State v. Hyem

No. 80-364

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

1981

STATE OF MONTANA,

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

DALE HYEM and CYNTHIA EFFINGER,

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

Appeal from: ~ i s t r i c C o u r t o f t h e T h i r t e e n t h ~ u d i c i a l~ i s t r i c t ,
t
I n and f o r t h e County o f Carbon.
Honorable William J . S p e a r e , Judge p r e s i d i n g .

C o u n s e l o f Record:

For Appellant:

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
S h e r i Sprigg argued, A s s i s t a n t A t t o r n e y General, Helena,
Montana
P a b l o P e r h a c s , County A t t o r n e y , a r g u e d , Red Lodge, Montana

F o r Respondents:

O v e r f e l t Law F i r m , B i l l i n g s , Montana
Gary O v e r f e l t a r g u e d , B i l l i n g s , Montana
S t a c e y & J a r u s s i , B i l l i n g s , Montana
Gene J a r u s s i a r g u e d , B i l l i n g s , Montana

Submitted: March 26, 1 9 8 1

Decided: J u n e 4 , 1981

Filed: 4 1981
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

The State of Montana appeals from an order of the
District Court, Thirteenth Judicial District, Carbon County,
granting defendants' motion to suppress all evidence resulting
from an unreasonable search and seizure.
On February 25, 1980, defendants were charged with
alternative counts of felony theft--either having stolen a
pair of Rossignol SM Equipe skis on January 12, 1980, or
having possessed them on February 21, 1980, knowing that
they were stolen. The charges arose when skis, belonging to
Buzz Welch, were found in defendants' residence and seized
by officers of the Carbon County sheriff's office pursuant
to a search warrant issued by the local justice of the
peace. The issuance of the warrant was based on affidavits
of Welch, who said his skis had been stolen, and of Kurt
Hallock and Jack Marcure, who stated they had seen the skis
at defendants' rented home in Red Lodge, Montana. The
circumstances surrounding the latter affiants' discovery
must be closely scrutinized in this appeal.
The defendants and affiants were all employed in various
capacities at Red Lodge Ski area. During the 1980 ski
season, a rash of ski thefts were reported, including two
thefts reported by Welch and Marcure. The skis reported
stolen by Welch and Marcure were identical except in length,
binding type and serial number. After discussing the
missing skis with numerous acquaintances, Hallock formed the
opinion that the skis were in the possession of the defendants
at their rented home.
The defendants were tenants in a residence owned by Mr.
Prather. The residence was listed for sale through the
Marshall Real Estate Agency. The real estate agent in
charge of selling the house was Barbara Marshall. Defendant
Hyem was aware that she had keys to the house and had shown
it to prospective purchasers in his absence.
In the off-season, Hallock and Marcure purchase and
remodel old houses and had previously done business with
Marshall. Aware that the house was on the market, they
contacted Marshall and asked to be shown the house. Hallock
testified that he wanted to tour the house both for business
reasons and to search for the skis, while Marcure's sole
purpose was to search for the stolen Rossignols.
At the hearing, only Hallock and Marshall were called
as witnesses. Hallock testified that during inspection of
the premises, Marcure dropped his sunglasses beside a bed,
and then saw the skis thereunder. Marcure removed the skis
halfway from under the bed and found that the serial number
matched that of Welch's missing skis. Hallock stated that
only by pulling the skis out from under the bed could the
serial number and positive identification be ascertained.
Hallock further testified that until Marcure pulled the skis
out, he was unable to see any part of the skis.
Marshall testified that upon entering the house she
admonished Hallock and Marcure not to touch any personal
property contained therein. She further testified that her

observation of the bedroom area disclosed that only the tips
of the skis were visible beneath the bed.
After completing a tour of the house, Hallock and
Marcure reported their discovery to the Carbon County
attorney's cffice, which in turn applied for and received a
search warrant.
 On motion of defendants, the District Court agreed that
the evidence had been obtained by an unreasonable search,
and ordered the evidence suppressed. It is from that order
that the State appeals.
The issues to be considered on appeal are: (1) Whether
the citizen search violated the defendants' right of privacy;
and, (2) Whether defendants consented to the search and
thereby waived their right of privacy.
Montana's constitution must be read as a whole and its
separate sections interpreted in relation to one another.
Unlike the federal constitution, our constitution particularly
provides for an individual's right of privacy in 1972 Mont.
Const., Art. 11, S 10, which states: "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."
Application of this right is as diverse as the components
which make up a free ordered society. Inasmuch as a citizen's
personality and thoughts are protected as private, so are a
citizen's physical solitude and right to be let alone.
Moreover, 1972 Mont. Const., Art. 11, 5 11, which mirrors
the Fourth Amendment to the United States Constitution,
states that:
"The people shall be secure in their persons,
papers, homes and effects from unreasonable
searches and seizures. No warrant to search
any place, or seize any person or thing shall
issue without describing the place to be
searched or the person or thing to be seized,
or without probable cause, supported by oath
or affirmation reduced to writing." (Emphasis
added.
A warrantless search is - - unreasonable, unless it
per se
falls within one of the defined exceptions to the warrant
requirement. Coolidge v. New Hampshire (1971), 403 U.S.
443, 91 S.Ct. 2022, 29 L.Ed.2d 564. Before the warrantless
search, neither Hallock nor Marcure could have obtained a
valid search warrant because they were not possessed of
their own knowledge, or through demonsfzably reliable informants,
of facts sufficient to establish probable cause, an essential
ground for the issuance of a warrant. Section 46-5-202(1) (b),
MCA. This warrantless search does not fall within any of
the exceptions to a warrant requirement, which exceptions
arise out of exigent circumstances necessary to protect or
preserve life or to avoid serious injury (see, Wayne v. U.S.
(D.C.Cir. 1963), 318 F.2d 205), or arise from the evanescent
nature of the material seized. Terry v. Ohio (1968), 392 U.S.
1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Schmerber v. California
(1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908.
Since the warrantless search here was - - unreasonable,
per se
it was unconstitutional under our federal and state constitutions,
and therefore unlawful. It violated the Fourth Amendment of
the United States Constitution, and also 1972 Mont. Const.,
Art. 11, S 11.
In addition, the warrantless search violated the
defendants' rights of privacy under the 1972 Mont. Const., Art.
11, 5 10, which we have quoted previously. Here, rights of
individual privacy were infringed without the showing of a
compelling state interest. Since Hallock and Marcure were
acting in their individual capacities, and not for the state,
state action was not involved, and the searchers could never
be in a position of showing a compelling state interest.
Under the 1972 Montana constitution, the only exception to
the restriction against the invasion of individual privacy
is a compelling state interest. The private parties here,
acting on their own hook, could not establish a compelling

