State v. Long

No. 84-280
IN THE SUPREME COURT OF THE STATE OF MONTANA

1985

STATE OF MONTANA,
Plaintiff and Appellant,
-vs-
CHARLES LONG and VICKI LONG,

Defendants and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Mike Greely argued, Attorney General, Helena, Montana
Harold F. Hanser argued, Billings, Montana

For Respondents:
Joseph P. Hennessey argued, Billings, Montana

Submitted: January 21, 1985
Decided: May 3, 1985

Filed:

Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
The State of Montana appeals an order of the Honorable
Diane Rarz, Judge of the Thirteenth Judicial District,
Yellowstone County, granting defendant's motion to suppress.
We reverse and remand.
Defendants, Charles and Vicki Long, at the time of the
charged offense, were renters of a house in Huntley, Montana.
The owner of the house, Millard Hultgren, lived next door.
There was no written rental agreement between the parties.
The landlord believed he had a right to enter his rental
property at will. However, conflj-cting testimony was pre-
sented on whether the tenants ever consented to such an
arrangement. The tenant Charles Long testified that there
was no such agreement.
A sudden increase in the electricity bill for the rental
house, a landlord obligation under the oral tenancy, caused
concern. In the evenings, Hultgren noticed a light burning
in the attic. On August 4, 1983, he entered, when the
defendants were not home, and wen.t to the attic where he
discovered a "grow light" shining on what was later deter-
mined to be 657 marijuana plants. Hultgren's status at this
point was a fact question. The District Court's finding that
he was a trespasser is supported in the record.
The Yellowstone County Sheriff's Office was notified and
an a-pplicationmade for a search warrant. Subsequently, the
warrant was issued and the marijuana plants seized.
The defendants were charged and subsequently filed a.
motion to suppress. This case presents four-square the issue
previously addressed on several occasions, the application of
the privacy clause and the exclusionary rule to private
action. The narrow issue before the Court in this case is:
"Are the fruits of a search conducted by a private
citizen, without any type of governmental involve-
ment, properly the subject of exclusion?"
 This Court has previously held that private searches
invade privacy rights protected by the Constitution and are
properly the subject of our exclusionary rule. The rule was
first articulated in State v. Brecht (1971), 157 Mont. 264,
485 P.2d 47. The same principle has been refined, approved
or commented upon in the following cases: State v. Coburn
(1974), 165 Mont. 488, 530 P.2d 442; State v. Sawyer (1977),
174 Mont. 512, 571 P.2d 1131; State v. Helfrich (1979), 183
Mont. 484, 600 P.2d 816; State v. Hyem (Mont. 1981), 630 P.2d
202, 38 St.Rep. 891; State v. Sayers (Mont. 1982), 648 P.2d
291, 39 St.Rep. 1309; State v. Van Haele (Mont. 1982), 649
P.2d 1311, 39 St.Rep. 1586. The rule has also been referred
to in headnotes in State v. Sykes (Mont. 1983), 663 P.2d 691,
40 St.Rep. 690, and Duran v. Buttrey Food, Inc. (Mont. 1980),
616 P.2d 327, 37 St.Rep. 1545.
The last two cases to thoroughly analyze the rationale
for the position applying the exclusionary rule to evidence
seized by private persons are State v. Hyem, supra, and State
v. Van Haele, supra. In Hyem, the charges arose when skis,
belonging to one Buzz Welch, were found in defendants' resi-
dence and seized by officers of the Carbon County Sheriff 's
Office pursuant to a search warrant issued by the local
justice of the peace. The issuance of the warrant was ba.sed
on affidavits given by two of Welch's friends, who stated
they had seen the skis at defendants' rented hone in Red
Lodge, Montana. The informants had gained entry into defen-
dants' rented residence by telling a local realtor that they
were interested in purchasing the home, although in point of
fact, they were interested in looking for the skis. There-
fore, the informants were technically trespassers.
The majority opinion distinguished the right of privacy
in Montana from the right of privacy protected by the Federal
Constitution and noted that the right of privacy was specifi-
cally guaranteed in Article 11, Section 10 of the 1972
Montana Constitution. The majority said:
"In Brecht, it was pointed out that there cannot be
a fictional difference between classes of citizens:
those who are commanded to obey the constitution
and those who are not. Our constitutional prohibi-
tion against unreasonable invasion of privacy
applies to all persons, whether acting for the
state or privately." Hyem, 630 P.2d at 206, 38
St.Rep. at 8 9 4 .
This Court, in Hyem, indicated a concern with "the ever-
increasing presence of private police" and relied upon this
concern shoring up the argument that the privacy provision
of the Constitution should be applied to prohibit individual
action as well as state action.
Next, the majority opinion in Hyem addressed the appli-
cation of the exclusionary rule to evidence seized illegally
by private individuals. Unlike other courts, which have
viewed the exclusionary rule as a rule of procedure, this
Court indicated that the exclusionary rule was rooted in the
Constitution itself. The majority said:
"The exclusionary rule is not a judicial plaything,
casually adopted and casually waived. It is a
constitutional answer to unconstitutional activity.
It is an affirmation that a free government can no
more tolerate the unlawful activities of its agents
than crime in the streets. It is paste and cover
for the bones of our individual constitutional
rights, without which such rights were in danger of
becoming an unfleshed skeleton." Hyem, 630 P.2d at
2 0 8 , 38 St.Rep. at 897.

