NO. 82-36 

IN THE SUPREFE COURT OF THE STATE OF MONTANA 

1982 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

VS. 

THOMAS VAN 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 2 3 2982 

Submitted: May 20, 1982 

Decided: August 23, 1982 
Mr. Chief Justice Frank 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 facts of this case are uncontroverted. Robert 

and Mae Westfall were the managers of Shurgard Mini Storage 

in Billings, Montana, a collection of storage units which 

are rented out to customers. In January 1981, the Westfalls 

rented a unit to defendant who identified himself as "Bill 

Hayes. I' 

On July 31, 1981, at closing time, defendant arrived 

at ~hurgard and was given permission to go to his unit. 

Because Mae Westfall had earlier instructed another customer 

(Bender) to lock the gate when he left, Mae Westfall went 

to inform Bender of defendant's presence. After doing so, 

she noticed the door to defendant's unit was sh~t and 

wondered what he was doing, since there were no interior 

lights in defendant's unit. Mrs. Westfall also wanted to 

know how much longer defendant was going to be cn the 

premises. 

Mrs. Westfall walked to the door of defendant's 

unit, knocked and said, "Hey, you in there." There was 

no response so she repeated the procedure with no result. 

She then opened the door and saw defendant sitting on the 

floor, pointing a gun at her. She also saw two suitcases 

on the floor behind him but was unable to describe them 

because of the dimness of the room's interior. She then 

yelled for Bender, who tried to wrestle the gun from 

defendant. Mrs. Westfall left to inform her husband whc 

in turn called the police. The police arrived after defendant 
had left but the Westfalls informed them that they did 

not wish to press any charges at that time. 

Pursuant to company policy, Mrs. Westfall called the 

Washington home office on the next working day and related 

the events to them. Personnel at the home office suggested 

the Westfalls find out what was in the suitcase. Mr. Westfall 

removed the hinge pins from the padlocked door and entered 

defendant's unit. He opened one of the suitcases and saw a 

number of bottles of pills. He also opened a purse lying on 

the floor which he found to contain silverware. After 

closing the suitcase, purse and replacing the door, Ilk. 

Westfall called the police indicating that they now wished 

to press assault charges. 

Based on the information provided by the Westfalls, the 

Billings police obtained a search warrant and seized the 

suitcase and 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 intent to sell. Defendant 

pleaded not guilty and filed a motion to suppress. The court 

denied the motion and, after a nonjury trial, sentenced the 

defendant to fifteen years in the Montana State Prison and 

designated him a dangerous offender. Defendant appeals. 

Defendant raises two issues on appeal which can be 

stated as follows: 

1. Whether the District Court erred in failing to 

suppress the evidence. 

2. Whether the District Court erred in adopting the 

State's proposed findings of fact and conclusions of law. 

With regard to the first issue appellant argues that 

Montana's position on "citizen searches" mandates a reversal, 
citing State v. Hyem (19811, - Mont. - 

, 630 P.2d 202, 38 

St.Rep. 891; State v. Helfrich (1979), - Mon t . - , 600 

P.2d 816, 36 St.Rep. 1763; State v. Coburn (1974), 165 Yont. 

488, 530 P.2d 442; and State v. Rrecht (1971), 157 Nont. 

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 that Nontana's 

constitution explicitly guarantees an individual's right to 

privacy was a major factor of the Hyem and Helfrich decisions: 

"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. 

1972 Montana Constitution, Article 11, 

Section 10. " 

The State concedes that, if we follow Hyem and its 

predecessors, the defendant's conviction must be reversed 

but argues that we 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 (to deter police 

from violating other's constitutional rights by excluding 

the evidence) has no application to private citizens because 

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 system must not become an 
accomplice to constitutional violations by admitting evidence 

illegally obtained. 

It is clear from the seminal cases involving the exclusionary rule that judicial integrity was 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 issue was whether evidence obtained 

unconstitutionally by 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 

affirm by 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: 

"But there is another consideration--the 

imperative of judicial integrity. It was 

of this that Mr. Justice Holmes and Mr. 

