96-358

 No. 96-358

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

1997

STATE OF MONTANA,

 Plaintiff and Respondent,

v.

SCOTT SCHEETZ,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

 In and for the County of Yellowstone,

 The Honorable G. Todd Baugh, Judge presiding.

COUNSEL OF RECORD:

 For Appellant:

 Brad L. Arndorfer, Arndorfer Law Firm,

 Great Falls, Montana

 For Respondent:

 Hon. Joseph P. Mazurek, Attorney General;

 Patricia J. Jordan, Assistant Attorney General;

 Helena, Montana

 Dennis Paxinos, Yellowstone County Attorney;

 Dale Mrkich, Deputy County Attorney;

 Billings, Montana

 Submitted on Briefs: September 11, 1997

 Decided: December 5, 1997

Filed:

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 __________________________________________

 Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

 Scott Scheetz was charged in the District Court for the Thirteenth Judicial 

District

in Yellowstone County with criminal possession of dangerous drugs with intent to sell

after a drug-detecting canine led officers to search his airline luggage, in which 

they

discovered eighteen pounds of marijuana. He filed a motion to suppress the seized

evidence. The District Court denied his motion. Scheetz pled guilty and now appeals

the District Court's denial of his motion to suppress. We affirm the order and 

judgment

of the District Court.

 The sole issue on appeal is whether the use of a drug-detecting canine to sniff

luggage which has been entrusted to an airline constitutes a search in violation of a

person's right to privacy guaranteed by Article II, Sections 10 and 11, of the 

Montana

Constitution.

 FACTUAL BACKGROUND

 On February 9, 1995, Officer Lawrence Leighton of the Tucson Airport Authority

Police Department noticed Scott Scheetz and two other men acting nervously prior to

checking in for their flight. The individuals became cautious when they were walking

toward the check-in counter and noticed the uniformed Leighton. Rather than proceed

directly to the counter where no one else was waiting in line and where they could 

have

checked in immediately, they became "quite serious" and retreated to some nearby

couches. They talked among themselves and "continued to appear nervous." Two of the

individuals walked away and left Leighton's view for a minute or two, while the third

remained at the couch with a large, new, hard-sided suitcase. All of the men 

avoided eye

contact with Leighton throughout his observations of them.

 Fifteen minutes prior to their flight's departure, the three men checked in at 

the

counter and checked the suitcase. Leighton, who had been with the Airport Authority

Police for five years and investigated approximately two hundred narcotics cases, and

who had received advanced officer training in narcotics recognition, suspected that 

the

three men were trafficking narcotics. He inspected the luggage in the baggage area

immediately after the men checked it. He found that the luggage tag listed only the 

name

of John Olson and a telephone number. Leighton also investigated the men's travel 

plans

and found that they had been made through a travel agent very shortly before the 

flight,

and that the men had been in Tucson for approximately two days. 

 Based on his experience and the men's behavior, Leighton contacted the Billings

Police Department and informed them of his suspicion that the men were trafficking

narcotics. He provided descriptions of the men, their flight number, and their time 

of

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arrival in Billings. The men, while traveling, were going by the names of John 

Olson,

Chris Anderson, and Bob Jones. When Detective Steve Cwalinski of the Billings Police

traced the phone number on the luggage tag, he found that it was for a Billings

restaurant.

 Officer Cwalinski, accompanied by a drug-detecting canine and its handler and a

DEA agent, met the flight when it landed at the Billings airport. Before the 

luggage was

loaded onto the carousel, the canine was directed to sniff the luggage from the 

flight. 

The canine's reaction indicated that the suitcase matching the description given by

Leighton contained drugs.

 Cwalinski identified two men matching the description given by Leighton as they

waited near the carousel for their luggage. One of the two men took the suitcase 

that had

been identified by the canine and Leighton when it came off the carousel. He removed

the tags and threw them in the trash. Cwalinski retrieved the discarded tags, which 

listed

John Olson and the phone number, approached the men, and identified himself as an

officer. He advised them of his investigation and escorted them to an office in the

airport.

 After separating the men, the officers advised Scheetz of his Miranda rights. 

Scheetz, who had removed the suitcase from the carousel, identified himself as John

Olson, and initially refused to give his consent to search his suitcase, although he

eventually admitted that he had drugs in the suitcase, and was placed under arrest. 

The

officers obtained a search warrant for the suitcase and found that it contained

approximately eighteen pounds of marijuana.

 On March 1, 1995, the Yellowstone County Attorney filed an information charging

Scheetz with criminal possession of dangerous drugs with intent to sell and criminal

possession of drug paraphernalia. On August 8, 1995, Scheetz filed a motion to 

suppress

the evidence against him, based upon what he asserted was the State's invasion of his

privacy by the use of a drug-detecting canine. After briefing and a hearing, the 

District

Court concluded that the use of a drug-detecting canine was not a search and,

accordingly, denied the motion. On March 6, 1996, Scheetz pled guilty to the 

charges,

but reserved his right to appeal the denial of his motion to suppress. The District 

Court

accepted the plea and sentenced Scheetz to ten years of imprisonment, with five years

suspended. 

