State v. Solis

No. 83-543

IN THE SUPREI4E COURT OF THE STATE OF MONTANA

1984

STATE OF MONTANA,
Plaintiff and Appellant,
-vs-
GEORGE SOLIS,
Defendant and Respondent.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable H. William Coder, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Hon. Mike Greely, Attorney General, Helena, Montana
Jim Scheier argued, Asst. Atty. General, Helena
J. Fred. Bourdeau, County Attorney, Great Falls,
Montana; Charles Lucero argued, Deputy County Atty.,
Great Falls, Montana

For Respondent:
Jeffrey T. McAllister argued., Great Falls, Montana

Submitted: October 29, 1984
Decided: December 31, 1984

Filed:
Df.h: '"'84
i
"J

Clerk
Mr. J u s t i c e Frank B. Morrison, Jr. d e l i v e r e d t h e Opinion of
t h e Court.

On March 1 6 , 1983, d e f e n d a n t George S o l i s was c h a r g e d by

i n f o r m a t i o n w i t h one c o u n t o f f e l o n y t h e f t , i n v i o l a t i o n o f §

45-6-301 (1)( a ) , MCA. T r i a l was t w i c e s c h e d u l e d and v a c a t e d

at the prosecution's request before being rescheduled for

Monday, October 3 , 1983. The S t a t e f i l e d a " J u s t n o t i c e " o f

o t h e r c r i m e s e v i d e n c e on F r i d a y , September 30, 1983, t o g e t h e r

w i t h a motion i n l i m i n e t o i n t r o d u c e a v i d e o t a p e . Defendant

then filed a motion in limine on the morning of trial,

o b j e c t i n g t o t h e t i m e l i n e s s of t h e S t a t e ' s " J u s t n o t i c e " and

t h e admission of t h e video t a p e s i n t o evidence. Following an

in-chambers h e a r i n g , t h e t r i a l judge s u p p r e s s e d t h e v i d e o t a p e

and postponed t r i a l . On October 5 , 1983, a w r i t t e n o r d e r w a s

i s s u e d denying t h e p r o s e c u t i o n ' s r e q u e s t t o p r e s e n t e v i d e n c e

of o t h e r crimes and s u p p r e s s i n g t h e v i d e o t a p e . The S t a t e

appeals. W a f f i r m t h e o r d e r of t h e D i s t r i c t Court.
e

During the months of January a.nd F e b r u a r y 1983, the

Cascade County Sheriff's office employed Jimmy Emmons, an

undercover o f f i c e r from I n d i a n a , t o a c t a s p r o p r i e t o r of a

pawnshop, Ma & Pa's Second Hand Store. As part of that

o p e r a t i o n and w i t h Emmons' knowledge, S h e r i f f ' s o f f i c e r s made

v i d e o r e c o r d i n g s o f t h e e v e n t s which t r a n s p i r e d .

Video r e c o r d i n g s i n v o l v i n g d e f e n d a n t w e r e made on f i v e

separate occasions. On January 28, 1983, defendant sold

n e c k l a c e s t o Emmons. On February 15, 1983, defend.ant s o l d

nine cartons of cigarettes to Emmons and. i n q u i r e d as to

Emmons' i n t e r e s t i n some t i r e s . F i f t y minutes l a t e r , defen-

dant returned, s o l d Emmons f o u r B . F . Goodrich 8-ply tractor

t i r e s and t o l d Emmons he c o u l d g e t more new t i r e s . O Febru-
n

a r y 18, 1983, t h e t h e f t o f f o u r t r a c t o r t i r e s matching t h e
description of those sold to Emmons by defendant was
reported.
On February 22, 1983, Emmons purchased from defendant
six more tires for $140 on the condition that defendant take
an I.O.U. for $100. Defendant discussed with Emmons his
scheme to obtain twenty additional tires and a pending
burglary charge against him. On February 24, 1983, defendant
returned to collect his $100. Defendant was arrested during
that visit and eventually charged with felony theft of the
initial four tires he sold to Emmons.
All of those transactions were videotaped. However,
neither the Cascade County Attorney's office nor the Cascade
County Sheriff's office ever sought or obtained a search
warrant prior to making any of the video recordings.
An omnibus hearing was held April 27, 1983, at which the
prosecution represented that it did not intend to offer
evidence of other offenses or acts under Rule 404(b),
M.R.Evid. At that time, the prosecution intended to try
Solis using Emmons' testimony regarding only the sale of the
four tractor tires. Thereafter, Emmons' refusal to return to
Montana to testify forced the cancellation of two scheduled
trial dates. The Cascade County Attorney's office decided to
try the case using the videotape and testimony of deputies
who ran the taping machines. That decision prompted the
September 30, 1983, "Just notice."
In its appeal of the October 5, 1983, order of the
District Court, the State presents this Court with four
issues:
1. Whether the defendant's right to privacy, as guar-
anteed by the Montana Constitution, was violated.
2. Whether the videotape evidence meets the substan-
tive guidelines of admissibility established in Just?
 3. Whether the prosecution complied with the procedur-
al guidelines established in Just in notifying the defendant
of its intent to offer evidence of other crimes, wrongs, or
acts.
4. Whether the State waived its right to offer evi-
dence of other crimes, wrongs, or acts.
Our resolution of issue one renders the remaining issues
moot.
"The right of individual privacy is essential to the
well-being of a free society and shall not be infringed
without the showing of a compelling state interest." Mont.
Const. Art. 11, § 10.
We use a two-part test to determine whether an individ-
ual has a constitutionally protected right of privacy: (1)

