No. 12707
I N THE S P E E COURT O THE STATE O MONTANA
URM F F
THE STATE O MONTANA,
F
P l a i n t i f f and Appellant,
DONALD LEROY COBURN,
Defendant and Respondent.
Appeal from: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
Honorable P e t e r G. Meloy, Judge presiding.
Counsel of Record:
For Appellant :
Hon. Robert L. Woodahl, Attorney General, Helena,
Montana
J . C. Weingartner, A s s i s t a n t Attorney General,
argued, Helena, Montana
Leif B. Erickson argued, Deputy County Attorney,
Helena, Montana
For Respondent :
Smith, Smith and Sewell, Helena, Montana
Robert J. Sewell argued, Helena, Montana
For Amicus Curiae:
Rae Kalbfleisch, Shelby, Montana
Thomas Honzel, Helena, Montana
Submitted: June 12, 1974
"
. -- -
Decided : -. : 3 9 ,g73
.
r- F
Filed: ? : 3
a
IS
M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e C o u r t .
The s t a t e a p p e a l s from a n o r d e r of t h e d i s t r i c t c o u r t ,
Lewis and C l a r k County, on J a n u a r y 23, 1974, t o s u p p r e s s e v i -
dence, i.e. marijuana. The e v i d e n c e was s e i z e d by R o b e r t H i l l i s ,
manager of McDonald's R e s t a u r a n t , from a c o a t b e l o n g i n g t o de-
f e n d a n t hanging i n t h e m a n a g e r ' s o f f i c e o f t h e r e s t a u r a n t
l o c a t e d i n Helena, Montana.
The Montana County A t t o r n e y s A s s o c i a t i o n f i l e d a motion
w i t h t h i s C o u r t f o r l e a v e t o a p p e a r , f i l e a b r i e f , and make o r a l
argument amicus c u r i a e . I t s motion w a s g r a n t e d .
Defendant Donald Leroy Coburn was employed a s a n a s s i s -
t a n t manager a t McDonald's R e s t a u r a n t l o c a t e d i n Helena. His
s u p e r v i s o r w a s t h e manager, Robert illi is. While a t home be-
tween 4 : 0 0 and 6:00 p.m., on November 2 9 , 1973, H i l l i s r e c e i v e d
a phone c a l l from J a s o n K e l l e r , a n o t h e r a s s i s t a n t manager of
McDonald's, a l e r t i n g him t h a t d e f e n d a n t had some m a r i j u a n a on
t h e r e s t a u r a n t ' s premises. H i l l i s t h e n c a l l e d t h e owner of t h e
s t o r e i n B i l l i n g s t o i n f o r m him of t h e problem and a s k h i s a d v i c e .
Following h i s c o n v e r s a t i o n w i t h t h e owner, H i l l i s went
d i r e c t l y t o t h e Helena p o l i c e d e p a r t m e n t and spoke w i t h one S g t .
Sanguine. The t r a n s c r i p t shows t h i s e x a m i n a t i o n o f H i l l i s :
"Q. A s c l o s e l y a s p o s s i b l e , would you t e l l t h e
C o u r t what y a a i d t o t h e o f f i c e r ? A. Okay, I
went down and I t o l d him who I w a s and I t o l d
him t h a t t h e r e was m a r i j u a n a i n t h e s t o r e and
t h a t I d i d n ' t want t o g e t t h e s t o r e i n v o l v e d ,
you know, any more t h a n n e c e s s a r y , and we t a l k e d
a b o u t whether i t w a s l e g a l f o r him t o go g e t i t ,
and he s a i d t h a t he c o u l d n ' t f o r some l e g a l
r e a s o n and w e t a l k e d a b a u t whether I s h o u l d , and
h e d i d n ' t know whether t h a t was l e g a l o r n o t f o r
s u r e and h e c a l l e d somebody and t a l k e d t o them,
I d o n ' t remember who it was and I d o n ' t remember
whether w e e v e r came t o a d e f i n i t e d e c i s i o n a s
t o whether I s h o u l d qet it o r f o r q e t it o r what,
and I w a s n ' t g o i n g t o l e a v e it i n t h e s t o r e , I
c o u l d n ' t have i t i n t h e s t o r e b e c a u s e i f t h e
o t h e r k i d s , i f any of them knew a b o u t i t , b e c a u s e
i f one can do it t h e y might a l l d o i t . "
On c r o s s - e x a m i n a t i o n , H i l l i s t e s t i f i e d :
"Q. I am trying to get some idea, you know, of
what your frame of mind was when you left the
police department. A. Well, I would have gotten
it out of there one way or the other, if the
police wouldn't I would have gotten it out myself.
"Q. Now, you have testified that you had some
conversation with the officer about whether or
not you should remove this package? A. Right.
"Q. And you also testified that you don't remem-
-
ber what conclusion was reached? A. No.
"Q. Well, could you say whether or not you had
the feeling when you left the police department
that you should do it? A. I had the feeling I
was going to, I knew I was going to."
On redirect:
"Q. On this last topic you stated that at the
police station or thereafter you went back with
the idea of removing the marijuana. Had you formed
that idea prior to going to the police station,
the general concept that the marijuana should be
removed from the premises? A. Yes, before I even
went to the police station, definitely.
"Q. So, it wasn't as a result of your conversation
at the police station that you decided to remove
the marijuana? A. No, absolutely not."
On recross:
"Q. And if the police had taken steps or had told
you they would take steps, then I presume you
wouldn't have taken any action to remove it? A.
Right. I'
On cross-examination Sgt. Sanguine testified:
-
"0.
- Did he ask for any advice as to what to do?
A. Well, he didn't want to, he didn't want the
police to enter the premises because of the possi-
bility of bad publicity for the company, but he
just wanted us to know he was going to go down
there.
"0- O k a v . and what did vou do, what did YOU
respond t b that? A. weil, I advised him that
under the circumstances that if he didn't want
us to enter into it, he would be mainly on his
own as to how he wanted to handle it.
"Q. Could you tell us, well, is there anything do
you remember any parting words when he left the
police station? A. When he left, he was still
undecided a b o u t how he was g o i n g t o h a n d l e i t
and I d i d a d v i s e him i f he wanted u s t o t h a t
w e c o u l d w a i t u n t i l M r . Coburn g o t o f f d u t y and
we would c o n f r o n t him down o f f t h e p r e m i s e s .
"Q. Did you f e e l you had, based on your exper-
i e n c e as a p o l i c e s e r g e a n t , d i d you f e e l that
you had s u f f i c i e n t c a u s e a t t h a t t i m e t o attempt
t o s e i z e t h e s u b s t a n c e ? A. I feel that i f he-
c o u l d a l l o w u s t o e n t e r t h e p r e m i s e s , we could
-
have. I'
On r e c r o s s :
"Q. I t a k e it t h a t when he came i n and t o l d you
t h e s e problems and t h e f a c t t h a t he d i d n ' t want
h i s company i n v o l v e d , t h a t t h e r e ensued a d i s -
c u s s i o n a b o u t a s e i z u r e of t h e s e packages by
h i m s e l f , and r a t h e r t h a n a s e i z u r e o f t h e packages
by you, i s t h a t t r u e ? A. Well, I d i d n ' t a d v i s e
him t o d o i t t h a t way.
"Q. T h a t ' s r i g h t , I u n d e r s t a n d t h a t , b u t what I
want t o know i s what w a s s a i d a b o u t him d o i n g it.
A. Well, I d o n ' t b e l i e v e a t t h e t i m e he r e a l l y
d i d n ' t know what h e w a s g o i n g t o d o , I c a n ' t s a y
t h e r e was t o o much d i s c u s s i o n on him removing i t .
"Q. Did you e x p e c t him when he came back w i t h t h e
s t u f f ? A. No, I d i d n ' t r e a l l y , I d i d n ' t t h i n k he
would come back!' (Emphasis s u p p l i e d ) .
