NO. 92-536 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

BILL K. BULLOCK and 

EDDIE J. PETERSON, 

Defendants and Appellants 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Jefferson, 

The Honorable Frank M. Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Paul B. Smith (argued), Attorney at Law, 

Boulder, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

Chris D. Tweeten (argued), Assistant Attorney 

General, Helena, Montana 

Richard Llewellyn, Jefferson County Attorney, 

Deborah J. Butler, Deputy County Attorney, 

Boulder, Montana 

Submitted: January 17, 1995 

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

The defendants, Eddie Peterson and Bill Bullock, were charged 

in Jefferson County Justice Court with unlawfully killing a game 

animal in violation of § 87-3-103, MCA, and possession of an 

unlawfully killed animal in violation of § 87-3-112, MCA. The 

Justice Court suppressed all of the State's evidence pertaining to 

Peterson, and dismissed the charges against Bullock. The State 

appealed to the District Court for a trial denovo pursuant to 

§ 46-17-311, MCA. On appeal, the District Court denied the 

defendants' motions to dismiss and to suppress evidence. Peterson 

then pled guilty to unlawfully killing a gdrnt: dnimdl; Bullock pled 

guilty to unlawfully possessing a game animal; and both defendants 

reserved their right to appeal the District Court's order denying 

their motions to dismiss and suppress evidence pursuant to 

§ 46-12-204 (3) , MCA. Following two orders by this Court which 

remanded this case to the District Court for further proceedings, 

we affirm the District Court's order which denied the defendants' 

motion to dismiss, and reverse the District Court's order which 

denied the defendants' motion to suppress evidence. 

The issues presented on appeal are as follows: 

I. Did the District Court err when it denied the defendants 

motion to dismiss the charges against them pursuant to § 46-13- 

401121, MCA, based on the State's failure to bring them to trial 

within six months from the date of their plea entry? 
2. Did defendant Bullock have standing to challenge the 

State's entry upon and search of land owned by Peterson? 

3. Does Article 11, Section 11, of the Montana Constitution, 

prohibit warrantless searches and seizures, under the circumstances 

in this case, on private land that falls outside the curtilage of 

a dwelling? 

FACTUAL BACKGROUND 

At about 6:30 a.m. on October 31, 1991, while returning home 

from work, Chuck Wing observed what he estimated was a large six or 

seven point antlered bull elk on Boulder Hill near Boulder, 

Montana. He recognized that the elk was in Hunting District 380 

where hunters were allowed to shoot only "spikes" unless they had 

a special permit. As Wing observed the elk, he heard a gunshot, 

saw the elk fall, and observed two men and a boy standing near a 

pickup truck in the vicinity of the fallen elk. He believed the 

pickup belonged to defendant Eddie J. Peterson. He then observed 

the three people drag the elk to the truck and load it without 

field-dressing it. Wing reported the incident to Jefferson County 

Sheriff Tom Dawson, who, in turn, relayed the information to Game 

Warden Chris Anderson, an employee of the Montana Department of 

Fish, Wildlife, and Parks. Anderson traveled from Helena to 

Boulder that morning to investigate the incident. 

Anderson first interviewed Wing who related the above 

information. He then drove to Peterson's home in Boulder, but 

Peterson was not at home. Anderson returned to the sheriff's 
office where he learned that Peterson had a cabin in Basin Creek. 

Rather than try to give directions, Dawson agreed to accompany him 

to the cabin. To reach Peterson's cabin, it is necessary to travel 

approximately seven miles on a one-lane forest service road which 

is bounded by forest on both sides. At least one sign along that 

road indicates that the road is bordered by private property and 

advises the public to remain on the road. 

Peterson's property is separated from the road by a fence. 

There is a gate which provides access to his property from the 

forest service road. "No Trespassing" signs are posted on trees on 

each side of the gate. His cabin is located at the end of a 

private road 334 feet from the forest service road. Between the 

forest service road and Peterson's cabin, the terrain is slightly 

elevated in a way that conceals Peterson's cabin and the other 

structures on his property. He moved his cabin beyond the hill at 

an earlier time so that it would not be evident to passers by. 

When Anderson and Dawson reached Peterson's property, the gate 

was open. They entered the property through the gate and drove 

approximately 180 feet down Peterson's private road. As they 

descended the crest of the hill between his cabin and the forest 

service road, they first observed a large bull elk hanging from a 

tree in an area about 126 feet from Peterson's cabin. The elk 

could not be seen from the public road, nor was there evidence that 

it could be seen from any other public location. Peterson 
testified that the elk was hanging between his cabin, several 

vehicles, and a guest sleeping cabin. 

The parties agreed that, in the past, anyone who wished to 

enter Peterson's property or drive on his private road had called 

co ask permission. In fact, the Jefferson County Sheriff's Office 

had done so a few days earlier prior to conducting a search for 

lost hunters. On the date in question, neither Dawson nor Anderson 

asked or received permission to be on Peterson's property. Neither 

had they secured a search warrant, in spite of the fact that 

Anderson testified in Justice Court that he believed there was 

probable cause that a crime had been committed, that Peterson was 

involved, and that Peterson still possessed evidence of that crime. 

At the hearing held in the District Court pursuant to the 

defendants' motion to suppress, there was disagreement about 

exactly what Anderson and Dawson did after observing the elk 

hanging near Peterson's cabin. However, in stipulations filed with 

the court earlier, the parties agreed that after observing the elk, 

Anderson and Dawson went over to examine it. After conducting the 

examination, Anderson then requested that Peterson take him and 

Dawson to the place where the elk was killed. Peterson did so, hut 

at the site where the law enforcement officers were taken, there 

were no elk tracks--only a pile of the elk's entrails. It was 

apparent to Anderson that the elk had not been killed at that 

location. 
Anderson then confronted Peterson with the information he had 

received from Wing. Peterson provided him with an explanation that 

ultimately was found to be inaccurate. Bullock was then 

questioned, provided responses consistent with Peterson's, and 

declined the State's offer of immunity in exchange for testimony 

that would incriminate Peterson. 

The following day, Anderson returned to Peterson's cabin and 

confiscated the elk carcass. 

