State v. Brown

No. 87-381
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988

THE STATE OF MONTANA,
Plaintiff and Respondent,

KATHERINE MICHELLE BROWN,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
McKinley T. Anderson, Bozeman, Montana
For Respondent :
Honorable Mike Greely, Attorney General, Helena, Montana
Betsy Brandborg, Assistant Attorney General
Mike Salvagni, County Attorney, Bozeman, Montana
Marty Lambert, Deputy County Attorney
For Amicus Curiae:
Robert M. McCarthy, Butte, Montana (County Attorneys
Association)

Submitted: March 1, 1988
Decided: May 4 1 1988
Filed:
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

Following a bench trial on May 18 and 19, 1987, before
the Honorable Thomas A. Olson, in the 18th Judicial District,
the defendant, Katherine Michelle Brown (hereinafter Brown)
was found guilty of the criminal sale of dangerous drugs, a
felony, in violation of 5 45-9-101(1), MCA. Defendant
appeals and we affirm.
On November 14, 1986, Officer Dave Petersen of the
Bozeman Police Department was contacted by one Curt Hawley.
Hawley informed Petersen that an individual named Ernest
Elliot was attempting to organize the sale of a large amount
of marijuana. Hawley agreed to re-contact Elliot and begin
negotiations for the sale. A subsequent undercover
investigation generated Brown's arrest and conviction.
Hawley and Elliot engaged in three phone conversations
on November 15, 1986. Petersen monitored and recorded the
conversations with Hawley's consent, but no search warrant
was obtained. Elliot indicated his cousin would transport
significant amounts of marijuana to the Bozeman area for
sale, and Hawley indicated he had contact with a potential
purchaser. Elliot explained that Hawley would need to deal
with Elliot's girlfriend, defendant Brown, to complete the
transaction. Brown's involvement was necessary because
Elliot was scheduled to begin serving a sentence in the
county jail due to a prior conviction. This arrangement was
confirmed November 16, 1986, when Hawley met and spoke with
both Brown and Elliot in a grocery store parking lot.
After Elliot reported to the county jail, Hawley phoned
Brown on November 17, and 20, 1986 to discuss further
arrangements. Both calls were monitored and recorded with
Hawley's consent and no warrant was obtained. A meeting was
arranged between Brown, Hawley, and the potential purchaser.
The "purchaser" was Officer Evanson of the Bozeman Police
Department.
The three met on November 20, 1986, and the
conversation was monitored and recorded without a warrant by
using a body wire transmitting device which was attached to
Evanson. Brown and Evanson discussed the purchase while in a
vehicle parked in a bar parking lot. Evanson showed Brown a
large amount of cash to demonstrate he was a serious buyer
and agreed to purchase a large amount of marijuana when it
arrived in the Bozeman area.
On November 21, 1986, Evanson checked into a local
motel and phoned Brown. Brown indicated the marijuana
arrived by stating a friend with a baby had come to town, and
Evanson asked Brown to come to his motel room. The telephone
conversation was monitored and recorded without a warrant.
Brown arrived at Evanson's room with Don Elliot, Ernest
Elliot's cousin from Missouri. The ensuing conversations
were again monitored and recorded without a warrant by using
a body wire attached to Evanson. After a brief conversation,
the three proceeded to a different local motel and the money
and marijuana were exchanged. Brown was arrested shortly
thereafter, along with Don Elliot and his companion, Randy
Fowler.
On January 14, 1987, defendant filed a motion to
dismiss her charge alleging the information was not supported
by probable cause. Defendant alleged, among other things,
that Hawley "illegally taped or recorded telephone
conversations with the Defendant without her knowledge
... " A District Court hearing was held February 10, 1987
and defendant's motion was denied February 26, 1987.
Defendant was subsequently convicted of the criminal sale of
dangerous drugs.
 Defendant raises four issues for our consideration on
appeal :
1. Was there sufficient evidence to convict defendant
of the sale of dangerous drugs?
2. Did defendant receive an excessive sentence?
3. When police record telephone conversations without
a warrant and with the knowledge of one but not all the
participants in the conversation, are the recordings
admissible in a subsequent criminal trial?
