NO. 82-36
IN THE SUPREFE COURT OF THE STATE OF MONTANA
1982
THE STATE OF MONTANA,
Plaintiff and Respondent,
VS.
THOMAS VAN HAELE,
Defendant and Appellant.
Appeal from: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone
Honorable Diane G. Barz, Judge presiding.
Counsel of Record:
For Appellant:
Keefer, Roybal, Hanson, Stacey & Jarussi, Billings,
Montana
Calvin Stacey argued, Billings, Montana
For Respondent :
Hon. Mike Greely, Attorney General, argued, Helena,
Montana
Harold F. Hanser, County Attorney, argued, Billings,
Montana
For Amicus Curiae:
Mark \T. Murphy, County Prosecutor Services Bureau,
Helena, Montana
Submitted: May 20, 1982
Decided: August 23, 1982
L G 2 3 2982
U
Filed:
Mr. Chief J u s t i c e Frank I . Haswell d e l i v e r e d t h e Opinion o f
t h e Court.
Defendant a p p e a l s from h i s c o n v i c t i o n of c r i m i n a l
p o s s e s s i o n o f dangerous d r u g s w i t h i n t e n t t o s e l l i n
v i o l a t i o n o f s e c t i o n 45-9-103, NCA. W reverse.
e
The f a c t s o f t h i s c a s e a r e u n c o n t r o v e r t e d . Robert
and Mae W e s t f a l l w e r e t h e managers of Shurgard Mini S t o r a g e
i n B i l l i n g s , Montana, a c o l l e c t i o n of s t o r a g e u n i t s which
a r e r e n t e d o u t t o customers. I n J a n u a r y 1981, t h e W e s t f a l l s
r e n t e d a u n i t t o d e f e n d a n t who i d e n t i f i e d h i m s e l f as " B i l l
Hayes. I'
O J u l y 31, 1981, a t c l o s i n g t i m e , d e f e n d a n t a r r i v e d
n
a t ~ h u r g a r dand was g i v e n p e r m i s s i o n t o go t o h i s u n i t .
Because Mae W e s t f a l l had e a r l i e r i n s t r u c t e d a n o t h e r customer
(Bender) t o l o c k t h e g a t e when he l e f t , M e W e s t f a l l went
a
t o i n f o r m Bender o f d e f e n d a n t ' s p r e s e n c e . A f t e r doing s o ,
s h e n o t i c e d t h e door t o d e f e n d a n t ' s u n i t was s h ~ and
t
wondered what h e was d o i n g , s i n c e t h e r e were no i n t e r i o r
l i g h t s i n defendant's u n i t . Mrs. W e s t f a l l a l s o wanted t o
know how much l o n g e r d e f e n d a n t w a s g o i n g t o be c n t h e
premises.
Mrs. W e s t f a l l walked t o t h e door o f d e f e n d a n t ' s
u n i t , knocked and s a i d , "Hey, you i n t h e r e . " There was
no r e s p o n s e s o s h e r e p e a t e d t h e p r o c e d u r e w i t h no r e s u l t .
She t h e n opened t h e door and saw d e f e n d a n t s i t t i n g on t h e
f l o o r , p o i n t i n g a gun a t h e r . She a l s o s a w two s u i t c a s e s
on t h e f l o o r b e h i n d him b u t was u n a b l e t o d e s c r i b e them
b e c a u s e o f t h e dimness of t h e room's i n t e r i o r . She t h e n
y e l l e d f o r Bender, who t r i e d t o w r e s t l e t h e gun from
defendant. Mrs. W e s t f a l l l e f t t o i n f o r m h e r husband whc
i n turn called the police. The p o l i c e a r r i v e d a f t e r d e f e n d a n t
had l e f t b u t t h e W e s t f a l l s informed them t h a t t h e y d i d
n o t wish t o p r e s s any c h a r g e s a t t h a t t i m e .