The majority noted that a distinction had to be made
where the un.rea.sonablesearch was made by private individuals
and not by the police. The Court's opinion, in essence,
distingu-ished federal law denying the application of the
exclusionary rule to the fruits of private action by arguing
that the Federal Constitution was not violated by private
action and that, therefore, the exclusionary rule was not
applied. However, this Court noted that, since our State
Constitution was violated by a private search, the
exclusionary rule should appropriately be applied in order to
protect from having the constitutional right invaded. This
rationale logically follows if the exclusionary rule itself
is implied in the Constitution in order to give meaning to
those constitution.al rights specifically provided.
The dissent in State v. Hyem, supra, was premised upon
traditional notions of constitutional principles. Unless
specifically provided otherwise, citizens' rights articulated
in the Constitution proscribed only state action; therefore,
if a private citizen invaded the privacy of another citizen,
there was no violation of the Constitution itself. Further-
more, in accordance with the view of all other courts, the
dissent viewed the exclusionary rule as a rule of court
procedure to deny admission to the fruits of illegally seized
evidence in order to deter unlawful police activities and to
preserve the integrity of the judiciary itself.
This Court now adopts the rationale of the three dis-
senters expressed in State v. Hyem, supra, and overrules all
previous decisions of this Court inconsistent herewith.
Montana is one of a small minority of states to have an
express provision for privacy in its Constitution. No other
state has followed Montana's lead in interpreting the privacy
protections of a state constitution to be applicable to acts
of private persons. Other state courts have commented upon
the Montana decisions. In fact, a District Court judge in
Wyoming was persuaded to follow this jurisdiction. On ap-
peal, the Wyoming Supreme Court said:
"The sole jurisdiction which we have been able to
identify in which a different rule prevails is in
our sister state of Montana. The rule in Montana
appears to he that the same constitutional protec-
tions pertain whether a search and seizure involves
private individuals or law enforcement officers.
State 5 Hyem, Mont., 630 P.2d 202 ( 9 8 The
most charitable rationalization of that ruling is
that it depends upon a peculiar provision of the
Constitution of the State of Montana which is not
found in the constitution of this sta-te. Even so,
the dissenter to the court's opinion in State v.
Hyem, supra, points out that other states having
the same style of constitutional provision have
adhered to the usual. rule distinguishing private
individual-s from law enforcement officers . On the
other hand one well could conclude, having perused
the somewhat tortured history of that rule in the
 State of Montana, that the rule is chimerical.
Unfortunately in this instance Beon Heiner persuad-
ed the district judge to follow that rule in es-
sence." State v. Heiner (Wyo. 1984), 683 P.2d 629,
636.
We do not take offense at the Supreme Court of Flyoming
terming our rule chimerical, which means fa.ntastic or imagi-
nary. Neither are we afraid to wallc alone. Rather, we
reverse the previously articulated rule because we believe it
unsound.
The privacy section, Mont. Const. Art. 11, S 10 (1972),
specifically states:
"The right of individual privacy is essential to
the well-being of a free society and shall not be
infringed without - showing - -a compelling state
the of
interest. " (emphasis supplied)
The language of the section itself indicates that the
framer's contemplated state action by allowing an invasion
where there was a compelling state interest.
Historically, constitutions have been means for people
to address their government. In rare instances, the consti-
tutional language itself has specifically addressed priva.te
action. For instance, Mont. Const. Art. 11, S 4 (19721,
provides in part:
". . . Neither the state nor any person, firm,
cor~oration. or institution shall discriminate
L

