No. 14807 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS. 

ERNEST C. HANLEY, 

Defendant and Appellant. 

Appeal from: District Court 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 argument before this 

Court on January 21, 1980, from which this opinion follows. 

Defendant Hanley appeals from his conviction on a 

felony charge of sale of dangerous drugs. Trial was held in 

the District Court, Yellowstone County. 

While on parole as a result of a previous drug conviction, defendant was arrested and placed in the Yellowstone 

County jail. The arrest came as a result of a complaint by 

his wife. Shortly after his incarceration, defendant requested a meeting with detectives from the Yellowstone 

County Criminal Investigation Division (C.I.D.). 

Two detectives responded to defendant's request. At 

the meeting, defendant informed the detectives that he 

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 individuals who 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 to 
do, (to do 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 informant was simply to gain information concerning drug activities and 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 in drug transactions. Shortly 

after defendant agreed to become an informant, he was released from jail. 

After his release, defendant became involved in a 

purchase and sale of drugs on January 2, 1979. Three men, 

Ron Wiley, Colin Wilson, and defendant, arranged to sell a 

quantity of methamphetamine to Tony Carrier, an undercover 

agent working 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 dealt before, and was told there was a 

quantity of methamphetamine for sale. Defendant's participation in the phone call was primarily to inform Carrier of 

the quality of methamphetamine, otherwise known as ncrank," 

which was available. Carrier arranged to purchase the drugs 

from the three men at a 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 the meeting, 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 fitted with an 

electronic monitoring device. 
Carrier later met defendant and 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 residence where the details of the 

purchase were discussed. Carrier agreed to buy two grams of 

methamphetamine for approximately $65 per gram. Defendant 

and Carrier then left for another residence where defendant 

purchased and picked up the drugs. Defendant gave Carrier 

two small packages of methamphetamine 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 was methamphetamine. 

On January 19, 1979, defendant was arrested for the 

criminal sale of dangerous drugs. Prior to his arrest, defendant made no effort to contact officers regarding the 

sale. Defendant appeared with counsel on January 24, 1979, 

and entered a plea of not guilty. On March 7, 1979, defendant moved to suppress all 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 Court denied the motion 

to suppress on March 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. Defendant was 

convicted on March 9, 1979, and sentenced to ten years in 

the Montana State Prison with five years suspended. 

~efendant-appellant presents the following issues for 

review by this Court: 
1. Was the defendant entrapped into committing the offense for which he was convicted? 

2. Did the District Court err in denying defense 

counsel's motion to suppress State's exhibits 2, 3 and 4? 

3. Did the District Court err in granting the State's 

motion in limine preventing inquiry into Carrier's criminal 

record when such inquiry would have allowed a determination 

of whether Carrier was a duly appointed official authorized 

to wiretap under Montana statutes? 

Appellant's first issue is directed to the charge of 

police entrapment. Appellant rests his defense on previous 

cases of this Court: State v. Neely (1931), 90 Mont. 199, 

300 P. 561; State v. Harney (1972), 160 Mont. 55, 499 P.2d 

802; State v. Karathanos (1972), 158 Mont. 461, 493 P.2d 

The defense of entrapment is set forth in section 45-2- 

213, MCA, which reads: 

"A person is not guilty of an offense if his 

conduct is incited or induced by a public 

servant or his agent for the purpose of obtaining evidence for the prosecution of such 

person. However, this section is inapplicable 

if a public servant or his agent merely affords 

to such person the opportunity or facility for 

committing an offense in furtherance of criminal 

purpose which such person has originated." 

We note the Commission comment to the above-quoted section 

states that: 

"An entrapment defense is composed of three 

elements: (1) the idea of committing an offense originates with the authorities, not 

the suspect; (2) the authoritites actively 

engage the suspect to commit the offense, and 

(3) such encouragement is designed to obtain 

evidence for the suspect's prosecution." 