P u r s u a n t t o company p o l i c y , M r s . W e s t f a l l c a l l e d t h e
Washington home o f f i c e on t h e n e x t working day and r e l a t e d
t h e e v e n t s t o them. P e r s o n n e l a t t h e home o f f i c e s u g g e s t e d
t h e W e s t f a l l s f i n d o u t what was i n t h e s u i t c a s e . M r . Westfall
removed t h e h i n g e p i n s from t h e padlocked d o o r and e n t e r e d
defendant's unit. H e opened one o f t h e s u i t c a s e s and saw a
number of b o t t l e s o f p i l l s . H e a l s o opened a p u r s e l y i n g on
t h e f l o o r which he found t o c o n t a i n s i l v e r w a r e . After
c l o s i n g t h e s u i t c a s e , p u r s e and r e p l a c i n g t h e d o o r , I l k .
W e s t f a l l c a l l e d t h e p o l i c e i n d i c a t i n g t h a t t h e y now wished
t o p r e s s a s s a u l t charges.
Based on t h e i n f o r m a t i o n p r o v i d e d by t h e W e s t f a l l s , t h e
B i l l i n g s p o l i c e o b t a i n e d a s e a r c h w a r r a n t and s e i z e d t h e
s u i t c a s e and p u r s e . The c o n t e n t s o f t h e s u i t c a s e s and p u r s e
w e r e i n v e n t o r i e d , r e v e a l i n g w e l l o v e r 100 b o t t l e s of p i l l s
and on August 8 , 1981, d e f e n d a n t was c h a r g e d w i t h c r i m i n a l
p o s s e s s i o n o f dangerous d r u g s w i t h i n t e n t t o s e l l . Defendant
p l e a d e d n o t g u i l t y and f i l e d a motion t o s u p p r e s s . The c o u r t
d e n i e d t h e motion and, a f t e r a n o n j u r y t r i a l , s e n t e n c e d t h e
d e f e n d a n t t o f i f t e e n y e a r s i n t h e Montana S t a t e P r i s o n and
d e s i g n a t e d him a dangerous o f f e n d e r . Defendant a p p e a l s .
Defendant raises two i s s u e s on a p p e a l which can be
s t a t e d a s follows:
1. Whether t h e D i s t r i c t C o u r t e r r e d i n f a i l i n g t o
suppress t h e evidence.
2. Whether t h e D i s t r i c t C o u r t e r r e d i n a d o p t i n g t h e
S t a t e ' s proposed f i n d i n g s o f f a c t and c o n c l u s i o n s o f law.
With r e g a r d t o t h e f i r s t i s s u e a p p e l l a n t a r g u e s t h a t
Montana's p o s i t i o n on " c i t i z e n s e a r c h e s " mandates a r e v e r s a l ,
citing State v. Hyem (19811, - Mont. -, 630 P.2d 202, 38
St.Rep. 891; State v. Helfrich (1979), - Mon t . - 600
,
P.2d 816, 36 St.Rep. 1763; State v. Coburn (1974), 165 Yont.
488, 530 P.2d 442; and State v. Rrecht (1971), 157 Nont.
264, 485 P.2d 47. These cases all stand for the proposition
that evidence obtained by a private citizen in violation of
another's constitutional rights is subject to the exclu-
sionary rule and may not be admitted into evidence in a
criminal trial in this state. The fact that Nontana's
constitution explicitly guarantees an individual's right to
privacy was a major factor of the Hyem and Helfrich deci-
sions:
"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.
1972 Montana Constitution, Article 11,
Section 10. "
The State concedes that, if we follow Hyem and its
predecessors, the defendant's conviction must be reversed
but argues that we should reverse those cases and allow
evidence illegally obtained by private citizens to he
admitted in a criminal trial. The State further argues that
the exclusionary rule deterrence rationale (to deter police
from violating other's constitutional rights by excluding
the evidence) has no application to private citizens because
they do not realize the evidence is suppressible.
We decline to overrule our previous citizen search
cases and reaffirm our position taken therein. We base our
reasoning on the firm stance taken by the Montana Consti-
tution guaranteeing an individual's right of privacy.
Our holding today is also rooted in the concept of judicial
integrity, i-e., the judicial system must not become an
accomplice to constitutional violations by admitting evidence
illegally obtained.
It is clear from the seminal cases involving the exclu-
sionary rule that judicial integrity was one of the main
reasons fcr the exclusion of illegally obtained evidence.
In Weeks v. United States (1914), 232 U.S. 383, 34 S.Ct.
