NO. 82-36 IN THE SUPREFE COURT OF THE STATE OF MONTANA 1982

THE STATE OF MONTANA, Plaintiff and Respondent,

VS. THOMASVAN HAELE, Defendant and Appellant.

Appeal from: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone Honorable Diane G. Barz, Judge presiding. Counsel of Record: For Appellant: Keefer,Roybal, Hanson, Stacey & Jarussi, Billings,

Montana Calvin Stacey argued, Billings, Montana For Respondent: Hon. Mike Greely,Attorney General, argued, Helena,

Montana Harold F. Hanser,County Attorney, argued, Billings,

Montana For Amicus Curiae: Mark \T.Murphy, County Prosecutor Services Bureau,

Helena, Montana

Filed: 

## LUG

## 23

## 2982 Submitted: May 20, 1982 Decided: August 23, 1982Mr. Chief JusticeFrank I. Haswell delivered the Opinion of the Court. Defendant appeals from his conviction of criminal possession of dangerous drugs with intent to sell in violation of section 45-9-103, NCA. We reverse. The factsof this case areuncontroverted. Robert and Mae Westfallwere themanagers of Shurgard Mini Storage inBillings, Montana, a collection of storageunits which

arerented out tocustomers. In January 1981, theWestfalls rented a unit todefendant who identified himself as "Bill Hayes. I' On July 31, 1981, atclosing time, defendant arrived at~hurgard and was given permission togo tohis unit. Because Mae Westfall had earlier instructed another customer (Bender) tolock the gatewhen he left, Mae Westfallwent toinform Bender of defendant's presence. After doing so, she noticed the door todefendant's unitwas sh~t and wondered what he was doing, since therewere no interior lights indefendant's unit. Mrs. Westfall alsowanted to know how much longer defendant was going tobe cn the premises. Mrs. Westfall walked tothe door of defendant's unit, knocked and said, "Hey, you inthere." There was

no response so she repeated the procedure with no result. She then opened the door and saw defendant sittingon the floor, pointing a gun ather. She also sawtwo suitcases

on the floorbehind him but was unable todescribe them because of the dimness of the room's interior. She then yelled forBender, who triedtowrestle the gun from defendant. Mrs. Westfall lefttoinform her husband whc inturn called thepolice. The police arrived afterdefendanthad leftbut theWestfalls informed them that they did not wish topress any charges atthattime. Pursuant tocompany policy, Mrs. Westfall called the Washington home officeon thenext working day and related the events tothem. Personnel atthe home office suggested theWestfalls find outwhat was inthe suitcase. Mr. Westfall removed the hinge pins from the padlocked door and entered defendant's unit. Heopened one of the suitcases and saw a number of bottles of pills. He alsoopened a purse lying on the floorwhich he found tocontain silverware. After closing the suitcase, purse and replacing the door, Ilk. Westfall called thepolice indicating that they now wished topress assault charges. Based on the information provided by theWestfalls, the Billingspolice obtained a searchwarrant and seized the suitcaseand purse. The contents of the suitcases and purse

were inventoried, revealing well over 100 bottles of pills and on August 8, 1981, defendant was charged with criminal possession of dangerous drugs with intentto sell. Defendant pleaded not guilty and filed a motion to suppress. The court denied the motion and, after a nonjury trial, sentenced the defendant tofifteenyears intheMontana StatePrison and designatedhim a dangerous offender. Defendant appeals. Defendant raises two issues on appeal which can be stated asfollows: 1. Whether the DistrictCourt erred in failing to suppress the evidence. 2. Whether the DistrictCourt erred in adopting the State's proposed findings of fact and conclusions of law. With regard tothe firstissue appellant argues that Montana's position on "citizen searches" mandates a reversal,citing Statev. Hyem (19811,

### -Mont. 

### , 630 P.2d 202, 38 - St.Rep. 891; Statev. Helfrich (1979), -Mont

# . - 

### , 600 P.2d 816, 36 St.Rep. 1763; State v. Coburn (1974),165 Yont. 488, 530 P.2d 442; and Statev. Rrecht (1971),157Nont. 264, 485 P.2d 47. These cases all stand for the proposition that evidence obtained by a private citizen in violation of another's constitutional rights is subject to the exclusionary rule and may not be admitted into evidence in a criminal trial in this state. The fact thatNontana's constitution explicitly guarantees an individual's right to privacy was amajor factor of the Hyem and Helfrich decisions: "Theright of individualprivacy is essential to thewell-being of a free society and shallnot be infringedwithout the showing of a compelling state interest. 1972 Montana Constitution, Article 11, Section 10.