 DISCUSSION

 Does the use of a drug-detecting canine to sniff luggage which has been 

entrusted

to an airline constitute a search in violation of a person's right to privacy 

guaranteed by

Article II, Sections 10 and 11, of the Montana Constitution?

 We review a district court's denial of a motion to suppress to determine whether

the court's interpretation and application of the law is correct. See State v. 

Graham

(1995), 271 Mont. 510, 512, 898 P.2d 1206, 1207-08; State v. Stubbs (1995), 270 Mont.

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364, 368, 892 P.2d 547, 550.

 The use of drug-detecting canines to inspect luggage is an issue of first 

impression

in Montana. Although search and seizure protections are traditionally founded on the

Fourth Amendment of the United States Constitution, we stated in State v. Sawyer 

(1977),

174 Mont. 512, 515, 571 P.2d 1131, 1133, that "[w]e need not consider the Fourth

Amendment issue because we view the Montana Constitution to afford an individual

greater protection . . . than is found under the Fourth Amendment." We also 

explained

in State v. Siegal (Mont. 1997), 934 P.2d 176, 184, 54 St. Rep. 158, 164, that when a

right of privacy is specially implicated as part of a traditional search and seizure 

analysis,

we must address the issue pursuant to both Sections 10 and 11 of Article II of the

Montana Constitution. Article II, Section 10, states: "The right of individual 

privacy is

essential to the well-being of a free society and shall not be infringed without the 

showing

of a compelling state interest." Article II, Section 11, states: 

The people shall be secure in their persons, papers, homes and effects from

unreasonable searches and seizures. No warrant to search any place, or

seize any person or thing shall issue without describing the place to be

searched or the person or thing to be seized, or without probable cause,

supported by oath or affirmation reduced to writing.

 A threshold question in the determination of whether an unlawful search has

occurred is whether there has been government intrusion into an area where privacy is

reasonably expected. The U.S. Supreme Court stated in United States v. Jacobsen

(1984), 466 U.S. 109, 113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85, 94, that "[a]

'search' occurs when an expectation of privacy that society is prepared to consider

reasonable is infringed." We stated in State v. Loh (1995), 275 Mont. 460, 914 P.2d

592, that "[a] search compromises the individual interest in privacy." Loh, 275 

Mont.

at 468, 914 P.2d at 597 (quoting Horton v. California (1990), 496 U.S. 128, 133, 110

S. Ct. 2301, 2306, 110 L. Ed. 2d 112, 120). "Where no reasonable expectation of

privacy exists, there is neither a 'search' nor a 'seizure' within the contemplation 

of the

Fourth Amendment of the United States Constitution or Article II, Section 11 of the

Montana Constitution." State v. Bennett (1983), 205 Mont. 117, 121, 666 P.2d 747, 

749.

 In United States v. Place (1983), 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d

110, the U.S. Supreme Court held that exposing a person's luggage, which is located 

in

a public place, to a drug-detecting canine is not a search within the meaning of the 

Fourth

Amendment. Place involved facts similar to these. An airport officer relied on his

suspicions of drug trafficking to alert officers in the passenger's destination city 

to

conduct a canine investigation of the passenger's luggage. The Supreme Court 

reasoned

that the investigation was þmuch less intrusive than a typical search,þ and that þthe

information obtained is limited.þ Place, 406 U.S. at 707, 103 S. Ct. at 2644, 77 L. 

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Ed.

2d at 121.

 States are free to grant citizens greater protection based on state 

constitutional

provisions than the U.S. Supreme Court divines from the U.S. Constitution. See City 

of

Mesquite v. Aladdin's Castle, Inc. (1983), 455 U.S. 283, 293, 102 S. Ct. 1070, 1077,

71 L. Ed. 2d 152, 162; Sawyer, 174 Mont. at 515, 571 P.2d at 1133. Nonetheless, most

states that have addressed the use of drug-detecting canines have followed Place and 

have

held that the use of drug-detecting canines does not constitute a search. See State 

v.

Weinstein (Ariz. Ct. App. 1997), 246 Ariz. Adv. Rep. 45, 1997 WL 340743; Vega v.

State (Ark. Ct. App. 1997), 939 S.W.2d 322; State v. Snitkin (Haw. 1984), 681 P.2d

980; State v. Martinez (Idaho Ct. App. 1996), 925 P.2d 1125; State v. Barker (Kan.

