No. 12707 INTHE 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 FirstJudicial 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:

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r-Fa Filed: 

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# ISMr. Justice Gene B. Daly delivered the Opinion of the Court. The stateappeals from an order of the districtcourt, 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 todefendant hanging in the manager's office of the restaurant located inHelena, Montana. The Montana County Attorneys Association filed a motion with thisCourt for leave toappear, filea brief, and make oral argument amicus curiae. Itsmotion was granted. Defendant Donald Leroy Coburn was employed asan assistantmanager atMcDonald's Restaurant located inHelena. His supervisorwas the manager, Robert illi is. While athome between 4:00 and 6:00 p.m., on November 29, 1973, Hillisreceived

a phone call from Jason Keller, another assistantmanager of McDonald's, alerting him that defendant had some marijuana on the restaurant's premises. Hillisthen called the owner of the store inBillings toinform him of the problem and ask his advice. Following hisconversation with the owner, Hilliswent directlytotheHelena police department and spoke with one Sgt. Sanguine. The transcript shows thisexamination of Hillis: "Q. Asclosely aspossible, would you tellthe Court what yaaidtothe officer? A. Okay, I went down and I told him who I was and I told him that there was marijuana inthe store and that I didn't want toget the store involved, you know, any more than necessary, and we talked about whether it was legal for him togo get it, and he said thathe 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 tothem, I don't remember who it was and I don't remember whether we ever came to a definite decision as towhether I should qet it or forqet it orwhat, and I wasn't going toleave it inthe store, I couldn't have it inthe storebecause if the other kids, if any of them knew about it,because if one can do it they might alldo it." On cross-examination, Hillistestified:"Q. Iam trying to get some idea,you know, of what your frame of mind was when you left the police department. 

### A. Well, Iwould have gotten it out of there one way or the other, if the police wouldn't 

### Iwould have gotten it outmyself.

"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 conclusionwas 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. Ihad the feeling I was going to, Iknew Iwas 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 themarijuana? A. No, absolutely not." On recross: "Q. And if the police had taken steps or had told you they would take steps, then Ipresume 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 knowhe 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 stillundecided about how he was going tohandle it and I did advise him if he wanted us tothat we could waituntilMr. Coburn got off duty and we would confront him down off the premises. "Q. Did you feelyou had, based on your experience as a police sergeant, did you feel that you had sufficient cause atthat timetoattempt toseize the substance? A. I feelthat if hecould allow us toenter 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 seizureof these packages by himself, and rather than a seizure of the packages by you, is that true? A. Well, I didn't advise him todo it that way. "Q. That's right, I understand that, but what I want toknow iswhat was said about him doing it. A. Well, I don't believe atthe timehe really didn't know what he was going todo, I can't say there was toomuch 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, Hillisleft the police station and went tothe restaurant; upon arriving there, he entered themanager's office. This office was a private office towhich only the manager and assistantmanagers had unlimited access. Hillisthen sawdefendant's coat hanging on the wall. He could see a bulge inthe hip pocket. Heremoved the substance, later determined tobe marijuana, from defendant's coat without a searchwarrant orwithout express or implied consent from defendant. Hillisthen returned to the police station and turned themarijuana over to the police. In itsorder suppressing thisevidence thedistrictcourt said inpart: "Itisthe opinion of thisCourt that the rule adopted by theMontana Supreme Court in 