F o l l o w i n g h i s c o n v e r s a t i o n w i t h S g t . Sanguine, H i l l i s l e f t
t h e p o l i c e s t a t i o n and went t o t h e r e s t a u r a n t ; upon a r r i v i n g
there, h e e n t e r e d t h e m a n a g e r ' s o f f i c e . T h i s o f f i c e was a p r i v a t e
o f f i c e t o which o n l y t h e manager and a s s i s t a n t managers had un-
limited access. H i l l i s t h e n s a w d e f e n d a n t ' s c o a t hanging on t h e
wall. He c o u l d see a b u l g e i n t h e h i p p o c k e t . H e removed t h e
s u b s t a n c e , l a t e r d e t e r m i n e d t o be m a r i j u a n a , from d e f e n d a n t ' s
c o a t w i t h o u t a s e a r c h w a r r a n t o r w i t h o u t e x p r e s s o r i m p l i e d con-
s e n t from d e f e n d a n t . H i l l i s then returned t o t h e p o l i c e s t a t i o n
and t u r n e d t h e m a r i j u a n a o v e r t o t h e p o l i c e .
I n i t s order suppressing t h i s evidence t h e d i s t r i c t c o u r t
said i n part:
"It i s t h e opinion of t h i s Court t h a t t h e r u l e
a d o p t e d by t h e Montana Supreme C o u r t i n -
the
Brecht case a p p l i e s i n t h e case a t b a r , t h e r e f o r e ,
it is
"ORDERED t h a t t h e motion t o s u p p r e s s t h e e v i d e n c e
o b t a i n e d by t h e s e a r c h be and t h e s a m e i s h e r e b y
granted." (Emphasis a d d e d ) .
There i s b u t one i s s u e p r e s e n t e d by t h e s t a t e i n t h i s
appeal: Did t h e d i s t r i c t c o u r t err i n s u p p r e s s i n g t h e e v i d e n c e
s e i z e d by Robert H i l l i s , r e l y i n g on t h i s C o u r t ' s d e c i s i o n i n
S t a t e v . B r e c h t , 157 Mont. 264, 270, 485 P.2d 47 ( 1 9 7 1 ) ?
T h i s c a s e i s unique i n t h a t t h e s t a t e and amicus c u r i a e
a t t a c k only t h e Brecht d e c i s i o n . They a s k t h a t i t be r e v e r s e d
and c o n f i n e t h e i r arguments i n t h a t r e g a r d o n l y t o t h e a p p l i c a -
t i o n of t h e F o u r t h Amendment t o t h e United S t a t e s C o n s t i t u t i o n ,
i g n o r i n g any o t h e r c o n s i d e r a t i o n s . T h i s would i n d i c a t e t h a t
B r e c h t , a s w r i t t e n , i s n o t c l e a r and a n e x p l a n a t i o n i s w a r r a n t e d
e v e n though t h e i n s t a n t c a s e can be d i s t i n g u i s h e d .
I n B r e c h t t h e d e f e n d a n t was c h a r g e d w i t h t h e murder of
h i s estranged wife. H e r d e a t h r e s u l t e d from t h e d i s c h a r g e o f a
s h o t g u n under d i s p u t e d c i r c u m s t a n c e s i n t h e t a v e r n where s h e was
employed on t h e e v e n i n g of May 1 7 , 1967. Deceased and h e r s i s t e r
Sandra r e s i d e d w i t h t h e i r mother a t t h e m o t h e r ' s home f o r a p e r i o d
of t i m e b e f o r e t h e s h o o t i n g . The s i s t e r Sandra r e c e i v e d a c a l l
a t t h e m o t h e r ' s home from t h e d e f e n d a n t on t h e e v e n i n g o f A p r i l
29, 1967, some two weeks p r i o r t o t h e s h o o t i n g i n c i d e n t ; he asked
t o speak w i t h h i s w i f e and Sandra c a l l e d h e r t o t h e t e l e p h o n e .
Without t h e c o n s e n t of e i t h e r p a r t y , Sandra proceeded t o l i s t e n
t o t h e c o n v e r s a t i o n on an e x t e n s i o n t e l e p h o n e i n a n o t h e r room. At
t r i a l Sandra was p e r m i t t e d t o r e l a t e t h e c o n v e r s a t i o n which s h e
a l l e g e d c o n t a i n e d t h i s t h r e a t by d e f e n d a n t " I g o t m s h o t g u n o u t
y
o f hock, I a m coming down and I w i l l u s e i t i f I have t o " .
I n B r e c h t t h e s t a t e a g r e e d t h a t had t h i s i n t r u s i o n and
t h e c o n v e r s a t i o n o v e r h e a r d been o b t a i n e d by a n a g e n t of t h e s t a t e
it would have been e x c l u d e d by t h e c o u r t b e c a u s e of t h e r u l i n g i n
Katz v. United S t a t e s , 389 U.S. 347, 88 S.Ct. 507, 1 9 L e d 2d 576
(1967). K a t z i s a e l e c t r o n i c s u r v e i l l a n c e c a s e and t h e landmark
c a s e t h a t o v e r t u r n e d t h e l o n g s t a n d i n g d o c t r i n e t h a t s e a r c h and
seizure under the Fourth Amendment was unreasonable only if an
intrusion or trespass accompanied the seizure of "tangible goods"
i.e., indicating a property right or enclave theory. Katz held
these rights to be personal and protective of people and not
simply areas with no physical intrusion required. Brecht excluded
the conversation of Sandra Br~mfieldbased on violation of de-
fendant's right of privacy established in Welsh v. Roehrn, 125
Mont. 517, 241 P.2d 816, a court declared constitutional right;
the Fourth and Fifth Amendments of the United States Constitution;
Art. 111, Sec. 7 of the 1889 Montana Constitution; and stated in
pertinent part:
" * * * The violation of the constitutional right
to privacy and against compulsory self-incrimin-
ation 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 is tantamount to destruction of the
right itself. * * *
"This Court in the present case would be remiss
were it not to recognize that evidence obtained
by the unlawful or unreasonable invasion of sev-
eral 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 con-
stitutional guarantees it protects meaningless."
The state and amicus curiae proceed in argument on the
premise that Brecht rested solely on the Fourth Amendment and
present a deluge of Fourth Amendment cases which establish this
general rule, contained in 68 Am Jur 2d, Searches and Seizures
S13, p. 670:
"It is no part of the policy underlying the
Fourth Amendment to discourage citizens from
a i d i n g t o t h e u t m o s t of t h e i r a b i l i t y i n t h e
a p p r e h e n s i o n of c r i m i n a l s . A c c o r d i n g l y , i t
h a s l o n g been r e c o g n i z e d t h a t t h e F o u r t h
Amendment's p r o t e c t i o n s a g a i n s t u n r e a s o n a b l e
s e a r c h and s e i z u r e do n o t e x t e n d t o a s e a r c h o r
s e i z u r e made by a p r i v a t e i n d i v i d u a l , conducted
without p o l i c e p a r t i c i p a t i o n . I n support of t h i s
r u l e , it h a s been s a i d t h a t t h e o r i g i n and h i s t o r y
of t h e F o u r t h Amendment c l e a r l y show t h a t i t w a s
i n t e n d e d o n l y a s a r e s t r a i n t upon t h e a c t i v i t i e s
of s o v e r e i g n a u t h o r i t y , and t h a t a c o n t r a r y r u l i n g
would have no d e t e r r e n t e f f e c t s i n c e p r i v a t e p e r s o n s
would be unaware of t h e r u l e * * *It. (Emphasis a d d e d ) .
The g e n e r a l r u l e and c i t e d c a s e s a r e based on t h e h o l d i n g o f t h e
United S t a t e s Supreme C o u r t i n Burdeau v . McDowell, 256 U.S.
