No. 80-364 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

STATE OF MONTANA, Plaintiff and Appellant,

DALE HYEM and CYNTHIA EFFINGER, Defendants and Respondents.

Appeal from: ~istrict Court of theThirteenth ~udicial ~istrict, In and for the County of Carbon. Honorable William J.Speare, Judge presiding. Counsel of Record: For Appellant: Hon. Mike Greely, Attorney General, Helena, Montana Sheri Sprigg argued, Assistant Attorney General, Helena,

Montana Pablo Perhacs, County Attorney, argued, Red Lodge, Montana For Respondents: OverfeltLaw Firm, Billings, Montana Gary Overfelt argued, Billings, Montana Stacey & Jarussi, Billings, Montana Gene Jarussi argued, Billings, Montana

Submitted: March 26, 1981 Decided: June 4, 1981 Filed: 

## 41981

### Mr. Justice John C. Sheehy delivered the Opinion of the Court.

The State of Montana appeals from an order of the District Court, Thirteenth JudicialDistrict, Carbon County, granting defendants' motion to suppress all evidence resulting from an unreasonable search and seizure. On February 25, 1980,defendantswere chargedwith alternative counts of felony theft--either having stolen a pair of Rossignol SM Equipe skis on January 12, 1980,or having possessed them on February 21, 1980,knowing that theywere stolen. The charges arosewhen skis,belonging to Buzz Welch, were found in defendants' residence and seized by officers of the Carbon County sheriff's office pursuant to a search warrant issued by the local justice of the peace. The issuance of the warrant was based on affidavits of Welch,who said his skishad been stolen,and of Kurt Hallock and Jack Marcure, who stated they had seen the skis at defendants' rented home in Red Lodge,Montana. The circumstances surrounding the latter affiants' discovery must be closely scrutinized in this appeal. The defendants and affiantswere all employed in various capacities at Red Lodge Ski area. During the 1980 ski season,a rash of ski theftswere reported, including two thefts reported by Welch and Marcure. The skis reported stolen by Welch and Marcure were identical except in length, binding type and serialnumber. After discussing the missing skis with numerous acquaintances,Hallock formed the opinion that the skis were in the possession of the defendants at their rented home. The defendantswere tenants in a residence owned by Mr. Prather. The residencewas listed for sale through the

### Marshall Real EstateAgency. The real estate agent in charge of selling the housewas BarbaraMarshall. Defendant Hyemwas aware that shehad keys to the house and had shown it to prospective purchasers in his absence. In the off-season, Hallock and Marcure purchase and remodel old houses and had previouslydone businesswith Marshall. Aware that the house was on the market, they contacted Marshall and asked to be shown the house. Hallock testified that he wanted to tour the house both for business

reasonsand to search for the skis, while Marcure's sole purpose was to search for the stolenRossignols. At the hearing, only Hallock and Marshall were called

aswitnesses. Hallock testified that during inspection of the premises,Marcure dropped his sunglassesbeside a bed, and then saw the skis thereunder. Marcure removed the skis halfway from under the bed and found that the serial number matched that of Welch's missing skis. Hallock stated that only by pulling the skis out fromunder the bed could the serialnumber and positive identificationbe ascertained. Hallock further testified that until Marcure pulled the skis out,he was unable to see anypart of the skis. Marshall testified that upon entering the house she admonished Hallock and Marcure not to touch any personal property contained therein. She further testified that her observation of the bedroom area disclosed that only the tips of the skis were visible beneath the bed. After completing a tour of the house, Hallock and Marcure reported their discovery to the Carbon County attorney's cffice,which in turn applied for and received a searchwarrant.

