State v. Coleman

No. 79-69
a n d 79-70

I N THE SUPREME COURT O F THE STATE O MONTANA
F

STATE O MONTANA,
F

P l a i n t i f f and Respondent,
-vs-
WILLIAM J O H N COLEMAN,

Defendant and A p p e l l a n t .

STATE OF MONTANA,

P l a i n t i f f and R e s p o n d e n t ,
-vs-

T O A G.
H M S CASE I

Defendant and A p p e l l a n t .

A p p e a l s from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f Y e l l o w s t o n e ,
H o n o r a b l e C h a r l e s Luedke, J u d g e p r e s i d i n g .

C o u n s e l o f Record:

For Appellants:

A l l e n Beck a r g u e d , B i l l i n g s , Montana

For Respondent:

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Allen Chronister argued, A s s i s t a n t Attorney General,
H e l e n a , Montana
H a r o l d F. H a n s e r , County A t t o r n e y , B i l l i n g s , Montana
James D.Whalen, Deputy County A t t o r n e y , B i l l i n g s ,
Montana ( a r g u e d )

Filed: 9
&
p A"?LB~J
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

These cases, consolidated on appeal, arise out of
judgments of conviction against the defendants entered in
the District Court, Thirteenth Judicial District, Yellowstone
County.
Three of the issues raised in each appeal are the same.
For that reason, we consolidated the matters for oral argument.
Principally the defendants contend that electronic surveil-
lance of each of the defendants was illegal because the sup-
porting affidavits upon which warrants for electronic
surveillance were issued were inadequate in that (1) no
compelling state interest was shown, and (2) the Aguilar-
Spinelli standards were not met. Moreover, it is also argued
by each defendant that the warrants did not specifically
describe the place to be searched. We find against the
defendants on these contentions and the remaining issues each
defendant raised. We will discuss each case separately avoiding
repetition where possible.

William John Coleman, No. 79-69.
William John Coleman appeals from his conviction on
September 14, 1979, of felony sale of dangerous drugs and
felony possession with intent to sell dangerous drugs.
On January 12, 1979, Stanley Underwood, a parolee, was
subjected to a parole search by officers of the Billings
police department. As a result, Underwood faced parole
revocation because of possession of illegal drugs, but he
was promised release if he would assist the police in the
investigation of William Coleman.
On January 14, 1979, Underwood met defendant Coleman
while wearing a body transmitter which had been provided
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by the Yellowstone County Criminal Investigation Division.
A receiver and tape deck were used to record the transmissions
of the conversations between Underwood and Coleman.
Coleman's arrest occurred directly as a result of the
electronic surveillance, during which the officers overheard
the purchase by Underwood from Coleman of a half-pound and
a quarter ounce of methamphetamines. At the time of the
arrest, Coleman was informed by Detective Wickhorst that they
had "it all on tape". Coleman consented to a search of his
home which occurred later that evening, after Detective
Wickhorst obtained a search warrant from Justice of the Peace
Pedro Hernandez. The search of the home turned up additional
drugs and some drug handlers' paraphernalia such as weighing
devices.
Each of the defendants recognizes that the legality of
interception of telephone calls or the recording of con-
versations was settled in State v. Hanley (1980), Mont .
,
- 608 P.2d 104, 37 St.Rep. 427. There we said that police
officers may intercept, transmit or record private conversations
if one of the parties to the conversation consents, even an
informer, as long as the will of the consenting party has not
been subjected to overbearing pressure from the authorities.
We pointed out the language from United States v. White (1970),
401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453, that since an
informer who conceals his police connections may write down
for official use his conversations with a suspect and testify
concerning them without a warrant issued beforehand, the
simultaneous recording of the same conversation by electronic
means made by the informer or by others from transmissions
received from the informer is likewise admissible. County
attorneys in this state follow the practice, which we approved,

of obtaining a court order before electronic interception of
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criminal suspects is undertaken, as a result of our decision
in State v. Brackman (1978), - Mont . , 582 P.2d 1216,
35 St.Rep. 1103.

Coleman's major argument is that the application made
to the ~istrictCourt for permission to use electronic sur-
veillance on him was inadequate because it does not meet the
Aguilar-Spinelli standard, and because there is no compelling
state interest requiring the issuance of the order.
The Aguilar-Spinelli test is derived from Aguilar v. Texas
723;
(19641, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d/ and Spinelli
v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d
637. The test is that the application for order or warrant
must demonstrate that the informant obtained his information
in a reliable manner and that the application establishes that
the informant is reliable or that the informant's information
has been corroborated by information obtained independently
of the informant's allegations.
We do not reach the Aguilar-Spinelli test in this case,
however, because the tape recording of the drug transaction
transmission was never played to the jury or entered into
evidence. Underwood testified fully during Coleman's trial
regarding the drug transaction between himself and Coleman.
The District Court found that the direct testimony of Underwood
was sufficient to convict, and refused the admission of the
tape into evidence. Since the recorded evidence was not used
to convict Coleman, there is no need for us in this case to
examine the Aguilar-Spinelli test or whether a compelling state
interest required the issuance of the surveillance order. State
,
v. Jackson (1979), - Mont. - 589 P.2d 1009, 36 St.Rep.
169; State v. Leighty (1978), - Mont . -, 588 P.2d 526, 35
St.Rep. 2017.
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 In like manner, because the tape was not used in
evidence, there is no necessity for us in Coleman's case to

examine the issue of specificity with respect to the order
for electronic surveillance, that is, that the order did not
specify a particular place where the electronic surveillance
could be effectuated.
An issue which relates to Coleman's case and not to that
of Thomas Case is the surmise of Coleman that the police
authorities were tapping his telephone prior to January 12,
1978, and particularly prior to January 14, 1978, when the
order permitting electronic surveillance of his conversations
with Underwood was granted.
Coleman contends that there was prior illegal electronic
surveillance in this case because (1) the state became aware
of William Coleman's alleged drug dealing through unlawful
telephone monitoring during 1978; (2) that the monitoring
led to the arrest of Underwood, the parolee, and the search
of his home; and (3) that the illegal monitoring led to the
recruitment of Underwood by the Billings Criminal Investigation
Division to assist in the arrest of Coleman.
This contention is based on the testimony of Arnado Garcia
who stated that on January 13, 1979, Detective Wickhorst
told Garcia that he was susp&dof engaging in illegal activities
with William Coleman and others. Garcia asked ~ickhorsthow
that information had been obtained and Wickhorst's response
was, "We should hold down our conversatio~onthe phone."
Garcia also testified that Wickhorst had stated on January 13,
1979, that the police were aware of Coleman's activities
before Christmas 1978. Also Cathy Underwood, the wife of the
parolee, testified that on the night of the parole search of
her home on January 12, 1979, a member of the ~illingsCID
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who r e t u r n e d h e r t o h e r home t o l d h e r ' h o t t o c a l l on t h e

phones, a s t h e y were p r o b a b l y a l l t a p p e d and n o t t o warn

h e r f r i e n d s t h a t t h e phones were a l l tapped!'

Underwood t e s t i f i e d t h a t d u r i n g t h e p a r o l e s e a r c h of

h i s home, D e t e c t i v e Wickhorst went t o t h e bedroom, d i s -

assembled t h e t e l e p h o n e and removed something from i t which

he placed i n h i s pocket.

Underwood a l s o t e s t i f i e d t h a t w h i l e he remained i n j a i l

on J a n u a r y 30, h e had f o u r t e l e p h o n e c a l l s t a p p e d by t h e

a p p l i c a t i o n o f a s u c t i o n cup and an e l e c t r o n i c r e c o r d i n g d e v i c e .

With r e s p e c t t o t h e t e l e p h o n e c a l l s i n t h e p o l i c e s t a t i o n

which were r e c o r d e d by u s e o f t h e s u c t i o n cup e l e c t r o n i c d e v i c e ,

s i n c e Underwood c o n s e n t e d t o t h a t m o n i t o r i n g , t h e t e l e p h o n e

i n t e r c e p t i o n by t h e p o l i c e a u t h o r i t i e s o f t h o s e c o n v e r s a t i o n s

was n o t i l l e g a l under S t a t e v. Hanley, s u p r a .

T h i s C o u r t c a n n o t be e x p e c t e d t o r e v e r s e a c r i m i n a l

c o n v i c t i o n upon t h e m e r e c o n j e c t u r e t h a t t h e p o l i c e a u t h o r i t i e s

w e r e u s i n g i l l e g a l w i r e t a p p i n g of t e l e p h o n e c a l l s t o s e t i n
motion t h e c h a i n o f c i r c u m s t a n c e s t h a t l e d t o t h e s e a r c h of

t h e p a r o l e e ' s home. There i s n o t a s c i n t i l l a of d i r e c t

evidence i n t h e record t o support such conjecture. An i s s u e

b u i l t upon such c o n j e c t u r e i s s i m p l y w e i g h t l e s s f o r p u r p o s e s

of a p p e a l .

Thomas G. Case, No. 79-70.

Defendant Thomas G. Case was c h a r g e d by i n f o r m a t i o n

w i t h f e l o n y c r i m i n a l s a l e of dangerous d r u g s and f e l o n y

c r i m i n a l p o s s e s s i o n of dangerous d r u g s . Upon t r i a l on motion

of C a s e , a d i r e c t e d v e r d i c t w a s g r a n t e d by t h e c o u r t i n C a s e ' s

favor with r e s p e c t t o t h e charge of criminal possession of

dangerous d r u g s . The c h a r g e o f c r i m i n a l s a l e of dangerous d r u g s

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was submitted to the jury which convicted the defendant.
Judgment of conviction and sentence were pronounced on
June 18, 1979.
The conviction of Case relates to the same undercover
agent, Stanley Underwood. Following Underwood's assistance
to police authorities in the Coleman matter, he was released
from custody. He was again arrested on January 30, 1979,
along with his wife. Underwood made a deal that he would
cooperate with the police in arresting Thomas Case if the
police would agree not to prosecute his wife.
On January 30, 1979, Detective Orval Hendrickson of the
Billings CID applied to the District Court for authorization
to use an electronic monitoring device on Stanley Underwood.
The order was granted by the District Court for a period of
ten days beginning January 30, 1979.
In the afternoon of January 30, 1979, Underwood made a
telephone call to Case which was recorded by the police
authorities through the use of a suction cup recording device.
As a result of the telephone call, a drug buy was arranged.
Underwood proceeded to Case's residence in Billings where the
transaction involving the purchase by Underwood from Case of
methamphetamines was consummated.
After the arrest of Case, the officers requested his
permission to search his residence but he refused. The
officers had already commenced the steps necessary to secure
a search warrant, including notifying a justice of the peace
and preparing the necessary papers. Case, without further
conversation, and apparently without any inducement, told
the officers they "might as well" go ahead and search because
they would not find anything. The record does not reveal that
a search warrant was obtained for the search of the Case
residence, although Case argues on appeal on the basis that
a search warrant was issued. In any event, the marked money
furnished for the buy, and drug-related paraphernalia, were
seized during the search of Case's residence.
Case, as did Coleman, argues that the application for
the order authorizing the use of the electronic monitoring
device does not meet the Aguilar-Spinelli test, supra, and
therefore the issuance of the order authorizing the electronic
monitoring was unlawful, and any evidence secured as a result
thereof should be suppressed.
Detective Hendrickson's application for an order to
allow the use of electronic monitoring included these state-
ments :
.
". . Stanley Underwood is a confidential source
of information who has agreed to cooperate with the
Criminal Investigation Division of the Yellowstone
County Attorney's Office. Underwood has stated that
he has been furnished with dangerous drugs, to wit,
methamphetamines, in the past by Tom Case. On Monday,
the 29th of January, 1979, Tom Case was at the
Underwood residence and stated that he would have
quantity of methamphetamines for sale on the 30th
of January, 1979. Underwood stated that Case would
front him one ounce of methamphetamine. At this
time, Underwood plans to approach Case for the purpose
of purchasing one ounce of the methamphetamines at
the Case residence. The cost of one ounce of
methamphetamine is approximately $1,100.00.
"Stanley Underwood is currently on parole for burglary
but has supplied reliable information in the past to
the Criminal Investigation Division, Yellowstone
County Attorney's Office, which has lead (sic) to
the seizure of contraband and arrest. . ."
On the basis of the application, the District Court
issued an order authorizing electronic monitoring. Underwood
was equipped with a transmitting device. He and Detective
Wickhorst proceeded to Case's residence in Billings and the
transaction involving the drug buy occurred.
Based on the information obtained from the electronic
monitoring, including the telephone call from Underwood to
Case, and the transaction relating to the drug buy, Case was
arrested. At trial, the communications overheard by
electronic surveillance, as well as evidence seized in
the search, were admitted into evidence.
The affidavit contained in the officer's application for
an order authorizing electronic monitoring was sufficient.
It properly informed the District Court of the underlying
circumstances from which the informant (Underwood) concluded
that the narcotics were located where he claimed they were and
further informs the District Court of the underlying circum-
stances from which the officer making the application concludes
that the informant was credible and his information reliable.
-
On this basis, the Aguilar-Spinelli test is satisfied. See,
State v. Leistiko (1978), Mon t . , 578 P.2d 1161, 1163,
35 St.Rep. 590, setting forth the rule that the affiant must
support his claim that the informant was credible and reliable.
Case contends that because Stanley Underwood was a con-
victed felon who was on parole and facing revocation at the
time of the application, he was not a reliable informant.
However, the statement of the officer in the application that
Underwood had been a reliable informant in the past and that
his information had resulted in the seizure of contraband and
arrests clearly established the reliability of the informant
for the purposes of obtaining the order authorizing electronic
monitoring.
Case however, further attacks the order which authorizes
the electronic monitoring upon the basis that a specific
description of the place to be searched is not set forth in
that order. He contends that the Fourth Amendment of the
federal constitution requires search warrants to describe
the place to be searched with particularity. He points to the

provisions in the federal law, 18 U.S.C. 5 2 5 1 8 (1)(b)(ii), which
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state that applications for surveillance orders must include
"a particular description of the nature and location of the
facilities from which or the place where the communication
is to be intercepted."
The State responds to this argument, first that 18 U.S.C.
S2518, does not apply here under our decision in Hanley,
supra, because the federal law, as we said in Hanley, does
not apply to monitoring by consent of the participants.
That argument is correct. The State secondly contends that
the applicable statute which controls this case is section
46-5-201, MCA, which provides:
"A 'search warrant' is an order:
" (1) in writing;
" (2) in the name of the state;
"(3) signed by a judge;
" (4) particularly describing the thing, place, or
person to be searched and the instruments, articles,
or things to be seized;

"(5) directed to a peace officer commanding him to
search for personal property and bring it before the
judge ."
It is obviously impossible for the court, or the officer

applying for an order authorizing electronic monitoring, to
pinpoint the location where the criminal transaction to be
monitored will take place. In drug buy situations, it will
depend on the whim of the parties at the time, relating to
their own conveniences and even their reactions to fears of
being detected. In this case for example, if the order
authorizing the monitoring had specified that the monitoring
occur while Underwood was in Case's home, the order would
have been useless because this transaction occurred in
Case's yard, where Underwood met him, and was continued
subsequently in Case's automobile. Recognizing the inability
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of any officer or court to prognosticate exactly where a
criminal transaction such as a drug buy, will take place,
does this mean that an order authorizing electronic monitoring
without specifying the place of such monitoring is constitutionally
impermissible? We hold not.
As the state argues, and we agree, section 46-5-201,
MCA, supra, describing what may be searched refers to "the
thing, place or person" to be searched. The language of the
statute is in the disjunctive. The person to be searched,
or whose conversation is to be overheard, when named in the
order authorizing the surveillance is sufficiently precise
in itself to meet this constitutional objection to the
order, because the order is directed to the monitoring of a
specific person, wherever that person may be. The lately-
circulated popular aphorism that "Everybody's got to be
someplace" tersely meets Case's contention: when the order
authorizes the surveillance of a particular person, for a
limited amount of time as in this case, the geographic
location of the search is perforce tied to the whereabouts
of the suspect. No greater particularity as to place is
required in the order authorizing electronic surveillance.
As a matter of first impression on this point, we so hold.
It is further contended by Case that the interception
of monitoring by the police of a telephone call between
Underwood and Case on January 30, 1979, was beyond the
intended scope of the court order authorizing electronic
surveillance on the same date.
The order itself authorized only the utilization of an
electronic device on Underwood for use in monitoring conversations
with Case. Prior to the use of the monitor on Underwood
however, a telephone call was made by Underwood from the CID
office to Case. The call was made at the direction of the
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officers in the CID and was monitored by the use of a
suction cup attached to the telephone as a part of a recording
device. Case contends that the suction cup device and the
recorder were not placed on the body of Stanley Underwood
and therefore were in violation of the court order authorizing
electronic monitoring. Case contends that the recording of
the telephone conversation was an invasion of his privacy in
violation of 1972 Mont. Const., Art. 11, §lo, as well as his
rights to privacy under the federal constitution.
The answer to Case's contention here is again found in
Hanley, supra, where we held that interception of telephone
conversations by police officers is legal if one of the
parties to the conversation consents,even an informer. This
Court has never held that a court order is necessary to
monitor a telephone conversation, where one of the parties
to the telephone conversation consents. Our decision in
State v. Brackman, supra, concerned a conversation between
parties in an open parking lot, where the electronic monitoring
violated the reasonable expectations of privacy between the
participants in the conversation that was monitored. No
such reasonable expectations of privacy exist in a telephone
conversation. Neither party to a telephone conversation can
ordinarily see the other. Neither has any way of knowing
whether or not the conversation on the telephone is being
overheard by other parties. Neither the Montana nor the
federal constitution prohibits such monitoring where one of
the participants consents. See 18 U.S.C. §2511(2) (c).
The monitoring of the telephone conversation here was
legal, even though it preceded or led to the electronic
monitoring of the actual drug transaction. State v. Hanley,
supra.
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 Finally, Case contends, though it is not fully argued
in his brief, that the order authorizing the electronic
surveillance should not have been issued because under
Brackman, supra, there must be a compelling state interest
established before the order can be issued for monitoring.
We held in Brackman that a prior warrant or order of
authorization must be obtained for monitoring with the
consent of the participant and that the standard to be met
for obtaining that type of warrant is not probable cause,
but compelling state interest. 1972 Mont. Const., Art. 11,
0 In State Etc. v. District Court, Etc. (1979), -

Mont. , 591 P.2d 656, 36 St.Rep. 489, we held that a
compelling state interest exists when the state must enforce
its criminal laws for the benefit and protection of other
fundamental rights of its citizens.
We agree with the State that the sale or use of methampheta-
mine, a dangerous drug, has been legislatively determined to
be so serious a crime as to require, in the case of the
sale, a possible maximum life sentence under section 45-9-
101(3), MCA. The enactment and enforcement of laws, especially
criminal laws, is essential to the preservation of a free,
safe and orderly society. There was, therefore a compelling
state interest under which the District Court, in this case,
faced with the affidavit of the applying officer relating to

Case, was required to act and to issue the order authorizing
electronic surveillance. The Brackman requirement of a
compelling state interest is met in this case.
We also hold against the defendant on his contention
that the evidence produced by the search of his home should
be suppressed. He consented in fact to that search, and his
consent forecloses any objection on the basis of illegal search
to the materials the search produced. State v. Yoss (1965),
146 Mont. 508, 409 P.2d 452.
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Conclusion
The judgments of conviction in each of these cases are
affirmed.

We Concur:

Chief Justice