On November 8, 1991, Peterson was charged in Jefferson County 

Justice Court with unlawfully killing a game animal in violation of 

5 87-3-103, MCA. Bullock was charged with possession of an 

unlawfully killed animal in violation of § 87-3-112, MCA. Both 

defendants pled not guilty to those charges on November 18, 1991. 

An amended complaint was filed on December 3, 1991, which included 

additional charges against Bullock. The defendants filed their 

initial appearance and pled not guilty to the amended complaint on 

December 18, 1991. 

The charges against both defendants were set for trial on 

March 6, 1992. However, on January 22, 1992, the defendants moved 

to suppress all evidence obtained by the State as a result of 

Anderson's and Dawson's entry onto Peterson's property without a 

search warrant. 

On February 28, 1992, the Justice Court granted the 

defendants' motion; it suppressed all evidence, whether verbal or 

physical "connected to the chain of events concerning Eddie 
Peterson's case"; and it dismissed all charges against Bill 

Bullock. 

On March 2, 1992, the State appealed to the District Court for 

the Tenth Judicial District in Jefferson County pursuant to 

§ 46-17-311, MCA, and asked for trial denovo. On June 30, 1992, the 

defendants moved the District Court for an order dismissing the 

charges against them pursuant to § 46-13-401(2), MCA, because the 

offenses alleged were misdemeanors, and they had not been brought 

to trial within six months. In the alternative, the defendants 

renewed their motion to suppress all evidence that had been 

gathered by the State without the benefit of a search warrant. 

On August 7, 1992, the District Court denied defendants' 

motions based on the facts which had been stipulated to by the 

parties. On August 26, 1992, the defendants pled guilty pursuant 

to 5 46-12-204(3), MCA, while preserving their right to appeal the 

District Court's denial of their motions. 

The defendants originally filed their notice of appeal on 

October 23, 1992. However, we have since remanded to the District 

Court for evidentiary proceedings and for imposition of sentence. 

Those proceedings have been completed. We now consider the merits 

of the issues raised on appeal. 

ISSUE 1 

Did the District Court err when it denied the defendants' 

motion to dismiss the charges against them pursuant to 
5 46-13-401 (2) , MCA, based on the State's failure to bring them to 

trial within six months from the date of their plea entry? 

Peterson and Bullock contend that since they were charged with 

misdemeanor offenses, § 46-13-401(2), MCA, required that they be 

brought to trial within six months from the date of their initial 

appearance. They initially appeared on November 18, 1991, and 

trial was not scheduled in the District Court until August 26, 

1992, which was more than six months later. They contend that our 

prior decisions in Stale v. Knox (l984), 207 Mont. 537, 675 P.2d 950, 

and Stare v. Sunford (19901, 244 Mont. 411, 796 P.2d 1084, are 

inapplicable because there was no trial in the Justice Court, and 

that instead, the result in this case is controlled by our decision 

in Slale v. Ronrzingen (19841, 213 Mont. 358, 691 P.2d 1348. The State 

responds that § 46-13-401(2), MCA, applies only to justice court 

and that there is no practical reason for distinguishing this case 

from Sanford based simply on the manner in which the cases were 

resolved in the Justice Court 

Whether the District Court properly denied the motion to 

dismiss is a legal issue which we review to determine whether the 

district court's interpretation was correct. tale v. Muntz (Mont. 

1994), 887 P.2d 251, 253, 51 St. Rep. 1527, 1528 (citing Dotingv. Trunk 

(1993), 259 Mont. 343, 856 P.2d 536) 

Section 46-13-401(2), MCA, provides that: 

After the entry of a plea upon a misdemeanor charge, 

the court, unless good cause to the contrary is shown, 

shall order the prosecution to be dismissed, with 
prejudice, if a defendant whose trial has not been 

postponed upon the defendant's motion is not brought to 

trial within 6 months. 

We held in Ronningen that the "speedy trial" test which is 

applicable in district court is not applicable to misdemeanors 

prosecuted in justice court, and that where a defendant has not 

requested a delay, the six month standard is the sole consideration 

for speedy trial analysis, absent good cause to hold otherwise. In 

that case we held that the retirement of the presiding judge did 

not constitute good cause for delay past six months. However, 

Ronningen was not concerned with the situation where charges are 

resolved in justice court and one or the other party appeals to the 

district court for a trial de now. We first addressed the 

applicability of § 46-13-401 (21, MCA, to that situation in State 1) 

Knox. There, we held that where the defendant had received a trial 

in city court within six months from the date of his initial 

appearance, and then appealed to district court for a trial denovo, 

5 46-13-401(2), MCA, was inapplicable to the proceedings in 

district court, but that the time for conducting a trial in the 

district court is controlled by the criteria established in Barkerv 

Wingo (19721, 407 U.S. 514, 523, 92 S. Ct. 2182, 2188, 33 L. Ed. 2d 

101, 112-13. We affirmed that rule in Sunford, and again in Mantz, 

887 P.2d at 253 (citing Doting, 856 P.2d 536). 

In Mantz, 887 P.2d at 253, we pointed out that "we have already 

interpreted this statute as inapplicable to those situations in 
which the case comes from justice court to a trial de novo in 

district court." 

We cited from Surford for the principle that: 

Once an action is appealed from justice to district 

court, it is treated as if it were a new trial. 

Questions regarding speedy trial in cases concerning new 

trials are analyzed under the constitutional standards of 

Barkerv. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 

(1972). 

The defendants contend, however, that a trial denovo infers a 

second trial and that there can be no trial denovo without a first 

trial. While that may be correct based on a strict definition of 

the term, it is not correct as the term is used in our statutes 

providing for trial denovo in district court. Section 46-17-311, 

MCA, provides that all cases appealed from a justice court to the 

district court must be tried anew, and that the prosecution may 

appeal under the circumstances provided for in § 46-20-103, MCA. 

That statute provides in relevant part that: 

(2) The state may appeal from any court order or 

judgment the substantive effect of which results in: 

(a) dismissing a case; .... 

(e) suppressing evidence . . . . 