the individual must have either a subjective or an actual
expectation of privacy; and (2) that expectation must be
viewed by society as reasonable. The Missoulian v. Board of
Regents of Higher Education (Mont. 1984), 675 P.2d 962, 967,
41 St.Rep. 110, 116. Thus, the first point for resolution of
this case is whether defendant exhibited an expectation of
privacy during his conversations at the pawnshop and, if so,
whether that expectation was reasonable.
Having viewed the videotapes, we find that defendant did
exhibit an actual expectation of privacy. His conversations
with Jimmy Emmons were held in a small, enclosed office. The
only other individual present was an unidentified friend of
defendant. Further, defendant's expectation of privacy was
reasonable. There were no visible, separate areas from which
other individuals may have overheard the conversations.
Thus, it was not unreasonable for defendant to have expected
no one but his unidentified friend and Emmons heard the
conversations.
 In support of its position, the State argues that our
decision in State v. Coleman (Mont. 1980), 616 P.2d 1090, 37
St.Rep. 1661, requires a determination in this instance that
defendant had no reasonable expectation of privacy. We do
not agree. In Coleman, we reaffirmed our position "that
interception of telephone conversations by police officers is
legal if one of the parties to the conversation consents,
even an informer." Coleman, 616 P.2d at 1096. Likewise,
argues the State, since Jimmy Emmons consented to the video
recordings of his transactions with Solis, those recordings
required no court order. However, our decision in Coleman
and our recent decision on the same issue, State v. Canon
(Mont. 1984), 687 P.2d 705, 41 St.Rep. 1659, rely on the
nature of a telephone conversation as opposed to a
face-to-face conversation. An individual using a telephone
has no way of knowing whether that conversation is being
overheard by other parties. Thus, there exists no reasonable
expecta.tion of privacy. Coleman, supra.
We are aware of the plurality opinion in United States
v. White (1971), 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453.
With reference to the issue now before this Court, the
Supreme Court of the United States said:
"No different result should obtain where .. .the
informer disappears and is unavailable at trial;
for the issue of whether specified events on a
certain day violate the Fourth Amendment should not
be determined by what later happens to the
informer. His unavailability at trial and
profferring the testimony of other agents may raise
evidentiary problems or pose issues of
prosecutorial misconduct with respect to the
informer's disappearance, but they do not appear
critical to deciding whether prior events invaded
the defendant's Fourth Amendment rights." White,
401 U.S. at 753-754.
Furthermore, the plurality opinion in White was approved
in United States v. Caceres (1979), 440 U.S. 741, 99 S.Ct.
1465, 59 L.Ed.2d 733, wherein the Supreme Court said:
 "Neither the Constitution nor any Act of Congress
requires that official approval be secured before
conversations are overheard or recorded by
Government agents with the consent of one of the
conversants." Caceres, 440 U.S. at 744.
This Court is not bound by decisions of the United
States Supreme Court where independent grounds exist for
reaching a contrary result. State v. Van Haele (Mont. 1982) ,
649 P.2d 1311, 39 St.Rep. 1586. State v. Hyem (Mont. 19811,
630 P.2d 202, 38 St-Rep. 891. In Hyem, the Court divided
over the question of whether the delegates to the Montana
State Constitutional Convention intended to extend the right
of privacy to individual action. However, all members of the
Court agreed that independent state grounds existed for this
Court to extend greater privacy rights, and thereby greater
protection against unreasonable search and seizure, than
would be afforded under the Federal Constitution.
Much has been written about whether a state court should
grant greater rights than the United States Supreme Court
where the State Constitutional language is identical to that
in the Federal Constitution. In State v. Jackson (Mont.
3_983), 672 P.2d 255, 40 St.Rep 1698, a divided court held
that the Montana Constitutional guarantee against
self-incrimination does not afford greater protection than
that afforded under the Federal Constitution. However, in
that instance the language in the Montana Constitution does
not afford a basis for distinguishing self-incrimination
rights from those articulated in the Federal Constitution.
This Court has afforded greater rights in search and seizure
cases because the Montana Constitution specificall-y
recognizes the importance of the right of privacy.
In - Haele, 649 P.2d at 1313, Chief Justice Haswell
Van
writing for the majority said:
 "We decline to overrule our previous citizen search
cases and reaffirm our position taken therein. We
base our reasoning on the firm stance taken by the
Montana Constitution guaranteeing an individual's
right of privacy."
The debate among delegates considering the privacy
section to the Montana Constitution evidences clear
opposition to electronic surveillance. The delegates
considered whether to specifically ban eavesdropping in the
Constitution itself. In debating this amendment, Delegate
Campbell said:
"We at the committee felt very strongly that the
people of Montana should be protected as much as
possible against eavesdropping, electronic
surveillance, and such type of activities. We also
recognize that there may in the future be a
legitimate need for such in legitimate police
activities. After careful consideration of the
rough draft that we did produce, we found that the