1993), 850 P.2d 885; State v. Washington (La. Ct. App. 1997), 687 So. 2d 575; Gadson

v. State (Md. 1995), 668 A.2d 22, cert. denied (1996), 116 S. Ct. 1704, 134 L. Ed. 2d

803; State v. Morrison (Neb. 1993), 500 N.W.2d 547; Gama v. State (Nev. 1996), 920

P.2d 1010; State v. Kesler (N.D. 1986), 396 N.W.2d 729; Scott v. State (Okla. Crim.

App. 1996), 927 P.2d 1066; State v. Knight (Ohio Com. Pl. 1997), 679 N.E.2d 758. 

But see Pooley v. State (Alaska. Ct. App. 1985), 705 P.2d 1293; People v. May (Colo.

1994), 886 P.2d 280; State v. Torres (Conn. 1994), 645 A.2d 529; State v. Gifford 

(Me.

1992), 604 A.2d 45; State v. Pellicci (N.H. 1990), 580 A.2d 710; People v. Dunn (N.Y.

1990), 564 N.E.2d 1054, cert. denied (1991), 501 U.S. 1219, 111 S. Ct. 2830, 115 L.

Ed. 2d 1000; State v. Juarez-Godinez (Or. 1997), 942 P.2d 772; Commonwealth v. Cass

(Pa. Super. Ct. 1995), 666 A.2d 313.

 Montana, however, recognizes broader protections for an individual's right of

privacy pursuant to Article II, Section 10, of Montana's Constitution, than the 

United

States Supreme Court does pursuant to the Fourth Amendment of the United States

Constitution, and other states typically do pursuant to their state constitutions. 

See

Sawyer, 174 Mont. at 516, 571 P.2d at 1133. As we apply the Montana Constitution,

we have chosen not to "march lock-step" with the United States Supreme Court, even

when applying nearly identical language. State v. Johnson (1986), 221 Mont. 503, 

512,

719 P.2d 1248, 1254. Thus, Place is not determinative of whether the government's 

use

of a drug-detecting canine violates the Montana Constitution.

 To determine whether the use of a drug-detecting canine constitutes a search in

light of Montana's right to privacy, we look first to two recent decisions in which 

we

have protected the right of privacy from state intrusion.

 First, in State v. Bullock (1995), 272 Mont. 361, 901 P.2d 61, we recognized 

that

a person may have a reasonable expectation of privacy in land that extends beyond the

curtilage of his residence. In Bullock, the defendant had posted "No Trespassing" 

signs,

moved his cabin far away from the public road to a point where it was hardly 

visible, and

gated access to his property. The precautions he took to protect his property from

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intrusion were a sufficient basis for this Court's recognition of his right to 

privacy beyond

the curtilage of his residence and potentially into what other states or the United 

States

Supreme Court might classify as open fields. See United States v. Dunn (1987), 480

U.S. 294, 107 S. Ct. 1134, 94 L. Ed. 2d 326. Accordingly, we held that entry by the

state onto the private property constituted a search and required a warrant or the 

owner's

consent.

 Next, in State v. Siegal (Mont. 1997), 934 P.2d 176, 54 St. Rep. 158, we held

that the state's use of a thermal imaging device to "view" conditions inside a 

building on

private property constituted a search in violation of the defendant's right to 

privacy, even

though most other states have held otherwise. See Siegal, 934 P.2d at 185-92, 54 St.

Rep. at 165-71 (discussing at length the cases and their reasoning). In Siegal, we 

relied

on substantial legislative history from the 1972 Montana Constitutional Convention to

conclude that "thermal imaging . . . is the very sort of technology against which 

Article

II, Section 10, of Montana's Constitution, was enacted to guard." Siegal, 934 P.2d 

at

192, 54 St. Rep. at 171. Accordingly, we held that its use constitutes a search and

requires the demonstration of a compelling state interest.

 To determine what constitutes a search pursuant to Article II, Section 11, of 

the

Montana Constitution, we have considered, in Bullock, Siegal, and other cases 

involving

search and seizure, two separate factors: (1) the extent of the privacy expectation; 

and

(2) the nature of the state's intrusion. Here, Scheetz contends that the canine 

sniff of his

luggage, after he had already surrendered it to the airline, constituted an offensive

intrusion into his privacy sufficient to be a search triggering constitutional 

safeguards. 

We disagree.

 Our first consideration is whether Scheetz had a legitimate expectation of 

privacy

that society is willing to recognize as objectively reasonable. That expectation 

exists and

can be determined independent of and prior to any intrusion by either the public or 

the

state. In other words, we recognize that naturally a person seeks to protect 

certain parts

of his or her privacy, and it is those desires which are at the foundation for the

constitutional safeguards that exist to protect them. See generally State v. Solis 

(1984),

214 Mont. 310, 693 P.2d 518.

 This Courtþs recognition of a legitimate expectation of privacy has been based 

on

various factors, such as the place of the investigation and the control exercised by 

the

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person over the property investigated. Those factors are not present in this case. 

