over or through for the purpose of

finding something; to explore; to examine by inspection.’ ” Kyllo, 533 U.S. at 32 n. 1,

121 S. Ct. at 2042 n. 1 (quoting N. Webster, An American Dictionary of the English

Language 66 (1828) (reprint 6th ed. 1989)). When the government engages in such

activity, it is conducting a “search”—irrespective of whether we may think that society is

prepared to recognize the person’s expectation of privacy as reasonable.

¶113 Notably, in the course of his analysis, Justice White distinguished the outcome in

Katz on the ground that “Katz involved no revelation to the Government by a party to

conversations with the defendant.” White, 401 U.S. at 749, 91 S. Ct. at 1124-25. The

apparent meaning of this statement, as Justice White later explained in his opinion for the

Court in United States v. Karo, 468 U.S. 705, 716 n. 4, 104 S. Ct. 3296, 3304 n. 4 (1984),

is that there is no search when the government’s agent or informant consents to having

the conversation with the suspect monitored (On Lee and White) but there is a search

when neither party consents (Katz). I find this reasoning untenable. For one thing, as

noted above (see ¶ 105, supra), it is absurd that the government can “consent” to its own

monitoring of a conversation and thereby vitiate the speaker’s right of privacy and nullify

the warrant requirement. This approach, moreover, cannot be sustained under Katz’s

expectations test. “Expectations are formed on the basis of objective appearances, not on

the basis of facts known only to others. . . . [A person’s] expectation of privacy is either

inherently reasonable or it is inherently unreasonable. [The auditor’s] undisclosed status

as a government informant cannot alter the reasonableness of that expectation.” Karo,
67
468 U.S. at 724, 104 S. Ct. at 3308 (O’Connor & Rehnquist, JJ., concurring in part and

concurring in the judgment).

¶114 Justice Black concurred in the judgment in White on the ground that the Fourth

Amendment does not apply to eavesdropping. White, 401 U.S. at 754, 91 S. Ct. at 1127

(citing his dissent in Katz). Justice Brennan concurred in the result on the ground that

Katz did not apply retroactively to the electronic surveillance at issue. Id. at 755, 91

S. Ct. at 1127. And Justices Douglas, Harlan, and Marshall dissented. Id. at 756-96, 91

S. Ct. at 1128-48. Of relevance to this discussion is Justice Harlan’s dissent.

¶115 Justice Harlan disputed the plurality’s contention that if A can relay verbally what

is revealed to him by B (as in Lewis and Hoffa), or record and later divulge it (as in

Lopez), then A can contemporaneously transmit to it another. Justice Harlan argued that

“it is one thing to subject the average citizen to the risk that participants in a conversation

with him will subsequently divulge its contents to another, but quite a different matter to

foist upon him the risk that unknown third parties may be simultaneously listening in.”

Id. at 777, 91 S. Ct. at 1138. He explained this view as follows:

The impact of the practice of third-party bugging, must, I think, be
considered such as to undermine that confidence and sense of security in
dealing with one another that is characteristic of individual relationships
between citizens in a free society. It goes beyond the impact on privacy
occasioned by the ordinary type of “informer” investigation upheld in
Lewis and Hoffa. The argument of the plurality opinion, to the effect that it
is irrelevant whether secrets are revealed by the mere tattletale or the
transistor, ignores the differences occasioned by third-party monitoring and
recording which insures full and accurate disclosure of all that is said, free
of the possibility of error and oversight that inheres in human reporting.

68
 Authority is hardly required to support the proposition that words
would be measured a good deal more carefully and communication
inhibited if one suspected his conversations were being transmitted and
transcribed. Were third-party bugging a prevalent practice, it might well
smother that spontaneity—reflected in frivolous, impetuous, sacrilegious,
and defiant discourse—that liberates daily life. Much off-hand exchange is
easily forgotten and one may count on the obscurity of his remarks,
protected by the very fact of a limited audience, and the likelihood that the
listener will either overlook or forget what is said, as well as the listener’s
inability to reformulate a conversation without having to contend with a
documented record. All these values are sacrificed by a rule of law that
permits official monitoring of private discourse limited only by the need to
locate a willing assistant.

Id. at 787-89, 91 S. Ct. at 1143-44 (footnotes omitted).

¶116 Yet, while it may be true, for the reasons stated by Justice Harlan, that third-party

bugging has a unique effect on privacy and security (as compared to “the ordinary type of

‘informer’ investigation upheld in Lewis and Hoffa”) and, thus, poses a different “risk” to

the average citizen, I do not believe such considerations are pertinent to the question of

whether a “search” has occurred. Just because one evidence-gathering technique has the

potential to create a greater chilling effect on speech than another does not mean that the

former constitutes looking for evidence and the latter does not—unless we are to

determine the “search” question based on the utility and desirability of a particular law

enforcement practice.

