No. 79-69 

and 79-70 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsWILLIAM JOHN COLEMAN, 

Defendant and Appellant. 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsTHOMAS G. CASE I 

Defendant and Appellant. 

Appeals from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

Honorable Charles Luedke, Judge presiding. 

Counsel of Record: 

For Appellants: 

Allen Beck argued, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Allen Chronister argued, Assistant Attorney General, 

Helena, Montana 

Harold F. Hanser, County Attorney, Billings, Montana 

James D.Whalen, Deputy County Attorney, Billings, 

Montana (argued) 

Filed: ~JFJ- A"? J!f$j 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

These cases, consolidated on appeal, arise out of 

judgments of conviction against the defendants entered in 

the District Court, Thirteenth Judicial District, Yellowstone 

County. 

Three of the issues raised in each appeal are the same. 

For that reason, we consolidated the matters for oral argument. 

Principally the defendants contend that electronic surveillance of each of the defendants was illegal because the supporting affidavits upon which warrants for electronic 

surveillance were issued were inadequate in that (1) no 

compelling state interest was shown, and (2) the AguilarSpinelli standards were not met. Moreover, it is also argued 

by each defendant that the warrants did not specifically 

describe the place to be searched. We find against the 

defendants on these contentions and the remaining issues each 

defendant raised. We will discuss each case separately avoiding 

repetition where possible. 

I. 

William John Coleman, No. 79-69. 

William John Coleman appeals from his conviction on 

September 14, 1979, of felony sale of dangerous drugs and 

felony possession with intent to sell dangerous drugs. 

On January 12, 1979, Stanley Underwood, a parolee, was 

subjected to a parole search by officers of the Billings 

police department. As a result, Underwood faced parole 

revocation because of possession of illegal drugs, but he 

was promised release if he would assist the police in the 

investigation of William Coleman. 

On January 14, 1979, Underwood met defendant Coleman 

while wearing a body transmitter which had been provided 

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by the Yellowstone County Criminal Investigation Division. 

A receiver and tape deck were used to record the transmissions 

of the conversations between Underwood and Coleman. 

Coleman's arrest occurred directly as a result of the 

electronic surveillance, during which the officers overheard 

the purchase by Underwood from Coleman of a half-pound and 

a quarter ounce of methamphetamines. At the time of the 

arrest, Coleman was informed by Detective Wickhorst that they 

had "it all on tape". Coleman consented to a search of his 

home which occurred later that evening, after Detective 

Wickhorst obtained a search warrant from Justice of the Peace 

Pedro Hernandez. The search of the home turned up additional 

drugs and some drug handlers' paraphernalia such as weighing 

devices. 

Each of the defendants recognizes that the legality of 

interception of telephone calls or the recording of conversations was settled in State v. Hanley (1980), Mont . 

- , 608 P.2d 104, 37 St.Rep. 427. There we said that police 

officers may intercept, transmit or record private conversations 

if one of the parties to the conversation consents, even an 

informer, as long as the will of the consenting party has not 

been subjected to overbearing pressure from the authorities. 

We pointed out the language from United States v. White (1970), 

401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453, that since an 

informer who conceals his police connections may write down 

for official use his conversations with a suspect and testify 

concerning them without a warrant issued beforehand, the 

simultaneous recording of the same conversation by electronic 

means made by the informer or by others from transmissions 

received from the informer is likewise admissible. County 

attorneys in this state follow the practice, which we approved, 

of obtaining a court order before electronic interception of 

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criminal suspects is undertaken, as a result of our decision 

in State v. Brackman (1978), Mont . - 

, 582 P.2d 1216, 

35 St.Rep. 1103. 

Coleman's major argument is that the application made 

to the District Court for permission to use electronic surveillance on him was inadequate because it does not meet the 

Aguilar-Spinelli standard, and because there is no compelling 

state interest requiring the issuance of the order. 

The Aguilar-Spinelli test is derived from Aguilar v. Texas 

723; 

(1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d/ and Spinelli 

v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 

637. The test is that the application for order or warrant 

must demonstrate that the informant obtained his information 

in a reliable manner and that the application establishes that 

the informant is reliable or that the informant's information 

has been corroborated by information obtained independently 

of the informant's allegations. 

We do not reach the Aguilar-Spinelli test in this case, 

however, because the tape recording of the drug transaction 

transmission was never played to the jury or entered into 

evidence. Underwood testified fully during Coleman's trial 

regarding the drug transaction between himself and Coleman. 

The District Court found that the direct testimony of Underwood 

was sufficient to convict, and refused the admission of the 

tape into evidence. Since the recorded evidence was not used 

to convict Coleman, there is no need for us in this case to 

examine the Aguilar-Spinelli test or whether a compelling state 

interest required the issuance of the surveillance order. State 

v. Jackson (1979), - Mont. - , 589 P.2d 1009, 36 St.Rep. 