 In Bullock and Siegal, we validated the long-standing notion throughout this

country, but especially in Montana, that a person's residence and his homestead are

secure from unwarranted government intrusion, be it by physical or technological 

means. 

See also State v. Rushton (1994), 264 Mont. 248, 870 P.2d 1355; City of Billings v.

Whalen (1990), 242 Mont. 293, 790 P.2d 471; State v. Olson (1979), 180 Mont. 151,

589 P.2d 663. See generally United States v. Karo (1984), 468 U.S. 705, 714-15, 104

S. Ct. 3296, 3302-03, 82 L. Ed. 2d 530, 541 ("[a]t the risk of belaboring the 

obvious,

private residences are places in which the individual normally expects privacy free 

of

governmental intrusion not authorized by a warrant, and that expectation is plainly 

one

that society is prepared to recognize as justifiable"); Gryczan v. State (Mont. 

1997), 942

P.2d 112, 54 St. Rep. 699 (denying the stateþs attempt to regulate the private sexual

practices of consenting adults). In fact, of the courts that have distinguished 

Place and

held canine sniffs to be searches, many have done so on the basis that the canine 

sniff

occurred at a person's home. See United States v. Thomas (2d. Cir. 1985), 757 F.2d

1359; Dunn, 564 N.E.2d 1054.

 However, even in Montana, when a person leaves the privacy of his home and

exposes himself and his effects to the public and its independent powers of 

perception,

it is clear that he cannot expect to preserve the same degree of privacy for himself 

or his

affairs as he could expect at home. "What a person knowingly exposes to the public 

is

not protected, but what an individual seeks to preserve as private, even in an area

accessible to the public, may be constitutionally protected." Bullock, 272 Mont. at 

375,

901 P.2d at 70 (citing Katz v. United States (1967), 389 U.S. 347, 351, 88 S. Ct. 

507,

511, 19 L. Ed. 2d 576, 582). We also stated in State v. Dess (1982), 201 Mont. 456,

464, 655 P.2d 149, 153, that "[t]he reasonableness of [the defendant's] expectation 

of

privacy turned on the defendant's right to exclude others from the premises." 

 Here, the luggage that a person brings to the airport is generally subject to

observation by the public or the state to the extent that other significant steps 

have not

been taken to preserve the privacy of it and its contents. For example, a person 

cannot

expect to conceal completely from the public the odor of the luggage or its 

contents, its

color, or even its weight since it must be handled by others. Accordingly, we 

conclude

that a person lacks a reasonable expectation of privacy in the smell of luggage that 

he or

she brings to an airport in the same way that he or she lacks an expectation of 

privacy

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in the color or weight of the luggage. See generally People v. Mayberry (Cal. 

1982), 644

P.2d 810, 814 (declaring a lack of privacy in both the escaping smell of contraband 

from

luggage and the visibly leaking fluid from a container); People v. Bramma (N.Y. Dist.

Ct. 1997), 655 N.Y.S.2d 280, 282 ("[t]he Court is not aware of any case holding that

there is a reasonable expectation of privacy to the odors emanating from one's 

person or

in the air surrounding one's possessions"); Brown v. Commonwealth (Va. Ct. App.

1992), 421 S.E.2d 877, 880 ("[a] reasonable expectation of privacy did not extend to 

the

airspace surrounding appellant's vehicle").

 Therefore, while a person maintains a privacy interest in the contents of his

checked luggage, we conclude that by checking the luggage, he manifests less of an

expectation of privacy than if he was to maintain its control and possession by not

checking it. Accordingly, we conclude that a person does not maintain a sufficient

expectation of privacy in luggage entrusted to an airline that the Montana 

Constitution

prohibits inspection of that luggage by a dog trained to detect the presence of 

drugs by

sniffing the luggage.

 A second consideration is the nature of the stateþs intrusion. The Delegates 

to the

Montana Constitutional Convention recognized that þthe state must come into our 

private

lives at some point.þ However, they established an explicit right of privacy to 

create a

"semipermeable wall" between the state and the individual, such that the state 

should not

intrude upon the individual in the form of a search unless it has a very good reason 

for

doing so. Montana Constitutional Convention, Verbatim Transcript March 7, 1972, page

1681. Therefore, we also consider whether the state's method of investigation is so

personally invasive that we recognize the intrusion as a search that requires further

justification, such as a warrant or other special circumstances. See State v. Stubbs

(1995), 270 Mont. 364, 892 P.2d 547; State v. Ulrich (1980), 187 Mont. 347, 609 P.2d

1218.