### " The State concedes that, if we followHyem and its predecessors, the defendant's conviction must be reversed but argues thatwe should reverse those cases and allow evidence illegally obtained by private citizens to he admitted in a criminal trial. The State further argues that the exclusionary rule deterrence rationale (todeter police fromviolating other's constitutional rights by excluding the evidence) has no application to private citizensbecause they do not realize the evidence is suppressible. We decline to overrule our previous citizen search

cases and reaffirm our position taken therein. We base our reasoning on the firm stance taken by the Montana Constitution guaranteeing an individual's right of privacy. Our holding today is also rooted in the concept of judicial integrity,i-e.,the judicial systemmust not become anaccomplice to constitutionalviolations by admitting evidence illegally obtained. It is clear from the seminal cases involving the exclusionary rule that judicial integritywas one of the main reasons fcr the exclusion of illegally obtained evidence. In Weeks v. United States (1914), 232 U.S. 383, 34 S.Ct. 341, 58 L.E~.* 652, the issuewas whether evidence obtained unconstitutionallyby government agents shculd have been admitted at trial. The Court found that it should not have been admitted and stated the following: "To sanction such proceedings would be to affirmby judicial decision a manifest neglect if not an open defiance of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action." 232 U.S. at 394, 34 S.Ct. at 345, 58 L.Ed. at 656. Later in Elkins v. United States (1960), 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, the court outlawed the "silver platter doctrine"whereby evidence illegally obtained by state officers would be turned over to federal prosecutors in federal criminal trials. In so doing, the Court stated: "Butthere is another consideration--the imperative of judicial integrity. Itwas of this that Mr. Justice Holmes and Mr. JusticeBrandeis so eloquently spcke in Olmstead v. United States, 277 U.S. 438, at 469, 471,more than 30 years ago. 'For those who agree with me,

### ' said Mr. Justice Holmes, 'nodistinction can he taken between the Government as prosecutor and the Government as judge.' 277 U.S., at 470. (Dissenting opinion.) 'In a government of laws,' said Mr. Justice Brandeis, 'existenceof the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; invites anarchy. To declare that in the administration of the criminal law the end justifies themeans--to declare that the Governmentmay commit crimes in order to secure the convictionof a private criminal--wouldbe terrible retribution. Against that pernicious doctrine this Court should resolutely set its face." 277 U.S. at 485.

(Dissentingopinion.) 36Yu.s. at 222, 223, 80 S.Ct. at 1447, 4 L.Ed.2d at 1680-81. We said in Coburn, supra, in commenting on the above quote: "[Elnreasonableor illegal intrusions knowingly accepted 

### -- and used, from the private sector

### by the government amount to an extension of the silver platter doctrine condemnedby Elkins,particularly,when viewed in the light of judicial integrity emphasized in Elkins." (Emphasis in original.) 165 Mont.at 503, 530 P.2d at 450. The next landmark case in the development of the exclusionary rule was Mapp v. Ohio (1961),367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, which made the exclusionary rule binding in both state and federal cases. The concept of the judiciary remaining free from the taint of illegally seized evidence played a large part in the decision as revealed by the Court's concluding statement: "Ourdecision, founded on reason and truth, gives to the individualno more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice." 367 U.S. at 660 81 S.Ct. at 1694, 6 L.Ed.2d at 1093. See Terry v. Ohio (1968), 392 U.S. 1, 13, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889, 901 ("Aruling admitting evidence in a criminal trial,we recognize, has the necessary effect of legitimizing the conductwhich produced the evidence,while

an application of the exclusionary rulewithholds the constitutional imprimatur"). We find the following in McCormick on 