341, 58 L.E~.* 652, the issue was whether evidence obtained
unconstitutionally by government agents shculd have been
admitted at trial. The Court found that it should not have
been admitted and stated the following:
"To sanction such proceedings would be to
affirm by judicial decision a manifest neglect
if not an open defiance of the prohibitions of
the Constitution, intended for the protection
of the people against such unauthorized action."
232 U.S. at 394, 34 S.Ct. at 345, 58 L.Ed. at
656.
Later in Elkins v. United States (1960), 364 U.S. 206, 80
S.Ct. 1437, 4 L.Ed.2d 1669, the court outlawed the "silver
platter doctrine" whereby evidence illegally obtained by
state officers would be turned over to federal prosecutors
in federal criminal trials. In so doing, the Court stated:
"But there is another consideration--the
imperative of judicial integrity. It was
of this that Mr. Justice Holmes and Mr.
Justice Brandeis so eloquently spcke in
Olmstead v. United States, 277 U.S. 438,
at 469, 471, more than 30 years ago. 'For
those who agree with me, ' said Mr. Justice
Holmes, 'no distinction can he taken between
the Government as prosecutor and the Government
as judge.' 277 U.S., at 470. (Dissenting
opinion.) 'In a government of laws,' said
Mr. Justice Brandeis, 'existence of the govern-
ment will be imperilled if it fails to observe
the law scrupulously. Our Government is the
potent, the omnipresent teacher. For good or for
ill, it teaches the whole people by its example.
Crime is contagious. If the Government becomes
a lawbreaker, it breeds contempt for law; it
invites every man to become a law unto himself;
invites anarchy. To declare that in the
administration of the criminal law the end justifies
the means--to declare that the Government may
commit crimes in order to secure the conviction
of a private criminal--would be terrible retribution.
Against that pernicious doctrine this Court should
resolutely set its face." 277 U.S. at 485.
(Dissenting opinion.) 36Yu.s. at 222, 223, 80
S.Ct. at 1447, 4 L.Ed.2d at 1680-81.
We said in Coburn, supra, in commenting on the above
quote:
"[Elnreasonable or illegal intrusions
knowingly accepted -- from the private
and used,
sector by the government amount to an
extension of the silver platter 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 next landmark case in the development of the exclu-
sionary rule was Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct.
1684, 6 L.Ed.2d 1081, which made the exclusionary rule
binding in both state and federal cases. The concept of the
judiciary remaining free from the taint of illegally seized
evidence played a large part in the decision as revealed by
the Court's concluding statement:
"Our decision, founded on reason and truth,
gives to the individual no more than that
which the Constitution guarantees him, to
the police officer no less than that to which
honest law enforcement is entitled, and, to
the courts, that judicial integrity so necessary
in the true administration of justice." 367
U.S. at 660 81 S.Ct. at 1694, 6 L.Ed.2d at 1093.
See Terry v. Ohio (1968), 392 U.S. 1, 13, 88 S.Ct. 1868,
1875, 20 L.Ed.2d 889, 901 ("A ruling admitting evidence in a
criminal trial, we recognize, has the necessary effect of
legitimizing the conduct which produced the evidence, while
an application of the exclusionary rule withholds the
constitutional imprimatur").
-
We find the following in McCormick on Evidence has
this to say in che concluding paragraph in the section on
evidence obtained by private individuals:
"On balance, the factors - - -
seem to favor
-
the imposition - - exclusionary - rule.
of the -
Although the situation is distinguishable
from that in Mapp, the distinction is nct
of sufficient breadth to justify a drastic
difference in the treatment of the resulting
evidence. While the need to protect personal
security from private as well as public
invasicn is certainly an impcrtant factor, the
controlling matter - - unfairness - -
is the of the
use of the evidence --
--- and - -
the degrading of
the judicial system that must necessarily
--
acconpany - - "(Emphasis
that use. added. )
McCormick - Evidence S 168, at 374.
on
Here there were two methods used in unlawfully gaining
access to defendant's rental unit. Mr. Westfall removed
the hinge pins on the d o ~ rfor the first entry and cut
defendant's padlock off the door for the second. It is
hard to imagine more blatant violations.