4. When police use a body wire transmitting device to
record a face-to-face conversation without a warrant and with
the knowledge of one but not all the participants of the
conversation, are the recordings admissible in a subsequent
criminal trial?
1. Was there sufficient evidence to
convict defendant of the sale of
dangerous drugs?
Defendant contends that § 45-9-101(1), MCA, requires
that she actually sell or transfer a dangerous drug before
she can be convicted of the crime for which she was charged.
Defendant states the evidence fails to demonstrate she
actually sold the marijuana. Further, she alleges she never
took actual possession of the marijuana and concludes that
the correct charge should have been conspiracy to sell drugs
and not the actual sale of drugs.
We agree that the applicable language of § 45-9-101(1),
MCA, requires that defendant sell, barter, exchange, give
away, or offer to sell, barter, exchange or give away a
dangerous drug. We addressed a remarkably similar issue in
State v. Martinez (Mont. 1985), 700 P.2d 991, 42 St.Rep. 798.
In holding there was substantial evidence to support
defendant ' s conviction for the criminal sale of dangerous
drugs we stated:
 "To sell [drugs] means to knowingly and
intentionally transfer possession or
ownership of the [drugs] to another for
money or other valuable consideration.
For a person to make such a sale it is
not necessary that he personally handle
all of the details of the transaction.
It is sufficient if the transaction is
arranged by him and handled by persons
under his direction and is sufficient to
constitute a sale if the person charged
with sale is involved in the transaction
by accepting, handling, or counting the
money and directing the delivery of the
[drugs]. In other words, the person
charged with the sale does not have to
personally conduct all of the various
elements of delivery of the [drugs] and
the transfer of the money. It is
sufficient if he participates therein to
such an extent that it is obvious that he
is a part of the making of the sale."
Martinez, 700 P.2d at 992, 42 St.Rep. at 800 (citing, State
v. Davis (Mont. 1980), 620 P.2d 1209, 1214-15, 37 St.Rep.
1958, 1964). After reviewing the record, we conclude that
there is substantial credible evidence demonstrating
defendant assisted in organizing and coordinating the sale
and was therefore an active participant in the sale. The
evidence is sufficient to support the conviction and we
affirm the District Court.
2. Did defendant receive an excessive
sentence?
Defendant states her sentence is excessive because the
statute outlawing the sale of dangerous drugs is in fact an
absolute liability offense. Section 45-9-101(1), MCA, states
in part:
A person commits the offense of criminal
sale of dangerous drugs if he sells,
barters, exchanges, gives away, or offers
to sell, barter, exchange, or give away
.. . any dangerous drug...
S i n c e t h e s t a t u t e r e q u i r e s no m e n t a l s t a t e , d e f e n d a n t a r g u e s
it is an absolute liability offense and that pursuant to
SS 45-2-103 and - 1 0 4 , MCA, t h e maximum p e n a l t y f o r such an
a b s o l u t e l i a b i l i t y o f f e n s e i s a $500 f i n e .
S e c t i o n 45-2-104, MCA, d o e s p r o v i d e t h a t a p e r s o n may
be guilty of an absolute liability offense "only if the
offense i s p u n i s h a b l e by a fine not e x c e e d i n g $500 o r t h e
s t a t u t e defining the offense clearly indicates a legislative
purpose to impose absolute liability for the conduct
described." However, 45-9-101(1), MCA, i s n o t an a b s o l u t e
liability offense, because the S t a t e must prove that the
defendant purposely or knowingly committed the offense.
S e c t i o n 45-2-103 (1), MCA s t a t e s :
Except f o r d e l i b e r a t e homicide a s d e f i n e d
i n 45-5-102 (1)( b ) o r an o f f e n s e which
involves absolute l i a b i l i t y , a person i s
n o t g u i l t y of an o f f e n s e u n l e s s , w i t h
r e s p e c t t o each e l e m e n t d e s c r i b e d by t h e
s t a t u t e d e f i n i n g t h e o f f e n s e , he a c t s
w h i l e h a v i n g one of t h e m e n t a l s t a t e s
d e s c r i b e d i n s u b s e c t i o n s ( 3 3 ) , ( 3 7 ) , and
( 5 8 ) of 45-2-101.