¶117 That, in fact, is what Justice Harlan proposed. He acknowledged that the risk

approach of Lewis, Lopez, and On Lee and the expectations approach of Katz “have their

limitations and can, ultimately, lead to the substitution of words for analysis.” White, 401

U.S. at 786, 91 S. Ct. at 1143. He suggested, therefore, that judges should not “recite the
69
expectations and risks without examining the desirability of saddling them upon society.”

Id. The “critical question,” he proposed, is this:

whether under our system of government, as reflected in the Constitution,
we should impose on our citizens the risks of the electronic listener or
observer without at least the protection of a warrant requirement. This
question must, in my view, be answered by assessing the nature of a
particular practice and the likely extent of its impact on the individual’s
sense of security balanced against the utility of the conduct as a technique
of law enforcement.

Id. (paragraph break omitted). For the reasons quoted above, Justice Harlan concluded

that we should not impose on our citizens the risks of third-party electronic monitoring.

See id. at 790, 91 S. Ct. at 1145.

¶118 I disagree with this approach for a number of reasons, not the least of which is that

it is even more arbitrary and subjective than the original formulation of the Katz test. It is

a dubious assumption in the first place that courts are qualified to divine whether society

is prepared to recognize a particular expectation of privacy as reasonable. But it is even

more doubtful that courts should be judging the “utility” of a particular police practice

and deciding whether the likely extent of its impact on the individual’s sense of security

is enough to justify requiring a warrant. Most importantly, however, as noted above,

whether the police are looking for evidence is not answered by whether we should

impose a particular “risk” on our citizens. Again, a “search” is a pursuit with a view to

finding something, and to “search” means to look over or through for the purpose of

finding something. “Risks” and “expectations” simply are not part of the equation.

Montana Law
70
¶119 Turning now to Montana law, our caselaw on the issue of warrantless electronic

monitoring and recording with the consent of the informant or agent (i.e., warrantless

participant monitoring/recording) is summarized in ¶¶ 15-22 of State v. Goetz, 2008 MT

296, 345 Mont. 421, 191 P.3d 489, and ¶¶ 36-43 of today’s Opinion. I am not going to

review all of those cases in detail here, but will briefly discuss State v. Brackman, 178

Mont. 105, 582 P.2d 1216 (1978), and Goetz.

¶120 In Brackman, we followed the approach suggested by Justice Harlan in his White

dissent and, thus, “weigh[ed] what effect a decision favorable to the defendant would

have on law enforcement abilities against this intrusion of privacy and what consequent

effect that may have on freedom of speech.” Brackman, 178 Mont. at 115, 582 P.2d at

1221. Doing so, a majority of the Court decided that monitoring or recording a

conversation, even with the informant’s consent, requires a warrant. Notably, the

majority evidently agreed with Justice Harlan’s view that electronically monitoring a

conversation is a greater invasion of privacy than merely using an unwired informant.

See id. (noting the defendant’s assertion that to allow warrantless participant monitoring

would have a “chilling” effect on citizen discourse); Opinion, ¶ 37.

¶121 Our subsequent cases strayed from the analysis used in Brackman and aligned

themselves instead with the views of the White plurality. See e.g. State v. Coleman, 189

Mont. 492, 616 P.2d 1090 (1980); State v. Brown, 232 Mont. 1, 755 P.2d 1364 (1988);

see also Goetz, ¶ 22. In Goetz, however, we examined the issue anew and decided that

warrantless electronic monitoring and recording of a defendant’s conversation with an
71
informant violates Article II, Sections 10 and 11 of the Montana Constitution, despite the

informant’s consent to the monitoring. We framed our analysis in terms of the Katz test

and asked (1) whether the defendants had actual subjective expectations of privacy and, if

so, (2) whether society was willing to recognize the defendants’ expectations of privacy

as reasonable. Goetz, ¶¶ 25-37. Under the first prong, we concluded that the defendants

did have actual subjective expectations of privacy in their conversations. Goetz, ¶ 30.

And under the second prong, we concluded that society was willing to recognize these

expectations as reasonable. Goetz, ¶ 37. More specifically, we asserted that Montanans

“are willing to risk that a person with whom they are conversing in their home or other

private setting may repeat that conversation to a third person” but “are unwilling to

accept as reasonable that the same conversation is being electronically monitored and

recorded by government agents without their knowledge.” Goetz, ¶ 35. We cited no

authority for the first half of this assertion; but with respect to the second, we relied on

statements made by various delegates to the 1972 Montana Constitutional Convention

regarding the government’s use of electronic surveillance. Goetz, ¶¶ 33-35. In today’s

decision, the Court likewise relies on the delegates’ comments, as well as the views

expressed by Justices Douglas and Harlan in White that to allow electronic monitoring

and recording of conversations would kill free discourse and undermine people’s

confidence and sense of security in dealing with one another. Opinion, ¶¶ 54-57.

