No. 12707 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE STATE OF MONTANA, 

Plaintiff and Appellant, 

DONALD LEROY COBURN, 

Defendant and Respondent. 

Appeal from: District Court of the First Judicial District, 

Honorable Peter G. Meloy, Judge presiding. 

Counsel of Record: 

For Appellant : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

J. C. Weingartner, Assistant Attorney General, 

argued, Helena, Montana 

Leif B. Erickson argued, Deputy County Attorney, 

Helena, Montana 

For Respondent : 

Smith, Smith and Sewell, Helena, Montana 

Robert J. Sewell argued, Helena, Montana 

For Amicus Curiae: 

Rae Kalbfleisch, Shelby, Montana 

Thomas Honzel, Helena, Montana 

Submitted: June 12, 1974 

Decided : - -. : - ". -3 9 ,g73 r- F a Filed: ? : . 3 IS 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

The state appeals from an order of the district court, 

Lewis and Clark County, on January 23, 1974, to suppress evidence, i.e. marijuana. The evidence was seized by Robert Hillis, 

manager of McDonald's Restaurant, from a coat belonging to defendant hanging in the manager's office of the restaurant 

located in Helena, Montana. 

The Montana County Attorneys Association filed a motion 

with this Court for leave to appear, file a brief, and make oral 

argument amicus curiae. Its motion was granted. 

Defendant Donald Leroy Coburn was employed as an assistant manager at McDonald's Restaurant located in Helena. His 

supervisor was the manager, Robert illi is. While at home between 4:00 and 6:00 p.m., on November 29, 1973, Hillis received 

a phone call from Jason Keller, another assistant manager of 

McDonald's, alerting him that defendant had some marijuana on 

the restaurant's premises. Hillis then called the owner of the 

store in Billings to inform him of the problem and ask his advice. 

Following his conversation with the owner, Hillis went 

directly to the Helena police department and spoke with one Sgt. 

Sanguine. The transcript shows this examination of Hillis: 

"Q. As closely as possible, would you tell the 

Court what ya aid to the officer? A. Okay, I 

went down and I told him who I was and I told 

him that there was marijuana in the store and 

that I didn't want to get the store involved, 

you know, any more than necessary, and we talked 

about whether it was legal for him to go get it, 

and he said that he couldn't for some legal 

reason and we talked abaut whether I should, and 

he didn't know whether that was legal or not for 

sure and he called somebody and talked to them, 

I don't remember who it was and I don't remember 

whether we ever came to a definite decision as 

to whether I should qet it or forqet it or what, 

and I wasn't going to leave it in the store, I 

couldn't have it in the store because if the 

other kids, if any of them knew about it, because 

if one can do it they might all do it." 

On cross-examination, Hillis testified: 
"Q. I am trying to get some idea, you know, of 

what your frame of mind was when you left the 

police department. A. Well, I would have gotten 

it out of there one way or the other, if the 

police wouldn't I would have gotten it out myself. 

"Q. Now, you have testified that you had some 

conversation with the officer about whether or 

not you should remove this package? A. Right. 

"Q. And you also testified that you don't remember what conclusion was reached? A. No. - 

"Q. Well, could you say whether or not you had 

the feeling when you left the police department 

that you should do it? A. I had the feeling I 

was going to, I knew I was going to." 

On redirect: 

"Q. On this last topic you stated that at the 

police station or thereafter you went back with 

the idea of removing the marijuana. Had you formed 

that idea prior to going to the police station, 

the general concept that the marijuana should be 

removed from the premises? A. Yes, before I even 

went to the police station, definitely. 

"Q. So, it wasn't as a result of your conversation 

at the police station that you decided to remove 

the marijuana? A. No, absolutely not." 

On recross: 

"Q. And if the police had taken steps or had told 

you they would take steps, then I presume you 

wouldn't have taken any action to remove it? A. 

Right. I' 

On cross-examination Sgt. Sanguine testified: 

"0. - - Did he ask for any advice as to what to do? 

A. Well, he didn't want to, he didn't want the 

police to enter the premises because of the possibility of bad publicity for the company, but he 

just wanted us to know he was going to go down 

there. 

"0- Okav. and what did vou do, what did YOU 

respond tb that? A. weil, I advised him that 

under the circumstances that if he didn't want 

us to enter into it, he would be mainly on his 

own as to how he wanted to handle it. 

"Q. Could you tell us, well, is there anything do 

you remember any parting words when he left the 

police station? A. When he left, he was still 
undecided about how he was going to handle it 

and I did advise him if he wanted us to that 

we could wait until Mr. Coburn got off duty and 

we would confront him down off the premises. 

"Q. Did you feel you had, based on your experience as a police sergeant, did you feel that 

you had sufficient cause at that time to attempt 

to seize the substance? A. I feel that if hecould allow us to enter the premises, we could 

have. - I' 

On recross: 

"Q. I take it that when he came in and told you 

these problems and the fact that he didn't want 

his company involved, that there ensued a discussion about a seizure of these packages by 

himself, and rather than a seizure of the packages 

by you, is that true? A. Well, I didn't advise 

him to do it that way. 

"Q. That's right, I understand that, but what I 

want to know is what was said about him doing it. 

A. Well, I don't believe at the time he really 

didn't know what he was going to do, I can't say 

there was too much discussion on him removing it. 

"Q. Did you expect him when he came back with the 

stuff? A. No, I didn't really, I didn't think he 

would come back!' (Emphasis supplied). 