 The use of a drug-detecting canine to investigate a person's luggage presents a 

less

substantial threat of revealing unnecessary aspects of an individual's private 

affairs than

does the state's intrusion into a person's gated private property or their privacy 

via a

thermal imaging device. As we pointed out in Siegal, "thermal imagers provide

information about heat emissions both legal and illegal while canine sniffs only 

provide

information about the presence of illicit substances." Siegal, 934 P.2d at 187, 54 

St.

Rep. at 167. Similarly, in Bullock, the state's invasion was over-broad: when 

officers

ignored posted warnings, entered the defendant's private property, and peered 

unrestricted

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into areas of the defendant's homestead which would otherwise have been obstructed 

from

public view, the state forcefully acquired the power to scrutinize all areas of the

defendantþs homestead, thus frustrating not only his right, but also his ability to 

preserve

privacy in the area around his home. In contrast, a drug-detecting canine allows 

the state

very limited and discriminating observation of a person's private affairs. A canine 

sniff

might reveal to the state the presence of contraband in a person's luggage, but it 

divulges

nothing else about the contents of the luggage, and it permits a person to maintain 

as

private everything except the contraband.

 In addition to the fact that the use of a drug-detecting canine to inspect 

checked

airline luggage reveals limited information about the defendant's private affairs, 

the

method of the state's intrusion is inoffensive. A canine sniff can be conducted 

without

delaying a traveler and without opening a person's luggage, whereas another form of

investigation might subject the owner of the property to significant embarrassment 

and

inconvenience. The fact that a traveler has already surrendered possession of his 

checked

luggage also means that he has not been subjected to a seizure of his property. 

Accordingly, we conclude that the use of a drug-detecting canine to inspect checked

airline luggage does not offensively intrude upon or invade a personþs privacy so as 

to

constitute a search.

 We conclude that the stateþs use of a drug-detecting canine to inspect checked

airline luggage does not violate a personþs right to privacy, pursuant to Article 

II, Section

10, of the Montana Constitution, and that it is neither a search nor a seizure 

pursuant to

Article II, Section 11, of the Montana Constitution. Therefore, we conclude that the

District Court properly dismissed Scheetzþs motion to suppress, and we affirm the

judgment of the District Court.

 /S/ TERRY N. TRIEWEILER

We Concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER 

Justice W. William Leaphart, dissenting.

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 I respectfully dissent from the majority opinion. I would hold that sniff

examinations performed by trained narcotics dogs constitute a search within the 

meaning

of Article II, Sections 10 and 11 of the Montana Constitution. I would further hold 

that

in order to conduct such a search within constitutional parameters, law enforcement 

must

have a particularized suspicion that drug trafficking activity is taking place. 

Finally, I

would hold that law enforcement in this case did not have a particularized suspicion 

to

perform a sniff search on Sheetz's luggage.

 I

 Article II, Section 11 of the Montana Constitution provides that "[t]he people 

shall

be secure in their persons, papers, homes and effects from unreasonable searches and

seizures." We noted in State v. Solis (1984), 214 Mont. 310, 693 P.2d 518, and

affirmed in State v. Siegal (Mont. 1997), 934 P.2d 176, 54 St.Rep. 158, that "[t]he 

right

to privacy is the cornerstone of protections against unreasonable searches and 

seizures. 

Thus a warrantless search can violate a person's right of privacy and thereby 

violate the

right to be free from unreasonable searches and seizures." Solis, 693 P.2d at 522-

23. 

Accordingly, a threshold question in determining whether a search occurred is whether

there has been a governmental intrusion into an area where privacy is reasonably

expected. In determining whether there is a reasonable expectation of privacy this 

Court

looks to Article II, Section 10 of the Montana Constitution which provides: 

 The right of individual privacy is essential to the well-being of a free

 society and shall not be infringed without the showing of a compelling state

 interest.

 We employ a two-part test in determining whether an individual has a

constitutionally protected right to privacy: the individual must have a subjective

expectation of privacy and that expectation must be one that society views as 

reasonable. 

Solis, 693 P.2d at 520. Therefore, we must determine first whether Sheetz had an

expectation of privacy in the luggage and then whether his expectation was one that

society views as objectively reasonable. Sheetz testified that when Officer 

Cwalinski

asked to look in his suitcase, he refused to consent to the search. In addition, 

Sheetz

asserts in his brief that "[w]e should . . . expect privacy in our luggage." Thus, 

Sheetz

contends that he had a subjective expectation of privacy in his luggage. 

 When an individual packs his personal belongings in a suitcase, he seeks not 

only

to contain but also to conceal the contents of the luggage. The Court recognizes 

that "a

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person maintains a privacy interest in the contents of his checked luggage . . ." but

concludes that, "by checking luggage, he manifests less of an expectation of privacy 

than

if he were to maintain its control and possession by not checking it." By making a

distinction between checked luggage which is entrusted to airline personnel and 

carry-on

baggage over which an individual maintains control and possession, the Court 

effectively

holds that when an individual checks his baggage he loses any meaningful expectation 

of

privacy in the contents of his luggage. 