“Search” Redefined

72
¶122 I signed our Goetz decision and agree with much of the Court’s analysis under

Issue 2 of today’s decision because I believe they both correctly apply the law as it

presently stands. However, for the reasons set forth above and reiterated below, I believe

that the present law—in particular, the Katz approach to search analysis—is incorrect and

must be changed.

¶123 As noted, the “expectations” approach is problematic for a number of reasons. For

one thing, the test is circular in that our expectations and the risks we assume are the

product of what the law allows while the law, conversely, is the manifestation of our

values and expectations. See ¶¶ 93, 104, supra. If the Legislature passed a law making it

unlawful for anyone to record a conversation without the knowledge of all parties to the

conversation, one could argue that society is prepared to recognize as reasonable a

privacy expectation against the surreptitious recording of conversations—which Allen in

fact argues here based on § 45-8-213(1)(c), MCA. But what if the Legislature repealed

that law? Or, better yet, what if the Legislature excepted the police from the law’s

coverage and adopted a resolution stating that society is unwilling to recognize as

reasonable an expectation against warrantless participant monitoring and recording?

Would this law violate our decision in Goetz, or would it overrule Goetz by clarifying

that society’s expectations are not what we thought they were? Is the Legislature better

suited to say whether society is prepared to recognize a particular expectation of privacy

as reasonable? Do the protections of the Fourth Amendment and Article II, Sections 10

and 11 vacillate with the prevailing political winds?
73
¶124 Even our own decisions can have the same effect. Prior to Goetz, any expectation

that the government first had to obtain a warrant in order to monitor or record a person’s

conversations with an informant was arguably unreasonable, due to authorities such as

Coleman and Brown. In this regard, the State points out that “[i]t is illogical that society

would view as reasonable a privacy expectation that conflicted with established law.” Of

course, it’s possible that this expectation was reasonable but that we failed to recognize

that fact in Coleman and Brown, which would highlight yet another flaw in the approach:

this Court’s inability to discern accurately which privacy expectations society is prepared

to recognize as reasonable. But, in any event, such an expectation is now reasonable

under the authority of Goetz. The reason: We simply decided in Goetz that society was

prepared to recognize as reasonable an expectation that the government is not monitoring

or recording our conversations, regardless of the auditor’s consent.

¶125 This points up another problem with the test: How do we know whether society is

prepared to recognize a particular expectation as reasonable? Is it possible to know this

without surveying our citizens? Do the parties need to provide us with concrete evidence

of society’s views on the matter? The Court’s lack of citation to any such evidence in the

present case reflects the fact that none was presented. Allen cites an “empirical study,”

but the State points out that this study is inapposite to the issue of participant recording.

And while a handful of Convention delegates commented on the issue almost 40 years

ago, their views are certainly open to more than one interpretation, as Justice Rice’s

Dissent reflects. See also e.g. Keller v. Smith, 170 Mont. 399, 408-09, 553 P.2d 1002,
74
1008 (1976) (“[W]e have not relied on the minutes of the Constitutional Convention

proceedings as indicative of the intent of the delegates. We have purposely refrained

from using this basis of interpretation as excerpts from various portions of these minutes,

among other things, can be used to support either position, or even a third position . . . .”).

The reality is that the privacy expectations which society is prepared to recognize as

reasonable are simply the privacy expectations that a majority of the members of this

Court decide are reasonable. Again, I disagree with the premise that the constitutional

protections were intended to be left to the whims of judges who may think that one

expectation of privacy is objectively reasonable and another is not.

¶126 Finally, aside from the impracticality of the test, the reasonableness of a person’s

expectation of privacy does not, in my view, tell us whether the police are conducting a

“search.” As explained above, the “expectations” test evolved in the Supreme Court’s

Lopez, Hoffa, and Katz decisions as a method for determining whether a defendant’s right

of “privacy” had been infringed. In fact, under federal law, “privacy” analysis has totally

supplanted “search” analysis. And since this Court has adopted wholesale the Supreme

Court’s approach, as summarized by Justice Harlan in his Katz concurrence, there is no

distinct “search” analysis under Montana law either.

¶127 Yet, there should be. As noted, I do not agree with the proposition that the right of

“privacy” and the right against unreasonable “searches” are one and the same. See ¶ 94,

supra. And the Montana Constitution, in fact, treats “privacy” and “searches” separately.

Article II, Section 10 ensures the right of individual privacy, but Article II, Section 11
75
ensures a substantively different right: the right to be secure in one’s person, papers,

home, and effects from unreasonable searches. It is error to treat these two provisions as

creating just one single right of “privacy.”

¶128 Thus, while an analysis of “risks” or “expectations” may be relevant for resolving

questions of “privacy,” it is not, in my view, proper for resolving questions of “search.”

Again, as pointed out before, a “search” is “an endeavor to find, ascertain, recover, or the

like; . . . hence, pursuit with a view to finding, etc.” Webster’s New International

Dictionary of the English Language 2257 (2d ed. 1934); see also e.g. Arthun, 274 Mont.

at 88, 906 P.2d at 220 (a “search” is “ ‘a prying into hidden places for that which is

concealed’ ”). And to “search” means “ ‘[t]o look over or through for the purpose of

finding something; to explore; to examine by inspection.’ ” Kyllo, 533 U.S. at 32 n. 1,

121 S. Ct. at 2042 n. 1. The fallacy of the Katz test is that it very deftly shifts the focus

from what the government is doing—looking for evidence—to what society accepts, or

what the courts deem reasonable, or whether the evidence-gathering technique is

utilitarian. In accordance with the plain meaning of the word “search,” I would put the

focus back on what the government is doing and hold that a search occurs where a

government agent looks over or through, explores, examines, inspects, or otherwise

engages in conduct or an activity designed to find, extract, acquire, or recover evidence.

A few additional observations about this approach are necessary.

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¶129 First, the protection guaranteed by Article II, Section 11 is that the “people” shall

be “secure” in their “persons, papers, homes and effects” from unreasonable searches.4

Thus, the protection applies to “people,” not places, and is only triggered when the

government’s searching involves an individual’s person, papers, homes, or effects.

Moreover, if the individual knowingly chooses to expose her person, papers, home, or

effects to the public or to someone she knows to be a law enforcement agent, then she

cannot complain that her “security” has been infringed. For this reason, I would

distinguish situations where the speaker knows he is talking to a government agent (e.g.,

Lopez) from situations where the agent’s connections to the police are kept hidden (e.g.,

On Lee, Hoffa, and White). Cf. United States v. Stringer, 535 F.3d 929, 939 (9th Cir.

2008) (“[A] search is unreasonable, even if consensual, if the consent is obtained by

trickery or deceit.”); ¶ 105, supra (explaining that consent to a warrantless search must be

given voluntarily, i.e., must be the product of a free and deliberate choice rather than

intimidation, coercion, or deception).

¶130 Second, it is important to note that this approach does not require us to judge the

“utility” of a particular police practice. It simply requires that when the practice involves

finding, extracting, acquiring, or recovering evidence from a person, the police must first

procure a warrant (or the person’s consent) and the search must be otherwise reasonable.

Also, in this regard, I do not propose to outlaw all police stratagems and all monitoring or

4
Searches conducted without a warrant are per se unreasonable, subject to only a
few carefully drawn exceptions. Arizona v. Gant, ___ U.S. ___, ___, 129 S. Ct. 1710,
1716 (2009); State v. Hurlbert, 2009 MT 221, ¶ 19, 351 Mont. 316, 211 P.3d 869.
77
recording of conversations by the police. Rather, my argument is that the Constitution

requires that those activities be conducted with a warrant, absent there being an

established and well-recognized exception to the warrant requirement.

¶131 Lastly, search analysis in Montana is typically conducted under Article II, Section

11 in conjunction with Article II, Section 10. See State v. Cotterell, 2008 MT 409, ¶ 25,

347 Mont. 231, 198 P.3d 254; Goetz, ¶¶ 25-27. The latter states that “[t]he 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. II, § 10.

Based on this provision, we have said that Montanans enjoy “greater protections against

governmental intrusions” than those provided under the United States Constitution. State

v. Graham, 2007 MT 358, ¶ 12, 340 Mont. 366, 175 P.3d 885. I would continue to

recognize these greater protections when conducting search analysis under Section 11.

Allen and Golie’s Telephone Conversation

¶132 Applying these principles to Allen and Golie’s telephone conversation, there is no

question that Golie was a government agent who was enlisted to aid in an investigation of

Allen, which included surreptitiously recording her telephone conversations with him.

Hence, the State was engaged in acquiring verbal evidence from Allen and, thus, was

conducting a “search.” That the State was endeavoring to find something (in particular,

Allen’s thoughts and communications about illegal activity) is reflected in the fact that it

had to use surreptitious methods in order to gain access to what it sought.

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¶133 Allen did not knowingly choose to expose his verbalized thoughts to the public

generally or to law enforcement specifically. In this connection, I reject the notion that

Golie’s so-called “consent” to record her conversations with Allen at the behest of the

police nullified the warrant requirement. It is axiomatic that Golie cannot waive Allen’s

right against unreasonable searches under Article II, Section 11 (or, for that matter, his

right of privacy under Article II, Section 10) any more than he can waive hers. I also

reject the proposition that Allen surrendered his right against unreasonable searches just

because he communicated his thoughts to Golie. It is well-established by cases such as

Silverman, Wong Sun, Katz, and Goetz that the constitutional protections encompass

verbalized thoughts.

¶134 Finally, law enforcement’s evidence-gathering activities here resulted in two types

of evidence: Golie’s testimony about her conversation with Allen, and the recording she

made of that conversation. Both, in my view, are the product of an unlawful warrantless

search and, thus, both are subject to suppression. As discussed above, I am not persuaded

that one type of evidence is the result of a search and the other is not. Such a distinction

depends on ad hoc judgments about “risks,” “expectations,” and the desirability of the

particular police practice used. These considerations have no bearing on the question of

whether a “search” has occurred.

¶135 In conclusion, for the purpose of conducting search analysis under Article II,

Section 11, I believe we should jettison the Katz test in favor of a plain interpretation of

79
the word “search.” Applying that here, I conclude that enlisting Golie to acquire

evidence against Allen was a search requiring a warrant.

III. Exclusionary Rule Analysis

¶136 The second primary point addressed in this concurrence concerns application of

the exclusionary rule to Golie’s testimony about her conversation with Allen. For the

reasons just discussed, I conclude that this evidence was the product of an unlawful

warrantless search. But that conclusion aside, I believe Golie’s testimony should be

subject to the exclusionary rule as well.

¶137 “The exclusionary rule prohibits introduction into evidence of tangible materials

seized during an unlawful search and of testimony concerning knowledge acquired

during an unlawful search.” Murray v. United States, 487 U.S. 533, 536, 108 S. Ct. 2529,

2533 (1988) (citations omitted). The purpose of the exclusionary rule is to deter illegal

police conduct and constitutional violations and to preserve judicial integrity. State v.

Ellis, 2009 MT 192, ¶ 48, 351 Mont. 95, 210 P.3d 144; Virginia v. Moore, 553 U.S. 164,

178, 128 S. Ct. 1598, 1608 (2008) (citing Wong Sun v. United States, 371 U.S. 471,

484-85, 488, 83 S. Ct. 407 (1963)). “The exclusionary prohibition extends as well to the

indirect as the direct products of [unlawful searches].” Wong Sun, 371 U.S. at 484, 83

S. Ct. at 416.

¶138 In the instant case, as in Goetz, it is undisputed that Golie, a confidential

informant, was acting as an agent of the State when she surreptitiously recorded her cell

phone conversation with Allen at the behest of law enforcement. The Court holds that
80
this warrantless recording of the conversation violated Allen’s right to be free from

unreasonable searches and seizures under Montana’s Constitution, Article II, Section 11,

as bolstered by the right of individual privacy, Article II, Section 10. Opinion, ¶ 64. The

Court thus directs that the recording may not be admitted into evidence in the event of a

retrial. Opinion, ¶ 65.

¶139 Yet, while we suppress the recording itself, the Court leaves open the possibility

that the agent who unlawfully made it can still be called to testify personally about the

substance of the recording. The recording is suppressed; its contents are not. In my

view, however, Golie’s testimony ought to be suppressed as well. Allen’s right to be free

from unreasonable searches and invasions of privacy is compromised not only by the

admission of the warrantless recording, but, equally so, by the testimony of the

government agent as to her recollections of what was said in the conversation. If the

government acquires verbal evidence by means of a warrantless search, then suppressing

the recording of the conversation, but not the conversation itself, effectively eviscerates

the rights sought to be protected. Our decisions today and in Goetz go only half way;

they stop short of fully protecting the right of individual privacy and the right to be free

from unreasonable searches.

¶140 As noted at the outset, this approach of suppressing the recording, but not the

conversation itself, is akin to suppressing evidence obtained by means of an unlawful

entry into the defendant’s home, but then allowing the officers to testify about that

evidence and the fact that they found it in the defendant’s home. While the Court asserts
81
that this analogy fails, see Opinion, ¶ 65 n. 2, it appears that the Court has simply missed

the point. Allowing an agent to testify about evidence which he acquired through an

illegal search, and which has therefore been suppressed, defeats the purpose of the

exclusionary rule—which, it must be recalled, is intended to deter constitutional

violations, applies to indirect as well as direct evidence, and includes knowledge acquired

during an unlawful search. Obviously, there is little, if any, deterrent when the

prosecution is permitted to introduce otherwise excluded evidence through the mere

expedient of having one of its witnesses describe that evidence to the jury. In this regard,

we must not forget that Allen’s objection is not so much to the recording itself as it is to

the contents of the recording. Surely we would not be here debating this issue if all that

Golie had managed to record was perfectly innocuous statements. Again, it is the

evidence of his inculpatory statements which Allen seeks to suppress. And if the

mechanical evidence of those statements must be suppressed as the product of a

constitutional violation, then so too should the verbal evidence (i.e., the agent’s testimony

about them) if the exclusionary rule is to serve its function.

