State v. Helfrich

No. 14744

I N THE SUPREME COURT OF THE STATE OF M N A A
OTN

1979

STATE OF MONTANA,

P l a i n t i f f and A p p e l l a n t ,

-vs-

RICHARD HELFRICH,

D e f e n d a n t and R e s p o n d e n t .

Appeal from: D i s t r i c t Court of t h e Eighteenth J u d i c i a l District,
H o n o r a b l e W. W. L e s s l e y , J u d g e p r e s i d i n g .

C o u n s e l o f Record:

For Appellant:

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Donald W h i t e , County A t t o r n e y , Bozeman, Montana
G r e g o r y R. Todd a r g u e d , Deputy County A t t o r n e y ,
Bozeman, Montana

F o r Respondent:

Goetz a n d Madden, Bozeman, Montana
James H. Goetz a r g u e d , Bozeman, Montana

Submitted: September 1 2 , 1979

Decided :

Filed:
rglv :
.
,,:
1

Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the Court.

The State of Montana appeals from an order of the
Gallatin District Court granting defendant's motion to
suppress all evidence resulting from an illegal search
and seizure.
On July 25, 1978, Mildred Arnold telephoned the
Gallatin County Sheriff's Office. She informed the answering
office that she observed what she thought was a number of
marijuana plants growing in the yard of her neighbor, Richard
Helfrich, in Willow Creek, Montana. A deputy was dispatched
to investigate the matter. The yard was fenced and contained
a "lush" garden, including tall sunflowers. After investi-
gating and seeing no marijuana, the deputy closed the case.
On July 31, 1978, Arnold entered Helfrich's garden and
took a sample of a leafy material. The next day, August
1, 1978, she took a sample to the Gallatin County Sheriff's
Office where it was field tested positive for THC, the active
ingredient in marijuana.
Later that same day, Gallatin County Sheriff officers
went into the alley behind the Helfrich property, looked over
the fence of the defendant and claimed to have spotted and
subsequently photographed marijuana plants growing within
a second enclosure constructed of wood and chicken wire.
On these facts, the officers obtained a search warrant
from the Justice of the Peace. On August 3, 1978, the
officers went to the Helfrich household and servedthe warrant
on Helfrich's wife. As a result, a quantity of plant material
alleged to be marijuana was pulled from the garden.
An information was filed on August 21, 1978, charging
Helfrich with criminal sale of dangerous drugs. A suppression
-2-
hearing was held on November 22, 1978. The District Court,
by an order entered on December 4, 1978, suppressed all
evidence oral and tangible, direct and indirect, resulting
from the search and seizure. The court based its suppression
order on faulty probable cause stemming from the illegal
actions of Arnold. We affirm.
The State presents three issues for our review:
1. Whether the evidence must be suppressed according
to current constitutional authority?
2. Does the exclusionary rule apply to cases in which
evidence is illegally seized by a private person?
3. Was Mildred Arnold a constructive agent of the
Gallatin County Sheriff's Office?
The 1972 Mont. Const., Art. 11, 811, states in pertinent
part:
". . . No warrant to search any place, or seize
any person or thing shall issue . .
. without
probable cause .
. ."
Section 46-5-202, MCA, states:
"Grounds for search warrant. Any judge may
issue a search warrant upon the written
application of any person, made under oath
or affirmation before the judge, which:

"(2) states facts sufficient to show probable
cause for issuance of the warrant;"
State law requires that the decision as to the existence
of probable cause be made on the basis of sufficient competent
facts. According to the record, the application for a
search warrant was premised on two factors: (1) photographs
taken from the roadway abutting the respondent's property by
a Gallatin County Sheriff's detective and (2) a sample of
marijuana illegally obtained by an inquisitive neighbor.
No trace of marijuana was reported by the first officer
who personally surveyed the area on July 25, 1978. In fact,