Following his conversation with Sgt. Sanguine, Hillis left 

the police station and went to the restaurant; upon arriving 

there, he entered the manager's office. This office was a private 

office to which only the manager and assistant managers had unlimited access. Hillis then saw defendant's coat hanging on the 

wall. He could see a bulge in the hip pocket. He removed the 

substance, later determined to be marijuana, from defendant's 

coat without a search warrant or without express or implied consent from defendant. Hillis then returned to the police station 

and turned the marijuana over to the police. 

In its order suppressing this evidence the district court 

said in part: 

"It is the opinion of this Court that the rule 

adopted by the Montana Supreme Court in - the 

Brecht case applies in the case at bar, therefore, 

it is 

"ORDERED that the motion to suppress the evidence 
obtained by the search be and the same is hereby 

granted." (Emphasis added). 

There is but one issue presented by the state in this 

appeal: Did the district court err in suppressing the evidence 

seized by Robert Hillis, relying on this Court's decision in 

State v. Brecht, 157 Mont. 264, 270, 485 P.2d 47 (1971)? 

This case is unique in that the state and amicus curiae 

attack only the Brecht decision. They ask that it be reversed 

and confine their arguments in that regard only to the application of the Fourth Amendment to the United States Constitution, 

ignoring any other considerations. This would indicate that 

Brecht, as written, is not clear and an explanation is warranted 

even though the instant case can be distinguished. 

In Brecht the defendant was charged with the murder of 

his estranged wife. Her death resulted from the discharge of a 

shotgun under disputed circumstances in the tavern where she was 

employed on the evening of May 17, 1967. Deceased and her sister 

Sandra resided with their mother at the mother's home for a period 

of time before the shooting. The sister Sandra received a call 

at the mother's home from the defendant on the evening of April 

29, 1967, some two weeks prior to the shooting incident; he asked 

to speak with his wife and Sandra called her to the telephone. 

Without the consent of either party, Sandra proceeded to listen 

to the conversation on an extension telephone in another room. At 

trial Sandra was permitted to relate the conversation which she 

alleged contained this threat by defendant "I got my shotgun out 

of hock, I am coming down and I will use it if I have to". 

In Brecht the state agreed that had this intrusion and 

the conversation overheard been obtained by an agent of the state 

it would have been excluded by the court because of the ruling in 

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L ed 2d 576 

(1967). Katz is a electronic surveillance case and the landmark 

case that overturned the longstanding doctrine that search and 
seizure under the Fourth Amendment was unreasonable only if an 

intrusion or trespass accompanied the seizure of "tangible goods" 

i.e., indicating a property right or enclave theory. Katz held 

these rights to be personal and protective of people and not 

simply areas with no physical intrusion required. Brecht excluded 

the conversation of Sandra Br~mfield based on violation of defendant's right of privacy established in Welsh v. Roehrn, 125 

Mont. 517, 241 P.2d 816, a court declared constitutional right; 

the Fourth and Fifth Amendments of the United States Constitution; 

Art. 111, Sec. 7 of the 1889 Montana Constitution; and stated in 

pertinent part: 

" * * * The violation of the constitutional right 

to privacy and against compulsory self-incrimination is as detrimental to the person to whom 

the protection is guaranteed in the one case as in 

the other. To distinguish between classes of 

violators is tantamount to destruction of the 

right itself. * * * 

"This Court in the present case would be remiss 

were it not to recognize that evidence obtained 

by the unlawful or unreasonable invasion of several of the constitutionally protected rights 

guaranteed to its citizens by both the federal 

and Montana. constitutions properly comes within 

the contemplation of this Court's exclusionary 

rule. To do otherwise would lend Court approval 

to a fictional distinction between classes of 

citizens: those who are bound to respect the 

Constitution and those who are not. Were the 

exclusionary rule to recognize such distinctions 

it would by indirection circumvent the rule 

established by this Court to enforce these rights 

and would in fact render the rule and the constitutional guarantees it protects meaningless." 

The state and amicus curiae proceed in argument on the 

premise that Brecht rested solely on the Fourth Amendment and 

present a deluge of Fourth Amendment cases which establish this 

general rule, contained in 68 Am Jur 2d, Searches and Seizures 

S13, p. 670: 

"It is no part of the policy underlying the 

Fourth Amendment to discourage citizens from 
aiding to the utmost of their ability in the 

apprehension of criminals. Accordingly, it 

has long been recognized that the Fourth 

Amendment's protections against unreasonable 

search and seizure do not extend to a search or 

seizure made by a private individual, conducted 

without police participation. In support of this 

rule, it has been said that the origin and history 

of the Fourth Amendment clearly show that it was 

intended only as a restraint upon the activities 

of sovereign authority, and that a contrary ruling 

would have no deterrent effect since private persons 

would be unaware of the rule * * *It. (Emphasis added). 

The general rule and cited cases are based on the holding of the 

United States Supreme Court in Burdeau v. McDowell, 256 U.S. 

The state and amicus argue that Brecht was improvident 

and against the weight of authority. A careful reading of Brecht 

reveals that this is an oversimplification of the problem. As 

heretofore stated Brecht rested only in part on the Fourth Amendment and it would appear that any attempt to reverse Brecht 

would necessarily require a treatment of additional constitutional 

considerations upon which the Brecht decision rests and, further, 

a consideration of the legal issues raised by defendant here. Defendant contends the search violated these constitutional and 

statutory provisions: 

Article 11, Sec. 10, 1972 Montana Constitution: 

"Right of Privacy. 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." 