### -Evidence has this to say in che concluding paragraph in the section on evidence obtained by private individuals:"Onbalance, the factors seem to favor -- -- the imposition -- of the exclusionary -- rule. Although the situation is distinguishable from that inMapp, the distinction is nct of sufficient breadth to justify a drastic difference in the treatment of the resulting evidence. While the need to protect personal security fromprivate aswell aspublic invasicn is certainly an impcrtant factor, the controlling matter -- is the unfairness -- of the use of the evidence and the degrading of 

### --- -- -

### - the judicial system thatmust necessarily -- acconpany 

### -- that use. "(Emphasis added.) McCormick - on Evidence S 168, at 374. Here therewere two methods used in unlawfully gaining

access to defendant's rental unit. Mr. Westfall removed the hinge pins on the do~r for the first entry and cut defendant's padlock off the door for the second. It is hard to imaginemore blatant violations. It is uncontroverted here that the Westfalls had no idea that they would find any drugs in the suitcases. When Mrs. Westfall first knocked on and opened the door, the lightwas so dim that she could not describe the suitcases behind the defendant. Defendant's unit had no interior light and no windows and one needed to crawl in or out to enter or exit it. We note that defendant has already been convicted and sentenced on the assault charge for pointing the gun atMrs. Westfall. To sanction the admission of the evidence gained in this unlawful manner by allowing its presentation in a criminal trial makes the courts of this state aparty to violations of the constitutional rights of the defendant and

runs afoul of any viable notion of judicial integrity as outlined in Coburn, supra. It is also undisputed in the case at bar that the defendant's right to privacy was violated. Defendant is guaranteed this right under Art. 11, g 10 of our stateconstitution, supra. Of the ten states expressly protecting privacy in their constitutions,only two (Alaskaand Montanaj have privacy guarantees that stand alone in a separate section of the state constitution, A -Right 

### - of Privacy

as a Matter of State Constitutional Law (1977), 5 Fla.St. -- 

### - - L.Rev. 631, 690-701. Although the Alaska courts have apparently have interpreted their constitution to require state action to trigger the exclusionary rule,Allred v. State (Alaska1976), 554 P.2d 411, 416,we believe the better approach is that followed in Brecht and its progeny, supra. Montana's privacy right is the most elegant and the most uncompromising of the various privacy statements. 5 Fla.St. L.Rev. at 738. Respondent contends thatwe should adopt the good faith approach to the exclusionary rule approved by the Fifth Circuit in United States v. Williams (5thCir. 1980), 622 F.2d 830. We are not persuaded by this argument. As discussed above, Montana's constitutional guarantee of privacy is expressed in the strongest terms of any state constitution in the country and we are not bound by federal interpretations from other circuits. Statistics show thatmost motions to suppress are concentrated in offenses involvingnarcotics,weapons and gambling (with one-half filed in crimes involving narcotics and weapons), persuasive evidence that the application of the exclusi~nary rule is ccncentrated in these few areas, Studying t.heExclusionary 

### -- Rule in Search and Seizure (1970), 37 Univ. of Chicago L.Rev. 665, 706. These circumstancesusually arouse little if any public support or syrcpathy for the defendantwhose rights are violated. However, in a different context, the question ofthe admission of illegally obtained evidence is less volatile. For example, say an employee of a bank breaks into another's safety deposit box and discovers a stolenwatch, a clear constitutionalviolation. Are the rights of pusher or murderer any less than the watch thief's sinply because our society today views the latter crime as innocuous and less heinous? Our Constitution was not grounded on such shifting sand.To admit at a criminal trial evidence illegally obtained by private citizens is tc encourage a vigilante movement which has no redeeming social value in our society today. Moreover, many prosecutors in this statewould refuse to base a charge or informationon such evidence but there are

somewho persist in doing so. The State argues thatby not allowing the fruits of an unlawful citizen's search into evidence,many would-be criminals are allowed to go free. However, two recent studies indicate that the exclusionary rule has a negligible effect in freeing defendants. One study surveyed nearly 3,000 cases in 38 United States Attorney's offices between July 1 and August 31, 1978. Only 1.3 percent had evidence suppressed because of Fourth Amendment violations and more than half of the defendantswho successfullymoved to suppress were convicted anyway, Comptroller General of the United States, 