against any person ...." (emphasis supplied)
Notably, the privacy section does not address private indi-
viduals as does the civil rights provision quoted.
Although we do not feel our Constitution is sufficiently
ambiguous to require extensive perusal of the constitutional
transcripts, we do note that a speech on the floor of the
convention by one delegate has been referred to in other
decisions of this Court. In State v. Helfrich, supra, this
Court eluded to the following excerpt from the constitutional
debate:
" I . ..
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. a t p .
 5182." Helfrich, 183 Mont. at 488, 600 P.2d at
818.
This quotation actually resulted from a delegate reading
from a newspaper editorial which supported an expanded right
of privacy. However, the balance of the delegate's statement
is significant. It reads:
"[Ilt produces what I would call a semipermeable
wall of separation between individual and state;
just as the wall of separation between church and
state is absolute, the wall of separation we are
proposing with this section would be semipermeable.
That is, as a participating member of society, we
all recognize that the state must come into our
private lives at some point; but what it says is,
don't come into our private lives unless you have a
good reason for being there. We feel that this, as
a mandate - - qovernment, would cause a complete
- to our
reexamination and guarantee our individual citizens
of Montana this very important right . . . ."
(emphasis supplied) Montana Constitutional Conven-
tion, Transcript of Proceedings, Vol. VII, pp.
5185-5182.
There is every indication that the delegates themselves
adopted a privacy section which would only proscribe state
action. Certainly, there is nothing in the constitutional
debate that clearly indicates we should depart from tradi-
tional constitutional notions. Therefore, in accordance with
well-established constitutional principles, we hold that the
privacy section of the Montana Constitution contemplates
privacy invasion by state action only.
The second issue which must be addressed is application
of the exclusionary rule. Since we have held that the con-
stitutional rights of the defendants have not been violated,
the reason for applying the exclusionary rule fades. As a
rule of court procedure, the exclusionary rule has been
applied to deter illegal police conduct and to preserve
judicial integrity. When applied to private action, the
deterrence argument is inapplicable. Private individuals are
not schooled in the exclusionary rule and most likely would
he unaware of its application. Therefore, it would not deter
them from engaging in searches that would be illegal if
conducted by government officials.
 The strongest support for application of the
exclusionary rule to the fruits of private action comes from
the "silver platter doctrine." In a special concurrence
filed to the majority opinion in State v. Van Haele, supra,
reference was made to that doctrine:
". . . As pointed out in the majority opinion, the
United States Supreme Court in Elkins said in part:
"'If the government becomes a lawbreaker, it breeds
contempt for law; it invites every man to become a
law unto himself; it invites anarchy. To declare
that in the administration of the criminal law the
end justifies the means--to declare that the gov-
ernment may commit crimes in order to secure the
conviction of a private criminal--would bring
terrible retribution. Against that pernicious
doctrine this court should resolutely set its
face.' (Citations omitted.) 364 U.S. at 223, 80
S.Ct. at 1447, 4 L.Ed.2d at 1681.
"In Coburn, also cited by majority, Justice Daly
very logically noted:
II I ..
.[U]nreasonable or illegal intrusions know-
ingly accepted -- d ~ f r o mthe private sector by
and u s e
the qovernment amount to an extension of the silver
platfer doctrine condemned by Elkins, particularly
when viewed in the light of judicial integrity
emphasized in Elkins.' (Emphasis in original) 165
Mont. at 503, 530 P.2d at 450."
The special concurrence went on to note that:
"If the 'silver platter doctrine' is to be recog-
nized for the purpose of excluding evidence oh-
tained by private individuals then, in my opinion,
it should be confined to instances where the evi-
dence was obtained in violation of criminal stat-
utes thereby rendering the evidence 'illegal.' In
this way judicial integrity is preserved by not
judicially blessing the fruits of illegal activity.
such an application of the exclusionary rule would
not be premised upon an invasion of the accused's
constitutional rights. Rather, the exclusionary
rule, as a rule of court procedure, would prevent
the State from relying upon the illegal conduct of
a private citizen." -
Van Haele, 649 P.2d at 1318,
39 St.Rep. at 1595-1596.
In the case at bar, the evidence was seized by a land-
lord who was determined by the District Court to be a tres-
passer. Under such circumstances, judicial integrity does
not require exclusion of the evidence. We reserve for anoth-
er day the determination of whether to apply the exclusionary
rule to evidence gathered as the result of felonious conduct.
 The order of the District Court suppressing the
questioned evidence is reversed. The case is remanded for
trial.

We concur: ,
,
ief Justice

Justices
Mr. Justice Fred J . Weber concurs as follows:
As pointed out in the majority opinion, starting in 1971
this Court articulated the rule that private searches invade
privacy rights protected by Art. 11, Sec. 10, Mont.Const. and
are therefore properly subject to the exclusionary rule.
That rule was set forth in numerous cases, the last of which
was decided in 1983. In view of our reversal of that
well-established holding I think it appropriate to discuss
the rule of stare decisis.
We recognize that a significant change in a basic rule
of law unsettles the law and gives rise to criticism. State
ex rel. Sparling v. Hitzman (1935), 99 Mont. 521, 525, 44
P.2d 747, 749, describes the problems in failing to follow
established precedent, as well as the need for evolution of
the law:
"We realize the force and the wisdom of
the rule of stare decisis. We are not
unmindful of the fact that principles of
law should be positively and definitively
settled in order that courts, lawyers,
and, above all, citizens may have some
assurance that important legal principles
involving their highest interests shall
not be changed from day to day, with the
resultant disorders that of necessity
must accrue from such changes. We are
mindful, however, of the fact, as stated
by Mr. Justice Brandeis ... that 'in
the search for truth through the slow
progress of inclusion and exclusion,
involving trial and error, it behooves us
to reject, as guides, the decisions upon
such questions which prove to have been
mistaken.' - - - of stare decisis
The rule
will not prevail where - - demonstrably
-- it is
made to appear that the construction
=edupon the constitutional provision
in - former decision is manifestlv
- the a
wrong. " (emphasis supplied)
Principles of law should be definitively settled if that is
possible. However, as suggested by Justice Brandeis, the
search for truth involves a slow progress of inclusion and
exclusion, involving both trial and error. I do not cast any
reflection on those justices who participated in the opinions
which are being overruled. However, I do believe that the
decisions were fundamentally mistaken. I concur with the
majority conclusion that Art. 11, Sec. 10, Mont.Const.
contemplated state action and did not address the question of

private action.
I concur with the majority opinion.
Mr. Justice John C. Sheehy, dissenting:

Today's opinion has derailed the one vehicle that gave
strength and vitality to the unique right of privacy
enshrined in our State Constitution. Our state right of
privacy had meaning and force in our lives because this Court
excluded evidence obtained in violation of privacy. Until
today it was the proud accomplishment of this Court, in the
several cases today overruled, that enhanced by judicial
decision what the framers proclaimed, that "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." Today the vigor of that ringing
proclamation has been drained, leaving it merely a hortative
form of words.
The devastation is complete. The immediate effect of
today's opinion is to advise tenants that their right to be
"secure in their persons, papers, homes, and effects" is
subject to the whims of their landlords. But by limiting the
application of our constitutional privacy right to state
action only, the larger effect of today's decision is to cut
the underpinnings from any future claim of invasion of
privacy tort under the State Constitution. From today,
unless state action is involved a tort claim between
S-ndividuals for invasion of privacy may not be based on Art.
11, 5 10 of our State Constitution, but must instead be found