Section 95-701, R.C.M. 1947: 

"Searches and seizures--when authorized. A 

search of a person, object or place may be made 

and instruments, articles or things may be seized 

in accordance with the provisions of this chapter 

when the search is made: 

"(a) As an incident to a lawful arrest. 

"Cb) With the consent of the accused or of any 

other person who is lawfully in possession of 

the object or place to be searched, or who is 

believed upon reasonable cause to be in such lawful possession by the person making the search. 
"(c) By the authority of a valid search warrant. 

"(d) Under the authority and within the scope of 

a right of lawful inspection granted by law." 

Defendant's contentions raise some interesting problems 

when considered with the fact that Montana has a statute, section 

95-611, R.C.M. 1947, which provides: 

"95-611. Arrest by a private person. A private 

person may arrest another when: 

"(1) he believes, on reasonable grounds, that an 

offense is being committed or attempted in his 

presence ; 

"(2) a felony has in fact been committed and he 

believes, on reasonable grounds, that the person 

arrested has committed it * * *". 

Also, the federal constitution contains no specific section establishing a separate and independent right of privacy as 

does the 1972 Montana Constitution. The United States Constitution recognizes the right as part of the First, Third, Fourth 

and Fifth Amendments. Katz v. United States, supra. 

The state in oral argument cited a Montana Law Review 

note at 34 Montana Law Review 187, which it advised the Court 

also represented the state's view as an in depth discussion of 

Brecht and the exclusionary rule. 

The totality of the state, amicus and law review article 

arguments reduce themselves to: 

(1) The exclusionary rule is not a completely satisfactory rule and represents an attempt to solve a problem that 

defies simple solution. The conflicting policy considerations 

are the interest of society in criminal prosecutions and the prohibiting of law enforcement personnel from violating Fourth 

Amendment proscriptions, a proscription extended to right of 

privacy as well. The intent of the rule was to remove the - incentive for officers to violate the rule and deter official 

misconduct and promote "judicial integrity". Loqic would dictate 
that to fulfill the function of the rule the person violating 

the rule must have an interest in obtaining the conviction and 

must at least be aware of the rule. 

(2) They adopt the strict construction doctrine of the 

general rule that the authors of the Fourth Amendment, fearing 

an oppressive sovereign, meant only to give limited protection 

from government action. The United States Supreme Court in 

Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L ed 

1048, said: 

"The Fourth Amendment gives protection against 

unlawful searches and seizures, and as shown in 

the previous cases, its protection applies to 

governmental action. Its origin and history 

clearly show that it was intended as a restraint 

upon the activities of sovereign authority, and 

was not intended to be a limitation upon other 

than qovernmental agencies; as against such 

authority it was the DurDose of the Fourth AmendmenL to secure the citlzen in the riqht of unmolested occupation of his dwellinq and the possession of his property subject to the riqht of 

seizure by process duly issued." (Emphasis added) 

A fair analysis of the arguments would seem to imply 

that the position of the parties was much the same as that expressed by Chief Justice Taft, writing for the majority in a fivefour decision, Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 

564, 72 L ed 944, 954, (1928), a telephone intrusion case by 

federal officers, where he held the Fourth Amendment not subject 

to application beyond the intent of the framers of the amendment 

and its words could not be stretched to be given a meaning to 

include "intangible" and trespass was a requirement to invade the 

protected property. 

All parties in the instant case have avoided any analysis 

of Katz in which, Justice Black in his dissenting opinion proclaims that the majority in - Katz have "rewritten the Fourth Amendmerit". Justice Black in his dissent also relied heavily on 

Olmstead . 

It would appear then that the arguments based on strict 
interpretation, origin, history, and intent of the authors as they 

concern the Fourth Amendment are highly diluted since Katz in 1967. 

The majority in Katz recognize that the former decisions of the 

Court foreclosed Fourth Amendment inquiry when penetration or 

trespass was absent, citing Olmstead and Goldman v. United 

States, 316 U.S. 129, 62 S.Ct. 993, 86 L ed 1322, for the Amendment was thought to limit only searches and seizures of tangible 

property and property rights controlled. The majority, in Katz, 

cited Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 

5 L ed 2d 734, as the departure from that narrow view and included 

intangibles as well. It went on to hold that the Fourth Amendment protects people and not simply "areas" and therefore the 

reach of the Fourth Amendment cannot turn upon the presence or 

absence of physical intrusion into any given enclosure, and the 

trespass doctrine in Olmstead and Goldman can no longer be controlling. 

This then demonstrates a radical departure from the 

accepted meaning of the words of the Fourth Amendment which controlled for over a period of 40 or more years, sincc Olmstead. 

It further demonstrates that these traditional concepts are not 

static. This is not a new concept by any means. In Olmstead, 

many years ago, among the four dissenting justices, Brandies 

observed in reference to interpretation on the same subject as 

- Katz: 

"Clauses guaranteeing to the individual protection 

against specific abuses of power, must have a 

similar capacity of adaptation to a changing 

world. It was with reference to such a clause 

that this court said, in Weems v. United States, 

217 U.S. 349, 373, 54 L ed 793, 801, 30 Sup.Ct. 

Rep. 544: 'Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils, but its general language should 

not, therefore, be necessarily confined to the form 

that evil had theretofore taken. Time works changes, 

brinss into existence new conditions and purposes. - - heref fore a principle to be vital must be capable 
of wider application than the mischief which gave 

it birth. This is peculiarly true of constitutions. 