The s t a t e and amicus a r g u e t h a t B r e c h t was i m p r o v i d e n t
and a g a i n s t t h e w e i g h t o f a u t h o r i t y . A c a r e f u l r e a d i n g of B r e c h t
r e v e a l s t h a t t h i s i s a n o v e r s i m p l i f i c a t i o n of t h e problem. As
h e r e t o f o r e s t a t e d B r e c h t r e s t e d o n l y i n p a r t on t h e F o u r t h Amend-
ment and it would a p p e a r t h a t any a t t e m p t t o r e v e r s e B r e c h t
would n e c e s s a r i l y r e q u i r e a t r e a t m e n t o f a d d i t i o n a l c o n s t i t u t i o n a l
c o n s i d e r a t i o n s upon which t h e B r e c h t d e c i s i o n rests a n d , f u r t h e r ,
a c o n s i d e r a t i o n of t h e l e g a l i s s u e s r a i s e d by d e f e n d a n t h e r e . De-
f e n d a n t c o n t e n d s t h e s e a r c h v i o l a t e d t h e s e c o n s t i t u t i o n a l and
s t a t u t o r y provisions:
A r t i c l e 11, Sec. 1 0 , 1972 Montana C o n s t i t u t i o n :
" R i g h t of P r i v a c y . The r i g h t of i n d i v i d u a l
p r i v a c y i s e s s e n t i a l t o t h e w e l l - b e i n g of a f r e e
s o c i e t y and s h a l l n o t be i n f r i n g e d w i t h o u t t h e
showing of a c o m p e l l i n g s t a t e i n t e r e s t . "
S e c t i o n 95-701, R.C.M. 1947:
" S e a r c h e s and seizures--when a u t h o r i z e d . A
s e a r c h of a p e r s o n , o b j e c t o r p l a c e may be made
and i n s t r u m e n t s , a r t i c l e s o r t h i n g s may be s e i z e d
i n a c c o r d a n c e w i t h t h e p r o v i s i o n s of t h i s c h a p t e r
when t h e s e a r c h i s made:
" ( a ) A s an incident t o a lawful a r r e s t .
"Cb) With t h e c o n s e n t of t h e a c c u s e d o r of any
o t h e r p e r s o n who i s l a w f u l l y i n p o s s e s s i o n of
t h e o b j e c t o r p l a c e t o be s e a r c h e d , o r who i s
b e l i e v e d upon r e a s o n a b l e c a u s e t o be i n s u c h l a w -
f u l p o s s e s s i o n by t h e p e r s o n making t h e s e a r c h .
" ( c ) By t h e a u t h o r i t y of a v a l i d s e a r c h w a r r a n t .
" ( d ) Under t h e a u t h o r i t y and w i t h i n t h e s c o p e of
a r i g h t of l a w f u l i n s p e c t i o n g r a n t e d by law."
D e f e n d a n t ' s c o n t e n t i o n s r a i s e some i n t e r e s t i n g problems
when c o n s i d e r e d w i t h t h e f a c t t h a t Montana h a s a s t a t u t e , s e c t i o n
95-611, R.C.M. 1947, which p r o v i d e s :
"95-611. A r r e s t by a p r i v a t e p e r s o n . A private
p e r s o n may a r r e s t a n o t h e r when:
"(1)he b e l i e v e s , on r e a s o n a b l e g r o u n d s , t h a t an
o f f e n s e i s b e i n g committed o r a t t e m p t e d i n h i s
presence ;
" ( 2 ) a f e l o n y h a s i n f a c t been committed and he
b e l i e v e s , on r e a s o n a b l e g r o u n d s , t h a t t h e p e r s o n
a r r e s t e d h a s committed i t * * * " .
A l s o , t h e f e d e r a l c o n s t i t u t i o n c o n t a i n s no s p e c i f i c s e c -
t i o n e s t a b l i s h i n g a s e p a r a t e and i n d e p e n d e n t r i g h t o f p r i v a c y a s
d o e s t h e 1972 Montana C o n s t i t u t i o n . The U n i t e d S t a t e s C o n s t i -
t u t i o n r e c o g n i z e s t h e r i g h t a s p a r t of t h e F i r s t , T h i r d , F o u r t h
and F i f t h Amendments. Katz v . United S t a t e s , s u p r a .
The s t a t e i n o r a l argument c i t e d a Montana Law Review
n o t e a t 3 4 Montana Law Review 187, which i t a d v i s e d t h e C o u r t
a l s o r e p r e s e n t e d t h e s t a t e ' s view a s a n i n d e p t h d i s c u s s i o n of
B r e c h t and t h e e x c l u s i o n a r y r u l e .
The t o t a l i t y of t h e s t a t e , amicus and law r e v i e w a r t i c l e
arguments r e d u c e t h e m s e l v e s t o :
(1) The e x c l u s i o n a r y r u l e i s n o t a c o m p l e t e l y s a t i s f a c -
t o r y r u l e and r e p r e s e n t s a n a t t e m p t t o s o l v e a problem t h a t
d e f i e s simple s o l u t i o n . The c o n f l i c t i n g p o l i c y c o n s i d e r a t i o n s
a r e t h e i n t e r e s t of s o c i e t y i n c r i m i n a l p r o s e c u t i o n s and t h e p r o -
h i b i t i n g of law enforcement p e r s o n n e l from v i o l a t i n g F o u r t h
Amendment p r o s c r i p t i o n s , a p r o s c r i p t i o n e x t e n d e d t o r i g h t of
privacy as w e l l . The i n t e n t of t h e r u l e w a s t o remove t h e -
in-
c e n t i v e f o r o f f i c e r s t o v i o l a t e t h e r u l e and d e t e r o f f i c i a l
misconduct and promote " j u d i c i a l i n t e g r i t y " . Loqic would d i c t a t e
t h a t t o f u l f i l l t h e f u n c t i o n of t h e r u l e t h e p e r s o n v i o l a t i n g
t h e r u l e must have a n i n t e r e s t i n o b t a i n i n g t h e c o n v i c t i o n and
must a t l e a s t be aware o f t h e r u l e .
( 2 ) They a d o p t t h e s t r i c t c o n s t r u c t i o n d o c t r i n e of t h e
g e n e r a l r u l e t h a t t h e a u t h o r s of t h e F o u r t h Amendment, f e a r i n g
a n o p p r e s s i v e s o v e r e i g n , meant o n l y t o g i v e l i m i t e d p r o t e c t i o n
from government a c t i o n . The United S t a t e s Supreme C o u r t i n
Burdeau v . McDowell, 256 U.S. 465, 475, 4 1 S . C t . 574, 65 L ed
1048, s a i d :
"The F o u r t h Amendment g i v e s p r o t e c t i o n a g a i n s t
u n l a w f u l s e a r c h e s and s e i z u r e s , and a s shown i n
t h e previous cases, i t s protection a p p l i e s t o
governmental a c t i o n . I t s o r i g i n and h i s t o r y
c l e a r l y show t h a t i t was i n t e n d e d a s a r e s t r a i n t
upon t h e a c t i v i t i e s of s o v e r e i g n a u t h o r i t y , and
was n o t i n t e n d e d t o be a l i m i t a t i o n upon o t h e r
t h a n qovernmental a g e n c i e s ; a s a g a i n s t such
a u t h o r i t y it was t h e DurDose of t h e F o u r t h Amend-
menL t o s e c u r e t h e c i t l z e n i n t h e r i q h t of un-
m o l e s t e d o c c u p a t i o n of h i s d w e l l i n q and t h e pos-
s e s s i o n of h i s p r o p e r t y s u b j e c t t o t h e r i q h t of
s e i z u r e by p r o c e s s d u l y i s s u e d . " (Emphasis added)
A f a i r a n a l y s i s of t h e arguments would seem t o imply
t h a t t h e p o s i t i o n of t h e p a r t i e s was much t h e same a s t h a t ex-
p r e s s e d by Chief J u s t i c e T a f t , w r i t i n g f o r t h e m a j o r i t y i n a f i v e -
f o u r d e c i s i o n , Olmstead v . United S t a t e s , 277 U . S . 438, 48 S.Ct.