in the common law. Tragically, it was not necessary for such
a broad sweep of legal decision to set aside the exclusionary
ru1.e. In their zeal, the new majority rolled out a cannon to
shoot a fly.
 The majority opinion today results from a series of
misconceptions tha.t distort the reasoning of our previous
cases. One such misconception is that we have held that the
exclusionary rule is "rooted" in the Constitution. A second
misconception leads the majority to conclude the right of
privacy guaranteed by the State Constitution applies only to
state action. A third misconception concerns the earlier
dissents of the same -justices who are now part of the new
majority on the exclusionary rule.
It is a given tha.t there is no textual support in our
State Constitution for the exclusionary rule. Nowhere, and
particul.arly not in Art. 11, S 10, is there found the
language "evidence obtained in violation of this section
shall be excluded in the courts." But the same is true of
the Federal Constitution. We search in vain for the words
"right of privacy" in the express provisions of the Federal
Constitution. The United States Supreme Court has dug that
right out of the "penumbras" of the Bill of Rights. (At oral
argument, the Attorney General of this State seemed unwilling
to admit such penumbras.) In Griswold v. Connecticut (1965),
381 U.S. 479, 484, 85 S.Ct. 1.678, 14 L.Ed.2d 510, it is said:
"The foregoing cases suggest that specific
guarantees in the Bill of Rights have penumbras,
formed by emanations from those guarantees that
help give them life and substance (citing
authority). Various guarantees create zones of
privacy. The right of association contained in the
penumbra of the First Amendment is one, as we have
seen. The Third Amendment, in its prohibition
against the quartering of soldiers 'in any house'
in time of peace without the consent of the owner
is another facet of that privacy. The Fourth
Amendment explicitly affirms the 'right of the
people to be secure in their persons, houses,
papers, and effects, against unreasonable searches
and seizures.' The Fifth Amendment in its Self
Incrimination Clause enables a citizen to create a
zone of privacy which government may not force him
to surrender to his detriment. The Ninth Amendment
provides : 'The enumeration in Constitution, of
 certain rights, shall not be construed to deny or
disparage others retained by the people.'
"The Fourth and Fifth Amendments were described in
Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct.
524, 532, 29 L.Ed. 746, a.s protection against all
government invasions 'of the sanctity of a man's
home and the privacies of life.' We recently
referred in Mapp v. Ohio, 367 U.S. 643, 656, 81
S.Ct. 1684, 1692, 6 L.Ed.2d 1081, 1090, to the
Fourth Amendment as creating a 'right to privacy,
no less important than any other right carefully
and particularly reserved. to the people I 11 . . .
381 U.S. at 484-485.
This Court said in State v. Hyem (Mont. 19811, 630 P.2d
202, 208, 38 St.Rep. 891, 897, that the exclusionary rule "is
a constitutional answer to unconstitutional activity." I
insist on the integrity of that statement. That the
exclusionary rule is constitutionally required, as
distinguished from mandated, is supported by Justice Clark
who said in Mapp v. Ohio (1961), 367 U.S. 643, 648, 81 S.Ct.
1684, 6 L.Ed.2d 1081, that the exclusionary rule is "that
command which this Court has held to be clear, specific, and
constitutionally required--even if judicially
implied--deterrent safeguard without insistence upon which
the Fourth Amendment would have been reduced to a 'form of

words'. . ."
Contrary to the misconception of the majority, Hyem held
not that the exclusionary rule was a constitutional right but
a constitutional answer. It is a rule in accord with Art.
11, 16, Montana Constitution, that a speedy remedy be

afforded "for every injury to person, property, or
character."
The exclusionary rule is the only practicable "speedy
remedy. " Criminal prosecutions for deprivations of
constitutional rights are limited to "willful" violations.
Screws v. United States (1945), 325 U.S. 91, 65 S.Ct. 1031,
89 L.Ed. 1495. An injunction against violations cannot be
obtained unl-ess the party can establish he is likely to be
injured by the practices again in the future. City of Los
Angeles v. Lyons (1983), 461 U.S. 95, 103 S.Ct. 1660, 75
L.Ed.2d 675. A civil action against a violator for damages