They are not ephemeral enactments, designed to meet 

passing occasions. They are, to use the words of 

Chief Justice Marshall, "designed to approach 

immortality as nearly as human institutions can 

approach it." The future is their care and provision for events of good and bad tendencies of 

which no prophecy can be made. In the application 

of a constitution, therefore, our contemplation 

cannot be only of what has been but of what may 

be. Under any other rule a constitution would 

indeed be as easy of application as it would be 

deficient in efficacy and power. Its general 

principles would have little value and be converted 

by precedent into lifeless and impotent formulas. 

Rights declared in words might be lost in reality.'" 

(Emphasis added) . 

So far as privacy is concerned, Katz recognized the Fourth 

Amendment was not a general right of privacy but the right was 

contained in the Fourth and several other amendments, the First, 

Third and the Fifth, and as stated in Katz at p. 581, 19 L ed 2d, 

in reference to the right of privacy: 

" * * * his right to be let alone by other people-- 

is, like the protection of his property and of 

his very life, left largely to the law of the individual States." 

In Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 

29 L ed 746, (1886), the Court noted that the Fourth and Fifth 

Amendments were very closely tied and the unreasonable search and 

seizure of the Fourth Amendment almost always compels a man to 

give evidence against himself which is condemned in the Fifth 

Amendment. In this regard the Fourth and Fifth Amendments almost 

run into each other. This adds to the problem the fact that a 

violation of the Fifth Amendment rights, whether private or 

government, is condemned in all courts, military and civil. Haynes 

v. Washington, 373 U.S. 503, 

83 S.Ct. 1336, 10 L ed 2d 513, (1963); Rogers v. Richmond, 365 

U.S. 534, 81 S.Ct. 735, 5 L ed 2d 760, (1961); Payne v. Arkansas, 

356 U.S. 560, 78 S.Ct. 844, 2 L ed 2d 975, (1958). 

Concerning the exclusionary rule itself, it would be well 
to consider first that the "exclusionary rule" is a court adopted 

rule resting on the "rule making" and "supervisory power" of the 

Supreme Court over the other courts and has no roots in the constitution or the statutes of the state or federal government. 

(Dissent in Katz by Justice Black and citing Wolf v. Colorado, 

338 U.S. 25, 69 S.Ct. 1359, 93 L ed 1782; Mapp v. Ohio, 367 U.S. 

643, 81 S.Ct. 1684, 6 L ed 2d 1081, 84 ALR2d 933; Elkins v. U.S., 

364 U.S. 206, 80 S.Ct. 1437, 4 L ed 2d 1669, 1677, 1680, 1681, 

(1960) .) 

The fact that the rule is characterized as not satisfactory and the state in argument recommended that a tort remedy for 

the aggrieved was adequate, simply ignores that all of the cases 

which declare the rule as a deterrent because the wrong cannot 

be corrected or compensated, but merely avoided in the future, 

must have recognized that there could be no price placed on a 

constitutional right. 

The court in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 

(1955), observed that the court was compelled to apply the rule 

because all remedies, such as criminal and tort, had completely 

failed to secure these rights under the Constitution. Cahan 

was cited and approved in Elkins with a long discussion on the 

problem, citing statements from the chief law enforcement officers 

of California and the FBI in support of the rule. 

In Elkins, the court said: 

"The exclusionary rule has for decades been the 

subject of ardent controversy. The arguments of 

its antagonists and of its proponents have been 

so many times marshalled as to require no lengthy 

elaboration here." 

It is, however, noteworthy to comment on its application 

and the "silver platter doctrine" that resulted. The first 

application of the rule, in 1914, applied only to the federal 

court system and only excluded tainted evidence obtained by 
federal officers and as a result the so-called "silver platter 

doctrine" was developed, i.e., state officers could violate a 

person's constitutional right and hand the evidence to the federal officers [on a silver platter] and such evidence could be 

used in the federal court because no federal officer was physically involved in the violation. 

This practice was recognized but ignored for over 40 

years until Elkins. In that case, the "silver platter doctrine" 

was finally discredited. Elkins went on to observe that it is 

unlikely factual data could be assembled to demonstrate that the 

exclusionary rule was unworkable and in some depth demonstrated 

the opposite conclusion. Of more interest, Elkins cites with 

approval as a ground for rejecting the so-called "silver platter 

doctrine": 

"But there is another consideration--the imperative 

of judicial integrity. It was of this that Mr. 

Justice Holmes and Mr. Justice Brandeis so eloquently spoke in Olmstead v. United States, 277 

U.S. 438, at 469, 471,72 L ed 944, 952, 

953, 48 S.Ct. 564, 66 ALR 376, more than 30 

years ago. 'For those who agree with me,' said 

Mr. Justice Holmes, 'no distinction can be taken 

between the Government as prosecutor and the 

Government as judge.' 277 US 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 became 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.' 277 

U.S. at 485. (Dissenting opinion.)" 

Elkins also cites McNabb v. United States, 318 U.S. 332, 

345, 63 S.Ct. 608, 87 L ed 819, in support of this doctrine and 

then concludes: 
"Even less should the federal courts be accomplices 

in the willful disobedience of a Constitution they 

are sworn to uphold. " 

Of course, this would apply to all of the court systems. 

In Mapp, shortly after Elkins, the last door was closed 

and the exclusionary rule was applied to the state courts. The 

rule may have many of the deficiencies that are contended by 

the state, but a close examination of its history would seem to 

present a strong case that once the rule was formulated the unexplained, uneven and ignoble application by the judiciary lent 

no strength to the rule and it is certainly no compliment to 

judicial integrity to admit to the inordinate length of time 

that the "silver platter doctrine" was ignored. 