564, 7 2 L e d 944, 954, ( 1 9 2 8 ) , a t e l e p h o n e i n t r u s i o n c a s e by
f e d e r a l o f f i c e r s , where he h e l d t h e F o u r t h Amendment n o t s u b j e c t
t o a p p l i c a t i o n beyond t h e i n t e n t of t h e f r a m e r s of t h e amendment
and i t s words c o u l d n o t be s t r e t c h e d t o be g i v e n a meaning t o
i n c l u d e " i n t a n g i b l e " and t r e s p a s s was a r e q u i r e m e n t t o i n v a d e t h e
protected property.
A l l p a r t i e s i n t h e i n s t a n t c a s e have avoided any a n a l y s i s
of Katz i n which, J u s t i c e Black i n h i s d i s s e n t i n g o p i n i o n p r o -
-
c l a i m s t h a t t h e m a j o r i t y i n Katz have " r e w r i t t e n t h e F o u r t h Amend-
merit". J u s t i c e Black i n h i s d i s s e n t a l s o r e l i e d h e a v i l y on
Olmstead .
I t would a p p e a r t h e n t h a t t h e arguments based on s t r i c t
i n t e r p r e t a t i o n , o r i g i n , h i s t o r y , and i n t e n t of t h e a u t h o r s a s t h e y
c o n c e r n t h e F o u r t h Amendment a r e h i g h l y d i l u t e d s i n c e Katz i n 1967.
The m a j o r i t y i n Katz r e c o g n i z e t h a t t h e f o r m e r d e c i s i o n s of t h e
Court f o r e c l o s e d F o u r t h Amendment i n q u i r y when p e n e t r a t i o n o r
t r e s p a s s was a b s e n t , c i t i n g Olmstead and Goldman v . U n i t e d
S t a t e s , 316 U.S. 1 2 9 , 62 S.Ct. 993, 86 L ed 1322, f o r t h e Amend-
ment was t h o u g h t t o l i m i t o n l y s e a r c h e s and s e i z u r e s of t a n g i b l e
p r o p e r t y and p r o p e r t y r i g h t s c o n t r o l l e d . The m a j o r i t y , i n K a t z ,
c i t e d Silverman v . United S t a t e s , 365 U.S. 505, 81 S . C t . 679,
5 L ed 2d 734, a s t h e d e p a r t u r e from t h a t narrow view and i n c l u d e d
intangibles a s well. I t went on t o h o l d t h a t t h e F o u r t h Amend-
ment p r o t e c t s p e o p l e and n o t simply " a r e a s " and t h e r e f o r e t h e
r e a c h o f t h e F o u r t h Amendment c a n n o t t u r n upon t h e p r e s e n c e o r
a b s e n c e o f p h y s i c a l i n t r u s i o n i n t o any g i v e n e n c l o s u r e , and t h e
t r e s p a s s d o c t r i n e i n Olmstead and Goldman c a n no l o n g e r be con-
trolling.
T h i s t h e n d e m o n s t r a t e s a r a d i c a l d e p a r t u r e from t h e
a c c e p t e d meaning of t h e words of t h e F o u r t h Amendment which con-
t r o l l e d f o r o v e r a p e r i o d of 40 o r more y e a r s , s i n c c Olmstead.
It f u r t h e r demonstrates t h a t t h e s e t r a d i t i o n a l concepts a r e n o t
static. T h i s i s n o t a new c o n c e p t by any means. I n Olmstead,
many y e a r s a g o , among t h e f o u r d i s s e n t i n g j u s t i c e s , B r a n d i e s
o b s e r v e d i n r e f e r e n c e t o i n t e r p r e t a t i o n on t h e same s u b j e c t a s
-
Katz:
"Clauses guaranteeing t o t h e i n d i v i d u a l p r o t e c t i o n
a g a i n s t s p e c i f i c a b u s e s of power, must have a
s i m i l a r c a p a c i t y of a d a p t a t i o n t o a changing
world. I t was w i t h r e f e r e n c e t o s u c h a c l a u s e
t h a t t h i s c o u r t s a i d , i n Weems v. United S t a t e s ,
217 U.S. 349, 373, 54 L ed 793, 801, 30 Sup.Ct.
Rep. 544: ' L e g i s l a t i o n , b o t h s t a t u t o r y and con-
s t i t u t i o n a l , i s e n a c t e d , it i s t r u e , from an ex-
p e r i e n c e of e v i l s , b u t i t s g e n e r a l l a n g u a g e s h o u l d
n o t , t h e r e f o r e , be n e c e s s a r i l y c o n f i n e d t o t h e form
t h a t e v i l had t h e r e t o f o r e t a k e n . T i m e works c h a n g e s ,
heref fore a p r i n c i p l e t o be v i t a l must be c a p a b l e
-
b r i n s s i n t o e x i s t e n c e new c o n d i t i o n s and p u r - o s e s .
p
of wider application than the mischief which gave
it birth. This is peculiarly true of constitutions.
They are not ephemeral enactments, designed to meet
passing occasions. They are, to use the words of
Chief Justice Marshall, "designed to approach
immortality as nearly as human institutions can
approach it." The future is their care and pro-
vision for events of good and bad tendencies of
which no prophecy can be made. In the application
of a constitution, therefore, our contemplation
cannot be only of what has been but of what may
be. Under any other rule a constitution would
indeed be as easy of application as it would be
deficient in efficacy and power. Its general
principles would have little value and be converted
by precedent into lifeless and impotent formulas.
Rights declared in words might be lost in reality.'"
(Emphasis added) .
So far as privacy is concerned, Katz recognized the Fourth
Amendment was not a general right of privacy but the right was
contained in the Fourth and several other amendments, the First,
Third and the Fifth, and as stated in Katz at p. 581, 19 L ed 2d,
in reference to the right of privacy:
" * * * his right to be let alone by other people--
is, like the protection of his property and of
his very life, left largely to the law of the indi-
vidual States."
In Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524,
29 L ed 746, (1886), the Court noted that the Fourth and Fifth
Amendments were very closely tied and the unreasonable search and
seizure of the Fourth Amendment almost always compels a man to
give evidence against himself which is condemned in the Fifth
Amendment. In this regard the Fourth and Fifth Amendments almost
run into each other. This adds to the problem the fact that a
violation of the Fifth Amendment rights, whether private or
government, is condemned in all courts, military and civil. Haynes
v. Washington, 373 U.S. 503,
83 S.Ct. 1336, 10 L ed 2d 513, (1963); Rogers v. Richmond, 365
U.S. 534, 81 S.Ct. 735, 5 L ed 2d 760, (1961); Payne v. Arkansas,
356 U.S. 560, 78 S.Ct. 844, 2 L ed 2d 975, (1958).
Concerning the exclusionary rule itself, it would be well
to consider first that the "exclusionary rule" is a court adopted
rule resting on the "rule making" and "supervisory power" of the
Supreme Court over the other courts and has no roots in the con-
stitution or the statutes of the state or federal government.
(Dissent in Katz by Justice Black and citing Wolf v. Colorado,
338 U.S. 25, 69 S.Ct. 1359, 93 L ed 1782; Mapp v. Ohio, 367 U.S.
643, 81 S.Ct. 1684, 6 L ed 2d 1081, 84 ALR2d 933; Elkins v. U.S.,
364 U.S. 206, 80 S.Ct. 1437, 4 L ed 2d 1669, 1677, 1680, 1681,
(1960). )
The fact that the rule is characterized as not satisfac-
tory and the state in argument recommended that a tort remedy for
the aggrieved was adequate, simply ignores that all of the cases
which declare the rule as a deterrent because the wrong cannot
be corrected or compensated, but merely avoided in the future,
must have recognized that there could be no price placed on a
constitutional right.
The court in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905,
(1955), observed that the court was compelled to apply the rule
because all remedies, such as criminal and tort, had completely
failed to secure these rights under the Constitution. Cahan
was cited and approved in Elkins with a long discussion on the
problem, citing statements from the chief law enforcement officers
of California and the FBI in support of the rule.