It is uncontroverted here that the Westfalls had no
idea that they would find any drugs in the suitcases. When
Mrs. Westfall first knocked on and opened the door, the
light was so dim that she could not describe the suitcases
behind the defendant. Defendant's unit had no interior
light and no windows and one needed to crawl in or out to
enter or exit it. We note that defendant has already been
convicted and sentenced on the assault charge for pointing
the gun at Mrs. Westfall.
To sanction the admission of the evidence gained in
this unlawful manner by allowing its presentation in a
criminal trial makes the courts of this state a party to
violations of the constitutional rights of the defendant and
runs afoul of any viable notion of judicial integrity as
outlined in Coburn, supra.
It is also undisputed in the case at bar that the
defendant's right to privacy was violated. Defendant is
guaranteed this right under Art. 11, g 10 of our state
constitution, supra. Of the ten states expressly protecting
privacy in their constitutions, only two (Alaska and Montanaj
have privacy guarantees that stand alone in a separate
section of the state constitution, A Right - Privacy
- of
- -a Matter - State Constitutional - (1977), 5 Fla.St.
as of Law
L.Rev. 631, 690-701. Although the Alaska courts have ap-
parently have interpreted their constitution to require
state action to trigger the exclusionary rule, Allred v.
State (Alaska 1976), 554 P.2d 411, 416, we believe the
better approach is that followed in Brecht and its progeny,
supra. Montana's privacy right is the most elegant and the
most uncompromising of the various privacy statements. 5
Fla.St. L.Rev. at 738.
Respondent contends that we should adopt the good faith
approach to the exclusionary rule approved by the Fifth
Circuit in United States v. Williams (5th Cir. 1980), 622
F.2d 830. We are not persuaded by this argument. As dis-
cussed above, Montana's constitutional guarantee of privacy
is expressed in the strongest terms of any state constitu-
tion in the country and we are not bound by federal inter-
pretations from other circuits.
Statistics show that most motions to suppress are
concentrated in offenses involving narcotics, weapons and
gambling (with one-half filed in crimes involving narcotics
and weapons), persuasive evidence that the application of
the exclusi~naryrule is ccncentrated in these few areas,
Studying t.he Exclusionary - -in Search and Seizure (1970),
Rule
37 Univ. of Chicago L.Rev. 665, 706.
These circumstances usually arouse little if any public
support or syrcpathy for the defendant whose rights are
violated. However, in a different context, the question of
the admission of illegally obtained evidence is less volatile.
For example, say an employee of a bank breaks into another's
safety deposit box and discovers a stolen watch, a clear
constitutional violation. Are the rights of pusher or
murderer any less than the watch thief's sinply because our
society today views the latter crime as innocuous and less
heinous? Our Constitution was not grounded on such shifting
sand.
To admit at a criminal trial evidence illegally obtained
by private citizens is tc encourage a vigilante movement
which has no redeeming social value in our society today.
Moreover, many prosecutors in this state would refuse to
base a charge or information on such evidence but there are
some who persist in doing so.
The State argues that by not allowing the fruits of an
unlawful citizen's search into evidence, many would-be
criminals are allowed to go free. However, two recent
studies indicate that the exclusionary rule has a negligible
effect in freeing defendants. One study surveyed nearly
3,000 cases in 38 United States Attorney's offices between
July 1 and August 31, 1978. Only 1.3 percent had evidence
suppressed because of Fourth Amendment violations and more
than half of the defendants who successfully moved to sup-
press were convicted anyway, Comptroller General of the
United States, - Impact - - Exclusionary --- Federal
The of the Rule in
Criminal Prosecutions, rep. no. 66D-79-45 (April 19, 1979).
Another study found that less than one percent of all arrests
were eliminated for no follow-up prosecution because of due
process violations such as illegal searches and seizures,
Frost Lucianovich & Cox, What Happens After Arrest? (Wash.
D.C. Art. for Law and Social Research, August 1977).
