No. 14807 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

STATE OF MONTANA, Plaintiff and Respondent,

VS. ERNEST C. HANLEY, Defendant and Appellant.

Appeal from: DistrictCourt of the Thirteenth Judicial District, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellant: Richter and Lerner, Billings, Montana Alan Lerner argued, Billings, Montana For Respondent: Hon. Mike Greely, Attorney General, argued, Helena, Montana Richard Larson appeared, Assistant Attorney General,

Helena, Montana Harold Hanser, County Attorney, argued, Billings, Montana

Filed: Submitted: January 21, 1980 Decided: 

## 1

## 3 1980

-

### Mr. Justice John Conway Harrison delivered the Opinion of the Court.

On November 20, 1979, this Court issued an opinion suppressing all evidence against the defendant and reversing his conviction. A petition for rehearing was filed on November 30, 1979,was answered by objections on December 3, 1979,and on December 21, 1979, this Court ordered a rehearing. The case was reheard on oral argumentbefore this Court on January 21, 1980, fromwhich this opinion follows. DefendantHanley appeals from his conviction on a felony charge of sale 

### of dangerous drugs. Trialwas held in the District Court, Yellowstone County. While onparole as a result of a previous drug conviction,defendantwas arrested and placed in the Yellowstone County jail. The arrest came as a result of a complaintby hiswife. Shortly after his incarceration,defendant requested a meeting with detectives from the Yellowstone County Criminal InvestigationDivision (C.I.D.). Two detectivesresponded to defendant's request. At themeeting, defendant informed the detectives thathe wanted to become an informer to stop his wife's involvement in the Billings drug scene. As an expression of sincerity, he provided the names of several individualswho were involved in drug-related activities. The C.I.D. approved defendant's request to become an informant. The detectives instructed defendant to infiltrate a large drug ring in Billings and gain information for setting up a large buy of drugs. There was conflicting testimony as to the specifics of defendant's scope of authority as an informant. Defendant testified that the detectives told him to do what he had todo, (todo anything necessary), to infiltrate these drug rings and establish a large buy. In defendant's mind this included making purchases and sales of small amounts of drugs. The detectives,however, testified that defendant's role as an informantwas simply to gain information concerning drug activitiesand that C.I.D. personnel would buy the drugs once a purchase had been arranged. Detective Ford testified that defendant was asked only to provide information, not to participate indrug transactions. Shortly after defendant agreed to become an informant,he was released from jail. After his release, defendantbecame involved in a purchase and sale of drugs on January 2, 1979. Threemen, Ron Wiley, Colin Wilson, and defendant,arranged to sell a quantity ofmethamphetamine to Tony Carrier, an undercover agentworking for the C.I.D. At approximately 8:00 a.m. on January 2, 1979,Carrier received a call from Wiley, with whom Carrier had dealtbefore, and was told therewas a quantity of methamphetamine for sale. Defendant's participation in the phone callwas primarily to inform Carrier of the quality of methamphetamine, otherwiseknown as ncrank," which was available. Carrier arranged to purchase the drugs from the three men ata meeting later that day at Sambo's, a Billings restaurant. Carrier recorded the telephone conversation without a search warrant by means of a device attached to his phone. Prior to themeeting, Carrier contacted the C.I.D., which applied to the District Court for an order or search warrant to electronically monitor the sale. The District Court granted the order, and Carrier was fittedwith an electronic monitoring device.Carrier latermet defendantand the other two men at Sambo's. Two plain clothes officers were observed by the