Justice Brandeis 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, 'no distinction 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, 'existence of 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 

the means--to declare that the Government may 

commit crimes in order to secure the conviction 
of a private criminal--would be terrible retribution. 

Against that pernicious doctrine this Court should 

resolutely set its face." 277 U.S. at 485. 

(Dissenting opinion.) 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: 

"[Elnreasonable or illegal intrusions 

knowingly accepted -- and used, from the private 

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." (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: 

"Our decision, founded on reason and truth, 

gives to the individual no 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 ("A ruling admitting evidence in a 

criminal trial, we recognize, has the necessary effect of 

legitimizing the conduct which produced the evidence, while 

an application of the exclusionary rule withholds 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: 
"On balance, the factors seem - - to -- 

favor 

the imposition -- of the exclusionary -- rule. 

Although the situation is distinguishable 

from that in Mapp, 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 from private as well as public 

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 that must necessarily 

acconpany -- that use. "(Emphasis added. ) 

McCormick - on Evidence S 168, at 374. 

Here there were 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 imagine more 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 

light was 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 at Mrs. 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 a party 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 state 
constitution, supra. Of the ten states expressly protecting 

privacy in their constitutions, only two (Alaska and 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 (Alaska 1976), 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 that we should adopt the good faith 

approach to the exclusionary rule approved by the Fifth 

Circuit in United States v. Williams (5th Cir. 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 that most motions to suppress are 

concentrated in offenses involving narcotics, 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.he Exclusionary -- Rule in Search and Seizure (1970), 

37 Univ. of Chicago L.Rev. 665, 706. 

These circumstances usually arouse little if any public 

support or syrcpathy for the defendant whose rights are 

violated. However, in a different context, the question of 
the 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 stolen watch, a clear 

constitutional violation. 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 state would refuse to 

base a charge or information on such evidence but there are 

some who persist in doing so. 

The State argues that by 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 defendants who successfully moved 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 (April 19, 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 Social Research, August 1977). 
National figures show that only 2 percent of the total 

number of persom held for prosecution were 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 search warrant in this case 

and it follows from what we have said above that we agree. 

The warrant was based on evidence illegally obtained by 

Mr. Westfall and the warrant 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 conclusions were accepted by the District Court with 

only rninor changes. 

We note that subsequent to the ~ornaskie case, this 

Court decided Jensen v. 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 and 
conclusions are sufficiently comprehensive and supported by 

the evidence. It is clear from what was said above that 

the District Court's decision is not supported by the 

evidence or the law and thus fails to comport with this 

standard. 

Reversed. 

'ibn~$, Chief Justice $ALLY44 

We concur: 

- Justices 
Mr. 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 trespassers who here used methods usually employed 

by burglars to gain entrance into defendant's private domain. 

We were told in oral argument by the State that a decision 

favoring the defendant in this case would dampen the efforts of 

"Crimestoppers", a program designed to utilize informers in 

crime detection. I particularly reject that contention. The 

"Crimestoppers" effort is having laudable effect. Experience 

in the program shows that a good deal of the information developed 

comes from co-conspirators or co-criminals who for their own 

purposes or rewards turn to the law officers. The program 

certainly does 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 the program was to turn our neighbors 

into vigilantes riding into our yards, garages, vaults and 

homes in search of tangible evidence of illegal activity. If, 

as the State argues "Crimestoppers" depends upon invasion by 

private trespassers for its ultimate success (I do not believe 

so), then the program must face the same problem 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 kinds of actions of police officers, 

no appellate court including the United States Supreme Court 

would condone admitting such evidence against the accused. 
The State was not asked, but it would also have to concede, 

that if the record here showed the police officers had 

colluded with the private trespassers to produce the evidence 

it would not be admissible. So this case really comes down 

to this: the State is asking us to reinstate for State purposes 

the "silver platter" 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 the poor--but he, the original Hood, was stealing. 

Brutus was concerned that Julius Caesar might make himself a 

king--and so he stabbed his friend. Adolph Hitler convinced 

a race that their superior blood should be kept pure--and they 

joined in the Holocaust. These are extreme examples but they 

serve, The end does not always justify the means. 