## - the Brecht case applies inthe case atbar, therefore, it is "ORDERED thatthemotion tosuppress the evidenceobtained by the searchbe and the same is hereby granted." (Emphasis added). There isbut one issuepresented by the state inthis appeal: Did the districtcourt err in suppressing the evidence seized by Robert Hillis, relying on this Court's decision in Statev. Brecht, 157 Mont. 264, 270, 485 P.2d 47 (1971)? This case isunique inthat the stateand amicus curiae attackonly the Brecht decision. They ask that it be reversed and confine their arguments in thatregard only tothe application of theFourthAmendment tothe United StatesConstitution, ignoring any other considerations. This would indicate that Brecht, aswritten, isnot clear and an explanation iswarranted

even though the instant case can be distinguished. In Brecht the defendant was charged with themurder of his estranged wife. Her deathresulted from thedischarge of a shotgun under disputed circumstances inthe tavern where she was employed on theevening of May 17, 1967. Deceased and her sister Sandra resided with theirmother atthemother's home for a period of timebefore the shooting. The sister Sandra received a call atthemother's home from the defendant on the evening of April 29, 1967, some two weeks prior tothe shooting incident; he asked to speak with hiswife and Sandra called her tothe telephone. Without the consent of either party, Sandra proceeded tolisten tothe conversation on an extension telephone inanother room. At trial Sandra was permitted torelate the conversation which she alleged contained this threat by defendant "Igot my shotgun out of hock, I amcoming down and I willuse it if I have to". In Brecht the stateagreed that had thisintrusion 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 isa electronic surveillance case and the landmark

case that overturned the longstanding doctrine that search andseizure under the FourthAmendment 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 constitutionalright; the Fourth and Fifth Amendments of the United States Constitution; Art. 111, Sec. 7 of the 1889 Montana Constitution;and stated in pertinent part: 

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## * * * 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. 

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"ThisCourt 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 citizensby both the federal and Montana.constitutions properly comes within the contemplation of this Court's exclusionary rule. To do otherwisewould 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 curiaeproceed 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 68Am Jur 2d, Searches and Seizures S13,p. 670: "It is no part of the policy underlying the FourthAmendment to discourage citizens fromaidingtothe utmost of their ability inthe apprehension of criminals. Accordingly, it has long been recognized that theFourth Amendment's protections against unreasonable searchand seizuredo not extend toa searchor seizuremade by a private individual, conducted without police participation. In support of this rule, it has been said that the origin and history of theFourth Amendment clearly show that it was intended only asa restraintupon 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 theholding of the United States Supreme Court inBurdeau v. McDowell, 256 U.S.

The stateand amicus argue that Brecht was improvident and against the weight of authority. A careful reading of Brecht reveals that this isan oversimplificationof the problem. As heretofore stated Brecht rested only inpart on theFourth Amendment and it would appear that any attempt toreverse 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 searchviolated these constitutional and statutory provisions: Article 11, Sec. 10, 1972 Montana Constitution: "Right of Privacy. The right of individual privacy is essential tothe well-being of a free societyand shallnot be infringed without the showing of a compelling stateinterest." Section 95-701, R.C.M. 1947: "Searches and seizures--when authorized. A search of a person, object orplace may be made and instruments, articlesor thingsmay be seized inaccordance with theprovisions of thischapter when the search ismade: "(a) As an incident toa lawful arrest. "Cb) With the consent of the accused orof any other person who is lawfully inpossession of theobject orplace tobe searched, orwho is believed upon reasonable cause tobe in such lawfulpossession by the person making the search."(c)By the authority of a valid searchwarrant. "(d) Under the authority and within the scope of a right of lawful inspection granted by law." Defendant's contentionsraise some interesting problems when considered with the fact thatMontana has a statute, section 95-611, R.C.M. 1947, which provides: "95-611. Arrestby a private person. A private person may arrest another when: "(1) he believes, on reasonable grounds, that an offense isbeing committed or attempted inhis presence; "(2) a felony has infactbeen committed and he believes, on reasonable grounds, that the person arrestedhas committed it