men in the restaurant,however, and the meeting was transferred to defendant's residencewhere the details of the purchase were discussed. Carrier agreed to buy two grams of methamphetamine for approximately $65per gram. Defendant and Carrier then left for another residence where defendant purchased and picked up the drugs. Defendant gave Carrier two small packages ofmethamphetamine and took a small portion of one of the packages as his "cut." Carrier then drove defendant to his residence,returned to the C.I.D. office and turned in the packages for analysis. The state crime laboratory tested the substance in the packages and confirmed that it wasmethamphetamine. On January 19, 1979,defendantwas arrested for the criminal sale of dangerousdrugs. Prior to his arrest, defendant made no effort to contact officers regarding the sale. Defendant appearedwith counsel on January 24, 1979, and entered a plea of not guilty. On March 7, 1979,defendantmoved to suppressall evidence on the grounds of constitutional infringement of his right to privacy. The motion related to the electronic monitoring of conversations of the sale of drugs. The District Courtdenied themotion to suppressonMarch 8, 1979,and trial began on that day. At trial the State introduced the tape of the events of the sale as well as the drugs seized in the sale. Defendantwas convicted onMarch 9, 1979,and sentenced to ten years in theMontana State Prisonwith fiveyears suspended. ~efendant-appellant presents the following issues for review by this Court:1. Wasthe defendant entrapped into committing the offense forwhich he was convicted? 2. Did the DistrictCourt err indenying defense counsel's motion to suppress State's exhibits 2, 3 and 4? 3. Did the DistrictCourt err ingranting the State's motion inlimine preventing inquiry intoCarrier's criminal record when such inquirywould have allowed a determination of whether Carrierwas a duly appointed official authorized towiretap under Montana statutes? Appellant's firstissue isdirected to the charge of police entrapment. Appellant rests hisdefense on previous

cases of thisCourt: Statev. Neely (1931), 90 Mont. 199, 300 P. 561; Statev. Harney (1972), 160Mont. 55, 499 P.2d 802; Statev. Karathanos (1972), 158Mont. 461, 493 P.2d

The defense of entrapment is set forthinsection 45-2- 213, MCA, which reads: "A person isnot guiltyof an offense if his conduct is incited orinduced by a public servant or his agent for the purpose of obtaining evidence for theprosecution of such person. However, this section is inapplicable if a public servantorhis agent merely affords to such person the opportunity or facilityfor committing an offense infurtherance of criminal purpose which such person has originated." Wenote the Commission comment tothe above-quoted section states that: "An entrapment defense iscomposed of three elements: (1)the idea of committing an offense originateswith the authorities, not the suspect; (2) the authorititesactively engage the suspect tocommit the offense, and (3) such encouragement isdesigned toobtain evidence for the suspect's prosecution." Montana lawprovides: (1)criminal intent ordesign originating inthemind of thepolice officer or informer; (2) absence of criminal intentordesign originating inthemindof the accused; and (3) luring or inducing the accused into committing a crime he had no intention of committing. See Statev. Grenfell (1977), 172Mont. 345, 564 P.2d 171;State

ex rel. Hamlin v. District Court (1973), 163Mont. 16, 515 P.2d 74; Statev. Karathanos, supra. We find very little factual similarity between Grenfell and the present case. There was an informant in each case, but they played strikinglydifferent roles. In Grenfell the informant instigated the transactionby means of repeated entreaties to the defendant. In the present case, the informantdid not initiate the transaction;the sellers did. Here appellantdid not even contact the law enforcement authorities,Wiley did. In Grenfell the informant arranged the transaction to obtain evidence for the defendant's prosecution. Here, the informantwas involved in a wide-ranging undercover investigation. He knewWiley was a dealer; he did not know appellant. Here, appellantwas not the target of the informant's activities; he was caught up in those activities. However,

as this Court stated in Karathanos, 158Mont. at 470, 493 P.2d at 331: 

# ".



# . . there is a controlling distinction between inducing a person to do an unlawful act and setting a trap to catch him in the execution of a criminal design of his own conception. The fact that the Yellowstone County Sheriff's Office afforded the opportunity or the facility for the commission of the offense,does not come within the entrapment rule." To the same effect, seeHarney, supra,and State ex 

### -- rel. Hamlin, supra. The informant did not induce appellant to sell him the drugs; any inducementwould have to be attributed to anotherperson or persons. While appellant blames the C.I.D. detectives, for whom there isno counterpart in Grenfell, any similaritiesbetween the two cases end there. To establish entrapmentby the C.I.D., appellant must first show that the criminal intent originated in theminds of the authorities. Accepting for argumentpurposes appellant'sversion of what the detectives told him, at the most appellant was told to do what he had to do to make a big buy. Such a requestwould not include authorization to make

a substantial sale as appellant did here. The intentof the detectives,according to their testimony, was to utilize appellantas an informantand hopefully get one of their men into the drug scene undercover with appellant'shelp. Their testimony, if believed by the jury,