### - The Impact 

### -- of the Exclusionary 

### - Rule -- in Federal Criminal Prosecutions,rep. no. 66D-79-45 (April19, 1979). Another study found that less than one percent of all arrests

were eliminated for no follow-up prosecution because of due process violations such as illegal searches and seizures, Frost Lucianovich & Cox,What Happens After Arrest? (Wash. D.C. Art. for Law and SocialResearch,August 1977).National figures show that only 2 percent of the total number of persom held for prosecutionwere charged with weapons or narcotics offenses, the crimes where the exclusionary rule is applied most often, 37 Univ. of Chicago L.Rev. at 681. In view of these facts, the State's argument that many criminals are set free because of suppression of illegally-seized evidence due to the exclusionary rule loses much of its force. Also, statistics covering twelve years of law enforcement activity in Cincinnati, Ohio, show that the adoption of the exclusionary rule had no apparent effect

on arrests or convictions in narcotics, weapons and gambling offenses, 37 Univ. of Chicago L.Rev. at 707. Appellant argues that no probable cause existed to support the issuance of the searchwarrant in this case and it follows fromwhat we have said above that we agree. The warrant was based on evidence illegally obtained by Mr. Westfall and thewarrant was tainted thereby. See United States v. Crews (1980), 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537. Appellant's second issue relates to whether the District Court erred in adopting the State's proposed findings of fact and conclusicns of law. Appellant argues that this action violates the rule of law set forth in ~omaskie v. Tomaskie (1981), Mont

# . , 625 P.2d 536, 38 St.Rep. 416. The State concedes its proposed findings and conclusionswere accepted by the District Court with only rninor changes. We note that subsequent to the ~ornaskiecase, this Court decided Jensenv. Jensen (1981), -Mont

# . , 631 P.22 700, 38 St.Rep. 1109,wherein we stated that such an adoption is not grounds for reversal if the findinqs andconclusions are sufficiently comprehensive and supported by the evidence. It is clear fromwhat was said above that the DistrictCourt's decision is not supportedby the evidence or the law and thus fails to comportwith this standard. Reversed. 

# 'ibn~$, Chief Justice $ALLY44

We concur:

- JusticesMr. Justice John C. Sheehy concurring: I agree most emphatically with the foregoing opinion. It is near an absolute that in this country and in this state a judicial system would condemn the admission of evidence secured by trespasserswho here used methods usually employed by burglars to gain entrance into defendant's private domain. We were told in oral argumentby the State that a decision favoring the defendant in this casewould dampen the efforts of "Crimestoppers",a program designed to utilize informers in crime detection. I particularly reject that contention. The "Crimestoppers" effort ishaving laudable effect. Experience in the program shows that a good deal of the information developed

comes from co-conspirators or co-criminalswho for their own purposes or rewards turn to the law officers. The program certainlydoes not depend on private trespassers. Part of the funds given to support "Crimestoppers"comes from donations from the public. That public support would soon evaporate if indeed the result of theprogram was to turn our neighbors into vigilantes riding into our yards, garages,vaults and homes in searchof tangible evidence of illegal activity. If,

as the State argues "Crimestoppers" depends upon invasionby private trespassers for its ultimate success (Ido not believe so), then the program must face the sameproblem facing the unlawfully-acting constable: as the case develops the quarry may slip away. There are more ways than one to bag a cat. Why use a bag with a large hole at the other end? The State concedes that if the evidence in this case had been produced by the same kindsof actions ofpolice officers, no appellate court including the United States Supreme Court would condone admitting such evidence against the accused.The State was not asked,but itwould also have to concede, that if the record here showed the police officers had colludedwith the private trespassers to produce the evidence itwould not be admissible. So this case really comes down to this: the State is asking us to reinstate for Statepurposes the "silverplatter" arrangement condemned in Elkins v. United States (1960), 364 U.S. 206, 80 S.Ct. 1437, 