### On motion of defendants, the District Court agreed that the evidencehad been obtained by an unreasonable search, and ordered the evidence suppressed. It is from that order that the State appeals. The issues to be considered on appeal are: (1)Whether the citizen searchviolated the defendants' right of privacy; and, (2)

### Whether defendants consented to the search and thereby waived their right of privacy. Montana's constitution must be read as awhole and its separate sections interpreted in relation to one another. Unlike the federal constitution,our constitution particularly provides for an individual's right of privacy in 1972Mont. Const., Art. 11, S 

### 10,which states: "The right of individual privacy is essential to thewell being of a free society and shall not be infringed without the showing of a compelling state interest." Application of this right is as diverse as the components which make up a free ordered society. Inasmuch as a citizen's personality and thoughts are protected as private, so are a citizen's physical solitude and right to be let alone. Moreover, 1972Mont. Const., Art. 11, 

### 5 11,which mirrors the FourthAmendment to the United States Constitution, states that: "The people shallbe 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, orwithout probable cause, supported by oath or affirmation reduced to writing." (Emphasis added. A 

### warrantless search isper -- 

### se unreasonable, unless it fallswithin one of the defined exceptions to the warrant requirement. Coolidge v. New Hampshire (1971),403 U.S.

### 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. Before the warrantless search,neither Hallock nor Marcure could have obtained a valid search warrant because they were not possessed of their own knowledge,or through demonsfzably reliable informants, of facts sufficient to establish probable cause, an essential ground for the issuance of a warrant. Section 46-5-202(1)(b), MCA. This warrantless search does not fall within any of the exceptions to a warrant requirement, which exceptions arise out of exigent circumstances necessary to protect or preserve life or to avoid serious injury (see,Wayne v. U.S.

(D.C.Cir. 1963), 318 F.2d 205), or arise from the evanescent nature of thematerial seized. Terry v. Ohio (1968),392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Schmerberv. California (1966),384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. Since thewarrantless search here was -- 

### per se unreasonable, itwas unconstitutionalunder our federal and state constitutions, and therefore unlawful. Itviolated the FourthAmendment of the United States Constitution, and also 1972Mont. Const., Art. 11, S 

### 11. In addition, the warrantless searchviolated the defendants'rights of privacy under the 1972Mont. Const., Art. 11, 

### 5 10,which we have quoted previously. Here, rights of individualprivacy were infringed without the showing of a compelling state interest. Since Hallock and Marcure were acting in their individual capacities, and not for the state, state actionwas not involved, and the searchers could never be in a position of showing a compelling state interest. Under the 1972 Montana constitution, the only exception to the restriction against the invasion of individual privacy is a compelling state interest. Theprivate parties here, acting on their own hook, could not establish a 

### compelling state interest. -5-

### The right of individual privacy, the right to be secure in one's home,was prized in Montana even before the adoption of the 1972Montana Constitution. InWelsh v. Roehm (1952), 125

### Mont. 517, 241 P.2d 816, itwas held valuable enough to support a verdict of punitive damages without general damages against the invaders of a tenants' possessory rights. In Statev. Brecht (1971), 157Mont. 264, 485 P.2d 47, this Court applied the exclusionary rule to a telephone conversation of the defendant, overheard by an interloper on an extension line. In that case, this Court found that the right of individualprivacy was adequately expressed, though penurnbrally, in 1889 Mont. Const., Art. 3, 

### 5 7,which read as follows: "Section7. Thepeople shallbe secure in their persons, papers, homes, and effects, from unreasonable searches and seizures and no warrant to search any place or seize any person or thing shall issuewithout describing the place to be searched or the person or thing to be seized, nor without probable cause, supported by oath or affirmation, reduced to writing." In Brecht, itwas pointed out that there cannotbe a fictional difference between classes of citizens: thosewho

are commanded to obey the constitution and thosewho are not. Our constitutional prohibition against unreasonable invasion of privacy applies to all persons, whether acting for the state or privately. Thepolicy to set a special store on the right of privacy was expressly enunciated in the 1972Mont. Const., Art. 11, S 

### 10, and the implementation of thatpolicy was continued by this Court, in Statev. Helfrich (1979), 

### - Mont. - 

### , 600 P.2d 816, 36 St.Rep. 1763. Therewe upheld the suppressionof evidence gathered by a

### private citizen who entered a fenced garden to obtain a sample of growing marijuana, which the citizen turned over to the authorities. There was no showing in Helfrich, as there is no showing at

### the case at bar, that the private citizenwas acting in concertwith the police authorities. Nevertheless, we held the suppression of such evidenceproper. Here,we have nearly the same situation, except that Hallock and Marcure gained entry to the defendants' rented premises on an ostensibly legitimate excuse, to view the realproperty as prospective purchasers. We cannot see that a citizen gaining entrance to otherwiseprivate property by a ruse is in any better position to obtain incriminating evidence against a lawful possessor (as distinguished from a guest or licensee) of thatproperty than one gaining entrance by trespass. The result in each case is the same--invasionof the possessor's private property. Under - 

### Helfrich, therefore, the evidence resulting from the unreasonable search of the premises by private citizens is illegallyobtained,and must be suppressed. When private citizens,acting on their own initiative, unreasonably invade theprivacy rights of individuals, the evidence thus obtained against the other individuals is subject to the exclusionary rule. This is the teaching of Helfrich, supra. The State argues that evidence obtained by a private citizen should be suppressed only if itwas obtained in an "illegalmanner." We understand the essence of that argument. The Statemeans that the evidence should be suppressed only if the evidencewas obtained in violation of statutory law. The argument, however, overlooks that searches and seizures which, though theymay not violate statutory law,may nevertheless be unreasonable in the constitutional sense, and therefore,unlawful. In Statev. Coburn (1974), 165

### Mont. 488, 530 P.2d 442,

### we stated that the ever-increasing presence of private police, coupled with a citizen's ability to arrest,mandated that the private sectorbe subject to the

### same constitutional scrutiny as the public sector. Thus, the actions of Hallock and Marcure in the present casemust bemeasured against a standard of reasonableness to determine if they violated defendants' right of privacy. Thisbrings

us back to what we said at the outset of this discussion, that a warrantless search is unreasonable per se unless the 

### -- search falls within one of the defined exceptions. The searchbeing unreasonable, and the rights of privacy having been invaded thereby, the unconstitutional invasion of the defendants' rights of privacy was an unlawful act. Thus it is that on two counts, a violation of the state and federal constitutionson searches and seizures and a furtherviolation of the state constitutional right of privacy, the evidenceproduced herein is subject to the application of the exclusionary rule. The exclusionary rulehas been the subject of considerable legislative and editorial discussion in recentmonths. Perhapsnotwell-known is the fact that the United States Supreme Court firstannounced that rule 67years ago in Weeks v. United States (1914), 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652,where the use of evidence obtained in violation of the Fourth Amendment was barred in federalprosecutions. After Silverthorne Lumber Company v. United States (1920), 251U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, the rule came to be known as the "fruitof the poisonous tree"doctrine. In 1961, the United States Supreme Court, in Mapp v. 

### Ohio (1961), 367 U.S. 

### 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081,made the exclusionary rule fully applicable to the states under the FourteenthAmendment. The "poisoned fruit" rulewas recognized 

### by this Court in dictum in Statev. Yoss (1965), 146 Mont. 508, 409 P.2d 439.

### The exclusionary rule grew out of thewritings of some of themost esteemed men ever to occupy seats on the United States Supreme Court, including JusticeOliver Wendell Holmes, and Justice Louis Brandeis. They became aghast at the long train of caseswhere federal agents had ignored constitutional protections in obtaining evidence, and had been willing to perjure themselves as if they had not so acted. Holmes said: "Theessence of a provision forbidding the acquisition of evidence in a certainway is that notmerely evidence so acquired shall not be used before the Courtbut that it shall not be used at all. Of course this does notmean that the facts thus obtained become sacred and inaccessible. If knowledgeof them is gained from an independent source, they may be proved like any others,but the knowledgegained by the government's ownwrong cannot be used by it in theway proposed." Silverthorne,supra, 251U.S. at 392. Justice Brandeis said: 

# ".



# .. If the government becomes a lawbreaker itbreeds contempt for law 

# .

# .." Olmstead v. U.S. (1928), 277U.S. 438, 483-485. At 

### first the exclusionary rule applied only in the federal courts, in federalprosecutions. Itwas not applied in the states. Thisduality of application resulted in anomalies. For example, in Statev. District Court, et al. (1928), 82 Mont. 515, 268 P.2d 501, theMontana court held that the provisions of the federalconstitution against unreasonable searches and seizureshad no application to state officers. In that case, federalofficers had violated the constitutional rightsof a 

### person by 

### opening a 

### package sent through the mail containing the drug morphine. The sheriff arrested the addressee and seized the package on information imparted to him by the federal officers as to its contents. The sheriff was not acting in cooperation or collusionwith the federal officers. This Court held that the seizure in thatmode did

### not render the package inadmissible in evidence,under the state constitution,and held that the District Court, in suppressing the evidence,committed error. Thus, the prosecution was able to use evidence in a state courtprosecution thatwould have been barred in a federalprosecution at that time. If the result in the 1928 Montana case now seems incongruous, be assured that Montana was not alone in its incongruity. In Irvinev. California (1954), 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561, a case involving police misconduct so outrageous

so as tobe "almostincredible if itwere not admitted," the Supreme Court did not impose the exclusionary rule on the state, even though themisconduct was extreme. Irvine, supra. Until the time of Mapp, supra, more than twenty states were still admitting illegally-seized evidence. California, it should be noted, was one of the states that adopted the exclusionary rule before the holding in Mapp. It changed its judicialmind between the time, in 1942, when it held that illegally-seized evidence was admissible (Peoplev. Gonzalez (1942),20 ~al.2d165, 124 P.2d 44) and the case adopting the exclusionary rule in 1955 (Peoplev. Cahan (1955),44 Cal.2d 434, 282 P.2d 905)

# . The California court could no longer stomach the situation where "law enforcement officers 

# .

# .. casually regarded

[illegalsearchesand seizures] as nothing more than the performance of their ordinary duties

# . .." 282 P.2d at 907. Its Chief Justice,Roger Traynor, later wrote in 1962: "Mymisgivings about 

# .

# .. [theadmissibility of illegally-seized evidence] grew as I observed that time after time itwas being offered and admitted as a routineprocedure

# . . . Itwas one thing to condone an occasional constable's blunder, to accepthis illegally obtained evidence so that the guilty would not go free. It was

### quite another to condone a steady course of illegal police procedures that deliberately and flagrantlyviolated the constitution of the United States as well as the state constitution. 

### "Ah,but surely the guilty should stillnot go free? However grave the question, it seemed improperly directed at the exclusionary rule. 

### ÿ he hard answer is in the United states Constitution as well as in state constitutions. They make it clear that the guilty would go free if the evidence necessary to convict could only have been obtained illegally, just as they would go free if such evidencewere lacking because the police had observed the constitutional restraints upon them. It is seriously misleading, however, to suggest thatwholesale release of the guilty is a consequence of the exclusionary rule. It is a large assumption that the police have invariably exhausted the possibilities of obtaining evidence legally when they have relied upon illegally obtained evidence. It is more rational to assume the oppositewhen the offer of illegally-obtained evidence becomes routine." Traynor,Mapp v. Ohio At Large in the Fifty States (1962),Duke L.J. 

### 319, 321, 322. (Emphasisadded.) The exclusionary rule is not a judicial plaything, casually adopted and casuallywaived. It is a constitutional

answer to unconstitutional activity. It is an affirmation that a free government canno more tolerate the unlawful activities of its agents than crime in the streets. It is paste and cover for the bones of our individual constitutional rights, without which such rightswere in danger of becoming

an unfleshed skeleton. Sometimes, it is tobe admitted with the deepest regret, the result of the exclusionary rule is that the guilty criminal goes free. That is the price of liberty. It is irrefutable thatmany times criminals go free because officers

are careful to act constitutionally. There is 

### no judicial logic in contending that they should not go free when officers act unconstitutionally. An important distinction must be made in this case, however, because here the unreasonable searchwas made not by police officers but by private individuals. The State

### has pointed out to us thatMapp v. Ohio, supra, extended the operationof the Fourteenth Amendment, and the application of the exclusionary rule to state cases, but onlywhen -- 

### -- state action is involved. This is necessarily true because 

### - of the provisions of the FourteenthAmendment, which apply only to states and not to individuals. As we have pointed out above, however, Montana applies the exclusionary rule to actions by individualswhere the state constitution has been violated. Brecht, supra; Helfrich, supra. The wisdom of - 

### that course should be obvious: the Montana law applies equally to agents of the state and to private individuals. We have no duality of rights,one set of laws operating when state action is involved, and another set of laws applying when private action is involved;we avoid such anomalies as may occur when private individuals act for,but not in concert or collusionwith police officers. We have not adopted a course of legal schizophrenia. An across-theboard application of the exclusionary rule results in a clear equality of result, and does not depend upon fortuitous circumstanceswhichmight excuse in one situation a violation of constitutional rights, and discountenance such violations in another situation. The second part of the issues to be considered here is whether the defendants here consented to the searchwhich

wasmade and thereby waived their right of privacy. This involves the determination and application of standards for the invasion of privacy. Privacy has been defined as the ability to control

access to information about oneself. Fried, Privacy (1968), 77 Yale L.J. 

### 475, 482, 483. In Katz v. U.S. 

### (1924),389 U.S. 

### 347, 88 S.Ct. 507, 19 L.Ed.2d 576, the SupremeCourt determined

### under the federal constitution thatprivacy is protected if the defendant has an actual subjective expectation of privacy and that expectation is objectively reasonable. Therefore,what is sought to be preserved as private, even in an area accessible to the public, may be constitutionally protected. See, Riosv. United States (1960),364 U.S. 

### 253, 30 S.Ct. 1431, 4 L.Ed.2d 1688. The defendantswere aware that their rented housewas for sale and being shown to prospective buyers in their absence. The defendants, therefore, could not have a reasonable expectation of privacy in the areas of the house which are normally subject to inspectionby prospective purchasers. The skis,however,were personalproperty,not for sale, and not items which are normally the subject of inspectionby house buyers. Even though the bedroom was accessible to the public, by placing the skis under the bed, out of the public's view, defendants sought to preserve the skis asprivate and, thus, be afforded constitutionalprotection. We find that such an expectation of privacy is reasonable. The searchwas conducted by private citizens not acting in concert with any law enforcement agency, thus precluding the assertion of a compelling state interest. 1972Mont. Const., Art. 11, 

### B 10. It is undisputed thatMarcure's sole purpose of inspecting the housewas to search for the skis. Thepremiseswere open to inspectionby prospective purchasers, not persons attempting to dispel or substantiate rumors. From the outset,Marcure was improperlyon the premises in an unreasonable invasion of defendants' expectation of privacy. Moreover, by removing the personal property from underneath the bed and inspecting it,both Hallock and Marcure wentbeyond their legitimate purpose for being on

### the premises against the admonition of the real estate agent, and they thereby violated defendants' right of privacy. The skis were seized by police pursuant to a search warrantwhich was issued based on the affiants' discovery of the skis. The onlyway Hallock and Marcure could positively identify the skis was by removing them from under the bed and checking the serial numbers. This action was an unconstitutional violation of defendants' right of privacy. In the absenceof a positive identificationof the skis, it is unlikely that Hallock's mere suspicionwould justify the issuance of a searchwarrant. Therefore, the evidencewas properly suppressed as fruit of an unreasonable search and seizure. The State takes the position that by consenting to allow the house to be shown to prospective purchasers, defendants waived their right of privacy. In Johnson v. Zerbst (1938),304 U.S. 458, 58 

### S.Ct. 1019, 82 

### L.Ed. 1461, waiver isdefined as "an intentional relinquishment or abandonment of a known right or privilege." Thus, if a consent search is a matter of waiver, then the consentwould be effective only upon a showing that the individualwho purportedly consented, agreed to the search that occurred. Here the defendants did not consent to a search and seizure of the personal property in their possession. Accordingly, we affirm the judgment of the District Court in suppressing the evidence.

Justice

### We Concur:



### Chief Justice



## ............................... JusticesMr. JusticeFrank B. Morrison, Jr., dissenting:

I respectfully dissent from the majority opinion. The facts of this case do not form the basis for this dissent. Rather the purpose is toreexamine Statev. Brecht (1971), 157Mont. 264, 485 P.2d 47; Statev. Helfrich (1979), Mont

# . ,600P.2d 816, 36 St.Rep. 1763, and the rationale - expressed by themajority in the case atbar. InBrecht and Helfrich this Court held that the Montana constitution's sections on privacy and unreasonable search and seizure address private action aswell as stateaction. The court further held that the exclusionary rule is automatically applied if a constitutional rightisinvaded. These two holdings are followed inthe instantcase. A careful reading of these three decisionsdiscloses a lack of rationale supporting a radical departure from precedent established by every other appellate court. Montana is the only jurisdiction tomy knowledge which has extended either "search and seizure" or "privacy" provisions to private action. Additionally we are the only courtwhich has applied the exclusionary rule toprivate action. Inmy opinion there are two issueswhich should be addressed in this case: (1)Does Article 2, S10, of the Montana Constitution providing for the right of privacy, - or Article 2, 

### S11, of the Montana Constitution providing for the security from unreasonable search and seizure, apply to individual action as opposed to stateaction? (2) Should the exclusionaryrulebe applied to suppress evidence obtained by an individual where that individual does not act inconcertwith agents of the state? I would hold that the constitutional provisions referred toherein, contemplate stateaction only. I would further hold that the exclusionaryrule does not apply toprivate action. Montana isone of only ten states to have an express provision forprivacy in the stateconstitution. Asmentioned previously, none of these stateshave held the privacy protections to be applicable to actsof privatepersons. Arizona has directly held that the privacy prohibition applies only to stateaction. Cluff v. Farmers Insurance Exchange (1969), 10Ariz.App. 560, 460 P.2d 666, 669. Alaska has limited its application to stateactivities. See e.g., Allred v. State (1976), 554 P.2d 411, 416: Falcon v. Alaska Public Offices Com'n (19771, 570 P.2d 469, 476, Montana firstextended privacy rights toprivate action inStatev. Brecht, supra. In that case a man telephoned hiswife and threatened to shoot her. Another person, listening inon an extension, overheard the conversation. When the wife was shot and killed a short time later, the DistrictCourt allowed the eavesdropper to testifyregarding what she overheard. This Court reversed holding thatBrecht's right of privacy was protected from an invasion from a private individual. The court cited Katz v. United States 88 S.Ct. 507, 19L.Ed.2d 576, (1967), 389 U.S. 3471as support for itsholding. However, Katz involvesgovernmentaction, notprivate action and provides

no support for thisCourt's position inBrecht. In Statev. Helfrich, supra, the court followed the holding of Brecht, but expanded the discussion. The court relied upon transcripts from the constitutionalconvention inconcluding that the framers of the constitution intended for the rightof privacy toprotect persons againstboth private and government action. The courtcited the following transcriptquotations: 

# ".

.

# . Certainly, back in 1776, 1789, when they developed our Billof Rights, the search and seizureprovisions were enough, when a man's home was his castleand the statecould not intrude upon his home without the procuring of a searchwarrant with probable cause being stated before a magistrateand a searchwarrant being issued. No other protection was necessary and thiscertainlywas the greatest amount of protection that any free societyhas given itsindividuals. In that type of a society, of course, the neighbor wasmaybe three or fourmilesaway. There was no real infringement upon the individual and hisright of privacy. However, today wehave observed an increasingly complex society and we know our area of privacy has decreased, decreased, and decreased



# . .. Tr. of the Montana Constitutional Convention, Vol. VII, pp. 5180-81.

11 1

# . . . Itisn'tonly a careless government thathas thispower topry, political organizations, private information gathering firms, and even an individual can now snoopmore easilyand more effectively than ever before

# . . .' Tr. atpp. 5182." Helfrich, P.2d 

## , 37 St.Rep. 1766. The second quotation actuallyresulted from a delegate reading from a newspaper editorialwhich supported an expanded right of privacy. However, the balance of the delegate's statementisvery significant. Itreads: "Itproduces what I would calla semipermeable wall of separation between individuals and state; just as the wall of separationbetween church and state isabsolute, the wall of separationwe are proposing with this sectionwould be semi permeable. That is, as a participating member of society we allrecognize that the statemust come intoour private lives atsome point, but what it says is don't come intoour private lives unless you have a good reason for being there. We feel that this, 

### as a mandate toour government, would cause a complete reexamination and guarantee our individual citizens of Montana thisvery important right." (Emphasis supplied.) Tr. atpp. 5181.* Inmy opinion, the majority can find littlesolace from reading the Constitutional Convention Transcript. When talking about the privacy section, stateaction rather than private action, isemphasized. Furthermore, the privacy section, Article 2, 810, specifically states: "The rightof individual privacy isessential to the well being of a free society and shall not be infringed without the showing of a compelling stateinterest." (Emphasis supplied.) The -18-language of the section itself indicates thatthe framers contemplated state actionby allowing an invasionwhere therewas a compelling stateinterest. Historically constitutions have always been a means for people to address their government. Inrare instances the constitutional framework has embraced sections specifically speaking toprivate persons. Article 11, §4, of theMontana Constitutionprovides inpart: 

### "

# ... Neither the statenor any person, firm, corporation, or institution shalldiscriminate againstany person 

# .

# . ." (Emphasis supplied;) Notably theprivacy section does not address private individuals. 

### - By interpretingMontana's constitutional rightof privacy asa prohibition against private, aswell as state action, this Court has set itself foursquare against the position of the courts of allother states, and inmy opinion, against the intention of the framers of Montana's constitution. The second issuewhich must be addressed isapplication of the exclusionaryrule. Itis apparent tome that the majority has elevated the exclusionaryrule toconstitutional status. This conclusion seems inescapable in the lightof itsautomatic application inBrecht, Helfrich, and this

case. As themajority here states: "Itispaste and cover for the bones of our constitutional rights 

# . .

# ." Nevertheless there seems tobe confusion on thispoint as the legislature continues topass legislation, though vetoed, abolishing the exclusionary rule and providing a "deterrent" alternative. Under the currentposture of Montana constitutional law such legislationispatently unconstitutional. The exclusionaryrulewas firstenunciated inWeeks v. 34 S.Ct. 341, 58 L.Ed 652. United States (1914). 232 U.S. 383,/ The rulewas evidentiary innature and notdeemed tobe rooted inthe constitution itself. -19-41S.Ct. 574, 65 L.Ed. 1048, 

### / In ~urdeau v. McDowell (1921), 256 U.S. 465, the Supreme Court of the United States limited application of the exclusionary rule to acts of the sovereign. Therefore, evidence procured by a privateperson was not subject to exclusion

even if obtained inan unreasonable search. Justification for the exclusionaryrule arises from a desire to deter unlawful police action. The rule has only minimal deterrentvalue when applied toprivatepersons. If the rule is tohave a deterrenteffe~t~potential violators must be aware of the rule. Itisdoubtful thatprivate individuals inour societyunderstand and appreciate the exclusionary rule, and there is littleevidence that application of the exclusionaryrule toprivate violators would reduce the number of violations. Automatic application of the exclusionary rule certainly cannot be justified on the basis of repairing a constitutional harm. The effectof applying the rule offersno reparation in the case of an unreasonable search and seizure yielding

no criminal evidence. The rule's remedy is limited to those who have committed a crime, thereby denying reparation to allothers. The exclusionary rule is a valuable tool indeferring unreasonable police action. 

### Inprivate actioncases the purpose wanes. I would hold, inthis case, the skiswhich were seized,

were the fruitof private action and therefore not subject to suppression. I would reverse the DistrictCourt and remand this case for trial.We concur with the foregoing dissent:

JusticesMr. JusticeGene B. Daly speciallyconcurring: I concur with themajority opinion. I, however, find it necessary to comment on the overzealous statements contained in the dissenting opinion as they go to the roots of constitutional history. First the allegation 

### is made that in theBrecht case, supra, this Court used the case of Katz v. United States (1924), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, a landmark federal decision, to support theholding inBrecht. This is not true, especially in that context. A study of the constitutional history of the Fourth Amendment will reveal that when Chief Justice Taft was head of the federaljudicial system he was adamant in his belief that the Fourth Amendment was cast in nonflexible concrete. Taft argued with Brandeis and Holmes that a telephone tap intrusion by the sovereign did not come within the protection of the Fourth Amendment because a physical intrusion or trespass into the protected enclave was required to trigger the protection of the Fourth Amendment. He explained additionally that a further 

### test was obvious in that the telephone did not exist at the time the Fourth Amendment was written and, therefore, it was not possible to have a telephone intrusion within the contemplation of the framers of the Amendment. Brandeis and Holmes, of course, argued for flexibility. The storm continued for many years, and, finally, the

case of Katz v. United States, supra, reversed the rule in Olmstead v. United States (1928), 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (authored by Chief Justice Taft). Katz held, in essence, that the enclave position was no longer completely valid because the protection of the Fourth Amendment was a personal right and followed the person. Atrespass was not a necessary element, i.e., meaning that the Fourth Amendment was not static, but rather a living, flexible, breathing part of a constitution that 

### is subject to interpretations that will accommodate modern day technology and, hence, a document that has not worn thin with thepassing of time. This is the rationale of Katz, and properly applied in a constitutional context, minus emotional involvement, it 

### is very meaningful to this historic problem and has a rational connection. The problem is well explained in a case not cited by the dissent, Statev. Coburn (1974), 165Mont. 488, 530 P.2d 444, and I quote therefrom: "'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 tobe a limitation upon other 

## - -- than governmental agencies; as against such authority it was the purpose of the Fourth Amendment tosecure thecitizen in the right of unmolested occupation of hisdwelling and 

## - the possession of hisproperty, subject to the right of seizureby process duly issued.' [Burdeau v. McDowell (1921), 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048.1 (Emphasis added.) "A fair analysis of the arguments would seem to imply that the position of theparties was much the same as that expressed by Chief Justice Taft, writing for the majority in a five-four 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 inthe instant casehave avoided any analysis of Katz in which, Justice Black in his dissenting opinion proclaims that the majority in Katz have 'rewritten the Fourth Amendment'. Justice Black in his dissentalso 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, citingOlmstead 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, 81S.Ct. 679, 5 L.Ed.2d 734, as the departure from that narrow view and included intangibles aswell. Itwent 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 trespassdoctrine 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 for over a period of 40 or more years, since 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, Brandeis observed in reference to interpretation on the same subject asKatz: "'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, 30 S.Ct. 544, 551, 54 L.Ed. 793, 801: "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 thatevilhad theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle tobe vita-1 must be capable of 

### --------------- ------- wider application than themischief which 

## ------- ------ 

## -- qave 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 event 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 impotent and lifeless 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 atp. 350 of 389 U.S., at p. 511 of 88 S.Ct., at p. 581 of 19 L.Ed.2d in reference tothe right of privacy: I* 

## * * 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 FifthAmendment rights, whether private orgovernment, 

### --------- is condemned inallcourts, military and civil. 

### - Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Rogers v. Kichmond, 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, 2L.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 A.L.R.2d 933; Elkins 

### v. United States, 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 becorrected or compensated, but merely avoided in the future, must have recognized that there could be no price placed on a constitutional right." State v. Coburn, 165 Mont. at496-499. Further, I would only say that the dissent, as it speaks to the right of privacy contained in the Constitution of the State of Montana, can only be characterized a personal feeling, as the comments are lacking any recognized supporting authority. As the dissent speaks to the exclusionary rule, it

accuses the Court of elevating the rule to a constitutional position. I think if time were taken to read State v. Coburn, supra, the confusion would disappear, and the Court's position would be apparent. It makes no difference in the constitutional history of the rule or 

### its application to Montana law by the United States Supreme Court that the Montana Legislature continues to attempt to legislate in that area. It is their prerogative; and, as day follows night, it 

### is this Court's duty to examine the legislative product for constitutional defect.