is so obviously impracticable that it needs no discussion.
In view of the fruitl.essness of other remedies, any
lawyer worth his salt must admit the exclusionary rule is the
only effective remedy that will protect against
unconstitutional intrusions on privacy by busybodies or
snitches.
We were treated by the State in oral argument in this
case to a list of frightening possibilities under our
exclusionary rule. What, we were asked, would the
implications of the exclusionary rule be if the 1-andlord in
this case had found a body? The answer of course is simple:
A body cannot be suppressed, any more than the body of a
prisoner can be suppressed after an illegal arrest. But the
exclusionary rule should be applied with might and main when
any lesser evidence of criminal conduct is produced through
unlawful intrusions into one's privacy, for all of the
reasons usually expressed: the growth of technology in
electronic eavesdropping; governments should not cooperate
with unlawful intruders; no price can be placed on a
constitutional right; the exclusionary rule should not depend
on the fortuitous circumstance of who and of what quality was
the intruder; judicial integrity is involved; and unlawful
intrusions should not be encouraged.
Ah, but should the guilty go free? Emphatically yes,
where the only evidence of guilt results from an inva.sion of
the home or private precincts of the i-ndividual. Only the
ca-seswhere the intruder discovers criminal activity get into
the courts. There must be tens of instances of unlawful
intrusions into privacy which do not turn up criminal cases,
for most of us obey the laws. The opportunity for courts to
stress the heightened privacy right found in our State
Constitution will only come in cases, like all other cases on
constitutional rights, involving not very nice people. The
right of all of us to our privacy weighs greater than the
occasional and rare loss of conviction of a criminal.
Essentially it preserves judicial integrity for the
government not to act in concert with lawbreakers to convict
other lawbreakers.
A second misconception of the majority is that the state
constitutional right of individual privacy was intended by
the framers to be a wall against state action only.
As laws usually reflect the will of the people on
social, moral and economic issues, so too do constitutional-
provisions. The state framers in 1972 were not so far
removed from pioneer days in Montana as to have forgotten our
traditions of independence and privacy. Even the western
usage of hospitality and welcome in remote places for the
hungry wayfarer did not displace the duty of the wayfarer to
respect the person, home and property of his host. The
spirit of neutrality about our neighbor's business was
captured by the long-forgotten poet who described the Montana
he loved:
With skies that reach from east to west
And room to go and come
I liked my fellow man the best
When he was scattered some.
 That spirit had found its way into the decisions of this
Court before the 1972 constitutional convention. In State v.
Rrecht (1971), 157 Mont. 264, 485 P.2d 47, this Court said:
". . .The state admits this, but contends that
protection is afforded only against violations by
law enforcement officers and not against viol-ations
by private citizens.
"We think not. 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 one case as in
the other. To distinguish between classes of
violators is tantamount to destruction of the right
itself. This Court in 1952, in a civil case not
involving state or federal governmental agents or
activity, recognized this principle in the
following passage from Welsh v. Roehm, 125 Mont.
517, 523, 524, 241 P.2d 816, 819:
"Tontinuing the article announces:' The common
law has always recognized a man's house as his
castle, impregnable, often even to its own officers
engaged in the execution of his commands.'"
"the 'right of pri-vacy' is embraced within the
absolute rights of personal security and personal
liberty (citing authority.)
"'the basis of the right of privacy is 'the right
to be let alone' and is 'a part of the right of
liberty and pursuits of happiness. ' (Citing
authority.)" 157 Mont. at 270, 271, 485 P.2d at
50, 51.
Contrary to what is stated in the majority opinion, the
constitutional framers certainly contemplated that Art. 11, S
10 would be applicable to private as well as state action.
addition to the statement of the delegate quoted in the
maiority opinion (page 7, supra) that same Delegate Campbell
continued:
". .
. we feel that this, 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 $ them all. You all had placed on your desk
f
the Montana Standards' editorial of February 3,
1972. I think it states it very well. 'Times
change. That, in a nutshell, is why the
Constitutional Convention delegates in Helena are
working on a new and more modern governmental
 charter for Montana. Today, with wire taps,
electronic and bugging devices, photo surveillance
equipment and computerized data banks, a person's
privacy can be invaded without his knowledge and
the information so gained can be misused in the
most insidious ways. It isn't only a careless
government that has this power to pry; political
organizations, private organizations, private
information gathering firms, and even an individual
can now snoop more easily and more effectively than
ever before. We certainly hope that such snooping
is not as wide spread as some person would have us
believe, but with technology easily available and
becoming more refined all the time, prudent
safeguards against the misuse of such technology
are needed. Some may urge and argue that this is a
1-egislative,not a constitutional issue. We think
the right of privacy is like a number of other
inalienable rights; a carefully worded
constitutional article reaffirming this right is
desirable. Wade Dahood of Anaconda, chairman of
the Bill of Rights Committee, hit the nail on the
head when he said: 'As government functions and
controls expand, it is necessary to expand the
rights of the individual.' The right to privacy
deserves specific protection. Mr. Chairman, I
would recommend adoption of this section." Montana
Constitutional Convention, Verbatim Transcript,
Volume 5, at 1681.
Beyond cavil, in the light of the holding in State v.
Brecht, supra, which we must assume the framers knew about,
and the direct statement of the delegate proposing Art. 11, S
10 for constitutional adoption, a clear intention existed to