 I agree with the majority that an individual enjoys a heightened expectation of

privacy in his person and in items in his personal possession. I disagree, however, 

with

the conclusion that when a person "surrenders" his luggage at the check-in counter 

he has

less of an expectation of privacy in the contents of that luggage. When traveling by

airplane, certain items may be carried on, but others, due to their size or 

dimensions must

be checked because they cannot be properly stowed in the cabin of the plane. While 

the

record does not reveal the exact dimensions of the luggage involved in this case, it 

is

described in the transcripts as "a large black Delsey brand suitcase" indicating 

that the

airline may have required that it be checked. In many instances, including perhaps 

this

case, individuals do not have a choice of whether to check their baggage or to carry 

it

on. The mere fact that a suitcase has been checked does not lead to the conclusion 

that

its owner has voluntarily surrendered it and has thereby evinced less of an 

expectation of

privacy in its contents. I would conclude that society is willing to recognize as

objectively reasonable an individual's expectation of privacy in the contents of his 

luggage

whether it be checked in or carried on.

 In addition to considering the reasonableness of an individual's expectation of

privacy, this Court considers the nature of the state's intrusion when determining 

what

constitutes a search. In the course of analyzing the constitutionality of thermal 

imaging

in Siegal, we distinguished dog sniff procedures from thermal imaging searches by

concluding that dog sniffs are more limited because they detect only illegal 

substances and

do not reveal any information about the legal contents of the area being searched. 

Siegal,

934 P.2d at 186-87. While I agree that dog sniffs are more limited in this sense; 

they

are, nonetheless, similar to thermal imaging in that they detect substances "which

[individuals] do not knowingly expose to the public." Siegal, 934 P.2d at 191. As 

we

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indicated in State v. Bullock (1995), 272 Mont. 361, 375, 901 P.2d 61, 70, "[w]hat a

person knowingly exposes to the public is not protected, but what an individual 

seeks to

preserve as private, even in an area accessible to the public, may be 

constitutionally

protected." Bullock, 901 P.2d at 70 (citing Katz v. United States (1967), 389 U.S. 

347,

351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576) (emphasis added).

 The Court reasons that an individual does not have a privacy interest in

characteristics of luggage that the public can readily observe in the airport such 

as its

weight and color. With this I agree. However, the Court further concludes that an

individual does not have a privacy interest in the air space surrounding his luggage 

and

thus no interest in any odor detectable in that airspace. It is at this point that 

the Court

takes a leap in analysis that I am not willing to take. In Siegal, we distinguished 

between

"visible light [which] is perceived by the human eye, usually unaided, [and] infrared

radiation [which], because of its longer wave length cannot be 'seen' without the 

aid of

a device, commonly known as a thermal imager." Siegal, 934 P.2d at 180. In a 

similar

fashion, I would distinguish between odors that can be detected by humans and those 

that

are detectable only with the use of devices or dogs with a sense of smell far 

exceeding

that of a human.

 We recognized in Siegal that most courts which have addressed the use of thermal

imaging in the investigation of marijuana growing operations, have held that the

procedure does not constitute a search and does not violate the Fourth Amendment of 

the

United States Constitution. Siegal, 934 P.2d at 181. However, we noted that in

specifically providing Montanans with a constitutional right to privacy, the 

delegates of

the 1972 Montana Constitutional Convention expressed particular concern with

governmental intrusion through the use of various types of electronic monitoring and

surveillance. Siegal, 934 P.2d at 191. Accordingly, we held in Siegal that the use 

of

thermal imaging is a search subject to the warrant requirement of Article II, 

Section 11

of the Montana Constitution. Siegal, 934 P.2d at 190-91. 

 The Court holds that "when a person leaves the privacy of his home and exposes

himself and his effects to the public and its independent powers of perception, it 

is clear

that he cannot expect to preserve the same degree of privacy for himself or his 

affairs as

he could expect at home." While I agree with that proposition, I do not view a dog's

sense of smell as within the "public's independent powers of perception." I would

distinguish, as we did in Siegal, between characteristics of the luggage which are

detectable to human senses and those that are only detectable with the assistance of 

a

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canine's more sophisticated olfactory sense. Although a trained narcotics detection 

dog

is not an electronic detection device, "a dog does more than merely allow the police 

to

do more efficiently what they could do using only their own senses. A dog adds a new

and previously unobtainable dimension to human perception. The use of dogs, 

therefore,

represents a greater intrusion into an individual's privacy." United States v. Place

(1983), 462 U.S. 696, 719-20, 103 S.Ct. 2637, 2651, 77 L.Ed.2d 110 (Brennan, J.,

concurring). In light of Sheetz's subjective expectation of privacy and the fact 

that

society is, I believe, willing to recognize a reasonable expectation of privacy in 

the

contents of checked luggage, I would hold that the use of a trained narcotics dog to 

sniff

the contents of checked airline luggage intrudes upon a protected privacy interest 

in a

manner that constitutes a search within the meaning of Article II, Sections 10 and 

11 of

the Montana Constitution. 