Incidental to this matter the state commented with emphasis in its brief, that State v. Gardner, 77 Mont. 8, 249 P. 

574 (1926),was not considered in Brecht but was by implication 

overruled by Brecht. The Supreme Court of Montana had adopted 

its own exclusionary rule at that time, long prior to Mapp, and 

did quote from Burdeau, the foundation case, for the general 

rule quoted in Gardner. However, Gardner involved the "silver 

platter doctrine" in the use of illegally obtained evidence by 

the federal authorities in a state court and used Burdeau to 

justify this action in an entirely different context than that 

under consideration in Brecht. It muld seem fair to assume that 

Elkins overruled, not Brecht. 

The argument that the exclusionary rule is wedded to 

the sovereign because the organized officialdom are the only ones 

that can be deterred because the injury to the victim cannot 

be restored or reparation comes too late, and that all others 

would have no prosecution motive and could not be familiar with 

the rule is an unwarranted generalization that completely disregards 

the changes that have taken place in our political and social 
structure and the legal impact of the cases on the subject 

since the rule was announced in Burdeau in 1921; with particular reference to - Katz and Elkins. It also follows that no 

consideration is being given to the cases cited, including 

Brecht, where there is a merger of the Fourth and Fifth Amendments in a violation of a personal right, particularly when 

authority cited by the state agrees that Fifth Amendment violations 

are excluded when done by a private person. No thought is given 

to the Montana Constitution or statutes previously cited. Finally, it fails altogether to recognize the massive increase in 

the incidents of the invasions of the right of privacy of the 

private citizen or the scientific advances that have made this 

possible, even though the United States Congress has finally 

recognized the problem and has given it priority consideration. 

Further, the arguments erroneously characterize the 

"private person" as the little old lady next door who has a desire to assist in law enforcement. When in fact a great many of 

the pure Fourth Amendment cases cited by the state involve 

"institutional", "quasi" or "private" police, i.e., airport 

guards, building security personnel, private detectives and we 

also have private corporation police like railroad police and 

self-help groups and investigators for political committees. 

Experience simply does not cast these groups of "private" persons 

in the minority. The standards agreed to by the state simply do 

not fit this segment of the private sector. Methods designed 

to protect the multiple rights of the whole of our citizenry 

are not intended to free criminals or discourage the participation of citizens in the enforcement of our laws. 

If one considers that any exclusionary process only excludes "unreasonable" conduct it can readily be seen that - all 

intrusions are not unreasonable. Like it or not unreasonable 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. It 

has been argued that Elkins did not disturb Burdeau, it may not 

have been clear in the pusFourth Amendment context, but a close 

examination does move one to believe that the silver platter 

concept was condemned in any context. 

This Court, however, does recognize the multitude of 

problems that arise and have arisen over the decades in an 

attempted solution of this very difficult problem and a final 

solution may well require that recognition be given to the wide 

disparity in terms of knowledge, motive and awareness of the 

widely diverse groups, institutions and individuals sought to be 

controlled and collusion avoided by the exclusionary rule. 

If personal rights are to be protected and governmental 

integrity preserved the answer does not lie in ignoring the 

problem, as did the federal system for so many years, but a 

possible examination of the rigidity of the rule itself might be 

in order. The solution could very well be partially achieved by 

an examination of standards for reasonableness in these matters 

applicable to government on the one hand, institutional police 

and private persons as we move down in this diverse process. This 

is much the same problem to be faced under a statutory "private" 

arrest, when it involves a search and seizure incident thereto. 

The Court is mindful that by respondent's brief and case 

analysis there have been constitutional and statutory questions 

raised that bear directly on this problem which we have not 

answered. Under the facts and circumstances of this case, we 

feel that we should not and therefore have not done so. 

As stated at the beginning of this opinion, the instant 
case can be distinguished from Brecht. It might be well to 

establish that it is distinguished on legal grounds. The Court 

does not call into question the good faith or integrity nor offer 

criticism of any of the parties here involved, for whatever 

personal reasons controlled the decisions made that night. 

The testimony clearly reveals two outstanding departures 

from the doctrine urged by state and amicus. 

(1) The transcript quoted reveals the reporting of a 

crime to the proper authority, with abundant probable cause for 

arrest procedure. At this point a crime against the state, not 

McDonalds, was involved. The public interest thereafter was 

subordinated to that of a private interest when the store manager 

was permitted the luxury of self-help. No matter how laudable 

the motives, there is no proof that adverse publicity would have 

been any greater had the matter been handled by the police. There 

is no legal difference if the crime reported had been a deceased 

person by unnatural means. After the manager obtained the drug 

it was promptly turned over to the police. This then is not the 

example used in argument of an innocent assist to the government 

with no conviction motive, or why else the initial report and 

the delivering of the evidence for prosecution. 

(2) The conference with officials :.%forehand defeats, at 

least impliedly, the ignorance of the rule concept. Further 

the state endorsed in its cited law review article, 34 Montana 

Law Review 187, 197, while explaining private cooperation with 

the police creates less of a problem than might be imagined, that: 

" * * * As soon as a private individual acts in 

association or cooperation with the police, the 

courts have held that his act is deemed to be 

the act of the state. [Miramontes v. Superior 

Court for County of San Mateo, 25 Cal.App.3rd 877, 

102 Cal. Rptr. 182 (1972) .] Not only will evidence 

be excluded if a private individual works at the 

direction or supervision of the police, but it 

will also be excluded when the police are guilty 
of no more than just 'idly standing by'". 