The s e c t i o n p r o v i d e s t h a t a l l e l e m e n t s of an o f f e n s e must be
performed w i t h one o f t h e t h r e e m e n t a l s t a t e s p r o v i d e d f o r i n
the Montana Criminal Code. Section 45-2-101 ( 3 3 ) , MCA,
d e f i n e s t h e mental s t a t e of "knowingly" and S 45-2-101 ( 5 8 ) ,
MCA, d e f i n e s t h e m e n t a l s t a t e of " p u r p o s e l y . " The d e f i n i t i o n
of "negligently" i s addressed i n § 45-2-101(37), MCA, and h a s
no application to the offense of s e l l i n g dangerous drugs.
S t a t e v . S t a r r ( 1 9 8 3 ) , 2 0 4 Mont. 2 1 0 , 218, 664 P.2d 893, 897.
I n S t a r r , t h e d e f e n d a n t a s s e r t e d t h a t S 45-9-101, MCA,
was unconstitutionally vague. This Court noted that this
s t a t u t e has "no i n t e r n a l r e q u i r e m e n t o f m e n t a l s t a t e a s an
element of t h e crime." S t a r r , 2 0 4 Mont. a t 218, 664 P.2d a t
897. T h e r e f o r e , we concluded t h a t t h e s t a t u t e was s u b j e c t t o
$ 45-2-103, MCA, providing generally for all three mental
states. Despite the fact that there is no internal mental
state requirement in $ 45-9-101 (I), MCA, the offense of
criminal sale of dangerous drugs is subject to the
requirements of 45-2-103(l), MCA, and the State is thus
required to prove the offense was committed either purposely
or knowingly.
The evidence clearly demonstrates that defendant
Brown's intention was to purposely or knowingly organize and
coordinate the sale. Brown was not convicted pursuant to an
absolute liability offense and the sentence of the District
Court is affirmed.
3. When the police record telephone
conversations without a warrant and with
the permission of one but not all
participants in the conversation, are the
recordings admissible in a subsequent
criminal trial?
Defendant contends that all of the recordings of
telephone conversations took place with the knowledge and
permission of only one of the participants in the
conversation. Defendant states that these telephone
recordings violate the privacy section of the Montana
Constitution and should not be admissible in a later criminal
trial. Defendant cites $ 45-8-213(1)(c), MCA, and points out
that it is a criminal offense to record conversations without
the knowledge of all parties to the conversation. That
subsection makes an exception for public employees performing
an official duty, but defendant contends this exception is
overly broad and therefore unconstitutional.
We hold that if one party to a telephone conversation
freely consents, the conversation can be electronically
monitored and recorded without a warrant, and the evidence
obtained is admissible in a subsequent criminal trial. This
rule remains true even if the consenting party is an
informant or a police officer. State v. Canon (Mont. 1984) ,
687 P.2d 705, 707-08, 41 St.Rep. 1659, 1661-62; State v.
Coleman (1980), 189 Mont. 492, 502-03, 616 P.2d 1090,
1095-96; and State v. Hanley (1980), 186 Mont. 410, 608 P . 2 d
104. We refuse to reverse this well established rule.
Further, defendant's reliance on S 45-8-213 is
misplaced. That statute defines when one violates privacy in
communications and prohibits one from recording conversations
without the knowledge of all participants. As noted by
defendant, the statute clearly excepts "duly elected or
appointed public officials or employees when the
transcription or recording is done in the performance of
official duty ... " The exception applies to law
enforcement officers while performing their duty. We fail to
see how this exception can be declared unconstitutional
because it is "overly broad." There is certainly no absolute
requirement that the statute exist at all should the
legislature decide to abolish it. The legislature has simply
determined that such recordings should be prohibited under
certain circumstances and provided for an exception which
applies in this case.
4. If police use a body wire
transmitting device to record a
face-to-face conversation without a
warrant and with the knowledge of one but
not all the participants of the
conversation, are the recordings
admissible in a subsequent criminal
trial?
Defendant argues that the right to privacy section of
the Montana Constitution prohibits the use of body wire
recordings as evidence under the facts of this case. As
support, defendant cites State v. Brackman ( 1 9 7 8 ) , 178 Mont.