the opposite conclusion was reached as is exemplified by the
-3-
initial closure of the case. It is virtually impossible
by careful scrutiny of the photographs alone to either
locate, or identify any substance which would give credibility
to the existance of marijuana. Only the sample from Mrs.
Arnold affords any basis to support the allegation of the
existence of marijuana on the Helfrich property.
The sample obtained by respondent's curious neighbor
was obtained by means of illegal trespass upon the Helfrich
property. As a result, the sample was tainted as being the
fruit of an illegal invasion of respondent's right of privacy.
Since the application and subsequent issuance of the search
warrant were based in fact, solely on an illegally obtained
sample, the issuance of the search warrant and the subsequent
search itself were both improper and illegal. The evidence
was properly suppressed by the District Court.
The State relies upon the rule enunciated in Burdeau
v. McDowell (1921), 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048.
That decision held illegally obtained evidence admissible
under the Fourth Amendment when seized by a non-governmental
agent who is not acting in concert with any governmental
agency. We find the Montana Constitution affords an individual
greater, explicit protection in this instance than is offered
in the Fourth Amendment decision of the Burdeau Court. The
1972 Mont. Const., Art. 11, 5 s 10 and 11 provide:
"Section - - - of privacy. The right of
10. Right
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.
"Section 11. Searches and seizures. The
people shall be secure in their persons, papers,
homes and effects from unreasonable searches
and seizures. No warrant to search any
place, or seize any person or thing shall
issue without describing the place to be
 searched or the person or thing to be
seized, or without probable cause, supported
by oath or affirmation reduced to writing."
The importance of the right of individual privacy
to the framers of the Montana Constitution is obvious from
these provisions and the transcript of the Montana Con-
stitutional Convention. Transcript of Proceedings, Vol.
VII, pp. 5179-5205 (1972). This Court has previously noted
the significance of the explicit guarantee of the right to
individual privacy contained in section 10, as no comparable
provision exists in the United States Constitution. State
v. Sawyer (1977), Mont. , 571 P.2d 1131, 1133, 34
St.Rep. 1441, 1444; State v. Coburn (1974), 165 Mont. 488,

The framers of the 1972 Constitution indicated the
right of individual privacy was significant whatever the
source of the invasion. The delegate who introduced the
proposed privacy section reflected these concerns:
". .. Certainly, back in 1776, 1789, when they
developed our bill of rights, the search and
seizure provisions were enough, when a man's
home was his castle and the state could not
intrude upon this home without the procuring
of a search warrant with probable cause being
stated before a magistrate and a search
warrant being issued. No other protection
was necessary and this certainly was the greatest
amount of protection that any free society has
given its individuals. In that type of a
society, of course, the neighbor was maybe
three or four miles away. There was no real
infringement upon the individual and his right
of privacy. However, today we have observed
an increasingly complex society and we know
our area of privacy has decreased, decreased
and decreased . . ."
Tr. of the Montana Con-
stitutional Convention, Vol. VII, pp. 5180-81.
Later in the same statement, the scope of the delegates'
concern was addressed:
.
". . It isn't only a careless government that
has this power to pry, political organizations,
private information gathering firms, and even
an individual can now snoop more easily and
more effectively than ever before .. ."
Tr.
at p. 5182.
 A search and seizure such as the one executed by
Mrs. Arnold amounts to a significant invasion of individual
privacy. In State v. Brecht (1971), 157 Mont. 264, 485
P.2d 47, this Court held that the admission by the District
Court of evidence gained by means of eavesdropping on a
telephone conversation was reversible error because the
defendant's Constitutional right of privacy has been violated
via the Fourth Amendment under the Federal Constitution
as applied to State criminal court proceedings by the "due
process" clause of the Fourteenth Amendment. This Court
also stated the eavesdropping "equally" violated the defendant's
rights under 1889 Mont. Const., Art. 111, 87. (~mphasis
added.)
The 1972 Montana Constitution is more explicit in regards
to such rights.
The State in the present case, as it did in Brecht
contends the privacy protection is afforded only against
law enforcement officers and not against violations by
private citizens. In Brecht, we refuted this argument:
.
". . The violation of the constitutional right to
privacy and against compulsory self-incrimination
is as detrimental to the person to whom the
protection is guaranteed in the one case as in
the other. To distinguish between classes of
violators istantamount to distinction of
the right itself . . ."(Emphasis added.) Brecht,
Mont. at 270, 485 P.2d at 51.
In the same case, we recognized the appropriateness
of the exclusion of illegally obtained evidence in such cases:
"This \Court in the present case would be
remiss were it not to recognize that
evidence obtained by the unlawful or
unreasonable invasion of several of the
constitutionally protected rights guaranteed
to its citizens by both the federal and
Montana constitutions properly comes within
the contemplation of this Court's exclusionary
rule. To do otherwise would lend Court
approval to a fictional distinction between
classes of citizens: those who are bound to
respect the Constitution and those who are
not. Were the exclusionary rule to recognize
 such distinctions it would by indirection
circumvent the rule established by this
Court to enforce these rights and would in
fact render the rule and the constitutional
guarantees it protects meaningless." Brecht,
157 Mont. at p. 271, 485 P.2d at p. 51.
The Brecht holding was affirmed in Coburn, supra. We
again affirm and thereby hold that the right of individual
privacy explicitly guaranteed by the State Constitution is
inviolate and the search and seizure provisions of Montana
law apply to private individuals as well as law enforcement
officers. Evidence obtained through illegal invasions of
individual privacy are not to be admitted into evidence in
a court of law of this State.
Because the search of the Helfrich property was based
upon the fruit of an unlawful trespass, the District Court
acted properly in suppressing the evidence and granting the
defendant's motion to dismiss. Since the first issue is
dispositive of this case, we will not address the remaining
issues.
The order of the District--Court is affirmed.
_ --.
,