While this Court was not unanimous in its conclusion that 

46-13-401 (2) , MCA, does not apply to misdemeanor charges appealed 

to the district court (see Mintz, Justices Trieweiler and Hunt 

dissenting), all members do concur that for purposes of applying 

that rule there is no basis for distinguishing between cases 
appealed after trial in the justice court and cases appealed from 

disposition in some other fashion in justice court. So long as the 

justice court jurisdiction is exhausted within six months by some 

action which authorizes appeal de novo to the district court, 

5 46-13-401(2), MCA, has been satisfied. For these reasons, we 

analyze the defendants' motion to dismiss based on the test 

established in Barkerv. Wingo. 

The Barker test requires courts to consider (1) the length of 

the delay; (2) the reason for the delay; 131 the assertion of the 

right to a speedy trial by the defendant; and (4) the prejudice to 

the defense. Mantz, 887 P.2d at 253 (citing Barker, 407 U.S. at 530) . 

When considering the first factor, the time for calculating 

the length of delay commences on the date that the State files its 

notice of appeal from justice court. See State v. h'ekon (l99:), 251 

Mont. 139, 142, 822 P.2d 1086, 1088. In this case, the State filed 

its notice of appeal from the Justice Court on March 2, 1992. The 

District Court scheduled a trial for August 26, 1992, 176 days 

later. The defendants pled guilty on or before the date set for 

trial. 

The length of the delay is of primary importance, and the 

other factors need not be considered unless the length of delay is 

presumptively prejudicial. Slatev. Thompson (l993), 263 Mont. 17, 32, 

865 P.2d 1125, 1134-35 (citing Statev. Dahms (1992), 252 Mont 1, 12, 

825 P.2d 1214, 1220) . In JVe\lelson, we stated that a delay of less than 
six months was not presumptively prejudicial. Likewise, we hold 

that the delay of 176 days in this case is not presumptively 

prejudicial under the facts in this case. Therefore, we will not 

address the other Barker criteria. We affirm the District Court's 

denial of the defendants' motion to dismiss. 

ISSUE 2 

Did defendant Bullock have standing to challenge the State's 

entry upon and search of land owned by Peterson? 

The State contends that Bullock has no standing to challenge 

the legality of the State's entry onto and search of Peterson's 

land because he had no ownership interest in that land. It 

contends that pursuant to this Court's recent decisions in Slate v. 

Gonzales (1988) , 231 Mont. 242, 751 P.2d 1063, and Stutev. Powers (1988), 

233 Mont. 54, 758 P.2d 761, a party must have some interest in the 

property searched before he or she can contest the admissibility of 

evidence gathered during the search. 

Bullock responds that he was charged with possessing the elk 

carcass seized from Peterson's property, and that under our prior 

decisions, that possessory interest was sufficient to establish 

standing. 

We agree that the State construes our prior decisions 

regarding standing too narrowly. 

Even after the United States Supreme Court retreated from its 

"automatic standing" rule in cases where a defendant is charged 

with illegal possession of some item, in UnitedStute.sv. Sulvucci (1980), 
448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619, we held that 

ownership of the property searched is not necessary to establish 

standing to object to the legality of a search. Statev. lsom (1982), 

196 Mont. 330, 641 P.2d 417. We stated: 

Notwithstanding the limitat ions placed on .Jones[v. 

UniledStates (l96O), 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 

6971, the Court in Rakas[v. I1linoi.r (1978), 439 U.S. 128, 99 

S.Ct. 421, 58 L.Ed.2d 3871, and again in Salvucci, 

emphasized that ownership is not a key element in 

determining standing. The test for standing is not to be 

based on distinctions out of property and tort law: "In 

defining the scope of that interest, we adhere to the 

view expressed in Jones and echoed in later cases that 

arcane distinctions in property and tort law between 

guests, licensees, invitees, and the like ought not to 

control." See Jones, 362 U.S. at 266, 80 S.Ct. at 733; 

Rakus, 439 U.S. at 143, 99 S.Ct. at 430; Salvucci, 448 U.S. 

at 91, 100 S.Ct. at 2553; and Rawlings[v. Kentucky (1980)1, 

448 U.S. 1981 at 105, 100 S.Ct. 125561 at 2561. The 

controlling view, then, seems to be that expressed in 

Mancusiv. DeForte (1968), 392 U.S. 364, 88 S.Ct. 2120, 20 

L.Ed.2d 1154, in which the Court said that the Katz test 

of "'legitimate expectation of privacy' makes it clear 

that capacity to claim the protection of the Fourth 

Amendment depends not upon a property right in the 

invaded place, but upon whether the area was one in which there wu.s a 

veasonable expectation offr.eedotn~om governmental intrusion . " See Mancusi, 

392 U.S. at 368, 88 S.Ct. at 2124. 

Following this rationale, we concluded in Isom that a defendant 

who was a guest in his uncle's home at the time that it was 

searched had standing to object to the government search of that 

home, even though he had no ownership interest in the premises 

We have since held in both Gonzales and Powers that a possessory 

interest in either the premises searched or the propertv seized is 
sufficient to establish standing. However, we have never modified 

nor reversed our position in Isom 

Other states which have held that a possessory interest in the 

items seized is sufficient to establish standing to challenge the 

legality of a search or the property's seizure, have adopted 

automatic standing rules on independent state grounds where the 

defendant is charged with unlawfully possessing that item. 

For example, in State v. Alston (N.J. 1981), 440 A.2d 1311, the 

defendants were passengers in a vehicle from which weapons were 

seized during a search of the vehicle. They were later charged 

with unlawful possession of the weapons. Pursuant to the 

defendants' motion, the evidence was suppressed by the trial court, 

based on the illegality of the police search. On appeal, the state 

contended that the defendant passengers had no standing to 

challenge the legality of the search of the vehicle, despite their 

possessory interest in the weapons which had been seized. 

After reviewing the U.S. Supreme Court's decisions on 

standing, including Sulvtrcci, that court noted an inconsistency in the 

federal law which appeared to allow prosecutors to assert 

contradictory positions: 

[Tlhat the defendant possessed the contraband property 

for the purposes of proving criminal liability, but that 

he had insufficient possessory interest in the property 

for the purposes of defending the legality of the search 

and seizure. 