state interest.
-5-
 The right of individual privacy, the right to be secure
in one's home, was prized in Montana even before the adoption
of the 1972 Montana Constitution. In Welsh v. Roehm (1952),
125 Mont. 517, 241 P.2d 816, it was held valuable enough to
support a verdict of punitive damages without general damages
against the invaders of a tenants' possessory rights. In
State v. Brecht (1971), 157 Mont. 264, 485 P.2d 47, this
Court applied the exclusionary rule to a telephone conversation
of the defendant, overheard by an interloper on an extension
line. In that case, this Court found that the right of
individual privacy was adequately expressed, though penurnbrally,
in 1889 Mont. Const., Art. 3, 5 7, which read as follows:
"Section 7. The people shall be secure in
their persons, papers, homes, and effects,
from unreasonable searches and seizures and
no warrant to search any place or seize any
person or thing shall issue without describing
the place to be searched or the person or thing
to be seized, nor without probable cause, supported
by oath or affirmation, reduced to writing."
In Brecht, it was pointed out that there cannot be a
fictional difference between classes of citizens: those who
are commanded to obey the constitution and those who are
not. Our constitutional prohibition against unreasonable
invasion of privacy applies to all persons, whether acting
for the state or privately.
The policy to set a special store on the right of
privacy was expressly enunciated in the 1972 Mont. Const.,
Art. 11, S 10, and the implementation of that policy was
continued by this Court, in State v. Helfrich (1979), -
,
Mont. - 600 P.2d 816, 36 St.Rep. 1763. There we upheld
the suppression of evidence gathered by a private citizen
who entered a fenced garden to obtain a sample of growing
marijuana, which the citizen turned over to the authorities.
There was no showing in Helfrich, as there is no showing at
the case at bar, that the private citizen was acting in
concert with the police authorities. Nevertheless, we held
the suppression of such evidence proper. Here, we have
nearly the same situation, except that Hallock and Marcure
gained entry to the defendants' rented premises on an ostensibly
legitimate excuse, to view the real property as prospective
purchasers. We cannot see that a citizen gaining entrance
to otherwise private property by a ruse is in any better
position to obtain incriminating evidence against a lawful
possessor (as distinguished from a guest or licensee) of
that property than one gaining entrance by trespass. The
result in each case is the same--invasion of the possessor's
private property. Under -
Helfrich, therefore, the evidence
resulting from the unreasonable search of the premises by
private citizens is illegally obtained, and must be suppressed.
When private citizens, acting on their own initiative,
unreasonably invade the privacy rights of individuals, the
evidence thus obtained against the other individuals is
subject to the exclusionary rule. This is the teaching of
Helfrich, supra.
The State argues that evidence obtained by a private
citizen should be suppressed only if it was obtained in an
"illegal manner." We understand the essence of that argument.
The State means that the evidence should be suppressed only
if the evidence was obtained in violation of statutory law.
The argument, however, overlooks that searches and seizures
which, though they may not violate statutory law, may never-
theless be unreasonable in the constitutional sense, and
therefore, unlawful. In State v. Coburn (1974), 165 Mont.
488, 530 P.2d 442, we stated that the ever-increasing presence

of private police, coupled with a citizen's ability to
arrest, mandated that the private sector be subject to the
same constitutional scrutiny as the public sector. Thus,
the actions of Hallock and Marcure in the present case must
be measured against a standard of reasonableness to determine
if they violated defendants' right of privacy. This brings
us back to what we said at the outset of this discussion,
that a warrantless search is unreasonable - - unless the
per se
search falls within one of the defined exceptions. The
search being unreasonable, and the rights of privacy having
been invaded thereby, the unconstitutional invasion of the
defendants' rights of privacy was an unlawful act.
Thus it is that on two counts, a violation of the state
and federal constitutions on searches and seizures and a
further violation of the state constitutional right of
privacy, the evidence produced herein is subject to the
application of the exclusionary rule.
The exclusionary rule has been the subject of considerable
legislative and editorial discussion in recent months.
Perhaps not well-known is the fact that the United States
Supreme Court first announced that rule 67 years ago in
Weeks v. United States (1914), 232 U.S. 383, 34 S.Ct. 341,
58 L.Ed. 652, where the use of evidence obtained in violation
of the Fourth Amendment was barred in federal prosecutions.
After Silverthorne Lumber Company v. United States (1920),
251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, the rule came to
be known as the "fruit of the poisonous tree" doctrine. In
1961, the United States Supreme Court, in Mapp v. Ohio
(1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, made
the exclusionary rule fully applicable to the states under
the Fourteenth Amendment. The "poisoned fruit" rule was
recognized by this Court in dictum in State v. Yoss (1965),
146 Mont. 508, 409 P.2d 439.
 The exclusionary rule grew out of the writings of some
of the most esteemed men ever to occupy seats on the United
States Supreme Court, including Justice Oliver Wendell
Holmes, and Justice Louis Brandeis. They became aghast at
the long train of cases where federal agents had ignored
constitutional protections in obtaining evidence, and had been
willing to perjure themselves as if they had not so acted.
Holmes said:
"The essence of a provision forbidding the
acquisition of evidence in a certain way is
that not merely evidence so acquired shall not
be used before the Court but that it shall not
be used at all. Of course this does not mean
that the facts thus obtained become sacred and
inaccessible. If knowledge of them is gained
from an independent source, they may be proved
like any others, but the knowledge gained by
the government's own wrong cannot be used by
it in the way proposed." Silverthorne, supra,
251 U.S. at 392.
Justice Brandeis said:
". ..If the government becomes a lawbreaker
it breeds contempt for law . . ."
Olmstead
v. U.S. (1928), 277 U.S. 438, 483-485.
At first the exclusionary rule applied only in the federal
courts, in federal prosecutions. It was not applied in the
states. This duality of application resulted in anomalies.
For example, in State v. District Court, et al. (1928), 82
Mont. 515, 268 P.2d 501, the Montana court held that the
provisions of the federal constitution against unreasonable
searches and seizures had no application to state officers.
In that case, federal officers had violated the constitutional
rights of a person by opening a package sent through the
mail containing the drug morphine. The sheriff arrested the
addressee and seized the package on information imparted to
him by the federal officers as to its contents. The sheriff