### 4 L.Ed.2d 1669. Another argument raised by the State is that a criminal trial is a "search for truth" and therefore courts should accept all evidence, notwithstanding taint, except for the weightiest policy considerations requiring exclusion. It is not new that assertions of high moral purpose have been posted as reasons for abusing persons or rights. Robin Hood stole from the rich to gave to thepoor--but he, the original Hood, was stealing. Brutuswas concerned that Julius Caesarmight make himself a king--and so he stabbed his friend. Adolph Hitler convinced

a race that their superiorblood should be keptpure--and they joined in the Holocaust. These are extreme examples but they serve, The end does not always justify the means. Another argumentmade by the State is that the police in in this case are guilty of no wrongdoing. Itwas the private trespassers that acted illegally. Again the argument is not

new. Adam tried to blame Evewhen he was caught with the fruits of an illegal seizure. By accepting the fruits of the illegality the police have stripped themselves from any insulation from its illegality under our view of the law that they stand in the footpads of the trespassers. Finally, a word about the posture of this case on appeal. The defendant comes to us as an appellant,despite the earlier rulings of this Court clearly on his side. In other words,the prosecution and the District Court had chosen not to follow our clear direction on the state of the law inMontana

on thismatter. This may not be the case,but one day soon, it canbe predicted, an innocentperson will be falsely accused by a trespasser and the Statewill prosecute,and the county and statewill be open to possible liability forwrongful prosecution. Sometimes it is smarter to follow the law even if one disagreeswith it.Mr. Justice Frank B. Morrison, Jr., specially concurring: I concur in the resultbut dissent from the rationale. Themajority opinion states: "It is also undisputed in the case at bar that the defendant's right to privacy was violated." I disagree. TheMontana Constitutionprovides: "Theright of individualprivacy is essential to thewell-being of a free society and shallnot be infringed without the showing of a compelling state interest." 1972 Montana Constitution, Article 11, Section 10. In a series of cases referred to in the majority opinion this Court has held that the privacy provision of the Montana Constitution proscribes private action aswell as government action. Such an interpretation finds support in the position articulatedby one delegate at the Montana Constitutional Convention but, inmy opinion, is not supported in the language of the privacy section itself. Historically constitutions have been documents securing to private citizens certain fundamental rights against governmental intrusion. Constitutions should not regulate the conduct among the various private interests in our society. Such interests should be competed for in the political forum. Constitutional rights,which protect against the awesome power of the State,are embedded in granite tablet. Once declared, these fundamental rights remain secure unless successfully attacked by a cumbersome constitutional amendment process. This process of amendment has never produced a restriction of rights. Once initially constitutionally rooted these fundamental declarations have become permanent. Inmy view, the rights and obligations among our people should be fought for at the ballot box, lobbied for in thelegislative process, and clarified through litigation arising and culminating in the judicialbranch. Competing concerns of private individuals are not entitled to constitutional permanency, but should be continually grappled with in a political forumwheremajority rule decides. 

### The 1972Montana Constitution expressly proscribes private action in the human rights provision. 1972Montana Constitution, Article 11, Section 

### 4. The delegates chose not to refer to private action in the privacy section. The courts should be reluctant to extend constitutionalprovisions beyond their stated purpose when the effect of such extension