Alston, 440 A.2d at 1317. The court pointed out that a basic 

principle of American federalism confers on state courts the power 
to afford citizens of each state greater protection against 

unreasonable searches and seizures than may be required by the 

Supreme Court ' s interpretation of the Fourth Amendment, and on that 

basis, concluded that the Salvucci decision afforded inadequate 

protection against unreasonable searches and seizures. Alston, 440 

Finally, the New Jersey Supreme Court concluded that based on 

its rule of standing which provided that "a criminal defendant is 

entitled to bring a motion to suppress evidence obtained in an 

unlawful search and seizure if he has a proprietary, possessory or 

participatory interest in either the place searched or the nropertv 

seized," it would retain the automatic standing rule where a 

defendant is charged with an offense in which possession of the 

seized evidence at the time of the contested search is an essential 

element of guilt. Alston, 440 A.2d at 1320. It adopted reasoning 

from former Justice Thurgood Marshall that 

[tlhe automatic standing rule is a salutary one which 

protects the rights of defendants and eliminates the 

wasteful requirement of making a preliminary showing of 

standing in pretrial proceedings involving possessory 

offenses, where the charge itself alleges an interest 

sufficient to support a Fourth Amendment claim. 

Alston, 440 A.2d at 1320 (citing Salvucci, 448 U.S. at 97, 100 S. Ct. 

at 2556, 65 L. Ed. 2d at 632 (Marshall, J., dissenting)) 

Other states have also adopted the rule of automatic standing 

for crimes of possession. See State v. E'hite (Ariz. App. 1978) , 574 P. 2d 

840; Slate v. Alosn (N.H. l993), 623 A.2d 218 
We agree with the reasoning in Alston. Based on independent 

state grounds pursuant to Article 11, Section 11, of the Montana 

Constitution, we hold that when the charge against the defendant 

includes an allegation of a possessory interest in the property 

which is seized, the defendant has standing to object to the 

prosecutorial use of that evidence based on either the unlawful 

search of the location where it was found, or its unlawful seizure. 

Since Bullock was accused by the State of unlawfully 

possessing the elk carcass which was found on Peterson's property, 

we conclude, based on our prior decisions and the logical 

application of those decisions as set forth above, that he had 

standing to object to the State's search of Peterson's property and 

seizure of that carcass. 

ISSUE 3 

Does Article 11, Section 11, of the Montana Constitution, 

prohibit warrantless searches and seizures, under the circumstances 

in this case, on private land that falls outside the curtilage of 

a dwelling? 

We review a district court's conclusions of law regarding a 

motion to suppress to determine whether the district court's 

interpretation of the law was correct. State v. Pastos (Mont. 1994) , 

887 P.2d 199, 201, 51 St. Rep. 1441, 1442. The defendants contend 

that the elk discovered by the State pursuant to its warrantless 

entry onto Peterson's property, and any further evidence which 

resulted from the discovery of that carcass, including statements 
made by both defendants, should be suppressed based upon the Fourth 

Amendment to the United States Constitution, and Article 11, 

Section 11, of the Montana Constitution, which guarantee the 

defendants the right to be free from unlawful searches and 

seizures. As evidence that the State's entry upon Peterson's land 

and seizure of the elk carcass were unlawful, the defendants point 

out that no search warrant had been issued, that permission had not 

been given for Anderson and Dawson to enter Peterson's land, and 

that the search which led to discovery of the elk was not made 

pursuant to any statutory exception provided for game wardens at 

§ 87-1-506 (2) , MCA. They contend that pursuant to State v. Osteen 

(1985), 216 Mont. 258, 261, 700 P.2d 188, 191, and Statev. Cadson 

(19821, 198 Mont. 113, 119, 644 P.2d 498, 501, the plain view 

doctrine does not apply because the law enforcement officers were 

not legally at the place where they first observed the elk carcass; 

that pursuant to the criteria set forth in Unitedstates '. Dunn (1987) , 

480 U.S. 294, 301, 107 S. Ct. 1134, 1139, 94 L. Ed 2d 326, 334-35, 

the carcass was located in the curtilage of Peterson's home, rather 

than in the "open field" and that at that location defendants had 

a subjective expectation of privacy which should be recognized as 

reasonable by society. 

The State responds that Anderson's presence on Peterson's 

property, and his observation of and subsequent seizure of 

contraband at that location, was constitutionally permissible 

pursuant to the "open fields" doctrine recognized by the U.S. 
Supreme Court in Oliverv. 1JnitedStates (1984), 466 U.S. 170, 104 S. Ct. 

1735, 80 L. Ed. 2d 214, and previously recognized by this Court in 

State v. Charvat (1978), 175 Mont. 267, 573 P.2d 660, and subsequent 

cases. The State also contends that the location of the elk 

carcass did not meet the criteria for constitutionally protected 

curtilage set forth in Dmn, and that pursuant to § 87-1-502(6), 

MCA, Anderson had the authority to inspect the carcass at any 

location other than a residence or dwelling. 

The Fourth Amendment to the United States Constitution 

provides that: 

The right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable 

searches and seizures, shall not be violated, and no 

Warrants shall issue, but upon probable cause, supported 

by Oath or affirmation, and particularly describing the 

place to be searched, and the persons or things to be 

seized. 

Article 11, Section 11, of the Montana Constitution, provides 

similarly that: 

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. 

Pursuant to these provisions, searches conducted without 

warrants are presumed to be unreasonable subject to a few 

delineated exceptions. Osteen, 700 P.2d at 191 (citing Kalz v. United 

States (1367), 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 

576, 585) . The State contends that a search of open fields was 
either never intended for protection pursuant to these amendments, 

or is an exception to the warrant requirement, depending on which 

precedent is considered. 

Because of what appear to be seeming inconsistencies in the 

decisions of the United State Supreme Court, our prior willingness 

to apply those decisions under circumstances which were different 

than those presented in this case, and contrary decisions in other 

jurisdictions based on the same high regard for privacy that 

prevails in this State, we deem it appropriate to trace the origins 

of the "open fields" doctrine, and reconsider its applicability to 

Article 11, Section 11, of the Montana Constitution. 