Another argument made by the State is that the police in 

in this case are guilty of no wrongdoing. It was the private 

trespassers that acted illegally. Again the argument is not 

new. Adam tried to blame Eve when 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 in Montana 

on this matter. This may not be the case, but one day soon, 

it can be predicted, an innocent person will be falsely accused 

by a trespasser and the State will prosecute,and the county 

and state will be open to possible liability for wrongful 

prosecution. Sometimes it is smarter to follow the law even 

if one disagrees with it. 
Mr. Justice Frank B. Morrison, Jr., specially concurring: 

I concur in the result but dissent from the rationale. 

The majority opinion states: 

"It is also undisputed in the case at bar 

that the defendant's right to privacy was 

violated." 

I disagree. 

The Montana Constitution 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." 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 as well as government 

action. Such an interpretation finds support in the position 

articulated by one delegate at the Montana Constitutional 

Convention but, in my 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. 

In my view, the rights and obligations among our people 

should be fought for at the ballot box, lobbied for in the 
legislative process, and clarified through litigation arising 

and culminating in the judicial branch. Competing concerns 

of private individuals are not entitled to constitutional 

permanency, but should be continually grappled with in a 

political forum where majority rule decides. 

The 1972 Montana Constitution expressly proscribes 

private action in the human rights provision. 1972 Montana 

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 constitutional provisions 

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 the majority results in 

greater restriction for the individual than for the State. 

Government action 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 interest be demonstrated. The result would 

be to allow the State more freedom of movement than would be 

allowed any private citizen. I cannot believe 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., 

credit reports are covered in Title 31, Chapter 3, MCA. 

Likewise, statutes protect against disclosure of a host of 

subjects including medical records, insurance information, 

accident reports, and information given to privileged sources. 

This writer feels that in this day of computerization and 

electronic eavesdropping more legislative attention should 
be 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, 

not private citizens. 

The strongest support for the majority decision involves 

application of the exclusionary rule on the basis of the 

"silver platter doctrine." As the majority notes, this 

doctrine prohibited the federal government from using evidence 

obtained illegally by state officers. At the time of the 

decision articulating the "silver platter doctrine" the 

Fourth Amendment 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 illegal means. The evidence was 

handed by state officers to federal officers on a "silver 

platter." No illegal act was 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 invasion by the state officers. The United 

States Supreme Court held that the evidence would be excluded 

because the federal prosecution, in using evidence illegally 

obtained by the State, became a lawbreaker and bred contempt 

for the law itself. As pointed out in the majority opinion, 

the United States Supreme Court in Elkins said in part: 

"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 

the means--to declare that the government 

may commit crimes in order to secure the conviction of a private criminal-would bring 

terrible retribution. Against that pernicious 

doctrine this court should resolutely set its 

face." (Citations omitted.) 364 U.S. at 223, 

80 S.Ct. at 1447, 4 L.Ed.2d at 1681. 

In Coburn, also cited by majority, Justice Daly very 
logically noted: 

". . . [Ulnreasonable or 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." (Emphasis in original) 163 Mont. at 503, 530 P.2d at 450. 

If the "silver platter doctrine" is to be recognized 

for the purpose of excluding evidence obtained by private 

individuals then, in my opinion, it should be confined to 

instances where the evidence was obtained in violation of 

criminal statutes thereby rendering the evidence "illegal." 

In this way judicial integrity is preserved by not judicially 

blessing the fruits of illegal activity. Such an application 

of the exclusionary rule would 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 State v. Hyem (1981), Mont. , 630 P.2d 202, 38 

St.Rep. 891 (J. Morrison, dissenting). In my judgment, only 

the State can violate 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, I would vote to grant suppression of the evidence 

obtained in this case. 

I concur with the majority in remanding. 

Morrison 

"' 

! 
Mr. Justice John 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 in his dissent in Hyem, (supra), 

Montana is the one state in fifty that has extended the exclusionary rule to private actions. This has, in my 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 will not be quite as extensive as 

our present 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 

to pay. 

Mr. Justice Gene B. Daly, who was unable to attend the oral 

argument, did not participate in this decision.