105, 582 P.2d 1216. In Brackman, police placed an electronic
monitoring device on an individual which was used to record
his conversation with the defendant. No warrant was obtained
and the defendant had no knowledge that his conversation was
recorded. The District Court suppressed the recordings and
transcriptions and this Court affirmed. The majority held
there was no violation of defendant's right to be free of
unreasonable searches and seizures, but that the use of the
recording as evidence would violate the right to privacy
granted by the Montana Constitution.
We now hold that warrantless consensual electronic
monitoring of face-to-face conversations by the use of a body
wire transmitting device, performed by law enforcement
officers while pursuing their official duties, does not
violate the right to be free of unreasonable searches and
seizures nor the privacy section of the Montana Constitution.
The consent must be clearly obtained from at least one party
to the conversation and must be freely made and without
compulsion. Evidence obtained by such monitoring is
admissible in a subsequent criminal trial. As in the case of
telephone recordings, the consenting party may be an
informant or a police officer. To this extent, the Brackman
case is specifically overruled.
In the past, the rules regarding electronic monitoring
in Montana have not been entirely clear. Partially, the
confusion is present because there is no firm agreement as to
whether electronic eavesdropping should be analyzed under
Montana's constitutional right to privacy, search and seizure
law, or some combination of the two. Additionally, there is
virtually no Montana statutory authority directing the
procedures followed by law enforcement personnel.
In the Brackman case we analyzed and considered whether
participant electronic monitoring violates the Fourth
Amendment to the United States Constitution. After an
analysis of the United States Supreme Court decisions
regarding this topic, we concluded that when at least one
party to the monitored conversation freely consented to the
monitor, there was no impermissible search or seizure under
the Fourth Amendment. Brackman 178 Mont. at 112, 582 P.2d at
1220.
Currently, there is no need to alter this portion of
the Brackman case, and there are strong indications that this
conclusion is more certain today. In determining that there
was no Fourth Amendment violation, this Court relied on U.S.
v. White (1971), 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453.
The White case addressed the issue of whether the Fourth
Amendment barred from evidence the testimony of governmental
agents who related certain conversations which occurred
between the defendant and a government informant and which
the agents overheard by monitoring a radio transmitter
carried by the informant. In a plurality opinion, Justice
White stated the monitoring did not violate the defendant's
right to be free of unreasonable searches and seizures. The
precedential value of White is often attacked because it was
a plurality opinion. However, despite the passage of
seventeen years, White has not been reversed. Since that
time, the United States Supreme Court has stated:
[Nleither 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.
U.S. v. Caceres (1979), 440 U.S. 741, 744, 99 S.Ct. 1465,
1467, 59 L.Ed.2d 733, 738 (addressing the admissibility of
consensual recordings made by an Internal Revenue Service
agent that failed to observe and comply with Internal Revenue
Service regulations). Additionally, "all eleven Circuit
Courts of Appeals have accepted White as constitutional
authority for the principle that search warrants are not
required to authorize consensual interceptions ... "
C. Fishman, Wiretapping and Eavesdropping, S 9, at 17 (1978).
Warrantless consensual electronic monitoring of face-to-face
conversations does not violate the Fourth Amendment to the
United States Constitution.
The Montana Constitution also provides that the people
shall be free from unreasonable searches and seizures. Mont.
Const. Art. 11, S 11. Although the language of this
provision is nearly identical to that contained in the Fourth
Amendment to the United States Constitution, we recognize
that such a provision in the Montana Constitution may be
interpreted so as to provide a greater amount of rights than
that contained in the Federal Constitution. See, State v.
Johnson (Mont. 1986), 719 P.2d 1248, 1254-55, 43 St.Rep.
1010, 1016-17; and Butte Community Union v. Lewis (Mont.
1986), 712 P.2d 1309, 1313, 43 St.Rep. 65, 70. Additionally,
the Montana Constitution provides that the right of
individual privacy shall not be infringed without the showing
of a compelling state interest. Mont. Const. Art. 11, S 10.
There is no similar textual language in the United States
Constitution and we have therefore recognized that this
section grants rights beyond that inferred from the United
States Constitution. See generally, Montana Human Rights
Division v. City of Billings (1982), 199 Mont. 434, 649 P.2d
1283. Because Montana's Constitutional protections have an
existence which is separate from the Federal Constitutional
protections it is necessary to offer an independent analysis
of the privacy and search and seizure provisions of the
Montana Constitution.