was more than adequate to show that appellant was given a clear set of instructions limiting his role in their operation. TO the extent that he went beyond those directions in becoming involved in the drug sale for which he was arrested, appellantwas acting on his own. Appellant acted with an independent intent, evidenced by his conduct before,during and after the sale. Appellant had learned of a drug source and a purchaser,but he did not contact the C.I.D. He knew of the arrangements for a noon meeting at Sambo's but did not contact the C.I.D. Upon seeing two C.I.D. detectivesat Sambo's, appellant insisted upon moving the meeting to his home. He admits thathe did nothing more than to nod to one of the officers;he did not communicate with them in any meaningful manner. After the salewhen he was home alone,appellant had an opportunity to contact the C.I.D. without fear of being exposed as aninformant. He did nothing. For the following nine days, until he was arrested,appellantmade no effort to contact the C.I.D. in any way. The day before he was arrested appellant spokewith his parole officer and was asked what he was doing for the authorities. Even at that time, he said nothing. Appellant's behavior isplainly inconsistent with his claim that he considered himself a C.I.D. operative and participated in the drug sale for that reason alone. Appellant's explanation for his behavior, that he felthe was being used by the C.I.D. and wanted nothing to do with the drug, fails to address the other facts which were brought out in the testimony at trial. For example,when appellant gave the drugs to the informer, Carrier, appellant took a "cut"out of one of the packets containing the drugs, stating in effect that thatportion was his compensation for setting up the sale. Carrier testified that appellant placed his finger on his nose and "sniffed"or inhaledwhen he took his cut. Appellant admitted that he had taken a small portion of the drugs for his own use in the manner Carrier described. Taken as a whole, the picture painted for the jury shows an opportunistic appellantwho was willing to exploit his drug scene connections as it suited him. He was willing to provide certain information to the authorities,receiving nothing in return. He was also willing to make a drug sale to someone he did not know and to conceal his involvement from the authoritieswhom he had agreed to help. There is

no evidence that his intent to sell the drugs originated in theminds of the C.I.D. detectives. There is no evidence that appellant did not originate the intent to sell thedrugs himself. And further, there isno evidence that appellantwas lured or induced to commit a crime he had no intention of committing. On this basis, he cannot establish entrapment on the factspresented to the jury. Next appellant alleges that the evidence should have been suppressed as to the tape of the conversations at Sambo's; that the drugs seizedwere a result of the January 2, 1979 incident; and that any testimony or reportsdealing with the drugs or conversations obtained by electric surveillance should be suppressed. The testimony reveals that appellantparticipated only in a portion of the telephone conversations involved herein. Wiley placed the calls. However,Carrier spoke with Wiley, Wilson and appellant individually. Wiley quoted prices for the drugs, and appellant testified that he spokewith Carrier for five minutes, twominutes, or "briefly." Appellant testified itwas Wilson, not appellant, who arranged the meeting at Sambo's, and that appellant did not discuss the price of drugs with Carrier. Carrier's testimony indicated that appellant's portion of the conversation dealt with the quality of the drugswhichwere available. Appellant could not recall whether he discussed the quality of the drugs during his conversationwith Carrier. The record indicates that Carrier recorded the telephone callmade to him by Wiley, Wilson and appellanton January 2, 1979. Carrier was informed during that conversation that the callers could supply him with a supply of drugs for a certain price, and that he could meet them later that day at Sambo's to close the deal. The tape of that callwas not introduced as evidence. The prosecution handed the tape to Detective Brennen during direct examina-tion,but itwas not introduced into evidence. The record indicates that the prosecutionmeant to refer to the tape of

a monitoring which had been begun after Carrier left the appellant and others. Defense counsel had objected to the telephone call tape because at the time itwasmade there was no request for a courtorder authorizing such a recording. That objection

was sustainedby the trial court. Later in the trial the prosecution offered to play the tape for appellant to refresh hismemory while he testified. Defense counsel objected, and the courtdenied the prosecution's request. Appellant argues thatbecause the call was recorded without authorization and without the caller's knowledge, all evidence againsthim was tainted and should have been suppressed pursuant to the doctrine of "the fruits of the poisoned tree." The purported factual basis for this contention is stated as "thepolice found out about the illegal in drug transaction/which the defendantwas purportedly involved due to an illegal recording of Carrier's phone conversations with the appellant." If that statementwere true, if the police had relied

on the recorded tape of the telephone conversation to obtain evidence against appellant, the argument could be made that such evidence should have been suppressed; however, that statement is false. The facts are that Carrier recorded a conversation thatwas wholly incidental to and did not affect the admissibility of evidence presented at trial. Carrier himself told the C.I.D. contacts of the pending drug transaction, first in a telephone call and then in person. One of the police officers with whom he spoke, Detective Brennen, testified that he learned of the transaction when Carrier called him.This Court in Statev. Brackman (1978),

# -Mont. I 582 P.2d 1216, 35 St.Rep. 1103, ruled that tape recordings and transcripts obtained through the use of an unauthorized electronicmonitoring device were properly suppressed on constitutionalgrounds. Later in State v. Jackson (1979), Mont. 

## , 589 P.2d 1009, 36 St.Rep. 169, this Court - 

### - unanimously held that Brackman was inapplicablewhere, as in this case, the State does not introduce or attempt to introduce evidence obtained through the use of an unauthorized electronic surveillanceunit. We find Jackson to be controlling on the facts of this case. Wiley and Wilson gave Carrier most of the information concerning the proposed drug sale during the telephone conversation, including the quantity available, itsprice and the location of the meeting. This information, without appellant's discussion of the quality of the drugs, led to Carrier's monitored participation in the transaction and his purchase of the drugs which

were introduced at trial. 

### In alleging that the recording of the conversation tainted all evidence, appellant relied on and invokes Wiley's and Wilson's privacy rights rather than his own. Here, appellant lacks standing to do so, and he cannot assert another's constitutionalright. See State v. Smith

(1975), 168Mont. 93, 99, 541 P.2d 351, 354; State v. Braden (1973),163Mont. 124, 127, 515 P.2d 692, 694. The next issue raised iswhether the federal statutes prohibit the monitoring and tape recording of a conversation in which one of the participants consents to the monitoring and the recording. Appellant argues that the interception of oral communicationswas not authorized pursuant to 18 U.S.C. 582516 and 2518 in this case.The general rule isthat it isimpermissible forpolice officers tointercept, transmit orrecord private conversations; however, if one of the parties to the conversation consents, even an informer, such actions are legal. People

v. Patrick (Mich. 1973), 208 N.W.2d 604; United Statesv. Mendoza (U.S.C.A. 5th, 1978), 574 F.2d 1373rehearing denied 579 F.2d 644. This is true aslong asthe willof the consenting party has notbeen subjected tooverbearing pressure from the authorities. United Statesv. Baynes (Pa. 1975), 400 F.Supp. 285, aff'd. 517 F.2d 1399. The sections relied on by the appellant, 18U.S.C. SS2516 and 2518, do not apply here because they arepart of Title I11 of the Omnibus Crime Control and Safe StreetsAct of 1968, 18 U.S.C. SS2510 through 2520. That actdoes not pertain to, prohibit orregulate monitoring and recording conversations with the consent of one of theparties to the conversation. Section 2511(2)(c)provides: "It shallnot be unlawful under this chapter for a person acting under color of law to intercept a wireororalcommunication, where such person isa party tothe communication orone of the parties tothe communication has given prior consent to such interception." The reasons for allowing police officials tomonitor and record conversations where one of the parties consents is set forthinUnited Statesv. White (1970), 401 U.S. 745, 751, 91 S.Ct. 1122, 1125-26, 28 L.Ed.2d 453, 458, wherein theUnited StatesSupreme Court stated: "Concededly a police agentwho conceals his police connectionsmay writedown for official use his conversations with a defendant and testify concerning them, without a warrant authorizing hisencounters with the defendant and without otherwiseviolating the latter's FourthAmendment rights. Hoffa v. United States, 385 U.S. at300-303. For constitutional purposes, no different result isre-quired if the agent instead of immediately reporting and transcribing his conversations with defendant, he either (1) simultaneously records them with electronic equipment which he is carrying on his person. Lopezv. United States, 373 U.S. 427 (1963); (2)or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. (Citing a case.) If the conduct and revelationsof an agent operating without electronic equipmentdo not invade thedefendant'sconstitutionally justifiable expectationsof privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendantnecessarily risks." The attorney general informs us that county attorneys in this state, since our decision in Statev. Brackman, supra, follow the practice of getting a court order allowing electronic interceptionormonitoring of criminal suspects before the same is undertaken. We agree with this procedure. Moreover, our decision in Brackman is in accord with what we have quoted from United Statesv. White, supra, where, as this Court held, there was a constitutionally justifiable expectation of privacy on the part of Brackman. Since the authorities here obtained the consent of the District Court to themonitoring and recording of appellant's conversation on the basis of a participant's consent, and since appellant could have no reasonable expectation that the person he was dealingwith in this drug-related matter was not in fact an informer, no interest legitimately protected by the FourthAmendment is involved (United States

v. White, 401U.S. at 740), and the monitoring and recording of the conversationwas permissible even under state law. Section 45-8-213(1)(c)

### ,MCA.Once it is established that the tape recordings are permissible under federal and state law, even though they constituted an interceptof appellant's conversation, they

are subject to the ordinary rules of admissibility. We said in Statev. Brubaker (1978), 

### -Mont. 

## , 602 P.2d 974,

"One should not be confused about the admissibility of evidence simply because it is electronically recorded or preserved. Such evidence is subject to the same tests for admissibility as the direct evidence of eyewitnesses or the testimony of listeners to oral statements. 

# .. Then the tape recorded statementsmay be regarded as independent direct evidence or as corroborative evidence. In either case, the tests for admissibility are the same. Cape v. United States (9th Cir. 1960), 283 F.2d 430. In this case

# . . . it wasmerely direct evidence of statements made by the defendant 

# . .

# . Since the [informer] could have testified directly to such statements

# ... the recorded statements are themselves admissible. In fact, the tape is a more reliable record than the oral testimony of the [informer]given the fraility of human recollection. We note here that a proper foundation for the admission of the tape was laid by the prosecution. Again, the question of admissibility of this type of evidence is left to the sound discretion of the trial judge. 29 Am.Jur.2d 495,Evidence, 5436. No question ispresented here as to the integrity of the recording, that is, regarding its recording quality or audibility.''

(Bracketedmaterial inserted.) The tape recordings therefore are not subject to suppression. The drugs introduced into evidence did not derive from the monitoring and recording that occurred. The record indicates that the law enforcement officials obtained the drugs through an informant,not through monitoring and recording. The monitoring and recording were incidental to, not the cause of, the "seizureof the drugs". The informant

was the independent source of the information concerning the transaction of the drugs themselves, and the fact that themonitoring and recording occurred does not affect the admissibility of the evidence. In a recent case, State v. Ribera (1979) Mont. 

## , 597 P.2d 1164, 1169, 36 St.Rep. 1292, 1298-99, this Court recognized and discussed the question thatmust be answered when an illegal seizure is alleged--that is,whether the initial illegalitywas a cause in fact of the discovery of the evidence. In that case,we cited Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. Here the monitoring and recording

was not a cause of the discovery of the evidence; therefore, the exclusionary rule does not apply even if the monitoring and recording were to be deemed unlawful. The drugs were properly admitted by the DistrictCourt. The final issue iswhether the District Court erred in granting the prosecution's motion in limine. Appellant argues that the District Court committed reversible error in prohibiting the defense's inquiry into Carrier's prior criminal behavior and his qualifications to be a Big Horn County Deputy Sheriff. Appellant contends these matters were relevantbecause the desired testimony would have established that Carrier could not legally serve as a deputy sheriff and, therefore, any interpretation on his part of a conversationwould be a criminal act under section 45-8-213,MCA, which provides in relevantpart: "(1) 

# . . . a person commits the offense of violating privacy in communications if he knowingly or purposely:

"(c) records or causes to be recorded any conversation by use of a hidden electronic or mechanical device which reproduces a human conversationwithout the knowledge of all parties to the conversation. Subsection (c) does not apply to duly elected or appointedpublic officials or employees when the transscription or recording isdone in the performance of officialduty, to persons speaking atpublic meetings, or to persons given warning of the recording." Here,Carrier was a public employee, if not a public official, and his official duty involved maintaining contact with persons involved in the drug scene. By express terms of the statute, Carrier is an exemptperson from the provisions of the act. See Brackman, supra. In addition, itwould appear that the evidence appellant sought to get before the jury--Carrier's conviction of

a criminal offense--is prohibited under Rule 609,Mont.R.Evid. The District Court properly granted the motion to suppress. Our first opinion in this cause, dated November 20, 1979, 36 St.Rep. 2027, iswithdrawn, and this opinion substituted in its stead. For the foregoing reasons, the judgment of the District Court is affirmed.

4

We concur:

Chief ~ustice

Justices 

# l

Mr. Justice Daniel J. Shea concurs,and will file a separate concurring opinion later.