citizens of Montana were very suspicious of such
type of activity. We found from the law
enforcement officers we talked to that there was
really not a need and such activity was not taking
place at this time. We had then decided that what
we had done was made constitutional something that
we may someday want to regulate or even abolish.
There were people that would--testified to our
committee that the wiretapping and such should be
abolished expressly in the Constitution. It was
our feeling, after considering this, that it should
not be solidified and cemented into the
Constitution; it should be made a legislative
matter; and as such, we have removed reference to
it from the Constitution." Montana Constitutional
Convention, Verbatim Transcript pp. 1682-1683.
Delegate Robinson, speaking in opposition to the
position of Delegate Campbell, said:
"I don't see, really, how you can talk about
privacy and in the same breath mention the
possibility of wiretapping or electronic:
surveillance. I think these are probably two most
incompatible things that you could ever have."
Montana Constitutional Convention, Verbatim
Transcript p. 1683.
Delegate Dahood said:
"After listening to testimony, after examining
briefs that were submitted to us, after analyzing
the situation, it is inconceivable to any of us
that there would ever exist a situation in the
State of Montana where electronic surveillance
could be justified. And the thinking throughout
 the United States is, electronic surveillance shall
be justified only in matters involving national
security, perhaps in matters involving certain
heinous federal crimes where the situation is such
that in those instances we must risk the right of
individual privacy because there is a greater
purpose to be served. But within the area of the
State of Montana, we cannot conceive of a situation
where we could ever permit electronic
surveillance." Montana Constitutional Convention,
Verbatim Transcript p. 1687.
In Coleman, supra, and Canon, supra, this Court allowed
tapping of a telephone without a warrant, where consent was
given by one party to the conversation, for the reason that
the other party to the telephone conversation could not see
what was transpiring at the other end of the line and
therefore assumed the risk of such monitoring. These
decisions may have gone further than the Constitutional
Convention delegates intended. However, this very subject
was discussed during the debate and Delegate Robinson said:
"Oh, no. You're--there's a difference between your
knowing that you're telling me and you know whether
there is someone around us listening or if it's
just you and I; whereas, on the telephone, you may
tell me that and you may suspect that I'm the only
one listening, but you certainly may not know
that." Montana Constitutional Convention, Verbatim
Transcript p. 1686.
If we were to extend warrantless eavesdropping beyond
the tel-ephone conversation sanctioned in Coleman and Canon,
we would clearly be violating the intent of those who drafted
the privacy section of our State Constitution. This we
refuse to do.
We hold that in face-to-face encounters in a private
setting, there is a reasonable expectation that hidd.en
monitoring is not taking place. This does not foreclose
invasion of the right of privacy under appropriate
circumstances.
Since defendant's privacy expectation was reasonable, it
could not be invaded absent a compelling state interest.
Mont. Const. Art. 11, S 1 0 . A compelling state interest
"exists where the state enforces its criminal laws for the
benefit and protection of other fundamental rights of its
citizens. l1 State ex rel. Zander v. District Court ( 1 9 7 9 ) ,
180 Mont. 548, 556, 591 P.2d 656, 660. Especially in
situations such as this, where a suspect has engaged in
repeated activity thought to be criminal in nature, there
exists a compelling state interest for the State to invade an
individual's right of privacy.
However, even when the State has such a compelling
interest, the invasion of an individual's privacy may usually
occur only with certain procedural safeguards. In this
instance, those safeguards are the ones attached to our right
to be free from unreasonable searches and seizures. The
State was required to show probable cause to support the
issuance of a search warrant. Mont. Const. Art 11, S 11.
This area of law is confusing because of the numerous
approaches to the right of privacy issue in the case law.
There has been unnecessary emphasis placed on distinguishing
right to privacy cases from search and seizure cases. The
right to privacy is the cornerstone of protections against
unreasonable searches and seizures. Thus, a warrantless
search can violate a person's right of privacy and thereby
violate the right to be free from unreasonable searches and
seizures.
It is not always feasible to obtain a search warrant.
Time constraints sometimes make it necessary to conduct
warrantless searches. However, in the instant case the trial
judge found that this d-id not "appear to be a situation of
exigent circumstances precluding a reasonable opportunity for
the said Sheriff's office to seek a prior search warrant."
Absent a clear abuse of discretion, the findings of the trial
court will be upheld on appeal.
On the basis of this finding, we hold that the warrant-
1-ess recording of defendant's conversations with Jimmy Ernmons
violated defendant's right to be free from unreasonable
searches.
The same rationale applies to eavesdropping by the law
enforcement officers who were running the video tape machine.
They were entitled here to invade privacy, but not without a
warrant. The warrantless eavesdropping constituted an
unreasonable search.
The District Court