"Where no reasonable expectation of privacy exists,
there is neither a 'search' nor a 'seizure' within the
contemplation of . .. Article 11, Section 11 of the Montana
Constitution." State v. Bennett (1983), 205 Mont. 117, 121,
666 P.2d 747, 749. There must be some violation of a
reasonable expectation of privacy before the provision
applies. In the case at hand, the defendant Brown claimed an
actual or subjective expectation of privacy, because she
personally expected her conversations with the undercover
officer to be private. However, it must also be determined
whether her expectation was reasonably justifiable. We
conclude that a defendant has no reasonably justifiable
expectation that statements made to another will be kept
private by that person. Therefore, the facts of this case
present no unreasonable search or seizure within the
contemplation of the Montana Constitution.
The analysis however must go further because the
framers of the Montana Constitution specifically provided an
additional protection with the right to privacy provision.
Due to the sensitive nature of this issue, we must consider
more than just the defendant's reasonable expectation of
privacy because such a test offers no more than that provided
by Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507,
19 L.Ed.2d 576. Katz specifically notes that the "general"
right to privacy is left largely to the law of the individual
states. 389 U.S. at 350-51.
Commentators have suggested that this Court consider
"whether the area to be searched or the object to be seized
is owned or possessed" by the defendant. Elison and
NettikSimmons, Right of Privacy, 48 Mont.L.Rev. 1, 26 (1987).
The "object" to be seized in this case is the conversation
between the defendant and the undercover officer. It is
logically difficult to strictly characterize the defendant's
possessory interest in her conversation with the officer. We
conclude that both participants had an equal interest in the
conversation and that either could consent to the monitoring.
Additionally, despite the fact that we have already
determined the defendant had no reasonably justifiable
expectation of privacy, we must also consider whether the
government activity in this case is excessively intrusive.
This additional consideration is needed because a defendant
may have his reasonable expectation of privacy distorted by
excessively intrusive government activity. In other words,
the very fact that the government is acting in an overly
intrusive manner may distort or obliterate any reasonable
expectation of privacy. See, e.g., Smith v. Maryland (1979),
442 U.S. 735, 740-41, n. 5, 99 S.Ct. 2577, 2580, 61 L.Ed.2d
220, 227. However, the warrantless consensual electronic
monitoring in this case was not excessive. The unsolicited
incriminating statements by Brown were freely spoken to the
undercover officer as she attempted to coordinate the sale.
Defendant Brown simply mistakenly placed her trust in the
officer and we refuse to conclude that the recording of her
words was excessively intrusive.
There is no question that the undercover officer could
testify as to the oral incriminating statements made to him
by Brown. Logically, the recording of these statements by
the officer and the introduction of the recording in
evidence, with proper foundation at the trial, is equally
admissible as the officer's testimony of what oral statements
had been made by Brown. The recorded statements would be
more reliable than the recall of the witness as to what had
been said to him.
To summarize, we hold there is no violation of
Montana's right to privacy, or the prohibition against
unreasonable searches and seizures, when law enforcement
officers pursing their official duties perform warrantless
consensual electronic monitoring of face-to-face
conversations. It is important to stress that this holding
does not open the floodgates to create an Orwellian society,
and that the individual is not left without protections
against inappropriate electronic eavesdropping. Section
45-8-213, MCA, still makes it a criminal offense to record a
conversation without the permission of all participants
unless an exception provided within the statute applies.
Additionally, warrantless monitoring of any conversation
without the permission and consent of one participant is
strictly prohibited by both the United States and Montana
Constitutions.
For the foregoing reasons, the judgment of the District
Court is affirmed in all respects.

We concur:
LJ
Mr. Justice William E. Hunt, Sr., dissenting:

I dissent with the majority regarding issues 3 and 4.
Current federal law on the subject of telephone recordation
and wiretapping apparently mandates the result of the
majority but this trend of blatant disregard for the right of
privacy that has developed in recent years gives me pause.
In this decision, the majority overrules State v.