runs contrary to historical precedent and limits constitutionally the free action of private individuals. The interpretation indulged by themajority results in greater restriction for the individual than for the State. Governmentaction invading privacy can be justified where a compelling state interest is shown. If the privacy intrusion is committed by an individual, seldom, if ever, could a compelling state interestbe demonstrated. The resultwould be to allow the State more freedom of movement than would be allowed any private citizen. I cannotbelieve this accords with constitutional intent. The right to be free from undue meddling by anyone should properly be the subject of legislative action. Such privacy matters have been treated legislatively, i.e., creditreports are covered in Title 31,Chapter 3,MCA. Likewise, statutes protect against disclosure of a host of subjects includingmedical records, insurance information, accident reports,and informationgiven to privileged sources. Thiswriter feels that in this day of computerization and electronic eavesdropping more legislative attention shouldbe directed toward protecting individual citizens from uninvited outside intrusion. The public policy questions inherent in such legislative action should be debated and resolved by the political structure. The constitution inhibits government, notprivate citizens. The strongest support for themajority decision involves application of the exclusionary rule on the basis of the "silverplatter doctrine." As themajority notes, this doctrine prohibited the federal government from using evidence obtained illegally by state officers. At the time of the decision articulating the "silverplatter doctrine" the FourthAmendment to the United States Constitution did not apply to state officers and therefore, there was not a constitutional basis for excluding evidence which these officers obtained through illegalmeans. The evidence was handed by state officers to federal officers on a "silver platter." No illegal actwas committed by federal officials in gathering the evidence. The exclusionary rule was applied by the United States Supreme Court though there could be no constitutional invasionby the state officers. The United States Supreme Courtheld that the evidence would be excluded because the federalprosecution, in using evidence illegally obtained by the State,became a lawbreaker and bred contempt for the law itself. As pointed out in themajority opinion, the United States Supreme Court in Elkins said inpart: "If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies themeans--to declare that the government may commit crimes in order to secure the conviction of a private criminal-wouldbring terrible retribution. Against thatpernicious doctrine this court should resolutely set its face." (Citationsomitted.) 364 U.S. at 223, 80 S.Ct. at 1447, 

### 4 L.Ed.2d at 1681. In Coburn, also cited by majority, JusticeDaly verylogicallynoted: 

# ".

. .[Ulnreasonableor illegal intrusions knowingly accepted andused, from the pri- 

### -- ~ate sector by the government amount to an extension of the silver platter doctrine condemned by Elkins, particularly when viewed in the light of judicial integrity emphasized in Elkins." (Emphasisin original) 163Mont. at 503, 530 P.2d at 450. If the "silverplatter doctrine" is to be recognized for the purpose of excluding evidence obtained by private individuals then, inmy opinion, it should be confined to instanceswhere the evidencewas obtained in violation of criminal statutes thereby rendering the evidence "illegal." In this way judicial integrity ispreserved by not judicially blessing the fruits of illegal activity. Such an application of the exclusionary rulewould not be premised upon an invasion of the accused's constitutional rights. Rather, the exclusionary rule, as a rule of court procedure,would prevent the State from relying upon the illegal conduct of a private citizen. My position is thus being modified from that articulated in Statev. Hyem (1981), Mont. 

## , 630 P.2d 202, 38 St.Rep. 891 (J.Morrison,dissenting). Inmy judgment,only the State canviolate the constitutional right of privacy of

an individual. Nevertheless, if a private individual violates the penal statutes of this State and thus obtains evidence subsequently offered against an accused, the exclusionary rule should be applied to deny such tainted evidence admission. Therefore, Iwould vote to grant suppression of the evidence obtained in this case. I concurwith themajority in remanding.

Morrison "' 

# !Mr. JusticeJohn Conway Harrison dissenting: This Court in a series of opinions commencing with State v. Jibwdc, supra, 1971, and ending with our latest case of State 

# BT& v. Hyem, supra, 1981, has established that the exclusionary rule is applicable to both public and private citizens. However, as Justice Morrison, so ably noted inhis dissent inHyem, (supra), Montana is the one state in fifty that has extended the exclusionaryrule to private actions. This has, inmy opinion, caused considerable problems within the criminal law field and while I have disagreed with the views of the majority from their inception, my one and only reason for speaking out again is in expectation that a middle-ground approach can be made by this Court in some future case that willnot be quite as extensive as

ourpresent rule. I would hold that evidence should not be suppressed under the exclusionary rule where it is discovered by officers or private persons in a course of actions that are taken in good faith and in the reasonable, though mistaken, belief that they are authorized. By recognizing that the present exclusionary rule exists to deter willful and flagrant actions by police, not unreasonable, good faith ones, perhaps an amicable solution to this problem in the law can be worked out. Examining not only

our cases but cases outside this jurisdiction, I am of the opinion that costs to society of applying the present rule is beyond the purposes for which it exists and are simply too high a price topay.

Mr. JusticeGene B. Daly, who was unable toattendthe oral argument, didnotparticipateinthisdecision.