National figures show that only 2 percent of the total
number of persom held for prosecution were charged with
weapons or narcotics offenses, the crimes where the exclu-
sionary rule is applied most often, 37 Univ. of Chicago
L.Rev. at 681. In view of these facts, the State's argument
that many criminals are set free because of suppression of
illegally-seized evidence due to the exclusionary rule loses
much of its force. Also, statistics covering twelve years
of law enforcement activity in Cincinnati, Ohio, show that
the adoption of the exclusionary rule had no apparent effect
on arrests or convictions in narcotics, weapons and gambling
offenses, 37 Univ. of Chicago L.Rev. at 707.
Appellant argues that no probable cause existed to
support the issuance of the search warrant in this case
and it follows from what we have said above that we agree.
The warrant was based on evidence illegally obtained by
Mr. Westfall and the warrant was tainted thereby. See
United States v. Crews (1980), 445 U.S. 463, 100 S.Ct.
1244, 63 L.Ed.2d 537.
Appellant's second issue relates to whether the
District Court erred in adopting the State's proposed
findings of fact and conclusicns of law. Appellant argues
that this action violates the rule of law set forth in
~omaskiev. Tomaskie (1981), Mont . , 625 P.2d 536,
38 St.Rep. 416. The State concedes its proposed findings
and conclusions were accepted by the District Court with
only rninor changes.
We note that subsequent to the ~ornaskiecase, this
Court decided Jensen v. Jensen (1981), - Mont . , 631
P.22 700, 38 St.Rep. 1109, wherein we stated that such an
adoption is not grounds for reversal if the findinqs and
conclusions are sufficiently comprehensive and supported by
the evidence. It is clear from what was said above that
the District Court's decision is not supported by the
evidence or the law and thus fails to comport with this
standard.
Reversed.
' i Chief Justice A
bn~$, $ L L Y 4 4
We concur:
-
Justices
Mr. Justice John C. Sheehy concurring:
I agree most emphatically with the foregoing opinion.
It is near an absolute that in this country and in this state
a judicial system would condemn the admission of evidence
secured by trespassers who here used methods usually employed
by burglars to gain entrance into defendant's private domain.
We were told in oral argument by the State that a decision
favoring the defendant in this case would dampen the efforts of
"Crimestoppers", a program designed to utilize informers in
crime detection. I particularly reject that contention. The
"Crimestoppers" effort is having laudable effect. Experience
in the program shows that a good deal of the information developed
comes from co-conspirators or co-criminals who for their own
purposes or rewards turn to the law officers. The program
certainly does not depend on private trespassers. Part of
the funds given to support "Crimestoppers" comes from donations
from the public. That public support would soon evaporate
if indeed the result of the program was to turn our neighbors
into vigilantes riding into our yards, garages, vaults and
homes in search of tangible evidence of illegal activity. If,
as the State argues "Crimestoppers" depends upon invasion by
private trespassers for its ultimate success (I do not believe
so), then the program must face the same problem facing the
unlawfully-acting constable: as the case develops the quarry
may slip away. There are more ways than one to bag a cat.
Why use a bag with a large hole at the other end?
The State concedes that if the evidence in this case had
been produced by the same kinds of actions of police officers,
no appellate court including the United States Supreme Court
would condone admitting such evidence against the accused.
The State was not asked, but it would also have to concede,
that if the record here showed the police officers had
colluded with the private trespassers to produce the evidence
it would not be admissible. So this case really comes down
to this: the State is asking us to reinstate for State purposes
the "silver platter" arrangement condemned in Elkins v. United
States (1960), 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669.
Another argument raised by the State is that a criminal
trial is a "search for truth" and therefore courts should accept
all evidence, notwithstanding taint, except for the weightiest
policy considerations requiring exclusion. It is not new that
assertions of high moral purpose have been posted as reasons
for abusing persons or rights. Robin Hood stole from the rich
to gave to the poor--but he, the original Hood, was stealing.
Brutus was concerned that Julius Caesar might make himself a
king--and so he stabbed his friend. Adolph Hitler convinced
a race that their superior blood should be kept pure--and they
joined in the Holocaust. These are extreme examples but they
serve, The end does not always justify the means.
Another argument made by the State is that the police in
in this case are guilty of no wrongdoing. It was the private
trespassers that acted illegally. Again the argument is not
new. Adam tried to blame Eve when he was caught with the fruits
of an illegal seizure. By accepting the fruits of the illegality
the police have stripped themselves from any insulation from
its illegality under our view of the law that they stand in the
footpads of the trespassers.