Brackman (1978), 178 Mont. 105, 582 P.2d 1216, in which this
Court held that a warrantless recording of a conversation
consented to by one party but not the defendant was
inadmissible as evidence because it violated the right to
privacy guaranteed by the Montana Constitution.
As a rationale for this about-face, the majority
explains that the defendant had no reasonably justifiable
expectation of privacy in her conversations with the
undercover officer. Additionally, holds the majority, since
the defendant's "interest" in keeping the conversation
private is equal to the officer's interest in revealing the
conversation, the officer's consent was enough to satisfy the
protections of the right of privacy provision in our state
constitution. I disagree with both these contentions.
First, by finding that a defendant "has no reasonably
justifiable expectation that statements made to another will
be kept private by that person" the majority ostensibly
abolishes the requirement of a search warrant to record any
and all conversations between any persons if one party is a
government agent and consents. I believe if the average
citizen was asked whether the Montana Constitution gave him
the right to expect his conversations with other people to be
kept private, the answer would be a resounding "yes!" A
recent case decided by the Superior Court of Pennsylvania
makes a convincing argument that the consent of a government
participant in a conversation to the recordation or
electronic monitoring of that conversation should not be the
guidepost by which we measure the constitutionality of
admitting that recording into evidence.
In the Commonwealth of Pennsylvania, no citizen
should have to expect that the government may
immediately and irrevocably seize his private
thoughts every time he voices them to another
person. Moreover, whatever the distinction between
electronic eavesdropping done without consent and
electronic eavesdropping done with the consent of a
government informant, it does not support a
rational conclusion that the first practice is a
government "search and seizure" into the speaker's
protected zone of privacy while the second practice
is not.
Commonwealth v. Schaeffer (Pa. Super. 1987), 536 A.2d 354,
360.
Second, the majority attempts to characterize the
defendant's conversation as an "object" in which she has some
kind of possessory interest. I agree with the majority's
statement that it is logically difficult to characterize a
conversation as something in which the defendant has a
possessory interest. However, I disagree with the majority's
assertion that the officer and the defendant had "equal"
interests in the conversation. The officer's interest in the
conversation is to obtain enough incriminating evidence to
give him probable cause to arrest the defendant for a crime.
At his disposal in this endeavor is the whole arsenal of the
government's law enforcement weaponry. The provisions of the
state constitution were designed to protect citizens from
abuse and misuse of this arsenal. To state that the
defendant has an equal interest is to state that she has no
interest and consequently no protection from governmental
intrusion.
Although the majority seems to have harmonized Montana
law in this area with the federal trend it does a disservice
to the citizens of this state by ignoring the greater right
of the individual to exclude unreasonable impositions by the
government recognized by Art. 11, 10, of our state
constitution. The majority found that the defendant had no
reasonably justifiable expectation of privacy in this
situation. After this conclusion, how could it find any
protection under the state constitution's right to privacy
provisions? The answer is it couldn't.
The majority feels constrained by the decisions of the
United States Supreme Court. But this state, through the
adoption of the right to privacy provision of our state
constitution, has elected to give Montana citizens even
greater guarantees of privacy than the federal constitution
gives. Whv the majority chooses to ignore this explicit
guarantee puzzles me. The decision is particularly puzzling
in light of the fact that this is not a case in which there
was no time to obtain a warrant. Even if getting a warrant
in these types of cases becomes a perfunctory exercise, it
should be done so as to at least acknowledge the rights of
the individual in such a situation. Requiring a warrant may
also insure the documentation and availability of a recording
which actually exculpates a defendant.
The language of the opinion is broad enough to allow
conversations between a defendant and his attorney or other
privileged conversations to be recorded without the consent
of the defendant and to be allowed into evidence. It can be
assumed that the majority does not really intend to abrogate
the rule concerning privileged communications. But it is
expansive language such as this that provides the hammer and
chisel for the chipping away of rights guaranteed by the
Montana Constitution.
The decision made today is indeed a sad one for the
citizens of the state of Montana. The majority may have
unwittingly opened the doors for the erosion of any
protection the privacy clause gives individuals of this
state. The result may be required by the current posture of
federal law but it certainly was not intended by the framers
A
of our state constitution.
1