We concur:

Chief Justice

Justices
Justice John C. Sheehy, concurring specially:

I concur with the result in this case. The hidden vid.eo
camera in the case recorded the defendant visually and
aurally. The use of the video camera in the manner described
i n this case constituted a "search" of the defendant.
. See
Katz v. United States (1967), 389 U.S. 347, 19 L.Ed.2d 576,
88 S.Ct. 507. A warrantless search is - - unreasonable,
Per Se
unless it falls within one of the defined exceptions to the
wa-rrant requirement. Coolidge v. New Hampshire (1971), 403
U.S. 443, 29 I,.Ed.2d 564, 91 S.Ct. 2022. The exceptions to

the warrant requirement generally arise out of exigent
circumstances necessary to protect or preserve life or
property or to avoid serious injury. See Wayne v. C. S.
(C.A.D.C. 1963), 31-8 F.2d. 205. No exigent circumstances
appear here to justify the warrantless search. Accordingly,
the video tape of the defendant in this case, without more,
was invalidly obtained and was properly excluded from
evidence.

(".&A l &h3
Justice

Chief Justice Frank I. Haswell, specially concurring:
I concur in the result for the reasons stated by
Justice Sheehy.

Mr. Justice Fred J. Weber, specially concurring:

I concur in the result for the reasons stated by
Justice Sheehy.
Mr. Justice John Conway Harrison, dissenting.

I dissent.
We are here involved in a case in which known criminal
defendants have previously dealt with a "mom and dad" pawn
shop, where we are giving them far more than the benefit of
the doubt of an invasion of their privacy. In these days
where banks are monitored by video equipment, hotels and
motels are involved in video taping of customers and many
business open all night try to protect their business from
persons such as we are here involved with, video tapes run
without anyone's privacy being invaded. I find it incredible
under these circumstances that the effect of a carefully laid
"sting" operation to catch just such people is ruled
inadmissible.
Lack of knowledge of the people involved, plus the
"sting" operator, in my opinion does not render the entire
video tape unreliable to reveal the contents of the
conversations. See United States v. Knohl (2nd Cir. 1967) ,
379 F.2d 427, I would hold it was within the discretion of
the trial court to find the video recordings here were
reliable and the tape should be admitted into evidence.
United States v. Avila (2nd. Cir. 1971), 443 F.2d 792; cert
denied 404 U.S. 944, 92 S.Ct. 295, 30 L.Ed.2d 258.

While we have not previously, to my knowledge ever
expressly promulgated the requirements that must be met in
order to lay a proper foundation for the admission of video
recordings into evidence other than in State v. Warwick
(1972), 158 Mont. 531, 494 P.2d 627, I note in my research
that the general standards for the authentication are widely
accepted. See 58 ALR2d 1032 and 29 AmJur2d, evidence, 5436,
such standards are set forth in various forms in other states
and in the Federal Courts including Warwick, supra.
 I think the proper test for such admission is set forth
in U.S. v. Biggins (5th Cir. 1977), 551 F.2d 64, where the
Court held:
"The trial court properly admits a sound
recording into evidence only when the
party introducing it carries its burden
of going forth with the foundation
evidence demonstrating that the recording
as played as an accurate reproduction of
the relevant sounds previously audited by
the witness. As a general rule, at least
in the context of a criminal trial, this
requires the prosecution to go forward
with respect to the competency of the
operator, the fidelity of the recording
equipment, the absence of material
deletions, additions, or alterations in
relevant portions of the recording and
the identification of the relevant
speakers."
See also U.S. v. McMillan (8th Cir. 1974), 508 F.2d
101, cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d
782 (1975); U.S. v. McKeever (S.Dist. N.Y. 1958), 169 F.Supp
426. Failure to allow the officers witn.essing the sale was
error.
Viewing the entire operation presented by this case, I
find the evidence of guilt so overwhelming that not to allow
this evidence to go before a jury is tantamount to declaring
the issue of guilt to be irrelevant. I would find that the
trial court abused its discretion in not allowing a jury to
view a video tape after limiting the tape to the offense
charged.

I join the dissent
Harrison.