Montana law provides: (1) criminal intent or design originating in the mind of the police officer or informer; (2) 

absence of criminal intent or design originating in the mind 
of the accused; and (3) luring or inducing the accused into 

committing a crime he had no intention of committing. See 

State v. Grenfell (1977), 172 Mont. 345, 564 P.2d 171; State 

ex rel. Hamlin v. District Court (1973), 163 Mont. 16, 515 

P.2d 74; State v. Karathanos, supra. 

We find very little factual similarity between Grenfell 

and the present case. There was an informant in each case, 

but they played strikingly different roles. In Grenfell the 

informant instigated the transaction by means of repeated 

entreaties to the defendant. In the present case, the 

informant did not initiate the transaction; the sellers did. 

Here appellant did 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 

informant was involved in a wide-ranging undercover investigation. He knew Wiley was a dealer; he did not know 

appellant. 

Here, appellant was not the target of the informant's 

activities; he was caught up in those activities. However, 

as this Court stated in Karathanos, 158 Mont. 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, see Harney, supra, and State ex -- rel. 

Hamlin, supra. 

The informant did not induce appellant to sell him the 

drugs; any inducement would have to be attributed to another 
person or persons. While appellant blames the C.I.D. detectives, for whom there is no counterpart in Grenfell, any 

similarities between the two cases end there. 

To establish entrapment by the C.I.D., appellant must 

first show that the criminal intent originated in the minds 

of the authorities. Accepting for argument purposes appellant's version 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 request would not include authorization to make 

a substantial sale as appellant did here. 

The intent of the detectives, according to their testimony, was to utilize appellant as an informant and hopefully 

get one of their men into the drug scene undercover with 

appellant's help. 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, 

appellant was 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. detectives at Sambo's, appellant insisted 

upon moving the meeting to his home. He admits that he did 

nothing more than to nod to one of the officers; he did not 

communicate with them in any meaningful manner. After the 

sale when he was home alone, appellant had an opportunity to 

contact the C.I.D. without fear of being exposed as an 
informant. He did nothing. For the following nine days, 

until he was arrested, appellant made no effort to contact 

the C.I.D. in any way. The day before he was arrested 

appellant spoke with his parole officer and was asked what 

he was doing for the authorities. Even at that time, he 

said nothing. 

Appellant's behavior is plainly 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 felt he 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 that portion was his compensation for 

setting up the sale. Carrier testified that appellant 

placed his finger on his nose and "sniffed" or inhaled when 

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 appellant who 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 authorities whom he had agreed to help. There is 

no evidence that his intent to sell the drugs originated in 

the minds of the C.I.D. detectives. There is no evidence 

that appellant did not originate the intent to sell the 
drugs himself. And further, there is no evidence that 

appellant was lured or induced to commit a crime he had no 

intention of committing. On this basis, he cannot establish 

entrapment on the facts presented 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 seized were a result of the January 

2, 1979 incident; and that any testimony or reports dealing 

with the drugs or conversations obtained by electric surveillance should be suppressed. 

The testimony reveals that appellant participated 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 spoke with Carrier 

for five minutes, two minutes, or "briefly." Appellant 

testified it was 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 drugs which were available. Appellant could 

not recall whether he discussed the quality of the drugs 

during his conversation with Carrier. 

The record indicates that Carrier recorded the telephone call made to him by Wiley, Wilson and appellant on 

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 

call was not introduced as evidence. The prosecution 

handed the tape to Detective Brennen during direct examina- 
tion, but it was not introduced into evidence. The record 

indicates that the prosecution meant 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 it was made there was no request for a 

court order authorizing such a recording. That objection 

was sustained by the trial court. Later in the trial the 

prosecution offered to play the tape for appellant to refresh his memory while he testified. Defense counsel objected, and the court denied the prosecution's request. 

Appellant argues that because the call was recorded 

without authorization and without the caller's knowledge, 

all evidence against him 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 "the police found out about the illegal 

in 

drug transaction/which the defendant was purportedly involved due to an illegal recording of Carrier's phone conversations with the appellant." 

