No. 92-181 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

JOHN AND JANE DOE, 

Plaintiffs and Appellants, 

THE STATE OF MONTANA, acting through 

its Department of Revenue, 

Defendant and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Thomas C. Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James T. Ranney, Attorney at Law, Missoula, Montana 

For Respondent: 

Allen B. Chronister; Chronister, Driscoll & Moreen, 

Helena, Montana 

D Submitted on Briefs: July 30, 1992 
Justice Karla M. Gray delivered the Opinion of the Court. 

John and Jane Doe appeal from an order of the First Judicial 

District Court, Lewis and Clark County, dismissing their complaint 

for failure to state a claim under Rule 12(b) (6), M.R.Civ.P. We 

affirm. 

The sole issue on appeal is whether the District Court erred 

in granting the defendant's motion to dismiss. 

In 1989, the Department of Revenue investigated John and Jane 

Doe to determine whether they failed to report business income 

while on public assistance. Agents from the Department of Revenue 

obtained a warrant to search the Doe home for business and 

financial records and other evidence relating to the sale of 

insurance and dealing in firearms. 

During the subsequent search, the agents entered the Does' 

bedroom closet. There, they found records relating to the sale of 

firearms, They also found a standard pharmacy photoprocessing 

envelope which appeared to contain photographs. The agents opened 

the envelope and examined the photographs. Several of the 

photographs depicted Jane Doe nude and the couple engaged in sexual 

activity. One photograph depicted the Doest children helping John 

Doe remove his boots. Doe was partially disrobed, with either his 

hand or penis visible. 

The latter photograph caused the Department of Revenue agents 

to suspect child sexual abuse or child pornography; they summoned 

Missoula police officers. The police officers contacted the 
Missoula County Attorney's office and were informed that the 

photographs did not warrant criminal prosecution. A iss sou la 

officer notified Child Protective Services of the possible child 

abuse pursuant to 5 41-3-201, MCA. Child Protective Services 

subsequently interviewed the Does1 children at school. The 

interview revealed no indication of child abuse or pornography. 

On August 2, 1991, John and Jane Doe filed a complaint for 

invasion of privacy. They alleged that the Department of Revenue 

agents exceeded the scope of the warrant when they opened and 

searched the envelope. On February 21, 1992, the District Court 

granted the defendantls motion to dismiss for failure to state a 

claim upon which relief can be granted. The Does appeal. 

Did the District Court err in granting the defendant's motion 

to dismiss the complaint for failure to state a claim? 

A district court's dismissal of a complaint for failure to 

state a claim is governed by well-established principles. A 

complaint should not be dismissed unless it appears that the 

plaintiff is entitled to no relief under any set of facts which 

could be proved in support of the claim. Furthermore, the district 

court must construe the complaint in the light most favorable to 

the plaintiff; all allegations of fact in the complaint are taken 

as true. Morgan v. City of Harlem (1987), 227 Mont. 435, 437, 739 

P.2d 491, 492-93. 

While the ~istrict Court discussed the Inplain viewvi exception 

to the warrant requirement, it dismissed the Does1 complaint based 

on its conclusion that the agents did not exceed the scope of the 

search warrant. The Does contend, first, that the search of the 

3 
photoprocessing envelope exceeded the scope of the warrant and, 

second, that two of the requirements necessary to invoke the I1plain 

vieww doctrine were not met, Finally, the Does argue that an 

allegation that three of their photographs were seized and not 

returned was not addressed by the District Court. 

The District Court determined that the agents did not exceed 

the scope of the warrant when they examined the contents of the 

photoprocessing envelope, relying on united States v. Ross (1982), 

456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572. While the facts in 

Ross involve the scope of a search conducted under the automobile 

exception to the warrant requirement, the Supreme Court described 

therein the scope of a search conducted under a valid search 

warrant: 

A lawful search of fixed premises generally extends to 

the entire area in which the object of the search may be 

found and is not limited by the possibility that separate 

acts of entry or opening may be required to complete the 

search. Thus, a warrant that authorizes an officer to 

search a home for illegal weapons also provides authority 

to open closets, chests, drawers, and containers in which 

the weapon might be found. 

Ross, 456 U.S. at 820-21. 

Here, the agents conducted a search of the Doesf residence 

pursuant to a warrant. The warrant authorized the agents to search 

the residence for business and financial documents. Under Ross, 

they were entitled to search every place in which business and 

financial documents or evidence might be found. The search led the 

agents to the bedroom closet, where they found documents and items 

relating to the Doest criminal activity. The photoprocessing 

envelope also was located in the closet. Given the warrant's focus 
on documentation of suspected illegal activity, the envelope may 

have contained photographic evidence. Thus, under Ross, the 

envelope did not differ from the closet; it constituted merely 

another container in which evidence of the illegal activity might 

be found. Under these circumstances, the warrant was sufficiently 

broad to authorize the agents to open the envelope and review the 

photographs. We conclude that the examination of the contents of 

the envelope was within the scope of the warrant. 

