### No. 92-181 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

JOHNAND JANE DOE, Plaintiffsand Appellants,

THE STATE OF MONTANA, acting through its Department of Revenue, Defendant and Respondents.

APPEAL FROM: District Court of the FirstJudicial District, In and for the County of Lewis & 

### Clark, The Honorable Thomas C. Honzel, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: James

### T. Ranney, Attorney at Law,Missoula,Montana For Respondent: Allen B. Chronister; Chronister, Driscoll & 

### Moreen, Helena,Montana 

# D Submitted on Briefs: July 30, 1992Justice 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 iswhether the District Court erred in granting the defendant's motion to dismiss. In 1989, the Department of Revenue investigatedJohnand Jane Doe to determine whether they failed to report business income while onpublic assistance. Agents from the Departmentof 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 containphotographs. The agents opened the envelope and examined the photographs. Several of the photographs depictedJaneDoe

### nude and the coupleengaged 

### in sexual activity. One photographdepicted the Doestchildren 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 theMissoula 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 defendantlsmotion 

### to dismiss for failure to state a claim upon which relief can be granted. The Does appeal. Did the District Court 

### err 

### ingranting 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 couldbeproved in supportof the claim. Furthermore, thedistrict 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), 227Mont. 435, 437, 739 P.2d 491, 492-93. While the ~istrict Courtdiscussed the Inplain viewvi exception to thewarrant requirement, it dismissed the Does1complaint 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 3photoprocessing envelope exceeded the scope of the warrant and, second, that two of the requirements necessaryto 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 onunited Statesv. 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 inwhich the object of the searchmay be foundand is not limitedby thepossibilitythat separate acts of entry or openingmay be required to complete 

### the search. Thus, a warrant that authorizes an officer to searchahome for illegal weapons also provides authority to openclosets, chests,drawers,and containers inwhich the weapon might be found. Ross, 456 U.S. at 820-21. 

### Here, the agents conducted a search 

### of the Doesf residence pursuant to awarrant. Thewarrant authorizedthe 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 evidencemight 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 inthe closet. Given thewarrant'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 inwhich evidence of the illegal activitymight be found. Under these circumstances, thewarrant 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 Stanleyv. 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 awarrant to searcha 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 chargedwith, and convicted of, knowing possession of obscene material. The SupremeCourt reversed the conviction. Concurring in the result, Justice Stewart determined that the officers exceeded the authority of thewarrant 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 theconviction 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 controllingprecedent. 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 thepresent 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 Doespcriminalactivity. Moreover, 

### in Stanley,the film couldnot reasonably have containedany of the items described in thewarrant; here, the envelopemay have contained photographic documentation relating to the illegaldealing in firearmsofwhich theDoes 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 thephotographs did not exceed the scope of the warrant. Based on this holding, we need not address the "plainviewwdoctrine. The Doesffinal argument is that an allegation that three of theirphotographs were seized andnot returnedwasnot addressedby the ~istrictCourt. 

### 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 privacyvia the agents1initial 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 thattheydiscovered, 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 onnotice that theywere alleginga specific seizure by one or more named defendants. Moreover, in their brief in opposition to themotion to dismiss before the District Court,the Does stated: [Tlhecrux of our complaint is an allegationof a single invasion of privacy via the initial illegal intrusion into the Plaintiffs1personalpacket ofphotographs,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 constitutean 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. "Thedesire to shield one's unclothed figure from view of strangers, and particularly strangers of the opposite 

### sex, is 

### impelledby 

### elementary self-respectand dignity." York v. Story (9th Cir. 

### 1963), 324 F.2d 450, 455, cert.denied, 376 U.S. 

### 939 (1964). 

### In

### my opinion, JusticeStewart9 s

### concurringopinion inStanlev 

### 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 agentsconductedanexploratory searchwhichexceeded thebounds of the warrant and invaded the privacy of the Does. A week 

### after the search, 

### inthepresence 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 hispermission to interview the children. TheDoes

### havebeen

### embarrassed

### andhumiliated, 

### and 

### theirreputation tarnished, if not ruined.I would reverse the District Court and allow the case to proceed on themerits.

Justice Terry N. Trieweiler concurs in the foregoing dissent.