The open fields doctrine was first established in Hesterv. United 

States (1924), 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898. In Hester, 

the Court held that the Fourth Amendment protects "persons, houses, 

papers, and effects, " and is not extended to the open fields. 

Hester, 265 U.S. at 59 (citing 4 B1. Comm. 223, 225, 226). Shortly 

thereafter, the Supreme Court clarified that the Fourth Amendment 

provides protection from invasion of one's house or curtilage. 

Olmsreadv. UnitedStates (19271, 277 U.S. 438, 466, 48 S. Ct. 564, 568, 72 

L. Ed 944, 951. 

Subsequently, however, that Court recognized that the Fourth 

Amendment protects people--not places--from unreasonable searches. 
Katz, 389 U.S. 347.' In Kutz, the Court stated that the Fourth 

Amendment protects individual privacy against certain kinds of 

government intrusion, but its protections go further and often do 

not relate to privacy. Katz, 389 U.S at 350. A person's right to 

privacy, or right to be let alone, is largely left to the law of 

the states. Katz, 389 U.S. at 350-51. 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. Katz, 389 U.S. at 351. 

Finally, the Court discredited the previous notion that property 

interests control the government ' s right to search and seize. Katz, 

389 U.S. at 353. However, the two-part test that this Court has 

followed since Charvat to determine whether a search is unlawful was 

set forth in Justice Harlan's concurring opinion in Katz, 389 U.S. 

at 361 (Harlan, J., concurring) . That test requires that (1) a 

person have an actual expectation of privacy; and (2) the 

expectation must be one society is willing to recognize as 

reasonable. 

In a seeming return to concepts discredited in Katz, the Court 

reaffirmed notions grounded in Nester in Oliver v. United Stales (1984) , 466 

U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214. Oliver was based on two 

I Commentators have suggested that the Fourth Amendment 

protects people and places. See Elison and NettikSimmons, Right of 

Privacy, 18 Mont. L. Rev. 1, 5, 24 (1987). 
similar fact patterns where law enforcement officials ignored "No 

Trespassing" signs and fences, entered private property, and 

observed illegal drug activity. The Court held that the specific 

language of the Fourth Amendment does not include open fields. 

Oliver, 466 U.S. at 177. The amendment's protection extends only to 

the curtilage area immediately surrounding one's home. Oliser, 466 

U.S. at 178. Following Oliver, it appears that if an area is not 

curtilage, it is an open field unprotected by the Fourth Amendment. 

Despite the Court's intent to eliminate case-by-case determinations, the Oliver Court did not discuss how courts were to determine 

the distinction between curtilage and open fields. 

Based on this omission, the Supreme Court suggested a 

four-part test for determining the extent of the curtilage area in 

Dunn, 480 U.S. at 301-03. In Dunn, officers who did not initially 

obtain a warrant, crossed a perimeter fence, entered a ranch, and 

observed a drug operation through an open barn door. The Court 

concluded that the barn and the area surrounding the barn were 

beyond the curtilage and were not protected by the Fourth 

Amendment. Dunn, 480 U.S. at 301. 

The Court stated that curtilage questions should be resolved 

with particular reference to the following factors: 

[Tlhe proximity of the area claimed to be curtilage to 

the home, whether the area is included within an 

enclosure surrounding the home, the nature of the uses to 

which the area is put, and the steps taken by the 

resident to protect the area from observation by people 

passing by. 
Dunn, 480 U.S. at 301 (citing Californiav. Ciraolo, 476 U.S. 207, 221, 106 

S. Ct. 1809, 1817, 90 L. Ed. 2d 210, 222 (Powell, J., dissenting)). 

Each party in this case contends that the Dunn factors weigh in his 

or its favor. However, based on this State's Constitution, and its 

expressed regard for individual privacy, we decline to follow the 

U.S. Supreme Court's distinction between curtilage and open fields, 

and therefore, will not consider the applicability of the Dzmn 

criteria to this case. 

Although we have not previously followed Dunn, we have, in the 

past, applied the "open fields" doctrine in cases which are 

factually distinguishable from this case. 

Before Montana's Constitution was amended in 1972, the 

doctrine was discussed in several cases. We initially followed 

Hesler and held that the constitutional protections of Montana's 

analogous provision to the Fourth Amendment do not extend to an 

open field. Statev.Arnold (1929), 84 Mont. 348, 275 P. 757; Statev.Ladue 

(19251, 73 Mont. 535, 237 P. 495. Relying on Arnold and Ladue, we 

held that open pastures and farm lands are not protected by the 

Fourth Amendment, State v. Perkins (l969), 153 Mont. 361, 457 P.2d 465, 

or Montana s analogous constitutional provision, Slate v. Johnson 

(1967), 149 Mont. 173, 424 P.2d 728. 

Following the amendment of Montana's Constitution in 1972, and 

after Katz, this Court began to analyze the open fields doctrine 

differently. In State v. Charvat (l978), 175 Mont. 267, 573 P.2d 660, 
relying on Nester, this Court held that neither the Fourth Amendment, 

nor Article 11, Section 11, of the Montana Constitution, extended 

protection to open fields. Churvaf, 573 P.2d at 661. However, 

because Katz was decided after Hester, we stated that the 

determination of whether an intrusion was unreasonable depended 

upon whether one had an actual (subjective) expectation of privacy 

that society would recognize as reasonable. Churvut, 573 P.2d at 

662. This Court, like the Court in Kalz, cited authority for the 

proposition that the focus of search and seizure analysis is no 

longer on common law property concepts. Charvat, 573 P.2d at 662 

(citing Wattenburgv. LC'nitedStates (9th Cir. 1968), 388 F.2d 853). 

In Statev. Dess (19821, 201 Mont. 456, 464, 655 P.2d 149, 153, we 

held that the "reasonableness of his expectation of privacy turned 

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

Because the defendant admitted he had a diminished expectation of 

privacy in a public campground, and because of other facts, we held 

that the defendant did not have a reasonable expectation of privacy 

in the area searched. Dess, 655 P.2d at 154. 

In 1983, we addressed an appeal from the denial of a motion to 

suppress evidence seized from an area of the defendant's fields. 