The Does contend that Justice Stewart's concurring opinion in 

Stanley v. Georgia (1969), 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 

542, is controlling precedent for their argument that the agents 

exceeded the scope of the warrant by examining the photographs 

individually. In Stanley, officers obtained a warrant to search a 

residence and to seize equipment, records and other material used 

in or derived from an illegal wagering business. In searching a 

desk drawer, they found film and proceeded to view it. On the 

basis of the contents of the film, the defendant was charged with, 

and convicted of, knowing possession of obscene material. 

The Supreme Court reversed the conviction. Concurring in the 

result, Justice Stewart determined that the officers exceeded the 

authority of the warrant when they seized and viewed the film. He 

characterized the officers' conduct as a general, exploratory 

search which led to a seizure of an item not described in the 

warrant. 

Stanlev is neither controlling nor persuasive here. 

Initially, we note that the Stanley majority reversed the 
conviction based on the First, rather than the Fourth, Amendment; 

Stanlev held that "the First and Fourteenth Amendments prohibit 

making mere private possession of obscene material a crime." 

Stanley, 394 U.S. at 568, Concurring opinions do not constitute 

controlling precedent. 

In addition, if Justice Stewart's concurring opinion is 

relevant at all, it supports the State's position that the agents 

acted within the scope of the warrant. Unlike the officers in 

Stanlev, the agents in the present case did not conduct a general 

search that was unrelated to the purpose of the warrant; the 

photoprocessing envelope was found in the closet with other 

evidence of the Doesp criminal activity. Moreover, in Stanley, the 

film could not reasonably have contained any of the items described 

in the warrant; here, the envelope may have contained photographic 

documentation relating to the illegal dealing in firearms of which 

the Does were suspected. The fact that it contained merely private 

photographs of a personal nature could not have been known to the 

agents in advance. 

We hold that, under the circumstances of this case, the 

opening of the envelope and examination of the photographs did not 

exceed the scope of the warrant. Based on this holding, we need 

not address the "plain vieww doctrine. 

The Doesf final argument is that an allegation that three of 

their photographs were seized and not returned was not addressed by 

the ~istrict Court. While not so stated, presumably the Does 

intend this argument to establish error by the District Court in 
dismissing their complaint. The argument is flawed. 

The thrust of the Does' complaint is a single invasion of 

privacy via the agents1 initial intrusion into the photoprocessing 

envelope and review of individual photographs. The one sentence 

contained in the five-plus page complaint on which the Does 

apparently premise this final argument states that they discovered, 

after the search, that three photographs were missing. The 

sentence is not a factual allegation that any person or entity 

against whom the complaint is brought actually seized the 

photographs. This is insufficient to put the defendants or the 

District Court on notice that they were alleging a specific seizure 

by one or more named defendants. Moreover, in their brief in 

opposition to the motion to dismiss before the District Court, the 

Does stated: 

[Tlhe crux of our complaint is an allegation of a single 

invasion of privacy via the initial illegal intrusion 

into the Plaintiffs1 personal packet of photographs, with 

the subsequent actions all being primarily relevant to 

the issue of damages. . . . 

Under these circumstances, the cited sentence in the Doest 

complaint does not constitute an independent basis for their claim 

of invasion of privacy. The District Court did not err in 

dismissing the complaint. 

Affirmed. 

We concur: 
Justices 
Justice William E. Hunt, Sr., dissenting. 

I dissent. There is nothing more basic to the subject of 

privacy than the nude body. "The desire to shield one's unclothed 

figure from view of strangers, and particularly strangers of the 

opposite sex, is impelled by elementary self-respect and dignity." 

York v. Story (9th Cir. 1963), 324 F.2d 450, 455, cert. denied, 376 

U.S. 939 (1964). 

In my opinion, Justice Stewart9 s concurring opinion in Stanlev 

is especially applicable to the facts of this case. In this case, 

as in Stanlev, the Department of Revenue agents were acting under 

the authority of the warrant when they opened the closet door. 

However, they exceeded that authority when they found and seized 

the photographs. In no way did the warrant indicate that 

photographs were to be searched. The agents rummaged through the 

photographs for a considerable amount of time, even though the 

nature of the photography should have been readily apparent. The 

agents conducted an exploratory search which exceeded the bounds of 

the warrant and invaded the privacy of the Does. 

A week after the search, in the presence of a local newspaper 

reporter, police officers openly discussed and joked about the 

photographs. In addition, an official from Child Protective 

Services told the children's grade school principal of the alleged 

abuse in order to elicit his permission to interview the children. 

The Does have been embarrassed and humiliated, and their reputation 

tarnished, if not ruined. 
I would reverse the District Court and allow the case to 

proceed on the merits. 

Justice Terry N. Trieweiler concurs in the foregoing dissent.