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## *". Also, the federal constitution contains no specific section establishing a separate and independent rightof privacy as does the 1972 Montana Constitution. The United States Constitution recognizes the right aspart of the First, Third, Fourth and FifthAmendments. Katz v. United States, supra. The state inoral argument cited a Montana Law Review note at 34 Montana Law Review 187, which it advised the Court alsorepresented the state's view asan indepthdiscussion of Brecht and the exclusionary rule. The totality of the state, amicus and law review article arguments reduce themselves to: (1)The exclusionary rule isnot 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 incriminal prosecutions and theprohibiting of law enforcement personnel from violatingFourth Amendment proscriptions, a proscription extended toright of privacy as well. The intentof the rulewas toremove the 

## -incentive forofficerstoviolatethe rule and deter official misconduct and promote "judicial integrity". Loqic would dictatethat to fulfillthe function of the rule theperson violating the rulemust have an interest inobtaining the conviction and must atleast be aware of the rule. (2) They adopt the strictconstruction doctrine of the general rule that the authors of the FourthAmendment, fearing

anoppressive sovereign, meant only togive limited protection from government action. The United States Supreme Court in Burdeau v. McDowell, 256 U.S. 465, 475, 41S.Ct. 574, 65 L ed 1048, said: "The Fourth Amendment gives protection against unlawful searches and seizures, and as shown in the previous cases, itsprotection applies to governmental action. Its origin and history clearly show that it was intended asa restraint upon the activities of sovereign authority, and was not intended tobe a limitationupon other than qovernmental agencies; asagainst such authority it was the DurDose of theFourth AmendmenL tosecure the citlzen in the riqht of unmolested occupation of hisdwellinq and the possessionof hisproperty subject tothe riqht of seizureby process duly issued." (Emphasis added) A fairanalysis of the arguments would seem toimply that the position of the parties was much the same as thatexpressed by Chief Justice Taft, writing for themajority 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 theFourth Amendment not subject toapplicationbeyond the intentof the framers of the amendment and itswords could not be stretched tobe given a meaning to include "intangible" and trespass was a requirement to invade the protected property. Allparties in the instant case have avoided any analysis of Katz inwhich, Justice Black inhis dissenting opinion proclaims that themajority in

# - Katz have "rewritten the Fourth Amendmerit". JusticeBlack inhis dissent alsorelied heavily on Olmstead

# . It would appear then that the arguments based on strictinterpretation, origin, history, and intent of the authors as they

concern theFourthAmendment arehighly diluted since Katz in 1967. The majority inKatz recognize that the former decisions of the Court foreclosed Fourth Amendment inquiry when penetration or trespasswas absent, citing Olmstead and Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L ed 1322, for theAmendment was thought tolimitonly searches and seizures of tangible property and property rights controlled. The majority, inKatz, cited Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L ed 2d 734, asthe departure from that narrow view and included intangibles aswell. Itwent on tohold that the Fourth Amendment protects people and not simply "areas" and therefore the reach of the FourthAmendment cannot turnupon the presence or absence of physical intrusion into any given enclosure, and the trespass doctrine inOlmstead 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 forover a period of 40 ormore years, sincc Olmstead. It further demonstrates that these traditional concepts arenot static. This isnot a new concept by any means. In Olmstead, many years ago, among the four dissentingjustices, Brandies observed inreference tointerpretation on the same subject as Katz:



# - "Clauses guaranteeing tothe individual protection against specific abuses of power, must have a similar capacity of adaptation toa changing world. It was with reference to such a clause that thiscourt said, inWeems v. United States, 217 U.S. 349, 373, 54 L ed 793, 801, 30 Sup.Ct. Rep. 544: 'Legislation, both statutoryand constitutional, isenacted, it istrue, from an experience of evils, but itsgeneral language should not, therefore, be necessarily confined to the form that evilhad theretofore taken. Timeworks changes, brinss intoexistence new conditions and purposes. 

# - - heref fore a principle tobe vitalmust be capableof wider application than themischief which gave it birth. This ispeculiarly 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.'"