¶141 Notably, the Court proffers a distinction between the illegal intrusion in my

hypothetical and the illegal intrusion in the present case. The Court suggests that

whereas my hypothetical officer would not have been in the house to make his

observations but for his illegal entry, Allen invited Golie to participate in a conversation

with him and, thus, she was lawfully present to hear his verbalized thoughts. Her illegal

act, according to the Court’s holding under Issue 2, was to record those thoughts as they
82
were being expressed. Thus, since “Golie’s engaging in a cell phone conversation with

Allen is not poisoned by the fact of the recording,” Opinion, ¶ 65 n. 2, we presumably

need not suppress her testimony about the conversation under the exclusionary rule.

¶142 For reasons discussed in Part II above, I suggest that the “poisonous tree” in cases

such as this is not the mere fact of the recording. Rather, it is the fact of gathering

evidence from the defendant without a warrant, with the recording being just one fruit on

that tree. Nevertheless, for purposes of the present case, treating “the fact of the

recording” as the poisonous tree is arguably correct, given that Allen requested

suppression of only the recording, and not Golie’s testimony about their conversation.

However, the Court’s dictum on this matter—consisting of two conclusory sentences at

the end of a footnote regarding an issue that wasn’t even raised—is far from a holding.

In this regard, and for clarification, I note that my argument herein is not that we should

grant Allen relief that he did not request. Rather, the purpose of this concurrence is to

point up the problematic aspects of the Katz “expectations” test and the illogicality of

suppressing the recording but not the agent’s testimony. Ultimately, a definitive holding

on the question of whether the State’s warrantless acquisition of a person’s verbalized

thoughts is unlawful, whether or not a recording device is used, must await a future case

where the issue is squarely presented for decision.

IV. Conclusion

¶143 The rule we should adopt for search-and-seizure analysis is a simple one. When

the government looks over or through, explores, examines, inspects, or otherwise engages
83
in conduct designed to find, extract, acquire, or recover evidence, it is a “search,” and

when the search implicates an individual’s person, papers, homes, or effects, it must be

conducted with a warrant or in reliance on one of the well-recognized exceptions to the

warrant requirement. Whether the courts deem the defendant’s expectation of privacy as

reasonable and whether we believe the evidence-gathering technique is sufficiently

utilitarian are not part of the equation. Likewise, it does not matter whether the search is

conducted by law enforcement directly or, as here and in Goetz, indirectly by means of

government agents. Finally, all evidence gathered as a result of an illegal search must be

suppressed. Where verbal evidence is concerned, that includes the conversations

themselves as well as the recordings of the conversations. Both are evidence obtained by

constitutionally impermissible means. 5

¶144 If Article II, Section 11 means anything, this constitutional right requires

scrupulous adherence to the warrant requirement when the government engages in

evidence-gathering activities which implicate an individual’s person, papers, home, or

effects. That constitutional mandate is not lessened, and cannot be avoided, by using an

agent to obtain evidence which the government could not obtain directly through a law

5
As a corollary to this, I have previously argued that an officer’s personal, direct
observations made independently of the warrantless audio or visual recordings would not
necessarily have to be excluded, though his characterizations of the recording’s substance
should be. See State v. Foston, 2009 MT 191, ¶¶ 22-25, 351 Mont. 85, 209 P.3d 262
(Nelson, J., specially concurring). Notably, at the Foston oral argument, in response to
questioning from the Court, the Attorney General assured the Court that “post-Goetz, we
wouldn’t be getting into this sort of thing”—i.e., an officer testifying as to the substance
of an illegally obtained recording—“because under Goetz, we need a warrant to get into
any evidence regarding electronic surveillance.” See Foston, ¶ 27.
84
enforcement officer. How and through whom the government conducts its evidence-

gathering activities and what form the government uses to preserve the evidence it

acquires (whether a recording or the agent’s memory) are immaterial. Without a warrant,

all evidence gathered by the government as a result of the warrantless and illegal search

should be suppressed.

¶145 I specially concur.

/S/ JAMES C. NELSON

Justice Jim Rice, concurring in part and dissenting in part.

¶146 I concur with the Court’s resolution of Issues 1 and 3, but dissent from Issue 2.