Justice i/

We Concur:

w e f Justice

..............................
Justices
Mr. J u s t i c e John Conway H a r r i s o n d i s s e n t i n g :
I respectfully dissent. While I r e c o g n i z e t h a t b o t h

t h e Coburn c a s e and t h e B r e c h t c a s e have been p a r t o f o u r

c a s e l a w f o r s e v e r a l y e a r s and t h a t a t l e a s t one l e g i s l a t u r e

h a s had t h e o p p o r t u n i t y t o change t h e law e s t a b l i s h e d i n

t h e s e o p i n i o n s , I f e e l now, as I d i d when I d i s s e n t e d t o

t h o s e o p i n i o n s , t h a t w e w e r e e s t a b l i s h i n g bad law.

Here, w e have a p r i v a t e c i t i z e n , who i n no way c a n be

c o n s i d e r e d a n a g e n t of t h e S t a t e , t u r n i n g o v e r e v i d e n c e t o

t h e S t a t e t h a t s h e had p r o c u r e d i n an assumed t r e s p a s s on
her neighbors' property. She had no o t h e r i n t e r e s t t h a n t o

e n f o r c e t h e law, and h e r a c t o f t u r n i n g o v e r t h e e v i d e n c e t o
t h e s h e r i f f ' s o f f i c e i s d i f f e r e n t from t h a t o f H i l l i s i n t h e

Coburn c a s e , where H i l l i s had a p r e v i o u s agreement w i t h t h e

p o l i c e t o g e t t h e e v i d e n c e from h i s e m p l o y e e ' s p o c k e t . I

b e l i e v e under t h e f a c t s h e r e Coburn i s c l e a r l y d i s t i n g u i s h a b l e .

P r i o r t o B r e c h t and Coburn t h e p u r p o s e o f t h e e x c l u s i o n a r y

r u l e was t o g u a r a n t e e t h a t t h e S t a t e and i t s a u t h o r i z e d

r e p r e s e n t a t i v e s would o b s e r v e an i n d i v i d u a l ' s c o n s t i t u t i o n a l
rights. The r u l e was t o p r o t e c t t h e i n d i v i d u a l from i l l e g a l

police activity. I t d i d n o t encompass i l l e g a l s e a r c h e s by

p r i v a t e i n d i v i d u a l s ; i t s b a s i c p u r p o s e , a s s t a t e d above, w a s

t o d e t e r p o l i c e a c t i v i t y and t h e r e b y g u a r a n t e e t h e p u r i t y of
t h e j u d i c i a l process. Once w e e x t e n d t h e e x c l u s i o n a r y r u l e

t o p r i v a t e persons, a s w e a r e doing here, s a i d extensions

c a n and w i l l e x t e n d t h e r u l e beyond any l o g i c a l p u r p o s e .
F o r t h e s e r e a s o n s I would r e v e r s e t h e D i s t r i c t c o u r t ' s o r d e r
o f s u p p r e s s i o n and send t h e c a s e t o t r i a l .