(Emphasisadded)

# . 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: 

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## * * 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 FourthAmendment almost always compels a man to give evidence against himself which is condemned in the Fifth Amendment. In this regard the Fourth and FifthAmendments almost

run into each other. This adds to the problem the fact that a violation of the FifthAmendment 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 wellto consider first that the "exclusionaryrule" is a court adopted rule resting on the "rulemaking" and "supervisorypower" 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, 84ALR2d 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 constitutionalright. The court in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, (1955), observed that the courtwas 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 somany times marshalled as to require no lengthy elaboration here." It is,however, noteworthy to comment on its application and the "silverplatter doctrine" that resulted. The first application of the rule, in 1914, applied only to the federal court system and only excluded tainted evidence obtained byfederal 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 [ona 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 "silverplatter 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 citeswith approval as a ground for rejecting the so-called "silverplatter doctrine": "Butthere is another consideration--the imperative of judicial integrity. Itwas of this that 

### Mr. Justice Holmes and Mr. Justice Brandeis so eloquently spoke in Olmstead v. United States, 277 U.S. 438, at 469, 471,72L ed 944, 952, 953, 48 S.Ct. 564, 66ALR 376,more than 30 years ago. 'For those who agree with me,' said Mr. Justice Holmes, 'nodistinction can be taken between the Government as prosecutor and the Government as judge.' 277 US at 470. (Dissenting opinion.) 'Ina 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 Governmentmay 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 courtsbe accomplices inthewillful disobedience of a Constitution they are sworn touphold.

### " Of course, thiswould apply toallof the court systems. InMapp, shortly afterElkins, the lastdoor was closed and the exclusionary rule was applied tothe statecourts. The rulemay have many of the deficiencies that arecontended by the state, but a close examination of itshistory would seemto 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 certainlyno compliment to judicial integrity toadmit tothe inordinate length of time that the "silver platter doctrine" was ignored. Incidental tothismatter the statecommented with emphasis initsbrief, that Statev. Gardner, 77 Mont. 8, 249 P. 574 (1926),was not considered inBrecht but was by implication overruled by Brecht. The Supreme Court of Montana had adopted itsown exclusionary rule atthat time, long prior toMapp, and did quote from Burdeau, the foundation case, for the general rule quoted inGardner. However, Gardner involved the "silver platter doctrine" intheuse of illegally obtained evidence by the federal authorities ina statecourt and used Burdeau to justify this action inan entirelydifferent context than that under consideration inBrecht. It muld seem fairtoassume that Elkins overruled, not Brecht. The argument that the exclusionary rule is wedded to the sovereign because the organized officialdom arethe only ones thatcan be deterred because the injury tothe victim cannot be restored orreparation comes too late, and that allothers would have no prosecutionmotive and could not be familiar with the rule isan unwarranted generalization that completely disregards the changes that have taken place inour political and socialstructure 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 FifthAmendment violations

are excluded when done by a private person. No thought is given to the Montana Constitution or statutespreviously cited. Finally, it fails altogether to recognize themassive 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 itpriority 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 FourthAmendment 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 simplydoes not cast these groups of "private" persons in theminority. 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 

## - intrusionsare not unreasonable. Like it or not unreasonable orillegal 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 solutionmay 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, asdid the federal system for somany 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 ismuch the same problem to be faced under a statutory "private" arrest, when it involves a search and seizure incident thereto. The Court ismindful that by respondent'sbrief 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 instantcase can be distinguished from Brecht. Itmight 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, forwhatever 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 storemanager

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 thematter been handled by the police. There isno legal difference if the crime reported had been a deceased person by unnatural means. After the manager obtained the drug itwas promptly turned over to the police. This then is not the example used in argument of an innocent assist to the government with no convictionmotive, 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 cooperationwith the police creates less of a problem than might be imagined, that: 

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## * 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 SanMateo, 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 supervisionof the police, but it will also be excluded when the police are guiltyof no more thanjust 'idly standing by'". Stapletonv. Superior Court of L.A. County, 70 Cal.2d 97, 447 P.2d 967, 970 (1969); Stateex rel. Sadlerv. District Court, 70 Mont. 378, 225 P. 1000 (1924). Admittedly the factsof the case presented by the state through the law review articlearemuch stronger than ours. However Stapletondoes hold: 