Statev. Bennett (1983) , 205 Mont. 117, 666 P.2d 747. In Bennetl, a deputy 

sheriff following an anonymous tip observed marijuana plants 

growing in the defendant's garden through a 60 power scope from a 

nearby road. We concluded that the area surrounding the fenced 
portion of the property was open field, and that the use of the 

spotting scope did not violate the defendant's reasonable 

expectation of privacy in an area that could be observed from a 

public road. Bennett, 666 P.2d at 749 (citing Hester, 265 U.S. 57) . 

"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 11, 

Section 11 of the Montana Constitution." Bennett, 666 P.2d at 749. 

We concluded that the defendant voluntarily exposed the marijuana 

to the public by growing it in a garden near a county road, and 

therefore, that even if the defendant had a subjective expectation 

of privacy, it was not one society would recognize as reasonable. 

Bennett, 666 P.2d at 749. 

Finally, in another case involving a marijuana grow operation, 

we held that the defendant did not have a legitimate expectation of 

privacy. In Statex, Sorensen (1990), 243 Mont. 321, 792 P.2d 363, law 

enforcement officials, who were acting on a tip that the defendant 

was growing marijuana on forest service land and storing it on his 

property, began observing the defendant's property. The officers 

later obtained a warrant and seized evidence of the marijuana 

operation. The defendant contended that Article 11, Section 10, of 

the Montana Constitution, protected him from trespass by law 

enforcement, and he contended they must have trespassed, or they 

could not have described his buildings in such detail in the search 

warrant. 

2 4 
We acknowledged that Montana's constitutional right of privacy 

is broader than the right of privacy under the Federal 

Constitution. Sorensen, 792 P.2d at 366 (citing Statev.Sierra (1985), 

214 Mont. 472, 692 P.2d 12731. However, we concluded that "[tlhe 

"open fields" doctrine, providing that the right of privacy in 

one's home does not extend to open fields within the view of the 

public, has been recognized under Montana's right of privacy." 

Sorensen, 792 P.2d at 366 (citing Charvai, 573 P.2d at 661).2 We held 

that the defendant did not have a legitimate expectation of privacy 

that would prevent law enforcement officers from observing 

buildings located on his unfenced land. Sorensen, 792 P.2d at 366. 

As these developments illustrate, we have followed the principles 

established in Katz, but have applied the "open fields" doctrine to 

our consideration of whether a person's expectation of privacy is 

one that society would consider reasonable. However, we have not 

had occasion to consider reasonableness under precisely the 

circumstances presented in this case. 

Nor have we discussed the distinction between curtilage and 

open fields, or the impact of Dunn on Montana's constitutional 

guarantee of freedom from unreasonable searches. Therefore, we 

look to other jurisdictions which have addressed the open fields 

doctrine as applied to state constitutional provisions similar to 

ours under circumstances similar to those presented in this case. 

This citation to Charvat is inaccurate because Charvai discussed 

Article 11, Section 11, not Section 10. 
In 1988, the Oregon Supreme Court held that that state's 

nearly identical right to be free from unreasonable searches and 

seizures provided broader privacy protection in open fields than 

the United States Supreme Court had provided pursuant to the Fourth 

Amendment. Stotev.Dixson/Digby (Or. 1988), 766 P.2d 1015. 

In Dixson, sheriff's deputies received information that 

marijuana was growing on heavily forested land owned by a lumber 

company. After an officer flew over the land and observed 

marijuana, officers were granted permission to drive on the land. 

As they approached the land, they came to an impassable dirt 

logging road which was on property being purchased by the Dixsons, 

who resided on the land. The officers walked on, passed several 

"no hunting" signs, pushed some brush aside, and observed marijuana 

plants located on the Dixsons' property. Dixson, 766 P.2d at 1016. 

The next day, officers returned and discovered Lorin Dixson 

and Jeff Digby near the plants, arrested both of them, and seized 

the plants. The defendants moved to suppress the evidence based on 

the Fourth Amendment and the Oregon Constitution. The trial court 

denied the motion but was reversed by the Court of Appeals. 

On appeal, that court was urged by the state to adopt the 

"open fields" exception to Oregon's constitutional warrant 

requirement based on the rationale in Oliver. However, that court, 

based on the same constitutional language considered by the U.S. 

Supreme Court in Oliver, declined to do so. It began its analysis 

by pointing out that the term "open fields" is not precise. In 

26 
fact, it was applied in Olivev to lands which were "neither fields 

nor, in any fair sense of the word, open; the open fields doctrine 

denies Fourth Amendment protection to all undeveloped and 

unoccupied land outside the curtilage of a residence. " Dixson, 766 

P.2d at 1020 (citing Oliver, 466 U.S. at 180 n.11). The court went 

on to explain that neither is the common law concept of curtilage 

applicable to constitutional analysis. It explained that: 

The rationale underlying the curtilage concept as it 

was used at common law--to provide a zone of protection 

to sleeping residents from the "midnight terror" of 

burglary--simply is not the same as the rationale 

underlying Article I, section 9, or, for that matter, the 

Fourth Amendment, each of which protects the privacy of 

the individual from warrantless invasion and scrutiny by 

the government and its minions. Reliance on the 

common-law concept of curtilage to justify excluding land 

outside the curtilage from the protections of either 

constitutional provision is misplaced. 

Dixson, 766 P.2d at 1023. 

The Oregon court pointed out that that state's right to be 

free from unreasonable searches and seizures was based not on a 

person's "reasonable expectation of privacy'' but upon each 

"individual's interest in freedom from scrutiny, ie., his privacy." 

Dixson, 766 P.2d at 1023. 

The court next concluded that land owners who have, at some 

expense, taken steps to exclude others from their property by use 

of signs, fences, or other measures, have expressed an intention to 

establish privacy which is protected under Oregon's constitutional 

right to be free from unreasonable searches and seizures. For that 

reason, the Oregon court established the following test to enable 
police to determine whether an uninvited intrusion on private 

property constitutes a search under that state's constitution which 

requires a warrant: 

An individual's privacy interest in land he or she has 

left unimproved and unbounded is not sufficient to 

trigger the protections of Article I, section 9. Thus, 

it is not sufficient that the property in question is 

privately owned, or that it is shielded from view by 

vegetation or topographical barriers, because those 

features do not necessarily indicate the owner's 

intention that the property be kept private. A person 

who wishes to preserve a constitutionally protected 

privacy interest in land outside the curtilage must 

manifest an intention to exclude the public by erecting 

barriers to entry, such as fences, or by posting signs. 