guarantee individual privacy in Montana from and after 1972
against both state and private action.
State v. Solis (1984), - Mont. -, 693 P.2d 519 is
not authority from this Court regarding the effect of state
action under the Privacy Clause. The case involved
warrantless videotaping by police officers in a "sting"
operation. In excluding the videotapes, two Justices based
their opinion on a right of privacy in a "sting" operation.
Three Justices concurred in the result only because they saw
the case as an illegal search without a warrant based on
federal law. They did not discuss privacy. Two other
Justices dissented and would have held
the search valid. The Justices who saw a privacy issue in
the case under the Privacy Clause relied on our earlier
holdings in Hyem and Van Haele, which are today overruled.
Perhaps the most telling argument against the
State-action-only interpretation of our privacy clause is
that the framers gave us a toothless clause if all they
intended to cover was state action. Interpreted as a
majority today interprets our state privacy clause, it is but
the functional equivalent of what is minimally guaranteed to
us in the Federal Constitution, but we are entitled to the
federal minimums of privacy with or without. the Montana
Constitution. The Fourteenth Amendment of the U.S.
Constitution has, since Mapp v. Ohio (1961), 367 U.S. 643, 81
S.Ct. 1684, 6 L.Ed..2d 1081, guaranteed that states would
protect the privacy rights of individuals penumbrally
contained in the U.S. Constitution. Those privacy rights
existed and still exist before and since the adoption by
Montana of Art. 11, § 10, and would exist without the State
Constitution.
I maintain that the Montana constitutional framers in
1972 wanted to do more for Montanans in the field of privacy.
They adopted Art. 11, S 10 to give Montanans a heightened
right of privacy, beyond the priva-cy rights found in the U.S.
Constitution. That aspiration for a heightened right meant
that our State Constitution would afford privacy greater than
the minimum guarantees of the Federal Constitution.
There is no force to the majority argument that the
Privacy Clause should be applied only to state action because
hitherto Montana stands alone in applying it to private
a-ction. Montana's constitutional Privacy Clause is unique.
No other state has a State Constitution provision exactly
like it. The closest is tha.t of Alaska in Art. I, S 22, 1972
Alaska Constitution, which provides:
"The right of the people to privacy is recognized
and. shall not be infringed. The legislature shall
implement this section."
In Allred v. Alaska. (Alaska 1976), 55 P.2d 411, where
one of the questions presented was whether statements made by
a defendant to a counselor were protected by Alaska's
constitutional provision on privacy, the Alaska Supreme Court
seems to assume without discussion that it would take state
action to trigger the constitutional privacy guarantee.
In California, in November 1972, the voters amended Art.
I, S 1 of their State Constitution to include among the
various "inalienable" rights of all people the right of
"privacy. " Curiously, as far as I am aware, no California
case has specifically decided whether the right of privacy in
the California Code applies to private action. However, in
White v. Davis (1975), 13 Cal.3d 757, 120 Cal.Rptr. 94, 533
P.2d 222, the Califarnia Supreme Court identified the
principle "mischiefs" at which the privacy right was
directed, including "the overbroad collection and retention
of unnecessary personal information by government and
business interests." To that extent at least, California
presumably would recognize that its privacy right precludes
business interests from intruding on individ-ual privacy.
Five states, Hawaii, Illinois, South Carolina, 1,ouisiana
and Florida as of 1968 included the right of privacy in some
form as a part of the traditional constitutional prohibition
against unreasonable searches and seizures. See Toward -
A
Right of Privacy, Gerald R . Cope, Jr., 5 F1.S.Univ.L.Rev.
(1977), 633, 710-734. Our framers declined that approach.
 It is noteworthy that in our 1972 Constitutional
Convention, the first draft of the search and seizure
provision, Art. 11, S 11, included language that "the people
shall be secure . . . from unreasonable searches and seizures
and invasions - privacy . . ."
of The delegates recognized
that the modifier "unreasonable" in S I1 weakened the right
of privacy they had established in S 10. Montana
Constitutional Convention, Verbatim Transcript, Vol. 5 at
1688. The convention therefore deleted reference to privacy
from S 11.
Two other states have a constitutional provision for
privacy, Washington and Arizona. Arizona treats its
constitutional provision as the functional equival.ent of the
Fourth Amendment, Arizona v. Murphy (1977), 117 ~ r i z .57, 570
P.2d 1070. Washington, however, is approaching what had been
Montana's position on the effect of its constitutional
privacy provision. Art. I, 5 7 of Washington's Constitution
provides that "no persons shall be disturbed in his private
affairs or his home invaded, without authority of law." In
State v. Williams (1984), 102 Wash.2d 773, 689 P.2d 1065,
1070, the Washington Court said:
"This provision differs from the federal
constitution and provides heightened protection to
our citizens' privacy rights (citing authority).
Where, a.s here, no probable cause exists to arrest
the suspect, we believe that the language of Const.
Art. I, § 7 forbids police seizures of this
nature. "
Although State v. Williams addressed police action, and
not private action, Washin.gton aligned itself with Montana in
determining that the right of privacy afforded by its state
constitution is greater than the federal minimums.
The majority has referred to the Wyoming decision of
State v. Heiner (Wyo. 1984), 683 P.2d 629, in which ~yoming
identified us as the single jurisdiction that applied the
right of privacy to private as well as state action. Wisely,
the majority decided not to rely on Wyoming as authority in
reaching its decision today. The myopic comments of the
Wyoming Supreme Court respecting State v. Hyem (Mont. 1981),
630 P.2d 202, 38 St.Rep. 891, result from its conclusion that
our history of the exclusionary rule vis-a-vis private action
is a "somewhat tortured history." Not tortured, but
straight-forward has been our line of decisions. From State
v. Brecht, supra, through State v. Coburn (1974), 165 Mont.
488, 530 P.2d 442; State v. Sawyer (1977), 174 Mont. 512, 571
P.2d 1131; State v. Helfrich (1979), 183 Mont. 484, 600 P.2d
816; State v. Hyem, supra; State v. Sayers (Mont. 1982), 648
P.2d 291, 39 St.Rep. 1309; and State v. Van Haele (Mont.
1982), 649 P.2d 1311, the course of our decisions has been
straight as an arrow: Our constitutional right of privacy
applied to private action. There have been dissenters, but
we have not had torture.
The importance of the privacy provision to the framers
can be assumed from its position in Art. 11, relating to the
declaration of individual rights. The privacy section
preceded the provision against unreasonable search and
seizures (S ll), the right of suffrage ( S 13), the right to