169; State v. Leighty (1978), - Mont . - , 588 P.2d 526, 35 
In like manner, because the tape was not used in 

evidence, there is no necessity for us in Coleman's case to 

examine the issue of specificity with respect to the order 

for electronic surveillance, that is, that the order did not 

specify a particular place where the electronic surveillance 

could be effectuated. 

An issue which relates to Coleman's case and not to that 

of Thomas Case is the surmise of Coleman that the police 

authorities were tapping his telephone prior to January 12, 

1978, and particularly prior to January 14, 1978, when the 

order permitting electronic surveillance of his conversations 

with Underwood was granted. 

Coleman contends that there was prior illegal electronic 

surveillance in this case because (1) the state became aware 

of William Coleman's alleged drug dealing through unlawful 

telephone monitoring during 1978; (2) that the monitoring 

led to the arrest of Underwood, the parolee, and the search 

of his home; and (3) that the illegal monitoring led to the 

recruitment of Underwood by the Billings Criminal Investigation 

Division to assist in the arrest of Coleman. 

This contention is based on the testimony of Arnado Garcia 

who stated that on January 13, 1979, Detective Wickhorst 

told Garcia that he was susp&dof engaging in illegal activities 

with William Coleman and others. Garcia asked ~ickhorst how 

that information had been obtained and Wickhorst's response 

was, "We should hold down our conversatio~on the phone." 

Garcia also testified that Wickhorst had stated on January 13, 

1979, that the police were aware of Coleman's activities 

before Christmas 1978. Also Cathy Underwood, the wife of the 

parolee, testified that on the night of the parole search of 

her home on January 12, 1979, a member of the ~illings CID 

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who returned her to her home told her'hot to call on the 

phones, as they were probably all tapped and not to warn 

her friends that the phones were all tapped!' 

Underwood testified that during the parole search of 

his home, Detective Wickhorst went to the bedroom, disassembled the telephone and removed something from it which 

he placed in his pocket. 

Underwood also testified that while he remained in jail 

on January 30, he had four telephone calls tapped by the 

application of a suction cup and an electronic recording device. 

With respect to the telephone calls in the police station 

which were recorded by use of the suction cup electronic device, 

since Underwood consented to that monitoring, the telephone 

interception by the police authorities of those conversations 

was not illegal under State v. Hanley, supra. 

This Court cannot be expected to reverse a criminal 

conviction upon the mere conjecture that the police authorities 

were using illegal wiretapping of telephone calls to set in 

motion the chain of circumstances that led to the search of 

the parolee's home. There is not a scintilla of direct 

evidence in the record to support such conjecture. An issue 

built upon such conjecture is simply weightless for purposes 

of appeal. 

11. 

Thomas G. Case, No. 79-70. 

Defendant Thomas G. Case was charged by information 

with felony criminal sale of dangerous drugs and felony 

criminal possession of dangerous drugs. Upon trial on motion 

of Case, a directed verdict was granted by the court in Case's 

favor with respect to the charge of criminal possession of 

dangerous drugs. The charge of criminal sale of dangerous drugs 

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was submitted to the jury which convicted the defendant. 

Judgment of conviction and sentence were pronounced on 

June 18, 1979. 

The conviction of Case relates to the same undercover 

agent, Stanley Underwood. Following Underwood's assistance 

to police authorities in the Coleman matter, he was released 

from custody. He was again arrested on January 30, 1979, 

along with his wife. Underwood made a deal that he would 

cooperate with the police in arresting Thomas Case if the 

police would agree not to prosecute his wife. 

On January 30, 1979, Detective Orval Hendrickson of the 

Billings CID applied to the District Court for authorization 

to use an electronic monitoring device on Stanley Underwood. 

The order was granted by the District Court for a period of 

ten days beginning January 30, 1979. 

In the afternoon of January 30, 1979, Underwood made a 

telephone call to Case which was recorded by the police 

authorities through the use of a suction cup recording device. 

As a result of the telephone call, a drug buy was arranged. 

Underwood proceeded to Case's residence in Billings where the 

transaction involving the purchase by Underwood from Case of 

methamphetamines was consummated. 

After the arrest of Case, the officers requested his 

permission to search his residence but he refused. The 

officers had already commenced the steps necessary to secure 

a search warrant, including notifying a justice of the peace 

and preparing the necessary papers. Case, without further 

conversation, and apparently without any inducement, told 

the officers they "might as well" go ahead and search because 

they would not find anything. The record does not reveal that 

a search warrant was obtained for the search of the Case 

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residence, although Case argues on appeal on the basis that 

a search warrant was issued. In any event, the marked money 

furnished for the buy, and drug-related paraphernalia, were 

seized during the search of Case's residence. 