Finally, a word about the posture of this case on appeal.
The defendant comes to us as an appellant, despite the earlier
rulings of this Court clearly on his side. In other words,
the prosecution and the District Court had chosen not to
follow our clear direction on the state of the law in Montana
on this matter. This may not be the case, but one day soon,
it can be predicted, an innocent person will be falsely accused
by a trespasser and the State will prosecute,and the county
and state will be open to possible liability for wrongful
prosecution. Sometimes it is smarter to follow the law even
if one disagrees with it.
Mr. Justice Frank B. Morrison, Jr., specially concurring:
I concur in the result but dissent from the rationale.
The majority opinion states:
"It is also undisputed in the case at bar
that the defendant's right to privacy was
violated."
I disagree.
The Montana Constitution provides:
"The right of individual privacy is essen-
tial to the well-being of a free society
and shall not be infringed without the show-
ing of a compelling state interest." 1972
Montana Constitution, Article 11, Section
10.
In a series of cases referred to in the majority opinion
this Court has held that the privacy provision of the Montana
Constitution proscribes private action as well as government
action. Such an interpretation finds support in the position
articulated by one delegate at the Montana Constitutional
Convention but, in my opinion, is not supported in the
language of the privacy section itself.
Historically constitutions have been documents securing
to private citizens certain fundamental rights against
governmental intrusion. Constitutions should not regulate
the conduct among the various private interests in our
society. Such interests should be competed for in the
political forum.
Constitutional rights, which protect against the awesome
power of the State, are embedded in granite tablet. Once
declared, these fundamental rights remain secure unless
successfully attacked by a cumbersome constitutional amendment
process. This process of amendment has never produced a
restriction of rights. Once initially constitutionally
rooted these fundamental declarations have become permanent.
In my view, the rights and obligations among our people
should be fought for at the ballot box, lobbied for in the
legislative process, and clarified through litigation arising
and culminating in the judicial branch. Competing concerns
of private individuals are not entitled to constitutional
permanency, but should be continually grappled with in a
political forum where majority rule decides.
The 1972 Montana Constitution expressly proscribes
private action in the human rights provision. 1972 Montana
Constitution, Article 11, Section 4. The delegates chose
not to refer to private action in the privacy section. The
courts should be reluctant to extend constitutional provisions
beyond their stated purpose when the effect of such extension
runs contrary to historical precedent and limits constitutionally
the free action of private individuals.
The interpretation indulged by the majority results in
greater restriction for the individual than for the State.
Government action invading privacy can be justified where a
compelling state interest is shown. If the privacy intrusion
is committed by an individual, seldom, if ever, could a
compelling state interest be demonstrated. The result would
be to allow the State more freedom of movement than would be
allowed any private citizen. I cannot believe this accords
with constitutional intent.
The right to be free from undue meddling by anyone
should properly be the subject of legislative action. Such
privacy matters have been treated legislatively, i.e.,
credit reports are covered in Title 31, Chapter 3, MCA.
Likewise, statutes protect against disclosure of a host of
subjects including medical records, insurance information,
accident reports, and information given to privileged sources.
This writer feels that in this day of computerization and
electronic eavesdropping more legislative attention should
be directed toward protecting individual citizens from unin-
vited outside intrusion. The public policy questions inherent
in such legislative action should be debated and resolved by
the political structure. The constitution inhibits government,
not private citizens.
The strongest support for the majority decision involves
application of the exclusionary rule on the basis of the
"silver platter doctrine." As the majority notes, this
doctrine prohibited the federal government from using evidence
obtained illegally by state officers. At the time of the
decision articulating the "silver platter doctrine" the
Fourth Amendment to the United States Constitution did not
apply to state officers and therefore, there was not a
constitutional basis for excluding evidence which these
officers obtained through illegal means. The evidence was
handed by state officers to federal officers on a "silver
platter." No illegal act was committed by federal officials
in gathering the evidence. The exclusionary rule was applied
by the United States Supreme Court though there could be no
constitutional invasion by the state officers. The United
States Supreme Court held that the evidence would be excluded
because the federal prosecution, in using evidence illegally
obtained by the State, became a lawbreaker and bred contempt
for the law itself. 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 administra-
tion of the criminal law the end justifies
the means--to declare that the government
may commit crimes in order to secure the con-
viction 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:
". . .