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## * the police need not have requested or directed the search inorder tobe guilty of 'standing idlyby'; knowledge of the illegal searchcoupled with a failure toprotect the [defendant's] rights against such a search suffices." The legal impact drawn from allof the facts seems to

come much more under Stapleton than Brecht, however, ineither

case thedistrictcourt was The judgment of the

Justice We concur:



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Justices



## --- Hon. M.'&es Sorte, District Judge, sitting inplace of Mr. Chief JusticeJames T. Harrison.

### Mr. JusticeWesley Castles dissenting: I dissent. I would squarely overrule State v. Brecht, 157 Mont.

In Brecht, defendantwas 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 sheheard the defendant tell the deceased, "Igot 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 asdetrimental to the person to whom the protection is guaranteed in the one case as in the other. To distinguishbetween classes of violators is tantamount to destruction of the right itself.

"ThisCourt 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 constitutionallyprotected rights guaranteed to its citizensby both the federal and Montana constitutions properly comeswithin the contemplation of this Court'sexclusionary rule. To do otherwisewould lend Court approval to a fictional distinction between classes of citizens: those who are bound to respect the Constitution and thosewho are not. Were the exclusionary rule to recognize such distinctions itwould by indirection circumvent the ruleestablished 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 involvementwith 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 fewmonths 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 4thAmendment 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 4thAmendment 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 ismanifest that there was no invasion of the security afforded by the 4thAmendment 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 decisionhas 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 FourteenthAmendment.

- 1 ?G' Itsdecision inMapp 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 FourthAmendment. Burdeau, supra. Likewise, as the FourteenthAmendment is directed to the states and not to private individuals, a search and seizure by a private individual does not violate the Fourteenth Amendment. Coolidgev. 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 thepurpose of encouraging a search and seizure by a private individual. The factthepolice didnot actively enter into the incident by prohibiting Hillisfrom making the search and seizure orby obtaining a searchwarrant and making the search and seizure themselves should not result in Hillisbeing deemed

an instrumentality of the police and suppression of the evidence. It isnot the policy of this stateto inhibit the reporting of crime tothe police. One of the motives of Hillisthroughout thisincidentwas toprotect the reputation of McDonald's by preventing bad publicity which might ensue if uniformed police

were tomake the search and seizure on the premises. The police knew this. If the business community isaware that a report to the police must result inan immediate police response without regard for the consequences or itseffect on itsbusiness' goodwill, there isno doubt inour minds thatthe reporting of incidents tothe police willbe inhibited and lessened. Thus, I would decline tohold that Hilliswas an instrumentality of thepolice forpurposes of the instant search and seizure. Defendant contends the search and seizure of the substance by Robert Hillisfrom defendant's coat pocket violated Article 11, Sections 10and 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 sectionsread as follows: "Section 10. Right of Privacy. The right of individual privacy is essential tothe well-being of a free society and shallnot be infringed without the showing of a compelling stateinterest. "Section 11. Searches and seizures. The people shall be secure intheirpersons, papers, homes and effects from unreasonable searches and seizures. No warrant tosearch any place, or seize any person orthing shall issue without describing the place tobe searched or the person or thing tobe seized, orwithout probable cause, supported by oath or affirmationreduced towriting."the "95-701. Searches and seizures--when authorized. A search of a person, object orplace may be made and instruments, articles or thingsmay be seized inaccordance with the provisions of this chapter when the search ismade: "(a)Asan incident toa lawful arrest. "(b)With the consent of the accused orof any other person who is lawfully inpossession of the object orplace tobe searched, orwho is believed upon reasonable cause tobe 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 Hilliswas a violation foregoing provisions, the factsof thiscase not warrant an application of the exclusionary rule. Indiscussing the purpose of the exclusionary rule, the Supreme Court of the United States has recently stated inUnited Statesv. Calandra, U.S. 