Stapleton v. Superior Court of L.A. County, 70 Cal.2d 97, 447 

P.2d 967, 970 (1969); State ex rel. Sadler v. District Court, 

70 Mont. 378, 225 P. 1000 (1924). 

Admittedly the facts of the case presented by the state 

through the law review article are much stronger than ours. 

However Stapleton does hold: 

" * * * the police need not have requested or directed the search in order to be guilty of 'standing 

idly by'; knowledge of the illegal search coupled 

with a failure to protect the [defendant's] rights 

against such a search suffices." 

The legal impact drawn from all of the facts seems to 

come much more under Stapleton than Brecht, however, in either 

case the district court was 

The judgment of the 

Justice 

We concur: 

.................................. 

Justices 

--- 

Hon. M. '&es Sorte, District 

Judge, sitting in place of Mr. Chief 

Justice James T. Harrison. 
Mr. Justice Wesley Castles dissenting: 

I dissent. 

I would squarely overrule State v. Brecht, 157 Mont. 

In Brecht, defendant was charged with murder in the 

first degree. Sandra Brumfield, sister of the deceased, was 

allowed to testify to a telephone conversation between defendant and the deceased. Both Sandra and the deceased were, at 

that time, residing in the home of their mother. During the 

telephone conversation, Sandra picked up an extension telephone 

and listened to the conversation. She was allowed to testify 

at the trial that she heard the defendant tell the deceased, 

"I got my shotgun out of hock, I am coming down and I will use 

it if I have to." This Court held that the admission of this 

testimony violated the defendant's Fourth and Fourteenth Amendment rights and his rights under Article 111, Sec. 7, of the 

1889 Montana Constitution. In so holding, this Court stated at 

pages 270, 271, that the exclusionary rule applied to searches 

and seizures conducted by private individuals: 

"The violation of the constitutional right to 

privacy and against compulsory self-incrimination 

is as detrimental to the person to whom the 

protection is guaranteed in the one case as in 

the other. To distinguish between classes of 

violators is tantamount to destruction of the right 

itself. 

"This Court in the present case would be remiss 

were it not to recognize that evidence obtained 

by the unlawful or unreasonable invasion of 

several of the constitutionally protected rights 

guaranteed to its citizens by both the federal 

and Montana constitutions properly comes within 

the contemplation of this Court's exclusionary 

rule. To do otherwise would lend Court approval 

to a fictional distinction between classes of 

citizens: those who are bound to respect the 

Constitution and those who are not. Were the 

exclusionary rule to recognize such distinctions 

it would by indirection circumvent the rule 
established by this Court to enforce these 

rights and would in fact render the rule and 

the constitutional guarantees it protects 

meaningless." 

Leaving aside for the moment issues relating to the 

Montana Constitution, the plain and simple truth is that a 

seizure by a private individual does not violate the federal 

Constitution so long as that individual cannot be deemed an 

agent of the state because of his involvement with the police. 

In the case of Burdeau v. McDowell, 256 U.S. 465, 475, 41 

S.Ct. 574, 65 L ed 1048 (1921), the defendant's employer had 

entered defendant's office, drilled his safe and broken the 

locks on his desk. A few months later, the employer turned the 

papers found over to the government. In response to a motion 

asking for an order for the return of the books, papers, memoranda, 

correspondence, and other data in the possession of the Special 

Assistant to the Attorney General of the United States, the 

Court stated: 

"The 4th Amendment gives protection against 

unlawful searches and seizures, and, as shown in 

the previous cases, its protection applies to 

governmental action. Its origin and history 

clearly show that it was intended as a restraint 

upon the activities of sovereign authority, and 

was not intended to be a limitation upon other 

than governmental agencies; as against such 

authority it was the purpose of the 4th Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the 

possession of his property, subject to the right 

of seizure by process duly issued. 

"In the present case the record clearly shows 

that no official of the Federal government had 

anything to do with the wrongful seizure of the 

petitioner's property, or any knowledge thereof 

until several months after the property had been 

taken from him and was in the possession of the 

Cities Service Company. It is manifest that there 

was no invasion of the security afforded by the 

4th Amendment against unreasonable search and 

seizure, as whatever wrong was done was the act 

of individuals in taking the property of another." 

Although the scope of the exclusionary rule has expanded 

immensely since the decision in Burdeau in 1921, that decision 
has not been deviated from by the courts of this country. The 

United States Supreme Court in Wolf v. Colorado, 338 U.S. 25, 

69 S.Ct. 1359, 93 L ed 1782 (1949), held that the Fourth Amendment's search and seizure prohibitions were applicable to the 

states under the due process clause of the Fourteenth Amendment. - 1 ?G' 

Its decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 408-f-, 6 

L ed 2d $6?4 (1961), by holding that "all evidence obtained by 

searches and seizures in violation of the Constitution is, by 

that same authority, inadmissible in a state court", made the 

exclusionary rule applicable to the states. However, in order 

to invoke the exclusionary rule on federal constitutional grounds 

there must have been, as a condition precedent, some violation 

of the federal constitution. Mapp, supra. A search and seizure 

by a private individual does not violate the Fourth Amendment. 

Burdeau, supra. Likewise, as the Fourteenth Amendment is directed 

to the states and not to private individuals, a search and seizure 

by a private individual does not violate the Fourteenth Amendment. Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 

2022, 29 L ed 2d 564 (1971) . Thus, because a search and seizure 

by a private individual does not violate the federal constitution, 

it follows that the exclusionary rule is not mandated by the 

federal constitution. 