justice in the courts ( S 6 , the right to due process (S
17) , the privilege of habeas corpus (S 19) , and the right to
bail ( S 21). It preceded the right of an accused to meet his
witnesses face-to-face ( 24), the right against
self-incrimination and double jeopardy (S 25) and the right
to trial by jury (S 26) . By placing the right of individual
privacy before all of those other essential rights, the
framers, I submit, meant to evince their intention to give a
heightened right to privacy beyond the minimum rights of
privacy penurnbrally found in the Federal Constitution. It
was within the power of the state constitutional framers so
to do.
The framers in 1972 had a beautiful conception: They
felt the force of our tradition that each person ought to
mind his own business; they saw the home as a place of
refuge, peace and security. They provided that a wall of law
should be erected against all onslaught except when the
compelling interest of the State demanded otherwise. Private
persons do not act for the State. Intruders into privacy may
be nothing more than nosy neighbors, busybodies, or snitches.
The framers extended the right of privacy especially against
these.
Gone is that beautiful conception. Left only are the
minimum protections of the Federal Constitution, which
nowhere expressly guarantees individual privacy. Federally,
our privacy rights are no more than the shifting courts are
inclined to allow. Under our State Constitutjon, our
individual privacy rights are expressly stated to be
paramount. The framers unfortunately did not foresee that
this Court would dilute their positive declaration in Art.
11, S 10, by reading into its clear language some darkling
exception. This Court has stamped "approved" on the
nettlesome intruders, the nosy ones, the busy ones, the
snitches. It has said welcome to the "Big Spy Country."
The third. misconception of the majority is embedded in
their irresolution about the nature and extent of our state
Privacy Clause, as demonstrated by a comparison of the
statements of the majority and their earlier dissents.
 In the concluding paragraphs of the majority opinion, we
are given a moment's glimpse of the monster now penned up in
the basement. It may be turned loose again if the State
proposes to use evidence obtained in criminal activity.
It defies imagination how a criminal exception can he
read into the clear language of Art. I, 5 10. The glaring
internal inconsistency of the majority is the apparent
concession that the Privacy Clause applies to private action
if the private actors are criminals.
If the majority does indeed intend that criminal
activity shall be the watershed in the future in determining
rights under the privacy clause, it is a further sticking
inconsistency that the majority glides by the criminal
activity of Hultren in this case. The landlord stands before
us as a trespasser. He is indeed guilty of criminal trespass
under § 45-6-203, MCA. The offense of criminal trespass of
property is committed if a party knowingly enters or remains
unlawfully in an occupied structure. Section 45-6-203. A
person enters or remains unlawfully in an occupied structure
when he is not licensed, invited, or otherwise privileged to
do so. Section 45-6-201, MCA. In State v. Dess (1979), 184
Mont. 116, 602 P.2d 142, we upheld the conviction of Dess for
misdemeanor criminal trespass on his mere unlawful presence
in an occupied structure. There is no way here to
distinguish the criminal activity of Dess from that of
Yultgren, except the possible reluctance of the county
attorney to press the charge against Hultgren. The majority
offer no explanation why we must wait for another day for the
determination of the effect of criminal activity on the
Privacy Clause. This case presents criminal activity to the
Court.
 For a better understanding of the irresolution of some
members of the majority, the reader is invited to exa-mine
their dissents in State v. Hyem, supra; State v. Van Hael.e,
'supra; and their statements in this case.
In Hyem, the court applied the exclusionary rule to
exclude evidence obtained by two parties who entered a
private home on a ruse in order to discover evidence of
stolen property. The majority held that the Privacy Clause
was violated, and this required the exclusion of the
evidence. Justice Morrison dissented, contending without
reservation that constitutions are intended to establish
rights only between private persons and their government, and
that the exclusionary rule should not be applied where
individual privacy was violated by private parties. Justices
Weber and Harrison concurred in Justice Morrison's dissent.
In Hyem, Justice Daly weighed in with a stinging special
concurrence, attacking the dissent for "overzealous
statements" and pointing out language from State v. Coburn
(1974), 165 Mont. 488, 530 P.2d 442, to effect that
constitutions must be ca-pable of adaptation to a changing
world.
In Van Haele, the court ordered the exclusion of
evidence produced when a private party removed the hinges
from the padlocked. door of a rented storage unit and entered
the defendant's unit to obtain incriminating evidence. In
that case, Justice Morrison concurred, asserting again that
he found no support in the privacy clause to proscribe
private action but. that he would "modify his position from
that articulated in Hyem" to apply the exclusionary rule as a
rule of court procedure where "a private individual violates
the penal statutes of this state." 649 P.2d at 1319.
Justice Weber concurred with Justice Morrison. In effect,
Justice Morrison's special concurrence condoned the use of
the exclusionary rule as a rule of court procedure to be
applied to private criminal action which violated the privacy
clause.
Justice Harrison dissented in Van Haele saying that the
exclusionary rule should not be used. where "it is discovered
by officers or private persons in a course of a.ctions that
are taken in good faith and in the reasonable, though
mistaken belief that they are authorized." 649 P.2d at 1319.
Thus, Justice Harrison in effect would remove the
exclusionary rule from not only the privacy clause but also
the Fourth and Fifth Amendments of the Federal Constitution.
In light of the present decision, the case at bar, where
is the court heading now if the present majority continues to
prevail in cases involving private invasions of individual
privacy which develop incriminating evidence? In Hyem, the
justices would not exc1ud.e evidence developed by any private
action. In Van Haele, these justices would exclude evidence
if it were developed through a violation of the penal
statutes. In this case, State v. Long, a violation of the
penal statutes occurred, but the question of the application
of the exclusionary rule under criminal activity is postponed
to another day. Apparently criminal activity does not count
unless the perpetrator is actually criminally charged in the
courts.
A final evidence of irresolution is that today the
majority has overruled - -
Van Haele, a decision in which two of
the majority justices concurred one and one-half years ago.
I would adhere to our earlier cases and uphold the
decision of the District Court to exclude the evidence.
 :wz, &
-1