 II

 While I would hold that a dog sniff investigation of luggage at an airport 

amounts

to a search, I would further hold that it does not rise to the level of a type of 

search

requiring probable cause and a search warrant. The Supreme Court, in United States 

v.

Place, held that dog sniff procedures do "not constitute a 'search' within the 

meaning of

the Fourth Amendment" but, nonetheless, amount to an investigatory detention 

requiring

that officers have at least a reasonable suspicion before conducting a dog sniff. 

Place,

462 U.S. at 696 ("we conclude that when an officer's observations lead him reasonably

to believe that a traveler is carrying luggage that contains narcotics, the 

principles of

Terry and its progeny would permit the officer to detain the luggage briefly to 

investigate

the circumstances that aroused his suspicion provided that the investigative 

detention is

properly limited in scope").

 Since Place, several courts have followed the same analysis by analogizing dog

sniffs to what has been termed a Terry investigatory stop which requires that 

officers

have a reasonable suspicion before proceeding with an investigation. See, e.g., 

State v.

Martinez (Idaho App. 1996), 925 P.2d 1125; People v. Boylan (Colo. 1993), 854 P.2d

807; State v. Torres (Conn. 1994), 645 A.2d 529; Commonwealth v. Johnston (Pa.

1987), 530 A.2d 74. This Court also recognizes the principles of Terry v. Ohio 

(1968),

392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, or what have been termed Terry

investigations as exceptions to the probable cause warrant requirement of Article II,

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Section 11. See, e.g., State v. Lott (1995), 272 Mont. 195, 900 P.2d 306 (automobile

exception); State v. Graham (1995), 271 Mont. 510, 898 P.2d 1206 (search incident to

arrest); State v. Stubbs (1995), 270 Mont. 364, 892 P.2d 547 (stop and frisk 

exception);

State v. Dow (1992), 256 Mont. 126, 844 P.2d 780 (hot pursuit).

 In recognizing these exceptions to the warrant requirement, we balance the

compelling state interest in conducting an investigatory type search under exigent

circumstances with the individual's right of privacy and right to be free from

unreasonable searches and seizures. We note that these exceptions to the warrant

requirement, while not requiring probable cause, still implicate search and seizure

protections. State v. Anderson (1993), 258 Mont. 510, 516, 853 P.2d 1245, 1249. 

Thus,

investigatory searches conducted pursuant to a warrant exception require that law

enforcement have a reasonable or "particularized suspicion" that criminal activity is

taking place. 

 Montana's constitutional right of privacy requires that the state have a 

compelling

state interest for intruding upon one's right to privacy. When government intrudes 

upon

a fundamental right, any compelling state interest for doing so must be closely 

tailored

to effect only that compelling interest. State v. Pastos (1994), 269 Mont. 43, 47, 

887

P.2d 199, 202. More specifically, while the state has a compelling interest in 

preventing

drug courier activities in airports, that interest must be carefully tailored to 

effect only

that compelling interest and must be balanced against an individual's right to 

privacy in

the contents of his baggage.

 I agree with the Court that a dog sniff search is limited in both its 

invasiveness and

what it can detect (only illegal substances). Furthermore, I recognize that the 

transient

status of luggage in an airport environment distinguishes this case from the thermal 

image

search of a stationary building in Siegal. Thus, in contrast to Siegal, I would not 

subject

canine sniffs to the probable cause requirement of Article II, Section 11 of the 

Montana

Constitution. On the other hand, I disagree with the Court's allowing, carte 

blanche,

canine sniffs of checked airport luggage in the absence of a particularized 

suspicion.

 We expressed concern in Siegal that "there is presently nothing to stop law

enforcement from simply selecting structures or a neighborhood at random and then

scanning every home (or building) to determine whether any of the structures are

generating a suspicious heat signature." Siegal, 934 P.2d at 190. Likewise, under 

this

Court's opinion there is nothing to prevent law enforcement from housing a trained

narcotics dog in the luggage area of any airport to randomly sniff every piece of 

luggage

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that passes by on the conveyor belt. Moreover, given the imperfect nature of a dog's

sense of smell we should not allow law enforcement to randomly sniff search luggage

without at least a particularized suspicion to support the search. Therefore, 

rather than

allow canine sniffing at the unbridled discretion of law enforcement, I would 

recognize

airport dog sniff searches as an exception to the warrant requirement, and require 

that law

enforcement have a particularized suspicion that an individual is involved in 

criminal

activity before using trained narcotics dogs to sniff search the contents of airline 

luggage.