Case, as did Coleman, argues that the application for 

the order authorizing the use of the electronic monitoring 

device does not meet the Aguilar-Spinelli test, supra, and 

therefore the issuance of the order authorizing the electronic 

monitoring was unlawful, and any evidence secured as a result 

thereof should be suppressed. 

Detective Hendrickson's application for an order to 

allow the use of electronic monitoring included these statements : 

". . . Stanley Underwood is a confidential source 

of information who has agreed to cooperate with the 

Criminal Investigation Division of the Yellowstone 

County Attorney's Office. Underwood has stated that 

he has been furnished with dangerous drugs, to wit, 

methamphetamines, in the past by Tom Case. On Monday, 

the 29th of January, 1979, Tom Case was at the 

Underwood residence and stated that he would have 

quantity of methamphetamines for sale on the 30th 

of January, 1979. Underwood stated that Case would 

front him one ounce of methamphetamine. At this 

time, Underwood plans to approach Case for the purpose 

of purchasing one ounce of the methamphetamines at 

the Case residence. The cost of one ounce of 

methamphetamine is approximately $1,100.00. 

"Stanley Underwood is currently on parole for burglary 

but has supplied reliable information in the past to 

the Criminal Investigation Division, Yellowstone 

County Attorney's Office, which has lead (sic) to 

the seizure of contraband and arrest. . ." 

On the basis of the application, the District Court 

issued an order authorizing electronic monitoring. Underwood 

was equipped with a transmitting device. He and Detective 

Wickhorst proceeded to Case's residence in Billings and the 

transaction involving the drug buy occurred. 

Based on the information obtained from the electronic 

monitoring, including the telephone call from Underwood to 

Case, and the transaction relating to the drug buy, Case was 
arrested. At trial, the communications overheard by 

electronic surveillance, as well as evidence seized in 

the search,were admitted into evidence. 

The affidavit contained in the officer's application for 

an order authorizing electronic monitoring was sufficient. 

It properly informed the District Court of the underlying 

circumstances from which the informant (Underwood) concluded 

that the narcotics were located where he claimed they were and 

further informs the District Court of the underlying circumstances from which the officer making the application concludes 

that the informant was credible and his information reliable. 

On this basis, the Aguilar-Spinelli - test is satisfied. See, 

State v. Leistiko (1978), Mon t . , 578 P.2d 1161, 1163, 

35 St.Rep. 590, setting forth the rule that the affiant must 

support his claim that the informant was credible and reliable. 

Case contends that because Stanley Underwood was a convicted felon who was on parole and facing revocation at the 

time of the application, he was not a reliable informant. 

However, the statement of the officer in the application that 

Underwood had been a reliable informant in the past and that 

his information had resulted in the seizure of contraband and 

arrests clearly established the reliability of the informant 

for the purposes of obtaining the order authorizing electronic 

monitoring. 

Case however, further attacks the order which authorizes 

the electronic monitoring upon the basis that a specific 

description of the place to be searched is not set forth in 

that order. He contends that the Fourth Amendment of the 

federal constitution requires search warrants to describe 

the place to be searched with particularity. He points to the 

provisions in the federal law, 18 U.S.C. 52518 (1) (b) (ii) , which 

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state that applications for surveillance orders must include 

"a particular description of the nature and location of the 

facilities from which or the place where the communication 

is to be intercepted." 

The State responds to this argument, first that 18 U.S.C. 

S2518, does not apply here under our decision in Hanley, 

supra, because the federal law, as we said in Hanley, does 

not apply to monitoring by consent of the participants. 

That argument is correct. The State secondly contends that 

the applicable statute which controls this case is section 

46-5-201, MCA, which provides: 

"A 'search warrant1 is an order: 

" (1) in writing; 

" (2) in the name of the state; 

"(3) signed by a judge; 

" (4) particularly describing the thing, place, or 

person to be searched and the instruments, articles, 

or things to be seized; 

"(5) directed to a peace officer commanding him to 

search for personal property and bring it before the 

judge . " 

It is obviously impossible for the court, or the officer 

applying for an order authorizing electronic monitoring, to 

pinpoint the location where the criminal transaction to be 

monitored will take place. In drug buy situations, it will 

depend on the whim of the parties at the time, relating to 

their own conveniences and even their reactions to fears of 

being detected. In this case for example, if the order 

authorizing the monitoring had specified that the monitoring 

occur while Underwood was in Case's home, the order would 

have been useless because this transaction occurred in 

Case's yard, where Underwood met him, and was continued 

subsequently in Case's automobile. Recognizing the inability 

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of any officer or court to prognosticate exactly where a 

criminal transaction such as a drug buy, will take place, 

does this mean that an order authorizing electronic monitoring 

without specifying the place of such monitoring is constitutionally 

impermissible? We hold not. 