¶147 After Allen lured Louis Escobedo to Golie’s vehicle and violently attacked him,

which included discharging a gun next to Escobedo’s head and pistol whipping him until

he was unconscious and bleeding profusely from a head wound, Allen spoke about his

actions to Golie over the telephone. Golie, working with the police, thereafter recorded

her cell phone conversations with Allen. On the recording, Allen can be heard talking

with other people on numerous occasions during his conversations with Golie, all the

while downplaying the assault by claiming he had merely inflicted a “cut” on Louis’s

“hand.” Allen clearly had no intention of engaging in a private conversation because he

knowingly exposed his admissions about the assault to others during these conversations.

“What a person knowingly exposes to the public is not protected . . . .” State v. Scheetz,

85
286 Mont. 41, 49, 950 P.2d 722, 726-27 (1997) (quoting State v. Bullock, 272 Mont. 361,

375, 901 P.2d 61, 70 (1995)).

¶148 Despite these facts, the Court extends the decision in State v. Goetz, 2008 MT 296,

345 Mont. 421, 191 P.3d 489, and finds that Allen exhibited a subjective expectation of

privacy in his cell phone conversations with Golie, and that society would be willing to

recognize Allen’s expectations as reasonable, pursuant to Article II, Sections 10 and 11

of the Montana Constitution. In doing so, the Court ignores U.S. Supreme Court

precedent, overrules long-standing and well-established Montana precedent, and

disregards the clearly expressed intentions of the 1972 Constitutional Convention

delegates.

¶149 In U.S. v. White, the Supreme Court held that the Constitution “permit[s]

authorities to use the testimony of those associates who for one reason or another have

determined to turn to the police, as well as by authorizing the use of informants . . . .”

The White Court explained that, “[i]f the law gives no protection to the wrongdoer whose

trusted accomplice is or becomes a police agent, neither should it protect him when that

same agent has recorded or transmitted the conversations which are later offered in

evidence to prove the State’s case.” U.S. v. White, 401 U.S. 745, 752, 91 S. Ct. 1122,

1126 (1971) (citing Lopez v. U.S., 373 U.S. 427, 83 S. Ct. 1381 (1963)). The White

decision, announced a year prior to the Montana Constitutional Convention, was

intimated by the delegates throughout their statements regarding the privacy clause,

demonstrating they were certainly aware of White’s holding, as further noted below. The
86
Supreme Court reaffirmed White’s principles in U.S. v. Caceres, holding that “[n]either

the Constitution nor any Act of Congress requires that official approval be secured before

conversations are overheard or recorded by Government agents with the consent of one

of the conversants.”1 U.S. v. Caceres, 440 U.S. 741, 744, 99 S. Ct. 1465, 1467 (1979).

However, the Court rejects White and its progeny, and instead cites the dissenting

opinions of Justices Harlan and Douglas in that case. Opinion, ¶¶ 37, 56.

¶150 Then, to justify its departure from these principles, the Court offers that Montana’s

constitutional right to privacy was intended to be broader than the federal Constitution on

this issue. However, for over three decades our own jurisprudence has followed the

principles established in White, holding that the Montana Constitution, including the right

to privacy, does not protect defendants from electronic recordings of their conversations

when one party to the conversation consents. State v. Hanley, 186 Mont. 410, 608 P.2d

104 (1980); State v. Coleman, 189 Mont. 492, 616 P.2d 1090 (1980); State v. Canon, 212

Mont. 157, 687 P.2d 705 (1984); State v. Solis, 214 Mont. 310, 693 P.2d 518 (1984);

State v. Brown, 232 Mont. 1, 755 P.2d 1364 (1988); State v. Jones, 2008 MT 440, 347

Mont. 512, 199 P.3d 216. The Court reasons that these decisions were “flawed” with

“analytical shortcomings,” necessitating a reassessment. Opinion, ¶¶ 35, 43. The Court

then abrogates the previous decisions from this Court, spanning more than thirty years,

1
All federal Circuit Courts of Appeals have accepted White as constitutional authority for the
principle that search warrants are not required to authorize electronic recording when one party
to the conversation consents. See State v. Brown, 232 Mont. 1, 9, 755 P.2d 1364, 1369-70
(1988) (citing C. Fishman, Wiretapping and Eavesdropping § 9, 17 (1978)).
87
on the notion that the current Court has discerned the correct meaning of the Montana

Constitution.

¶151 However, the Court’s decision today clearly conflicts with the expressed intention

of the Constitutional Convention delegates regarding the right to privacy. First, when

debating the privacy clause, the delegates discussed an outright ban upon third party

(without consent) wiretapping and electronic surveillance, but rejected this proposal.

Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, pp. 1682-83

(Delegate Campbell).