Here, the events transpiring at the police station show 

there was no involvement by the police in this search and seizure 

nor was Hillis an instrumentality of the police. I cannot accept 

the proposition that a person becomes an instrumentality of the 

police merely by reporting an incident to the police. On the 

other hand, the police cannot use a person who reports a crime 

as an unwitting tool of the police to achieve ends forbidden to 

the police themselves. Such is not the case here. There is absolutely no evidence to indicate that the police consciously 

played dumb or refused to make the search and seizure for the 
purpose of encouraging a search and seizure by a private 

individual. 

The fact the police did not actively enter into the 

incident by prohibiting Hillis from making the search and 

seizure or by obtaining a search warrant and making the search 

and seizure themselves should not result in Hillis being deemed 

an instrumentality of the police and suppression of the evidence. 

It is not the policy of this state to inhibit the reporting of 

crime to the police. One of the motives of Hillis throughout 

this incident was to protect the reputation of McDonald's by 

preventing bad publicity which might ensue if uniformed police 

were to make the search and seizure on the premises. The police 

knew this. If the business community is aware that a report to 

the police must result in an immediate police response without 

regard for the consequences or its effect on its business' goodwill, there is no doubt in our minds that the reporting of 

incidents to the police will be inhibited and lessened. Thus, 

I would decline to hold that Hillis was an instrumentality of 

the police for purposes of the instant search and seizure. 

Defendant contends the search and seizure of the substance 

by Robert Hillis from defendant's coat pocket violated Article 11, 

Sections 10 and 11, of the 1972 Montana Constitution and section 

95-701, R.C.M. 1947, and thus must be suppressed by reason of 

the exclusianary rule. Those sections read as follows: 

"Section 10. Right of Privacy. 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. 

"Section 11. Searches and seizures. 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." 
the 

"95-701. Searches and seizures--when authorized. 

A search of a person, object or place may be 

made and instruments, articles or things may be 

seized in accordance with the provisions of this 

chapter when the search is made: 

"(a) As an incident to a lawful arrest. 

"(b) With the consent of the accused or of any 

other person who is lawfully in possession of 

the object or place to be searched, or who is 

believed upon reasonable cause to be in such 

lawful possession by the person making the 

search. 

"(c) By the authority of a valid search warrant. 

"(d) Under the authority and within the scope of 

a right of lawful inspection granted by law." 

Even if the search and seizure by Hillis was a violation 

foregoing provisions, the facts of this case not 

warrant an application of the exclusionary rule. 

In discussing the purpose of the exclusionary rule, the 

Supreme Court of the United States has recently stated in United 

States v. Calandra, U.S. , 94 S.Ct. , 38 L ed 2d 561, 

"The purpose of the exclusionary rule is not to 

redress the injury to the privacy of the search 

victim: 

"'[Tlhe ruptured privacy of the victims' homes 

and effects cannot be restored. Reparation 

comes too late.' Linkletter v. Walker, 381 U.S. 

618, 637, 14 L ed 2d 601, 85 S.Ct. 1731 (1965). 

"Instead, the rule's prime purpose is to deter future 

unlawful police conduct and thereby effectuate the 

guarantee of the Fourth Amendment against unreasonable search and seizures: 

"'The rule is calculated to prevent, not to repair. 

Its purpose is to deter--to compel respect for the 

constitutional guaranty in the only effectively 

available way--by removing the incentive to disregard it.' Elkins v. United States, 364 U.S. 

206, 217, 4 L ed 2d 1669, 80 S.Ct. 1437 (1960). 

"Accord, Mapp v. Ohio, 367 U.S. 643, 656, 6 L ed 2d 

1081, 81 S.Ct. 1684, 84 ALR2d 933 (1961); Tehan v. 

United States, ex rel. Shot, 382 U.S. 406, 416, 

15 L ed 2d 453, 86 S.Ct. 459 (1966); Terry v. Ohio, 

392 U.S. 1, 29, 20 L ed 2d 889, 88 S.Ct. 1868 (1968). 

In sum, the rule is a judicially-created remedy 
designed to safeguard Fourth Amendment rights 

generally through its deterrent effect, rather 

than a personal constitutional right of the 

party aggrieved. 

"Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to 

proscribe the use of illegally-seized evidence 

in all proceedings or against all persons. As 

with any remedial device, the application of the 

rule has been restricted to those areas where 

its remedial objectives are thought most efficaciously served." 

In declining to extend the exclusionary rule to the 

use in grand jury proceedings of evidence seized in violation of 

the Fourth Amendment, the Court in Calandra stated, at page 573 

"Against this potential damage to the role and 

functions of the grand jury, we must weigh the 

benefits to be derived from this proposed extension of the exclusionary rule. Suppression of 

the use of illegally-seized evidence against the 

search victim in a criminal trial is thought to 

be an important method of effectuating the Fourth 

Amendment. But it does not follow that the Fourth 

Amendment requires adoption of every proposal 

that might deter police misconduct. In Alderman 

v. United States, 394 U.S., at 174, 22 L ed 2d 176, 

for example, this Court declined to extend the 

exclusionary rule to one who was not the victim 

of the unlawful search: 

"'The deterrent values of preventing the incrimination of those whose rights the police have violated have been considered sufficient to justify 

the suppression of probative evidence even though 

the case against the defendant is weakened or 

destroyed. We adhere to that judgment. But we 

are not convinced that the additional benefits 

of extending the exclusionary rule to other defendants would justify further encroachment upon 

the public interest in prosecuting those accused 

of crime and having them acquitted or convicted 

on the basis of all the evidence which exposes the 

truth. ' 

"We think this observation equally applicable in 

the present context. 