This rule will not unduly hamper law enforcement officers 

in their attempts to curtail the manufacture of and 

trafficking in illegal drugs, because it does not require 

investigating officers to draw any deduction other than 

that required of the general public: if land is fenced, 

posted or otherwise closed off, one does not enter it 

without permission or, in the officers' situation, 

permission or a warrant. 

Applying this rule, however, to the facts in that case, the 

Oregon Court held that the search was not illegal 

The Court of Appeals of New York has also refused to follow 

the United States Supreme Court's distinction between curtilage and 

an open field. People v. Scott (N.Y. 1992), 593 N.E. 2d 1328 

In Scott, police had information that the defendant was growing 

marijuana on his property which consisted of 165 acres of rural, 

undeveloped woodlands. In spite of the fact that the property was 

conspicuously posted with no trespassing signs, and without the 

defendant's permission, police entered upon the property where they 
personally observed plants. Based on those observations, and 

testimony of a private citizen, the police obtained a search 

warrant, pursuant to which they found and recovered marijuana 

plants beyond the curtilage of the residence which was located on 

the property. The defendant moved to suppress that evidence. 

However, based upon Oliver, New York's trial court and appellate 

division denied that motion. On appeal, New York's highest court 

was asked to decide whether it should follow Oliver and exclude open 

fields from the protection of its state constitutional right to be 

free from unreasonable searches and seizures. After thoughtful 

consideration, it declined to apply Oliver in the State of New York 

for the following reasons: (1) the conclusion that the Fourth 

Amendment does not apply to land was "contrary to the basic concept 

of post-Kazz decisions that the amendment protects a person's 

privacy, not places"; (2) the constitutional history relied upon in 

Oliveeu was inapplicable to the comparable provision in New York's 

Constitution; (3) its effect was incompatible with Justice 

Brandeis's Olmstead dissent declaring the "right to be let alone--the 

most comprehensive of rights and the right most valued by civilized 

men"; (4) that state's private property laws indicated that the 

interest in privacy on land beyond the curtilage was one that New 

York society was prepared to recognize as reasonable; and 

(5) giving state agents unbridled license to roam freely on private 

land without permission was repugnant to basic notions of fairness 
in that state's criminal law. Scott, 593 N.E.2d at 1334-37. For 

these reasons, the New York Court held that: 

[Wlhere landowners fence or post "No Trespassing" signs 

on their private property or, by some other means, 

indicate unmistakably that entry is not permitted, the 

expectation that their privacy rights will be respected 

and that they will be free from unwanted intrusions is 

reasonable. 

Therefore, that court held that the warrantless entry by 

police on the defendant's land violated that state's constitutional 

right to be free from unreasonable searches and seizures 

Like the Dixson court, the Scott court recognized that the Fourth 

Amendment was not literally interpreted in Katz. Neither a 

telephone booth, nor a conversation therein, can be described as a 

person, house, paper, or effect. Scott, 593 N.E.2d at 1334-35. 

Moreover, the Court had extended protection beyond the Fourth 

Amendment's literal language, e.g., business premises are protected 

but not included in the literal language. Scott, 593 N.E.2d at 1335 

(citing Mclcrhallv. bar low!^, Inc. (1977), 436 U.S. 307, 311, 98 S. Ct. 

1816, 1819, 56 L. Ed. 2d 305, 310; G.M. Leasing COT. V. CTniledStates 

(l976), 429 U.S. 338, 358-59, 97 S. Ct. 619, 631, 50 L. Ed. 2d 530, 

547). In its final analysis, however, the court found those 

contradictions irrelevant because it was concerned with "a 

provision in a different Constitution with its own unique history. " 

Scott, 593 N.E.2d at 1335. 
That court refused, as this Court has in the past (seestate v. 

Sawyer (l977), 174 Mont. 512, 571 P.2d ll3), to march " [llockstep" 

with the United States Supreme Court's interpretation of similar 

provisions in the federal constitution. Instead, it agreed, as we 

do, with the observation by former Justice William Brennan that 

"state courts cannot rest when they have afforded their citizens 

the full protection of the federal Constitution" and without "the 

independent protective force of state law . . . the full 

realization of our liberties cannot be guaranteed." Scott, 593 

N . E .2 d at 13 3 8 ( citing Brennan , State Constitutions and the Protection of Individual 

Rights, 90 Harv. L. Rev. 489, 491). 

Finally, and most recently, a Washington Court of Appeals 

found additional protection based on its state constitution. State 

v. Johnson, (1994 Wash. Ct. App. Div. 21, 879 P.2d 984. 

In ,Johnson, federal and state officers, acting on information 

they received that Johnson was growing marijuana on his property, 

drove to his property and walked to the edge, but were unable to 

view any buildings. Johnson's property was bounded with a fence 

and a closed chain link gate and was posted with "Private Property" 

and "No Trespassing" signs on trees nearby. Aerial photographs 

were taken and DEA officers returned a couple days later at about 

1:00 a.m., found the gate unlocked, and proceeded down a dirt road 

toward Johnson's property. They observed a barn, smelled marijuana 

growing, used a thermal imaging device, and discovered a grow 
operation. The officers later received and executed a warrant 

based partly on these observations. Johnson, 879 P.2d at 987. 

Johnson's motion to suppress was denied, and on appeal he argued 

that the DEA activity violated the Washington Constitution. 

The court first stated that the Washington Constitution 

provides more protection than the Fourth Amendment, partly because 

Washington has a strong tradition of protecting private property 

from unwanted intrusions and recognized criminal trespass for 

similar conduct. Johnson, 879 P.2d at 990. 

The court acknowledged that the officers did not enter the 

curtilage, but that did not end its analysis under the Washington 

Constitution. Neither the open fields doctrine, nor the reasonable 

expectation test, was dispositive, but both were factors used to 

determine if the entry unconstitutionally intruded into a person's 

private affairs. That court concluded that its Constitution "does 

not foreclose a person's ability to protect his or her private 

affairs in an open field." Johnson, 879 P.2d at 993. 