was not acting in cooperation or collusion with the federal
officers. This Court held that the seizure in that mode did
not render the package inadmissible in evidence,under the
state constitution, and held that the District Court, in
suppressing the evidence, committed error.
Thus, the prosecution was able to use evidence in a
state court prosecution that would have been barred in a
federal prosecution at that time.
If the result in the 1928 Montana case now seems incongruous,
be assured that Montana was not alone in its incongruity.
In Irvine v. California (1954), 347 U.S. 128, 74 S.Ct. 381,
98 L.Ed. 561, a case involving police misconduct so outrageous
so as to be "almost incredible if it were not admitted,"
the Supreme Court did not impose the exclusionary rule on
the state, even though the misconduct was extreme. Irvine,
supra. Until the time of Mapp, supra, more than twenty
states were still admitting illegally-seized evidence.
California, it should be noted, was one of the states
that adopted the exclusionary rule before the holding in
Mapp. It changed its judicial mind between the time,
in 1942, when it held that illegally-seized evidence was
admissible (People v. Gonzalez (1942), 20 ~al.2d 165, 124
P.2d 44) and the case adopting the exclusionary rule in
1955 (People v. Cahan (1955), 44 Cal.2d 434, 282 P.2d 905).
The California court could no longer stomach the situation
where "law enforcement officers . . . casually regarded
[illegal searches and seizures] as nothing more than the
performance of their ordinary duties . . ." 282 P.2d at
907. Its Chief Justice, Roger Traynor, later wrote in 1962:
"My misgivings about . . . [the admissibility of
illegally-seized evidence] grew as I observed
that time after time it was being offered and
admitted as a routine procedure .. . It was
one thing to condone an occasional constable's
blunder, to accept his illegally obtained evidence
so that the guilty would not go free. It was
 quite another to condone a steady course of
illegal police procedures that deliberately and
flagrantly violated the constitution of the
United States as well as the state constitution.
"Ah, but surely the guilty should still not
go free? However grave the question, it
seemed improperly directed at the exclusionary
rule. ÿ he hard answer is in the United states
Constitution as well as in state constitutions.
They make it clear that the guilty would go
free if the evidence necessary to convict could
only have been obtained illegally, just as
they would go free if such evidence were lacking
because the police had observed the constitutional
restraints upon them. It is seriously misleading,
however, to suggest that wholesale release of the
guilty is a consequence of the exclusionary rule.
It is a large assumption that the police have
invariably exhausted the possibilities of obtaining
evidence legally when they have relied upon illegally
obtained evidence. It is more rational to assume
the opposite when the offer of illegally-obtained
evidence becomes routine." Traynor, Mapp v. Ohio
At Large in the Fifty States (1962), Duke L.J. 319,
321, 322. (Emphasis added.)
The exclusionary rule is not a judicial plaything,
casually adopted and casually waived. It is a constitutional

answer to unconstitutional activity. It is an affirmation
that a free government can no more tolerate the unlawful
activities of its agents than crime in the streets. It is
paste and cover for the bones of our individual constitutional
rights, without which such rights were in danger of becoming
an unfleshed skeleton.
Sometimes, it is to be admitted with the deepest regret,
the result of the exclusionary rule is that the guilty
criminal goes free. That is the price of liberty. It is

irrefutable that many times criminals go free because officers
are careful to act constitutionally. There is no judicial
logic in contending that they should not go free when officers
act unconstitutionally.
An important distinction must be made in this case,
however, because here the unreasonable search was made not
by police officers but by private individuals. The State
has pointed out to us that Mapp v. Ohio, supra, extended the
operation of the Fourteenth Amendment, and the application
of the exclusionary rule to state cases, -- -when
but only -
state action - involved.
is This is necessarily true because
of the provisions of the Fourteenth Amendment, which apply
only to states and not to individuals. As we have pointed
out above, however, Montana applies the exclusionary rule to
actions by individuals where the state constitution has been
violated. Brecht, supra; -
Helfrich, supra. The wisdom of
that course should be obvious: the Montana law applies
equally to agents of the state and to private individuals.
We have no duality of rights, one set of laws operating when
state action is involved, and another set of laws applying
when private action is involved; we avoid such anomalies as
may occur when private individuals act for, but not in
concert or collusion with police officers. We have not
adopted a course of legal schizophrenia. An across-the-
board application of the exclusionary rule results in a
clear equality of result, and does not depend upon fortuitous
circumstances which might excuse in one situation a violation
of constitutional rights, and discountenance such violations
in another situation.
The second part of the issues to be considered here is
whether the defendants here consented to the search which
was made and thereby waived their right of privacy. This
involves the determination and application of standards for
the invasion of privacy.
Privacy has been defined as the ability to control
access to information about oneself. Fried, Privacy (1968),
77 Yale L.J. 475, 482, 483. In Katz v. U.S. (1924), 389 U.S.
347, 88 S.Ct. 507, 19 L.Ed.2d 576, the Supreme Court determined
under the federal constitution that privacy is protected if
the defendant has an actual subjective expectation of
privacy and that expectation is objectively reasonable.
Therefore, what is sought to be preserved as private, even
in an area accessible to the public, may be constitutionally
protected. See, Rios v. United States (1960), 364 U.S. 253,
30 S.Ct. 1431, 4 L.Ed.2d 1688.
The defendants were aware that their rented house was
for sale and being shown to prospective buyers in their
absence. The defendants, therefore, could not have a reasonable
expectation of privacy in the areas of the house which are
normally subject to inspection by prospective purchasers.
The skis, however, were personal property, not for sale, and
not items which are normally the subject of inspection by
house buyers. Even though the bedroom was accessible to the
public, by placing the skis under the bed, out of the public's
view, defendants sought to preserve the skis as private and,
thus, be afforded constitutional protection. We find that
such an expectation of privacy is reasonable.
The search was conducted by private citizens not acting
in concert with any law enforcement agency, thus precluding
the assertion of a compelling state interest. 1972 Mont.
Const., Art. 11, B 10. It is undisputed that Marcure's sole
purpose of inspecting the house was to search for the skis.
The premises were open to inspection by prospective purchasers,
not persons attempting to dispel or substantiate rumors.
From the outset, Marcure was improperly on the premises in
an unreasonable invasion of defendants' expectation of
privacy. Moreover, by removing the personal property from
underneath the bed and inspecting it, both Hallock and
Marcure went beyond their legitimate purpose for being on
the premises against the admonition of the real estate
agent, and they thereby violated defendants' right of
privacy.
The skis were seized by police pursuant to a search
warrant which was issued based on the affiants' discovery of
the skis. The only way Hallock and Marcure could positively
identify the skis was by removing them from under the bed
and checking the serial numbers. This action was an uncon-
stitutional violation of defendants' right of privacy. In
the absence of a positive identification of the skis, it is
unlikely that Hallock's mere suspicion would justify the
issuance of a search warrant. Therefore, the evidence was
properly suppressed as fruit of an unreasonable search and
seizure.
The State takes the position that by consenting to
allow the house to be shown to prospective purchasers,
defendants waived their right of privacy. In Johnson v.
Zerbst (1938), 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461,
waiver is defined as "an intentional relinquishment or
abandonment of a known right or privilege." Thus, if a
consent search is a matter of waiver, then the consent would

be effective only upon a showing that the individual who
purportedly consented, agreed to the search that occurred.
Here the defendants did not consent to a search and seizure
of the personal property in their possession.
Accordingly, we affirm the judgment of the District
Court in suppressing the evidence.

Justice
We Concur:

Chief Justice

...............................
Justices
Mr. J u s t i c e Frank B. Morrison, J r . , d i s s e n t i n g :

I r e s p e c t f u l l y d i s s e n t from t h e m a j o r i t y o p i n i o n .

The f a c t s of t h i s c a s e do n o t form t h e b a s i s f o r t h i s

dissent. R a t h e r t h e purpose i s t o reexamine S t a t e v . B r e c h t

( 1 9 7 1 ) , 157 Mont. 264, 485 P.2d 47; S t a t e v . H e l f r i c h ( 1 9 7 9 ) ,

-Mont . , 600 P.2d 816, 36 St.Rep. 1763, and t h e r a t i o n a l e

e x p r e s s e d by t h e m a j o r i t y i n t h e c a s e a t b a r .

I n B r e c h t and H e l f r i c h t h i s C o u r t h e l d t h a t t h e Montana

c o n s t i t u t i o n ' s s e c t i o n s on p r i v a c y and 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 a d d r e s s p r i v a t e a c t i o n a s w e l l a s s t a t e a c t i o n .

The c o u r t f u r t h e r h e l 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 automa-

t i c a l l y a p p l i e d i f a c o n s t i t u t i o n a l r i g h t i s invaded. These

two h o l d i n g s a r e f o l l o w e d i n t h e i n s t a n t c a s e .

A c a r e f u l r e a d i n g of these three decisions discloses a

l a c k of r a t i o n a l e s u p p o r t i n g a r a d i c a l d e p a r t u r e from p r e -

c e d e n t e s t a b l i s h e d by e v e r y o t h e r a p p e l l a t e c o u r t . Montana

i s t h e o n l y j u r i s d i c t i o n t o m knowledge which h a s e x t e n d e d
y

e i t h e r " s e a r c h and s e i z u r e " o r " p r i v a c y " p r o v i s i o n s t o

private action. A d d i t i o n a l l y we a r e t h e o n l y c o u r t which

has applied the exclusionary r u l e t o p r i v a t e action.

I n m o p i n i o n t h e r e a r e two i s s u e s which s h o u l d be
y

addressed i n t h i s case: (1) Does A r t i c l e 2, S 1 0 , of t h e

Montana C o n s t i t u t i o n p r o v i d i n g f o r t h e r i g h t of p r i v a c y , -
or

A r t i c l e 2, S 1 1 , of t h e Montana C o n s t i t u t i o n p r o v i d i n g f o r

t h e s e c u r i t y from 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 , a p p l y t o

i n d i v i d u a l a c t i o n a s opposed t o s t a t e a c t i o n ? ( 2 ) Should

t h e e x c l u s i o n a r y r u l e be a p p l i e d t o s u p p r e s s e v i d e n c e ob-

t a i n e d by an i n d i v i d u a l where t h a t i n d i v i d u a l d o e s n o t a c t

i n c o n c e r t w i t h a g e n t s of t h e s t a t e ? I would h o l d t h a t t h e

c o n s t i t u t i o n a l p r o v i s i o n s r e f e r r e d t o h e r e i n , contemplate

s t a t e a c t i o n only. I would f u r t h e r h o l d t h a t t h e e x c l u s i o n a r y
r u l e does n o t a p p l y t o p r i v a t e a c t i o n .

Montana i s one of o n l y t e n s t a t e s t o have a n e x p r e s s

provision f o r privacy i n the s t a t e constitution. A s men-

t i o n e d p r e v i o u s l y , none of t h e s e s t a t e s have h e l d t h e p r i v a c y

p r o t e c t i o n s t o be a p p l i c a b l e t o a c t s of p r i v a t e p e r s o n s .

Arizona h a s d i r e c t l y h e l d t h a t t h e p r i v a c y p r o h i b i t i o n

a p p l i e s only t o s t a t e action. C l u f f v. Farmers I n s u r a n c e

Exchange ( 1 9 6 9 ) , 10 Ariz.App. 560, 460 P.2d 666, 669. Alaska

has limited i t s application t o s t a t e a c t i v i t i e s . See e . g . ,

A l l r e d v. S t a t e ( 1 9 7 6 ) , 554 P.2d 4 1 1 , 416: Falcon v. Alaska

P u b l i c O f f i c e s Com'n (19771, 570 P.2d 469, 476,

Montana f i r s t e x t e n d e d p r i v a c y r i g h t s t o p r i v a t e a c t i o n

i n S t a t e v. Brecht, supra. I n t h a t c a s e a man t e l e p h o n e d

h i s w i f e and t h r e a t e n e d t o s h o o t h e r . Another p e r s o n ,

l i s t e n i n g i n on a n e x t e n s i o n , o v e r h e a r d t h e c o n v e r s a t i o n .

When t h e w i f e was s h o t and k i l l e d a s h o r t t i m e l a t e r , t h e

D i s t r i c t Court allowed t h e eavesdropper t o t e s t i f y regarding

what s h e o v e r h e a r d . This Court reversed holding t h a t B r e c h t ' s

r i g h t of p r i v a c y was p r o t e c t e d from a n i n v a s i o n from a

private individual. The c o u r t c i t e d Katz v. United S t a t e s
88 S.Ct. 507, 1 9 L.Ed.2d 576,
( 1 9 6 7 ) , 389 U.S. 3471 a s support f o r i t s holding. However,

Katz involvesgovernmentaction, n o t p r i v a t e a c t i o n and p r o v i d e s

no s u p p o r t f o r t h i s C o u r t ' s p o s i t i o n i n B r e c h t .

I n S t a t e v. H e l f r i c h , s u p r a , t h e c o u r t f o l l o w e d t h e

h o l d i n g of B r e c h t , b u t expanded t h e d i s c u s s i o n . The c o u r t

r e l i e d upon t r a n s c r i p t s from t h e c o n s t i t u t i o n a l c o n v e n t i o n

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

f o r t h e r i g h t of p r i v a c y t o p r o t e c t p e r s o n s a g a i n s t b o t h

p r i v a t e and government a c t i o n . The c o u r t c i t e d t h e f o l l o w i n g

t r a n s c r i p t quotations:

". . . C e r t a i n l y , back i n 1776, 1789, when t h e y
developed o u r B i l l of R i g h t s , t h e s e a r c h and s e i z u r e
 p r o v i s i o n s were enough, when a man's home was h i s
c a s t l e and t h e s t a t e c o u l d n o t i n t r u d e upon h i s
home w i t h o u t t h e p r o c u r i n g of a s e a r c h w a r r a n t
w i t h p r o b a b l e c a u s e b e i n g s t a t e d b e f o r e a magis-
t r a t e and a s e a r c h w a r r a n t b e i n g i s s u e d . N other
o
p r o t e c t i o n was n e c e s s a r y and t h i s c e r t a i n l y w a s
t h e g r e a t e s t amount of p r o t e c t i o n t h a t any f r e e
s o c i e t y has given i t s i n d i v i d u a l s . I n t h a t type
of a s o c i e t y , of c o u r s e , t h e n e i g h b o r w a s maybe
t h r e e o r f o u r m i l e s away. There was no r e a l
i n f r i n g e m e n t upon t h e i n d i v i d u a l and h i s r i g h t of
privacy. However, t o d a y w e have o b s e r v e d an
i n c r e a s i n g l y complex s o c i e t y and w e know o u r a r e a
of p r i v a c y h a s d e c r e a s e d , d e c r e a s e d , and d e c r e a s e d
. . . T r . of t h e Montana C o n s t i t u t i o n a l Convention,
Vol. V I I , pp. 5180-81.
11 1
. . . I t i s n ' t o n l y a c a r e l e s s government t h a t h a s
t h i s power t o p r y , p o l i t i c a l o r g a n i z a t i o n s , p r i -
v a t e i n f o r m a t i o n g a t h e r i n g f i r m s , and even a n
i n d i v i d u a l can now snoop more e a s i l y and more e f -
f e c t i v e l y than ever before .. . ' T r . a t pp. 5182."
Helfrich, P. 2d , 3 7 St.Rep. 1766.
The second q u o t a t i o n a c t u a l l y r e s u l t e d from a d e l e g a t e

r e a d i n g from a newspaper e d i t o r i a l which s u p p o r t e d a n

expanded r i g h t of p r i v a c y . However, t h e b a l a n c e of t h e

d e l e g a t e ' s statement i s very s i g n i f i c a n t . I t reads:

" I t produces what I would c a l l a s e m i permeable
w a l l of s e p a r a t i o n between i n d i v i d u a l s and s t a t e ;
j u s t a s t h e w a l l of s e p a r a t i o n between c h u r c h and
s t a t e i s a b s o l u t e , t h e w a l l of s e p a r a t i o n w e a r e
p r o p o s i n g w i t h t h i s s e c t i o n would be semi perme-
able. T h a t i s , as a p a r t i c i p a t i n g member of s o c i e t y
w e a l l r e c o g n i z e t h a t t h e s t a t e must come i n t o o u r
p r i v a t e l i v e s a t some p o i n t , b u t what i t s a y s i s
d o n ' t come i n t o o u r p r i v a t e l i v e s u n l e s s you have a
good r e a s o n f o r b e i n g t h e r e . W feel that this,
e
as a mandate t o o u r government, would c a u s e a
complete r e e x a m i n a t i o n and g u a r a n t e e o u r i n d i v i -
d u a l c i t i z e n s of Montana t h i s v e r y i m p o r t a n t r i g h t . "
(Emphasis s u p p l i e d . ) T r . a t pp. 51 81.*

I n m o p i n i o n , t h e m a j o r i t y can f i n d l i t t l e s o l a c e from
y

r e a d i n g t h e C o n s t i t u t i o n a l Convention T r a n s c r i p t . When

t a l k i n g about the privacy section, s t a t e action r a t h e r than

p r i v a t e a c t i o n , i s emphasized. Furthermore, t h e privacy

section, Article 2, 810, s p e c i f i c a l l y s t a t e s : "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

compelling s t a t e i n t e r e s t . " (Emphasis s u p p l i e d . ) The

-18-
language of t h e s e c t i o n i t s e l f i n d i c a t e s t h a t t h e f r a m e r s

c o n t e m p l a t e d s t a t e a c t i o n by a l l o w i n g an i n v a s i o n where

t h e r e was a c o m p e l l i n g s t a t e i n t e r e s t .

H i s t o r i c a l l y c o n s t i t u t i o n s have always been a means f o r

p e o p l e t o a d d r e s s t h e i r government. I n rare i n s t a n c e s t h e

c o n s t i t u t i o n a l framework h a s embraced s e c t i o n s s p e c i f i c a l l y

speaking t o p r i v a t e persons. A r t i c l e 11, §4, of t h e Montana

Constitution provides i n part: ". . . Neither t h e s t a t e nor

any p e r s o n , f i r m , c o r p o r a t i o n , o r i n s t i t u t i o n s h a l l d i s c r i m -

i n a t e a g a i n s t any p e r s o n . . ." (Emphasis s u p p l i e d ; ) Notably

t h e privacy s e c t i o n does - address p r i v a t e i n d i v i d u a l s .
not

By i n t e r p r e t i n g Montana's c o n s t i t u t i o n a l r i g h t of

privacy a s a prohibition against p r i v a t e , a s well a s s t a t e

action, t h i s Court has set i t s e l f foursquare a g a i n s t t h e

p o s i t i o n of t h e c o u r t s of a l l o t h e r s t a t e s , and i n m o p i n i o n ,
y

a g a i n s t t h e i n t e n t i o n of t h e f r a m e r s of Montana's c o n s t i t u t i o n .

The second i s s u e which must be a d d r e s s e d i s a p p l i c a t i o n

of t h e e x c l u s i o n a r y r u l e . I t i s a p p a r e n t t o me t h a t t h e

majority has elevated t h e exclusionary r u l e t o c o n s t i t u t i o n a l

status. T h i s c o n c l u s i o n seems i n e s c a p a b l e i n t h e l i g h t of

i t s a u t o m a t i c a p p l i c a t i o n i n B r e c h t , H e l f r i c h , and t h i s

case. A s t h e m a j o r i t y h e r e s t a t e s : " I t i s p a s t e and c o v e r

f o r t h e bones of o u r c o n s t i t u t i o n a l r i g h t s . . ." Nevertheless

t h e r e seems t o be c o n f u s i o n on t h i s p o i n t a s t h e l e g i s l a t u r e

c o n t i n u e s t o p a s s l e g i s l a t i o n , though v e t o e d , a b o l i s h i n g t h e

e x c l u s i o n a r y r u l e and p r o v i d i n g a " d e t e r r e n t " a l t e r n a t i v e .

Under t h e c u r r e n t p o s t u r e of Montana c o n s t i t u t i o n a l law such

legislation i s patently unconstitutional.

The e x c l u s i o n a r y r u l e was f i r s t e n u n c i a t e d i n Weeks v .
34 S . C t . 341, 58 L.Ed 652.
U n i t e d S t a t e s ( 1 9 1 4 ) . 232 U.S. 383,/ The r u l e was e v i d e n t i a r y

i n n a t u r e and n o t deemed t o be r o o t e d i n t h e c o n s t i t u t i o n

itself.

-19-
 4 1 S.Ct. 574, 6 5 L.Ed. 1048,
I n ~ u r d e a uv . McDowell ( 1 9 2 1 ) , 256 U.S. 4 6 5 ,/ t h e Supreme

C o u r t of t h e United S t a t e s l i m i t e d a p p l i c a t i o n of t h e e x c l u -

s i o n a r y r u l e t o a c t s of t h e s o v e r e i g n . Therefore, evidence

p r o c u r e d by a p r i v a t e p e r s o n was n o t s u b j e c t t o e x c l u s i o n

even i f o b t a i n e d i n an u n r e a s o n a b l e s e a r c h .

J u s t i f i c a t i o n f o r t h e e x c l u s i o n a r y r u l e a r i s e s from a

d e s i r e t o d e t e r unlawful p o l i c e a c t i o n . The r u l e h a s o n l y

minimal d e t e r r e n t v a l u e when a p p l i e d t o p r i v a t e p e r s o n s . If

t h e r u l e i s t o have a d e t e r r e n t e f f e ~ t ~ p o t e n t i v i o l a t o r s
al

must be aware of t h e r u l e . I t i s doubtful t h a t p r i v a t e

i n d i v i d u a l s i n o u r s o c i e t y u n d e r s t a n d and a p p r e c i a t e t h e

e x c l u s i o n a r y r u l e , and t h e r e i s l i t t l e e v i d e n c e t h a t a p p l i c a -

t i o n of t h e e x c l u s i o n a r y r u l e t o p r i v a t e v i o l a t o r s would

r e d u c e t h e number of v i o l a t i o n s .

Automatic a p p l i c a t i o n of t h e e x c l u s i o n a r y r u l e c e r t a i n l y

c a n n o t be j u s t i f i e d on t h e b a s i s of r e p a i r i n g a c o n s t i t u t i o n a l

harm. The e f f e c t of a p p l y i n g t h e r u l e o f f e r s no r e p a r a t i o n

i n t h e c a s e of an 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 y i e l d i n g

no c r i m i n a l e v i d e n c e . The r u l e ' s remedy i s l i m i t e d t o t h o s e

who have committed a c r i m e , t h e r e b y denying r e p a r a t i o n t o

a l l others.

The e x c l u s i o n a r y r u l e i s a v a l u a b l e t o o l i n d e f e r r i n g

unreasonable p o l i c e a c t i o n . I n p r i v a t e a c t i o n c a s e s t h e pur-
pose wanes.

I would h o l d , i n t h i s c a s e , t h e s k i s which were s e i z e d ,

were t h e f r u i t of p r i v a t e a c t i o n and t h e r e f o r e n o t s u b j e c t

t o suppression. I would r e v e r s e t h e D i s t r i c t C o u r t and

remand t h i s c a s e f o r t r i a l .
We concur with the foregoing dissent:

Justices
Mr. J u s t i c e Gene B. D a l y s p e c i a l l y c o n c u r r i n g :

I concur with t h e m a j o r i t y o p i n i o n . I , however, find
it necessary to comment on the overzealous statements
contained i n t h e d i s s e n t i n g o p i n i o n a s t h e y go t o t h e r o o t s
of c o n s t i t u t i o n a l h i s t o r y .

F i r s t t h e a l l e g a t i o n i s made t h a t i n t h e B r e c h t c a s e ,
supra, t h i s Court used t h e c a s e of Katz v . United S t a t e s
(1924), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, a
landmark f e d e r a l d e c i s i o n , t o s u p p o r t t h e h o l d i n g i n B r e c h t .
T h i s is n o t t r u e , e s p e c i a l l y i n t h a t c o n t e x t .
A s t u d y o f t h e c o n s t i t u t i o n a l h i s t o r y of t h e Fourth
Amendment w i l l r e v e a l t h a t when C h i e f J u s t i c e T a f t was h e a d
o f t h e f e d e r a l j u d i c i a l s y s t e m h e was adamant i n h i s b e l i e f

t h a t t h e F o u r t h Amendment was c a s t i n nonf l e x i b l e c o n c r e t e .
T a f t a r g u e d w i t h B r a n d e i s and Holmes t h a t a t e l e p h o n e
tap intrusion by the sovereign did not come w i t h i n the
protection of the Fourth Amendment because a physical

intrusion or trespass into the protected enclave was
r e q u i r e d t o t r i g g e r t h e p r o t e c t i o n o f t h e F o u r t h Amendment.
H e e x p l a i n e d a d d i t i o n a l l y t h a t a f u r t h e r t e s t was o b v i o u s i n

that the telephone did not exist a t the time the Fourth
Amendment was w r i t t e n a n d , t h e r e f o r e , i t was n o t p o s s i b l e t o
have a t e l e p h o n e i n t r u s i o n w i t h i n t h e c o n t e m p l a t i o n o f the

f r a m e r s o f t h e Amendment. B r a n d e i s and Holmes, of course,
argued f o r f l e x i b i l i t y .
The s t o r m c o n t i n u e d f o r many y e a r s , a n d , f i n a l l y , t h e
c a s e of Katz v. United S t a t e s , supra, reversed the r u l e i n
Olmstead v. United States ( 1 9 2 8 ) , 277 U.S. 438, 48 S . C t .
564, 72 L.Ed. 944 ( a u t h o r e d by C h i e f J u s t i c e T a f t ) . Katz
held, in essence, t h a t t h e e n c l a v e p o s i t i o n was no l o n g e r
completely valid because the protection of the Fourth
Amendment was a p e r s o n a l r i g h t and f o l l o w e d t h e p e r s o n . A
t r e s p a s s was n o t a n e c e s s a r y e l e m e n t , i . e . , meaning t h a t t h e
Fourth Amendment was not static, but rather a living,
f l e x i b l e , b r e a t h i n g p a r t o f a c o n s t i t u t i o n t h a t is s u b j e c t
to interpretations that will accommodate modern day

technology and, hence, a document t h a t h a s n o t worn thin
with the passing of t i m e .
T h i s is t h e r a t i o n a l e of K a t z , and p r o p e r l y a p p l i e d
i n a c o n s t i t u t i o n a l c o n t e x t , minus emotional involvement, it

is very meaningful to this historic problem and has a
r a t i o n a l connection.

The p r o b l e m is w e l l e x p l a i n e d i n a c a s e n o t c i t e d by
t h e d i s s e n t , S t a t e v . Coburn ( 1 9 7 4 ) , 1 6 5 Mont. 488, 530 P.2d
444, and I q u o t e t h e r e f r o m :
" ' T h e 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 in the previous cases, its
p r o t e c t i o n 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 -
activities of s o v e r e i g n a u t h o r i t y , and was
- i n t e n d e d t o -e a l i m i t a t i o n u p o n o t h e r
not b-
than governmental agencies; a s a g a i n s t such
a u t h o r i t y i t was t h e p u r p o s e o f t h e F o u r t h
Amendment t o s e c u r e t h e c i t i z e n i n t h e r i g h t
- u n m o l e s t e d o c c u p a t i o n o f h i s d w e l l i n g and
of
the possession of h i s property, subject t o
t h e r i g h t o f 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 . '
[ B u r d e a u v . McDowell ( 1 9 2 1 ) , 256 U.S. 465,
4 7 5 , 4 1 S . C t . 5 7 4 , 6 5 L.Ed. 1048.1 (Emphasis
added. )
"A f a i r a n a l y s i s o f t h e a r g u m e n t s would seem
t o i m p l y t h a t t h e p o s i t i o n o f t h e p a r t i e s was
much t h e same a s t h a t e x p r e s s e d by C h i e f
Justice Taft, writing for the majority i n a
five-four d e c i s i o n , Olmstead v. United
S t a t e s , 277 U.S. 438, 48 S . C t . 5 6 4 , 72 L.Ed.
9 4 4 , 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 h e 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 o f t h e f r a m e r s o f t h e amendment
and i t s w o r d s c o u l d n o t b e s t r e t c h e d t o b e
g i v e n a m e a n i n g 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.
"All 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 o f Katz i n which, J u s t i c e Black
in h i s dissenting opinion proclaims t h a t the
m a j o r i t y i n Katz have ' r e w r i t t e n t h e Fourth
Amendment'. 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 O l m s t e a d .

" I t would a p p e a r t h e n t h a t t h e a r g u m e n t s
b a s e d 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 o f 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 K a t z i n 1 9 6 7 . The m a j o r i t y i n
Katz recognize t h a t t h e former d e c i s i o n s of
t h e C o u r t 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 w a s a b s e n t ,
c i t i n g O l m s t e a d and Goldman v . U n i t e d S t a t e s ,
316 U.S. 1 2 9 , 62 S . C t . 993, 86 L.Ed. 1 3 2 2 ,
f o r t h e Amendment 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 o f t a n g i b l e p r o p e r t y
and property rights controlled. The
m a j o r i t y , i n Katz, c i t e d Silverman v. United
S t a t e s , 365 u.S.505, 8 1 S . C t . 6 7 9 , 5 L.Ed.2d
7 3 4 , a s t h e d e p a r t u r e from t h a t n a r r o w v i e w
and i n c l u d e d i n t a n g i b l e s a s w e l l . I t went on
t o h o l d t h a t t h e F o u r t h Amendment p r o t e c t s
p e o p l e and n o t s i m p l y ' a r e a s ' and therefore
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 a n y 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 O l m s t e a d and Goldman c a n
no l o n g e r be c o n t r o l l i n g .
"This then demonstrates a radical departure
from t h e a c c e p t e d meaning o f t h e w o r d s o f t h e
F o u r t h Amendment w h i c h c o n 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 e O l m s t e a d .
It further demonstrates that these
t r a d i t i o n a l concepts a r e not s t a t i c . This
i s n o t a new c o n c e p t by a n y means. In
O l m s t e a d , 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 , Brandeis observed 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 the individual
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 o f 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 . U n i t e d S t a t e s , 217 U.S. 3 4 9 , 3 7 3 , 30 S . C t .
5 4 4 , 551, 54 L.Ed. 793, 801: " L e g i s l a t i o n ,
both statutory and constitutional, is
e n a c t e d , i t i s t r u e , from a n e x p e r i e n c e o f
e v i l s , b u t its g e n e r a l language should not,
- e f o r e , b e n e c e s s a r i l y c o n f ---------h e
t h e- r ined t o t
f o r m 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 . Time
w o r k s c h a n g e s , b r i n g 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 purposes. Therefore a
p r i n c i p l e t o --------------- c a p -------
be vita-1 must be able of
w i d e r a p p l i c a t i o- - -a n t h e m i s c h i e f -i c h
------- -- n -th w h-
qave it b i r t h . T h i s is p e c u l i a r l y t r u e o f
Constitutions. They a r e n o t ephemeral
enactments, designed to meet passing
occasions. They a r e , t o u s e t h e w o r d s o f
Chief J u s t i c e Marshall, 'designed t o approach
i m m o r t a l i t y a s n e a r l y a s human i n s t i t u t i o n s
can approach i t . ' The f u t u r e i s t h e i r c a r e
and p r o v i s i o n f o r e v e n t o f good and bad
t e n d e n c i e s o f which no p r o p h e c y c a n b e made.
In the a p p l i c a t i o n of a Constitution,
t h e r e f o r e , our contemplation cannot be o n l y
o f what h a s b e e n b u t o f what may b e . Under
a n y o t h e r r u l e a C o n s t i t u t i o n would i n d e e d be
a s e a s y o f a p p l i c a t i o n a s i t would be
d e f i c i e n t i n e f f i c a c y and p o w e r . Its general
p r i n c i p l e s would h a v e l i t t l e v a l u e and b e
c o n v e r t e d by p r e c e d e n t i n t o i m p o t e n t a n d
l i f e l e s s formulas. R i g h t s d e c l a r e d i n words
m i g h t be l o s t i n r e a l i t y . " ' ( E m p h a s i s a d d e d . )