[Ulnreasonable or illegal intrusions
knowingly accepted -- from the pri-
andused,
~ate sector by the government amount to an
extension of the silver platter doctrine
condemned by Elkins, particularly when
viewed in the light of judicial integrity
emphasized in Elkins." (Emphasis in origin-
al) 163 Mont. at 503, 530 P.2d at 450.
If the "silver platter doctrine" is to be recognized
for the purpose of excluding evidence obtained by private
individuals then, in my opinion, it should be confined to
instances where the evidence was obtained in violation of
criminal statutes 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.
My position is thus being modified from that articulated
in State v. Hyem (1981), Mont. , 630 P.2d 202, 38
St.Rep. 891 (J. Morrison, dissenting). In my judgment, only
the State can violate the constitutional right of privacy of
an individual. Nevertheless, if a private individual violates
the penal statutes of this State and thus obtains evidence
subsequently offered against an accused, the exclusionary
rule should be applied to deny such tainted evidence admission.
Therefore, I would vote to grant suppression of the evidence
obtained in this case.
I concur with the majority in remanding.
"'
Morrison !
Mr. J u s t i c e J o h n Conway H a r r i s o n d i s s e n t i n g :
T h i s C o u r t i n a s e r i e s o f o p i n i o n s commencing w i t h S t a t e v.
Jibwdc, supra, 1971, and ending with our latest case of State
B&
T
v. Hyem, s u p r a , 1 9 8 1 , h a s e s t a b l i s h e d t h a t t h e e x c l u s i o n a r y r u l e
i s a p p l i c a b l e t o b o t h p u b l i c and p r i v a t e c i t i z e n s . However, as
J u s t i c e Morrison, so a b l y n o t e d i n h i s d i s s e n t i n Hyem, ( s u p r a ) ,
Montana is t h e o n e s t a t e i n f i f t y t h a t h a s e x t e n d e d t h e e x c l u -
s i o n a r y r u l e to p r i v a t e a c t i o n s . This has, i n my o p i n i o n , c a u s e d
c o n s i d e r a b l e p r o b l e m s w i t h i n t h e c r i m i n a l l a w f i e l d and w h i l e I
have disagreed with the views of the majority from their
i n c e p t i o n , my o n e and o n l y r e a s o n f o r s p e a k i n g o u t a g a i n i s i n
expectation that a middle-ground a p p r o a c h c a n be made by this
C o u r t i n some f u t u r e case t h a t w i l l n o t be q u i t e a s e x t e n s i v e a s
our present rule.
I would h o l d t h a t e v i d e n c e s h o u l d n o t be s u p p r e s s e d u n d e r t h e
e x c l u s i o n a r y r u l e w h e r e i t is d i s c o v e r e d b y o f f i c e r s o r p r i v a t e
p e r s o n s i n a c o u r s e o f a c t i o n s t h a t a r e t a k e n i n good f a i t h and
in the reasonable, though mistaken, belief that they are
authorized. By r e c o g n i z i n g t h a t the present exclusionary rule
exists to deter willful and flagrant actions by police, not
unreasonable, good f a i t h ones, p e r h a p s a n a m i c a b l e s o l u t i o n to
t h i s p r o b l e m i n t h e l a w c a n be worked o u t . Examining n o t o n l y
o u r cases b u t cases o u t s i d e t h i s j u r i s d i c t i o n , I a m of t h e opi-
n i o n t h a t c o s t s t o s o c i e t y o f a p p l y i n g t h e p r e s e n t r u l e is beyond
t h e p u r p o s e s f o r which it e x i s t s and a r e s i m p l y too h i g h a p r i c e
t o pay.
Mr. J u s t i c e Gene B. D a l y , who was u n a b l e t o a t t e n d t h e o r a l
argument, did n o t p a r t i c i p a t e i n t h i s d e c i s i o n .
State v. Van Haele
Court: Montana Supreme Court
Date filed: 1982-08-23
Citations: 649 P.2d 1311, 199 Mont. 522
Copy Citations