"Any incremental deterrent effect which might be 

achieved by extending the rule to grand jury 

proceedings is uncertain at best. Whatever 

deterrence of police misconduct may result from 

the exclusion of illegally-seized evidence from 

criminal trials, it is unrealistic to assume 

that application of the rule to grand jury proceedings would significantly further that goal. Such 
an extension would deter only police investigation consciously directed toward the discovery of evidence solely for use in a grand 

jury investigation. The incentive to disregard 

the requirement of the Fourth Amendment solely 

to obtain an indictment from a grand jury is substantially negated by the inadmissibility of the 

illegally-seized evidence in a subsequent criminal prosecution of the search victim. For the 

most part, a prosecutor would be unlikely to 

request an indictment where a conviction could 

not be obtained. We therefore decline to embrace a view that would achieve a speculative 

and undoubtedly minimal advance in the deterrence 

of police misconduct at the expense of substantially impeding the role of the grand jury." 

From the foregoing excerpts from Calandra, it can be 

readily seen that the purpose of the exclusionary rule is to 

deter future unlawful official conduct and not as a bonus to 

the criminal defendant whose rights have been violated. Where 

there has been no unlawful official misconduct, as in the 

present factual situation, the reason for the rule fails. Even 

if it be conceded that the reason for the exclusionary rule is 

to deter all illegal conduct, official or private, the application of the rule has been restricted to those areas where its 

remedial objectives are thought most efficaciously served. 

Calandra, supra. Thus, whether the exclusionary rule will be 

applied in any given case comes down to a balancing test: whether 

the rule's value as a deterrent to misconduct outweighs the 

public interest in preventing and prosecuting crime. 

As stated in the Note at 34 Montana Law Review 187, 195- 

"Logic indicates that certain requirements must 

be met if the rule is in fact going to fulfill 

its deterrent function. For one thing, the person committing the search and seizure must have 

an interest in obtaining a conviction with the 

information he secures. Obviously the rule is 

of no value where, for example, the police have 

'no interest in prosecuting, or are willing to 

forego successful prosecution in the interest 

of serving another goal.' * * * 

"The other requirement, which on the surface seems 
elemental, is that the person involved in the 

search and seizure must at least be aware of 

the rule. While it is not unusual to expect 

the police to be familiar with certain salient 

rules of evidence, it does seem unlikely that 

a layman with no interest or intent of securing 

the conviction of criminals would have much knowledge in this area. " 

The testimony set forth at the beginning of the majority 

opinion shows that Hillis had two motives for removing the substance from defendant's pocket, neither of which was to prosecute 

or convict defendant: (1) He wanted to remove the substance so 

that the other employees would not get the feeling that they 

could with impunity possess drugs on the McDonald's premises; 

(2) he desired to keep the police from getting involved in order 

to protect the reputation of McDonald's. Whether or not the 

desire to keep the police from getting involved was proper, 

Hillis was not motivated to secure a conviction of defendant. 

Neither is there any evidence of Hillis' awareness of the exclusionary rule. 

Even if it had been established that Hillis had been 

motivated to secure a conviction or had known of the exclusionary 

rule, the application of that rule in the case of a search and 

seizure by a private individual, as here, would not be appropriate. The function of the exclusionary rule is to deter, not 

to repair. Despite the motivation or knowledge of the exclusionary 

rule in the present case, the Court is bound to look at what 

effect an application in this case would have on future cases of 

search and seizure by private individuals. We believe it would 

be a rare case where a private individual conducting an illegal 

search and seizure would have both the motivation to convict and 

an awareness of the exclusionary rule. Thus, the deterrent effect 

of imposing the exclusionary rule in this case would be speculative at best. Such speculative value is here outweighed by the 

public interest in preventing and prosecuting crime. When the 
reason of a rule ceases, so should the rule itself. Section 

49-102, R.C.M. 1947. 

It is difficult to determine just what the legal basis 

is for the majority opinion other than a love for the exclusionary 

rule. Heretofore I have attempted to show that Hillis was not 

in any manner an instrumentality of the police and in no sense 

was the proverbial "silver platter doctrine" involved here. 

Moreover, the majority opinion states that when Hillis reported 

to the police there was "abundant probable cause for arrest 

procedure"! Surely the majority does not mean that. Compare 

the holding on probable cause for an arrest here with that in 

State v. Thorsness, Mont . -1 - P.2d - , 31 St.Rep. 895, 

written by Justice Haswell and concurred in by Justice Daly. 

Thereafter the majority approves the statement in Stapleton 

v. Superior Court of L. A. County, 70 Cal.2d 97, 447 P.2d 967, 

970, that: 

"Not only will evidence be excluded if a private 

individual works at the direction or supervision 

of the police, but it will be also excluded when 

the police are guilty of no more than 'just idly 

standing by ' . " 

In my view this is an unwise extension of the exclusionary rule. 

Mr. Justice John Conway Harrison concurring in Justice castles' 

dissent : 

Although I did not participate in Brecht I join Justice 

Castles in his dissent here and would overrule Brecht. No other 

jurisdiction that I can find has extended the "silver platter1' 

doctrine to include all that Brecht covers. In my opinion the 

net effect of Brecht further hamstrings law enforcement officials. 

C33j Justice