As the state argues, and we agree, section 46-5-201, 

MCA, supra, describing what may be searched refers to "the 

thing, place or person" to be searched. The language of the 

statute is in the disjunctive. The person to be searched, 

or whose conversation is to be overheard, when named in the 

order authorizing the surveillance is sufficiently precise 

in itself to meet this constitutional objection to the 

order, because the order is directed to the monitoring of a 

specific person, wherever that person may be. The latelycirculated popular aphorism that "Everybody's got to be 

someplace" tersely meets Case's contention: when the order 

authorizes the surveillance of a particular person, for a 

limited amount of time as in this case, the geographic 

location of the search is perforce tied to the whereabouts 

of the suspect. No greater particularity as to place is 

required in the order authorizing electronic surveillance. 

As a matter of first impression on this point, we so hold. 

It is further contended by Case that the interception 

of monitoring by the police of a telephone call between 

Underwood and Case on January 30, 1979, was beyond the 

intended scope of the court order authorizing electronic 

surveillance on the same date. 

The order itself authorized only the utilization of an 

electronic device on Underwood for use in monitoring conversations 

with Case. Prior to the use of the monitor on Underwood 

however, a telephone call was made by Underwood from the CID 

office to Case. The call was made at the direction of the 

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officers in the CID and was monitored by the use of a 

suction cup attached to the telephone as a part of a recording 

device. Case contends that the suction cup device and the 

recorder were not placed on the body of Stanley Underwood 

and therefore were in violation of the court order authorizing 

electronic monitoring. Case contends that the recording of 

the telephone conversation was an invasion of his privacy in 

violation of 1972 Mont. Const., Art. 11, §lo, as well as his 

rights to privacy under the federal constitution. 

The answer to Case's contention here is again found in 

Hanley, supra, where we held that interception of telephone 

conversations by police officers is legal if one of the 

parties to the conversation consents,even an informer. This 

Court has never held that a court order is necessary to 

monitor a telephone conversation, where one of the parties 

to the telephone conversation consents. Our decision in 

State v. Brackman, supra, concerned a conversation between 

parties in an open parking lot, where the electronic monitoring 

violated the reasonable expectations of privacy between the 

participants in the conversation that was monitored. No 

such reasonable expectations of privacy exist in a telephone 

conversation. Neither party to a telephone conversation can 

ordinarily see the other. Neither has any way of knowing 

whether or not the conversation on the telephone is being 

overheard by other parties. Neither the Montana nor the 

federal constitution prohibits such monitoring where one of 

the participants consents. See 18 U.S.C. §2511(2) (c). 

The monitoring of the telephone conversation here was 

legal, even though it preceded or led to the electronic 

monitoring of the actual drug transaction. State v. Hanley, 

supra. 

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 ina ally, Case contends, though it is not fully argued 

in his brief, that the order authorizing the electronic 

surveillance should not have been issued because under 

Brackman, supra, there must be a compelling state interest 

established before the order can be issued for monitoring. 

We held in Brackman that a prior warrant or order of 

authorization must be obtained for monitoring with the 

consent of the participant and that the standard to be met 

for obtaining that type of warrant is not probable cause, 

but compelling State interest. 1972 Mont. Const., Art. 11, 

0. In State Etc. v. District Court, Etc. (1979), - 

Mont. , 591 P.2d 656, 36 St.Rep. 489, we held that a 

compelling state interest exists when the state must enforce 

its criminal laws for the benefit and protection of other 

fundamental rights of its citizens. 

We agree with the State that the sale or use of methamphetamine, a dangerous drug, has been legislatively determined to 

be so serious a crime as to require, in the case of the 

sale, a possible maximum life sentence under section 45-9- 

101(3), MCA. The enactment and enforcement of laws, especially 

criminal laws, is essential to the preservation of a free, 

safe and orderly society. There was, therefore a compelling 

state interest under which the District Court, in this case, 

faced with the affidavit of the applying officer relating to 

Case, was required to act and to issue the order authorizing 

electronic surveillance. The Brackman requirement of a 

compelling state interest is met in this case. 

We also hold against the defendant on his contention 

that the evidence produced by the search of his home should 

be suppressed. He consented in fact to that search, and his 

consent forecloses any objection on the basis of illegal search 

to the materials the search produced. State v. Yoss (1965), 

146 Mont. 508, 409 P.2d 452. 

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Conclusion 

The judgments of conviction in each of these cases are 

affirmed. 

We Concur: 

,pief Justice