¶152 Then, Delegate Robinson, seeking a stronger right to privacy, offered an

amendment which would have added “Privacy of communications shall be inviolate” to

the Constitution. Delegate Holland opposed the amendment, suggesting the number of

actions which would be prohibited by such an amendment, including recording or

searching of obscene phone calls and telegrams. Delegate Campbell offered a counter-

proposal to weaken Delegate Robinson’s amendment, explaining that the convention

should not be:

excluding the legitimate law enforcement people who, with the consent of
one party, the person who is being threatened by phone calls and things like
this, to act on behalf of that victim. The privacy of that individual certainly
could be waived with his or her consent, and there’s certainly no privacy
toward the obscene caller. I feel that this would not hinder law
enforcement in that respect at all . . . . The federal law does provide a
number of areas for wiretapping. They certainly are available; they could
be used.

88
Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, p. 1685

(emphasis added). Delegate Melvin echoed these concerns, and Delegate Dahood, who

had chaired the Bill of Rights Committee, offered an answer to a question about whether

the privacy provisions would interfere with recording of obscene phone calls—and noted

the significance of one party’s consent:

First of all, this does not in any way relate to the obscene phone call
situation, nor does it relate to the ability of the telephone company to make
the traces. The logic and the reason is this: all personal rights,
constitutional or otherwise, may be waived. Lady A is receiving the
obscene phone call. She waives her right and grants the telephone
company the right to intercept that communication. The individual that’s
making the call does not have the right of privacy with respect to violating
the law and making the obscene phone calls, so as a consequence, we are
not interfering with anyone’s rights by having the telephone company
attempt to intercept and discover and determine who the caller is; we are
protecting the right of privacy.

Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, p. 1686. Then,

perhaps most tellingly, Delegate Robinson conceded, in response to a question, that

telephone conversations with one consenting party would not be deemed private, even

under her stronger privacy amendment:

Oh, no. You’re – there’s a difference between your knowing that you’re
telling me and you know whether there is someone around us listening or if
it’s just you and I; whereas, on the telephone, you may tell me that and
you may suspect that I’m the only one listening, but you certainly may not
know that.

Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, p. 1686

(emphasis added). Delegate Robinson eventually withdrew her amendment to the

89
privacy clause, leaving the clause intact and as originally proposed by the Bill of Rights

Committee.

¶153 These statements by the Constitutional Convention delegates on the specific issue

before us are virtual echoes of the statements in White, 401 U.S. at 752, 91 S. Ct. at 1126

(an individual “must realize and risk that his companions may be reporting to the

police”). As White explained, and the delegates confirmed, conversations are private

only to the extent of the desire of the participants. There is nothing which prevents an

individual from relaying to police something he has heard another say. While the Court

is free to dispute the relative merits of U.S. Supreme Court decisions regarding the

federal Constitution and the practice of electronic monitoring, it should not feel free to

disregard our constitutional history. The Constitutional Convention delegates did not

intend the right to privacy to extend to telephone conversations involving the consent of

one party, and their intention stands in stark contrast to the Court’s holding today.

¶154 The Court’s statement, that “citizenry of this state would not tolerate” “participant

monitoring and recording of telephone conversations without a warrant, and, thus, subject

only to the self-restraint of law enforcement,” does not reflect the true issue. Opinion,

¶¶ 56-57. Police have never had “unchecked, warrantless” power to electronically

monitor and record telephone conversations subject only to their “self-restraint.” We

have long recognized the rule that police officers could intercept, transmit or record

private conversations as long as one of the parties to the conversation consents. “This is

true as long as the will of the consenting party has not been subjected to overbearing
90
pressure from the authorities.” Hanley, 186 Mont. at 419, 608 P.2d at 109 (emphasis

added, citations omitted). Without the voluntary consent of a conversant, or a warrant,

the police have never been free to monitor or record telephone conversations—precisely

as the constitutional delegates intended.

¶155 The logical conclusion of the Court’s reasoning is found in the position taken by

the Concurrence that, in addition to the electronic recordings, the conversations between

Golie and Allen should have been suppressed as well. Concurrence, ¶ 134. If the

electronic monitoring and recording of Golie’s conversation with Allen, notwithstanding

Golie’s consent, really constitutes a prohibited search under Article II, Sections 10 and 11

of the Montana Constitution, then the Concurrence is logically correct that the

conversations themselves, in addition to the recordings, must also be suppressed as fruits

of a warrantless, unconstitutional search. In my view, this illustrates, as a matter of logic,

the ultimate difficulty of the Goetz rule and its extension here.

¶156 Therefore, upon the judgment of the U.S. Supreme Court in White and its progeny,

this Court’s precedent over the past 30 years, and the expressed intention of the delegates

to the 1972 Montana Constitutional Convention, I would conclude that Article II,

Sections 10 and 11 of the Montana Constitution are not violated when police

electronically monitor and record telephone conversations with the voluntary consent of

one of the parties, and would affirm the District Court’s holding on this issue.

/S/ JIM RICE

91