 III

 Finally, I would hold that law enforcement did not have a particularized 

suspicion

justifying an investigatory sniff search of Sheetz's luggage by a drug detecting 

dog. In

State v. Reynolds we noted that "the issue of whether or not a particularized 

suspicion

existed in order to justify an investigatory stop is factually driven." Bauer v. 

State

(1996), 275 Mont. 119, 125, 910 P.2d 886, 889 (citing State v. Reynolds (1995), 272

Mont. 46, 50, 899 P.2d 540, 543). When the totality of the circumstances does not

create a particularized suspicion, the investigatory stop is not justified. Bauer, 

910 P.2d

at 889-90. Realizing that the term "particularized suspicion" resulted in 

ambiguities for

law enforcement, we explained that the particularized suspicion must be comprised of

objective data and circumstantial evidence from which "a trained officer draws 

inferences

and makes deductions that lead the officer to a resulting suspicion that the 

individual is

involved in criminal activity." Anderson, 853 P.2d at 1248. In the case at hand,

Officer Leighton did not have objective data and circumstantial evidence supporting a

particularized suspicion justifying an investigatory sniff search of Sheetz's 

luggage. 

 Officer Leighton of the Tucson Airport Authority testified that he was 

suspicious

of Sheetz and his companions because they were "exhibiting signs of nervousness." 

Officer Leighton explained that when he noticed the three individuals near the 

Continental

Airlines ticket counter, each of them was carrying a duffle bag and one was pulling a

new, hard-sided suitcase. He further explained that they were walking casually and

talking among themselves. According to his account, when the three young men noticed

Officer Leighton in his uniform, they stopped, continued talking among themselves and

proceeded to stand by some couches near the ticket counter. Two of the individuals 

left

Officer Leighton's view for a few minutes, while the third remained with the luggage 

and

"stared straight ahead towards the ticket counter . . . ." Officer Leighton noted 

that he

was not able to make eye contact with the individual who stayed with the luggage. The

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two individuals returned a few minutes later, and they all checked in about fifteen 

minutes

before their flight.

 Based on this "suspicious" conduct, Officer Leighton decided to investigate 

their

travel plans. He found that they had purchased their tickets from a travel agent and

visited Tucson for only a couple of days. Officer Leighton checked the 

identification tag

on the hard-sided suitcase; only a name and a phone number appeared on the tag. 

Officer

Leighton explained that he had been trained to look for a "combination of 

characteristics"

when investigating possible drug trafficking activity. Although Officer Leighton 

denied

using a "profile," he nonetheless explained that the appearance of the individuals 

and the

circumstances of their travel led him to believe that Sheetz and his companions were

involved in drug trafficking activity. As a result, Officer Leighton called the 

Billings

Police Department, reported his suspicions, and recommended that the Billings Police

perform a sniff search on the luggage when it arrived in Montana.

 In contrast, Sheetz explained his conduct as follows: He and two friends walked

into the airport near the Continental Airlines ticket counter. Each of his friends 

carried

a duffle bag; Sheetz had a backpack, a camera bag and was pulling a hard-sided 

suitcase. 

They noticed that there were not many people in the airport, so they proceeded to the

couch area and two of the individuals used the restroom. Shortly thereafter, they 

checked

in at the ticket counter and checked their baggage. Sheetz does not recall seeing 

Officer

Leighton at the Tucson Airport. Sheetz further testified that he arranged his 

travel plans

with a travel agent approximately one week before his trip and spent three days in

Tucson, conduct which he likened to any traveling business person.

 I dare say that Officer Leighton's inability to make eye contact with three 

young,

long-haired men who talked among themselves and stood by a couch near the ticket

counter until about 15 minutes before their flight would not lead a reasonable 

person to

believe Sheetz and his companions conducted themselves in a manner consistent with 

drug

trafficking activity. Even when Officer Leighton subsequently learned that they had

purchased tickets from a travel agent and had only visited Tucson for a couple of 

days,

the totality of the circumstances did not amount to a particularized suspicion 

warranting

the sniff search that occurred in this case. Officer Leighton's testimony that he 

believed

the individuals were "exhibiting signs of nervousness" was based on "nothing more

substantial than [an] inarticulate hunch[]," a standard which the United States 

Supreme

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Court, and this Court have rejected as insufficient to warrant an investigatory 

intrusion. 

Reynolds, 899 P.2d at 542 (citing Terry, 392 U.S. at 22). Officer Leighton merely 

saw

three young men with long hair, ponytails and facial hair. Such innocuous 

characteristics

do not warrant the government's allowing a trained "canine cannabis connoisseur" to

savor the subtle aromas emanating from a traveler's baggage. I dissent.

 

 /S/ W. WILLIAM LEAPHART

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