CITY OF BILLINGS, 

Plaintiff and Appellee, 

v. FILE 

KATRINA LYNN HOFMAN, OCT 0 5 2021 

Defendant and Appellant, 

Bowen Greenwood 

Clerk of Suprerne Court 

State of Montana 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and For the County of Yellowstone, Cause No. DC 19-0041 

Honorable Mary Jane Knisely, Presiding Judge 

COTINSEL OF RECORD: 

For Appellant: 

Filed: 

Chad Wright, Appellate Defender, Moses Okeyo, Assistant Appellate 

Defender, Helena, Montana 

For Appellee: 

Austin Knudsen, Montana Attorney General, Jonathan M. Krauss, Assistant 

Attorney General, Helena, Montana 

Gina Dahl, Billings City Attorney, Chantel Anderson, Deputy City 

Attorney, Billings, Montana 

Submitted on Briefs: August 4, 2021 

Decided: October 5, 2021 

Clerk 
Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana 

Reports. 

¶2 Katrina Lynn Hofinan was convicted of two counts of Violation of Order of 

Protection in the Billings Municipal Court after multiple alleged contacts with C.S., the 

person protected by the order. The Thirteenth Judicial District Court affirmed. On appeal 

to this Court, Haman argues that the Municipal Court should have excluded from evidence 

a recording C.S. made of one of Hofman's phone calls without her knowledge because C.S. 

violated Montana's Privacy in Communications statute, § 45-8-213, MCA. We affirm. 

¶3 In February 2018, C.S. obtained an order of protection against Haman, his former 

girlfriend, because she was allegedly harassing him and his family through text messages. 

The protective order stated in part that "[Haman] shall not harass, annoy, disturb the peace 

of, telephone, email, contact or otherwise communicate, directly or indirectly, with [C.S.]." 

In March 2018, Haman violated this provision by phoning C.S. more than fifty times 

within one hour. C.S. recorded one of these phone conversations because he knew that 

Hofman typically called from unknown phone numbers. C.S. provided the recording to 

Officer Stovall, the investigating officer. Officer Stovall also photographed C.S.'s phone 

to document Hofman's numerous calls. 

2 
City countered that Hofman should have raised the objection in a pretrial motion to 

suppress. The court denied the objection, noting that, although Hofman had every right to 

report the incident to law enforcement, she could not use the Privacy in Comrnunications 

statute to exclude the recording from evidence. The court also agreed with the City that 

the objection should have been raised in a pretrial motion to suppress. 

¶5 On appeal to the District Court, Hofman argued that the Municipal Court abused its 

discretion when it refused to consider her objection and that the court erred when it 

admitted the phone recording. The District Court held: (1) the Municipal Court did not 

abuse its discretion because Hofman had ample tirne and opportunity to raise her objection 

before trial and, therefore, could not establish the "good cause" exception of 

§ 46-13-101, MCA; and (2) the Municipal Court did not err by admitting the recording 

because the Privacy in Cornmunications statute "does not provide an independent statutory 

remedy" for suppression of evidence. 

¶6 We review "an appeal of a district court's decision on appeal from a rnunicipal court 

as if the appeal originally had been filed in this Court." City of Missoula v. Pope, 

2021 MT 4, ¶ 5, 402 Mont. 416, 478 P.3d 815 (citation omitted). We review a denial of a 

motion to suppress to determine whether the district court's findings of fact were clearly 

3 
Court and the District Court addressed it. We turn to the merits of Hofinan's claim. 

¶7 In State v. Long, 216 Mont. 65, 71, 700 P.2d 153, 157 (1985), we held that 

"the privacy section of the Montana Constitution contemplates privacy invasion by state 

action only." We explicitly overruled a line of cases holding that "private searches invade 

privacy rights protected by the Constitution and are properly the subject of our exclusionary 

rule." Long, 216 Mont. at 67, 69, 700 P.2d at 155-56 (overruling State v. Hyem, 

193 Mont. 51, 630 P.2d 202 (1981), and similar cases). In State v. Christensen, 

244 Mont. 312, 319, 797 P.2d 893, 897 (1990), we addressed the question Long did not 

resolve, stating that "the exclusionary rule does not apply to evidence resulting from the 

conduct of private individuals, even if felonious, unless that conduct involves state action." 

¶8 Hofinan does not argue that C.S.'s recording of her phone call involved any state 

action. She instead urges this Court to revisit Long and re-establish the line of precedent 

it overruled. In support of this argument, Hofinan cites State v. Van Haele, 199 Mont. 522, 

530, 649 P.2d 1311, 1315 (1982), overruled by Long, where we stated that adrnitting 

illegally obtained evidence by private citizens would "encourage a vigilante movementil" 

We considered and rejected similar policy arguments in Long and in Christensen. 

See Long, 216 Mont. at 71-72, 700 P.2d at 157-58 (discussing the extension of the silver 

4 
trampled remnants of the constitution."). We decline to revisit Long as Hofman offers no 

novel arguments for overruling it and fails to demonstrate that it is manifestly incorrect. 

¶9 Hofman's situation is addressed squarely by Christensen. Even if C.S. violated the 

Privacy in Communications statute, the recording is not subject to the exclusionary rule 

because C.S. obtained it privately, without state involvement. Therefore, the Municipal 

Court correctly overruled Hofman's objection to the admission of the phone recording. 

¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our 

Internal Operating Rules, which provides for mernorandum opinions. In the opinion of the 

Court, the case presents a question controlled by settled law. The District Court correctly 

applied the law when it upheld Hofinan's conviction. Its December 10, 2019 Order is 

affirmed. 

Justici 

We Concur: 

Chief Justice 

5 
Justices