"So f a r a s p r i v a c y is concerned, Katz
r e c o g n i z e d t h e F o u r t h Amendment was n o t a
g e n e r a l r i g h t o f p r i v a c y b u t t h e r i g h t was
c o n t a i n e d i n t h e F o u r t h and s e v e r a l o t h e r
amendments, t h e F i r s t , T h i r d and t h e F i f t h ,
and a s s t a t e d i n K a t z a t p . 350 o f 389 U.S.,
a t p . 5 1 1 o f 88 S . C t . , a t p. 581 of 1 9
L.Ed.2d i n r e f e r e n c e t o t h e r i g h t o f p r i v a c y :
I * * * h i s r i g h t t o be l e t a l o n e b y o t h e r
people--is, l i k e the protection of h i s
p r o p e r t y and o f h i s v e r y l i f e , l e f t l a r g e l y
t o t h e law o f t h e i n d i v i d u a l S t a t e s . '

" I n Boyd v . U n i t e d S t a t e s , 1 1 6 U.S. 6 1 6 , 6
S . C t . 524, 29 L.Ed. 746 ( 1 8 8 6 ) , t h e C o u r t
n o t e d t h a t t h e F o u r t h and F i f t h Amendments
w e r e v e r y c l o s e l y t i e d and t h e 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 o f t h e F o u r t h Amendment
a l m o s t a l w a y s c o m p e l s a man t o g i v e e v i d e n c e
a g a i n s t h i m s e l f which i s condemned i n t h e
F i f t h Amendment. In t h i s regard the Fourth
and F i f t h Amendments a l m o s t r u n i n t o e a c h
other. T h i s adds t o t h e problem t h e f a c t
t h a t a v i o l a t i o n o f t h e F i f t h Amendment
---------
r i g h t s , whether p r i v a t e o r g o v e r n m e n t , is
c o n d e m n e d i n a l l c o u r t s , m i l i t a r y and c i v i l .
-
Haynes v . W a s h i n g t o n , 373 U.S. 503, 83 S . C t .
1 3 3 6 , 1 0 L.Ed.2d 513 ( 1 9 6 3 ) ; Rogers v .
Kichmond, 365 U.S. 534, 8 1 S . C t . 735, 5
L.Ed.2d 760 ( 1 9 6 1 ) ; Payne v . A r k a n s a s , 356
U.S. 560, 78 S . C t . 8 4 4 , 2 L.Ed.2d 9 7 5 ( 1 9 5 8 ) .

"Concerning t h e e x c l u s i o n a r y r u l e i t s e l f , it
would be w e l l t o c o n s i d e r f i r s t t h a t t h e
' e x c l u s i o n a r y r u l e ' is a c o u r t adopted r u l e
r e s t i n g on t h e ' r u l e m a k i n g ' and ' s u p e r v i s o r y
p o w e r ' o f t h e Supreme C o u r t o v e r t h e o t h e r
c o u r t s and h a s no r o o t s i n t h e c o n s t i t u t i o n
o r t h e s t a t u t e s of t h e s t a t e o r f e d e r a l
government. ( D i s s e n t i n K a t z by J u s t i c e
B l a c k and c i t i n g Wolf v . C o l o r a d o , 338 U.S.
25, 69 S . C t . 1 3 5 9 , 93 L.Ed. 1 7 8 2 ; Mapp v .
O h i o , 367 U.S. 643, 8 1 S . C t . 1 6 8 4 , 6 L.Ed.2d
1 0 8 1 , 8 4 A.L.R.2d 933; E l k i n s v . United
S t a t e s , 3 6 4 U.S. 2 0 6 , 80 S . C t . 1437, 4
L.Ed.2d 1 6 6 9 , 1 6 7 7 , 1 6 8 0 , 1 6 8 1 ( 1 9 6 0 ) ) .

"The f a c t t h a t t h e r u l e is c h a r a c t e r i z e d a s
n o t s a t i s f a c t o r y and t h e s t a t e i n a r g u m e n t
recommended t h a t a t o r t remedy f o r t h e
a g g r i e v e d was a d e q u a t e , s i m p l y i g n o r e s t h a t
a l l of t h e c a s e s which d e c l a r e t h e r u l e a s a
d e t e r r e n t because t h e wrong c a n n o t b e
 c o r r e c t e d o r compensated, b u t merely avoided
i n t h e f u t u r e , must have r e c o g n i z e d t h a t
t h e r e c o u l d be no p r i c e p l a c e d on a
constitutional right." S t a t e v . Coburn, 165
Mont. a t 496-499.
Further, I would only say t h a t the dissent, as it

speaks t o t h e r i g h t of p r i v a c y contained i n t h e C o n s t i t u t i o n
of the State of Montana, can only be characterized a

p e r s o n a l f e e l i n g , a s t h e comments a r e l a c k i n g any r e c o g n i z e d
supporting authority.
As the d i s s e n t speaks t o t h e exclusionary r u l e , it

accuses the Court of elevating t h e r u l e t o a c o n s t i t u t i o n a l
position. I think if time were taken to read State v.

Coburn, supra, the confusion would disappear, and the
C o u r t ' s p o s i t i o n would be a p p a r e n t . I t makes no d i f f e r e n c e

i n t h e c o n s t i t u t i o n a l h i s t o r y of t h e r u l e o r i t s a p p l i c a t i o n
t o Montana l a w by t h e U n i t e d S t a t e s Supreme C o u r t t h a t t h e

Montana Legislature continues to attempt to legislate in

that area. It is t h e i r prerogative; and, a s day follows
night, it is t h i s C o u r t ' s d u t y t o examine t h e l e g i s l a t i v e

product for constitutional defect.