i

I

Justice
Justice William E. Hunt, Sr., dissenting:

I dissent and concur in the opinion of Er. Justice
Sheehy .
The District Court should be affirmed. Montana has
rightfully placed privacy paramount to any illegal public or
private intrusion. The constitutional delegates knew Montana
when they wrote:
"The right of individual privacy is essential to
the well-being of a free society and shall not be
infringed without the showing of a compelling state
interest." Mont. Const. art. 11, § 10.
This has been the law and should remain the law without
exception or qualification.
It is no favor to judicial integrity to use an incident
of an illegal intrusion a.s a substitute for due process. The
majority of this Court now allows the trespasser and the
snoop to do work properly assigned to lawfully constituted
law enforcement. We should leave law enforcement to those
legally and rightfully entrusted with that task. It is not
an injustice to society to apply the exclusionary rule to
private searches. If a private search is a result of illegal
or improper conduct, including trespass, all evidence
obtained therefrom should be excluded. Law enforcement
should be left to law enforcement officers who are not only
trained to apprehend the wrongdoer but, just as importantly,
to respect the rights of all Montana citizens including what
was, before the majority opinion, the constitutional right to
privacy.
.

-
Justice
 Mr. Justice Frank B. Morrison, Jr. concurring:
I am taking the rather unusual step of replying to the
dissent of Justice Sheehy in this case. The majority
opinion, although authored by this writer, speaks for the
majority of the Court. The views herein expressed are my
own.
The dissent is an eloquent, if legally unsound, defense
of privacy. Its several weaknesses may be readily
discernable but I wish to formally join the issue.
The dissent states:
"I maintain that the Montana constitutional framers
in 1972 wanted to do more for Montanans in the
field of privacy. They adopted Art. 11, 5 10 to
give Montanans a heightened right of privacy, beyond
the privacy riqhts found in the U.S. Constitution.
hat- aspiration for a heightened right meant that
our state constitution would afford privacy greater
than the minimum guarantees of the federal
constitution."
The dissent then goes on to define the majority
position:
"Gone is that beautiful conception. Left only are
the minimum protections of the federal
constitution, which nowhere expressly guarantees
individual privacy."
Our people should not be mislead by this careless
characterization of Montana's privacy right. The framers of
our constitution intended that privacy be specifically
recognized and the right as it exists under Montana law is
unquestionably paramount to the privacy right implied in the
federal constitution.
In State v. Solis (1984), 41 St.Rep. 2493, P.2d
, this issue was directly confronted. The United States
Supreme Court, in United States v. Caceres (1979), 440 U.S.
741, 99 S.Ct. 1465, 59 L.E.2d 733, had said:
"Neither 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."
We refused to follow the United States Supreme Court in
Solis. We specifically recognized that the right of privacy
in Montana is greater than under the United States
Constitution and that we need not, under these circumstances,
follow the lead of the United States Supreme Court. The
majority of this Court held that electronic eavesdropping, by
video taped recording, violated the right of privacy and was
subject to exclusion. Thus, this Court firmly recognized the
superior right of privacy in Montana.
The dissent again goes awry, in attempting to identify
an inconsistency between the dissenter's view as expressed in
State v. Hyem, supra and State v. Van Haele, supra. The
dissent states:
"It defies imagination how a criminal exception can
be read into the clear language of the Art. I, S
10. The glaring internal inconsistency of the
majority is the apparent concession that the
privacy clause applies to private action if the
private actors are criminals."
This position of the dissent underscores the rationale
tha.t resulted in State v. Brecht, supra, and its progeny.
The majority opinion does not imply nor does the dissent in
Van Haele indicate that there is a criminal exception to the
privacy clause of the Montana Constitution. The dissent
continues to confuse the privacy clause with the exclusionary
rule.
Criminal conduct, unless done with state complicity,
does not violate privacy. However, the fruits of felonious
action may be excluded as evid.ence, not because there is a
constitutional violation, but because the trial court feels
its exclusion necessary to preserve the integrity of the
judicial system. "Other crimes evidence" is excluded because
the courts have decided that its probative weight is usually
less than its potential prejudicial effect. Hearsay evidence
is normally excluded because, without the opportunity for
cross-examination, its credibility cannot be sufficiently
tested. The court excludes evidence for a variety of reasons
including preservation of court integrity. On the latter
basis a court may feel that a search is so abhorrent that the
evidence should be excluded rather than in any way
legitimized. This rule has nothing to do with the
constitution. The rule can be reworked, shaped, and changed
as other rules of evidence.
The dissent's real plea emanates from a public policy
concern. The public policy issue of whether the privacy
clause should cover private action has not been treated in
the majority opinion. Rather, we have sought to determine
whether there was a clear intention expressed by the framers
to depart from traditional constitutional concepts. We found
there was not. Therefore, we have limited the application of
the privacy clause to state action.
The battle cry sounded in the dissent may, at first
blush, have an alluring ring to liberals and civil
libertarians. There is, however, a real danger in extending
privacy rights to the interaction of individuals.
Privacy competes with other rights declared by our state
constitution to be fundamental. My right to be left alone
competes with my neighbor's right for self-expression. The
danger of holding that my right to privacy is
constitutionally protected from invasion by my neighbor but
my neighbor's right of free speech is not protected from my
invasion, is apparent.
The rights and responsibilities that we as people have,
one to the other, should be competed for in the legislative
forum. This better reflects the dynamic nature of our
society and gives vibrance to the political process.