## , 94 S.Ct. 

## , 38 Led 2d 561,

"The purpose of the exclusionary rule isnot to redress the injury tothe privacy of the search victim: "'[Tlhe ruptured privacy of thevictims' homes and effectscannot be restored. Reparation comes too late.' Linkletter v. Walker, 381 U.S. 618, 637, 14Led 2d 601, 85 S.Ct. 1731 (1965). "Instead, the rule's prime purpose is todeter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment againstunreasonable search and seizures: "'The rule is calculated toprevent, not torepair. Its purpose istodeter--to compel respect for the constitutional guaranty inthe only effectively available way--by removing the incentivetodisregard 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, 15Led 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, therule is a judicially-created remedydesigned tosafeguard FourthAmendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved. "Despite itsbroad deterrent purpose, the exclusionary rule has never been interpreted to proscribe theuse of illegally-seized evidence inallproceedings or against allpersons. As with any remedial device, the application of the rulehas been restricted tothose areaswhere itsremedial objectives are thought most efficaciously served." Indeclining toextend the exclusionary rule to the

use ingrand jury proceedings of evidence seized inviolation of theFourth Amendment, the Court inCalandra stated, atpage 573

"Against thispotential damage tothe role and functions of the grand jury, we must weigh the benefits tobe derived from thisproposed extensionof the exclusionary rule. Suppression of theuse of illegally-seized evidence against the search victim ina criminal trial isthought to be an important method of effectuating the Fourth Amendment. But it does not follow that the Fourth Amendment requires adoption of every proposal thatmight deter policemisconduct. InAlderman v. United States, 394 U.S., at174, 22 L ed 2d 176, for example, thisCourt declined toextend the exclusionary rule toone who was not thevictim of the unlawful search: "'The deterrentvalues of preventing the incrimination of those whose rights thepolice have violated have been considered sufficient tojustify the suppression of probative evidence even though the case against the defendant isweakened or destroyed. We adhere tothatjudgment. But we arenot convinced that the additional benefits of extending the exclusionary rule toother defendants would justify further encroachment upon thepublic interest inprosecuting those accused of crime and having them acquitted or convicted on the basis of allthe evidence which exposes the truth.

## '

"We think thisobservation equally applicable in the present context. "Any incremental deterrent effect which might be achieved by extending the rule togrand jury proceedings isuncertain atbest. Whatever deterrence of police misconduct may result from the exclusion of illegally-seized evidence from criminal trials, it is unrealistic toassume that application of the rule togrand jury proceedingswould significantly further that goal. Suchan 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 FourthAmendment solely to obtain an indictment from a grand jury is substantiallynegated by the inadmissibility of the illegally-seized evidence in a subsequentcriminal 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 undoubtedlyminimal 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 futureunlawful official conduct and not as a bonus to the criminal defendantwhose 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 objectivesare thoughtmost 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 seizuremust have an interest in obtaining a convictionwith 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 seemselemental, is that the person involved in the search and seizuremust at least be aware of the rule. While it isnot unusual to expect the police to be familiar with certain salient rules of evidence, it does seem unlikely that a laymanwith no interestor intent of securing the conviction of criminalswould 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 casewould have on future cases of searchand 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 casewould be speculative at best. Such speculativevalue is here outweighed by the public interest in preventing and prosecuting crime. When thereason 

### 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 Mont

# . State v. Thorsness, -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: "Notonly 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

## '

# ."
Inmy view this is an unwise extension of the exclusionary rule.

Mr. Justice John Conway Harrison concurring in Justice castles' dissent: Although Idid 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 "silverplatter1' doctrine to include all that Brecht covers. Inmy opinion the net effect of Brecht further hamstrings law enforcement officials. 

# C33j Justice