If that statement were 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 that was 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 State v. 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 

electronic monitoring device were properly suppressed on 

constitutional grounds. Later in State v. Jackson (1979), 

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

unanimously held that Brackman was inapplicable where, as in 

this case, the State does not introduce or attempt to introduce evidence obtained through the use of an unauthorized 

electronic surveillance unit. 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, its price 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 constitutional right. See State v. Smith 

(1975), 168 Mont. 93, 99, 541 P.2d 351, 354; State v. 

Braden (1973), 163 Mont. 124, 127, 515 P.2d 692, 694. 

The next issue raised is whether 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 communications was not authorized pursuant to 18 

U.S.C. 582516 and 2518 in this case. 
The general rule is that it is impermissible for police 

officers to intercept, transmit or record 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 States v. 

Mendoza (U.S.C.A. 5th, 1978), 574 F.2d 1373 rehearing denied 

579 F.2d 644. This is true as long as the will of the 

consenting party has not been subjected to overbearing 

pressure from the authorities. United States v. Baynes (Pa. 

1975), 400 F.Supp. 285, aff'd. 517 F.2d 1399. The sections 

relied on by the appellant, 18 U.S.C. SS2516 and 2518, do 

not apply here because they are part of Title I11 of the 

Omnibus Crime Control and Safe Streets Act of 1968, 18 

U.S.C. SS2510 through 2520. That act does not pertain to, 

prohibit or regulate monitoring and recording conversations 

with the consent of one of the parties to the conversation. 

Section 2511 (2) (c) provides: 

"It shall not be unlawful under this chapter 

for a person acting under color of law to 

intercept a wire or oral communication, where 

such person is a party to the communication 

or one of the parties to the communication 

has given prior consent to such interception." 

The reasons for allowing police officials to monitor 

and record conversations where one of the parties consents 

is set forth in United States v. White (1970), 401 U.S. 745, 

751, 91 S.Ct. 1122, 1125-26, 28 L.Ed.2d 453, 458, wherein 

the United States Supreme Court stated: 

"Concededly a police agent who conceals his 

police connections may write down for official 

use his conversations with a defendant and 

testify concerning them, without a warrant 

authorizing his encounters with the defendant 

and without otherwise violating the latter's 

Fourth Amendment rights. Hoffa v. United 

States, 385 U.S. at 300-303. For constitutional purposes, no different result is re- 
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. Lopez v. 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 revelations of an 

agent operating without electronic equipment do 

not invade thedefendant'sconstitutionally justifiable expectations of 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 defendant necessarily risks." 

The attorney general informs us that county attorneys 

in this state, since our decision in State v. Brackman, 

supra, follow the practice of getting a court order allowing 

electronic interception or monitoring 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 States v. 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 the monitoring 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 dealing with in this drug-related 

matter was not in fact an informer, no interest legitimately 

protected by the Fourth Amendment is involved (United States 

v. White, 401 U.S. at 740), and the monitoring and recording 

of the conversation was 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 intercept of appellant's conversation, they 

are subject to the ordinary rules of admissibility. We said 

in State v. 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 

statements may 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 was merely 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 is presented here as to 

the integrity of the recording, that is, regarding its recording quality or audibility.'' 

(Bracketed material 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 "seizure of the drugs". The informant 

was the independent source of the information concerning the 

transaction of the drugs themselves, and the fact that the 
monitoring 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 that must be answered when an illegal seizure is 

alleged--that is, whether the initial illegality was 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 District Court. 

The final issue is whether 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 relevant because 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 conversation would be a criminal act under section 

45-8-213, MCA, which provides in relevant part: 

"(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 

conversation without the knowledge of all 

parties to the conversation. Subsection (c) 

does not apply to duly elected or appointed 
public officials or employees when the transscription or recording is done in the performance 

of official duty, to persons speaking at public 

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 exempt person from the provisions of the act. See Brackman, supra. 

In addition, it would 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, is withdrawn, and this opinion substituted in its stead. 

For the foregoing reasons, the judgment of the District 

Court is affirmed. 

4 

We concur: 

Chief ~ustice 

l Justices 

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

concurring opinion later.