In Elkins, the court said:
"The exclusionary rule has for decades been the
subject of ardent controversy. The arguments of
its antagonists and of its proponents have been
so many times marshalled as to require no lengthy
elaboration here."
It is, however, noteworthy to comment on its application
and the "silver platter doctrine" that resulted. The first
application of the rule, in 1914, applied only to the federal
court system and only excluded tainted evidence obtained by
federal officers and as a result the so-called "silver platter
doctrine" was developed, i.e., state officers could violate a
person's constitutional right and hand the evidence to the fed-
eral officers [on a silver platter] and such evidence could be
used in the federal court because no federal officer was physi-
cally involved in the violation.
This practice was recognized but ignored for over 40
years until Elkins. In that case, the "silver platter doctrine"
was finally discredited. Elkins went on to observe that it is
unlikely factual data could be assembled to demonstrate that the
exclusionary rule was unworkable and in some depth demonstrated
the opposite conclusion. Of more interest, Elkins cites with
approval as a ground for rejecting the so-called "silver platter
doctrine":
"But there is another consideration--the imperative
of judicial integrity. It was of this that Mr.
Justice Holmes and Mr. Justice Brandeis so elo-
quently spoke in Olmstead v. United States, 277
U.S. 438, at 469, 471,72 L ed 944, 952,
953, 48 S.Ct. 564, 66 ALR 376, more than 30
years ago. 'For those who agree with me,' said
Mr. Justice Holmes, 'no distinction can be taken
between the Government as prosecutor and the
Government as judge.' 277 US at 470. (Dissent-
ing opinion.) 'In a government of laws,' said
Mr. Justice Brandeis, 'existence of the government
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 law-
breaker, it breeds contempt for law; it invites
every man to became a law unto himself; it in-
vites anarchy. To declare that in the adminis-
tration 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 bring terrible retri-
bution. Against that pernicious doctrine this
Court should resolutely set its face.' 277
U.S. at 485. (Dissenting opinion.)"
Elkins also cites McNabb v. United States, 318 U.S. 332,
345, 63 S.Ct. 608, 87 L ed 819, in support of this doctrine and
then concludes:
"Even less s h o u l d t h e f e d e r a l c o u r t s be a c c o m p l i c e s
i n t h e w i l l f u l d i s o b e d i e n c e of a C o n s t i t u t i o n t h e y
a r e sworn t o uphold. "
Of c o u r s e , t h i s would a p p l y t o a l l of t h e c o u r t s y s t e m s .
I n Mapp, s h o r t l y a f t e r E l k i n s , t h e l a s t door was c l o s e d
and t h e e x c l u s i o n a r y r u l e was a p p l i e d t o t h e s t a t e c o u r t s . The
r u l e may have many of t h e d e f i c i e n c i e s t h a t a r e contended by
t h e s t a t e , b u t a c l o s e e x a m i n a t i o n of i t s h i s t o r y would s e e m t o
p r e s e n t a s t r o n g c a s e t h a t once t h e r u l e was f o r m u l a t e d t h e un-
e x p l a i n e d , uneven and i g n o b l e a p p l i c a t i o n by t h e j u d i c i a r y l e n t
no s t r e n g t h t o t h e r u l e and i t i s c e r t a i n l y no compliment t o
j u d i c i a l i n t e g r i t y t o a d m i t t o t h e i n o r d i n a t e l e n g t h of t i m e
t h a t t h e " s i l v e r p l a t t e r d o c t r i n e " was i g n o r e d .
I n c i d e n t a l t o t h i s m a t t e r t h e s t a t e commented w i t h em-
p h a s i s i n i t s b r i e f , t h a t S t a t e v. Gardner, 7 7 Mont. 8 , 2 4 9 P .
574 (1926),was n o t c o n s i d e r e d i n B r e c h t b u t was by i m p l i c a t i o n
o v e r r u l e d by B r e c h t . The Supreme C o u r t of Montana had a d o p t e d
i t s own e x c l u s i o n a r y r u l e a t t h a t t i m e , l o n g p r i o r t o Mapp, and
d i d q u o t e from Burdeau, t h e f o u n d a t i o n c a s e , f o r t h e g e n e r a l
r u l e q u o t e d i n Gardner. However, Gardner i n v o l v e d t h e " s i l v e r
p l a t t e r d o c t r i n e " i n t h e u s e of i l l e g a l l y o b t a i n e d e v i d e n c e by
t h e f e d e r a l a u t h o r i t i e s i n a s t a t e c o u r t and used Burdeau t o
j u s t i f y t h i s a c t i o n i n an e n t i r e l y d i f f e r e n t context than t h a t
under c o n s i d e r a t i o n i n B r e c h t . It m u l d seem f a i r t o assume t h a t
Elkins overruled, not Brecht.
The argument 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 wedded t o
t h e s o v e r e i g n because t h e o r g a n i z e d o f f i c i a l d o m a r e t h e o n l y o n e s
t h a t c a n be d e t e r r e d b e c a u s e t h e i n j u r y t o t h e v i c t i m c a n n o t
be r e s t o r e d o r r e p a r a t i o n comes t o o l a t e , and t h a t a l l o t h e r s
would have no p r o s e c u t i o n m o t i v e and c o u l d n o t be f a m i l i a r w i t h
t h e r u l e i s a n unwarranted g e n e r a l i z a t i o n t h a t c o m p l e t e l y d i s r e g a r d s
t h e changes t h a t have t a k e n p l a c e i n o u r p o l i t i c a l and s o c i a l
structure and the legal impact of the cases on the subject
since the rule was announced in Burdeau in 1921; with partic-
ular reference to -and Elkins.
Katz It also follows that no
consideration is being given to the cases cited, including
Brecht, where there is a merger of the Fourth and Fifth Amend-
ments in a violation of a personal right, particularly when
authority cited by the state agrees that Fifth Amendment violations
are excluded when done by a private person. No thought is given
to the Montana Constitution or statutes previously cited. Fin-
ally, it fails altogether to recognize the massive increase in
the incidents of the invasions of the right of privacy of the
private citizen or the scientific advances that have made this
possible, even though the United States Congress has finally
recognized the problem and has given it priority consideration.
Further, the arguments erroneously characterize the
"private person" as the little old lady next door who has a de-
sire to assist in law enforcement. When in fact a great many of
the pure Fourth Amendment cases cited by the state involve
"institutional", "quasi" or "private" police, i.e., airport
guards, building security personnel, private detectives and we
also have private corporation police like railroad police and
self-help groups and investigators for political committees.
Experience simply does not cast these groups of "private" persons
in the minority. The standards agreed to by the state simply do
not fit this segment of the private sector. Methods designed
to protect the multiple rights of the whole of our citizenry
are not intended to free criminals or discourage the participa-
tion of citizens in the enforcement of our laws.
If one considers that any exclusionary process only ex-
cludes "unreasonable" conduct it can readily be seen that -
all
intrusions are not unreasonable. Like it or not unreasonable or
illegal intrusions knowingly accepted and used, from the private
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. It
has been argued that Elkins did not disturb Burdeau, it may not
have been clear in the pusFourth Amendment context, but a close
examination does move one to believe that the silver platter
concept was condemned in any context.
This Court, however, does recognize the multitude of
problems that arise and have arisen over the decades in an
attempted solution of this very difficult problem and a final
solution may well require that recognition be given to the wide
disparity in terms of knowledge, motive and awareness of the
widely diverse groups, institutions and individuals sought to be
controlled and collusion avoided by the exclusionary rule.
If personal rights are to be protected and governmental
integrity preserved the answer does not lie in ignoring the
problem, as did the federal system for so many years, but a
possible examination of the rigidity of the rule itself might be
in order. The solution could very well be partially achieved by
an examination of standards for reasonableness in these matters
applicable to government on the one hand, institutional police
and private persons as we move down in this diverse process. This
is much the same problem to be faced under a statutory "private"
arrest, when it involves a search and seizure incident thereto.
The Court is mindful that by respondent's brief and case
analysis there have been constitutional and statutory questions
raised that bear directly on this problem which we have not
answered. Under the facts and circumstances of this case, we
feel that we should not and therefore have not done so.