It held that fields that are fenced and posted with no 

trespassing signs are protected, and therefore, that the agents' 

entry was an unreasonable intrusion into Johnson's private affairs. 

Johnson, 879 P.2d at 993. 

Like our sister states, Montana has a strong tradition of 

respect for the right to individual privacy. 

The Montana Constitution also provides that the 

people shall be free from unreasonable searches and 

seizures. Mont. Const. Art. 11, § 11. Although the 
language of this provision is nearly identical to that 

contained in the Fourth Amendment to the United States 

Constitution, we recognize that such a provision in the 

Montana Constitution may be interpreted so as to provide 

a greater amount of rights than that contained in the 

Federal Constitution. See, Slate v. .Johnson (19861, 12211 

Mont. 1503, 5131, 719 P.2d 1248, 1254-55; and Butte 

Communi@ Union v. Lewis (1986), 12191 Mont. [426, 4331 , 712 

P.2d 1309, 1313. Additionally, the Montana Constitution 

provides that the right of individual privacy shall not 

be infringed without the showing of a compelling state 

interest. Mont. Const. Art. 11, § 10. There is no 

similar textual language in the United States 

Constitution and we have therefore recognized that this 

section grants rights beyond that inferred from the 

United States Constitution. See generally, iUontana Human 

Rights Division v. City of Billings ( 19 8 2 ) , 19 9 Mont . 4 3 4 , 64 9 P . 2d 

1283. Because Montana's Constitutional protections have 

an existence which is separate from the Federal 

Constitutional protections it is necessary to offer an 

independent analysis of the privacy and search and 

seizure provisions of the Montana Constitution. 

Statev. Brown (l988), 232 Mont. 1, 9-10, 755 P.2d 1364, 1370 

We conclude, based on this State's strong tradition of respect 

for individual privacy as reflected in our own unique Constitution, 

that the preceding discussions from our sister states are 

persuasive. 

States are free to grant citizens greater protections based on 

state constitutional provisions than the United States Supreme 

Court divines from the United States Constitution. State v. Suvtyer 

(1977), 174 Mont. 512, 515, 571 P.2d 1131, 1133 (overruled on other 

grounds by Slaiev.Long (1985), 216 Mont. 65, 700 P.2d 153). We have 

chosen not to "march lock-step" with the United States Supreme 

Coilrt , even when applying nearly identical language. State v. .Johnson 

(1986), 221 Mont. 503, 512, 719 P.2d 1248, 1254. In addition, we 
have held that Montana's unique constitutional language affords 

citizens a greater right to privacy, and therefore, broader 

protection than the Fourth Amendment in cases involving searches 

of, or seizures from, private property. Smvyer, 571 P.2d at 1133. 

As the New York Court of Appeals stated in Scott, the rule that 

an individual may never have an expectation of privacy in open 

fields would be repugnant to our State's explicit recognition of 

privacy as a fundamental right which will not be violated absent a 

compelling state interest. Mont. Const. art. 11, 5 10. Likewise, 

as the Washington Court stated in Johnson, the fact that the officers 

did not enter the curtilage does not end our analysis based on 

Article 11, Section 11. In this case, we decline to apply the 

United States Supreme Court's Oliver decision to Article 11, 

Section 11, of the Montana Constitution. 

We conclude that in Montana a person may have an expectation 

of privacy in an area of land that is beyond the curtilage which 

the society of this State is willing to recognize as reasonable, 

and that where that expectation is evidenced by fencing, "No 

Trespassing," or similar signs, or "by some other means [which] 

indicatefs] unmistakably that entry is not permitted" (Scott, 593 

N.E. 2d at 1338), entry by law enforcement officers requires 

permission or a warrant. As in our prior decisions, however, this 

requirement does not apply to observations of private land from 

public property. To the extent that our prior decisions in Chawat, 
Dess, Bennett, and Sorensen are inconsistent with this holding, they are 

overruled. 

We next discuss whether the State's entry onto Peterson's 

property without a warrant, and without permission, was prohibited 

under the circumstances in this case. 

Peterson's cabin was initially built near a public road. 

However, due to vandalism, he moved his cabin away from the road to 

where it is barely visible from the road. After the move, 

Peterson's cabin was located in a forested area approximately 334 

feet down a private road. A fence separated Peterson's property 

from the public road and a large metal gate controlled access to 

his property. Although the gate was open on this occasion, trees 

on either side of the gate were posted with "No Trespassing" signs. 

It was stipulated that people in the past, including members of the 

Jefferson County Sheriff's Department, requested permission to 

enter his land. 

Peterson took numerous precautions to ensure that others would 

not enter his property without permission. We conclude that 

Peterson's expectation of privacy was reasonable. Therefore, under 

these circumstances, we hold that the entry onto Peterson's 

property and observation of the elk carcass, which could not have 

otherwise been observed, was an unreasonable search in violation of 

Article 11, Section 11, of the Montana Constitution. Evidence that 

was gathered thereafter as a result of the unlawful search was 

inadmissible by virtue of the exclusionary rule. See Wong Sun v. L'nited 
States (19631, 371 U.S. 471, 486-88, 83 S. Ct. 407, 417, 9 L. Ed. 2d 

441, 455. 

The State contends that Peterson allowed Anderson to inspect 

the elk and offered to take the officers to the kill site, and 

therefore, that the evidence was obtained from consensual activity 

which does not violate either the Fourth Amendment or its Montana 

counterpart. Even if Peterson consented, it was after the officers 

wrongfully entered his property and saw the elk. Consequently, it 

flowed from the unlawful intrusion and cannot be used to justify 

it. 

We affirm the District Court's denial of the defendants' 

motion to dismiss. However, we hold that the District Court erred 

when it failed to grant the defendants' motion to suppress evidence 

obtained after the officers entered Peterson's property without 

permission or a warrant and observed the elk carcass. Because we 

base our decision on this issue, we do not find it necessary to 

address the other issues raised on appeal. 

We concur: