No. 80-364 

IN THE 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 the Thirteenth ~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: 

Overfelt Law 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: 4 1981 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

The State of Montana appeals from an order of the 

District Court, Thirteenth Judicial District, Carbon County, 

granting defendants' motion to suppress all evidence resulting 

from an unreasonable search and seizure. 

On February 25, 1980, defendants were charged with 

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 

they were stolen. The charges arose when 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 skis had 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 affiants were all employed in various 

capacities at Red Lodge Ski area. During the 1980 ski 

season, a rash of ski thefts were 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 serial number. 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 defendants were tenants in a residence owned by Mr. 

Prather. The residence was listed for sale through the 
Marshall Real Estate Agency. The real estate agent in 

charge of selling the house was Barbara Marshall. Defendant 

Hyem was aware that she had 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 previously done business with 

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 

reasons and to search for the skis, while Marcure's sole 

purpose was to search for the stolen Rossignols. 

At the hearing, only Hallock and Marshall were called 

as witnesses. Hallock testified that during inspection of 

the premises, Marcure dropped his sunglasses beside 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 from under the bed could the 

serial number and positive identification be ascertained. 

Hallock further testified that until Marcure pulled the skis 

out, he was unable to see any part 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 

search warrant. 
On motion of defendants, the District Court agreed that 

the evidence had 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 search violated 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 a whole 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 1972 Mont. 

Const., Art. 11, S 10, which states: "The right of individual 

privacy is essential to the well being of a free society and 

shall not be infringed without the showing of a compelling 

state interest." 

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, 1972 Mont. Const., Art. 11, 5 11, which mirrors 

the Fourth Amendment to the United States Constitution, 

states that: 

"The people shall be secure in their persons, 

papers, homes and effects from unreasonable 

searches and seizures. No warrant to search 

any place, or seize any person or thing shall 

issue without describing the place to be 

searched or the person or thing to be seized, 

or without probable cause, supported by oath 

or affirmation reduced to writing." (Emphasis 

added. 

A warrantless search is -- per se unreasonable, unless it 

falls within 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 the material seized. Terry v. Ohio (1968), 392 U.S. 

1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Schmerber v. California 

(1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. 

Since the warrantless search here was -- per se unreasonable, 

it was unconstitutional under our federal and state constitutions, 

and therefore unlawful. It violated the Fourth Amendment of 

the United States Constitution, and also 1972 Mont. Const., 

Art. 11, S 11. 

In addition, the warrantless search violated the 

defendants' rights of privacy under the 1972 Mont. Const., Art. 

11, 5 10, which we have quoted previously. Here, rights of 

individual privacy 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 action was 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. The private parties here, 

acting on their own hook, could not establish a compelling 

state interest. 

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The right of individual privacy, the right to be secure 

in one's home, was prized in Montana even before the adoption 

of the 1972 Montana Constitution. In Welsh v. Roehm (1952), 

125 Mont. 517, 241 P.2d 816, it was held valuable enough to 

support a verdict of punitive damages without general damages 

against the invaders of a tenants' possessory rights. In 

State v. Brecht (1971), 157 Mont. 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 

individual privacy was adequately expressed, though penurnbrally, 

in 1889 Mont. Const., Art. 3, 5 7, which read as follows: 

"Section 7. The people shall be 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 issue without 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, it was pointed out that there cannot be a 

fictional difference between classes of citizens: those who 

are commanded to obey the constitution and those who are 

not. Our constitutional prohibition against unreasonable 

invasion of privacy applies to all persons, whether acting 

for the state or privately. 

The policy to set a special store on the right of 

privacy was expressly enunciated in the 1972 Mont. Const., 

Art. 11, S 10, and the implementation of that policy was 

continued by this Court, in State v. Helfrich (1979), - 

Mont. - , 600 P.2d 816, 36 St.Rep. 1763. There we upheld 

the suppression of 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 citizen was acting in 

concert with the police authorities. Nevertheless, we held 

the suppression of such evidence proper. 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 real property as prospective 

purchasers. We cannot see that a citizen gaining entrance 

to otherwise private 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 

that property than one gaining entrance by trespass. The 

result in each case is the same--invasion of the possessor's 

private property. Under - Helfrich, therefore, the evidence 

resulting from the unreasonable search of the premises by 

private citizens is illegally obtained, and must be suppressed. 

When private citizens, acting on their own initiative, 

unreasonably invade the privacy 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 it was obtained in an 

"illegal manner." We understand the essence of that argument. 

The State means that the evidence should be suppressed only 

if the evidence was obtained in violation of statutory law. 

The argument, however, overlooks that searches and seizures 

which, though they may not violate statutory law, may nevertheless be unreasonable in the constitutional sense, and 

therefore, unlawful. In State v. 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 sector be subject to the 
same constitutional scrutiny as the public sector. Thus, 

the actions of Hallock and Marcure in the present case must 

be measured against a standard of reasonableness to determine 

if they violated defendants' right of privacy. This brings 

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 

search being 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 constitutions on searches and seizures and a 

further violation of the state constitutional right of 

privacy, the evidence produced herein is subject to the 

application of the exclusionary rule. 

The exclusionary rule has been the subject of considerable 

legislative and editorial discussion in recent months. 

Perhaps not well-known is the fact that the United States 

Supreme Court first announced that rule 67 years 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 federal prosecutions. 

After Silverthorne Lumber Company v. United States (1920), 

251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, the rule came to 

be known as the "fruit of 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 Fourteenth Amendment. The "poisoned fruit" rule was 

recognized by this Court in dictum in State v. Yoss (1965), 

146 Mont. 508, 409 P.2d 439. 
The exclusionary rule grew out of the writings of some 

of the most esteemed men ever to occupy seats on the United 

States Supreme Court, including Justice Oliver Wendell 

Holmes, and Justice Louis Brandeis. They became aghast at 

the long train of cases where 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: 

"The essence of a provision forbidding the 

acquisition of evidence in a certain way is 

that not merely evidence so acquired shall not 

be used before the Court but that it shall not 

be used at all. Of course this does not mean 

that the facts thus obtained become sacred and 

inaccessible. If knowledge of them is gained 

from an independent source, they may be proved 

like any others, but the knowledge gained by 

the government's own wrong cannot be used by 

it in the way proposed." Silverthorne, supra, 

251 U.S. at 392. 

Justice Brandeis said: 

". . . If the government becomes a lawbreaker 

it breeds contempt for law . . ." Olmstead 

v. U.S. (1928), 277 U.S. 438, 483-485. 

At first the exclusionary rule applied only in the federal 

courts, in federal prosecutions. It was not applied in the 

states. This duality of application resulted in anomalies. 

For example, in State v. District Court, et al. (1928), 82 

Mont. 515, 268 P.2d 501, the Montana court held that the 

provisions of the federal constitution against unreasonable 

searches and seizures had no application to state officers. 

In that case, federal officers had violated the constitutional 

rights of 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 collusion with the federal 

officers. This Court held that the seizure in that mode 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 court prosecution that would have been barred in a 

federal prosecution 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 Irvine v. California (1954), 347 U.S. 128, 74 S.Ct. 381, 

98 L.Ed. 561, a case involving police misconduct so outrageous 

so as to be "almost incredible if it were not admitted," 

the Supreme Court did not impose the exclusionary rule on 

the state, even though the misconduct 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 judicial mind between the time, 

in 1942, when it held that illegally-seized evidence was 

admissible (People v. Gonzalez (1942), 20 ~al.2d 165, 124 

P.2d 44) and the case adopting the exclusionary rule in 

1955 (People v. 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 

[illegal searches and 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: 

"My misgivings about . . . [the admissibility of 

illegally-seized evidence] grew as I observed 

that time after time it was being offered and 

admitted as a routine procedure . . . It was 

one thing to condone an occasional constable's 

blunder, to accept his 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 

flagrantly violated the constitution of the 

United States as well as the state constitution. 

"Ah, but surely the guilty should still not 

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 evidence were lacking 

because the police had observed the constitutional 

restraints upon them. It is seriously misleading, 

however, to suggest that wholesale 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 opposite when 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. (Emphasis added.) 

The exclusionary rule is not a judicial plaything, 

casually adopted and casually waived. It is a constitutional 

answer to unconstitutional activity. It is an affirmation 

that a free government can no 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 rights were in danger of becoming 

an unfleshed skeleton. 

Sometimes, it is to be 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 that many 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 search was made not 

by police officers but by private individuals. The State 
has pointed out to us that Mapp v. Ohio, supra, extended the 

operation of the Fourteenth Amendment, and the application 

of the exclusionary rule to state cases, but only when -- - - 

state action - is involved. This is necessarily true because 

of the provisions of the Fourteenth Amendment, which apply 

only to states and not to individuals. As we have pointed 

out above, however, Montana applies the exclusionary rule to 

actions by individuals where 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 collusion with 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 

circumstances which might 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 search which 

was made 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 Supreme Court determined 
under the federal constitution that privacy 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, Rios v. United States (1960), 364 U.S. 253, 

30 S.Ct. 1431, 4 L.Ed.2d 1688. 

The defendants were aware that their rented house was 

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 inspection by prospective purchasers. 

The skis, however, were personal property, not for sale, and 

not items which are normally the subject of inspection by 

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 as private and, 

thus, be afforded constitutional protection. We find that 

such an expectation of privacy is reasonable. 

The search was conducted by private citizens not acting 

in concert with any law enforcement agency, thus precluding 

the assertion of a compelling state interest. 1972 Mont. 

Const., Art. 11, B 10. It is undisputed that Marcure's sole 

purpose of inspecting the house was to search for the skis. 

The premises were open to inspection by prospective purchasers, 

not persons attempting to dispel or substantiate rumors. 

From the outset, Marcure was improperly on 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 went beyond 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 

warrant which was issued based on the affiants' discovery of 

the skis. The only way 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 absence of a positive identification of the skis, it is 

unlikely that Hallock's mere suspicion would justify the 

issuance of a search warrant. Therefore, the evidence was 

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 is defined as "an intentional relinquishment or 

abandonment of a known right or privilege." Thus, if a 

consent search is a matter of waiver, then the consent would 

be effective only upon a showing that the individual who 

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 

............................... Justices 
Mr. Justice Frank 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 to reexamine State v. Brecht 

(1971), 157 Mont. 264, 485 P.2d 47; State v. Helfrich (1979), 

- Mont . , 600 P.2d 816, 36 St.Rep. 1763, and the rationale 

expressed by the majority in the case at bar. 

In Brecht and Helfrich this Court held that the Montana 

constitution's sections on privacy and unreasonable search 

and seizure address private action as well as state action. 

The court further held that the exclusionary rule is automatically applied if a constitutional right is invaded. These 

two holdings are followed in the instant case. 

A careful reading of these three decisions discloses a 

lack of rationale supporting a radical departure from precedent established by every other appellate court. Montana 

is the only jurisdiction to my knowledge which has extended 

either "search and seizure" or "privacy" provisions to 

private action. Additionally we are the only court which 

has applied the exclusionary rule to private action. 

In my opinion there are two issues which 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 state action? (2) Should 

the exclusionary rule be applied to suppress evidence obtained by an individual where that individual does not act 

in concert with agents of the state? I would hold that the 

constitutional provisions referred to herein, contemplate 

state action only. I would further hold that the exclusionary 
rule does not apply to private action. 

Montana is one of only ten states to have an express 

provision for privacy in the state constitution. As mentioned previously, none of these states have held the privacy 

protections to be applicable to acts of private persons. 

Arizona has directly held that the privacy prohibition 

applies only to state action. Cluff v. Farmers Insurance 

Exchange (1969), 10 Ariz.App. 560, 460 P.2d 666, 669. Alaska 

has limited its application to state activities. 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 first extended privacy rights to private action 

in State v. Brecht, supra. In that case a man telephoned 

his wife and threatened to shoot her. Another person, 

listening in on an extension, overheard the conversation. 

When the wife was shot and killed a short time later, the 

District Court allowed the eavesdropper to testify regarding 

what she overheard. This Court reversed holding that Brecht's 

right of privacy was protected from an invasion from a 

private individual. The court cited Katz v. United States 

88 S.Ct. 507, 19 L.Ed.2d 576, 

(1967), 389 U.S. 3471 as support for its holding. However, 

Katz involvesgovernmentaction, not private action and provides 

no support for this Court's position in Brecht. 

In State v. Helfrich, supra, the court followed the 

holding of Brecht, but expanded the discussion. The court 

relied upon transcripts from the constitutional convention 

in concluding that the framers of the constitution intended 

for the right of privacy to protect persons against both 

private and government action. The court cited the following 

transcript quotations: 

". . . Certainly, back in 1776, 1789, when they 

developed our Bill of Rights, the search and seizure 
provisions were enough, when a man's home was his 

castle and the state could not intrude upon his 

home without the procuring of a search warrant 

with probable cause being stated before a magistrate and a search warrant being issued. No other 

protection was necessary and this certainly was 

the greatest amount of protection that any free 

society has given its individuals. In that type 

of a society, of course, the neighbor was maybe 

three or four miles away. There was no real 

infringement upon the individual and his right of 

privacy. However, today we have 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 . . . It isn't only a careless government that has 

this power to pry, political organizations, private information gathering firms, and even an 

individual can now snoop more easily and more effectively than ever before . . .' Tr. at pp. 5182." 

Helfrich, P. 2d , 37 St.Rep. 1766. 

The second quotation actually resulted from a delegate 

reading from a newspaper editorial which supported an 

expanded right of privacy. However, the balance of the 

delegate's statement is very significant. It reads: 

"It produces what I would call a semi permeable 

wall of separation between individuals and state; 

just as the wall of separation between church and 

state is absolute, the wall of separation we are 

proposing with this section would be semi permeable. That is, as a participating member of society 

we all recognize that the state must come into our 

private lives at some point, but what it says is 

don't come into our private lives unless you have a 

good reason for being there. We feel that this, 

as a mandate to our government, would cause a 

complete reexamination and guarantee our individual citizens of Montana this very important right." 

(Emphasis supplied.) Tr. at pp. 51 81.* 

In my opinion, the majority can find little solace from 

reading the Constitutional Convention Transcript. When 

talking about the privacy section, state action rather than 

private action, is emphasized. Furthermore, the privacy 

section, Article 2, 810, specifically states: "The right of 

individual privacy is essential to the well being of a free 

society and shall not be infringed without the showing of a 

compelling state interest." (Emphasis supplied.) The 

-18- 
language of the section itself indicates that the framers 

contemplated state action by allowing an invasion where 

there was a compelling state interest. 

Historically constitutions have always been a means for 

people to address their government. In rare instances the 

constitutional framework has embraced sections specifically 

speaking to private persons. Article 11, §4, of the Montana 

Constitution provides in part: " . . . Neither the state nor 

any person, firm, corporation, or institution shall discriminate against any person . . ." (Emphasis supplied;) Notably 

the privacy section does - not address private individuals. 

By interpreting Montana's constitutional right of 

privacy as a prohibition against private, as well as state 

action, this Court has set itself foursquare against the 

position of the courts of all other states, and in my opinion, 

against the intention of the framers of Montana's constitution. 

The second issue which must be addressed is application 

of the exclusionary rule. It is apparent to me that the 

majority has elevated the exclusionary rule to constitutional 

status. This conclusion seems inescapable in the light of 

its automatic application in Brecht, Helfrich, and this 

case. As the majority here states: "It is paste and cover 

for the bones of our constitutional rights . . ." Nevertheless 

there seems to be confusion on this point as the legislature 

continues to pass legislation, though vetoed, abolishing the 

exclusionary rule and providing a "deterrent" alternative. 

Under the current posture of Montana constitutional law such 

legislation is patently unconstitutional. 

The exclusionary rule was first enunciated in Weeks v. 

34 S.Ct. 341, 58 L.Ed 652. 

United States (1914). 232 U.S. 383,/ The rule was evidentiary 

in nature and not deemed to be rooted in the constitution 

itself. 

-19- 
41 S.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 private person was not subject to exclusion 

even if obtained in an unreasonable search. 

Justification for the exclusionary rule arises from a 

desire to deter unlawful police action. The rule has only 

minimal deterrent value when applied to private persons. If 

the rule is to have a deterrenteffe~t~potential violators 

must be aware of the rule. It is doubtful that private 

individuals in our society understand and appreciate the 

exclusionary rule, and there is little evidence that application of the exclusionary rule to private 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 effect of applying the rule offers no 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 

all others. 

The exclusionary rule is a valuable tool in deferring 

unreasonable police action. In private action cases the purpose wanes. 

I would hold, in this case, the skis which were seized, 

were the fruit of private action and therefore not subject 

to suppression. I would reverse the District Court and 

remand this case for trial. 
We concur with the foregoing dissent: 

Justices 
Mr. Justice Gene B. Daly specially concurring: 

I concur with the majority 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 the Brecht 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 the holding in Brecht. 

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 federal judicial system he was adamant in his belief 

that the Fourth Amendment was cast in nonf lexible 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. A 
trespass 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 the passing 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, State v. Coburn (1974), 165 Mont. 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 to -- be a limitation upon other 

than governmental agencies; as against such 

authority it was the purpose of the Fourth 

Amendment to secure the citizen in the right 

- of unmolested occupation of his dwelling and 

the possession of his property, subject to 

the right of seizure by process duly issued.' 

[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 the parties 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 in the instant case have avoided 

any analysis of Katz in which, Justice Black 

in his dissenting opinion proclaims that the 

majority in Katz have 'rewritten the Fourth 

Amendment'. Justice Black in his dissent 
also relied heavily on Olmstead. 

"It would appear then that the arguments 

based on strict interpretation, origin, 

history, and intent of the authors as they 

concern the Fourth Amendment are highly 

diluted since Katz in 1967. The majority in 

Katz recognize that the former decisions of 

the Court foreclosed Fourth Amendment inquiry 

when penetration or trespass was absent, 

citing Olmstead and Goldman v. United States, 

316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, 

for the Amendment was thought to limit only 

searches and seizures of tangible property 

and property rights controlled. The 

majority, in Katz, cited Silverman v. United 

States, 365 u.S.505, 81 S.Ct. 679, 5 L.Ed.2d 

734, as the departure from that narrow view 

and included intangibles as well. It went on 

to hold that the Fourth Amendment protects 

people and not simply 'areas' and therefore 

the reach of the Fourth Amendment cannot turn 

upon the presence or absence of physical 

intrusion into any given enclosure, and the 

trespass doctrine in Olmstead and Goldman can 

no longer be controlling. 

"This then demonstrates a radical departure 

from the accepted meaning of the words of the 

Fourth Amendment which controlled for over a 

period of 40 or more years, 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 as Katz : 

"'Clauses guaranteeing to the individual 

protection against specific abuses of power, 

must have a similar capacity of adaptation to 

a changing world. It was with reference to 

such a clause that this court said in Weems 

v. United States, 217 U.S. 349, 373, 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 that evil had theretofore taken. Time 

works changes, brings into existence new 

conditions and purposes. Therefore a 

principle to --------------- be vita-1 must be capable ------- of 

------- wider application ------ than the mischief -- 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 at p. 350 of 389 U.S., 

at p. 511 of 88 S.Ct., at p. 581 of 19 

L.Ed.2d in reference to the 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 Fifth Amendment 

rights, whether private orgovernment, --------- 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. 

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, 2 L.Ed.2d 975 (1958). 

"Concerning the exclusionary rule itself, it 

would be well to consider first that the 

'exclusionary rule' is a court adopted rule 

resting on the 'rule making' and 'supervisory 

power' of the Supreme Court over the other 

courts and has no roots in the constitution 

or the statutes of the state or federal 

government. (Dissent in Katz by Justice 

Black and citing Wolf v. Colorado, 338 U.S. 

25, 69 S.Ct. 1359, 93 L.Ed. 1782; Mapp v. 

Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 

1081, 84 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 be 
corrected 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. at 496-499. 

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.