As stated at the beginning of this opinion, the instant
case can be distinguished from Brecht. It might be well to
establish that it is distinguished on legal grounds. The Court
does not call into question the good faith or integrity nor offer
criticism of any of the parties here involved, for whatever
personal reasons controlled the decisions made that night.
The testimony clearly reveals two outstanding departures
from the doctrine urged by state and amicus.
(1) The transcript quoted reveals the reporting of a
crime to the proper authority, with abundant probable cause for
arrest procedure. At this point a crime against the state, not
McDonalds, was involved. The public interest thereafter was
subordinated to that of a private interest when the store manager
was permitted the luxury of self-help. No matter how laudable
the motives, there is no proof that adverse publicity would have
been any greater had the matter been handled by the police. There
is no legal difference if the crime reported had been a deceased
person by unnatural means. After the manager obtained the drug
it was promptly turned over to the police. This then is not the
example used in argument of an innocent assist to the government
with no conviction motive, or why else the initial report and
the delivering of the evidence for prosecution.
(2) The conference with officials :.%forehanddefeats, at
least impliedly, the ignorance of the rule concept. Further
the state endorsed in its cited law review article, 34 Montana
Law Review 187, 197, while explaining private cooperation with
the police creates less of a problem than might be imagined, that:
" * * * As soon as a private individual acts in
association or cooperation with the police, the
courts have held that his act is deemed to be
the act of the state. [Miramontes v. Superior
Court for County of San Mateo, 25 Cal.App.3rd 877,
102 Cal. Rptr. 182 (1972).] Not only will evidence
be excluded if a private individual works at the
direction or supervision of the police, but it
will also be excluded when the police are guilty
o f no more t h a n j u s t ' i d l y s t a n d i n g b y ' " .
S t a p l e t o n v . S u p e r i o r C o u r t o f L.A. County, 70 Cal.2d 97, 4 4 7
P.2d 967, 970 ( 1 9 6 9 ) ; S t a t e e x r e l . S a d l e r v. D i s t r i c t C o u r t ,
70 Mont. 378, 225 P. 1000 ( 1 9 2 4 ) .
A d m i t t e d l y t h e f a c t s of t h e c a s e p r e s e n t e d by t h e s t a t e
t h r o u g h t h e law r e v i e w a r t i c l e a r e much s t r o n g e r t h a n o u r s .
However S t a p l e t o n d o e s h o l d :
" * * * t h e p o l i c e need n o t have r e q u e s t e d o r d i r -
e c t e d t h e s e a r c h i n o r d e r t o be g u i l t y of ' s t a n d i n g
i d l y b y ' ; knowledge of t h e i l l e g a l s e a r c h c o u p l e d
with a f a i l u r e t o protect t h e [defendant's] r i g h t s
a g a i n s t such a s e a r c h s u f f i c e s . "
The l e g a l impact drawn from a l l of t h e f a c t s seems t o
come much more under S t a p l e t o n t h a n B r e c h t , however, i n e i t h e r
c a s e t h e d i s t r i c t c o u r t was
The judgment of t h e
Justice
W e concur:
..................................
Justices
---
Hon. M. '&es Sorte, D i s t r i c t
Judge, s i t t i n g i n p l a c e of M r . Chief
J u s t i c e James T . H a r r i s o n .
Mr. Justice Wesley Castles dissenting:
I dissent.
I would squarely overrule State v. Brecht, 157 Mont.
In Brecht, defendant was charged with murder in the
first degree. Sandra Brumfield, sister of the deceased, was
allowed to testify to a telephone conversation between defend-
ant and the deceased. Both Sandra and the deceased were, at
that time, residing in the home of their mother. During the
telephone conversation, Sandra picked up an extension telephone
and listened to the conversation. She was allowed to testify
at the trial that she heard the defendant tell the deceased,
"I got my shotgun out of hock, I am coming down and I will use
it if I have to." This Court held that the admission of this
testimony violated the defendant's Fourth and Fourteenth Amend-
ment rights and his rights under Article 111, Sec. 7, of the
1889 Montana Constitution. In so holding, this Court stated at
pages 270, 271, that the exclusionary rule applied to searches
and seizures conducted by private individuals:
"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 is tantamount to destruction of the right
itself.
"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."
Leaving aside for the moment issues relating to the
Montana Constitution, the plain and simple truth is that a
seizure by a private individual does not violate the federal
Constitution so long as that individual cannot be deemed an
agent of the state because of his involvement with the police.
In the case of Burdeau v. McDowell, 256 U.S. 465, 475, 41
S.Ct. 574, 65 L ed 1048 (1921), the defendant's employer had
entered defendant's office, drilled his safe and broken the
locks on his desk. A few months later, the employer turned the
papers found over to the government. In response to a motion
asking for an order for the return of the books, papers, memoranda,
correspondence, and other data in the possession of the Special
Assistant to the Attorney General of the United States, the
Court stated:
"The 4th Amendment gives protection against
unlawful searches and seizures, and, as shown in
the previous cases, its protection applies to
governmental action. Its origin and history
clearly show that it was intended as a restraint
upon the activities of sovereign authority, and
was not intended to be a limitation upon other
than governmental agencies; as against such
authority it was the purpose of the 4th Amend-
ment to secure the citizen in the right of un-
molested occupation of his dwelling and the
possession of his property, subject to the right
of seizure by process duly issued.
"In the present case the record clearly shows
that no official of the Federal government had
anything to do with the wrongful seizure of the
petitioner's property, or any knowledge thereof
until several months after the property had been
taken from him and was in the possession of the
Cities Service Company. It is manifest that there
was no invasion of the security afforded by the
4th Amendment against unreasonable search and
seizure, as whatever wrong was done was the act
of individuals in taking the property of another."
Although the scope of the exclusionary rule has expanded
immensely since the decision in Burdeau in 1921, that decision
has not been deviated from by the courts of this country. The
United States Supreme Court in Wolf v. Colorado, 338 U.S. 25,
69 S.Ct. 1359, 93 L ed 1782 (1949), held that the Fourth Amend-
ment's search and seizure prohibitions were applicable to the
states under the due process clause of the Fourteenth Amendment.
-
1 ?G'
Its decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 408-f-, 6
L ed 2d $6?4 (1961), by holding that "all evidence obtained by
searches and seizures in violation of the Constitution is, by
that same authority, inadmissible in a state court", made the
exclusionary rule applicable to the states. However, in order
to invoke the exclusionary rule on federal constitutional grounds
there must have been, as a condition precedent, some violation
of the federal constitution. Mapp, supra. A search and seizure
by a private individual does not violate the Fourth Amendment.
Burdeau, supra. Likewise, as the Fourteenth Amendment is directed
to the states and not to private individuals, a search and seizure
by a private individual does not violate the Fourteenth Amend-
ment. Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct.
2022, 29 L ed 2d 564 (1971) . Thus, because a search and seizure
by a private individual does not violate the federal constitution,
it follows that the exclusionary rule is not mandated by the
federal constitution.
Here, the events transpiring at the police station show
there was no involvement by the police in this search and seizure
nor was Hillis an instrumentality of the police. I cannot accept
the proposition that a person becomes an instrumentality of the
police merely by reporting an incident to the police. On the
other hand, the police cannot use a person who reports a crime
as an unwitting tool of the police to achieve ends forbidden to
the police themselves. Such is not the case here. There is ab-
solutely no evidence to indicate that the police consciously
played dumb or refused to make the search and seizure for the
purpose of e n c o u r a g i n g a s e a r c h and s e i z u r e by a p r i v a t e
individual.
The f a c t t h e p o l i c e d i d n o t a c t i v e l y e n t e r i n t o t h e
i n c i d e n t by p r o h i b i t i n g H i l l i s from making t h e s e a r c h and
s e i z u r e o r by o b t a i n i n g a s e a r c h w a r r a n t and making t h e s e a r c h
and s e i z u r e t h e m s e l v e s s h o u l d n o t r e s u l t i n H i l l i s b e i n g deemed
a n i n s t r u m e n t a l i t y of t h e p o l i c e and s u p p r e s s i o n of t h e e v i d e n c e .
I t i s n o t t h e p o l i c y o f t h i s s t a t e t o i n h i b i t t h e r e p o r t i n g of
crime t o t h e police. One of t h e m o t i v e s of H i l l i s t h r o u g h o u t
t h i s i n c i d e n t was t o p r o t e c t t h e r e p u t a t i o n of McDonald's by
p r e v e n t i n g bad p u b l i c i t y which might e n s u e i f uniformed p o l i c e
w e r e t o make t h e s e a r c h and s e i z u r e on t h e p r e m i s e s . The p o l i c e
knew t h i s . I f t h e b u s i n e s s community i s aware t h a t a r e p o r t t o
t h e p o l i c e must r e s u l t i n an immediate p o l i c e r e s p o n s e w i t h o u t
r e g a r d f o r t h e consequences o r i t s e f f e c t on i t s b u s i n e s s ' good-
w i l l , t h e r e i s no d o u b t i n o u r minds t h a t t h e r e p o r t i n g of
i n c i d e n t s t o t h e p o l i c e w i l l be i n h i b i t e d and l e s s e n e d . Thus,
I would d e c l i n e t o h o l d t h a t H i l l i s was a n i n s t r u m e n t a l i t y o f
t h e p o l i c e f o r p u r p o s e s of t h e i n s t a n t s e a r c h and s e i z u r e .
Defendant c o n t e n d s t h e s e a r c h and s e i z u r e of t h e s u b s t a n c e
by Robert H i l l i s from d e f e n d a n t ' s c o a t p o c k e t v i o l a t e d A r t i c l e 11,
S e c t i o n s 1 0 and 11, of t h e 1972 Montana C o n s t i t u t i o n and s e c t i o n
95-701, R.C.M. 1947, and t h u s must be s u p p r e s s e d by r e a s o n of
t h e exclusianary r u l e . Those s e c t i o n s r e a d a s f o l l o w s :
" S e c t i o n 1 0 . R i g h t of P r i v a c y . The r i g h t of
i n d i v i d u a l privacy is e s s e n t i a l t o t h e well-being
of a f r e e s o c i e t y and s h a l l n o t be i n f r i n g e d
w i t h o u t t h e showing o f a c o m p e l l i n g s t a t e i n t e r e s t .
" S e c t i o n 11. S e a r c h e s and s e i z u r e s . The p e o p l e
s h a l l be s e c u r e i n t h e i r p e r s o n s , p a p e r s , homes
and e f f e c t s from u n r e a s o n a b l e s e a r c h e s and s e i z u r e s .
No w a r r a n t t o s e a r c h any p l a c e , o r s e i z e any p e r s o n
o r t h i n g s h a l l i s s u e without describing t h e p l a c e
t o be s e a r c h e d o r t h e p e r s o n o r t h i n g t o be s e i z e d ,
o r w i t h o u t p r o b a b l e c a u s e , s u p p o r t e d by o a t h o r
a f f i r m a t i o n reduced t o writing."
"95-701. S e a r c h e s and s e i z u r e s - - w h e n authorized.
A s e a r c h o f a p e r s o n , o b j e c t o r p l a c e may b e
made and i n s t r u m e n t s , a r t i c l e s o r t h i n g s may b e
s e i z e d i n accordance with t h e provisions of t h i s
c h a p t e r when t h e s e a r c h i s made:
"(a) A s an incident t o a lawful a r r e s t .
" ( b ) With t h e c o n s e n t o f t h e a c c u s e d o r o f a n y
o t h e r p e r s o n who i s l a w f u l l y i n p o s s e s s i o n o f
t h e o b j e c t o r p l a c e t o be s e a r c h e d , o r who i s
b e l i e v e d upon r e a s o n a b l e c a u s e t o b e i n s u c h
l a w f u l p o s s e s s i o n by t h e p e r s o n making t h e
search.
" ( c ) By t h e a u t h o r i t y o f a v a l i d s e a r c h w a r r a n t .
" ( d ) Under t h e a u t h o r i t y and w i t h i n t h e s c o p e of
a r i g h t of l a w f u l i n s p e c t i o n g r a n t e d by l a w . "
Even i f t h e s e a r c h and s e i z u r e by H i l l i s was a v i o l a t i o n
t h e foregoing p r o v i s i o n s , t h e f a c t s of t h i s c a s e not
warrant an a p p l i c a t i o n of t h e exclusionary r u l e .
I n d i s c u s s i n g t h e purpose of t h e exclusionary r u l e , t h e
Supreme C o u r t o f t h e U n i t e d S t a t e s h a s r e c e n t l y s t a t e d i n U n i t e d
S t a t e s v. C a l a n d r a , U.S. , 94 S.Ct. , 38 L e d 2d 561,
"The 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 i s n o t t o
r e d r e s s t h e i n j u r y t o t h e privacy of t h e s e a r c h
victim:
" ' [ T l h e r u p t u r e d p r i v a c y o f t h e v i c t i m s ' homes
and e f f e c t s c a n n o t be r e s t o r e d . Reparation
comes t o o l a t e . ' L i n k l e t t e r v . Walker, 381 U.S.
618, 637, 1 4 L e d 2d 601, 85 S . C t . 1 7 3 1 ( 1 9 6 5 ) .
" I n s t e a d , t h e r u l e ' s prime p u r p o s e i s t o d e t e r f u t u r e
u n l a w f u l p o l i c e c o n d u c t and t h e r e b y e f f e c t u a t e t h e
g u a r a n t e e o f t h e F o u r t h Amendment a g a i n s t u n r e a s o n -
a b l e s e a r c h and s e i z u r e s :
"'The r u l e i s c a l c u l a t e d t o p r e v e n t , n o t t o r e p a i r .
Its p u r p o s e i s t o d e t e r - - t o compel r e s p e c t f o r t h e
c o n s t i t u t i o n a l guaranty i n t h e only e f f e c t i v e l y
a v a i l a b l e way--by removing t h e i n c e n t i v e t o d i s -
r e g a r d i t . ' E l k i n s v . U n i t e d S t a t e s , 364 U.S.
206, 217, 4 L e d 2d 1669, 80 S . C t . 1437 ( 1 9 6 0 ) .
"Accord, Mapp v . Ohio, 367 U.S. 643, 656, 6 L e d 2d
1 0 8 1 , 8 1 S.Ct. 1684, 84 ALR2d 933 ( 1 9 6 1 ) ; Tehan v .
U n i t e d S t a t e s , e x r e l . S h o t , 382 U.S. 406, 416,
1 5 L e d 2d 453, 86 S . C t . 459 ( 1 9 6 6 ) ; T e r r y v . Ohio,
392 U.S. 1, 29, 20 L e d 2d 889, 88 S . C t . 1868 ( 1 9 6 8 ) .
I n sum, t h e r u l e i s a j u d i c i a l l y - c r e a t e d remedy
d e s i g n e d t o s a f e g u a r d F o u r t h Amendment r i g h t s
generally through i t s d e t e r r e n t e f f e c t , r a t h e r
than a personal c o n s t i t u t i o n a l r i g h t of t h e
p a r t y aggrieved.
" D e s p i t e i t s broad d e t e r r e n t p u r p o s e , t h e ex-
c l u s i o n a r y r u l e h a s n e v e r been i n t e r p r e t e d t o
p r o s c r i b e t h e u s e of i l l e g a l l y - s e i z e d e v i d e n c e
i n a l l proceedings o r a g a i n s t a l l persons. A s
w i t h any r e m e d i a l d e v i c e , t h e a p p l i c a t i o n of t h e
r u l e h a s been r e s t r i c t e d t o t h o s e a r e a s where
i t s r e m e d i a l o b j e c t i v e s a r e t h o u g h t most e f f i -
caciously served."
I n d e c l i n i n g t o extend t h e exclusionary r u l e t o t h e
u s e i n grand j u r y p r o c e e d i n g s of e v i d e n c e s e i z e d i n v i o l a t i o n o f
t h e F o u r t h Amendment, t h e C o u r t i n C a l a n d r a s t a t e d , a t page 573
" A g a i n s t t h i s p o t e n t i a l damage t o t h e r o l e and
f u n c t i o n s of t h e g r a n d j u r y , w e must weigh t h e
b e n e f i t s t o be d e r i v e d from t h i s proposed e x t e n -
s i o n of t h e exclusionary r u l e . S u p p r e s s i o n of
t h e u s e of i l l e g a l l y - s e i z e d e v i d e n c e a g a i n s t t h e
search victim i n a criminal t r i a l i s thought t o
be a n i m p o r t a n t method of e f f e c t u a t i n g t h e F o u r t h
Amendment. But i t d o e s n o t f o l l o w t h a t t h e F o u r t h
Amendment r e q u i r e s a d o p t i o n of e v e r y p r o p o s a l
t h a t might d e t e r p o l i c e misconduct. I n Alderman
v . United S t a t e s , 394 U.S., a t 1 7 4 , 22 L ed 2d 176,
f o r example, t h i s C o u r t d e c l i n e d t o 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 one who was n o t t h e v i c t i m
of t h e u n l a w f u l s e a r c h :
" ' T h e d e t e r r e n t v a l u e s of p r e v e n t i n g t h e i n c r i m i -
n a t i o n of t h o s e whose r i g h t s t h e p o l i c e have v i o -
l a t e d have been c o n s i d e r e d s u f f i c i e n t t o j u s t i f y
t h e s u p p r e s s i o n of p r o b a t i v e e v i d e n c e even though
t h e c a s e a g a i n s t t h e d e f e n d a n t i s weakened o r
d e s t r o y e d . W a d h e r e t o t h a t judgment.
e But w e
a r e n o t convinced t h a t t h e a d d i t i o n a l b e n e f i t s
of e x t e n d i n g t h e e x c l u s i o n a r y r u l e t o o t h e r de-
f e n d a n t s would j u s t i f y f u r t h e r encroachment upon
t h e p u b l i c i n t e r e s t i n prosecuting t h o s e accused
of c r i m e and h a v i n g them a c q u i t t e d o r c o n v i c t e d
on t h e b a s i s o f a l l t h e e v i d e n c e which e x p o s e s t h e
truth. '
"We t h i n k t h i s o b s e r v a t i o n equally applicable i n
the present context.
"Any i n c r e m e n t a l d e t e r r e n t e f f e c t which might be
a c h i e v e d by e x t e n d i n g t h e r u l e t o g r a n d j u r y
p r o c e e d i n g s i s u n c e r t a i n a t b e s t . Whatever
d e t e r r e n c e o f p o l i c e misconduct may r e s u l t from
t h e e x c l u s i o n of i l l e g a l l y - s e i z e d e v i d e n c e from
c r i m i n a l t r i a l s , it i s u n r e a l i s t i c t o assume
t h a t a p p l i c a t i o n o f t h e r u l e t o g r a n d j u r y proceed-
i n g s would s i g n i f i c a n t l y f u r t h e r t h a t g o a l . Such
an extension would deter only police investi-
gation consciously directed toward the dis-
covery of evidence solely for use in a grand
jury investigation. The incentive to disregard
the requirement of the Fourth Amendment solely
to obtain an indictment from a grand jury is sub-
stantially negated by the inadmissibility of the
illegally-seized evidence in a subsequent crim-
inal prosecution of the search victim. For the
most part, a prosecutor would be unlikely to
request an indictment where a conviction could
not be obtained. We therefore decline to em-
brace a view that would achieve a speculative
and undoubtedly minimal advance in the deterrence
of police misconduct at the expense of substan-
tially impeding the role of the grand jury."
From the foregoing excerpts from Calandra, it can be
readily seen that the purpose of the exclusionary rule is to
deter future unlawful official conduct and not as a bonus to
the criminal defendant whose rights have been violated. Where
there has been no unlawful official misconduct, as in the
present factual situation, the reason for the rule fails. Even
if it be conceded that the reason for the exclusionary rule is
to deter all illegal conduct, official or private, the appli-
cation of the rule has been restricted to those areas where its
remedial objectives are thought most efficaciously served.
Calandra, supra. Thus, whether the exclusionary rule will be
applied in any given case comes down to a balancing test: whether
the rule's value as a deterrent to misconduct outweighs the
public interest in preventing and prosecuting crime.
As stated in the Note at 34 Montana Law Review 187, 195-
"Logic indicates that certain requirements must
be met if the rule is in fact going to fulfill
its deterrent function. For one thing, the per-
son committing the search and seizure must have
an interest in obtaining a conviction with the
information he secures. Obviously the rule is
of no value where, for example, the police have
'no interest in prosecuting, or are willing to
forego successful prosecution in the interest
of serving another goal.' * * *
"The other requirement, which on the surface seems
elemental, is that the person involved in the
search and seizure must at least be aware of
the rule. While it is not unusual to expect
the police to be familiar with certain salient
rules of evidence, it does seem unlikely that
a layman with no interest or intent of securing
the conviction of criminals would have much know-
ledge in this area. "
The testimony set forth at the beginning of the majority
opinion shows that Hillis had two motives for removing the sub-
stance from defendant's pocket, neither of which was to prosecute
or convict defendant: (1) He wanted to remove the substance so
that the other employees would not get the feeling that they
could with impunity possess drugs on the McDonald's premises;
(2) he desired to keep the police from getting involved in order
to protect the reputation of McDonald's. Whether or not the
desire to keep the police from getting involved was proper,
Hillis was not motivated to secure a conviction of defendant.
Neither is there any evidence of Hillis' awareness of the exclu-
sionary rule.
Even if it had been established that Hillis had been
motivated to secure a conviction or had known of the exclusionary
rule, the application of that rule in the case of a search and
seizure by a private individual, as here, would not be appro-
priate. The function of the exclusionary rule is to deter, not
to repair. Despite the motivation or knowledge of the exclusionary
rule in the present case, the Court is bound to look at what
effect an application in this case would have on future cases of
search and seizure by private individuals. We believe it would
be a rare case where a private individual conducting an illegal
search and seizure would have both the motivation to convict and
an awareness of the exclusionary rule. Thus, the deterrent effect
of imposing the exclusionary rule in this case would be specula-
tive at best. Such speculative value is here outweighed by the
public interest in preventing and prosecuting crime. When the
reason of a rule ceases, so should the rule itself. Section
49-102, R.C.M. 1947.
It is difficult to determine just what the legal basis
is for the majority opinion other than a love for the exclusionary
rule. Heretofore I have attempted to show that Hillis was not
in any manner an instrumentality of the police and in no sense
was the proverbial "silver platter doctrine" involved here.
Moreover, the majority opinion states that when Hillis reported
to the police there was "abundant probable cause for arrest
procedure"! Surely the majority does not mean that. Compare
the holding on probable cause for an arrest here with that in
State v. Thorsness, Mont .
-
1 - - 31
P.2d , St.Rep. 895,
written by Justice Haswell and concurred in by Justice Daly.
Thereafter the majority approves the statement in Stapleton
v. Superior Court of L. A. County, 70 Cal.2d 97, 447 P.2d 967,
970, that:
"Not only will evidence be excluded if a private
individual works at the direction or supervision
of the police, but it will be also excluded when
the police are guilty of no more than 'just idly
standing by ' " .
In my view this is an unwise extension of the exclusionary rule.
Mr. Justice John Conway Harrison concurring in Justice castles'
dissent :
Although I did not participate in Brecht I join Justice
Castles in his dissent here and would overrule Brecht. No other
jurisdiction that I can find has extended the "silver platter1'
doctrine to include all that Brecht covers. In my opinion the
net effect of Brecht further hamstrings law enforcement officials.
C33j Justice